Accentuate the Attenuation, Don't Mess With Mr. In-Between

MOSBY v. SENKOWSKI, USCA-2, No. 05-1122-pr, 2006 U.S.App. LEXIS 29402, appeal from USDC-NYWD, before Chief Circuit Judge Jacobs, Circuit Judge Parker, and USDJ-DCD Oberdorfer, opinion by Parker, filed 30 Nov 2006.

LONG STORY SHORT: Whether or not any exception to the warrant requirement justified entry into Petitioner's home to arrest him, a passer-by's identification of Petitioner as a murder suspect and Petitioner's subsequent confession were too remote from the arrest to suppress them. Binding in CT, NY, VT.

FACTS: On 15 April 1994 in Rochester, New York, someone with the street name "Florida" shot and killed two men. Five days later and two miles away, Petitioner sold crack through the window of the house at 46 Costar Street to an informant in the presence of an undercover officer. Four uniformed officers knocked on the door of the same house and petitioner's 10-year-old son opened the door. Petitioner was asleep upstairs and would not come downstairs voluntarily, so the four officers entered the house and took Petitioner into custody. The UC narc identified him as the one whom he had seen selling crack, and after his arrest while sitting in the police car outside, a neighbor walked by and asked what was the deal with "Florida." The arresting officers called homicide detectives, and police showed photo packs to people who had seen the shootings. Four witnesses identified Petitioner as the shooter. Police Mirandized Petitioner, who waived counsel. Five hours after his arrest, police began questioning him about the murders. He confessed to the murders and signed a written confession that police prepared for him.

PROCEDURE: The State of New York indicted and tried Petitioner for both murders. Before trial, Petitioner claimed that 46 Costar Street was his legal residence where he had lived for two months and moved to suppress his confession and the photo identifications because police did not have an arrest or search warrant. The trial court ruled that Petitioner was only a transient in that house with no legitimate expectation of privacy and therefore had no standing to assert Fourth Amendment rights. SUPPRESSION DENIED in all respects.
At trial, the four witnesses who had identified him before did so again during the State's case-in-chief. Petitioner testified that he shot the decedents in self-defense. The State introduced Petitioner's written confession during its rebuttal case. The jury convicted Petitioner of two counts of second-degree murder and the trial court sentenced him to two consecutive terms of 25 years to life.
Petitioner appealed his conviction and sentence, but did not argue that the trial court erred in denying suppression. The Appellate Division AFFIRMED in all respects and the New York Court of Appeals denied Petitioner leave to appeal. Petitioner went back to the Appellate Division and applied for a writ of coram nobis on grounds of ineffective assistance of appellate counsel for not raising several issues including suppression. WRIT OF CORAM NOBIS DENIED summarily.
His state remedies exhausted, Petitioner petitioned the U.S. District Court for the Western District of New York for a writ of habeas corpus per 28 U.S.C. § 2254 on the same grounds as his coram nobis petition. WRIT OF HABEAS CORPUS DENIED. Petitioner requested and received a certificate of appealability from the U.S. Court of Appeals for the Second Circuit.

DECISION: Under the well-known Strickland test, ineffective assistance of counsel means that the representation fell below an objective standard of reasonableness and also prejudiced the client, which in turn requires a showing of reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Here, if Petitioner probably would have won reversal of his conviction if his appellate lawyer had argued the suppression issue on direct appeal. The Second Circuit reviewed the trial court proceedings and determined that indeed, Petitioner had a legitimate expectation of privacy in the house and therefore had standing to invoke his Fourth Amendment rights against unreasonable search and seizure.
But that was not the end of the inquiry. Petitioner still had to show that the police conduct was not subject to the exigent circumstances or consent exception, and then a connection between any Fourth Amendment violation and the evidence he wanted to suppress. Police did have probable cause to arrest Petitioner for drug dealing, and had no idea that he would turn out to be a murder suspect, making the subsequent events unforeseeable. Petitioner's confession was made outside the home where he may have been illegally arrested. Also, police did not start questioning him until five hours after the possibly illegal arrest, long enough to attenuate any taint. His neighbor's identifying him as "Florida" was not the police's doing. Neither was the photo pack identification a result of the possibly illegal arrest. Petitioner could not have had the evidence suppressed under either New York or federal law, so Petitioner's appellate counsel could not have been ineffective. Given the attenuation present in the case, the Second Circuit did not decide whether the arrest was legal or not. Denial of habeas corpus AFFIRMED in all respects.

EDITORIAL: Florida!? What kind of lame street name is that? Florida was J.J.'s mother on Good Times! Well anyway, I am a little uncomfortable with this decision, and I think it might have gone another way if Florida had done something less than cap two people. Police could have secured the house until they got a warrant, and that's a safe course for the future.