U.S. v. Sikut, 06-CR-184A (F).

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtArcara
Citation488 F.Supp.2d 291
PartiesUNITED STATES of America v. Craig E. SIKUT, Defendant.
Docket NumberNo. 06-CR-184A (F).,06-CR-184A (F).
Decision Date16 May 2007
488 F.Supp.2d 291
Craig E. SIKUT, Defendant.
No. 06-CR-184A (F).
United States District Court, W.D. New York.
May 16, 2007.

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Terrance P. Flynn, United States Attorney, Gregory L. Brown, Assistant United States Attorney, of Counsel, Buffalo, NY, for the Government.

Joseph B. Mistrett, Federal Public Defender, John F. Humann, Senior Litigator, of Counsel, Buffalo, NY, for Defendant.


ARCARA, Chief Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on October 17, 2006. Defendant Craig E. Sikut had previously filed a motion, inter alia, to suppress evidence. On March 8, 2007, Magistrate Judge Foschio filed a Report, Recommendation, recommending that defendant's motion to suppress be granted.

The government filed objections to the Report and Recommendation on March 22, 2007. Defendant filed a response to the government's objections on April 17, 2007. Oral argument on the objections was held on May 11, 2007.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation.1

The government objects to the Magistrate Judge's finding that exigent circumstances did not exist so as to allow a warrantless search of the apartment. The government also objects to the Magistrate Judge's finding that even if exigent circumstances had been present to allow initial entry into the apartment, the officers' continued presence inside the apartment after finding that no one was injured or incapacitated exceeded the scope of the exigency. Finally, the government argues that Magistrate Judge erred by finding that the "plain view" exception to the warrant requirement did not apply.

Even if the Court were to assume arguendo that exigent circumstances were present making the officers' initial entry into the apartment legal and that the officers' arrest of the defendant based on both his harassing conduct towards them and his outstanding warrants was proper, suppression would still be required because there was no legal justification for the officers to re-enter the, apartment after the arrest for the purpose of conducting a warrantless search of defendant's brief case, computer case or computer. At that point, any exigency had dissipated. The defendant had been arrested and removed from the apartment. If the officers then had probable cause to believe there was evidence of a crime remaining in the apartment, they should have made an application for a search warrant.2 Having failed to do so, they violated defendant's Fourth Amendment right against unreasonable search and seizure, the remedy for which is suppression.

The "plain view" exception is not applicable here.

Under that [plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband

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without conducting some further search of the object-i.e., if its incriminating character [is not] immediately apparent-the plain-view doctrine cannot justify its seizure.

Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (internal quotations and citations omitted); see also Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ("Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.").

In this case, the incriminating nature of defendant's brief case, computer case and computer was not immediately apparent. It was only after the officers re-entered the apartment and conducted a search of those items that they determined the items contained evidence of various crimes. Thus, the plain view exception is inapplicable.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation and herein, the defendant's motion to suppress is granted. Counsel for the parties, shall appear on May 25, 2007 at 9:00 a.m. for a meeting to set a trial date.





1. The Court presumes familiarity with the facts as found by Magistrate Judge Foschio in his Report and Recommendation.

2. The Court offers no opinion as to whether there would have been a sufficient basis for issuing such a search warrant.



FOSCHIO, United States Magistrate Judge.


This case was referred to the undersigned by the Hon. Richard J. Arcara on October 17, 2006 for all pretrial matters (Doc. No. 23). The matter is presently before the court on Defendant's motion to suppress evidence and for non-dispositive relief (Doc. No. 14) ("Defendant's motion").1


Defendant Craig E. Sikut ("Defendant" or "Sikut") was indicted in a three-count indictment on June 7, 2006 ("Indictment"), charging Defendant with knowingly and unlawfully possessing "identification documents that appeared to be identification documents issued by and under the authority of the United States," in violation of 18 U.S.C. § 1028(a)(6), Indictment at 1-2, ("Count I"); "knowingly and willfully" making a "materially false, fraudulent, and fictitious statement and representation," in violation of 18 U.S.C. § 1001(a)(2), at 2-3, ("Count II"); and "knowingly and unlawfully manufactur[ing] and possess[ing] badges, identification cards and other insignia, and colorable imitations thereof, which were of a design prescribed by the heads of various government agencies, in violation of 18 U.S.C. § 701, Indictment at 3-4, ("Count III"). Defendant's motion was filed July 20, 2006 along with a memorandum of law in support ("Defendant's Memorandum") (Doc. No. 14) ("Defendant's Motion"). The Government filed its response and cross-motion for discovery on August 4, 2006. ("Government's Response") (Doc. No. 15). An evidentiary hearing on Defendant's motion to suppress was conducted August 24, 2006, and continued on September 1, 2006. Oral argument was deemed unnecessary.

Based on the following, Defendant's motion should be GRANTED in part, DENIED

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in part, and DISMISSED in part as moot.


The charges in the Indictment arise from evidence obtained by local police during a warrantless entry, search and seizure conducted by the police at 429 Third Avenue, Williamsville, New York, a townhouse unit and the residence of Defendant's parents ("the Sikut apartment" or "the apartment"). At 3:52 p.m., on March 20, 2005, Town of Amherst police received a 911 telephone call from a "refused," i.e., anonymous or unidentified neighbor, who refused to identify herself, reporting "a domestic" at 429 Third Avenue. Gov't Exh. 1; Tr.I 15; Tr.II 334-36.3,4,5 Specifically, the caller stated that noise in the Sikut apartment "sounds like a physical fight, you can hear people going at the walls, rumbling down the stairs, it's really aggravating." Gov't Exh. 1. At 3:54 p.m., the 911 dispatcher directed Amherst Police Officer Kevin Stephens ("Stephens"), then on routine patrol duty, to investigate the reported "domestic." Tr.II 334. In the radio communication, the dispatcher notified Stephens that Amherst Police had received a similar 911 phone call in January 2005 also from a refused neighbor who reported a domestic at the same location which report, upon investigation, "turned out not to be a domestic [sic] the elderly male fell in the kitchen." Gov't Exh. 1. Stephens testified that he did not know the family name of the residents at 429 Third Avenue when he arrived on the scene on March 20th, but acknowledged that he, Stephens, had investigated the reported domestic at 429 Third Avenue approximately four months earlier, as described in the dispatcher's communication to him on March 20, 2005. Tr.II 128. Specifically, Stephens responded to the dispatcher that he was familiar with the previous call and investigation regarding that call because he was present during the earlier investigation. Gov't Exh. 1. Stephens also testified that he had stated to the dispatcher that the elderly residents at the 429 Third Avenue address, who were the subjects of the refused neighbor's 911 call on March 20, "should be alright." Id.

Stephens was the first officer to arrive at the scene at 3:56 p.m. Def. Exh. 1 ("Amherst Police Complaint/Information"); Tr.II 334. Upon arrival, Stephens knocked on the front door of the Sikut apartment, rang the doorbell and announced himself as a police officer, thereby attempting, unsuccessfully, to make contact with the residents. Tr.II 117-18. Stephens continued in his effort to contact the residents inside the apartment until

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Amherst Police Officer Nicholas Scioli ("Scioli") arrived at the scene less than ten minutes later to assist Stephens. Tr.II 118, 225. Scioli and Stephens testified that they continued trying to contact the residents, and Stephens instructed the police dispatcher to call the residents on the phone and "tell them to answer the door." Tr.II 118; Gov't Exh. I. The dispatcher, however, responded to the officers that he was unable to do so as the residents had an unlisted phone number. Gov't Exh. 1. According to Scioli, the officers could not see inside the apartment because the window shades were down. Tr.II...

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    • May 5, 2015
    ...case here. Contrary to Schoolcraft's contention, his situation was not analogous to that of the plaintiff in United States v. Sikut, 488 F.Supp.2d 291, 312 (W.D.N.Y.2007). In Sikut, police officers unequivocally admitted that they remained in a residence following a warrantless entry after ......
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    ...took place in November 2011, long after this right was clearly established by Kerman and its progeny. See United States v. Sikut , 488 F. Supp. 2d 291, 308–10 (W.D.N.Y. 2007) (warrantless entry violated Fourth Amendment where neighbor’s 911 call was not "unambiguously indicative" of an emer......
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