U.S. v. Cummings
| Decision Date | 15 February 2011 |
| Docket Number | No. CR 10–027 (ADS).,CR 10–027 (ADS). |
| Parties | UNITED STATES of America, Plaintiff,v.Robert L. CUMMINGS, Jr., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Loretta E. Lynch, United States Attorney, Eastern District of New York, by: Charles N. Rose, Assistant U.S. Attorney, Central Islip, NY, for Plaintiff.Peter J. Tomao, Esq., Garden City, NY, Mandery & Mandery, Mineola, NY, by: Edward J. Mandery, Esq., of Counsel, for Defendant.
In a Notice of Omnibus Motion dated June 9, 2010, the defendant Robert L. Cummings, Jr., moved pursuant to the Federal Rules of Criminal Procedure, for the following relief relevant to the hearing held in this matter:
1. An order pursuant to Rule 12 suppressing evidence obtained by government agents after approaching the defendant Robert L. Cummings, Jr.'s vehicle on March 11, 2010;
2. An order pursuant to Rule 12 suppressing any statements obtained by government agents from the defendant Robert L. Cummings, Jr. on March 11, 2010;
3. An order pursuant to Rule 12 suppressing any evidence obtained by government agents from the search of the defendant's residence at 270 North Country Road, Smithtown, N.Y. on March 11, 2010.
A. The Government's Case
Michael Antonucci is a Special Agent with the Drug Enforcement Administration (“DEA”). He is an experienced drug trafficking investigator. In late January 2010 the Smithtown Department of Public Safety received an anonymous letter that heroin trafficking was taking place in the maintenance yard of the Smithtown Highway Department. Following up that information, on February 5, 2010, DEA Agents arrested two employees of the Smithtown Highway Department for possession of heroin. One was Nick Dirienzo, who stated that the source of the heroin was another Smithtown Highway Department employee named Dennis Manning. At that time, seven glassine envelopes of heroin were recovered from Dirienzo. The glassine envelopes were stamped “Rockefella, two thumbs up.”
Special Agent Antonucci was told by other law enforcement officers that Dennis Manning's source of heroin was located at 270 North Country Road in Smithtown. He was told this information by a Public Safety Officer and Park Ranger named Thomas Lohmann. Previously, experienced law enforcement officers had observed what they believed to be suspicious activity at 270 North Country Road in Smithtown. They saw individuals going into the residence for relatively short stays and vehicles pulling up to and in and out of the residence area.
Based on this information, Special Agent Antonucci conducted a surveillance at 270 North Country Road. At the residence, he observed a white Cadillac Escalade bearing New York plate number EVY8194 which was registered to Robert L. Cummings, 21 Carol Lane, Mastic Beach, New York. Antonucci then ran a criminal history check on Robert Cummings, which revealed that Cummings had two prior convictions. In 2002, Cummings was arrested for possession with intent to distribute narcotics and possession of a loaded firearm. He pled guilty to a felony possession of narcotics. Also, in 2008, he was arrested for possession of a controlled substance and a firearm. He pled guilty to a misdemeanor possession of a controlled substance.
Law enforcement conducted a surveillance at the property in question on approximately five or six occasions from February 11, 2010 through March 11, 2010. Dennis Manning was observed in or near the vicinity of 270 North Country Road and the white Cadillac Escalade was also present. On February 24, 2010 a surveillance was conducted and the agents saw Dennis Manning in a Smithtown Highway Department truck arrive at 270 North Country Road. Manning exited the truck and entered the building for approximately five minutes, then he exited the residence, entered the truck and left. The defendant's Escalade remained.
On February 25, 2010, another surveillance was conducted by Antonucci. He saw Cummings enter his white Escalade, drive for a distance and meet a Smithtown Highway Department snow removal truck at the crest of a hill. The driver of the truck, Dennis Manning, exited the truck and entered the Cummings vehicle for approximately two to three minutes. Then Manning left the Cummings vehicle, re-entered the truck and both vehicles departed. Cummings drove back to the residence at 270 North Country Road. Antonucci suspected that a drug transaction had taken place.
Another surveillance took place on March 3, 2010 at 270 North Country Road. Cummings entered the Escalade and drove to Queens County and picked up another individual at 110th Street in Richmond Hill. They drove around together for the better part of the afternoon.
March 11, 2010, was a key date in this hearing.
On March 11, 2010, Antonucci was part of a surveillance team at 270 North Country Road. At approximately 12:58 pm, he saw Cummings enter the white Cadillac, drive south and pull into a Dairy Barn. He drove through the purchasing window, headed south and entered an adjacent shopping center parking lot. He then drove through the parking lot, circling slowly, at which time a second vehicle, bearing New York State registration number EME2288 drove behind Cummings' vehicle as it circled the lot. The two vehicles exited the lot and then both pulled over to a wooded area. The driver of the second vehicle was later identified as Jude Innocent. After the vehicles both pulled over to the side of the road in this wooded area, Innocent exited his vehicle and entered the defendant's Escalade.
At that time, Special Agent Antonucci activated his police lights and pulled in front of the Escalade and exited his vehicle and came up to the driver of the Escalade. Antonucci described what occurred:
And with my police badge on, I exited my vehicle, came up the driver's side of Mr. Cummings' vehicle.
The window was opened. I told Mr. Cummings to put his hands on the steering wheel, and I told Mr. Innocent not to move.
At that point, for my safety, I opened the driver's side door, at which time I saw a stack of money in Mr. Cummings' lap.
I subsequently removed Mr. Cummings from the vehicle. At the same time, law enforcement officers removed Mr. Innocent from the passenger side and stated that they found at some point thereafter—that they found a large sum of heroin on Mr. Innocent. And both Mr. Cummings and Mr. Innocent were placed under arrest.
Tr.* at 24.
Agent Egan, who was in charge, spoke to the defendant. The defendant wanted to know what was happening. He was told he was under arrest for possession of drugs with respect to the transaction that just occurred. Egan told the defendant that “we would go ahead to get a search warrant for his residence.” At that point, Cummings was calm and appeared to want to cooperate with law enforcement. Agent Egan asked the defendant if he was willing to cooperate and “if he gave us a consent to search for his apartment, that would be part of the process that would happen next.” Tr. at 26. Cummings was concerned that his wife should be part of the consent to search the apartment. Again, the defendant was apparently relaxed and he was allowed to smoke. According to Egan, “It was a calm atmosphere.”
Agent Egan asked the defendant if there was anything in the house to be concerned about. The defendant said there was a pit bull and a pistol inside, which the defendant said he had a permit for. He then said it was a rifle, not a pistol, and that it was a pistol-rifle. At that point, Cummings expressed a desire to cooperate. He was driven back to his residence at 270 North Country Road and the agents said that they would allow him to speak to his wife, Vanessa Torres.
At the Cummings home, agents went up to the stoop and knocked on the door. This was approximately 2 pm. At that point, Ms. Vanessa Torres came to the door in one-piece wool pajamas. She asked to go back in the apartment to change clothes. Concerned about the firearms in the apartment, the agents said “No.” She closed the front door behind her, walked to the police vehicle that Cummings was in and got in the back and spoke to Cummings. She spoke to Cummings for ten to fifteen minutes. They spoke about the consent to search their residence. Special Agent Antonucci testified that:
Q. Did they agree to give verbal consent for the search at the time?
A. Yes.
And at that point I presented them with a Drug Enforcement Administration form 88, consent to search.
Q. Agent Antonucci, showing you what has been marked as 3500–MA–1, do you recognize that form?
A. Yes, sir.
Q. What is that form?
A. That's the DEA form 88, a copy of his consent to search form. It was presented to Ms. Torres and Mr. Cummings.
Q. And were you present—did you review that form with them?
A. Yes, I did.
Q. And were you present when they signed the form?
A. Yes, I was.
Q. And whose signatures appear on that form?
A. Robert Cummings, Vanessa Torres, myself and Agent Francis Rau.
Q. Did you observe the signatures on that form?
A. Yes.
Q. You observed them sign the form?
A. Yes, sir. Yes, I did.
MR. ROSE: The government offers Government's Exhibit 3500–MA–1 into evidence.
Special Agent Antonucci testified that the defendant's demeanor was “calm and...
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