United States v. Ponzo

972 F. Supp. 2d 82, 2013 WL 4828497, 2013 U.S. Dist. LEXIS 128212
CourtDistrict Court, D. Massachusetts
DecidedSeptember 9, 2013
DocketCriminal No. 97-40009-NMG
StatusPublished

This text of 972 F. Supp. 2d 82 (United States v. Ponzo) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ponzo, 972 F. Supp. 2d 82, 2013 WL 4828497, 2013 U.S. Dist. LEXIS 128212 (D. Mass. 2013).

Opinion

MEMORANDUM & ORDER

GORTON, District Judge.

This case arises out an investigation of members and associates of the Patriarca organized crime family, a faction of New England La Cosa Nostra. Enrico Ponzo (“Ponzo”), an alleged associate, disappeared in 1994, three years before he and others were indicted for (among other things) conspiracy to commit murder, violent crimes in aid of racketeering, and firearms violations. He was apprehended in February, 2011, in Marsing, Idaho, where he had been living under an assumed name. Pending before the Court is Ponzo’s motion to suppress evidence obtained during searches of his Idaho residence.

I. Facts

In January, 2011, the FBI received a tip that a person resembling Ponzo who went by the name “Jay Shaw” was living at 6107 Hogg Road, Marsing, Idaho. Special Agent Douglas Hart (SA Hart) investigated Shaw’s credit history and other records. Based on his findings, SA Hart believed that it was very likely that Shaw and Ponzo were the same person.

On February 7, 2011, federal and state agents and officers apprehended Ponzo as he was driving to a visit a neighbor. What happened next is not entirely clear. SA Hart states in his affidavit that Ponzo mentioned to the arresting officers that he had two children, while Ponzo avers that an agent simply asked him about his children’s whereabouts. In any event, Ponzo initially refused to tell the agents where the children were and, instead, asked to speak with his attorney. When the agents asked again, he either told them that the children were not at home or that they were in Utah with their mother. At some point during that conversation, Ponzo and the agents observed a school bus drop off children who lived in the neighborhood. Ponzo’s children were not among them.

According to SA Hart, agents had earlier observed a playground at the residence and were concerned that Ponzo’s children were at home and would be left unattended while Ponzo was transported to the county jail for fingerprinting. Out of an “abundance of caution,” they decided to inspect Ponzo’s residence to determine if the children were there or not.

What happened next is also unclear, mainly because the parties disagree about the layout of the property at 6107 Hogg Road. The property consists of a residence and a 12-acre cattle ranch. According to Ponzo’s affidavit, there is a fence around the entire 12-acre ranch with a “No Trespassing” sign posted close to the entrance [85]*85to the property from the main road. He also states that the residence on the property is only accessible from the main road via a private driveway that is a quarter mile long. According to Ponzo, there is a second fence equipped with an electric wire around the residence that was locked when he left his property on the day he was arrested and the inner yard was patrolled by a specially-trained guard dog. The government disagrees with Ponzo’s description of the property but does not offer its own account.

Both sides agree that agents reached the front door. According to SA Hart, agents could hear a radio or television playing inside but nobody responded to their knocks. They could see what they thought was a weapon through a window near the front door. SA Hart referred to it as a “rifle” in his search warrant affidavit but Ponzo contends that agents should have been able to tell that it was an air rifle based upon its appearance. Agents also saw a surveillance camera mounted in a window. SA Hart states that agents never entered the house and departed once they were satisfied that nobody was home.

Meanwhile, agents took Ponzo to the county jail for fingerprinting which confirmed that he was a Enrico Ponzo. They also spoke with several neighbors, four of whom reported that Ponzo had been acting strangely and that his wife had left him and taken their children to Utah, and one who said that Ponzo regularly patrolled the property at all hours. Another neighbor, William Clapier, reported that Ponzo had mentioned possessing firearms and had brought and used an AR-15 rifle when they went target shooting in October, 2010. SA Hart was able to conclude from those conversations that Ponzo had been living at 6107 Hogg Road for at least eight years.

Based on the gathered information, SA Hart sought and obtained a warrant to search the property at 6107 Hogg Road for evidence relating to Ponzo’s false identities, his sources, of income while living as a fugitive and possession of firearms. Officers executed the warrant on February 8, 2011, and discovered dozens of firearms, thousands of rounds of ammunition, dozens of publications regarding false identities, a false identification kit and more than $15,000 in currency.

On March 24, 2011, SA Hart applied for and obtained a warrant to seize computers and computer equipment from the residence. In a supporting affidavit, SA Hart stated that agents observed these items during their February, 2011, search pursuant to a warrant. He added that an anonymous cooperating witness reported receiving emails from Ponzo/Shaw during the time that Ponzo lived at 6107 Hogg Road and another anonymous cooperating witness said that he or she had seen Ponzo using a computer inside of the residence. SA Hart asserted that, based on his training, experience and knowledge of the facts of the case, there was probable cause to believe that the computers and equipment would contain evidence relating to Ponzo’s false identities, financial support during the time that he was a fugitive and other matters. Agents executed the warrant on March 28, 2011.

Ponzo moves to suppress all evidence obtained as a result of the February 8 and March 28 searches. He has submitted a memorandum in support of his motion and a reply to the government’s opposition thereto.

II. Analysis

A. February 8, 2011, Search

Ponzo argues that the warrant authorizing the February 8, 2011 search was [86]*86not supported by probable cause. He first contends that agents violated his Fourth Amendment rights because they entered the curtilage of his home in the absence of exigent circumstances. As a result, he argues, the air rifle and the surveillance camera could not be used to establish probable cause because they were the fruits of an unconstitutional search. The government disputes Ponzo’s description of the layout of his property and contends that no search occurred because agents had implied consent to walk up to Ponzo’s front door and knock. The government also argues in the alternative that the warrantless search fell within the exigent circumstances exception given agents’ concern about the possibility that children would be left alone in the house while Ponzo was being fingerprinted.

The Court declines to resolve these factual disputes or to decide whether agents violated Ponzo’s Fourth Amendment rights by entering his property without a search warrant. Instead, it presumes, for the sake of argument, that agents discovered the air rifle and surveillance camera in the course of an illegal search and then ponders whether the subsequent search pursuant to a warrant “was in fact a genuinely independent source of the information and tangible evidence at issue here.” Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

The “independent source” inquiry involves a two-part test.

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Bluebook (online)
972 F. Supp. 2d 82, 2013 WL 4828497, 2013 U.S. Dist. LEXIS 128212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ponzo-mad-2013.