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, ...