Opinion
04-CR-100E(Sr).
April 8, 2005
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. John T. Elfvin, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions.
PRELIMINARY STATEMENT
The defendant, Daniel Kochmanski ("the defendant"), is charged in a three count indictment with knowingly possessing a firearm with an obliterated serial number and ammunition, after having been convicted on or about the 12th day of September 1994, in the United States District Court, Western District of New York, of a crime punishable by imprisonment for a term exceeding one year, in violation of Title 18 U.S.C. §§ 922(g)(1) and 924(a)(2); knowingly possessing a firearm which had the manufacturer's serial number removed, obliterated and altered and which had been previously shipped and transported in interstate commerce, in violation of Title 18 U.S.C. §§ 922(k) and 924(a)(1)(B); and knowingly attempting to have placed on an aircraft in and intended for operation in air transportation, in property not accessible to passengers in flight, a loaded firearm with ammunition in the magazine, in violation of Title 49 U.S.C. § 46505(b)(2). (Docket #21).
The defendant has filed three motions to suppress evidence, to wit, (1) a "motion to suppress the warrantless seizure of items from luggage belonging to [him];" (2) a "motion for suppression of all evidence seized pursuant to the execution of the search warrant dated January 29, 2003 for the premises [of defendant] located at 4892 William Street, Lancaster, New York;" and (3) a "motion for suppression of [his] statements."
An evidentiary hearing with respect to the airport terminal search and defendant's alleged statements was held by this Court on October 6 and 26, 2004, and transcripts of the proceedings were prepared and filed as Docket #s 38 and 36, respectively. The government called Sean Glennon, a Security Screener employed by the Transportation Security Administration ("TSA") at the Buffalo International Airport, Robert Gawlak, a police officer employed by the Niagara Frontier Transportation Authority ("NFTA"), John L. Popp, a police officer employed by the NFTA, and John Politowski, a police officer employed by the NFTA. The government also offered Exhibits 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11 which were received in evidence. The defense did not call any witnesses or submit any exhibits.
There were two different reporters for the proceedings, and as a result, the transcript for the October 26, 2004 hearing (Docket #36) was filed before the transcript for the October 6, 2004 hearing (Docket #38) and thus the reason for the out-of-sequence docket numbering.
Government Exhibit 2 is a transcript (Docket #25) of the testimony of Officers Gawlak and Popp and S.A. Kenneth Jensen, Jr. of the F.B.I. given at a Preliminary Hearing conducted by this Court on June 2, 2003 to determine whether there was probable cause for the charges set forth in the Criminal Complaint to be placed against the defendant. At the Preliminary Hearing, Government Exhibits 2, 3, 4 and 5 were received in evidence and any reference to those exhibits herein will be designated by "PH" followed by the appropriate exhibit number.
FACTS
The material facts relevant to the issues herein have been taken from Government Exhibit 2 (Docket #25) and the transcripts of the proceedings on October 6 and 26, 2004 (Docket #s 38 and 36) as well as from the memoranda submitted by the parties in support of and in opposition to the defendant's motions to suppress. References to the testimony of the witnesses will be reflected by "T" followed by the appropriate page number and date.
On January 4, 2003, the defendant and his family arrived at the Buffalo International Airport and checked their luggage with the airlines on a flight destined for Cancun, Mexico that day. The checked luggage consisted of "several suitcases belonging to the defendant and his family." (Docket #29, p. 3). In keeping with established airlines/airport procedures, the checked luggage was placed on a conveyor belt and delivered to a secured area within the terminal for security screening by employees of the TSA. The screening of the luggage in question was done by use of an "L3 detection machine" which "detects the density of certain materials" contained within the bags being screened. The purpose of this screening process is to detect explosives, and during the course of the screening process, the screening machine "takes a photo of anything in the bag that is solid or abnormal to the screening procedures." (T. p. 29, June 2, 2003 — Docket #25). If something is detected by the screening process, the bag is then "physically inspected." (T. pp. 24-25, October 6, 2004 — Docket #38).
On January 4, 2003, Sean Glennon, a Security Screener employed by the TSA at Buffalo International Airport, was involved in the screening of luggage with the L3 detection machine, also referred to as a "EDT machine," and there came a time on that day when "a particular bag alarmed," i.e., "as the x-ray operator saw the image on the screen, it alarmed — an object alarmed inside the bag." As a result, he was called over and advised that "an object alarm" had occurred and that he should "search it." When he "looked at the image [on the screen], it appeared to be a gun inside of a bag," that is, "the shape of a gun inside the electronic device" that was contained in the bag screened. A printing was made of this image which he viewed. (T. pp. 28, 30-32, October 6, 2004 — Docket #38); (Government Exhibit 4). Thereupon, he notified his supervisor who came to the scene and the bag in question was examined externally for "explosive trace detection." The bag tested negative for explosives and it was then opened. A "cardboard box" was observed inside the bag, and before opening it, Glennon "sample[d] it with the explosive trace detection" which sample proved negative. The cardboard box was then opened and he observed a "piece of tin foil or aluminum foil on the inside [of the box]." He moved this aside and "took out the cable box itself, the black box, to sample that with the EDT machine." This test was negative for explosives, but while conducting that procedure, Glennon "felt something move inside the black box." As a result, he "looked through the vents" of the cable box and "saw something in there, possibly a gun." At this point, he "ran [the cable box] through the machine" and "then the transit authority police were notified." The cable box was then placed to "the side" along with the bag that it had been removed from. (T. pp. 35-38, October 6, 2004 — Docket #38).
The NFTA police were notified because the TSA inspectors believed the gun would be considered "a concealed weapon inside of a box." (T. p. 40, October 6, 2004 — Docket #38). In order for a firearm to travel on an airplane, there must "be a declaration inside the bag to show that it was declared by the airlines" and it has to be contained "in its own case, locked, inside of a suitcase, with ammunition outside of that box." (T. pp. 39-40, October 6, 2004 — Docket #38). The cable box in question was not an authorized "firearm box" for air travel. (T. p. 40, October 6, 2004 — Docket #38).
The TSA is not a law enforcement agency and TSA employees are not law enforcement officers. Everything that Security Screener Glennon did in this case was performed in his capacity as a TSA employee. However, TSA employees are trained to work with law enforcement personnel and "aid the police in the investigation of potential crimes and thus the reason for turning the cable box over to the NFTA police. (T. pp. 63-64, October 6, 2004 — Docket #38).
NFTA Officers Gawlak and Politowski responded to the call made by the TSA representatives after having been advised by them that "there was a suspicious package in a bag that was screened by them" and the screening indicated "a possible gun — it had a silhouette of a gun inside of a bag." (T. pp. 27-28, June 2, 2003 — Docket #25; T. pp. 9, 76, October 26, 2004 — Docket #36). Upon their arrival at the screening area, a printout of an image depicted by the L3 detection machine was presented to them by the TSA supervisor. Their review of this printout caused them to believe that the image depicted the "outline of a weapon, a pistol" or "a gun." (T. p. 30, June 2, 2003 — Docket #25; T. pp. 9, 77, October 26, 2004 — Docket #36; Government Exhibit 4; Government Exhibit PH5).
Officer Politowski instructed "TSA [to] pull the bag off of the conveyor belt and [they] looked inside the bag" whereupon they "discovered a form of ID and a cardboard box." The ID contained the name and picture of the defendant, to wit, "Daniel Kochmanski." (T. pp. 38-39, 77, October 26, 2004 — Docket #36). The airline luggage claim tag on the bag enabled the officers to discern what airline and flight the defendant was booked on and the departure gate for same.
In the meantime, Officer Gawlak "had taken the cable box out of the cardboard box and took the four screws out of the bottom of the box to open it and find out if it was a real weapon." (T. p. 12, October 26, 2004 — Docket #36). Upon opening the cable box, he "noticed that it" contained a "real weapon" and that there were "real rounds [ammunition] in the box with the weapon." (T. pp. 12-13, October 26, 2004 — Docket #36). Underneath these items, "there was a set of rubber latex gloves." (T. pp. 33-34, June 2, 2003 — Docket #25). Photographs of the weapon inside the cable box were taken and the F.B.I. was notified. (T. pp. 13-14, October 26, 2004 — Docket #36).
Officer Gawlak knew the established "policies with respect to firearms and stowed luggage," to wit, "any firearm, handgun or long rifle was to be declared at the ticket counter. Meaning you have to come up and say I have a pistol in my luggage and they give you a form to fill out stating that they are declaring it and it is in there, so if it comes through like this, the TSA could open the luggage up to do their inspection and they would see that you had declared the weapon." (T. p. 11, October 6, 2004 — Docket #38). There is a requirement that "an order of declaration has to be attached right to the firearm case that it is stored in." (T. p. 33, June 2, 2003 — Docket #25). It was established that no declaration of the weapon in question had been made by the defendant to the airlines representatives. (T. pp. 11-12, October 26, 2004 — Docket #36; T. pp. 30-33, June 2, 2003 — Docket #25).
After the gun and ammunition were observed and the F.B.I. notified, the NFTA officers began to focus "on retrieving the person who owned the bags, how many bags were involved, how many people were flying, where they were flying." (T. p. 34, June 2, 2003 — Docket #25). The weapon was secured, awaiting the arrival of the F.B.I. (T. p. 15, October 26, 2004 — Docket #36).
Utilizing the identification and flight information obtained from the luggage, Officers Politowski and Popp proceeded to the gate area for the purpose of locating the defendant. (T. pp. 38-39, October 26, 2004 — Docket #36). They encountered him in the area of Gate 6 and requested him "to please step over by the wall" (T. pp. 6-7, June 2, 2003 — Docket #25; T. pp. 88-89, October 26, 2004 — Docket #36) and "asked [him] if [they] could speak with him." (T. pp. 41, 79, October 26, 2004 — Docket #36). No objection having been made by the defendant, Officer Popp asked the defendant "if he had placed a transistor-type looking box in his luggage" and the defendant "stated yes I did." (T. pp. 41, 79-80, 102, October 26, 2004 — Docket #36). The defendant then asked, "is this about stealing cable," and Officer Popp responded by directing the defendant to "please turn around [and] put your hands behind your back, he was under arrest and Mirandized him." (T. pp. 7-8, 15-19, June 2, 2003 — Docket #25; T. pp. 41-42, 54, 79-80, 102, October 26, 2004 — Docket #36). After advising the defendant of his rights, Officer Popp asked the defendant if he understood his rights and whether he was "willing to cooperate," and the defendant replied "yes." (T. pp. 41-43, 55, 70, 79-80, October 26, 2004 — Docket #36). Officer Popp once again asked the defendant if he "pack[ed] this (sic) bag in his possession in his checked luggage" and the defendant responded "yes." Officer Popp then told the defendant that they "found a weapon inside that transistor box" (T. pp. 7-8, June 2, 2003 — Docket #25) and asked the defendant "to please come with [them]." (T. pp. 44, 55, October 26, 2004 — Docket #36). The defendant was then escorted to the NFTA police office located in the lower level of the terminal by Lieutenant Burgio and Officer Politowski. (T. pp. 8-9, June 2, 2003 — Docket #25; T. pp. 80-82, October 26, 2004 — Docket #36).
At the Preliminary Hearing conducted on June 2, 2003, Officer Popp testified that "at Gate Six, Officer John Politowski Mirandized [the defendant]." (T. p. 21, June 2, 2003 — Docket #25). At the October 26, 2004 evidentiary hearing, Officer Politowski testified that Officer Popp "verbally" advised the defendant of his rights when they first confronted the defendant at Gate Six. (T. pp. 80, 90, 96, October 26, 2004 — Docket #36). At the same October 26th hearing, Officer Popp testified that he advised the defendant of his rights at Gate Six.
Upon arrival in the NFTA terminal office, Officer Politowski "read [the defendant] his rights again" and "asked him if he would cooperate and he said he would" and the defendant also acknowledged that he understood his rights. (T. pp. 81-84, October 26, 2004 — Docket #36).
Approximately an hour and one-half after the initial encounter at Gate Six, Officer Popp returned to the NFTA terminal office with a "Miranda card" which he had retrieved from his patrol car, and in the presence of Officer Politowski, "read [the defendant] his rights from the card and had him sign it and initial it and [Popp] also initialed it." (Government Exhibit 1) (T. pp. 44-45, 48, 108, October 26, 2004 — Docket #36). Once again, the defendant was asked if he understood his rights and he replied that he did and further stated, "I'll cooperate, whatever you need." (T. p. 47, October 26, 2004 — Docket #36).
The date on the card, Government Exhibit 1, is "12-4-03" but Officer Popp testified that this was an error and the card was utilized by him on January 4, 2003 when he advised the defendant of his rights. (T. p. 66, October 26, 2004 — Docket #36).
Sometime thereafter, S.A. Kenneth Jensen of the F.B.I., having been "informed that a weapon was discovered in checked luggage," proceeded "to the lower level of the Buffalo Niagara International Airport in the baggage claim area" where he initially met with Sargent (sic) Burgio of the NFTA police and "saw several bags that had been pulled out of the normal processing." Burgio informed him that a weapon was found inside a cable converter box, and he displayed the open cable box with the weapon in it. The weapon was a "Ramon arms .25 Caliber semi-automatic weapon" whose "serial number had been obliterated." (T. pp. 49-51, June 2, 2003 — Docket #25).
He and S.A. Forrest were "provided with an advice of rights card that [they] were told had been given to [the defendant] and he [the defendant] had been advised of his rights (T. pp. 84-85, October 26, 2004 — Docket #36), and that [the defendant] had initialed that card." Thereupon, he and S.A. Forrest commenced an interview of the defendant by first showing the advice of rights card (Government Exhibit 1) to the defendant and asking him if he had "initial[ed] this card" and whether he "still want[ed] to talk to [them]." The defendant responded that he did by saying "something akin to yeah, I just want to get this cleared up." (T. pp. 51-53, June 2, 2003 — Docket #25).
The agents "talked to [the defendant] a little bit about the fact that there was a weapon found in the cable converter box" and the defendant admitted that "he had packed the cable converter box in the luggage, that more specifically he had gone downstairs, grabbed a cable converter box off the shelf, brought it back upstairs, and put it in the luggage" but "claimed not to know that there was a weapon inside of the cable converter box." (T. pp. 53-54, June 2, 2003 — Docket #25). The defendant stated that the NFTA officers "had informed him that a revolver was discovered inside of the cable box" and that he "said something akin to well, a revolver couldn't fit inside of a cable converter box because there's only about 2 inches worth of space, something like that." (T. p. 54, June 2, 2003 — Docket #25).
The defendant admitted to having "purchased cable converter boxes over the years from several different sources" and he advised the agents that "he could probably tell [them] where he got that box from if he were able to see it at that time. He also told [the agents] that when he purchased the cable converter box, he would check to ensure that it worked when he got it, and would attempt to repair it if it didn't work." (T. pp. 54-55, June 2, 2003 — Docket #25).
As to the cardboard box in which the cable box was placed, and the two sheets of precut aluminum foil inside that box, the defendant "claimed he was taking them with him to bring them food back from the buffets while on vacation." Each aluminum sheet was "no more than 1 foot by 1 foot." (T. pp. 55-56, June 2, 2003 — Docket #25).
In the other luggage "that was with [the defendant's] traveling party, things like telephone repair tools, rope, lots of credit cards, a considerable number of tools" were found. (T. p. 57, June 2, 2003 — Docket #25).
"On the top outside of the cardboard box that contained the cable converter box" there "appeared to be a yellow or pale green Post-It like note with clear packing tape over the top of it" with a written notation on it, "take gum." (T. p. 57, June 2, 2003 — Docket #25).
As the "interview was winding down," the defendant made reference to hiring an attorney and at that point, the agents "stopped questioning him." (T. pp. 65-66, June 2, 2003 — Docket #25).
The defendant was taken into custody on January 4, 2003 and charged with having violated 49 U.S.C. § 46505(b)(2) and 18 U.S.C. §§ 922(k) and 922(g)(1) (Docket #1).
On January 29, 2003, S.A. Jensen made an application for a search warrant seeking authorization to enter the home of the defendant located at 4892 William Street, Lancaster, New York for the purpose of "search[ing] the entire residence at 4892 William Street, Lancaster, New York, and remov[ing] samples of any blue/green carpeting or any carpeting located throughout the residence similar thereto for testing, and possible matching, at the F.B.I. Laboratory." This application was made because "a plug of blue/green low pile carpeting" had been found "as the loaded magazine from the weapon [in question] was unloaded." (Affidavit of S.A. Jensen sworn to January 29, 2003 attached as Exhibit C to Defendant's Omnibus Motion — Docket #29) (T. pp. 67-69, June 2, 2003 — Docket #25) (03-M-33, Docket #1). A search warrant was issued by this Court based on S.A. Jensen's Application (03-M-33, Docket #1), and an entry was made into the residence of the defendant and carpet samples throughout the residence were taken pursuant to the search warrant on January 31, 2003. Numerous photographs of various areas of the residence of the defendant were also taken by the agents during the course of their search on January 31, 2003 (T. pp. 69-72, June 2, 2003 — Docket #25), but the agents "confined [themselves] to just trying to find fibers" in executing the search warrant. (T. p. 70, June 2, 2003 — Docket #25).
DISCUSSION AND ANALYSIS
A. The Airport Luggage Search:
The defendant argues "that the warrantless search of his luggage by agents of the Niagara Frontier Transportation Authority ("NFTA") and the Transportation Security Administration ("TSA") was not consensual and, further, that the warrantless search of his luggage and warrantless seizure of items contained therein were unlawful" and therefore, "all evidence obtained as a result of this illegal search and seizure should be suppressed." (Docket #42, pp. 1-2).
In response, the government asserts that "the defendant voluntarily consented to have his luggage searched by airport personnel" and that the actions of the TSA representatives in screening the defendant's luggage was "reasonable" and that "once the screening machine detected what was believed to be an undeclared firearm, it was reasonable for the examiners to open the luggage and search further" and therefore, the defendant's Fourth Amendment rights were not violated. (Docket #41, pp. 13-14).
In reply, the defendant argues that the government's reliance on Terry v. Ohio, 392 U.S. 1 (1968) as justification supporting the action of the TSA agent is misplaced and "maintains that even if a seizure is reasonable in its inception, a subsequent warrantless search evolving from that seizure is not insulated from legal challenge." In the case at bar, the defendant claims that "probable cause" for breaking the locks on the luggage in question and physically searching the luggage was required and that such "probable cause" was lacking thereby making the search and seizures illegal. (Docket #47, pp. 1-3). The defendant further asserts that he "did not consent to the warrantless search of his luggage" either "explicitly" or "impliedly." (Docket #47, p. 3). In refuting this argument, the government states that the evidence presented at the evidentiary hearing establishes that the defendant was put on notice in the airport terminal by the signage evident there, that his luggage would be subject to a search and that he consented to such a search when he checked his bags with the airlines. (Docket #46, pp. 2-5).
Reasonableness Of The Luggage Search:
"[A] person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment." United States v. Place, 462 U.S. 696, 707 (1983); United States v. Chadwick, 433 U.S. 1, 7 (1977). The screening of the defendant's luggage by the use of the "L3 detection machine" on January 4, 2003 constituted "a search within the meaning of the Fourth Amendment." United States v. Albarado, 495 F.2d 799, 802-803 (2d Cir. 1974). However, "airport searches" have long become a "part of everyday travel resulting from the threat to the traveling public and to the airlines from hijacking" and acts of terrorism. Id. at 801. Unfortunately, the prophetic words of Judge Oakes iterated in Albarado thirty-one years ago became a realization by reason of the tragic and infamous events of September 11, 2001 ("9/11") wherein he stated:
"The plane may become a weapon of mass destruction."
Id. at 805.
The screening of luggage checked by airlines passengers is a "direct reaction" to the events of "9/11" and the threats of terrorism that have been espoused throughout the world with particular venom towards the United States. "Our inquiry here must be directed to the basic issue whether in the totality of circumstances such a search is reasonable" and "the reasonableness of a search depends upon the facts and circumstances and the total atmosphere of each case." Id. at 804; Chimel v. California, 395 U.S. 752, 765 (1969). In making this determination, "the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 20 (1968); Albarado, supra at 804.
As was said by the Supreme Court in Terry, "The scope of the search must be strictly tied to and justified by "the circumstances which rendered its initiation permissible." 392 U.S. at 19, 88 S.Ct. at 1878, quoting Warden v. Hayden, 387 U.S. 294, 310 87 S.Ct. 1642, 18 L.Ed. 782 (1967) (Fortas, J. concurring). In other words, it is, and indeed for preservation of a free society must be, a constitutional requirement that to be reasonable the search must be as limited as possible commensurate with the performance of its functions.Albarado at 806.
It has become axiomatic in this environment of terrorism and destruction that the government has a valid and substantial interest in undertaking and implementing procedures that will better provide and enhance the safety of the public in its use of air transportation and therefore, I "need not labor the point with respect to need." As the Court of Appeals for the Second Circuit stated:
When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974); United States v. Bell, 464 F.2d 667, 675 (2d Cir.), cert. denied 409 U.S. 991 (1972).
In light of "9/11," it can be safely said that most of the millions of Americans who engage in air travel each year, "cheerfully and even eagerly" submit their luggage for screening with the knowledge that such procedure is "essential for their protection." Id. at 500. Although the defendant did not testify, I find it incomprehensible, in light of "9/11" and the signs posted throughout the airport terminal at the check-in counters, that the defendant would not have foreknowledge that his checked luggage would be subject to security screening. However, for reasons hereinafter stated, such foreknowledge is not necessary for validating the search of his bag because "the legality of the search does not rest on a `consent' theory, but rather on the reasonableness of the total circumstances." Albarado at 808.
The screening of checked luggage by the L3 detection machine applies to everyone who checks luggage, and such process does not involve the slightest stigma. This screening process on January 4, 2003 did not require opening of the bag in question; nor did it "expose non-contraband items that would otherwise remain hidden from public view." The manner in which the TSA security screeners initially obtained information about a possible weapon in defendant's luggage, i.e., the screening by the L3 detection machine, was "much less intrusive than a typical search." Moreover, the x-raying of the bag disclosed only the presence or absence of an "alarmed object" and therefore, such disclosure was "limited" in nature and in keeping with the purpose of security screening for the safety of the traveling public. Because this screening process "is so limited both in the manner in which information is obtained and in the content of the information revealed by the procedure," it cannot be said that the initial search of the bag by this method was unreasonable. United States v. Place, supra at 707. The sole purpose or objective of this screening search is to protect the air traveler from "the enormous dangers to life and property from terrorists, ordinary criminals or the demented. To brand such search as unreasonable would go beyond any fair interpretation of the Fourth Amendment." Edwards, supra at 500; see also Albarado, supra; United States v. Smith, 643 F.2d 942, 944 (2d Cir.), cert. denied by Smith v. United States, 454 U.S. 875 (1981).
However, once the L3 detection machine indicated an "alarmed object" in the bag of the defendant, the security screener was justified in further pursuing the search of the bag so as to determine whether this "alarmed object" constituted a danger. United States v. Smith, supra at 944-945; Edwards, supra. Not to do so would cause the screening process and use of the L3 detection machine to "not serve any useful purpose." Albarado, supra at 808. But the bag of the defendant was not immediately opened for purposes of conducting a physical search. Rather, the operator of the L3 detection machine summoned fellow screener Glennon who then "looked at the image [appearing on the screen of the L3 detection machine] [and that image] appeared to be a gun inside of a bag" and a printing of this image was made and examined by Glennon. (T. pp. 28, 30-32, October 6, 2004 — Docket #38). "The further search of the bag by [TSA employee Glennon] was justified by the presence on the [L3 detection machine] screen" of what appeared to be a gun inside the bag of the defendant. This search by hand was a minimal invasion of privacy consistent with the need to investigate whether the [image] was dangerous." This two step search was reasonable since it was "exactly tailored to the security threat" which Congress intended to prevent by reason of 49 U.S.C. § 46505(b)(2). United States v. Smith, 643 F.2d 942, 944-45 (2d Cir. 1981). "It would be absurd . . . to allow [loading of the alarmed object on the airplane] without discovering what" caused the alarm. United States v. Albarado, supra at 808. The defendant's bag was subjected to further testing for explosives, including the opening of the bag and the removal of the "alarmed object," to wit, the cable box, and hand testing it for explosives. This procedure was in keeping with the overall objective of luggage screening and public safety before allowing luggage to be loaded on an airplane and therefore, reasonable in the context of the requirements of the Fourth Amendment. The principles of Terry and its progeny permitted the detention of defendant's luggage at this point so as to allow the TSA personnel to briefly investigate the circumstances that aroused their suspicion, to wit, the appearance of a gun on the L3 detection machine screen, and the depiction of same in the printing of the L3 detection machine image since this investigative detention was properly limited in scope. United States v. Place, supra.
Except as provided in subsection (d) of § 46505 of Title 49 of the United States Code, it is a crime for an individual "to have placed a loaded firearm on [an] aircraft in property not accessible to passengers in flight." 49 U.S.C. § 46505(b)(2). By reason of this statutory provision, a gun is deemed contraband if placed in baggage to be loaded on an airplane if it has not been first declared to the airline authorities.
The image of a gun within defendant's bag depicted by the L3 detection machine and Glennon's visual observation "though the vents" of the cable box overwhelmingly provided "reasonable suspicion," if not probable cause, to the TSA representatives so as to justify the brief detention of defendant's luggage "in order to allow trained police officers to `quickly confirm or dispel [their] suspicion'." United States v. $557,933.89 More or Less In U.S. Funds, 287 F.3d 66, 86-97 (2d Cir. 2002); United States v. Place, 462 U.S. 696, 702 (1983).
When NFTA police officers Gawlek and Politowski were advised by the TSA representatives as to what had occurred with respect to the screening of the defendant's bag and were presented with the L3 detection machine printing depicting a gun in defendant's bag (Government Exhibit 4), the officers had probable cause to seize the bag and search it since these facts, now known by the officers, "were sufficient `to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." United States v. Smith, supra at 945 (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). Since the cable box appeared to contain the gun, as testified by TSA employee Glennon, and since the cable box apparently caused the "alarmed object" reaction during the screening of the defendant's bag, the removal of the cable box from defendant's bag was lawful as part of the second step search procedure of defendant's bag.
"If an officer comes lawfully upon a container which may conceal [dangerous] items, he may require that [it] be opened to his inspection before the [container] is allowed [to be loaded on the airplane]." United States v. Albarado, supra at 809 citing with approval, United States v. Knoll, 481 F.2d 884, 886-887 (8th Cir. 1973). Officer Gawlak, after having been briefed by the TSA employees and after viewing the L3 detection machine printing, had probable cause to believe that the cable box contained contraband, to wit, a weapon in violation of 49 U.S.C. § 46505(b)(2) and therefore, it was lawful for him to open the cable box as he did, and seize the weapon along with the ammunition.
[I]t is well settled that it is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband.United States v. Jacobsen, 466 U.S. 109, 121-122 (1984).
As the United States Supreme Court has stated:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to "plain view," thereby obviating the need for a warrant. See Harris v. United States, 390 U.S. 234, 263, 19 L.Ed. 1067, 88 S.Ct. 992 (1968) ( per curiam).Arkansas v. Sanders, 442 U.S. 753, 764-765, n. 13 (1979).
The discovery of the gun within the baggage of the defendant came about by the lawful screening of the bag by means of the L3 detection machine. This screening process disclosed the existence of the gun as depicted on the screen of the L3 detection machine and thereafter on the printout of such image. (Government Exhibit 4). Once this discovery occurred, the "plain view" exception of the Fourth Amendment warrant requirement came into play.
It is well settled that, under the "plain view" doctrine, law enforcement personnel may seize an item without a warrant provided that it is "immediately apparent that the object is connected with criminal activity," and further provided that the officers viewed the object from a lawful vantage point — i.e., that the officers "have not violated the Fourth Amendment in arriving at the place from where they can see" the object. United States v. George, 975 F.2d 72, 78 (2d Cir. 1992); see also Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The determination of lawful vantage point must focus on the activity which brought the object into plain view — here, the search of the briefcase by airport security personnel. As long as the scope of that initial search comported with the Fourth Amendment — i.e., was no more intrusive than necessary to accomplish its purpose of detecting weapons or explosives — then it is of no constitutional moment that the object found was not what was sought. As the district court correctly noted, "[t]hat lack of relationship always exists with regard to action validated under the `plain view' doctrine."United States v. $557,933.89, More Or Less, In U.S. Funds, 287 F.3d 66, 81-82 (2d Cir. 2002); see also United States v. Scopo, 19 F.3d 777, 782 (2d Cir.); cert. denied, 513 U.S. 877 (1994).
The image of a gun packed within the defendant's bag was readily apparent to the TSA Security Screeners. Although the primary purpose of the screening of the bag by use of the L3 detection machine was to determine the presence of explosives, this fact did not invalidate the actions of the TSA screeners in further pursuing the search of the "alarmed object" and notifying the police. As Mr. Glennon testified, the TSA screeners believed that the gun would be considered "a concealed weapon inside of a [cable] box" and that the cable box in question was not an authorized "firearm box" for air travel. (T. p. 40, October 6, 2004, Docket #38). The fact that the object discovered was a gun and not explosives is of "no constitutional moment." United States v. $557,933.89, More Or Less, In U.S. Funds, supra at 82.
The taking possession of the cable box and inspecting the contents of same by the NFTA police officers did not constitute an unlawful search within the meaning of the Fourth Amendment. The TSA screeners had contacted the NFTA police and advised them of their suspicions and discovery and had, of their own accord, summoned the police for the express purpose of investigating this matter further. Before the cable box was opened or taken into physical custody by the police, the TSA representatives advised the police officers as to what they had discovered in the course of their legitimate duties of baggage screening and inspection and actually produced and presented a printout of the image of the gun as depicted on the L3 detection machine to the police. (T. pp. 27-28, 30, June 2, 2003 — Docket #25; T. pp. 9, 77, October 26, 2004 — Docket #36; Government Exhibits 4, PH5). This information supplied to the police officers certainly gave "rise to a sufficient probability that the [gun] represented evidence of criminal activity" so as to warrant a seizure of the gun based on probable cause and the plain view doctrine. Id. at 89. The search of the cable box "was of no greater scope or intensity than the airport security personnel's" and therefore, there was "no additional invasion of [defendant's] privacy interest." The secretion of a gun in the cable box was made known to the police officers by the TSA screeners and by the L3 detection machine printout (Government Exhibit 4) before the actual search of the cable box was conducted and the weapon seized. Because of this, there was "no additional search for purposes of the Fourth Amendment" when the NFTA officers viewed that which had already been made known to them by the printout (Government Exhibit 4) and the TSA representatives. Id. at 87; see also Arizona v. Hicks, 480 U.S. 321, 325 (1987); United States v. Jacobsen, supra at 117. Since the police officers did not use any "information with respect to which the expectation of privacy [had] not already been frustrated," the opening of the cable box to determine if the gun was real, was not a new "search" and therefore, not in violation of the Fourth Amendment. United States v. $557,933.89, More Or Less, In U.S. Funds, supra at 87; United States v. Knoll, 16 F.3d 1313, 1320 (2d Cir. 1994); United States v. Menon, 24 F.3d 550, 563 (3d Cir. 1994).
Therefore, since the NFTA police officers had probable cause to seize the gun and ammunition, as well as the cable box, as contraband, defendant's Fourth Amendment rights were not violated, and it is therefore RECOMMENDED that defendant's motion to suppress this evidence be DENIED.
Since probable cause had now been established that defendant's luggage was an instrument in the facilitation of a crime, to wit, the violation of 49 U.S.C. § 46505(b)(2), it was reasonable for the officers to seize and search the remaining checked luggage that had been identified as belonging to the defendant and his traveling family to determine whether any further evidence of criminal activity was contained therein. As a result, it is RECOMMENDED that defendant's motion to suppress "any and all evidence, including observations obtained as the direct or indirect result of the warrantless seizures, as well as all fruits derived therefrom" (Docket #29, p. 8, ¶ 27) be DENIED.
B. The Interrogation Of The Defendant:
The defendant asserts that he "was subjected to three separate rounds of questioning by NFTA police officers and FBI agents" and that "all statements obtained from [him] by government agents in violation of [his] Miranda rights must be suppressed." (Docket #42, p. 14). He also "contends that his arrest was illegal and that any statements he made to law enforcement officers should be suppressed for that reason." (Docket #42, p. 18). In support of his position, the defendant argues that he "was unquestionably in custody as soon as the three NFTA officers approached him in the concourse at 4:15 p.m. on January 4, 2003, and directed him to step toward the windows while telling his daughter to move away from the defendant farther down the concourse" and that as a result, "the officers should have immediately advised the defendant of his rights pursuant to Miranda v. Arizona before any questioning occurred." (Docket #32, p. 22).
The Initial Stop And Interrogation Of Defendant:
Once the NFTA officers established the presence of a gun and ammunition in the cable box that was contained in the defendant's screened luggage which had not been properly declared to the airlines, they certainly had more than reasonable suspicion to "believe that criminal activity may be afoot" along with an "objective manifestation" that the defendant was "engaged in criminal activity" and therefore, were justified in conducting a Terry stop of the defendant. United States v. Arvizu, 534 U.S. 266, 275 (2002); Terry v. Ohio, 392 U.S. 1 (1968); United States v. Sokolow, 490 U.S. 1 (1989); United States v. Cortez, 449 U.S. 411 (1981). Such a stop is precisely what occurred when the officers first came upon the defendant in the area of Gate 6 in the airport concourse. Officers Politowski and Popp approached the defendant and requested that he "please step over by the wall" (T. pp. 6-7, June 2, 2003 — Docket #25; T. pp. 88-89, October 26, 2004 — Docket #36) and then "asked [him] if [they] could speak to him." (T. pp. 41, 79, October 26, 2004 — Docket #36). Since the defendant did not offer any objection to the officers' request, and voluntarily acquiesced to their request by stepping over to the wall, Officer Popp then asked him "if he had placed a transistor-type looking box in his luggage." The defendant was not under arrest at this time and therefore, there was no requirement that he be advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). "A suspect is entitled to Miranda warnings only if he or she is interrogated while `in custody'. See, e.g., Thompson v. Keohane, 516 U.S. 99, 100-01, 116 S. Ct. 457, 460, 133 L.Ed.2d 383 (1995)." Tankleff v. Senkowski, 135 F.3d 235, 242-243 (2d Cir. 1998). Because he was not under arrest at this time, his admission to having packed the cable box in response to Officer Popp's question was not coerced or obtained in violation of his Constitutional rights, but rather, was voluntarily and freely given.
The United States Supreme Court has expressly approved the type of police action that was effectuated by Officers Politowski and Popp when they confronted the defendant in the Gate 6 area wherein it stated:
We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.
* * *
Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct. 1319 (1983) (plurality opinion), for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." (Citation omitted).Florida v. Bostick, 501 U.S. 429, 431, 434 (1991); Muehler v. Mena, 544 U.S. ___ (March 22, 2005).
When the defendant replied that he had packed the cable box in his luggage, he was immediately placed under arrest by the officers and advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). (T. pp. 7-8, 15-19, June 2, 2003 — Docket #25; T. pp. 41-42, 54, 79-80, 102, October 26, 2004 — Docket #36).
Once the defendant admitted that he had "placed a transistor-type looking box in his luggage" (T. pp. 41, 79-80, 102, October 26, 2004 — Docket #36) the police officers, in considering the totality of the circumstances now known to them, had probable cause for arresting the defendant. As indicated earlier, the placing of a loaded gun in luggage destined to be placed on an airplane without declaring it constitutes a crime under 49 U.S.C. § 46505(b)(2). Therefore, I find that the arrest of the defendant was lawful and that immediately upon his arrest, he was properly advised of his rights by Officers Politowski and Popp pursuant to the requirements of Miranda v. Arizona, supra. (T. pp. 7-8, 15-19, June 2, 2003 — Docket #25; T. pp. 41-42, 54, 79-80, 102, October 26, 2004 — Docket #36). The defendant acknowledged that he understood those rights and expressed his desire to cooperate with the police officers. (T. pp. 41-43, 55, 70, 79-80, October 26, 2004 — Docket #36). The initial advice of rights and acknowledgment of same by the defendant was repeated twice more. More specifically, after escorting the defendant from the Gate 6 area to the NFTA police office in the lower concourse of the terminal, Officer Politowski "read [the defendant] his rights again" and "asked him if he would cooperate and he said he would after acknowledging that he understood his rights. (T. pp. 81-84, October 26, 2004 — Docket #36). This advice of rights and acknowledgment of same was once again repeated when Officer Popp "read [the defendant] his rights from the [`Miranda"] card and had him sign it and initial it." (T. pp. 44-45, 48, 108, October 26, 2004 — Docket #36; Government Exhibit 1). Thereupon, the defendant advised the officers that he would "cooperate [and supply] whatever you need." (T. p. 47, October 26, 2004 — Docket #36).
Further confirmation of this advice of rights and acknowledgment of same by the defendant was established when S.A. Jensen presented the "Miranda card" (Government Exhibit 1) to the defendant and asked him if he had "initial[ed] this card" and Jensen's asking the defendant if he "still want[ed] to talk to [them]" to which the defendant responded by saying "something akin to yeah, I just want to get this cleared up." (T. pp. 51-53, June 2, 2003 — Docket #25) and he admitted to the FBI agents that "he had packed the cable converter box in his luggage." (T. pp. 53-54, June 2, 2003 — Docket #25).
Since no evidence was presented to establish that the defendant was threatened or coerced in any way by any of the law enforcement officers, either before advising him of his rights or afterward, I find that all of the statements and admissions made by the defendant to the officers were freely and voluntarily made and therefore should be deemed admissible as evidence against him. Therefore, it is RECOMMENDED that defendant's motion to suppress such evidence be DENIED.
C. The Search Of The Premises At 4892 William Street, Lancaster, New York:
The defendant asserts that since the search warrant issued by this Court on January 29, 2003 "particularized the items to be seized as `carpet fibers from a blue/green low pile carpet,' no other item or object was authorized to be seized pursuant to the warrant." (Docket #29, p. 11, ¶ 37). He claims that the searching agents "effect[ed] a widespread seizure of items that were not within the scope of the warrant and [did] not act in good faith" thereby requiring "wholesale suppression of all items seized" because of the "flagrant disregard of the terms of the search warrant." (Docket #29, pp. 12-13, ¶ 46). During the course of the search of the defendant's house pursuant to the search warrant, the agents "took approximately sixty photographs of every room in the house" which the defendant claims constitute "fruits of this illegal search and should be suppressed." (Docket #29, pp. 12-13, ¶¶ 43, 48) (Exhibit E attached to Docket #29).
In opposition to the defendant's position, the government argues that "since the agents were authorized to search the house for carpeting, all they would have seen in the process would have been lawfully viewed in plain view" and "therefore, it was reasonable for the agents to photograph, not only places searched, but places already seen in plain view."
In the alternative, the government argues that if the Court "were to determine that the warrant was over broad or the agents exceeded the scope of the warrant, . . . the search and seizure, including photographs, may be upheld under United States v. Leon, 468 U.S. 897 (1984). (Docket #31, pp. 5-6).
For the reasons hereinafter stated, I find both arguments of the government to be legally untenable. The Fourth Amendment to the United States Constitution expressly provides that:
no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In enforcing the requirements of the Fourth Amendment, the United States Supreme Court and the Second Circuit Court of Appeals have ruled that "a search must be confined to the terms and limitations of the warrant authorizing it." United States v. Matias, 836 F.2d 744 (2d Cir. 1988); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 394, n. 7 (1971).
The search warrant issued by this Court on January 29, 2003 expressly and particularly described the items to be seized, to wit, "carpet fibers from a blue/green low-pile carpet" located at "4892 William Street, Lancaster, New York." (03-M-33, Docket #1). I fail to understand how the government could refer to this search warrant as "overbroad." It is worth noting that notwithstanding the fact that the FBI agents took approximately sixty (60) photographs of the interior and exterior of the premises located at 4892 William Street, Lancaster, New York on January 31, 2003 while executing the search warrant for said premises, and reported the contents of said photographs in a "Photo Log" ( see Defendant's Exhibit E attached to Docket #29), no inventory of photographs was reported on the "RETURN" of the search warrant dated February 5, 2003. (03-M-33, Docket #2).
The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.Marron v. United States, 275 U.S. 192, 196 (1927).
The taking of photographs of the interior of the defendant's home on January 31, 2003 constituted a separate search and seizure that was subject to the requirements of the Fourth Amendment since the taking of said photographs constituted the seizure of intangible evidence from the premises located at 4892 William Street, Lancaster, New York. As the Court of Appeals for the Second Circuit has found:
[T]hough Rule 41 [Fed.R.Crim.P.] expressly mentions only "documents, books, papers and any other tangible objects," it is clear that both the Rule and the Fourth Amendment extend to searches for and seizures of intangibles as well. (Citations omitted).United States v. Villegas, 899 F.2d 1324, 1334 (2d Cir.), cert. denied 498 U.S. 991 (1990).
Since this Court's search warrant of January 29, 2003 (03-M-33, Docket #1) did not authorize the taking of photographs by the agents while inside the home of the defendant in the execution of said search warrant, the photographs taken by the agents are the result of an unauthorized search and seizure and therefore should be suppressed as evidence. The government's reliance on the "plain view" principle, or in the alternative, United States v. Leon, is misplaced.
. . . The "plain view" exception of the fourth amendment warrant requirement "authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity." Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). Under this exception to the fourth amendment requirement, a police officer may seize evidence when in "plain view" if: "(1) the officer's initial intrusion was permissible under the fourth amendment; (2) the discovery of the evidence was "inadvertent;" and (3) the incriminating nature of the evidence found is "immediately apparent." (citation omitted).United States v. Scopo, 19 F.3d 777, 782 (2d Cir.); cert. denied, 513 U.S. 877 (1994).
The interior rooms of defendant's residence did not constitute either "illegal" or "evidentiary items" under the facts of this case. Nowhere is it alleged by the government that the defendant's residence at 4892 William Street, Lancaster, New York was being used for illegal purposes and therefore, even though the interior rooms of the residence were within the sight of the agents while they were lawfully on the premises pursuant to the search warrant of January 29, 2003, said interior rooms did not constitute "evidence of an incriminating nature" and could not be said to be "immediately apparent" as such to the agents when they took the photographs in the interior of the premises. As a result, the "plain view" principle does not apply to the facts of this case in the context of the photographs taken by the FBI agents of defendant's home on January 31, 2003 and cannot be used to justify such taking.
The principle espoused in United States v. Leon, 468 U.S. 897 (1984), is also not applicable to the legal issue raised by the defendant's motion to suppress the evidence seized from the residence of the defendant. Leon stands for the principle that searches and seizures based on a defective search warrant, i.e., one that was invalidly issued for lack of probable cause, are not subject to the exclusionary rule if the officers obtained the evidence in objective good faith reliance on a facially valid warrant. Id. at 920. In deciding Leon, the Supreme Court made it abundantly clear that its decision was not to be taken as an abandonment of the specific requirements of the Fourth Amendment wherein it stated:
In so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant. . . . The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. Id. at 923-924.
If the government's broad interpretation and application of Leon put before this Court were adopted, the Fourth Amendment's requirement of particularity would be totally eviscerated once a search warrant was obtained in good faith. Obviously, such result has not been authorized by Leon.
The defendant does not argue that this Court's search warrant of January 29, 2003 was invalid because it lacked probable cause. Rather, he argues that even though the warrant was valid, its validity was limited for a specific purpose, i.e., the seizing of "carpet fibers from a blue/green low pile carpet," and he is correct in that position. The subject matter of the search warrant was clearly and concisely spelled out.
The admonishment of the Second Circuit Court of Appeals in United States v. Bianco, 998 F.2d 1112, 1117 (2d Cir. 1993) is most appropriate and applicable to the issue raised herein wherein the Court declared:
Warrants must be read in a "commonsense" fashion, see United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 12 L.Ed.2d 684 (1965), and should not adhere to formal requirements of incorporation and attachment where as here, it is clear that the involved parties were aware of the scope of and limitations on the search.
. . . The affidavit was present at the time of the search, and spells out quite clearly the nature and purpose of the proposed search. It explains in detail the motivation behind the search and the nature of the documents sought. When the warrant and affidavit are read together, there is no ambiguity. Moreover, although the warrant may not have explicitly incorporated the affidavit, the presence and activity of agent Hutton, who had read the affidavit and who approved each seizure, satisfies us that the limitations included in the affidavit were observed.Bianco, 998 F.2d at 1117.
The affidavit of S.A. Jensen sworn to January 29, 2003, in support of the Application For A Search Warrant, "spells out quite clearly the nature and purpose of the proposed search," to wit, the "remov[al] of samples of any blue/green carpeting or any carpeting located throughout residence similar thereto for testing, and possible matching, at the FBI Laboratory." (03-M-33, Docket #1, ¶ 7). There was no ambiguity in the search warrant as to what the agents were authorized to search and seize. They were limited to the taking of carpet samples. They were not authorized to take photographs or any other items not constituting contraband or evidence of criminal activity in plain view. As a result, the photographs and such other evidence that may have been seized, other than the carpet fibers taken, constitute illegally-seized evidence and therefore should be suppressed. However, the actions of the agents in executing the search warrant on January 31, 2003 did not constitute a "flagrant disregard of the terms of the search warrant" as claimed by the defendant.
The rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially undistinguishable from a general search. (citations omitted).United States v. Shi Yan Liu, 239 F.3d 138, 141 (2d Cir. 2000).
General searches "have been variously described as `wide-ranging exploratory searches,' Maryland v. Garrison, 480 U.S. 79, 84 (1987) and `indiscriminate rummaging[s],' United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). Id. at 140.
In order to warrant application of a "blanket suppression," the defendant must satisfy a two part test, i.e., that (1) "the search conducted by government agents must actually resemble a general search" and (2) the search was not conducted in good faith.
The search of the defendant's residence lasted approximately forty-five (45) minutes according to the defendant. (Exhibit A — Affidavit of Defendant sworn to August 4, 2004, attached to Docket #29). There was not a "ransacking" of defendant's house over a lengthy period of time ( see United States v. Dzialak, 441 F.2d 212, 217 (2d Cir. 1971)) by the agents. The fact that they searched every room of the defendant's house was not a violation of the terms of the search warrant since the warrant authorized a search for "blue/green low pile carpet" which reasonably could have been found in any room within the defendant's house and the only way the agents could reasonably determine that was by searching every room, including the basement and garage, in the house. The taking of photographs in each room did not constitute a "ransacking" as that term is commonly understood. There was not a widespread seizure of items from the home. The only physical property removed from the premises pursuant to the search warrant were four (4) pieces of carpeting. ( See RETURN on the Search Warrant, 03-M-33, Docket #2). The defendant has failed to establish that a "general search" was conducted on January 31, 2003 and that the agents did not act in good faith in the execution of the search warrant. "Blanket suppression" of evidence is a "drastic remedy" and it is not justified if a defendant has not met the strict requirements for the application of such remedy. United States v. Matias, 836 F.2d 744, 747-748 (2d Cir. 1988). Therefore, it is hereby RECOMMENDED that defendant's request to suppress all of the evidence seized from his premises on January 31, 2003 be DENIED.
CONCLUSION
Based on the foregoing it is hereby RECOMMENDED that defendant's motions to suppress the gun and ammunition removed from defendant's luggage and "any and all evidence, including observations obtained as the direct or indirect result of the warrantless seizures, as well as all fruits derived therefrom," and the statements made by him to the law enforcement officers be DENIED; and it is further RECOMMENDED that defendant's motion to suppress as evidence items, other than carpet fibers, removed from his home at 4892 William Street, Lancaster, New York on January 31, 2003 be GRANTED but that his motion to suppress the carpet fibers obtained pursuant to the search warrant of January 29, 2003 as well as "blanket suppression" of evidence be DENIED.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
This Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Crim.P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.