US v. Rodriguez

Decision Date18 June 1996
Docket NumberCr No. 95-30019-MAP. No. 80,83,85 & 88.
Citation931 F. Supp. 907
PartiesUNITED STATES of America v. Mark RODRIGUEZ and Eddie Torres.
CourtU.S. District Court — District of Massachusetts

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Bernard T. O'Connor, Jr., O'Connor, Martinelli & Cohn, Springfield, MA, for Mark Rodriguez.

Matthew J. King, Robinson, Donovan, Madden & Barry, Springfield, MA, for Eddie Torres.

Andrew Levchuk, United States Attorney's Office, Springfield, MA, for U.S.

MEMORANDUM AND ORDER REGARDING RODRIGUEZ MOTION TO SUPPRESS, TORRES MOTION TO SUPPRESS, TORRES MOTION TO DISMISS AND TORRES MOTION TO SUPPRESS STATEMENTS

(Docket Nos. 80, 83, 85 & 88)

PONSOR, District Judge.

On January 16, 1996, Magistrate Judge Neiman issued a lengthy and thoughtful Report and Recommendation regarding a number of motions to suppress and to dismiss filed by the defendants in this case. Although some of the decisions are close, this court finds that the magistrate judge sensitively balanced the various considerations and that his recommendations offer the best resolution of all the issues raised. His Report and Recommendation will therefore be adopted in its entirety.

One aspect of the Report and Recommendation deserves special comment.

With regard to Docket No. 88, the motion of the defendant Torres to suppress his statement of February 21, 1995, the magistrate judge recommended allowance on the ground that the defendant had not been given his Miranda warnings effectively and that the "public safety" exception to the Miranda rule did not apply on these facts.

The seminal case establishing the existence of the public safety exception is New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In that case, the police "in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket." Id. at 657, 104 S.Ct. at 2632. As the Fourth Circuit recently observed, the public safety rule is an exception and "must be construed narrowly." U.S. v. Mobley, 40 F.3d 688, 693 (4th Cir.1994). It only applies where there is a "objectively reasonable need to protect the police or the public from an immediate danger associated with a weapon."

To recognize the application of the public safety rule in the circumstances of this case would permit the exception virtually to swallow the rule. At the time the Torres statement was given on February 21, 1995, three suspects were in custody and the apartment was thoroughly secured. The defendant himself had been removed from the apartment and some fifteen minutes had passed since his arrest. A preliminary sweep of the apartment had taken place and certain incriminating evidence had already been found. While it is true, as the Government argues, that the timing of the administration (or attempted administration) of Miranda warnings is generally not dispositive, it was a factor to be taken into consideration. Similarly, while the cases do not set any particular time limit for application for the public safety exception, the passage of time here was substantial and significant.

Guns are always dangerous, and it is always a matter of urgency to locate them, particularly in a crowded urban setting. But to recognize the application of the public safety exception in these circumstances would be to virtually establish a per se rule with regard to firearms as an exception to the Miranda rule. No court has as yet done this, and Quarles strongly suggests that the exception applies only in the immediate context of an arrest.

For these reasons, the court will adopt the Report and Recommendation of the magistrate judge and allow the motion to suppress of the defendant Torres with regard to his statement of February 21, 1995.

In sum, the motion of the defendant Rodriguez to suppress (Docket No. 80) is DENIED with respect to all physical evidence seized during the searches, DENIED with respect to his statements of February 21, 1995 and ALLOWED with respect to his statements of May 26, 1995. The motion of the defendant Torres to suppress physical evidence seized during the search (Docket No. 83) is DENIED. His Motion to Dismiss (Docket No. 89) is DENIED. As noted, his motion to suppress (Docket No. 88) is ALLOWED.

It is So Ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT MARK RODRIGUEZ'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS (Docket No. 80), DEFENDANT EDDIE TORRES' MOTION TO SUPPRESS (Docket No. 83), DEFENDANT EDDIE TORRES' MOTION TO DISMISS (Docket No. 85) and DEFENDANT EDDIE TORRES' MOTION TO SUPPRESS STATEMENTS MADE TO THE POLICE (Docket No. 88)

NEIMAN, United States Magistrate Judge.

An evidentiary hearing was held on November 16, 1995 and November 21, 1995 with respect to the above-captioned motions. Defendant Mark Rodriguez ("Rodriguez") seeks to suppress the physical evidence seized during and as a result of the searches of the apartment where he lives, together with statements made by him on February 21, 1995 and May 26, 1995 (Docket No. 80). Similarly, Defendant Eddie Torres ("Torres") seeks to suppress evidence seized during the searches on February 21 and 22, 1995 of Rodriguez's home (Docket No. 83), as well as statements made to police on or about February 21, 1995 (Docket No. 88). In addition, Torres seeks to dismiss the indictment (Docket No. 89). Defendants' motions have been referred to the Court for a report and recommendation pursuant to Rule 3 of the rules for United States Magistrates for the United States District Court for the District of Massachusetts. 28 U.S.C. § 636(b)(1)(B).

I. FACTS

Rodriguez and Torres are both charged with knowingly possessing firearms not registered to them in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d), namely, two shotguns having barrels of less than 18 inches in length, a Savage Model 67 12 gauge shotgun, serial number C155283, and a Mossberg Model 500A 12 gauge shotgun, serial number J367911. In addition, Torres is charged with being a felon in possession of a firearm, namely, a Norinco Model SKS7.62X39 semiautomatic rifle, serial number 22041978, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). The charges arose out of events which began on the evening of February 21, 1995.

At approximately 10:00 p.m., two individuals were shot and seriously wounded in a drive-by shooting on Longhill Street in Springfield, Massachusetts. First Transcript from November 16, 1995 Hearing (Docket No. 100) (hereinafter "T1") at 9-10, 30-31. Witnesses described the vehicle from which the shots were fired as a large brown or maroon car. T1 at 31-33. This information was disseminated to law enforcement officials in surrounding communities. Second Transcript from November 16, 1995 Hearing (Docket No. 102) (hereinafter "T2") at 5. At approximately 10:45 p.m., Holyoke Police Officer Lonnie Westbrook ("Westbrook"), working a security job at the Jarvis Heights apartments in Holyoke, observed a vehicle matching the above description, with a blown-out rear window, pull into a parking area and drop off three individuals. These individuals appeared to be carrying something long into a building at 360 Jarvis Ave. T1 at 11, 13, 40. Westbrook was said to have described the objects as "probably two long guns." T1 at 39. Westbrook followed the vehicle to a school next to the apartment complex and observed the driver abandon the vehicle and leave on foot towards the apartments. T1 at 11; T2 at 6.

Members of the Western Massachusetts Gang Task Force responded to the area and examined the vehicle, which had its engine still running. T1 at 10-11. The vehicle was a stolen Chevrolet Monte Carlo with broken pieces of glass still in its rear window frame. T1 at 11-12. Located in the vehicle was a spent 12 gauge shotgun shell as well as a spent brass casing from a rifle shell. Id. The vehicle was secured for further investigation.

A number of police officers surrounded the apartment building at 360 Jarvis Avenue and positioned themselves at various vantage points. T1 at 139-149, 84-85; T2 at 6, 19-20. The total number of officers, including state and local police, amounted to between ten and fifteen over the course of the events that ensued. T1 at 53, 85-86; T2 at 19. In addition, there were a number of both marked and unmarked police cars in the area. T1 at 86-87; T2 at 19. Police officers went from apartment to apartment at 360 Jarvis Avenue looking for the three individuals. T1 at 14, 45. At some point, one officer knocked on the door of Apartment I and was greeted by a woman later identified as Cruz Maria Rodriguez ("Mrs. Rodriguez"), Defendant Mark Rodriguez's mother. An officer present at that time indicated that he knew Mrs. Rodriguez and that she was "okay." The officers left. Subsequently, another tenant advised other officers that her buzzer had been rung, that she observed three individuals, at least two of whom were carrying guns, run by her in a hurry and that she heard commotion in the apartment directly above her. T1 at 15, 46-47, 85-86, 90-91. That apartment was Apartment I. The events surrounding the officers' approach to Apartment I and their warrantless search of that apartment are in dispute.1

A. Trooper Spellacy

Trooper John Spellacy ("Spellacy") of the Massachusetts State Police testified that he approached the door to Apartment I together with Officer Vasquez and Sergeant Higgins of the Holyoke Police Department. T1 at 16, 48, 88. His gun was not drawn, T1 at 48, 94, 97, although it may have been visible, T1 at 97-98. He was unaware if the other officers' guns were drawn. T1 at 103. After he knocked, the door was opened by an individual later identified as Rafael Rodriguez ("Mr. Rodriguez"), D...

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