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United States v. Westley

United States District Court, D. Connecticut

July 2, 2018

UNITED STATES OF AMERICA,
v.
MILTON WESTLEY, CLIFFORD BRODIE, SEDALE PERVIS, DEJUAN WARD, MICHAEL BELLE, MICHAEL VIA

          RULING ON DEFENDANT PERVIS'S MOTION TO SUPPRESS (ECF NO. 74)

          Michael P. Shea, U.S.D.J.

         I. Background

         Following an investigation into several shootings in New Haven occurring in 2016, a grand jury returned an indictment charging six individuals with RICO conspiracy, violent crimes in aid of racketeering (“VCAR”), offenses related to possession, transfer, and use of firearms, and possession with intent to distribute narcotics. (ECF No. 1.) One of these individuals, Sedale Pervis, who is charged with RICO conspiracy, firearms offenses, and possession with intent to distribute marijuana, has moved to suppress evidence found in his home after law enforcement arrested him there and later obtained a search warrant. Mr. Pervis argues that the officers violated the Fourth Amendment's “knock-and-announce” requirement in forcibly entering his home to effectuate his arrest. He also argues that the subsequently issued search warrant was not supported by probable cause and was unconstitutionally overbroad.

         After considering the evidence introduced at a suppression hearing held on April 24, 2018, I find that the police announced their presence and purpose while Mr. Pervis was outside his home in a manner that Mr. Pervis heard and understood, and that their efforts to gain entry after he retreated into the home otherwise complied with the knock-and-announce rule. Even if they violated the knock-and-announce rule, however, I would find both that knocking and announcing in this case would have been futile and that exigent circumstances existed that excused their compliance with the rule. Finally, I find that the search warrant was supported by probable cause and that, even if it was overbroad, the officers relied in good faith on the warrant. As explained in more detail below, I therefore DENY Mr. Pervis's motion to suppress.

         II. Evidence at Hearing

         At the evidentiary hearing, the government called as witnesses Detective Ryan Macuirzynski, Lieutenant John Healy, and Detective John Folch, all of the New Haven Police Department's Shooting Task Force. Mr. Pervis called his friend and neighbor, Darius Lewis. The parties also introduced affidavits, search and arrest warrants, and photographs. The evidence introduced at the hearing is summarized below.

         A. Officers Obtain an Arrest Warrant For Mr. Pervis

         On the evening of August 18, 2016, officers from the New Haven Police Department responded to a domestic dispute. The caller told the dispatcher that the dispute was violent, and the dispatcher heard screaming through the open phone line. Lieutenant Minardi of the New Haven Police Department went to the scene of the dispute and spoke to the complainant, who told him that a black male wearing dark jeans and a white shirt had been involved. Lieutenant Minardi went to the location at which the complainant said he or she had last seen the individual and saw a male matching the description provided. He attempted to speak with the individual, later identified as Mr. Pervis, but the individual fled on foot and hopped a fence separating a basketball court from houses on Morris Street. Dispatch later received a call from a resident on Morris Street who said that someone had placed an item inside an oven that was in her backyard. The caller provided a description of an individual that matched the description given by the complainant. Other residents of Morris Street told officers that they, too, saw a male place an object in the oven.

         Officers spoke with the neighbor whose backyard contained the oven, and she allowed them to look inside it. Inside, the officers found a black Smith and Wesson Bodyguard .380 semiautomatic pistol with six live rounds in the magazine and chamber. The neighbor provided the officers with video surveillance footage of her backyard, which showed a male matching the previously given descriptions climb over her fence and into the backyard. A canopy blocked the camera's view of the oven, but the individual could be seen running out from under the canopy and toward the front of the house moments later. Officers compared the individual in the footage to the description of the individual who fled on foot from Lieutenant Minardi and concluded that they likely were the same person, Mr. Pervis. The officers later determined that Mr. Pervis did not have a Connecticut pistol permit.

         Based on these events, the officers applied for and obtained an arrest warrant for Mr. Pervis from the New Haven Superior Court. The Information attached to the arrest warrant application charged Mr. Pervis with breach of peace in the second degree, interfering with a police officer, and criminal trespass in the third degree, all misdemeanors under Connecticut law, and carrying a pistol without a permit, a felony under Connecticut law. (ECF No. 74-1 at 21-22.)

         Later testing of the recovered gun revealed signs that it was linked to five shootings in New Haven in 2016. (ECF No. 74-1 at 29.) Using the National Integrated Ballistic Information Network (“NIBIN”) chart, investigators from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and the New Haven Police Department's Shooting Task Force and Criminal Intelligence Unit determined that the gun was used in shootings between rival groups in New Haven. Through additional investigation, including conversations with confidential informants, law enforcement came to believe that Mr. Pervis, also known as “Scope, ” was a member of one of the groups alleged to have committed these acts of violence, “GSB, ” and was supplying firearms to other members of the group. Investigators believed that other members of GSB included Mr. Pervis's five co-defendants in this case. Use of the NIBIN chart also led law enforcement to believe that at least two other guns connected to GSB and those acts of violence remained unrecovered. One of those guns, a nine-millimeter firearm, was ultimately recovered in the search Mr. Pervis challenges here.

         B. Officers Execute the Arrest Warrant

         On the afternoon of September 2, 2016, members of the Shooting Task Force and the ATF executed the arrest warrant at an address they believed, based on police databases, was Mr. Pervis's home, the first floor of a three-floor residence at 1536 Ella T. Grasso Boulevard in New Haven.

         The officers, dressed in plain clothes, conducted covert surveillance of the residence by sitting in two parked, unmarked cars on Ella T. Grasso Boulevard, from which they could see the house. Detective Macuirzynski recalled that it was a sunny day with clear visibility. He had with him a vest marked “POLICE” along its width, in addition to his radio, firearm, and badge. He wore his badge on a necklace underneath his shirt. Detective Macuirzynski testified that he had his vest thrown over the back of his seat in the car so that he could easily access and put on the vest when it was time to leave the car. He testified that he had been given instructions to have his vest with him whenever conducting surveillance. He did not wear his vest while in the car, however, as he wanted to get as close to the residence as possible without revealing his identity as a law enforcement officer. He noted that while the windows of the car he sat in were heavily tinted, a person could see inside the car through the front windshield. Lieutenant Healy similarly testified that he typically keeps his vest slung around his seat so that he can put it on quickly if necessary.

         Detective Macuirzynski testified that he was told by his commander to wait until Mr. Pervis came outside of the house to execute the arrest warrant. He testified that this was due in part to law enforcement's understanding of GSB's association with violence and of the two unaccounted- for firearms. He testified that they “did not want to create a dangerous situation.” The officers knew what Mr. Pervis looked like from photos that they had of him. During the hour the officers were waiting in parked cars, Detective Macuirzynski used binoculars to watch several people- none of whom was identified to be Mr. Pervis-enter and leave the premises.

         Meanwhile, three of Mr. Pervis's friends, Darius Lewis, Michael Sherman, and Trayzon Sherman, were visiting Mr. Pervis at his home. (Affidavit of Darius Lewis, ECF No. 74-1 at 16 ¶ 4.) At some point in the early afternoon, a car accident occurred in the street in front of the house. After hearing the noise, the four friends exited the front door onto the porch to see what had happened. (Id. ¶¶ 5-6.)

         After Mr. Pervis came outside of the house, the officers identified him standing on the porch and exited their cars to approach him. Lieutenant Healy testified that he and Detective Macuirzynski approached from one side of the house while three other officers approached from the other. Detective Macuirzynski testified that he believed he had his vest on as he walked toward the house, and recalled that he had his badge displayed.[1] Lieutenant Healy testified that as the officers came within a couple of houses of the residence, Mr. Pervis looked directly at them. At that moment, the officers announced “police.” Lieutenant Healy also believed that they told Mr. Pervis that they had a warrant for his arrest, and at that moment, Mr. Pervis “clearly identified” them as police. According to Lieutenant Healy, Mr. Pervis “started backing up, got wide-eyed, and as soon as [they] . . . announced that [they were] the police and had a warrant, he took off.” On cross-examination, Lieutenant Healy again testified that the officers “identified [them]selves, [Mr. Pervis] acknowledged it and turned and ran from [them] into the home.” Detective Folch also testified that he began yelling “police” as he approached the house.

         Detective Macuirzynski also testified: “[W]hen I got close to Mr. Pervis, . . . it was approximately two houses up, a house up, somewhere in between those two, I looked directly at Mr. Pervis, we identified ourselves as police officers. I said, ‘Police. Sedale, you have a warrant.'” When asked if he knew if Mr. Pervis heard him, Detective Macuirzynski testified that he saw Mr. Pervis “look directly at us” before he turned and ran into the house, while the three visitors remained outside on the porch. On cross-examination, Detective Macuirzynski said he did not remember exactly where he was when he announced “police, ” but said that he yelled “police” as they got closer to the house. He admitted that he did not remember the exact words he used but informed Mr. Pervis that they had a warrant, saying something like, “Sedale, you have a warrant.” Detective Macuirzynski reiterated that it was “right after” Mr. Pervis heard him say “police” and that they had a warrant that Mr. Pervis ran into the house.

         Detective Folch's testimony was similar. He testified that after recognizing Mr. Pervis on the porch, he exited the vehicle and began walking towards the house. He saw Lieutenant Healy approaching as well. He saw Mr. Pervis “look up, ” and he immediately yelled “police.” Mr. Pervis then ran into the house and slammed the door.

         At that point, Lieutenant Healy ran after Mr. Pervis toward the front of the house, continuing to yell “police.” Lieutenant Healy testified that he did so because he feared Mr. Pervis, who officers believed had supplied guns to other GSB members, would go into the house and retrieve a gun. (Detective Macuirzynski testified that as he ran towards the back of the house, he was pointing his gun at the windows due to the same concern about Mr. Pervis.) Once on the porch, Lieutenant Healy tried to open the front door to Number 1536 and found that it was locked. He kicked the door two times. He then asked the three visitors on the porch whether they had a key to the door, but they did not respond. He then kicked the door again, after which it opened.

         Meanwhile, three of the officers, including Detective Macuirzynski, ran to the back of the residence. From the rear of the house, Detective Macuirzynski heard Lieutenant Healy yell “police.” He then heard a noise that sounded like footsteps running up toward the second floor. Detective Macuirzynski heard a loud bang, which he believed was the door to the second floor slamming shut.

         Mr. Pervis's friend Darius Lewis testified that he remembered the officers' approach to the house differently. According to Lewis's testimony and his affidavit dated December 12, 2017, as he stood and watched the aftermath of the car accident in the street, he heard Mr. Pervis reenter the house and shut the front door behind him. Lewis attested that after the front door was shut, he saw two white males in street clothes approaching and he wondered whether they might have been involved in the accident that had just occurred. He testified on direct examination that he did not see that the individuals had badges, that they wore street clothes, and that he never saw vests marked “POLICE.” (On cross-examination, Lewis said he saw badges later.) Then, as they got closer, Lewis saw more individuals rushing toward the porch. “At some point, [he] heard someone yell what sounded to [him] to be the word ‘police.'” (ECF No. 74-1 at 17.) One of the individuals also asked, “Why did Sedale run?” It eventually became clear to Lewis that the individuals were police officers. The officers told Lewis and the two Shermans to stand off to the side of the porch along the driveway of the house. Lewis watched as officers ran to the back door of the residence and another officer began kicking in the front door of the house. Lewis attested that, “[a]t no time, prior to the officer kicking in Sedale's front door, did any officer, especially the one doing the kicking, first knock on the door, announce, in a voice loud enough to be heard by someone inside Sedale's residence, that the police were there to execute an arrest warrant, and that he (Sedale) should voluntarily open his door so that the police would not have to kick it in.” (ECF No. 74-1 at 18.)

         Once inside, Lieutenant Healy's team searched for Mr. Pervis on the first floor. While searching, they found that the rear common staircase had access to a common basement, which they later confirmed was accessible to Mr. Pervis as a resident of the first floor. The officers descended into the basement to search for Mr. Pervis. They did not find him or anyone else on the first floor or in the basement. While searching for Mr. Pervis on the first floor, officers saw digital scales in the closet and on the couch, zip lock baggies, and razor blades.[2] Based on their training and experience, the officers believed that these items were materials used to package narcotics for sale. (ECF No. 74-1 at 30.) At the same time, the officers remaining outside set up a perimeter around the building.

         While Lieutenant Healy and his team entered the house, Detective Macuirzynski returned to the front of the house and entered the door on the right-hand side of the porch, marked 1538 Ella T. Grasso Boulevard. He went up the common staircase of Number 1538 and met Detective Folch on the second floor landing. The officers knocked on the door with their firearms drawn, yelling “police” multiple times and stating that they had a warrant for Mr. Pervis's arrest. Hearing footsteps and movement and believing he was inside the second-floor apartment, the officers asked Mr. Pervis to surrender. They did not enter the second-floor apartment. After a “prolonged period of time, ” Mr. Pervis said that he would come out. He came out of the front door of ...


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