W.D.N.Y.: Rental car not described in SW parked three doors down from house could not be searched under that SW

Defendant rented the car, so he had standing. The warrant for his house did not describe vehicles, and the rental car was parked three doors down, so it was not within the warrant. The motion to suppress should have been granted. United States v. Spencer, 2011 U.S. Dist. LEXIS 18639 (W.D. N.Y. January 26, 2011), adopted and motion to reconsider denied United States v. Spencer, 2011 U.S. Dist. LEXIS 18641 (W.D. N.Y. February 25, 2011):

Defendant’s rental car, however, was parked down the street from that address, approximately three doors down. That vehicle’s location is beyond the scope of the warrant, which does not describe any particular vehicle to be searched. The police thus needed either a warrant expressly identifying that vehicle, the present warrant expressly including such vehicles as are in defendant’s possession (regardless of whether they were on 509 North Fifth Street) or consent by defendant or other exception from the warrant requirement to search it. A warrantless search of an automobile has been found to be reasonable, e.g., United States v. Ross, 456 U.S. 798 (1982), provided that this search is supported by probable cause. As discussed above, there is not a sufficient record to determine if there was probable cause to issue the warrant, much less to search a vehicle doors away from defendant’s property without an assertion that defendant concealed contraband in that vehicle. It is not clear from this record that defendant (or anyone else) consented to the search of the vehicle. On this basis, defendant’s motion to suppress should be granted.

Defendant failed to show that this FPD was ineffective for not pursuing a motion to suppress. The court finds that the defendant got half the sentence from his plea he risked by trial, and the FPD talked to him about the motion to suppress and it was a considered decision to waive the motion to suppress. United States v. Louie, 2011 U.S. Dist. LEXIS 18647 (E.D. February 25, 2011).*