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United States v. Catalano


January 19, 1999


The opinion of the court was delivered by: Simandle, District Judge




Defendant Chris Catalano has moved to suppress all items discovered and seized during searches of his residence on April 21, 1998, located at 155 Kings Highway, Orangeburg, New York. The principal issue to be decided is whether Mr. Catalano's Fourth Amendment rights were violated by the warrantless search of his home at the time of his arrest, and, if so, whether evidence illegally observed during the time of his arrest tainted a search warrant application which was granted several hours later.

On November 24, 1998, the court convened an evidentiary hearing upon this suppression motion. The government presented two witnesses, namely, Special Agent Kevin Rourke of the Criminal Investigation Division of the Internal Revenue Service and Detective Thomas J. Sullivan of the Rockland County (N.Y.) District Attorney's Narcotics Task Force. Defendant Catalano also testified, as did Jason Castro, a house guest at Catalano's home on the day of the search. After consideration of all evidence and arguments of counsel, this court makes the following findings.


A warrant for the arrest of Chris Catalano was issued by U.S. Magistrate Judge Stanley R. Chesler in Newark, pursuant to a criminal complaint charging him with conspiracy to distribute and to possess with intent to distribute more than 1,000 kilograms of marijuana contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846.

At 6:05 A.M. on April 21, 1998, 12 agents or officers of the FBI, IRS, and local county prosecutor's office went to Catalano's home to arrest him on this warrant. According to Special Agent Rourke, about seven agents were at the front door and the others were elsewhere on the property. The agents knocked on the door, which was answered a few minutes later by Jason Castro, whom the knocking had awoken from sleep on a couch in the living room.

The agents asked for Catalano, and Castro permitted them to enter. Then Castro directed Rourke and other agents to the bedroom on the second floor where Catalano was sleeping. Rourke was one of the agents designated to make a protective sweep of the premises. While two officers announced to Catalano that he as under arrest and had to get dressed, Rourke observed one of the two closets of Catalano's bedroom.

Although Rourke did not recall that there was a door on the closet, a photo (Ex. G-1) shows part of the open closet door with a lock on it. The photo was taken later that morning by Detective Sullivan. Searching for people or weapons in the area adjacent to the space where other officers were arresting Catalano, Special Agent Rourke opened the door and entered the large, unfinished walk-in closet, the size of which was approximately 6 feet by 8 feet. Rourke saw a large plastic bucket, about 2 feet by 3 feet (Ex. G-4) in the walk-in closet, sitting near a small table in the closet (as shown in photos, Exs. G-1 and G-2), and a second large plastic bucket container. The closet also contained an electronic scale (Ex. G-6) and packaging materials like bubble wrap and clear plastic bags. (Ex. G-5). The large container contained a small quantity of marijuana. All these items were in plain view in the closet; indeed, they were the only items in the otherwise empty unfinished closet.

Rourke's protective sweep, including the closet search, occurred during, and within moments after, the arrest. He stayed on the second floor and did a protective sweep of other second floor areas such as the living room and bathroom. Rourke's testimony that he entered the walk-in closet to be sure that no other individuals were present is highly credible.

Catalano testified at the hearing that Rourke broke into the closet, which Catalano said he had locked. While Rourke does not remember that the closet had a door, I find Rourke's testimony to be credible that he entered the closet without any resistance from a door. Most likely, the door was open or ajar. I do not credit Catalano's testimony that Rourke broke the door molding where the lock held it fast, for several reasons. First, in his affidavit in support of this suppression motion, Catalano never mentioned that an agent broke into his closet when he logically would have done so; he gave numerous details about the location, search, and contents of the bedroom closets but never alleged that an agent had broken in. Second, Catalano submitted a diagram of his home attached to his affidavit that is a grave distortion of the actual layout. When confronted with this on cross-examination, he claimed he did not prepare the diagram and that he had brought the discrepancies to his attorney's attention. Nonetheless, defendant had used this erroneous diagram of the floor plan in his direct testimony without correction. Third, while he asserted on cross-examination that he prepared the declaration himself, his description in ¶ 2 of the Declaration (Ex. G-8) is at variance from his hearing testimony. While ¶ 2 says that the first floor of his two-story home is comprised of a kitchen and combined dining area without walls and that the second floor is several bedrooms and bathrooms, which was consistent with the diagram of the floor plan attached thereto, his hearing testimony indicated that the kitchen, living room, three bedrooms and two baths are all in the upper floor and that the lower floor consists of a gym, garage, utility room, and three more bedrooms. Assuming that this testimony is accurate, it fails to explain the marked discrepancy with the description Catalano himself wrote in his declaration that was submitted for this motion. Fourth, aside from these discrepancies, Catalano's demeanor on the witness stand did not impress as one who was candid and truthful regarding his recollection of facts about the search.

By approximately 7:00 A.M., Catalano was dressed and was being escorted from his house for processing, while other agents applied for a search warrant before the Rockland County Justice Court in Spring Valley. Investigator Thomas Crowe was the affiant on the warrant. The search warrant application (Ex. G-7) spelled out the basis for probable cause for obtaining the search warrant. Investigator Crowe stated he had accompanied the IRS/FBI/Rockland County officers earlier that morning to execute the arrest warrant at Catalano's home at 155 Kings Highway. (Id. ¶ 5) Crowe entered the residence to arrest Catalano and found a small clear zip lock sandwich bag containing a green leafy substance, located in pain view on a coffee table, which field tested positive for marijuana. (Id.) Another zip lock bag with marijuana was found in a bathroom, according to Crowe. (Id.) He recited the facts of the discovery of the digital scale in the walk in closet (described as a "small room off of a large bedroom on the second floor," id.), the large open plastic container with a small amount of marijuana, the knife and a large quantity of "small plastic bags commonly used in the packaging for sale and distribution of marijuana." Id. The search warrant affidavit also confirmed that Investigator Sullivan had field tested the substance in the large storage container and found it to be marijuana. (Id.) This was confirmed by Investigator Sullivan's testimony at the hearing.

Meanwhile, as Investigator Crowe sought the search warrant, Special Agent Rourke remained in the house with Castro. Detective Sullivan came to the premises when called, arriving about 8:30 A.M. Investigator Crowe had gone by them, and Mr. Catalano had been taken away. Sullivan field tested the green vegetation about 8:30 A.M. and did indeed find it was positive for marijuana, which Sullivan told Crowe by telephone. Crowe incorporated this into the search warrant application.

The search warrant was granted, and permission was granted to search the premises for marijuana as well as currency and financial records representing proceeds of marijuana trafficking, documents related to or recording marijuana transactions, financial records, photographs, and evidence of ownership or occupancy of the premises such as telephone and utility bills, as specified in the affidavit. (Ex. G-7.) The search warrant was issued at about 11:00 A.M., and thereafter Detective Sullivan and the other agents then conducted a full search, and Sullivan also took the various photos in evidence.

There was a dispute as to whether agents improperly examined various records and bills belonging to Catalano which he kept in piles on his dining table before obtaining the search warrant. Catalano said he observed agents looking through papers between 7:00 A.M. and 8:00 A.M. In fact, Catalano had been taken from the house at about 7:00 A.M., as he recalled when confronted with his own prior affidavit. Castro has given similar testimony, but contradicts Catalano, since Castro recalls that Catalano was already gone before the agents examined the documents on the table, so Catalano could not have seen what he claims to have seen. I do not find Catalano's testimony about agents looking through papers to be credible, not do I find Castro to be a reliable witness on this point due to his inconsistencies generally, as well as his demeanor on the witness stand. Castro did confirm, however, that he witnessed the agents discover marijuana in plain view on a coffee table in the living room.

Crowe's search warrant affidavit (Ex. G-7) clearly derived probable cause to search the premises for evidence of the crime of distribution of marijuana from the inclusion of items found in plain view in the bedroom closet (the marijuana packaging paraphernalia, scales, and residue), the baggie of marijuana on the bathroom counter, and the baggie of marijuana on the living room coffee table, coupled with the arrest warrant issued from a Magistrate Judge of this court who found probable cause to believe that Mr. Catalano was a member of a conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, which was also referenced in the search warrant affidavit. The application made no reference to anything observed in Catalano's documents on the dining room table. Even if one were to believe Catalano and Castro's contradictory testimony on the point, which I do not, nothing seen in those documents tainted the search warrant application or the resulting warrant. Further, any reasonable law enforcement agent would have sought the search warrant, as Investigator Crowe did, based upon what had already been seen in plain view, as discussed above.


The agents executing the warrant for the arrest of Mr. Catalano had permission to enter the premises from Mr. Castro, who also resided there from time to time, and defendant does not claim otherwise. In the execution of a lawful warrant for arrest, the law enforcement officers may conduct a limited, warrantless search incident to the arrest. In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court stated:

We hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause, or reasonable suspicion, look in the closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Buie, 494 U.S. at 334.

This protective sweep is designed to protect the officers and others from potential harm, because it is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police offers or others." Id. at 327. Beyond the immediate area, the protective sweep is permitted if based on "`articulable facts' which would warrant a reasonably prudent officer to believe that there are individuals who pose a danger in other areas of the house." Sharrar v. Felsing, 128 F.3d 810, 822-823 (3d Cir. 1997), citing Buie, 494 U.S. at 334. Such a sweep search incident to arrest is an extension beyond the search of the person and area in his immediate control as recognized in cases such as Chimel v. California, 395 U.S. 752 (1969) and United States v. Chadwick, 433 U.S. 1 (1977), which in any event recognized that such a limited search is not unreasonable whether or not the officer had an articulable suspicion that the arrestee might have a weapon upon his person or immediately available. This is because nothing in the Fourth Amendment requires an arresting officer to refrain from taking reasonable steps necessary to assure the safety of the officer and others in the area.

The sweep search in Catalano's residence, incident to his arrest, easily falls within the sweep-search doctrine. The agents were unfamiliar with the layout of Catalano's residence, and did not know who they might encounter. The arrest began, in fact, with the encounter of the previously unknown male, Mr. Castro. While they knew Catalano lived there, and while they believed he was present because they observed his Jaguar in the driveway at the time, they knew little or nothing else about who or what they might encounter inside his home. In this context of an at-home arrest, the Supreme Court recognized the strong interest and reasonableness of securing the premises and inspecting areas in which an unknown assailant could be lurking, stating:

[A]n in-home arrest puts the officer at the disadvantage of being on his adversary's `turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in an open, more familiar surrounding. Buie, 494 U.S. at 333.

The actions of Special Agent Rourke in entering the closet adjacent to Catalano's bedroom as Catalano was being arrested by two other agents in the bed was entirely reasonable, and the marijuana packaging paraphernalia he found therein was in plain view.

The sweep search of other rooms of the house was justified by the articulable facts that others may be present who could cause harm. The arresting officers had already encountered one unknown male, Mr. Castro, and the house had numerous rooms where others could be located. The coffee table of the living room (where one bag of marijuana was seen) and the counter top of the bathroom (where the other baggie of marijuana was seen) were each areas where the officers had a right to be present during the sweep search to assure safety and secure the premises. In other words, the presence of those officers in those areas did not offend the Fourth Amendment. Accordingly, the items of contraband seen by the officers in plain view could be seized as evidence without a warrant. Texas v. Brown, 460 U.S. 730 (1983); Coolidge v. New Hampshire, 403 U.S. 443 (1971). I find the discovery of these items was inadvertent, in the sense that the search for such items was not the motivation for the officers' sweep search incident to arrest, and that the incriminating nature of this evidence was immediately apparent to the officers. The field tests demonstrating that the substance was marijuana merely confirmed what was apparent when the officers first discovered the paraphernalia and baggies, and no warrant was required to perform such a field test. These items were thus properly included in the Crowe affidavit of probable cause for the search warrant which was prepared and presented to the local justice within several hours after the arrest.

Since these items were lawfully discovered upon Catalano's premises, as discussed above, there is no "taint" of the resulting search warrant or search. Regarding the records or papers in the dining room, I have already rejected the allegations of Catalano and Castro that agents looked through these piles before the search warrant was issued. But even if agents improperly read some document o documents as alleged prior to the warrant, the agents' discovery of evidence on the table and elsewhere under the search warrant was inevitable, and such evidence would not be suppressed. Since the search warrant was itself untainted by any reference to these papers or documents, that warrant would create an independent source for their seizure consistent with the Fourth Amendment. Murray v. United States, 487 U.S. 533, 537 (1988). The independent source doctrine would apply to such papers if they were "evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality." Id.

For these reasons, defendant's motion to suppress all items discovered and seized during searches of his residence on April 21, 1998, will be denied.

The accompanying Order is entered.

JEROME B. SIMANDLE U. S. District Judge


This matter having come before the court upon motion by defendant, Chris Catalano, by his attorney, Louis M. Freeman, Esquire, to suppress all items discovered and seized during searches of his home on April 21, 1998; and Charles B. McKenna, Assistant U.S. Attorney, appearing on behalf of the United States in opposition; and

The court having conducted a suppression hearing on November 24, 1998, and having considered the testimony and other evidence and the arguments of counsel, and finding, for reasons expressed in the Opinion of today's date, that the motion should be denied;

IT IS this day of January, 1999, hereby

ORDERED AND ADJUDGED that defendant's motion to suppress shall be, and it hereby is, DENIED.

JEROME B. SIMANDLE U.S. District Judge


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