U.S. v. Frank
| Decision Date | 06 May 1998 |
| Docket Number | No. 97 CR. 269(DLC).,97 CR. 269(DLC). |
| Citation | 8 F.Supp.2d 284 |
| Parties | UNITED STATES of America, Plaintiff, v. Deric FRANK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Mary Jo White, United States Attorney, Southern District of New York, New York, NY, John Hillebrecht, Kerry Lawrence, Assistant United States Attorneys, for U.S.
Leonard Joy, Jonathan Bach, Legal Aid Society, Federal Defender Division, New York, NY, Kevin McNally, McNally & Robinson, Frankfort, KY, for Defendant.
In this capital prosecution, the defendant, Deric Frank ("Frank") is charged with abducting his former girlfriend, Shaneika Price ("Price"), transporting her across state lines, and killing her by setting fire to the car after locking her in the trunk. Frank has filed numerous motions challenging, among other things, the constitutionality of the statutes under which he is prosecuted, the sufficiency of the Indictment in this case, and the admissibility of certain of the Government's evidence. The Court has already issued an Opinion addressing Frank's challenges to the statutes and the Indictment. In this Opinion, the Court will address Frank's motion to suppress his statements made to the police following his arrest on March 13, 1997, and certain evidence found by the police pursuant to a search warrant executed on March 14. The Opinion follows two days of hearings on the suppression motions — at which Frank did not testify — and post-hearing briefing by both parties.
Frank and Price had a complex relationship that spanned many years and was punctuated by disharmony. In 1991, Price gave birth to a son, Jonathan Price, whom she claimed was fathered by Frank, and whom Frank, at times, acknowledged as his son. Just three weeks prior to her death. Price applied for and obtained an order of protection against Frank. The order, which was based on a pre-printed form filed in Connecticut Superior Court, was entered by the court on February 21, 1997. The order required that Frank
Refrain from imposing any restraint upon the person or liberty of the applicant [Price].
Refrain from threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant.
Refrain from entering the family dwelling or the dwelling of the applicant.
On March 5, 1997, Price filed a harassment complaint against Frank with the Norwalk Police Department. Price's statement in support of her complaint, which was reduced to writing by Police Officer Shawn Morin and approved by Price, stated:
Deric Frank who is my ex-boyfriend has been physically and emotionally abusive in the past towards me. I have observed Deric Frank following me and sitting in front of my residence waiting for me to come home. Deric Frank has also tried to followed [sic] me to my place of employment. I loose [sic] him so he doesn't follow me to work and cause a scene. Deric Frank has also called my place of employment numerous times. I went to the Stamford Court house on 02/21/97 and filed for a restraining order against him and it was served on him. I filed for this restraining order do [sic] to I am concerned for my safety and the safety of my child do [sic] to Deric's actions in the past. Scenes [sic] the restraining order was served on Deric Frank he has called my place of employment and has come past my residence watching me and calls my house. On this date 03/05/97 Deric Frank called my place of employment and was also in front of my residence upon me [sic] getting home.
On the basis of Price's March 5, 1997 complaint, Officer Morin prepared on that date a "Complaint and Incident Report" which documented Price's complaint and set forth Morin's intention to arrest Frank for violation of the February 21 restraining order if he were able to locate Frank prior to the end of his tour. In the alternative, Morin indicated that he would apply for a warrant for Frank's arrest.
On March 9, 1997, Morin prepared an Arrest Warrant Application ("Application"), a two page document containing in its body a six paragraph affidavit by Morin. At the bottom on each page of the Application, the judge's signature attests that the judge has read the affidavit and finds probable cause. Morin's affidavit in support of the application repeated the facts conveyed in Price's March 5 complaint — namely, that Price had obtained a restraining order against Frank on February 21, and that, since that time, Frank had followed and called Price repeatedly and waited for her outside her residence. The affidavit also specifically recounted that Price had stated that "she was afraid of Deric Frank and when she sees him around her residence she runs into her residence and locks the doors so she doesn't have any contact with him." The affidavit further set forth Morin's contacts with Frank on the telephone and his unsuccessful efforts to secure Frank's cooperation.
The affidavit did not indicate the offense for which Morin believed an arrest warrant was appropriate. It did, however, state that Morin had advised Frank that if Frank did not cooperate, "a[n] arrest warrant would be filed against him for violation of the restraining order." In its final paragraph, the affidavit stated:
[T]his officer respectfully requests that this arrest warrant be issued for Deric Frank do [sic] to this is a domestic problem and it appears to be a on going [sic] problem which has been physically and emotionally abusive in the past towards Shaneika Price. That I gave Deric Frank every opportunity to come to headquarters and speak to this officer regarding this matter. That Deric Frank's actions towards this officers [sic] attempts to speak to him resulted in a negative ending in this CO-operation [sic].
The pre-printed findings of probable cause that appear on the bottom of each page of the Application, to which the judge affixed his signature on March 10, similarly do not state the offense for which the warrant was approved. Rather, the findings state simply that
there is probable cause to believe that an offense has been committed and that the accused committed it and, therefore, that probable cause exists for the issuance of a warrant for the arrest of the above-named accused.
Also on March 10, Morin prepared an arrest warrant and an "Information." The arrest warrant, which did not require any designation as to the offense for which arrest was authorized, also was signed by the judge on March 10. Unlike the Application and warrant, the Information specified that Frank had violated Connecticut General Statute Section 53a-107, which defines criminal trespass in the first degree. In his affirmation filed in support of the Government's opposition to the Defendant's motion to suppress,1 Morin explained that his decision to cite the criminal trespass statute reflected the Norwalk Police Department's general practice of charging persons who have violated orders of protection with this infraction. Morin explained:
The restraining order [issued upon Price's application], like all such orders with which I am familiar, contains a specific citation to the criminal trespass statute, stating (consistent with that statute) that "entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree." In my experience, where it is credibly alleged that an individual has violated such an order by following someone from their home and work place and waiting for that person at their home, we typically charge that individual with criminal trespass.
Morin further stated that, although he cited only the criminal trespass statute in the Information, he was aware of several statutes that Frank could be found to have violated based on Price's complaint. Indeed, Morin stated that, at the time he executed his affidavit in support of the arrest warrant, he knew based on his training and experience that "probable cause existed" to believe that Frank had also violated, at a minimum, Connecticut's harassment and stalking laws, Sections 53a-183 and 53a-183, respectively. The choice to cite the criminal trespass statute in the Information reflected, as indicated above, the convention in the police department and the fact that Connecticut's standard order of protection explicitly incorporates the criminal trespass statute.
Price's body was found by New York police on March 11, 1997. In the early morning of March 12, Frank boarded a bus in New York that was headed to Florida. Upon a tip from an aunt of Frank's who lived in Florida, a night-duty agent with the Federal Bureau of Investigation ("FBI") learned that Frank was due to arrive in the state by bus on the morning of March 13 and that he was "wanted in connection with the murder of his girlfriend." The tip was referred to the Violent Crimes/Fugitive Task Force for South Florida and the Caribbean (the "Task Force"), which is comprised of agents of the FBI and state and local police officers. Using the national computerized "NCIC" system, the Task Force verified that a misdemeanor warrant was outstanding for Frank's arrest and that he was wanted for questioning by New York police as a suspect in the murder investigation. At approximately 10:20 a.m. on the morning of March 13, Frank was met at the Fort Lauderdale bus station by a team of seven or eight members of the Task Force, led by Fort Lauderdale Police Detective David Dittman. As was customary, a state — as opposed to a federal — member of the Task Force was assigned to lead the arrest team, because the fugitive was wanted on state charges.
The following facts are based on the testimony of Detective Dittman and FBI Special Agent Talarah Gruber, another member of the Task Force who was present at Frank's arrest, and the documents that were admitted...
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