United States v. Murray

352 F.Supp.3d 327

UNITED STATES of America

v.Melahn MURRAY, Defendant.

18 Cr. 606 (JGK)

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

Signed January 18, 2019

Elinor Lynn Tarlow, United States Attorney's Office, SDNY, New York, NY, for United States of America.

Philip L Weinstein, Federal Defenders of New York Inc. (NYC), New York, NY, for Defendant

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The defendant, Melahn Murray, was indicted on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 2. The defendant has moved to suppress (1) two firearms seized when New York City Police Department ("NYPD") officers searched the residence of Shanequa Fluellen, the mother of the defendant's son; and (2) postarrest statements the defendant made after the search claiming possession of the firearms. The defendant contends that the officers' search violated his Fourth Amendment rights and that the postarrest statements he made were tainted by the officers' illegal search.

On November 30, 2018, the Court held an evidentiary hearing in connection with the motion to suppress. The Government presented the testimony of three NYPD officers: Sergeant Frank Burns, Detective Kenneth Faulkner, and Detective Richard Pengel. Defense counsel called Shanequa Fluellen as a witness. Having reviewed the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law.

I.

Fluellen had a protective order against the defendant. The temporary order of protection, an extension of a prior order, required the defendant from July 17, 2018, until August 7, 2018, among other things, to stay away from Fluellen and her apartment. GX F. Fluellen testified that, on July 22, 2018, she was in need of someone to watch her children, including the defendant's son. Tr. 155-57. Because Fluellen's typical babysitter – her cousin – told Fluellen at the last minute that she could not babysit the children, Fluellen contacted the defendant asking if he could watch them. Tr. 156-57. Fluellen stated that she initially had trouble reaching the defendant; she testified that the defendant did not want to communicate with her or go to her apartment because of the order of protection against him. Tr. 157. According to Fluellen, the defendant eventually arrived at her apartment around 11:30pm that night. Tr. 156-58. He stayed overnight at her apartment in a room separate from Fluellen. Tr. 158. The search at issue occurred the following morning.

A.

The three NYPD officers that the Government called as witnesses testified credibly, and for the most part consistently, about material facts related to the search. On or about July 19, 2018, an individual informed law enforcement officials that the defendant threatened her and her then-boyfriend by messaging them a picture of two firearms with a note reading, "Hi Wally Pull Up." Tr. 47-48, 105; GX A. That individual also informed officials that the defendant was staying at Fluellen's apartment ("the apartment") and that the defendant stored at least one of the firearms pictured in the message in a broken microwave in the apartment. Tr. 46-49, 62, 105, 113-14.

On July 23, 2018, around 6:45am or 7:00am, Detective Faulkner and Detective Pengel arrived at the apartment. Tr. 49, 106. They knocked on the door and heard movement inside the apartment, including what sounded like doors opening and closing. Tr. 54, 106-07. About five minutes later, Fluellen answered the door. Tr. 54, 107. Detective Faulkner told Fluellen that he needed to speak with the defendant and asked permission to enter her apartment. Tr. 54, 126-27. Fluellen told the officers that the defendant was not in her apartment because she had a protective order against him and stated that she needed to get dressed. Tr. 54-55, 107; GXs F, G. Fluellen then went to get dressed, and the officers waited in the hallway outside the apartment. Tr. 55-56, 83, 107-08.¹ When Fluellen returned to the door, Detective Faulkner told her that he and Detective Pengel were at the apartment to get the defendant in connection with an open complaint against the defendant and asked Fluellen's permission to enter. Tr. 56, 83, 108, 125-26. Detective Faulkner also mentioned that he had an investigation card on the defendant. Tr. 126. Fluellen gave verbal permission to the officers to enter the apartment. Tr. 13-14, 57, 85, 94 109.

Upon entering the apartment, Detective Faulkner found the defendant hiding in a closet. Tr. 28, 58-59, 86-87. Detective Faulkner ordered the defendant out of the closet and placed the defendant in handcuffs. Tr. 58-59. Fluellen told the officers that they could search the apartment, including the defendant's possessions in the apartment, and she gave the officers a bin and bags that she said belonged to the defendant. Tr. 61, 90, 92, 111-13, 130. Fluellen also told the officers, contrary to her testimony at the hearing, that the defendant had contacted her a few days before and asked if he could stay at her apartment because he had been evicted from his apartment. Tr. 60-61. After this, the officers searched a microwave in the kitchen and did not find a firearm. Tr. 61-62, 90, 113. Fluellen stated that she had seen the defendant with a firearm before, but not on that day. Tr. 114. According to Detective Pengel, Detective Faulkner told Fluellen that the officers could obtain a search warrant for anything found in the apartment and that she might be held responsible for what was found. Tr. 115. Detective Faulkner did not recall whether he said this. Tr. 63. Detective Faulkner testified that he might have also mentioned to Fluellen that the Administration for Child Services gets involved in cases where a firearm is found in an apartment with children present, but he could not recall definitively whether he said this. Tr. 63. Rather than search the apartment further, the officers called their supervisor, Sergeant Burns, and asked him to bring a consent-to-search form to the apartment. Tr. 63.

Sergeant Burns arrived with the form in about twenty to thirty minutes. Tr. 23-24, 64, 116. He called two additional officers to the scene. Tr. 26-27, 65, 138. One of the officers advised Fluellen of her right to refuse signing the consent-to-search form. Tr. 66-67, 118, 141-42. The form also included a section describing her right to refuse to consent to the search. See GX B. Fluellen appeared to read and understand the form, and then signed it. Tr. 14, 17-19, 30-32, 42, 67, 117-18, 152. She was cooperative at the time she signed the form and did not hesitate or refuse to provide her signature at any point. Tr. 15, 19, 43, 66-67, 117-18, 141-42, 152. Fluellen also wrote a statement on the back of the consent form stating, "I Shanequa Fluellen gave NYPD permission [to] look throug[h] my home .... [N]othing in the house belongs to me that was found. I allowed [the defendant] to come stay because he got kicked out and when he came he had one bin an[d] 2 bags." Tr. 19-20, 94-95, 120; GX D. This statement was consistent with what Fluellen had told the officers.

After Fluellen signed the form, Detective Pengel asked her where any firearms might be located. Tr. 118-19. Fluellen said the defendant might have put a firearm in a bedroom closet. Tr. 118-19. Detective Pengel then searched the closet. Tr. 119. Meanwhile, Detective Faulkner searched the kitchen. Tr. 67, 120. Faulkner found two loaded firearms in a kitchen cabinet about seven feet from the floor. Tr. 67-68. The officers believed that these firearms were the same ones pictured in the message the defendant had sent to the individual who initially contacted law enforcement about the defendant. Tr. 67-69; GX C.Detectives Pengel and Faulkner then took the defendant to the precinct. Tr. 69, 96. Detective Faulkner and at least one other officer was present for the defendant's interview at the precinct. Tr. 69. The defendant was provided with water and a cigarette and was not handcuffed during his interview. Tr. 71. An officer read the defendant his Miranda rights, and the defendant signed a form waiving those rights. Tr. 69-71, 96-98; GX E. During the interview the defendant admitted that the firearms were his and he stated that he possessed them for his protection. Tr. 71.

B.

Fluellen's recounting of the search differed markedly from that of the officers. She testified that, after the officers initially knocked on her door and she told them she had to get dressed, one of the officers put his foot in the doorway to prevent the door from closing when she retreated into the apartment to get dressed. Tr. 161. According to Fluellen, the officers told her they had a "body warrant" for the defendant and then entered the apartment without her permission. Tr. 161. But the officers credibly denied even knowing what a "body warrant" is, much less telling her that they had such a document. Tr. 56, 108. Fluellen also testified that the officers told her that they could take and charge her children and threatened to "tear the house up" if she did not consent to a search. Tr. 166, 170. As to the written consent form, Fluellen testified that she never read the form and that the statement she wrote on the back of the form was dictated by the officers, who told her to write it. Tr. 172-73.

Fluellen's testimony about the search of the apartment cannot be relied upon because it is not credible. Fluellen admits that she lied to Detective Faulkner and Detective Pengel by telling them that the defendant was not in the apartment. Tr. 186. She testified that she lied "[b]ecause she had an order of protection against [the defendant], and he was not supposed to be in the home." Tr. 186. Fluellen also testified that the statement she wrote on the back of the consent form was false. She stated that the defendant did not get "kicked out" of anywhere to her knowledge and that he did not arrive at the apartment with one bin and two bags – the defendant...