U.S. v. Williams

• Decision Date: 13 December 2010
• Docket Number: No. 09 Cr. 1202(PGG).,09 Cr. 1202(PGG).
• Citation: 758 F.Supp.2d 287
• Parties: UNITED STATES of Americav.Robert Steven Brodie WILLIAMS, Defendant.
• Court: U.S. District Court — Southern District of New York

758 F.Supp.2d 287

UNITED STATES of America

v.Robert Steven Brodie WILLIAMS, Defendant.

No. 09 Cr. 1202(PGG).

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

Dec. 13, 2010.

Rachel Peter Kovner, United States Attorney Office, New York, NY, for Plaintiff.Melinda Marie Sarafa, Sarafa Law, LLC, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge:

Defendant Robert Steven Brodie Williams is charged in a three-count indictment with: (1) conspiracy to engage in the unlicensed dealing of firearms, in violation of 18 U.S.C. §§ 371, 922(a)(1)(A) and 922(a)(5); (2) possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1); and (3) unlawful transport of firearms, in violation of 18 U.S.C. § 922(a)(5).

Williams moves to suppress all evidence obtained as a result of a search of Apartment 3C, 1200 College Avenue, Bronx, New York, contending that the affidavit submitted in support of the search warrant application for that apartment contains false statements and suffers from numerous material omissions. Williams also seeks to suppress all of his post-arrest statements to law enforcement authorities, claiming that they were obtained in violation of the Fifth Amendment.

For the reasons set forth below, Williams' motion to suppress is denied as to the evidence recovered during the search but granted as to his post-arrest statements.

BACKGROUND

Williams was arrested on October 20, 2009, after agents and police officers executed a search warrant at Apartment 3C, 1200 College Avenue, Bronx, New York (the “College Avenue apartment”). During their search of the College Avenue apartment, agents recovered four firearms and ammunition. (Cmplt. ¶ 13) At the apartment and later at the 44th Precinct, Williams made post-arrest statements indicating, inter alia, that the guns belonged to him. (Williams Decl. ¶¶ 7–8; Cmplt. ¶ 14; Sarafa Decl., Ex. F)

I. THE INVESTIGATION OF FIREARMS TRAFFICKER “ALABAMA”

In February 2008, officers of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the New York City Police Department (“NYPD”) began an investigation into an individual suspected of buying firearms in Alabama and transporting them to New York for sale. (Cmplt. ¶ 7; S.W. Aff. ¶ 6) ¹ At that time, Detective Chris Alicea, an NYPD officer, arrested an individual for marijuana possession (the “CI”) who told him about a “young, black male” who was transporting firearms from Alabama to New York City. (Tr. 5–6, 28–29) ² The CI referred to the man only as “Alabama.” (Tr. 6)

The CI provided Detective Alicea with a cell phone number and a home telephone number for “Alabama.” (Tr. 7) Detective Alicea gave those numbers to Special Agent Ken Crotty of ATF. ( Id.) Agent Crotty, working with Special Agent Darryl M. Grear, used the AutoTrack database to trace the two telephone numbers. (Govt. Ex. 1; Tr. 130–40) “Phillip Richard Burroughs” was one of the names associated with one of the telephone numbers. (Gov't Ex. 1; Tr. 7–8) “Phillip Burroughs” is an alias used by Phillip Richard Scott. (Gov't Ex. 2; Tr. 10)

Detective Alicea showed the CI two photographs of Scott. The CI identified the man in the photos as “Alabama.” (Tr. 9) Detective Alicea told the CI that the man's true name was Phillip Burroughs. ( Id.) Although the CI had not referred to “Alabama” as Phillip Burroughs before that point, after Detective Alicea identified the man in the photographs by that name, the CI at times referred to “Alabama” as Phillip Burroughs. (Tr. 9–10)

As the investigation proceeded, Detective Alicea recorded telephone calls made by the CI to “Alabama.” (Tr. 10–11) On one of these calls, the CI referred to “Alabama” as “Charles.” (Sarafa Decl. ¶ 13; Tr. 11) Detective Alicea testified that he was not aware that the CI referred to “Alabama” as “Charles” until he listened to the recording of the call in preparation for his testimony at the suppression hearing. (Tr. 11)

In March 2008, the CI and “Alabama” agreed that “Alabama” would travel to New York to sell firearms to the CI. (Cmplt. ¶¶ 8–9; Tr. 12, 14) On March 7, 2008, the CI met “Alabama” at the Port Authority Bus Terminal and took him to the parking lot of a Burger King in the Bronx. (Cmplt. ¶ 9; Tr. 14) There, the CI introduced “Alabama” to an undercover law enforcement officer, who purchased three firearms from “Alabama.” (Cmplt. ¶ 9; Tr. 14–15) The undercover officer was later shown photographs of Phillip Richard Scott, also known as Phillip Burroughs, which Detective Alicea had previously shown to the CI. (Tr. 16) The undercover officer likewise identified the man in the photographs as “Alabama,” the man who had sold the undercover officer three firearms. ( Id.)

“Alabama” was not arrested after the March 2008 sale of firearms, because Detective Alicea intended to purchase additional firearms from “Alabama.” (Tr. 15) After the March 2008 sale, however, the CI and “Alabama” had a physical altercation. (Tr. 16) Detective Alicea testified that, as a result of this altercation, the “ties [between the CI and ‘Alabama’] kind of broke” and the CI “felt real uneasy dealing with [‘Alabama’] after that.” ( Id.) The CI was not able to arrange any additional purchases of firearms from “Alabama.” ( Id.)

In February 2009, ATF Special Agent Peter D'Antonio assumed responsibility for the “Alabama” investigation. (Tr. 101) Agent Crotty and Detective Alicea briefed Agent D'Antonio on the investigation, and D'Antonio also reviewed reports that had been prepared during the investigation. (Tr. 102) Based on the briefing and the reports he had reviewed, Agent D'Antonio sought an arrest warrant for Phillip Richard Scott. (Tr. 105)

On June 23, 2009, a criminal complaint was filed in the Southern District of New York charging Phillip Richard Scott with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), (Sarafa Decl. ¶ 11, Ex. B), and on August 11, 2009, Scott was indicted on this charge. (Sarafa Decl. ¶ 12) On September 18, 2009, defense counsel brought to the attention of the Government and the Court that Scott had been incarcerated since at least 2004, and thus could not have been involved in a March 7, 2008 sale of firearms. (Sarafa Decl., Ex. C) As a result, the Government recommended that an order of nolle prosequi be filed as to the indictment against Scott. (Sarafa Decl., Ex. D) Judge Koeltl entered the order of nolle prosequi on September 26, 2009. ( Id.)

II. THE SEARCH WARRANT

On October 20, 2009, the CI called Detective Alicea to report that he had seen “Alabama” and two other individuals selling firearms at 1200 College Avenue, Apartment 3C, in the Bronx. (Tr. 18) Detective Alicea instructed the CI to return to the College Avenue apartment, purchase a firearm, and then call again once he had left. (Tr. 19) The CI later told Detective Alicea that he had gone to the apartment, had seen multiple firearms offered for sale, and had purchased a firearm from “Alabama” for $750. (Tr. 19–20, 88) The CI also turned over the gun he had purchased to Detective Alicea. (Tr. 19)

At approximately 4:30 that afternoon, Detective Alicea reported to Agent D'Antonio the CI's information about the firearms, stating that nine guns were for sale at the College Avenue apartment. (Tr. 20–21, 109, 172) Agent D'Antonio did not speak with the CI, nor had he ever met the CI prior to October 20, 2009. (Tr. 109)

Agent D'Antonio contacted the U.S. Attorney's Office for the Southern District of New York and worked with an Assistant United States Attorney to prepare an application for a search warrant for the College Avenue apartment. (Tr. 109–110) Agent D'Antonio signed an affidavit setting forth the factual basis for the search warrant application. (Tr. 109) Agent D'Antonio testified that he did not independently corroborate the information provided to him by Detective Alicea because “[t]ime was of the essence” in securing a search warrant for the College Avenue apartment. (Tr. 110–11, 182)

D'Antonio's affidavit set forth the background of the investigation into “Alabama” and the details of what the CI had conveyed to Detective Alicea about the events of October 20, 2009. The affidavit discusses “Alabama's” March 2008 sale of firearms to the undercover office, and discloses that both the CI and the undercover officer had misidentified Phillip Scott as “Alabama.” (S.W. Aff. ¶¶ 7–11) The affidavit also recounts the CI's call to Detective Alicea and the CI's subsequent purchase of a firearm at the College Avenue apartment. (S.W. Aff. ¶¶ 12–16) In the affidavit, Agent D'Antonio acknowledges that much of the information set forth was provided by “the specified CW (confidential witness) or other law enforcement officer[s]” and is not based on his personal knowledge or observations. (S.W. Aff. ¶ 3)

The affidavit contains three clear inaccuracies. First, Agent D'Antonio indicates that he has been involved in the investigation “[s]ince in or about February, 2008.” (S.W. Aff. ¶ 6) D'Antonio did not become involved in the investigation until February 2009, however. (Tr. 111) D'Antonio explains that the mistake “was a typo.” ( Id.)

Second, with respect to his prior contact with the CI, D'Antonio states: “I, and other law enforcement officers, have used the Informant in the past, and he has provided reliable information that has been corroborated by independent evidence. However, as set forth in this warrant, the Informant has also previously made an inaccurate photo identification connected to this case.” (S.W. Aff. at 3, n. 1) At the suppression hearing, however, Agent D'Antonio testified that he had “never used the confidential informant” and that, in submitting the affidavit, he had relied exclusively on Agent Crotty and Detective Alicea's experience with the CI. (Tr. 109, 150)

Third, D'Antonio states in his affidavit that the CI knew “Alabama” as “Phillip Burrough” from the outset of the investigation. (S.W. Aff. ¶ 6)...