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United States v. Wray

United States District Court, D. Maine

June 20, 2016

UNITED STATES OF AMERICA
v.
SHAUN WRAY et al., Defendants.

          ORDER ON MOTION TO SUPPRESS

          George Z. Singal United States District Judge

         Before the Court is the Motion to Suppress Evidence of Defendant Guy Noel (“Noel”) (ECF No. 320) (the “Motion to Suppress”). The Motion to Suppress has been joined by Defendant Iris O’Toole (“O’Toole”). (ECF No. 338.) The Court held an evidentiary hearing on the Motion to Suppress on June 14, 2016.

         For the reasons explained below, the Court DENIES the Motion to Suppress.

         I. FACTUAL FINDINGS

         The following facts are drawn from the record in this case, including the search warrant dated March 24, 2015 (ECF No. 320-1), the affidavit of Agent Madore in support of the application for the search warrant (2:15-mj-60, ECF No. 1-1), the Drug Enforcement Administration’s Report of Investigation (ECF No. 320-2), and the testimony and exhibits admitted into evidence at the hearing.[1] In this recitation of facts and in reaching the legal conclusions described below, the Court credits the testimony of Agent Brandon Hope (“Agent Hope”) and Task Force Officer David Madore (“TFO Madore”), the two officers who testified at the June 14th hearing.

         On March 19, 2015, arrest warrants were issued in the District of Vermont for Gary Delima (“Delima”) and Sharif Cargo (“Cargo”). Based on law enforcement surveillance, including communications intercepts pursuant to wiretap warrants, [2] law enforcement learned that Delima and Cargo were traveling from New York to Maine. Law enforcement surveillance had previously determined that Delima had stayed at Apartment # 2, 96 Second Street, Auburn, Maine (the “Second Street Apartment”) from March 1-10, 2015. In intercepted cellular phone text messages, Delima had referred to this apartment as his “crib.” (Gov’t Ex. 1, Page 73 of 131, Session 2734; Gov’t Ex. 1, Page 86 of 95, Session 3242.) In cellular communications, Delima provided directions to others on how to visit the Second Street Apartment and corresponded with O’Toole regarding where certain items were stored or hidden in the apartment. Law enforcement had also determined that Delima had transferred money to O’Toole, the lessee of the Second Street Apartment, and intercepted communications between Delima and Cargo concerning O’Toole’s cash rent payments to the landlord.

         Agent Hope participated in physical surveillance in the Auburn, Maine area in the evening hours of March 23, 2015. Agent Hope observed a gold-colored Jeep Grand Cherokee vehicle that law enforcement had previously observed Delima using on a number of occasions. The Jeep exited into the Auburn area and parked in the vicinity of the Second Street Apartment. Between approximately 11:00 PM and 12:00 AM, law enforcement officers observed multiple individuals exit the Jeep and enter the apartment building at 96 Second Street, but they were not able to identify the individuals or to see which apartment they entered.

         Approximately fifteen law enforcement officials, including Agent Hope and TFO Madore, participated in a meeting at approximately 5:00 AM on March 24, 2015, to discuss the next steps in their investigation. Specifically, they discussed executing the arrest warrants for Delima and Cargo at the Second Street Apartment shortly after 6:00 AM that morning. Law enforcement discussed whether to knock and announce their presence at the Second Street Apartment when executing the warrants. As of that time, law enforcement had intercepted communications between Delima and others in which law enforcement officials concluded, in the context of their investigation, that Delima was discussing the purchase and ownership of three different firearms, one of which, the text messages suggested, was present in Maine. Certain of the text messages were understood by law enforcement to concern a transaction to purchase a firearm in Maine. In a traffic stop conducted by law enforcement of the suspected seller of the gun, law enforcement determined that the suspected seller was in possession of $1, 800 in cash, the amount that law enforcement had determined was the purchase price for the gun in a transaction the previous day. Further, law enforcement had intercepted communications that, in the context of the investigation, appeared to discuss two separate homicides in the New York area and alluded to the involvement of Delima or his associates in one of the homicides, including the statement “we did that to him.” (Gov’t Ex. 1, Page 90 of 148, Session 222.) Agent Hope and TFO Madore both testified that a decision was made to execute the arrest warrants using an “element of surprise” and at a time when law enforcement officials expected that the occupants of the Second Street Apartment would be asleep.

         At a time between 6:00 AM and 6:30 AM on March 24, 2015, law enforcement officers executed the two arrest warrants at the Second Street Apartment. The officers did not knock prior to entering the residence, but rather pried the door open and announced their presence while crossing the threshold of the door and entering the apartment. Upon entry, law enforcement discovered Delima, Cargo, O’Toole, Noel, Malik Delima, and Shaun Wray in the apartment. Gary Delima and Sharif Cargo were arrested, and the other occupants were detained in the apartment. Law enforcement personnel observed certain items in plain view, specifically credit cards. Agent Hope and TFO Madore testified that no search of the Second Street Apartment was conducted at this time, except for searches of the arrested and detained persons and certain areas in close proximity to detained persons, and a sweep of the Second Street Apartment to ensure no undiscovered individuals remained within the apartment.

         TFO Madore prepared an application for a search warrant of the Second Street Apartment and a supporting affidavit on March 23, 2015, and he scheduled a meeting with Magistrate Judge Rich in Portland, Maine, for about 8:00 AM on March 24, 2015. Consequently, after participating in the initial entry of the Second Street Apartment, TFO Madore drove to Portland to meet with the Magistrate Judge. The search warrant was authorized by Magistrate Judge Rich at about 8:30 AM on March 24, 2015. TFO Madore called the law enforcement officers at the Second Street Apartment to inform them that the search warrant had issued. Law enforcement officials then conducted a search of the Second Street Apartment and seized certain items. Amongst the items seized were credit cards, devices used in the fabrication or modification of credit cards, a computer, and firearm ammunition. No firearm was discovered in the search.

         II. CONCLUSIONS AND DISCUSSION

         a. There Was No Knock and Announce Violation.

         Defendant argues that the law enforcement officers violated the knock and announce rule when they entered the Second Street Apartment without first knocking and announcing their presence. Ordinarily, police executing a warrant must knock and announce their presence before entering a dwelling subject to Fourth Amendment protections, such as a private residence. United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998). However, a “no-knock” entry is reasonable if the police “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” United States v. Boulanger, 444 F.3d 76, 81 (1st Cir. 2006) (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)). Reasonable suspicion can be supported by such considerations as whether investigative sources suggest that the suspect is in possession of a weapon, whether the suspect has a criminal history involving the use of firearms, and whether the suspect is believed to have been involved in recent violent offenses. Id. at 82.

         In this case, law enforcement had a reasonable suspicion that Delima was armed and posed a danger to the safety of the law enforcement officers, and so it was not a violation of the knock and announce rule for them to enter the Second Street Apartment without first knocking and announcing their presence. Consistent with the kinds of considerations that First Circuit has identified as supporting reasonable suspicion, law enforcement had uncovered evidence that Delima and certain of his associates owned or possessed firearms, that a firearm may have been acquired in Maine and remained in Maine, and that Delima may have been involved in recent violent criminal acts. Each of these ...


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