US v. Vaughan, Crim. A. No. 93-10172-MLW.
| Decision Date | 04 January 1995 |
| Docket Number | Crim. A. No. 93-10172-MLW. |
| Parties | UNITED STATES of America v. Allen C. VAUGHAN. |
| Court | U.S. District Court — District of Massachusetts |
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Alfred P. Farese, Jr., Richard C. Chambers, Everett, MA, for defendant.
Timothy Q. Feeley, U.S. Atty., Boston, MA, for U.S.
The report and recommendation of Hon. Marianne B. Bowler, U.S.M.J., is adopted and defendant's motion to suppress is allowed with respect to evidence seized in the basement storage room and is otherwise denied.
It is so ordered.
REPORT AND RECOMMENDATION RE:
DEFENDANT'S MOTION TO SUPPRESS (DOCKET ENTRY # 10);
DEFENDANT'S MOTION TO SUPPRESS
(DOCKET ENTRY # 18)
August 8, 1994
Pending before this court are two motions to suppress filed by defendant Allen C. Vaughan ("defendant Vaughan"). (Docket Entry ## 10 & 18).
On May 27, 1993, a one count Indictment issued charging defendant Vaughan with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). On June 11, 1993, defendant Vaughan filed a motion to suppress. (Docket Entry # 10). Defendant Vaughan seeks to suppress a sawed off Winchester model 1200, 12 gauge shotgun with the serial number L1306147 ("the sawed off shotgun"), and certain other physical evidence seized during a search of premises located at 37 Waverly Street in Lynn, Massachusetts under a state court search warrant issued and executed on September 26, 1990 ("the warrant"). The sawed off shotgun forms the basis for the charge of possessing an unregistered firearm.
On July 15, 1993, a two count superseding Indictment issued charging defendant Vaughan with possessing the above noted unregistered sawed off shotgun in violation of 26 U.S.C. § 5861(d) and, in addition, being a felon in possession of a firearm, to wit, a .25 caliber pistol and 10 .25 ACP caliber cartridges in violation of 18 U.S.C. § 922(g)(1). On August 6, 1993, defendant Vaughan filed a second motion to suppress moving to suppress the same sawed off shotgun seized during the September 26, 1990 search and to suppress the .25 caliber pistol and ammunition seized in the course of defendant Vaughan's June 2, 1993 arrest. (Docket Entry # 18). With respect to the pistol and ammunition, defendant Vaughan theorizes that the June 2, 1993 seizure was based on the fruits of the September 26, 1990 illegal search and seizure. Hence, the initial issue is the legality of the September 26, 1990 warrant and the search and seizure of evidence thereunder.
Defendant Vaughan's grounds to suppress the evidence are as follows: (1) the warrant is invalid on its face for lack of particularity; (2) defendant Vaughan did not consent to the September 26, 1990 search; (3) the September 26, 1990 search exceeded the scope of the warrant; (4) the September 26, 1990 search warrant was issued without probable cause; and (5) the June 2, 1993 arrest and search resulted from evidence obtained illegally during the September 26, 1990 search and therefore constitutes "fruit of the poisonous tree." (Docket Entry ## 10 & 18).
On July 11, 1994, this court held a hearing on the motions to suppress (Docket Entry ## 10 & 18). This court continued the hearing in order to provide defendant Vaughan the opportunity to subpoena the police officer who executed the warrant, Kenneth L. Avery ("Officer Avery").
On July 13, 1994, this court held an evidentiary hearing and, at the close of the hearing, took the motions to suppress (Docket Entry ## 10 & 18) under advisement. Officer Avery, subpoenaed by defendant Vaughan, and Captain Joseph H. Rowe ("Captain Rowe"), appearing on behalf of the government, testified at the July 13, 1994 hearing.
The warrant permits the search of "37 Waverly Street, Lynn, MA, as a three family wooden structure, yellow in color with the number 37 affixed to the front of the house ... which is occupied by and/or in the possession of Earl Vaughan." The warrant thereby authorized the search of that portion of the structure at 37 Waverly Street occupied by and/or in the possession of Earl Vaughan. Earl Vaughan is the son of defendant Vaughan.
Specifically, the warrant directs the person to search for any article used to package, sell or distribute a controlled substance or currency connected to the sale or distribution of a controlled substance as defined in section 31 of chapter 94C of Massachusetts General Laws and "any person present. sic at: 37 Waverly Street ... which is occupied by and/or in the possession of Earl Vaughan." The warrant additionally allows the search of "any person present who may be found to have such property in his or her possession or under his or her control or to whom such property may have been delivered." . The scope of the warrant therefore included any persons present in the structure occupied by and/or in the possession of Earl Vaughan who might be found to have drug paraphernalia in their control.
As depicted in the affidavit submitted in support of the warrant, the warrant stems from information related on September 25, 1990, from two detectives with the Los Angeles Police Department to Officer Avery, a member of the Lynn Police Department. The detectives advised Officer Avery they were performing a "profile" on a package leaving Los Angeles via Federal Express, addressed to Earl Vaughan, West Lynn Welding, at 37 Waverly Street in Lynn. They informed Officer Avery that a canine, handled by Officer Charles M. Daniels ("Officer Daniels"), a Narcotics Detection Canine Handler with the Los Angeles Police Department, had made a positive "hit" of the package.
The affidavit describes Officer Daniels' experience and the canine's 1100 hours of training. Officer Avery, the affiant, avers his belief of illegal drugs located inside the Federal Express package. After the package was sent from Los Angeles, a Federal Express office in Peabody, Massachusetts held the package pending further instruction from Officer Avery. In light of the above information, Officer Avery requested an anticipatory warrant "to search the premises of 37 Waverly Street, ... the apartment belonging to Earl Vaughan after the package has been delivered." .
On September 26, 1990, Officer Avery executed the warrant. Captain Rowe accompanied him and participated in the search. Officer Avery characterizes the residence at 37 Waverly as "a three family." (Tr. 5 & 42). Defendant Vaughan, his wife and Earl Vaughan live on the first floor of the 37 Waverly Street structure. (Tr. 41). Earl Vaughan sleeps and occupies a first floor bedroom. (Tr. 19).
After observing a Federal Express employee deliver the package, Officer Avery went to the door and knocked. Defendant Vaughan answered the door and Officer Avery provided him with a copy of the warrant. After being asked the location of the package, defendant Vaughan told Officer Avery that the package was in the bedroom of his son, Earl Vaughan. Defendant Vaughan then brought Officer Avery into Earl Vaughan's bedroom where Officer Avery opened the package and discovered what appeared to be marihuana. (Tr. 17-18 & 28-30).
While in the bedroom, Officer Avery searched and located marihuana seeds and a gun. On direct, Officer Avery did not remember conversing with defendant Vaughan after he found the marihuana seeds and gun. Officer Avery, together with Captain Rowe, proceeded to search the entire first floor. At an undetermined time, Earl Vaughan appeared on the premises. (Tr. 18-23, 31 & 54-56).
The basement is accessed from a common hallway located off the kitchen. Opposite the kitchen door is a stairwell leading to the second floor which was occupied by defendant Vaughan's mother. Next to the stairwell, is a locked door leading to the basement and a door leading to the back porch.
Without knowing who occupied the basement and approximately five minutes after entering the residence, Captain Rowe requested access from defendant Vaughan to the locked door leading to the basement. Captain Rowe wished to enter the basement to ensure that no other persons were present and to continue the search for articles related to the distribution of marihuana pursuant to the warrant. (Tr. 42-45, 53 & 56-58).
Defendant Vaughan produced a key which unlocked the basement door. Captain Rowe and Officer William Alphen, presumably a member of the Lynn Police Department, proceeded down the stairs into the basement without defendant Vaughan and conducted a search of the area. At a later point in time, Officer Avery came down into the basement. (Tr. 23 & 42-45).
Captain Rowe observed a gun cabinet "halfway down the basement." After speaking with defendant Vaughan, Captain Rowe obtained a key and gained access to the cabinet. (Tr. 45-46 & 58-60).
To the left of the basement stairs, Captain Rowe also observed a door secured by a padlock. Captain Rowe requested access to the padlocked room from defendant Vaughan. Thereafter, defendant Vaughan produced another key. At Captain Rowe's request, defendant Vaughan accompanied Captain Rowe into the basement. Defendant Vaughan unlocked the door thereby allowing Captain Rowe to enter the storage room. Captain Rowe did not inquire of defendant Vaughan as to whether Earl Vaughan occupied the storage room and, in fact, was satisfied that Earl Vaughan did not occupy the storage room. Before unlocking the door, defendant Vaughan explained that the storage room was a workshop where he came. He added that no one else came into the storage room.1 Thereafter, defendant Vaughan returned to the first floor. (Tr. 46-47 & 60-64).
In the storage room, Captain Rowe saw what appeared to be a work bench and a locked blue steel cabinet with two doors approximately four feet in width and six feet in height. Captain Rowe therefore went upstairs and spoke with defendant Vaughan who produced a key to unlock the top drawer of the blue steel cabinet. Captain...
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