United States of America, Appellant-Cross-Appellee v. Vamond Elmore, Defendant-Appellee-Cross-Appellant

482 F.3d 172, 2007 U.S. App. LEXIS 7354
CourtCourt of Appeals for the Second Circuit
DecidedMarch 29, 2007
DocketDocket 05-1734-cr(L), 05-6477-cr (XAP)
StatusPublished
Cited by88 cases

This text of 482 F.3d 172 (United States of America, Appellant-Cross-Appellee v. Vamond Elmore, Defendant-Appellee-Cross-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America, Appellant-Cross-Appellee v. Vamond Elmore, Defendant-Appellee-Cross-Appellant, 482 F.3d 172, 2007 U.S. App. LEXIS 7354 (2d Cir. 2007).

Opinion

SAND, District Judge: *

The government appeals from the district court’s (Hall, J.) ruling that a tip from an informant was insufficiently corroborated to provide reasonable suspicion to stop defendant Vamond Elmore’s car. The government argues that the district court incorrectly categorized the informant as anonymous and therefore required too high a level of corroboration. Defendant cross-appeals from the district court’s ruling that evidence found pursuant to a search warrant issued based on the fruits of the stop should not be excluded under the good faith exception to the warrant requirement. The government also contends that the district court erred in ruling that the defendant had Fourth Amendment “standing” to challenge the search warrant.

Background

I. Facts

On June 22, 2003, Detective Thomas Roncinske of the Norwalk Police Department received a telephone call from a woman claiming to be a close friend of the defendant Vamond Elmore. The caller identified herself as “Dorothy” and provided Roncinske with her home and cell phone numbers. She told Roncinske that Elmore was in possession of some weapons and expressed concern that he might “do harm to somebody.” Roncinske had not previously used the caller as a confidential informant and had never spoken to her before. Roncinske spoke with the caller approximately four times throughout the course of the day, gradually obtaining more information from her about herself and the defendant. He was able to communicate with her several times by calling the cell phone number that she had given him.

During the course of these calls, the caller eventually told Roncinske that her full name was Dorothy Mazza and that she had been Elmore’s girlfriend, but she had recently kicked him out of her house. Roncinske used a Department of Motor Vehicles (DMV) database to obtain an address and birthdate for a Dorothy Mazza, but he did not go to the address that he found. 1 In an attempt to verify her identi *176 ty, Roncinske asked Mazza about an incident in 2002 in which Elmore had been shot. Mazza knew about the incident and described the specific injuries that Elmore had sustained. She said she was the one who nursed him back to health. She also said that Elmore had been shot in retaliation for having pistol-whipped a man named Demark Bond. This information matched police reports on Elmore’s injuries and the police’s theory on a possible motive for the shooting. Details about the shooting and Elmore’s injuries had been reported in several local newspaper articles, but the police’s theory about the motive was not public information.

Roncinske did not meet face-to-face with Mazza because she said she was afraid of what would happen to her if she was seen working with the police. Mazza also insisted that her name be left out of any police reports because she knew that the defendant had weapons and was afraid that he would retaliate against her. Ron-cinske did not go to the address he had obtained from the DMV, nor did he attempt to call Mazza on the home telephone number she had given him. There is no evidence that Roncinske checked whether the phone numbers she gave him were registered to Dorothy Mazza.

Mazza told Roncinske that she had seen Elmore in possession of several firearms at her residence as recently as June 19, 2003 (three days earlier) and that was why she kicked him out. These weapons included a .38 caliber Smith & Wesson revolver loaded with hollow point bullets, a .22 caliber pistol, a .38 caliber revolver, a “riot pump” shotgun, and an AK-47 assault rifle. She said that Elmore kept the Smith & Wesson in his car, which she described as a black two-door Acura with tinted windows and new Connecticut license plates that recently had been switched over from temporary plates. She said that she had seen the gun hidden under an altered piece of carpet on the passenger’s side of Elmore’s car.

Mazza said that Elmore told her that he now kept the rest of the weapons with a woman named Tanea and in the car of one Dwayne Sherman. She told Roncinske that Tanea lived in Building 14 at 133 Monterey Place, in the apartment directly upstairs from Dwayne Sherman and his wife, in an area of Norwalk, Connecticut known as Carlton Court. She said that Elmore frequented the Carlton Court and Round Tree Motel areas of Norwalk. Mazza also told Roncinske that Dwayne Sherman’s BMW was parked outside Building 14.

Roncinske took several steps to attempt to corroborate the information that he got from Mazza. He went to 133 Monterey Place and found a BMW registered to Dwayne Sherman parked in front of Building 13, which shares a parking lot with Building 14. He learned that Dwayne Sherman’s wife, Denita Sherman, leased an apartment in Building 14 and that a Myra Humphrey leased the apartment above the Shermans. 2 Finally, Roncinske checked Elmore and Sherman’s criminal histories and discovered that they had been arrested together for armed robbery.

Based on the information he obtained from Mazza and his independent investigation, Roncinske drafted a memo to all Nor-walk police officers indicating that he had received information that Elmore was in possession of a handgun. The memo stated that Elmore drove a black, two-door 1992 Acura whose last known registration was temporary, but now had regular Connecticut plates and that he frequents the *177 Carlton Court and Round Tree Motel areas. The memo also warned that the weapon may be hidden under the carpet on the passenger side. A photograph of Elmore was attached to the memo.

Sergeant Kenneth King received Ron-cinske’s memo at the start of his late night shift on June 24, 2003. Sometime shortly after 11:30 p.m. on June 24, Sergeant King and Officer Mark Suda, driving in separate cars, saw a black two-door Acura with tinted windows driving in the vicinity of Carlton Court. The officers, who knew Elmore from prior encounters, identified him as the driver by looking through the untinted front windshield of the car as it passed. The officers turned their cars around, followed Elmore’s car and then pulled it over. They approached the car and asked the occupants, Elmore and a woman Suda identified as Tanea Humphrey, to step out of the car. King examined the passenger compartment and found a .38 caliber Smith & Wesson underneath the driver’s seat. The police placed Elmore under arrest and then took Tanea Humphrey to her residence at 133 Monte-rey Place.

Following the arrest, Roncinske applied for a search warrant for Tanea Humphrey’s apartment and Dwayne Sherman’s car based on the information he had received from Mazza, his own investigation, and the results of the stop that led to Elmore’s arrest. A search warrant issued and the Norwalk police went to Humphrey’s apartment on June 27, 2003. Upon entering, they read Humphrey Miranda warnings and asked her where the weapons were located. She told them the weapons were in two bags in her bedroom closet, which Elmore had asked her to keep for him. The police retrieved and opened the bags which contained an AK-47 assault rifle with an accompanying loaded magazine, a .22 caliber pistol, a shotgun, and a box of 500 rounds of .22 caliber ammunition.

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Bluebook (online)
482 F.3d 172, 2007 U.S. App. LEXIS 7354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-appellant-cross-appellee-v-vamond-elmore-ca2-2007.