U.S. v. Couch

Page 50

378 F.Supp.2d 50

UNITED STATES, v. Jeremy COUCH, Defendant.

No. 04-CR-570 (LEK).

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

July 11, 2005.

COPYRIGHT MATERIAL OMITTED

Gene V. Primomo, Office of the Federal Public Defender — Albany Office, Albany, NY, for Defendant.

Carlos A. Moreno, Office of United States Attorney, Albany, NY, for Plaintiff.

MEMORANDUM-DECISION AND ORDER¹

KAHN, District Judge.

Before this Court is a motion by Jeremy Couch ("Defendant") requesting suppression of the physical evidence and statements taken from him on May 14, 2004 as evidence obtained in violation of the Fourth Amendment. For the following reasons, the motion is granted.

I. BACKGROUND

The Schenectady Municipal Housing Association ("SMHA") is a federally subsidized housing authority governed by the United States Department of Housing and Urban Development ("HUD") and subject to Congressional acts, applicable statutes, executive orders, HUD rules and regulations, including Title 24 of the Code of Federal Regulations. Transcript of Evidentiary Hearing held on April 6, 2005 ("Tr.") at 8, 12, 57. Defendant's sister, Kenya Rowe ("Rowe"), leased an apartment, 80 Steinmetz Homes, from SMHA beginning on October 17, 2002. Gov't Ex. 1.² Article 18 of the lease allows the landlord to "enter a unit, during reasonable hours, for routine inspections, repairs or maintenance, making improvements, or to show the apartment for releasing." Id. Pursuant to Article 18 of the lease, written notice of the entry must be given at least two days in advance. Id.

On May 10, 2004, SHMA Tenant Investigator Denise Brucker ("Brucker") received numerous complaints concerning noise and individuals not on the lease entering Rowe's apartment. Tr. at 98, 100. An "Incident Report" was prepared indicating in the narrative section that: "lot of noise, people in/out. Several comp. [complaints] about possible drug trafficking ... Brother may be living there — recently released from prison." Gov't Ex. 2. As a result, Brucker believed that possible lease violations were occurring, and on May 10, 2004, pursuant to Rowe's lease agreement and 24 C.F.R. § 966.4(j), sent a "Two (2) Day Entry Notice" to Rowe at 80 Steinmetz Homes by first class mail, informing her that a lease inspection was going to occur. Tr. at 77-78, 95, 101; Gov't Ex. 3.

On the morning of May 14, 2004, the lease inspection of 80 Steinmetz Homes took place. No search warrant was obtained prior to entry. Tr. at 126. Brucker was accompanied by Arthur Zampella ("Zampella"), the SHMA Security Coordinator and a Sergeant with the City of Schenectady Police Department, William Gallop ("Gallop"), a SHMA representative and an officer with the Glenville Police Department, and a Schenectady County Sheriff's Department canine Zimmer, handled by Deputy David Leffingwell ("Leffingwell"). Tr. at 102-03, 138, 178-79. The group entered through an unlocked back door after knocking and announcing their presence, and observed Defendant sleeping on the coach in the living room. Tr. at 105, 139, 178. The upstairs portion of the apartment was inspected by Gallop, Leffingwell, and canine Zimmer for lease violations. Tr. at 108, 140, 178. Defendant was then asked by Zampella to move to the kitchen so that the couch and living room area could be inspected, at which point Gallop observed that Defendant had a handgun in his waistband. Tr. at 108, 141, 181-82. In response to his observation, Gallop yelled "gun", the officers restrained Defendent, took possession of the handgun, and placed Defendant in handcuffs. Tr. at 108-09, 142, 182. Zampella then contacted the City of Schenectady Police Department to arrest and transport Defendant. Tr. at 143, 182. After the handgun was seized from him, Defendant stated that the handgun was not his and that he had found it the night before. Tr. at 109, 144; Def. Ex. 4. Defendant was subsequently indicted on charges under 18 U.S.C. §§ 922(g) and 924(a)(2) for possession of a firearm after having been previously convicted of a felony. Dkt. No. 11.

On January 7, 2005, Defendant filed this motion requesting suppression of the physical evidence and statements taken from him on May 14, 2004 as evidence obtained in violation of the Fourth Amendment. Dkt. No. 14. A suppression hearing was held on April 6, 2005. Dkt. No. 27.

II. DISCUSSION

Defendant asserts that the physical evidence should be suppressed because Zampella, Gallop, and Leffingwell, as on or off-duty law enforcement personnel, were investigating possible criminal activity, and therefore were government actors required to act in accordance with the Fourth Amendment. Def. Memo. (Dkt. No. 28) at 3. Alternatively, Defendant contends that even if Zampella and Gallop were functioning as private employees for SMHA, their relationship with the Schenectady County Sheriff's Department and the inclusion of Leffingwell made them agents or instruments of the Sheriff's Department. Id. at 5. The Defendant also states that oral statements he made to Zampella, Gallop, and Leffingwell concerning ownership of the handgun should be suppressed as fruit of an unconstitutional search.

The Government asserts that the inspection of Rowe's residence was performed in conformity with Rowe's lease agreement and the Code of Federal Regulations and that Zampella, Gallop, and Leffingwell were not acting in their official capacities as law enforcement officers, but rather as SMHA representatives at the time of the lease inspection. Gov't Memo. (Dkt. No. 29) at 12.

A. Permissibility of Lease Inspection

The goal of SMHA is to provide safe, sanitary housing to low-income individuals, elderly families, and families of individuals with disabilities. Tr. at 8-9. To ensure such safe and sanitary housing, the tenants' standard lease agreement contains prohibitions on certain objectionable activities and remedies to address suspected lease violations. In this particular circumstance, Article 15 of Rowe's lease agreement outlined various tenant obligations, including prohibitions on providing accommodations to boarders or lodgers, engaging in conduct that disturbs neighbors, engaging in illegal activity or activity that impairs the physical or social environment of the neighborhood, and engaging in unlawful or disorderly conduct that is a hazard to safety. Gov't Ex. 1. Article 18 of Rowe's lease creates a right for SMHA to inspect a tenant's apartment by providing that:

1. The Authority's representative shall be permitted to enter a unit, during reasonable hours, for routine inspections, repairs or maintenance, making improvements, or to show the apartment for releasing.

2. Written notice, specifying reasons for entry and delivered to the unit at least 2 days in advance, constitutes "reasonable notification."

Gov't Ex. 1. This lease provision tracks the provisions found in Title 24 of the Code of Federal Regulations § 966.4(j)(1).³

On May 10, 2004, Brucker, a SHMA tenant investigator, after receiving various complaints concerning Rowe's apartment including noise, persons not on the lease being present, and possible drug activity, sent Rowe a Two-Day Entry Notice stating that an inspection for possible lease violations would occur. Tr. at 77-78, 95, 101; Gov't Ex. 3. The Court finds that this notice complied with Article 18 of Rowe's lease agreement and 24 C.F.R. § 966.4(j)(1). As a result, SMHA did have the authority to enter Rowe's apartment to inspect for lease violations on May 14, 2004.

B. Capacity of Off-Duty Police Officers To Perform Lease Inspection

Regardless of SMHA's authority to perform a lease inspection, it must also be determined whether Zampella, Gallop, and Leffingwell were required to comply with the constitutional requirements of the Fourth Amendment, such that the failure to comply with those requirements tainted the evidence that was obtained and requires its exclusion.

The first clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. amend. IV. Implicit in that guarantee is the requirement that an agent of the government perform those searches and seizures. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The Supreme Court has held that the Fourth Amendment is "wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.'" United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (citing Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)); see also United States v. Bennett, 709 F.2d 803, 805 (2d Cir.1983).

The party objecting to the search has the burden to establish by a preponderance of the evidence that the government involvement was significant enough to change the character of the search. See United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987); United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir.1984). Defendant must therefore demonstrate either that Zampella, Gallop, or Leffingwell were in fact acting in their capacity as police officers or were acting as agents or instruments of the Government at the time of the lease inspection, and were therefore subject to Fourth Amendment limitations.

1. Acting As Police Officers

To determine whether an off-duty police officer is acting in his or her official capacity or acting as a private citizen, the Court must apply a twofold test. "First, we must examine the capacity in which the off-duty police officer was functioning when the officer initially confronted the situation and second, we must examine the manner in which he or she conducted himself or herself from that point forward." State v. Andrews, 33 Conn.App. 590, 637 A.2d 787, 790-91 (1994); see also In re Albert S., 106...