US v. Nezaj

• Decision Date: 21 July 1987
• Docket Number: No. 87 Cr. 0152 (RWS).,87 Cr. 0152 (RWS).
• Parties: UNITED STATES of America, v. Abdullah NEZAJ, a/k/a Adam Nezaj, Defendant.
• Court: U.S. District Court — Southern District of New York

666 F. Supp. 494

UNITED STATES of America, v. Abdullah NEZAJ, a/k/a Adam Nezaj, Defendant.

No. 87 Cr. 0152 (RWS).

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

July 21, 1987.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for U.S.; Deirdre M. Daly, Asst. U.S. Atty., of counsel.

Joseph R. Benfante, P.C., New York City, for defendant; Joseph R. Benfante, of counsel.

SWEET, District Judge,

Defendant Adam Nezaj, also known as Abdullah Nezaj ("Nezaj"), has been charged in a three-count indictment, with attempted murder of a federal law enforcement officer, use of a firearm in relation to a crime of violence and a crime of drug trafficking, and possession of heroin with intent to distribute. He has moved for an order suppressing certain physical evidence on the grounds that it was seized in violation of the Fourth Amendment of the United States Constitution. Nezaj has also moved for an order to suppress certain statements he made to law enforcement officers, exclude certain tapes, to require the government to file responsive papers to a bill of particulars, and to compel certain discovery. A hearing was held on the motion on June 25. For the reasons set forth below, the motion to suppress the physical evidence is granted, and all other motions are denied.

Facts

This case arises out of the execution of an arrest warrant for another party, Enrique Rivadulla ("Enrique") at another dwelling.

On February 5, 1987, the government applied for an arrest warrant for a JOHN DOE a/k/a "Enrique" a/k/a "El Gordo." The application for a warrant was accompanied by an affidavit sworn to by Gene Blahato ("Blahato"), a Special Agent of the Drug Enforcement Agency ("DEA"). Blahato's affidavit outlined an extensive drug conspiracy, of which Enrique was alleged to be a member. After a detailed recital of the evidence that had been gathered with respect to Enrique, Blahato concluded: "Based on the foregoing and the other facts set forth in this affidavit, I believe that ENRIQUE is a narcotics trafficker who resides at the 1st Floor Apartment, 1298 Remsen Street, Brooklyn, New York."

On the strength of this affidavit, the Hon. Ruth V. Washington, United States Magistrate for the Southern District of New York, issued an arrest warrant for Enrique. In the spot on the printed arrest warrant form labelled "NAME AND ADDRESS OF INDIVIDUAL TO BE ARRESTED" (emphasis added), the warrant reads:

JOHN DOE, a/k/a "Enrique,"

a/k/a "El Gordo,"

1298 Remsen Ave.

Brooklyn, N.Y.

Thus the Magistrate made a finding that probable cause existed to arrest Enrique, and probable cause existed that he lived at 1298 Remsen Avenue, in Brooklyn.

At 5:00 in the morning the next day, agents from the DEA, the United States Custom Service and the Bureau of Alcohol, Tobacco and Firearms went to the Remsen Avenue address to execute the arrest warrant. Agent Joan Marin ("Marin") was the leader of the team executing the warrant. According to Marin, a man named Alfredo Quintas ("Quintas") answered the door. The agents told Quintas that they were executing an arrest warrant for someone named "Enrique," and told him that he fit the description. Quintas said that he was not Enrique and produced a passport and a California driver's license with his name on it. He also said that Enrique did not live there, that he knew that Enrique was a fugitive, and that he could take them to where Enrique lived, but could not give them the exact address. According to Marin, Quintas said that he had spoken with Enrique a few days before, and had previously been to an address where Enrique "lived with a man named Adam Nezaj." Agent Marin telephoned an Assistant United States Attorney to relay this information, and the Assistant directed her to proceed to the new dwelling — the exact address of which was still unknown at that point — to execute the warrant.

At the time of the suppression hearing, the government represented that Quintas had returned to California, and that they had been unable to locate him, so the only version of events presented was Marin's.

Quintas then took the agents to Nezaj's neighborhood, where they were met by another team of approximately seven agents. Quintas pointed out the dwelling, which was 4601 Henry Hudson Parkway, Apartment A-8. He then waited in the car. Agent Marin went to the office of the apartment complex's Superintendent. The Super was not there, but the Assistant Superintendent, Sefik Gunes ("Gunes"), was there. Agent Marin asked Gunes who lived in apartment A-8. According to Marin's testimony at the suppression hearing, Gunes said that Nezaj lived there with a Hispanic male whose name he did not know. Gunes testified that he had seen a Spanish male in the laundry room one and a half or two months before, and had seen him inside Nezaj's apartment 3 or 4 months earlier. He also testified that he saw him go in and out about once a month.

Agent Marin asked to speak with the Superintendent, Mr. Feyyaz Hurer ("Hurer"), who was reached on the phone after several tries. According to Hurer, Agent Marin asked him if he had a key for Nezaj's apartment, which he did not. She also asked if he would allow his Assistant Superintendent to knock on Nezaj's door to help the agents gain entrance, and Hurer instructed Gunes to do so. Hurer testified that before the agents entered the apartment, no one had asked him whether someone known as Enrique lived there, and that he had last seen a Hispanic male in the complex who he thought was a resident's guest about 18 months ago. The agents asked neither Hurer or Gunes to see a lease.

The agents made no effort to obtain a search warrant for the dwelling, or to have the arrest warrant judicially modified so that it reflected Enrique's new suspected address rather than the Remsen Avenue address at which it had first been executed.

Gunes went with the agents to the front door and knocked on it while the agents stood to either side of the door. Nobody answered. Marin's testimony was that the agents then sent Gunes away and began knocking on the door themselves and loudly announcing "police." According to Marin at this point the agents heard movement inside the apartment. They took this as an indication that the fugitive was inside and knocked down the door with a sledge hammer, as the agents all continued to announce "police." The door came down quickly, the agents advanced into a dark hallway with the light at their backs and their weapons drawn. Immediately upon entry an agent was shot and seriously hurt. Several hours later, Nezaj — who had fled the apartment into a crawl space connecting his apartment and another — called 911 and surrendered after negotiation by telephone. According to the report prepared by Agent Marin on February 9, "Nezaj was accompanied from apartment A-7 by officers of the NYPD.... After the apartment was secured, two weapons were discovered within the apartment by the New York Emergency Services Unit. One of the weapons was recovered by the New York Emergency Services Unit. One of the weapons was recovered from the apartment crawl space between Apartments A-7 and A-8 and was later determined to be the weapon used by Nezaj in the shooting."

Enrique was not at the apartment, although the agents discovered his passport and clothing believed to be his in a room with no furniture and no bed, which they took to be the room in which he "lived."

Some time later the day of the shooting, members of the New York City Police Department's Crime Laboratory went to Apartment A-8. There is nothing in the record to suggest that the Crime Lab personnel had a warrant of any kind. According to an affidavit sworn to by Agent Blahato, "Pursuant to their efforts to reconstruct the shooting, these officers discovered plastic bags filled with tannish-white powder, an Ohaus scale, guns, and ammunition." Largely on the basis of this discovery, the government sought and received a search warrant, and executed it to seize the items listed.

Discussion

A. Suppression of Evidence

Nezaj has moved for the suppression of evidence seized from his apartment on the grounds that the agents' entry — and subsequent discovery of the items — violated his Fourth Amendment rights. According to the government, the agents' entry was authorized by Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Suppressing the evidence would seriously undermine the third count, but have little effect on the counts alleging attempted murder and use of a firearm in a crime of violence.

The narrow issue presented here is this: given that an arrest warrant may be executed at a target's home, who must make the determination that any specific dwelling is a particular target's home — a judicial officer or the policeman on the street.

In Payton, the Supreme Court reversed two New York Court of Appeals decisions each of which had upheld the arrest of a felon in his home without a warrant. After an extensive discussion of the purpose and history of warrants, the sanctity of the home and the Fourth Amendment, the court held that a warrantless arrest of a felon in his home is unconstitutional, and, consequently, reversed the convictions.

Although no warrant of any kind had been issued in the case (and consequently it was not at issue whether an arrest warrant is sufficient to enter the home as opposed to a search warrant), the Supreme Court in dicta observed that an arrest warrant would be sufficient to arrest the object of the warrant in his home.¹ "For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. at 603, 100 S.Ct. at 1388. The Court did not address the issue of whether the arrest warrant had to list the target's address (there is space provided to do so in the standard printed form used in this district) in order to be executed there, and...