United States v. Guzock

• Decision Date: 13 February 2014
• Docket Number: No. 12–CR–353 (S)(M).,12–CR–353 (S)(M).
• Citation: 998 F.Supp.2d 102
• Parties: UNITED STATES of America v. Paul F. GUZOCK, Defendant.
• Court: U.S. District Court — Western District of New York

998 F.Supp.2d 102

UNITED STATES of America

v.Paul F. GUZOCK, Defendant.

No. 12–CR–353 (S)(M).

United States District Court,

W.D. New York.

Signed Feb. 11, 2014.

Entered Feb. 13, 2014.

John McRae Alsup, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Brian P. Comerford, Federal Public Defender, Buffalo, NY, for Defendant.

ORDER

WILLIAM M. SKRETNY, Chief Judge.

Presently before this Court are Objections to the Magistrate Judge's Report, Recommendation, and Order. Having reviewed the recommendations de novo, after considering the Objections and the parties' submissions, see 28 U.S.C. § 636(b)(1); Fed.R.Crim.P. 59(b); Local Rule 72.3(a), this Court concurs with the findings and recommendations contained in the Report, Recommendation, and Order. They will therefore be accepted over objection.

IT HEREBY IS ORDERED, that the 43 Report, Recommendation, and Order is ACCEPTED. FURTHER, that the 44 Objections are DENIED. FURTHER, that the 26 Motion to Suppress is DENIED, consistent with the Magistrate Judge's recommendations.

SO ORDERED.

REPORT, RECOMMENDATION and ORDER

JEREMIAH J. McCARTHY, United States Magistrate Judge.

Defendant Paul Guzock is charged in a three-count Indictment [14] ¹ with manufacturing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1), and with possession of firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1).² Before me are defendant's motions to suppress physical evidence and statements [26], and the government's cross-motion for reciprocal discovery [27], p. 17. ³

This case was referred to me by Hon. William M. Skretny for supervision of all pretrial proceedings [15]. Oral argument was held on October 8, 2013, and thereafter I permitted the parties to make additional submissions concerning defendant's motion to suppress statements [36, 39, 42]. For the following reasons, the government's cross-motion for reciprocal discovery is granted, and I recommend that defendant's motions to suppress physical evidence and statements be denied.

BACKGROUND

The charges in the case arise from a search warrant ( [27–1], p. 1 of 10) executed at the defendant's residence located at 2322 Drum Road, Hartland, New York, on July 18, 2012. Comerford Affirmation [26], ¶ 3. The search warrant, issued by Hartland Town Court Justice Joanne L. Sullivan on July 17, 2012, was supported by the joint Affidavit of Niagara County Sheriff's Department Investigator Daniel J. Douglas and United States Border Patrol Senior Patrol Agent Elias Degasperi. [26–1], pp. 2–5 of 10.

As set forth in their Affidavit, a two week investigation “determined that [an unknown person] does store and grow quantities of Marihuana at the premises at 2322 [Drum Road]”. Id., p. 3 of 10. The investigation began when they were contacted by Supervisory Air Interdiction Agent Mark Diss, a pilot with the United States Office of Air and Marine, who reported that he “located approximately 10 to 15 marihuana plants in pots growing approximately 100 feet to the northwest” of 2322 Drum Road and another “40 to 50 live marihuana plants growing a few hundred feet in a northwest direction behind the residence.” [26–1]. Id., ¶ 1(A).⁴ A July 11, 2012 flyover of the parcel conducted by Air Interdiction Agent James Pridgen confirmed that the plants were still in these same locations. Id., ¶ 1(B). According to Agent Pridgen, the marijuana plants he observed were approximately 4 to 5 feet high, in direct view of the residence, and appeared consistent with plants started in an indoor grow. Id., ¶ 1(E).

Although Investigator Douglas and Agent Degasperi indicated that the normal electrical usage for a residence is usually around 700–800 kilowatt hours per month, the account statements of the electrical usage at 2322 Drum Road revealed that from December 29, 2011 to March 29, 2012, the total kilowatt usage was 3,677 kilowatt hours, and spiked to 5,816 kilowatt hours from March 29, 2012 to June 28, 2012. Id., ¶ 1(E).⁵ According to Investigator Douglas and Agent Degasperi, it is “[a] common practice ... to start plants growing indoors before Memorial Day and then to transfer them to an indoor location to minimize risk of detection and to lessen resources used in growing”, and that “[a] spike in usage around April would be consistent” with this practice. Id.

The warrant authorized a search of “the residence, outbuildings and property surrounding the buildings located at 2322 [Drum Road] ... for the following property: Marihuana ... and any documents, written papers, cell phones, articles, and ledgers that tend to show the above party(s) is in possession of and is growing said marijuana at this premises, and any papers, bills, or monies that tend to show the scope of the illicit drug enterprise and who has control over said premises.” [26–1], p. 1 of 10.

During the execution of the search warrant on July 18, 2012, defendant was arrested and made statements. Although defendant's motion to suppress these statements was not initially accompanied by his affidavit or declaration, with my permission (October 8, 2013 Text Order [37] ), he submitted a declaration [36] stating that during the execution of the search warrant he recalls being “knocked to the ground and restrained”, and that when he asked the agents if he had to go to jail, “they responded that they did not know, and that they wanted to talk to me”. Id., p. 1 of 3, third unnumbered paragraph. He was then taken to the kitchen where he was questioned by two agents. Id. Defendant does “not specifically recall being advised of my Miranda rights” and does “not recall waiving those rights ... prior to or during this questioning.” Id., p. 2 of 3, fourth unnumbered paragraph. According to defendant, “everything was moving very fast” and he “was agitated, upset, and not thinking clearly.” Id., fifth unnumbered paragraph. He states that he suffers from Post–Traumatic Stress Disorder, which causes him to be “startled very easily” and to have “difficulty thinking clearly in stressful situations.” Id., p. 1 of 3, second unnumbered paragraph.

After reviewing defendant's declaration [36] and the government's response [39], I permitted the parties to “submit case authority on whether a defendant is entitled to a suppression hearing where they are unable to recall whether they were advised of their Miranda rights or waived those rights.” October 29, 2013 Text Order [40]. Conditioned on my review of these submissions, I tentatively scheduled an evidentiary hearing. Id. Although defendant did not make any additional submission, the government submitted an “Amended Response to Defendant's Declaration and Motion for Reconsideration” [42],⁶ as well as an affidavit from Investigator Douglas [42–1], stating that he Mirandized defendant and obtained a verbal waiver from him before proceeding with any questioning. Id., ¶ 4.

ANALYSIS

A. Defendant's Motion to Suppress Physical Evidence

While conceding that “there may have been sufficient probable cause to search the grounds at 2322 Drum Road”, defendant disputes whether there was probable cause to support a search of his “residence and outbuildings”. Comerford Affirmation [26], ¶¶ 5–6, 8. However, since defendant has only moved to suppress the physical evidence seized from his residence ( id., ¶ 3), I need not resolve whether there was probable cause to search the outbuildings.

In response, the government argues that “the aerial surveillance of mature marijuana plants outdoors, coupled with the investigation of the electrical records and the affiants' own training an experience investigating marijuana growing operations, provided sufficient information ... to find that there existed a ‘fair probability’ that marijuana, or evidence of a marijuana growing operation, would be found inside the defendant's ... residence.” Government's Response [27], p. 5. Alternatively, the government argues even if probable cause was lacking, suppression is not warrantedunder the good faith exception of United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Id., pp. 5–6.

1. Probable Cause

In issuing a search warrant “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's ‘determination of probable cause should be paid great deference by reviewing courts.’ ” Id. at 236, 103 S.Ct. 2317. “ ‘[C]ourts should not invalidate ... warrants by interpreting affidavits in a hypertechnical, rather than a common sense, manner.’ ” Id. “[S]o long as the magistrate had a ‘substantial basis for ... concluding’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Id. Probable cause “does not demand certainty but only a ‘fair probability’ that contraband or evidence of a crime will be found.” United States v. Gaskin, 364 F.3d 438, 457 (2d Cir.2004), cert. denied,544 U.S. 990, 125 S.Ct. 1878, 161 L.Ed.2d 751 (2005) (emphasis added).

“A showing of nexus does not require direct evidence and may be based on reasonable inference from the facts presented based on common sense and experience”. United States v. Singh, 390 F.3d 168, 182 (2d Cir.2004). However, standing alone, “the mere fact that marijuana is growing near a residence does not connect the marijuana to that residence”. United States v. Ali, 2006 WL 1644361, *3 (N.D.Ohio 2006).

In addition to the proximity of the marijuana plants to the residence, the supporting...