United States v. Brygodzinski

902 F. Supp. 73, 1995 U.S. Dist. LEXIS 20294, 1995 WL 631683
CourtDistrict Court, D. Vermont
DecidedOctober 5, 1995
DocketCrim. No. 95-CR-48-1
StatusPublished

This text of 902 F. Supp. 73 (United States v. Brygodzinski) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brygodzinski, 902 F. Supp. 73, 1995 U.S. Dist. LEXIS 20294, 1995 WL 631683 (D. Vt. 1995).

Opinion

RULING ON AMENDED MOTION TO SUPPRESS AND FOR FRANKS HEARING (paper 17)

MURTHA, Chief Judge.

Defendant Joseph Brygodzinski has been indicted on one charge of counterfeiting United States currency in violation of 18 U.S.C. § 472. The defendant has moved to suppress evidence seized from his apartment on January 23, 1995. The two grounds for his motion are: (1) The search warrant secured by the Rutland police was invalid on its face and not supported by probable cause; and, (2) someone had entered his apartment [74]*74prior to the January 23 search and that individual possibly planted the seized evidence.1 For the reasons set forth below, the Amended Motion to Suppress is DENIED.

I. Background

On September 15, 1995, this Court held a hearing on the defendant’s Amended Motion to Suppress and on the related issue of whether the defendant is entitled to a further hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Based upon the record before the Court and the testimony and arguments proffered at the hearing, the Court finds the following facts.

A.

On the morning of January 21, 1995, Rut-land Police Detective David Sehauwacker was investigating a reported kidnapping and aggravated sexual assault. Information provided by the alleged victim led Detective Sehauwacker to the defendant’s apartment at 35 Elm Street in Rutland.

The defendant consented to allow Schau-wacker to conduct a search of his apartment. Schauwacker’s search only took 10-15 minutes. At that time, the search was limited to a “walk-through” of the apartment to view the layout of the apartment and to retrieve evidence related to the assault. The defendant voluntarily went to his closet and handed police specific items of clothing they requested.

Other officers who processed evidence at the scene do not specifically recall seeing any trunk on the premises. However, they did not look in the defendant’s closet, nor did they exhaustively search the apartment for items other than those specifically related to the reported sexual assault.

Around midnight, police arrested the defendant and locked the apartment. The police assert that no officer returned to the defendant’s apartment until January 23, 1995.

B.

On the morning of January 23, 1995, Rut-land City Police Detective Corporal Detective Kevin Geno arrested James Johnson as he attempted to pass a counterfeit $20 bill at the Rutland Burger King restaurant. When asked where he got the counterfeit money, Johnson first falsely stated that he got the money from an ATM located at a nearby bank.

While in custody, Johnson gave police permission to search his apartment on North Main Street. When they conducted that search, police found several counterfeit $20 bills in a cabinet in the hallway outside the kitchen. In addition, police contacted the Bank where Johnson claimed to have withdrawn money and learned that the Bank used procedures for detecting counterfeit bills prior to placing money in its ATMs.

When confronted with results of the search and the fact that the Bank checks all bills before putting them in an ATM, Johnson admitted he had obtained the bills from an individual named Scott Whitney. Whitney, in turn, told Johnson that he had obtained the bills from the defendant, who kept them in a trunk in his closet.

Detective Geno had not been involved in Schauwacker’s investigation of the sexual assault, nor had he ever spoke with Schauwacker concerning his investigation or search of Brygodzinki’s apartment. Therefore, Detective Geno first learned of the defendant’s alleged involvement in counterfeiting as a result of Mr. Johnson’s admissions. Johnson further confessed that he had passed some counterfeit bills in Brandon the day before, a fact which Brandon police corroborated. Based on this information, Detective Geno obtained a state search warrant for the defendant’s apartment.

During this second search of Brygodinski’s apartment, the police found counterfeit $20 bills, paper and other materials relating to counterfeiting in a closet. At the time, the [75]*75defendant was still in custody as a result of his arrest on sexual assault charges. This second search was conducted sometime after 9:00 p.m., over two days after Detective Sehauwacker had conducted his search of the apaiiment.

Between the two searches, it appears .that someone may have entered and ransacked the Brygodzinski apartment. In a subsequent conversation with the defendant’s mother, Detective Sehauwacker learned that the defendant may have encouraged someone to enter his apartment and destroy evidence between the time of the first search and the second. However, there is no credible evidence which suggests that the Rutland Police either knew of or were involved in the apparent entry and ransacking of the defendant’s apartment.

II. Discussion

The defendant claims that evidence seized pursuant to Detective Geno’s January 23 search warrant must be suppressed because Geno’s warrant affidavit contained statements which he knew were false. The alleged untruthful statements are contained in paragraph 8 of the search warrant affidavit, which states in relevant part:

In this document, Johnson advised that he [had] been at a party at Scott Whitney’s DOB 08/19/71, apartment located at 35 Elm Street in Rutland City. Said party was on 01/14/95. While there, Scott Whitney asked Johnson if he had $500.00 as he, Whitney, could give him $2500.00. Johnson told MJhitney that he only had 40.00 and gave this money to Whitney who then left the apartment, leaving the door open, and then entered the subject’s apartment who fives across the hall, Joseph Brygod-zinski. Brygodzinski had been at Whitney’s party and had left the party, returning to his apartment across the hall. Johnson then viewed Whitney open a trunk and retrieve a stack of money and gave same to Johnson. Johnson stated that this trunk was full of money.
Under Franks v. Delaware,
[t]here is ... a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentia-ry hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.... The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

438 U.S. at 171-72, 98 S.Ct. at 2684.

In the instant case, the defendant has not met his burden of demonstrating by a preponderance of the evidence that he is entitled to a further hearing under Franks or that the items seized from his apartment must be suppressed. See id. at 156, 98 S.Ct.

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Related

Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
United States v. Robert Lee Hager
969 F.2d 883 (Tenth Circuit, 1992)
United States v. Ronald J. McAllister
18 F.3d 1412 (Seventh Circuit, 1994)

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Bluebook (online)
902 F. Supp. 73, 1995 U.S. Dist. LEXIS 20294, 1995 WL 631683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brygodzinski-vtd-1995.