ORDER

MARK L. WOLF, District Judge.

It is hereby ORDERED that, by June 20, 2014, each of the parties shall submit a memorandum addressing:

1. Whether the claim asserted in defendant William Sedoma's Motion to Vacate, Set Aside, or Correct His Sentence Under 28 U.S.C. §2255 (Docket No. 397) (the "§2255 Motion") is procedurally defaulted because it was not advanced on direct appeal. See Oakes v. United States, 400 F.3d 92, 95 (1st Cir. 2005); Derman v. United States, 298 F.3d 34, 44 (1st Cir. 2002).

2. The implications for the merit of the §2255 Motion, if any, of the contents of Sedoma's January 22, 2001 Motion to Suppress (Docket No. 246). A copy of that motion, which the parties have reportedly been unable to locate, is attached to this Order.

3. Whether the evidence that Sedoma sought to suppress represented a more significant component of the prosecution's case with regard to some of the charges of which Sedoma was convicted than with regard to other charges.

4. Whether Sedoma's Motion to Amend by Adding Claim (Docket No. 406) is meritorious. The parties' submissions shall address, among other things, whether the claim that Sedoma seeks to add to his §2255 Motion would "relate back" to the date on which the §2255 Motion was filed under Federal Rule of Civil Procedure 15(c)(1)(B). See United States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005); Turner v. United States, 699 F.3d 578, 585 (1st Cir. 2012).

5. Any additional matters that have not been adequately addressed in prior submissions.

Motion to Suppress

Now comes the Defendant, William Sedoma, pursuant to Rule 12 (b)(3) and Rule 41(f) of the FRCP, and respectfully requests that this court suppress all tangible evidence obtained as a result of a search of the following areas and/or objects:

In support of this motion, the Defendant relies on the memorandum of law submitted contemporaneously herein.

Memorandum in Support of Motion to Suppress

Factual Background:

For purposes of this Motion, the Defendant assumes, without admitting, that the factual allegations contained in an affidavit of John D. O'Neil submitted in support of an application for a search warrant are true (Copy of Affidavit attached hereto).

The salient facts are contained in paragraphs 10-12 of the affidavit. They are as follows:

On or about October 28, 1999, Sedoma was indicted along with Alan Theberge and five others. Sedoma was arraigned on November 9, 1999, and placed on administrative leave. His office at the police station was closed and locked. On or about December 17, 1999, Chief George Arruda contacted O'Neil in order to inform him that approximately two weeks earlier he had entered Sedoma's locked office "to look for and retrieve files pertaining to open investigations which had previously been assigned to Detective Sedoma". The stated purpose of this search was to reassign investigations in progress to other detectives. While in Sedoma's office Arruda "came across" a file marked "Club Changes". Apparently, the manner in which Arruda "came across" the "Changes" file was to break open the locked desk of Detective Sedoma.1 After observing the "Changes" file, Arruda replaced it in the desk (where it had been discovered) and left the office, locking it behind him. Based on the observations relayed by Chief Arruda, O'Neil sought and obtained a search warrant from a magistrate in the Rhode Island District Court. That particular warrant authorized a search only of the file labeled "Club Changes".

On December 27, 1999, O'Neil sought and obtained a second search warrant authorizing a more general search of Sedoma's office. The basis for this second warrant was the information allegedly discovered in the search of the "Changes" file.

Sedoma seeks suppression of all evidence obtained as a result of the initial search conducted by Chief Arruda as well as the two subsequent searches by O'Neil.

Issue presented:

1. Whether the initial search conducted by Chief Arruda violated the Fourth Amendment thus rendering all evidence derived from that search and subsequent searches inadmissible as a fruit of the poisonous tree.

The first step in the analysis is to determine whether Sedoma possessed a reasonable expectation of privacy in the areas searched, i.e., his desk and his office. Police officers, like other public employees, may or may not possess a reasonable expectation of privacy depending on various factors.

In U.S. v. Speights, 557 F.2d 362 (3'l Cir. 1977), the Third Circuit determined that the Defendant police officer possessed an objective, reasonable expectation of privacy in his police locker. In that case, the police chief obtained information that Speights had a sawed off shotgun in his police locker. At the request of the local prosecutor, the chief opened Speights' locker along with eight others. The locker was secured by a police issued lock and a personal lock. The personal lock was cut with bolt cutters and the police issued lock was opened with a master key. In addition, it was established that there was no regulation barring the use of private locks on lockers; there was no requirement that a duplicate key be provided for the private lock; there was no regulation as to what could be kept in the locker and there was no regulation or notice to the ranks that the lockers might be searched.

Id.

The court was persuaded that these factors clearly established that not only did Speights have a subjective expectation of privacy in his locker but that the expectation was objective as well. Since the chief had failed to obtain a search warrant (the government conceded that the search did not fall into any of the well-recognized expceptions to the warrant requirement), the search of the locker was illegal. Id.

In United States v. Taketa, 923 F.2d 665 (9th Cir. 1991), the Ninth Circuit concluded that a DEA agent possessed a reasonable expectation of privacy in his airport office. The Court reached this conclusion despite the fact that other employees had access to the office. The Court was persuaded by the fact that no regulation provided for a right of inspection, the office was not open to the public and not subject to regular inspections by DEA personnel. Id. at 672-673.

The Defendant wishes to bring to the Court's attention the fact that there are reported cases wherein the courts concluded that law enforcement personnel did not possess a reasonable expectation of privacy in the areas searched. However, as will be seen, these cases are all distinguishable on their facts. E.g. Shaffer v. Field, 484 F.2d 1196 (9th Cir. 1973) (warrantless search of deputy sheriff's locker upheld; locks to lockers had master key possessed by authorities; lockers and locks could be changed at will; and, on at least three occasions in the past, deputies' lockers had been searched by commanders without deputies' permission);

United States v. Bunkers, 521 F.2d 1217 (9th Cir. 1974) (search of postal employees locker upheld because there was a regulation allowing such searches for reasonable cause; the Defendant had been fully advised of the regulation; there were conditions placed upon the use of the locker and the government reserved the right to search all lockers ).

In the most recent case that has dealt with this issue, DeMaine v. Samuels, Case No. 3:98CU34 (JBA) (Conn. 2000), a District Judge of the United States District Court in Connecticut ruled that a Connecticut State Trooper did not possess a reasonable expectation of privacy in his desk, his computer and his state issued automobile. However, in making this determination, the court considered the following factors: the state trooper's admission that his computer and desk did not fall within the ambit of a reasonable expectation of privacy; the fact that he shared his computer with other detectives and that the use of state computers was subject to monitoring; and most importantly, the fact that there was a Connecticut State Police Administration and Operations manual which contained a provision that the personal property of a trooper located on department property or within a department vehicle is subject to inspection or seizure without notice even if the trooper has locked any container or place where the property is kept.

In this case, the Defendant is prepared to make the following representations through testimony or affidavit: His office was a private area with no authorized access by the public or other officers; his desk contained a lock to which he possessed the only key; the chief did not possess a duplicate key; there was no regulation which allowed for the random searches of desks, offices or lockers; that to the best of the Defendant's knowledge, no inspections or searches of officers' desks, offices or lockers had occurred in his nineteen years of service; that files of pending investigations were not kept in his private office but were located in a common area.

These factors, if true, would certainly establish that Sedoma possessed a reasonable expectation of privacy in both his locked office and his locked desk. Moreover, the fact that files of pending investigations were not kept in Sedoma's office and the fact that the Chief waited several weeks before bothering to locate these files is a sure indication that the search of the office and desk was not for a mere noninvestigatory work-related purpose, i.e. retrieving needed files. See Cerrone v. Cahill, 84 F.Supp.2d 330, 334-336 (N.D.N.Y. 2000) (where targeted police misconduct relates to a criminal investigation, even if it arises out of work-related misconduct, probable cause is the appropriate standard).

The Chief of Police was required to obtain a search warrant before searching the locked desk and office of Detective Sedoma. The fact that he did not renders all evidence derived therefrom inadmissible as fruit of the poisonous tree.

The Defendant respectfully requests that his motion be granted.