United States v. Boone

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UNITED STATES OF AMERICA v. DERON BOONE, Defendant.

No. 23 Cr. 427 (PGG)

United States District Court, S.D. New York

February 1, 2024

MEMORANDUM OPINION & ORDER

Paul G. Gardephe, United States District Judge

Defendant Deron Boone is charged with felon-in-possession in violation of 18 U.S.C. § 922(g)(1). (Indictment (Dkt. No. 5)) He has moved to suppress evidence obtained by police officers during a February 14, 2023 search of his apartment in the Bronx. (Def. Br. (Dkt. No. 16) at 2)^[1] For the reasons stated below, Boone's motion will be denied.

BACKGROUND

I. ARREST AND INDICTMENT

Boone's arrest arises from a New York City Police Department (“NYPD”) investigation of a February 14, 2023 shooting incident at 1428 Webster Avenue, Apartment 19G Bronx, New York (the “Apartment”). (Dec. 12, 2023 Tr. (“Hrg. Tr.”) (Dkt. No. 34) at 7) At that time, Boone lived in the Apartment with his roommate Benjamin Fortune. (Id. at 123)

In the early morning hours of February 14, 2023, Fortune called 911 to report a shooting inside the Apartment. (Id. at 5; Fortune Affm. (Dkt. No. 16-4) ¶ 6) NYPD officers arrived a few minutes later to investigate. (Hrg. Tr. (Dkt No. 34) at 7) The officers entered the apartment, and then obtained Fortune's written consent to search the apartment. (Id. at 21-22)

During the search, officers observed a small black safe in Boone's bedroom. (Cmplt. (Dkt. No. 1) ¶ 4(g)) The officers asked Boone to open the safe, but he refused to do so. (Id.) The officers then obtained a search warrant for the safe. (Id. ¶ 4(h)) After obtaining the search warrant, officers opened the safe and found a 9 mm. pistol inside. (Id.. ¶¶ 4G), 5) The firearm was analyzed for DNA, and the New York City Medical Examiner's Office determined that Boone's DNA is on the firearm. (Id.. ¶ 6)

Magistrate Judge Figueredo issued a warrant for Boone's arrest on July 24, 2023 (Dkt. No. 2), and Boone was arrested on August 4, 2023. An August 17, 2023 indictment charges Boone with felon-in-possession in violation of 18 U.S.C § 922(g)(1). (Indictment (Dkt. No. 5) ¶ 1)

On October 2, 2023, Boone moved to suppress the firearm, arguing that the search of his bedroom at 1428 Webster Avenue where the safe was found violated his Fourth Amendment rights. (Def. Br. (Dkt. No. 16) at 2) Boone contends that Fortune was too intoxicated at the time to provide voluntary consent to a search of the Apartment. (Ml at 7-8) In the alternative, Boone argues that Fortune's consent was involuntary because a police officer told Fortune before he provided written consent to search that officers had already obtained a search warrant for the Apartment. (Id.- at 8) Finally, Boone argues that Fortune as Boone's adult roommate lacked the authority to consent to a search of Boone's bedroom. (Id; at 10)

II. BOONE'S AND FORTUNE'S AFFIRMATIONS

In an affirmation submitted in support of his motion to suppress, Boone provides the following account of the shooting incident that brought the NYPD officers to his apartment:

On February 13, 2023, I was sleeping in my room in the apartment when I awoke to the sound of banging. I opened my bedroom door and could see movement down the hall that leads to the front door of the apartment. The lights were off but I could see that someone was inside the apartment near the front door and the kitchen. I heard numerous voices from the outside of the apartment yelling to open the door or they will blow the door off the hinges.

I heard popping sounds coming from the outside of the apartment that were muffled by the door. Then I heard gunfire from the inside of the apartment by the kitchen. I heard the front door swing open and I saw some light. I made my way up to the front door and closed the door and locked it. Whoever was in the apartment had left.

Mr. Fortune called 911 and the police arrived.

(Boone Affm. (Dkt. No. 16-3) ¶¶ 4-6)

In his affirmation, Boone describes his living arrangements with Fortune at 1428 Webster Avenue as follows:

I had been living there since October 2022. I lived there with Benjamin Fortune. I am not the leaseholder and I have never seen the lease but believe the apartment is in Mr. Fortune's name. The apartment has three bedrooms. I occupied one bedroom, Mr. Fortune had another bedroom, and the third bedroom was vacant. I paid for most of the household expenses and bought the cleaning supplies and most of the food. Mr. Fortune doesn't work or have much money, so I gave him money on occasion.

My bedroom is my private space. Mr. Fortune does not have my permission to enter my bedroom. He does not keep any personal belongings in my bedroom and has no reason to access it. At the time, my bedroom door could be locked from the inside.

(Id. ¶¶ 2-3)

According to Boone - prior to signing the written consent to search form - Fortune “had been drinking and smoking marijuana and was very intoxicated.” (Id. ¶ 6)

Boone also states that - before Fortune signed the consent to search form - Boone heard a police officer say that the police had obtained a search warrant:

At some point, a detective asked me if they could search the apartment and I said no. The detective commented that he could get a search warrant and I told them to go ahead and do that. A short time later, I hear the apartment door open and a police officer yell, “we have the search warrant.” The police then asked Mr. Fortune to go with them to the kitchen. I do not know what happened in the kitchen. Mr. Fortune returned to the living room with a sheet of paper. I asked him what it was and he said it was his copy of the search warrant. I took the paper and saw that it was not a search warrant but an unsigned consent to search form.

(Id. ¶ 10)

After Fortune signed the consent to search form, officers began searching the Apartment. Boone says that he remained seated in the living room while the officers conducted the search. (Id. ¶ 11) After officers found the safe in Boone's bedroom, they brought it to the living room. Boone acknowledged that he owned the safe and that it came from his bedroom. (Id. ¶ 12)

According to Boone, he “never gave the police permission to search the apartment, [his] bedroom or the safe.” Indeed, he “specifically told [the officers] that [he] did not give consent.” (Id. ¶ 14)

Fortune also submitted an affirmation in support of Boone's suppression motion. (Fortune Affm. (Dkt. No. 16-4)). In his affirmation, Fortune confirms that he “called 911” in connection with the shooting incident. (Id. ¶ 6) Fortune further states that he and Boone were “roommates” at the time, that “[Boone's] bedroom is his own private space,” and that Fortune does “not have [Boone's] permission to go into his bedroom.” (Id. ¶¶ 3, 5)

Fortune also states that he was intoxicated during his interactions with police, and does not recall providing consent to search:

[I don't have a] great memory of my interaction with the police because I had been drinking alcohol and smoking marijuana all day and was very intoxicated. In fact, I had blacked out in my bedroom before the shooting started. I told the police that I was drinking and that I didn't remember a lot of what happened. I do not recall giving the police permission to search the apartment.

(Id. ¶¶ 7-9)

III. EVIDENCE AT THE SUPPRESSION HEARING

On December 12, 2023, this Court conducted an evidentiary hearing concerning Boone's suppression motion. (Dkt. No. 34) The Government called NYPD Officers Dwight Wanzer and Alonso Mora - who responded to Fortune's 911 call (Hrg. Tr. (Dkt. No. 34) at 2, 72) - while the defense called Defendant Boone. (Id. at 123) A number of exhibits were received during the hearing, including footage recorded on body cameras worn by NYPD officers.

A. Initial Questioning and Fortune's Consent to Search

Officer Wanzer has been a police officer for seven years. At the time of this incident, he was assigned to PSA 7, a housing police precinct in the South Bronx. (IT at 3-4)

At about 12:20 a.m. on February 14, 2023, Officer Wanzer and his partner, Officer Mora, received a report of shots fired at Apartment 19G, 1428 Webster Avenue, in the Butler Houses. The officers arrived at the Apartment about five minutes later. (IT at 5, 7) As Officer Wanzer approached the Apartment, he observed shell casings on the floor outside the Apartment. (Id. at 10)

Officer Wanzer knocked on the front door of the Apartment, and Fortune answered the knock. (Id. at 12) Officer Wanzer explained that he and Officer Mora were there because of a report of shots fired at the Apartment. (GX 2, at 0:04-0:10) Fortune confirmed that a shooting incident had taken place at the Apartment's doorway. (Id. at 0:08-0:20) While the officers were speaking with Fortune, Boone came to the door. (Hrg. Tr. (Dkt. No. 34) at 12; GX 2, at 0:08-0:20)

Body camera footage shows Fortune standing in the doorway, conversing with Officer Wanzer. (GX 2) Wanzer asks Fortune, “are you the one that they were shooting at?” and Fortune responds “yeah.” (Id. at 0:03-0:07) Fortune reports that the shooting took place “at the door,” but states that he does not know the identity of the shooters. (Id. at 0:13-0:18) Fortune also tells Officer Wanzer that he had been drinking that night, making a drinking motion with his hand (Hrg. Tr. (Dkt. No. 34) at 12; GX 2, at 0:10-0:13), and Officer Mora could smell alcohol on Fortune's breath. (Hrg. Tr. (Dkt. No. 34) at 96) As shown on the body camera footage, however, Fortune's speech is coherent, and he provides clear answers to Officer Wanzer's questions. (GX 2, at 0:04-0:20)^[2]

Officer Wanzer asks Fortune for permission to enter the Apartment and Fortune agrees. (GX 3, at 0:02-0:06) As Officer Wanzer enters the apartment, he notices shell casings on the floor. He also notices bullet holes in the...