The opinion of the court was delivered by: RICHEY
The defendant in the above-captioned case has filed a motion to suppress physical evidence and incriminating statements. He argues that the search warrant, whose execution triggered this prosecution, was defective because: (i) the supporting affidavit contained material false statements; (ii) the supporting affidavit did not establish probable cause; and (iii) the warrant was not sufficiently particularized. In addition, the defendant contends that various statements he made to the police were tainted by the foregoing unlawful conduct and were, in any event, obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and its progeny. Having carefully considered the parties' written submissions, the testimony elicited at the motions hearing, the entire record herein, and the underlying law, the Court will deny the defendant's motion to suppress, except with reference to one of the defendant's statements which the government has correctly conceded may not be used in its case-in-chief.
The search warrant application and supporting affidavit in this case arose out a "drive-by shooting" that occurred on October 25, 1989. On that date, Ivory Williams was sitting on the porch of Ricardo Bailey's house when a red/burgundy station wagon with four individuals wearing black hooded sweat jackets drove by. Two of these individuals leaned out of the car and fired shots at Williams, grazing his head. At some point after this shooting, Williams identified the four individuals involved in the shooting and specifically identified -- by name and photograph -- the defendant Frankie Pelham, whom Williams had known for three or four years, as one of the four perpetrators.
Although the defendant's investigator subsequently interviewed Williams and took notes indicating that Williams had never identified the defendant, see Motion to Suppress, Exh. 2, Williams refused to sign the statement. Moreover, at the hearing, Williams refuted the investigator's statement and emphatically reaffirmed that he had identified the defendant. See Motions Hearing Tr. at 13-17, 20-22.
Even though some time has elapsed since the shooting, it is probable that stored within . . . [the] residence of Frankie Pelham is the personal article of clothing worn on the date of the shooting. Further, because of the geographic distance between the identified individuals, it is also probable that documents exist that show association between these persons.
Motion to Suppress, Exh. 1.
A Superior Court Judge approved the warrant on April 26, 1990, and on May 3, 1990 four law enforcement officers executed the search warrant. When they knocked on the door of the apartment where the defendant lived with his mother, the defendant let them in. The officers showed the defendant the search warrant, and, as he testified at the motions hearing, they treated him with respect. Motions Hearing Tr. at 37. In response to a question about where he kept his belongings, the defendant told the officers that he kept his "stuff" in a dresser and a closet. The police officers recovered from that closet a loaded sawed-off shotgun and a shoe box containing several bags of crack. At that point, they placed the defendant under arrest and advised him of his Miranda rights. One of the officers told the defendant that he was a fool for having drugs in his mother's apartment and that he was lucky that the Vice Squad officers had not executed the search warrant because they may have locked up his mother. Then, when the officers asked the defendant to whom the gun and the drugs belonged, he admitted that they were his. The officers also recovered a safe, which the defendant stated belonged to him and contained a pistol. When the officers later opened the safe at the police station, they recovered a loaded pistol, some shotgun shells, a large rock of crack, and some personal papers with the defendant's name.
The police officers transported the defendant to the police station. While he was being processed, one of the officers asked Officer Parisi whether the rocks of crack recovered from the defendant's closet were worth $ 50 on the street, and the defendant, overhearing the question, stated that they were $ 20 rocks. Later, after the defendant was again advised of his Miranda rights and had executed a form indicating that he did not want to answer any questions without having an attorney present, the police officers asked him to whom the safe and its contents belonged. The defendant responded that the safe and its contents (the drugs and the gun) belonged to him.
The defendant has not been charged for his alleged involvement in the October 1989 drive-by shooting but he is charged in this case with: (1) possession with the intent to distribute five or more grams of cocaine base, (2) possession of an unregistered firearm, and (3) possession of firearms during a drug trafficking offense. In addition to the motion to suppress physical evidence and incriminating statements, the defendant has filed a motion for production of minutes and transcripts of grand jury testimony involving the October 1989 drive-by shooting.
As a threshold issue, the Court holds that the defendant's challenge to the search warrant based upon material false statements allegedly knowingly and intentionally or recklessly made by Officer Parisi in the supporting affidavit clearly must fail. In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the Supreme Court explained the standard for evaluating a defendant's challenge to the veracity of a sworn statement used by the police to obtain a search warrant. The Franks Court recognized that there is "a presumption of validity with respect to the affidavit supporting the search warrant." Id. at 171. However, the Court held that if "the allegation of [the affiant's] perjury or reckless disregard [for the truth] is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded." Id. at 156.
Although the defendant's Franks argument initially seemed plausible based upon his written submissions concerning the complaining witness Williams' alleged repudiation of Officer Parisi's affidavit,
Williams' testimony at the motions hearing directly contradicted the defendant's written representations. See Motions Hearing Tr. at 13-17, 20-22. By reaffirming his identification of the defendant, Williams fatally weakened the defendant's argument on this issue. The essential question before this Court is not whether the defendant was one of the four individuals involved in the October 1989 drive-by shooting of Williams but rather whether Officer Parisi's sworn statement that the defendant had been identified as one of the passengers in the vehicle was intentionally or recklessly false. Thus, for the purposes of this Franks inquiry, it is irrelevant that the other witness Bailey did not identify the defendant and -- even assuming arguendo that this is true -- that the defendant could not have been in the station wagon during the shooting because he was attending class at UDC. All that matters here is whether Williams identified the defendant -- correctly or incorrectly -- as one of the four perpetrators of the shooting. Because there is nothing substantial on this record to indicate that Williams did ...