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United States of America v. Michael F. Durante

December 19, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
MICHAEL F. DURANTE, DEFENDANT.



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

OPINION & ORDER

This matter comes before the Court on the first motion to suppress (Docket Entry No. 108) by Defendant Michael F. Durante. Defendant's motion to suppress has three parts, seeking:

1) suppression of all evidence seized during the execution of a search warrant at Defendant's office on March 24, 2011; 2) suppression of all evidence seized from Defendant's home on March 24, 2011; and 3) suppression of all post-arrest statements allegedly made by Defendant on March 24, 2011. For the reasons set forth below, the motion will be denied in part, and a hearing will be held in regard to the search of Defendant's safe.

On July 5, 2011, this Court held a hearing on the instant motion. At the conclusion of the hearing, the Court directed the parties to submit supplementary certifications and briefing.

In large part, Defendant asks this Court to hold evidentiary hearings on the issues raised. The Third Circuit has stated the applicable legal standard as follows:

Rule 12(b)(1) of the Federal Rules of Criminal Procedure requires that all defects in the institution of the prosecution be raised by pretrial motion. Although Rule 12 does not by its terms specify when such a motion entitles a defendant to a pretrial evidentiary hearing, we have held that a defendant's moving papers must demonstrate a "colorable claim" for relief. In order to be "colorable," a defendant's motion must consist of more than mere bald-faced allegations of misconduct. There must be issues of fact material to the resolution of the defendant's constitutional claim.

U.S. v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996) (citations omitted).

I. The search at Defendant's office

Defendant contends that the evidence and fruits of the search at Defendant's office on March 24, 2011 should be suppressed on three grounds: 1) attachments A and B to the search warrant were not present during the search, making the search unconstitutional; 2) attachment A failed to adequately describe the area to be searched; and 3) the scope of the search was impermissibly broad, given the probable cause asserted in the application for the search warrant.

As to the first ground, in response, the United States of America (the "Government") has supplied the certification of Lawrence Clifton, who stated that he was the DEA Special Agent who acted as Team Leader for the search at issue, and that the copies of the warrant brought to the search were complete. (Clifton Cert. ¶¶ 1-6.) In reply, Defendant points to the certification of employee Lorraine Solomon, which states that the "packet of papers" left by the agents at Defendant's office lacked attachments A and B. (6/30/11 Cert. of Lorraine Solomon.)

Defendant has offered no evidence to controvert the evidence offered by the Government that the copies of the warrant possessed by the agents executing the search of Defendant's office were complete. Even if it is true, as stated by employee Solomon, that the copy left by the agents lacked attachments A and B, this is not more than a minor ministerial defect. There is no evidence that the agents who executed the search did not have in their possession a complete warrant.

As the Government observes, Defendant's argument here rests on the proposition that a violation of Federal Rule of Criminal Procedure 41(f)(1)(C) may cause a search to be in violation of the Fourth Amendment. Federal Rule of Criminal Procedure 41(f)(1)(C) states:

The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.

The issue of whether a violation of Rule 41(f)(1)(C) may constitute a violation of the Fourth Amendment was recently addressed by the Eighth Circuit, which held: "even if Rule 41 is violated, exclusion of evidence acquired during the search is required only if a defendant is prejudiced or if reckless disregard of proper ...


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