U.S. v. Hogan

• Decision Date: 20 September 2000
• Docket Number: No. 99-CR-004 (TCP).,99-CR-004 (TCP).
• Citation: 122 F.Supp.2d 358
• Parties: UNITED STATES of America, v. Scott M. HOGAN, Defendant.
• Court: U.S. District Court — Eastern District of New York

122 F.Supp.2d 358

UNITED STATES of America, v. Scott M. HOGAN, Defendant.

No. 99-CR-004 (TCP).

United States District Court, E.D. New York.

September 20, 2000.

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Burton Ryan, Jr., United States Attorney's Office Criminal Division, Garden City, NY, for U.S.

Lawrence V. Carra, Mineola, NY, for Defendant.

MEMORANDUM AND ORDER

PLATT, District Judge.

On July 24, 2000; Magistrate Judge Viktor V. Pohorelsky recommended that this Court take the following actions: 1) deny defendant's motions to suppress wiretap evidence; 2) deny defendant's motion to suppress evidence obtained from a search of 406 South 9th Street, Lindenhurst, New York; and 3) grant defendant's motion to suppress evidence obtained from a warrantless search of a briefcase seized from a locked trunk of a rented car.

The United States has not objected to the Report and Recommendation ("Report"). However, Scott Hogan, the defendant, asserted three objections. Hogan maintains that the wiretap applications in this case failed to show sufficiently that normal investigative means had been tried or were unlikely to be successful if tried. Hogan also contends that evidence from the search of 406 South 9th Street should be suppressed because the house is a private dwelling. Furthermore, Hogan asserts that the good faith exception to the warrant preference rule does not apply.

In the Report, Magistrate Judge Pohorelsky thoroughly addressed the traditional investigative methods used by the Nassau County Police Department in this case. Judge Pohorelsky also detailed the reasons why traditional methods would only prove marginally effective during this particular investigation. The Court accepts this evidence.

Hogan contends that the wiretap evidence should be suppressed because normal investigative techniques would have been sufficient. He notes that detectives had successfully followed Hogan for fourteen hours. Hogan also asserts that police failed to use the normal investigative technique of conventional surveillance. The statutory requirements of 18 U.S.C. § 2518 do not require police to exhaust all traditional methods of investigation before seeking a warrant. See United States v. Diaz, 176 F.3d 52, 111 (2d Cir.1999). The purpose of section 2518 is merely to "require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement." United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.1976). The detectives of the Nassau County Police met this burden by showing that traditional methods would not provide sufficient evidence. Therefore, this objection is rejected.

Hogan also objects that the house on 406 South 9th Street was a private dwelling and therefore protected against a warrantless dog sniff. Even assuming that the house is a dwelling, the officers were still entitled to enter the driveway and the perimeter of the house to conduct a dog sniff. Neither the driveway nor the area surrounding the house was part of the curtilage of the house. The curtilage extends only to those areas which harbor "intimate activities associated with domestic life and the privacies of the home." United States v. Dunn, 480 U.S. 294, 301 n. 4, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The Supreme Court set forth four factors to consider when determining whether an area should be included in the curtilage. These factors include "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing through." Id. at 301, 107 S.Ct. 1134. The key to a determination of the boundaries of a curtilage is whether the defendant had a reasonable expectation of privacy in the disputed area. United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.1996).

Here, the perimeter of the house is clearly in close proximity to the house itself. However, the front of the house not was enclosed, obscured from the view, or used for any purpose other than for entrance or egress. The dilapidated stockade fence on the property did not enclose the front of the house. It merely extended from the side of the house and ran through the area behind the house. Most importantly, Hogan did not have a reasonable expectation of privacy in any part of the perimeter of the house. Hogan has not shown that he occupied the house or engaged in "intimate activities associated with domestic life" around the perimeter of 406 South 9th Street. Therefore, the police were entitled to approach the house. Furthermore, even if the curtilage extended to the areas in the rear of the house, this Court adopts the Report's recommendation that evidence garnered from the front of the house was sufficient to support a warrant.

Magistrate Judge Pohorelsky thoroughly addressed the issue of the resulting dog sniff in his Report, and this Court adopts the Judge's reasoning and conclusions. This Court also adopts Judge Pohorelsky's recommendation that, if necessary, the good faith exception to the warrant requirement would apply to this case. Hogan objects that the affidavit in support of a search warrant failed to label the dog sniff as a warrantless search. However, omitting this detail does not amount to a "knowing or reckless falsity on the affidavit" because of a failure to present "clearly critical" facts to the issuing judge. Reilly, 76 F.3d at 1280. The affidavit sets forth the history of the investigation, clearly noting activities conducted pursuant to warrants. The affidavit also described in detail the dog sniff at 406 South 9th Street. Therefore, Honorable Donald E. Belfi, who issued the warrant, was given sufficient information to assess the merit of the application, and the good faith exception would apply here. See id.

Accordingly, on the basis of and for the reasons set forth therein, Magistrate Judge Pohorelsky's Report and Recommendation must be, and the same hereby is, AFFIRMED in all respects and ADOPTED as an Order of this Court.

SO ORDERED.

REPORT AND RECOMMENDATION

POHORELSKY, United States Magistrate Judge.

Pending before the court are three motions made by the defendant Scott M. Hogan which were referred to the undersigned by Judge Platt for a hearing. The three motions seek to suppress evidence obtained (a) through electronic surveillance of pager information and telephone conversations, (b) from the execution of a search warrant at 406 South 9th Street, Lindenhurst, New York, and (c) from the warrantless seizure of a briefcase from the locked trunk of a rented automobile. A factual hearing, followed by oral argument, was held on May 15 and 16, 2000. On the basis of that hearing and all of the papers submitted in connection with the motions, the court makes the following report and recommendation.

I. BACKGROUND

The indictment in this case charges the defendant with various narcotics offenses based on his alleged involvement in the wholesale distribution of tons of marijuana in the Long Island area over a number of years. The investigation that yielded the indictment commenced in 1996 when detectives of the Nassau County Police Department ("NCPD") began to pursue leads concerning the defendant received from various confidential informants. As part of the investigation they obtained several electronic eavesdropping warrants from New York state courts, as well as a search warrant for premises owned by the defendant at 406 South 9th Street in Lindenhurst, New York. In May 1997, the defendant was arrested on state charges, and in July 1997 a state grand jury indicted him on various narcotics felonies. In the course of proceedings following that indictment, the defendant challenged the eavesdropping and search warrants in state court. His challenges were rejected in a decision and order entered by Honorable Jules Orenstein, County Court, Nassau County, on March 19, 1998.

Independent of the efforts of the NCPD, a task force organized by the United States Drug Enforcement Administration ("DEA") was conducting an investigation into marijuana trafficking on Long Island by career drug dealers. This Marijuana Task Force ("MTF") pooled the efforts of various federal and local law enforcement agencies including the NCPD, and yielded a broader picture of the defendant's activities in the light of evidence obtained from sources beyond those previously known by the NCPD. As a result, with the consent of the NCPD and the Nassau County District Attorney, the defendant was indicted by a federal grand jury while the state indictment was still pending, and the state indictment has since been dismissed in favor of the federal prosecution.

The federal indictment charges the defendant with operating a continuing criminal enterprise from January 1982 to January 1999 which employed a number of other persons and which involved numerous sales of large quantities of marijuana. The indictment also contains related charges of conspiracy to distribute marijuana and conspiracy to commit money laundering, as well as a charge seeking criminal forfeiture of the proceeds of the defendant's criminal activities.

II. ELECTRONIC SURVEILLANCE

The defendant challenges the various eavesdropping warrants obtained by the NCPD on the ground that the NCPD did not adequately establish the statutorily mandated prerequisite that less intrusive investigative procedures had failed or were unlikely to be successful if tried. The factual findings and discussion that follow address that contention.

A. Facts

In the course of the investigation conducted by the NCPD before the MTF's involvement with the defendant, a series of electronic eavesdropping warrants were obtained to permit the NCPD to monitor various electronic communications of the defendant. The first warrant was obtained on August 2, 1996...