United States v. El-Gabrowny

825 F. Supp. 38, 1993 U.S. Dist. LEXIS 8481, 1993 WL 228358
CourtDistrict Court, S.D. New York
DecidedJune 23, 1993
DocketNo. S1 93 Cr. 181 (MBM)
StatusPublished
Cited by1 cases

This text of 825 F. Supp. 38 (United States v. El-Gabrowny) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. El-Gabrowny, 825 F. Supp. 38, 1993 U.S. Dist. LEXIS 8481, 1993 WL 228358 (S.D.N.Y. 1993).

Opinion

OPINION AND ORDER

MUKASEY, District Judge.

Defendant Ibrahim El-Gábrowny has been indicted on two sets of charges growing out of the February 26; 1993 bombing of the World Trade Center complex. The first group of charges arises from his alleged assault on an agent engaged in executing a search warrant at his apartment on March 4, 1993; the second arises from his alleged possession of forged and altered passports and birth certificates at the time of the alleged assault that is the subject of the first [40]*40group of charges. He has moved to suppress the documents that are the. subject of the second- group of charges, and has argued two alternative theories to support his motion: that the alleged assault did not happen the way the government claims it happened, and that even if it did the agents had no legal basis to search him.

At a pretrial conference on May 20, 1993, it was agreed that to decide the motion before trial based on defendant’s first theory would require two trials of the assault case— one in the setting of a suppression motion and the other the trial itself, which would have to go forward regardless of the outcome of the motion. Therefore, it was agreed that that decision will abide the trial, where defendant may testify or present other evidence out of the presence of the jury in connection with the suppression motion if he chooses to do so. It was agreed that defendant’s second theory, that the government lacked a legal basis to search him even on its own version of the facts, can be decided based on the papers submitted thus far, which include both a sworn complaint and an affidavit setting forth the government’s version of the facts. (5/20/93 Tr. 2-4)

For the reasons set forth below, the motion, insofar as it is based on defendant’s second theory, is denied.

I.

On February 26, 1993, a bomb exploded in a garage at the World Trade Center complex in Manhattan, causing six deaths, numerous injuries, and massive destruction. A search through the debris at the explosion site disclosed parts of the vehicle that had contained the bomb, including a part that carried.the alpha-numeric impression of a portion of the vehicle’s identification number. (Kuby/Kun-stler Aff.Ex. B, p. 2) The vehicle was identified and traced to a rental company, where it was determined that it had been rented by a person named Mohammad Salameh, who carried a New York driver’s license with the address 57 Prospect Park, S.W., Apartment 4C, Brooklyn, New York. (Id at 2-3) Sala-meh was arrested on the morning of March 4, 1993, and the fact of an arrest was widely broadcast the same day. (Kunstler/Kuby Aff.Ex. C, p. 3) Also on that day, a magistrate judge in Brooklyn issued a search warrant for the apartment referred to on Sala-meh’s license, which is the residence of this defendant and his family.1 That warrant authorized a search for explosives and related devices, among other things. (Kun-stler/Kuby Aff.Ex. A)

The same day, agents went to defendant’s address to execute the warrant. The government’s version of what happened when they got there is contained in the complaint sworn to March 4, 1993, and in the somewhat more. expansive May 11, 1993 affidavit of Thomas F. Corrigan, a detective with the New York City Police Department assigned to a task force operating under federal authority. According to the Corrigan affidavit, officers waiting outside defendant’s apartment building saw him leave the building and begin to walk down the block,' and an order was given to execute the search warrant. At that time, defendant suddenly stopped, turned around, and began to walk back toward the building, where he could see law enforcement officers entering the building to execute the warrant. (Corrigan Aff. ¶¶ 3-5) Corrigan’s account continues as follows:

6. As the defendant walked towards the building in which fellow law enforcement personnel were executing the search warrant, his hands were in his coat pockets and as he approached the building his pace quickened.
7. Fearing that the defendant posed a threat to the agents and officers executing the search warrant, I followed the defendant. When I caught up to him, I identified myself as a police officer (I also was wearing my FBI-NYCPD “raid jacket” and my identification shield) and removed the defendant’s hands from his pockets to determine whether he had any weapons in his hands.
8. After further identifying myself as a police officer, I requested that the defendant place his hands against a wall. When the defendant refused to comply, I and a fellow member of the [task force] physical[41]*41ly placed the defendant’s hands against the wall.
9. As we did so, I conducted a “pat down” search of the exterior of the defendant’s clothing. As I did so, I felt a rectangular object in the defendant’s breast pocket, which I thought may have been plastic explosives.
10. Realizing we may need assistance, I and another member of the search team then began to escort the defendant toward the building where fellow agents and officers were executing the search warrant'. As we approached the building entrance, we attempted to secure the defendant with his hands placed against the wall.
11. At that time, the defendant abruptly swung his elbow at me, striking me in the face. He also struck the agent who was with me. After the ensuing struggle, we again secured the defendant.
12. After we did so, I removed the rectangular object from the defendant’s pocket, which turned out to be a yellow envelope which was folded and fastened using rubber bands. I then handed the object to a Special Agent of the Bureau of Alcohol, Tobacco and Firearms who was more familiar with handling explosives. ■ He carefully opened the package, and determined there were no explosives in the package. Instead, the inspection revealed that the envelope contained passports and other documents. He then returned the envelope to me and I removed the items. (Id.)

II.

Defendant argues that the agents had no basis under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or otherwise to stop him on the street, that it appears they were content to let him walk away from the search location, that it was entirely natural and innocent for him to quicken his pace as he saw “a swarm” (Def.Reply Mem. 4) or “a host” (Id. at 5) of law enforcement agents “streaming into” (Id. at 6) his apartment building, that it was clear defendant posed no threat and there was no legitimate basis to force him back toward his apartment building. He urges that, like the bar patrons in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), he was in a public place where he had every right to be and there was never a lawful basis to search him. He urges that the rectangular object in his pocket could not have generated a fear that he was carrying plastic explosives because the World Trade Center was detonated with a different kind of bomb.

Defendant also maintains that the search of the envelope cannot be justified even if the arrest was otherwise proper.

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Related

United States v. El-Gabrowny
876 F. Supp. 495 (S.D. New York, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
825 F. Supp. 38, 1993 U.S. Dist. LEXIS 8481, 1993 WL 228358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-el-gabrowny-nysd-1993.