US v. McGriff

• Decision Date: 24 February 1988
• Docket Number: No. 87 CR 750.,87 CR 750.
• Citation: 678 F. Supp. 1010
• Parties: UNITED STATES of America v. Kenneth McGRIFF, a/k/a "Supreme", Defendant.
• Court: U.S. District Court — Eastern District of New York

678 F. Supp. 1010

UNITED STATES of America v. Kenneth McGRIFF, a/k/a "Supreme", Defendant.

No. 87 CR 750.

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

February 24, 1988.

Andrew J. Maloney, U.S. Atty., Brooklyn, N.Y. by Kirby A. Heller, Asst. U.S. Atty., for U.S.

Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., New York

City, for defendant; by Susan C. Wolfe, Michael Gold.

MEMORANDUM AND ORDER

PLATT, District Judge.

Pursuant to Federal Rule of Criminal Procedure 12, defendant moves to suppress the fruits of a search of his residence, 166-66 231st Street, Queens, New York, conducted pursuant to a warrant issued upon an allegedly inadequate showing of probable cause. Defendant also filed three other pretrial motions:

1. The indictment must be dismissed because he is being vindictively prosecuted;

2. The indictment must be dismissed because it violates a plea agreement between the defendant and the New York City Special Narcotics Prosecutor in a previous action; and

3. In evaluating the warrant's sufficiency, State law must govern this action.

The latter three motions rest on this action's unique procedural history. The search warrant's validity has been litigated already in two separate actions in New York State Courts in Queens and Manhattan. Each action arose out of separate searches conducted pursuant to the warrant at issue here. Defendant McGriff was not a named defendant in the Queens action. However, that Court action resulted in a ruling on the admissibility of evidence seized at 155-47 116th Avenue, Queens. By a decision dated January 27, 1986, Judge Alan Beldock of the Queens Criminal Court found the telephonic search warrant affidavit lacking in probable cause, and suppressed all evidence seized at 155-47 116th Avenue (App. 61-65).¹

Charges were also filed based on evidence seized at another Queens address.

The action against defendant McGriff, and others not named in the Queens or this federal action, based on evidence seized at McGriff's residence, 116-66 231st Street, Queens, was brought in New York County by the citywide Special Narcotics Prosecutor. Defendant McGriff's motion to preclude litigation of the search warrant's validity based on Judge Beldock's ruling in the Queens action was denied by a decision dated April 3, 1986, by Mr. Justice McLaughlin of the Supreme Court, New York County (App. 154-57).² However, defendant's motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), was granted. Id. After conducting the hearing and questioning the confidential informant in a sealed proceeding pursuant to People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1984), Mr. Justice McLaughlin denied defendant's suppression motion by an opinion dated April 16, 1986 (App. 278-82). On May 19, 1986, defendant McGriff pled guilty to count twelve of the New York County indictment, criminal possession of a controlled substance in the first degree.³ Denial of defendant's suppression motion was preserved for appellate review.

Upon appeal to the Appellate Division, First Department, defendant's suppression motion was granted. People v. McGriff, 130 A.D.2d 141, 518 N.Y.S.2d 795 (First Dept.1987). In dicta, the Appellate Division advised that its ruling "would obtain even if we were to apply the less stringent `totality of the circumstances' test propounded by the United States Supreme Court in Illinois v. Gates." Id. at 149, 518 N.Y.S.2d at 800. Indictment by a federal grand jury then followed.

Despite the unusually roundabout fashion in which this action reached this Court, defendant's latter three motions relying on the prior New York State actions lack merit. First, the doctrine of prosecutorial vindictiveness does not apply to prosecutions brought by different sovereigns, absent a showing that a State prosecution was a stalking horse for a subsequent federal investigation. See United States v. Russotti, 717 F.2d 27, 31 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984); United States v. Ng, 699 F.2d 63, 69 (2d Cir.1983). Defendant has not proffered sufficient grounds for conducting a hearing on the relationship, if any, between the 1985 State investigation and the 1987 federal investigation. Second, since defendant has not alleged that federal officials participated in any plea negotiations in the New York County action, this Court is not bound by the Special Narcotics Counsel's agreement. See United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983). Third, in determining the sufficiency of the search warrant application, federal law must be applied. See United States v. Pforzheimer, 826 F.2d 200, 202-04 (2d Cir.1987).

Defendant's substantive suppression motion requires more detailed analysis. The confidential informant, whose reliability, credibility, and basis of knowledge as revealed to the issuing Magistrate are under attack by this motion, was no stranger in 1985 to the policeman who obtained the warrant.

For several months prior to September 1985, Officer Myron Cherry of the 113th Precinct Robbery Unit, not the affiant here, had been receiving information from an unregistered confidential informant (App. 225, 233-34). Although he was Officer Cherry's informant, Officer Cherry regularly passed along tips provided by him to other policemen, including Sergeant Clyde Foster, affiant in this action (App. 227, 234; T. 6, 7, 17). Sergeant Foster also briefly met and spoke with the informant on at least a few occasions when the informant tried to reach Officer Cherry (T. 6). Sergeant Foster spoke with him often enough to recognize his voice over the telephone (T. 34). In an indication of the informant's reliability, in July of 1985 Officer Cherry told Sergeant Foster that "the informant had given the names of the individual responsible for firing the shot that caused the death at that location 145-15 Guy R. Brewer Boulevard and an arrest had been made of the suspect" (T. 18, 19). See also T. 16-20.

Thus, Sergeant Foster's interest in utilizing the informant in narcotics investigations prior to September 10, 1985, although Cherry was the informant's officer, was threefold: first, the homicide witnessed by the informant occurred at an address that Sergeant Foster independently knew was a "free base" house and had been searched in the course of a separate narcotics investigation (App. 27). Second, the homicide at that address, 144-15 Guy R. Brewer Boulevard, was in some way connected to an alleged $80,000 cocaine and currency robbery at defendant's residence, 116-66 231st Street, Queens, during the week of July 4, 1985. Id. Third, Officer Cherry and in part Detective DeRosalia had vouched for the informant's reliability based on his information provided in the homicide investigation and they said that the informant would be an excellent source for the narcotics unit (T. 6, 16-20).

On September 10, 1985, Officer Cherry was told by his informant that "he believed that some people were being held ... in a location somewhere on 115th Avenue and a sic 155th Street; 116th Avenue and 155th and that sometime later that evening there was suppose sic to be a delivery of some narcotics at 231st and 116th Avenue" (App. 59). Officer Cherry immediately relayed this information to Sergeant McKeon of the Narcotics Unit, who in turn relayed it to Sergeant Foster at about 6:15 P.M. (id.; T. 4). Sergeant Foster then spoke with Officer Cherry, who confirmed Sergeant McKeon's statements and added that his informant had provided this information (T. 5-6). Officer Cherry said his source would be calling in again later in the evening, and Sergeant Foster told Officer Cherry that he would like to speak to the informant when he called (T. 7-8).

After speaking to Officer Cherry, Sergeant Foster returned to his office to determine how to respond to the alleged assault at 155-47 116th Avenue and the allegedly imminent drug transaction at 116-66 231st Street. Apparently in a commendable effort to confirm the tip through police surveillance, he dispatched units to both locations (T. 8). In addition, he called the Police Department's Legal Bureau which gave him the telephone number for the Queens Criminal Court and advised him to obtain a telephonic search warrant. Id. Evidently acting on the advice of counsel, Sergeant Foster then called the Court, learned that no judge was available and awaited a return call. Id.

While awaiting a return call, Sergeant Foster spoke with the informant who, as promised, called the precinct once again and confirmed with Sergeant Foster personally the information previously relayed through Officer Cherry (T. 9).⁴ Sergeant Foster instructed the informant to make himself available to come to the station-house to provide, if necessary, further information to permit issuance of a search warrant (T. 10). The informant, quite reasonably fearing for his safety if he was seen by his companions in the stationhouse, was reluctant to comply (T. 9-10). As the informant had admitted that he would be participating in the drug cutting at 116-66 231st Street later that evening, Sergeant Foster might also have been sympathetic to his position.

Nonetheless, the informant called once again and arranged to be picked up on a streetcorner by Detective Larry Mikoleski, who knew the informant by sight and was driving an unmarked police van (App. 238-42; T. 11). Before Detective Mikoleski returned to the stationhouse, Judge Fisher of the Queens County Criminal Court returned Sergeant Foster's call (T. 11-13). See discussion infra for details of the telephonic search warrant affidavit.

Only at the very end of the colloquy with Judge Fisher did Sergeant Foster learn that the informant was inside a police van parked near the stationhouse (T. 12-13). Perhaps wishing to avoid bringing the informant into the stationhouse unless his presence was absolutely necessary, Sergeant Foster did not tell Judge Fisher...