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U.S. v. BOOKER

September 9, 2005.

UNITED STATES OF AMERICA,
v.
CHRISTOPHER BOOKER, Defendant.



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

OPINION

On October 29, 2004, while cleaning Room 309 at the Best Western Envoy Hotel in Atlantic City, New Jersey, the hotel maid discovered two guns in the bathroom trash can. She immediately notified the hotel manager who, in turn, notified the Atlantic City Police Department. The room was registered to Defendant Christopher Booker. Without securing a warrant, several officers were admitted by the hotel manager and entered the room, which was unoccupied at the time, and seized the guns. The manager then locked out the room by changing the key card and the officers set up surveillance for Booker throughout the hotel. Several hours later, Defendant and a female companion arrived outside the door of Room 309, at which time they were both arrested. The incident search of Booker's jacket revealed roughly 149 grams of crack cocaine.

  Defendant was charged with gun possession and other drug-related offenses.*fn1 Defendant has moved to suppress the guns, the crack cocaine, and certain statements made during and following the arrest. The Court held a suppression hearing and heard extensive oral argument by counsel. For the following reasons, Defendant's motion to suppress will be denied in its entirety.*fn2 I. BACKGROUND

  Two days before the events in question in this suppression motion, on October 27, 2004, Officer Paul Petinga of the Atlantic City Police Department, while on routine patrol, confronted Defendant Booker outside of the Best Western Envoy Hotel ("Hotel"), located at St. James and Pacific Avenues in Atlantic City, New Jersey. (Petinga Tr. 8:25-9:16.) Officer Petinga had noticed Booker loitering in front of the Hotel, an area known by Petinga to be a "high drug crime area," at approximately 3:30 a.m. (Id. at 8:1-24.) At approximately 6:00 a.m., having driven past Booker outside the Hotel between four and five times, Officer Petinga conducted a Terry stop. After Petinga asked Booker several questions and advised Booker that the neighborhood was a high crime area, Defendant informed the officer that he was in town for a court appearance that morning in New Jersey Superior Court, Mays Landing. (Id. at 8:1-11.) At that point, Booker provided Petinga with identification, (Govt. Ex. 13,) and informed him that he was staying at the Hotel. (Id. at 8:7-16.) Petinga ran a check of Booker's identification, which did not reveal any outstanding warrants for Mr. Booker's arrest. (Id. 16:9-17:7.) The following day, however, another officer telephoned Petinga, who was off-duty at the time, and informed him that there was, in fact, an outstanding NCIC warrant for Booker's arrest. (Id. 42:18-43:13.) On October 29, 2004, in the early afternoon, Officer Petinga received a call while off-duty from Sunil Pillay, the manager of the Hotel and a longtime friend, informing him that the Hotel maid had just found two guns in a trash can in one of the Hotel's rooms.*fn3 (Id. at 11:17-12:2; 14:23-25.) Petinga immediately called Officer Michael Gavin, who was on-duty at the time, and advised him of what the Hotel staff had discovered. Petinga and Gavin arrived on the scene within several minutes. With the assistance of Mr. Pillay, the officers then confirmed the identity of the occupant of Room 309 by checking the Hotel's registry, which included a copy of Mr. Booker's Pennsylvania identification card, the same one Booker had produced to Officer Petinga two days prior. (Id. at 15:7-24.)

  Meanwhile, Officers Allen Hines and Sabina Walsh as well as Sergeant Mazur had arrived at the Hotel. (Id. at 17:12-14.) Mr. Pillay then escorted the five officers to Room 309. (Id.) According to Petinga's testimony, the officers were concerned for several reasons that there might be someone in the room. First, there were three separate entrances by which one could gain access to the hotel. (Id. 43:14-44:25; Pillay Tr. at 146:20-22.) In essence, the officers were fearful that Booker or someone else had slipped by the officers and into the room through one of those entrances. Second, the officers were not certain whether there was a connecting door to Room 309 from one of the adjacent rooms. (Petinga Tr. at 44:8-11.) Finally, the officers did not know whether there were additional occupants besides Booker in the room. (Id. at 43:14-44:25.) For those reasons, Pillay accessed the lock to Room 309 with a key card and stepped out of the way immediately, allowing the officers to enter Room 309 with guns drawn. (Id. 43:14-16; Pillay Tr. 147:1-4.)

  Once inside the room, the officers confirmed that the guns were in the bathroom trash can, located a mere three feet from the entrance to Room 309. (Petinga Tr. at 52:17-53:11.) The guns were clearly visible, as they were covered by nothing but several pieces of scrap paper. (Govt. Ex. 2.) After confirming the presence of the guns, the officers notified the identification bureau who then came to the Hotel, photographed the contents of the trash can, and recovered the guns. (Petinga Tr. 18:1-16.) No other search of the Room was conducted by any of the officers. (Id. at 18:16-23.)

  Meanwhile, Officer Pincus and Detective Leonard had arrived. After going to Room 309, Pincus ran a criminal history on Defendant revealing that Booker had prior violent arrests leading to at least one conviction. (Pincus Tr. at 63:16-64:3.) Following the recovery of the weapons, at approximately 3:00 p.m. the officers locked out Room 309 and set up surveillance both in the Hotel lobby and in Room 308, directly across the hall from the target room.

  At approximately 7:00 p.m., Officer Andrews, who was stationed at the front desk, notified Officer Pincus and his partner, who were stationed in Room 308, that Booker and a female companion had entered the Hotel lobby. (Id. at 65:16-24.) Pincus immediately went to the door of his room and, having seen the photograph of Booker from the hotel registry, was able to identify Booker through the peep hole. (Id. at 66:4-16.) Pincus and his partner then exited Room 308 and entered the hall with guns drawn. Pincus advised Booker that he was under arrest and ordered him to get down on his knees and put his hands in the air. (Id. 66:17-21.)

  As Booker raised his hands in the air, he asked Pincus the reason for the arrest. Pincus replied that the officers had found something in Booker's hotel room, to which Booker responded, "guns." (Id. at 67:14-20.) With Defendant on the ground, Pincus kicked from Booker the jacket on which he had been leaning. Pincus then cuffed and searched Booker. (Id. at 67:246-8:5.) Pincus also searched Booker's jacket, revealing two packages containing a total of approximately 149 grams of cocaine base (crack). (Id. at 68:6-11.) The officers also arrested Booker's female companion, Leslie Thompson. After the arrest and search, the officers walked Booker into the surveillance room, Room 308, and walked Thomspon into the target room, Room 309. Booker subsequently signed a consent to search form, authorizing the officers to conduct a comprehensive search of Room 309.*fn4 (Govt. G-12.)

  The following month, in November 2004, the Federal Bureau of Investigation became involved in the Booker investigation. (Roselli Tr. at 168:14-22.) Specifically, following a November 2, 2004 interview with Booker, certain detectives from the Darby Borough Police Department contacted Case Agent Roselli and informed him that Booker had information pertaining to the robberies which Roselli was investigating at the time. (Id. at 168:20-169:7.) On November 30, 2004, Roselli traveled to Atlantic County to interview Booker where he was in custody. (Id. 168:11.) Roselli initially advised Defendant of his rights and provided Booker with an FD-395 advice of rights form. Booker signed the form, which also contained a waiver of rights provision. (Govt. Ex. 5.) After Booker executed the advice of rights form, Booker admitted his involvement in one of the robberies Roselli was investigating. (Roselli at 171:10-17.) Moreover, according to Roselli, Booker voluntarily offered information regarding the Atlantic City investigation. (Govt. Ex. 7.)

  On December 8, 2004, Roselli returned to Atlantic County to meet with Booker. Roselli provided Booker with the same advice of rights form, which Booker again signed. (Id. 173:18-20.) During the interview, Booker provided additional information relating to his drug dealing activities. (Id. at 174:13-175:14.) Booker also expressed his desire to be federally prosecuted rather than remain in the State system. (Id. at 176:3-8; Govt. Ex. 8.) According to Roselli, the state charges were ultimately dropped and were adopted by federal authorities, resulting in a three count criminal complaint being filed against Booker in the Eastern District of Pennsylvania.

  Later that month, on December 22, 2004, Roselli took Booker into federal custody. Prior to transporting Booker to the federal detention facility in Philadelphia from the Atlantic County Correctional Facility, Roselli advised Booker of his Miranda rights, which Defendant waived. (Roselli Tr. at 177:112-0; Govt. Ex. 6.) During the course of transport, Booker, who was accompanied in the vehicle by Roselli and Detectives Slowik and Pitts, made several unsolicited comments. The substance of those statements was written down by Slovik. (Govt. Ex. 4.) After arriving at the FBI Building at 600 Arch Street, the officers brought Booker to the eighth floor where they interviewed him concerning his bank robbery activity. (Govt. Ex. 9.) Booker made a number of statements during that session which he now seeks to suppress. (Id.)

  Defendant was indicted on January 19, 2005, and was arraigned on January 27, 2005. Counsel was subsequently appointed on or about February 1, 2005.*fn5 On April 25, 2005, upon the motion by Defendant to transfer venue, this matter was ordered transferred from the Eastern District of Pennsylvania to this Court by the Honorable Stewart Dalzell, District Judge for the Eastern District of Pennsylvania, pursuant to Rule 21(b), Fed.R.Crim.P. Defendant subsequently moved to suppress certain evidence and statements. [Docket Item 7.] The Court held suppression hearings on July 20, 2005 and July 21, 2005 and heard oral argument by counsel at a hearing on August 11, 2005. II. DISCUSSION

  Defendant seeks to suppress the two guns which were seized from the Hotel trash can, the 149 grams of crack seized from his jacket following his arrest, and various statements made to officers during and following his arrest. First, Defendant argues that the guns should be suppressed as fruits of an unlawful search of the Hotel room. Defendant further contends that because the arresting ...


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