Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 1 of 43 PageID #: 4496

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA

– against –

MEMORANDUM AND ORDER
ON MOTIONS TO SUPPRESS
15-CR-382

KAMEL LAMBUS, STANLEY FULLER, ET
AL.,
Defendants.

JACK B. WEINSTEIN, Senior United States District Judge:
APPEARANCES
United States:

Robert L. Capers
United States Attorney, E.D.N.Y.
By: Michael P. Robotti
Lauren Howard Elbert
Marcia Maria Henry
271 Cadman Plaza East
Brooklyn, NY 11201

Kamel Lambus:

Ronald Rubinstein
Joseph R. Corozzo
Agatha M. Cole
Rubinstein & Corozzo, LLP
260 Madison Avenue
22nd Floor
New York, NY 10016

Stanley Fuller:

James Kousouros
Law Office of James Kousouros
260 Madison Avenue
22nd Floor
New York, NY 10016

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 2 of 43 PageID #: 4497

Table of Contents
Introduction ........................................................................................................................... 1

I.

II. Facts ....................................................................................................................................... 2
a.

Charges Against Lambus and Fuller ............................................................................... 2

b. State Supervision of Lambus and Coordination between State and Federal Law
Enforcement Agencies .............................................................................................................. 2
c.

The Instant Investigation and the Attachment of the Tracking Device........................ 3

d. Initial Wiretap Application ............................................................................................... 8
e.

Subsequent Wiretaps ....................................................................................................... 12

III.

Law .................................................................................................................................... 14

a.

Standard of Review on Motion to Suppress Location Data ......................................... 14

b. Standard of Review on Motion to Suppress Evidence Gathered from January 9, 2015
Wiretap .................................................................................................................................... 14
c.

Fourth Amendment Prohibition of Unreasonable Searches and Seizures ................. 17

d. Reasonableness of Warrantless Searches of Parolees Conducted Pursuant to “Special
Needs” ...................................................................................................................................... 18
e. Reasonableness of Warrantless Searches of Parolees under a “Totality of the
Circumstances” Test ............................................................................................................... 21
IV.

Monitoring: Application of Law to Facts ...................................................................... 23

a.

Constitutionality of the Electronic Monitoring Search ................................................ 23
i.

Nature and Purpose of the Search .............................................................................. 23

ii.

Lambus’s Reasonable Privacy Expectations .......................................................... 27

iii.

Totality of the Circumstances .................................................................................. 31

iv.

Lack of Counsel ........................................................................................................ 31

b. Good Faith Exception to the Exclusionary Rule ........................................................... 32
V.
VI.

Motion to Suppress Recordings from Wiretap Authorized on January 9, 2015 .......... 37
Conclusion ........................................................................................................................ 41

ii

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 3 of 43 PageID #: 4498

I.

Introduction
This case demonstrates the need to integrate the theory and practice of ostensibly

independent branches of law enforcement—e.g., federal and state judges, federal and state
criminal investigation and law enforcement personnel, and parole and probation supervisors—
with respect to Fourth Amendment rights. To the average member of the public, state and
federal government anti-crime personnel are part of one cohesive unit that investigates and
prosecutes all crimes to protect the community and punish the guilty.
A law enforcement officer, whether employed by a state or the federal government,
whatever his or her title, has the same obligation to enforce the same federal Constitution and to
act reasonably and with some uniformity in enforcing all law.
The federal judiciary is integrated into our national law enforcement establishment. It is
a part of the system of investigation and law enforcement when asked ex parte to approve
applications for wiretaps or to pass upon motions to suppress.
Presented with only the government’s viewpoint and information in ex parte wiretap
application proceedings, a federal trial judge has little choice but to grant the application. See
Wiretap Report 2015, available at http://www.uscourts.gov/statistics-reports/wiretap-report-2015
(in 2015, not a single wiretap application made pursuant to federal or state law was denied; all
4,148 were granted). Coordinate branches of government must define and enforce appropriate
Fourth Amendment conduct to maintain an effective criminal justice system; coordination of
state and federal systems raises substantial questions in the instant case.
Defendants Kemal Lambus and Stanley Fuller are charged with violating 21 U.S.C. §§
841(a)(1), 841 (b)(1)(A)(i), 841(b)(1)(13)(i), 841(b)(1)(C), 846, and 18 U.S.C. § 3551 et seq. by
participating in an extensive drug conspiracy. Defendants move to suppress 1) location tracking
1

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 4 of 43 PageID #: 4499

data that was allegedly obtained in violation of the Fourth Amendment, 2) evidence that the
government gathered as a result of that location tracking data, and 3) wiretapped conversations
that were obtained based on an application to this court for a wiretap that contained perjured
declarations of a federal law enforcement agent.
The motion of Lambus to suppress location data is denied.
The motion to suppress the conversations recorded pursuant to the wiretap authorization
granted on January 9, 2015 in the cases against Lambus and Fuller is granted.

II.

Facts
a. Charges Against Lambus and Fuller
A years-long investigation by the Department of Homeland Security, Homeland Security

Investigations (“HSI”), the Drug Enforcement Agency (“DEA”), and the New York City Police
Department (“NYPD”), resulted in the indictment of alleged members of a drug trafficking
organization known as the “Paper Chasing Goons” or “POV City” (the “DTO”). Complaint,
ECF No. 1. Allegedly, for several years, the DTO gang distributed heroin in South Jamaica,
Queens. Id. In August 2015, a grand jury in the Eastern District of New York issued an
indictment of Lambus, Fuller, and others. Indictment, ECF No. 61 at ¶¶ 1-3.
b. State Supervision of Lambus and Coordination between State and Federal
Law Enforcement Agencies
Lambus has been the subject of federal and state law enforcement interest for many
years. Prior to his arrest in the instant case, he had been convicted of several crimes under New
York law: attempted criminal possession of a controlled substance in the 3rd degree (New York
Penal Law (“NYPL”) 220.39) (sentenced to 1 year of imprisonment); attempted criminal
possession of a weapon in the 2nd degree (NYPL 265.03) (sentenced to 4 years of imprisonment
2

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 5 of 43 PageID #: 4500

and 5 years of post-release supervision); attempted criminal possession of a controlled substance
in the 5th degree (NYPL 220.06) (sentenced to 2 years of imprisonment and 2 years of postrelease supervision); and criminal possession of a controlled substance in the 5th degree (NYPL
220.06) (sentenced to 2 years of imprisonment and 1 year of post-release supervision). Jan. 9,
2015 Popolow Aff., attached as Exhibit B to the Government’s Mem. in Opp. to Def.’s Motion
to Suppress, ECF No. 287-2 (“Jan. 9, 2015 Aff.”), at ¶ 41.
According to the government, New York State Department of Corrections and
Community Supervision (“NYSDOCCS”) Bureau of Special Services (“BSS”) Investigator
Scanlon “began coordinating [BSS’s investigation into Lambus’s drug trafficking activities] with
[federal] HSI and other law enforcement agencies” in June 2013. Government’s Mem. in Opp.
to Def.’s Motion to Suppress, ECF No. 287, at 15; Dec. 1, 2016 Hr’g Tr. (“Hr’g Tr.”) at 104:9105:14. This cooperation continued until his arrest on July 8, 2015. Government’s Mem. in
Opp. to Def.’s Motion to Suppress, ECF No. 287, at 15. As described infra, the global
positioning system (“GPS”) monitoring of Lambus was repeatedly cited as evidence of probable
cause in HSI’s applications for wiretaps that HSI used to further its investigation of the
defendants.
c. The Instant Investigation and the Attachment of the Tracking Device
On March 7, 2012, Lambus was released from the sentence of imprisonment he was
serving in connection with his 2010 conviction. Certificate of Release to Parole Supervision,
attached as Exhibit L to the Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No.
287-12 (“Certificate of Release”). Two days before release, he signed a “Certificate of Release
to Parole Supervision” which acknowledged that he would be subject to post-release supervision
by NYSDOCCS for a period of three years, four months, and 25 days. Id. Among other

3

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 6 of 43 PageID #: 4501

conditions of release, Lambus agreed to: “permit [his] Parole Officer to visit [him] at [his]
residence and/or place of employment and … permit the search and inspection of [his] person,
residence, and property;” “not be in the company of or fraternize with any person I know to have
a criminal record;” “abide by a curfew established by the [Parole Officer];” and “fully comply
with the instructions of [his] Parole Officer and obey such special additional written conditions
as he or she, a Member of the Board of Parole or an authorized representative of the Division of
Parole, may impose.” Id.
Soon after beginning his parole supervision, Lambus was “flagged” by the NYSDOCCS
Inspector General’s (“IG”) office. He had sent a letter and photographs to a state inmate which
raised suspicions that he was selling narcotics. See Apr. 5, 2013 Scanlon Email, attached as
Exhibit N to the Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-14
(“Apr. 5, 2013 Scanlon Email”) and Intercepted Lambus Letter, attached as Exhibit O to the
Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-15 (“Intercepted
Lambus Letter”). Responding to this information, the IG and the federal Drug Enforcement
Administration (“DEA”) began a more active investigation of Lambus. See Apr. 5, 2013
Scanlon Email.
On March 17, 2013, NYSDOCCS conducted a curfew visit at Lambus’s residence; he
was not home. Parolee Chrono Report, attached as Exhibit M to the Government’s Mem. in
Opp. to Def.’s Motion to Suppress, ECF No. 287-13 (“Parolee Chrono Report”), at 38.
Lambus’s girlfriend informed the defendant’s parole officer that he was out visiting the mother
of his child in Brooklyn. Id.
On April 5, 2013, an entry into NYSDOCCS’s electronic tracking system for parolees
was made by Parole Officer (“P.O.”) Candace Benjamin at 10:00 am. Parolee CMS, attached as

4

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 7 of 43 PageID #: 4502

Exhibit P to the Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-16
(“Parolee CMS”), at 5-6. Michael Resnick, the Chief of the NYSDOCCS Queens III Bureau
(which was responsible for supervising Lambus’s release at that time), had provided P.O.
Benjamin with “confidential information regarding [Lambus]. Intelligence has been received
from other law enforcement entities that subject is apparently involved in illegal
activities…Night curfew visit requested by BSS and residence to be searched for contraband and
to determine if the residence or record resembles the location where photos posted on Facebook
may have occurred.” Id.
At 5:37 pm that same day, NYSDOCCS Bureau of Special Services (“BSS”) Investigator
Thomas Scanlon sent an email to Chief Resnick, P.O. Benjamin, and another P.O. updating them
on the DEA/IG investigation. See Apr. 5, 2013 Scanlon Email. BSS is the investigative arm of
NYSDOCCS; “supervisory bureaus” (e.g. Queens Bureau III) directly oversee parolees and
probationers. See Hr’g Tr. at 57:11-59:18.
The DEA had stopped pursuing the investigation of Lambus when it failed to reveal that
he was attempting to distribute drugs in NYSDOCCS facilities. Apr. 5, 2013 Scanlon Email.
BSS, under Scanlon’s initiative, however, decided to continue investigating leads as to “Lambus’
activities” because his “employment and residence are suspect.” See Hr’g Tr. at 73:18-74:13;
Apr. 5, 2013 Scanlon Email. BSS also forwarded to Chief Resnick “Lambus’ facebook
photos…of what appear to be large amount of US currency.” Apr. 5, 2013 Scanlon Email.
Investigator Scanlon ended his email by noting that the Facebook photos, the letter that the IG
and DEA investigated, his recent change in residence, his curfew violations, and his criminal
history indicated to BSS that Lambus “may be engaged in behavior contrary to his release
agreement.” Id. BSS, on Scanlon’s initiative, promised to “continue to investigate and identify

5

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 8 of 43 PageID #: 4503

possible locations, individuals, and vehicles which may be associated to Lambus,” and to “assist
[the Queens III Bureau] staff” “with a search of Lambus’ residence and appropriate follow-up,
in a cooperative effort to attempt to determine if Lambus is in compliance with the terms of his
release agreement.” Id.
On April 9, parole officers searched Lambus’s residence and found marijuana cigarette
butts in an ashtray in his living area. Parolee Chrono Report at 36. Lambus claimed that they
did not belong to him. Id. On May 2, NYSDOCCS received an anonymous email that reported
that Lambus was still engaged in drug dealing. Parolee CMS at 3-4. NYSDOCCS decided to
conduct a curfew visit and to continue to conduct periodic searches of Lambus’s residence. Id.
When NYSDOCCS conducted a curfew visit on at Lambus’s place of residence on May 5, he
was not home in violation of his curfew. Parolee Chrono Report at 33.
On May 6, at 9:15 am, Lambus’s P.O., Trudy Kovics, made a redacted entry onto
Lambus’s Parolee Chrono Report. Id. at 33. In the Parolee Chrono Report, there are several
entries that have been redacted as “exempt from public disclosure pursuant to Section 87(2)(A),
(B), (F), and (G) of the Public Officers Law and 9 NYCRR Section 8000.5(C)(2).” See id. at 35,
36. With the exception of this May 6 entry, each entry in the Parolee Chrono Report containing a
redaction is explained in the Parolee CMS entries the government submitted. An April 5, 2013
redaction in the Chrono Report corresponds with a CMS entry describing NYSDOCCS receiving
intelligence about Lambus from “other law enforcement entities,” See Parolee CMS at 5-6
(discussed supra) and id. at 3-4 (an entry on May 2, 2013 which corresponds with a CMS entry
describing NYSDOCCS receiving an anonymous email tipping it off to alleged illegal activity by
Lambus).

6

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 9 of 43 PageID #: 4504

The entry immediately following the redacted entry of May 6 was made only 30 minutes
later that same day. It reads: “Conf w/ SPO Browne, [Lambus] to be placed on electronic
monitor when he [reports] on 5/8/13.” Parolee Chrono Report at 33. According to Scanlon, this
decision was made solely in the discretion of the NYSDOCCS supervisory bureau, and not at the
behest of BSS or any federal law enforcement agency. Hr’g Tr. at 98:5-13.
NYSDOCCS decided to place a tracking device on Lambus to learn if he was complying
with the conditions of his parole—primarily curfew. Id. On May 8, 2013, it placed an electronic
monitoring bracelet on Lambus’s ankle. Parolee Chrono Report at 33. Lambus signed a
certification acknowledging that GPS monitoring was a special condition of his release that
would “remain in effect until the termination of [his] legal period of supervision,” which could
last until August 2, 2015. Special Conditions Acknowledgement, attached as Exhibit R to the
Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-18 (“Special
Conditions Acknowledgement”).
According to Lambus, he was “coerced” into giving his consent because Parole
Supervisor Parker told him that “he would violate [Lambus] and send [him] back upstate to
prison unless I agree to have a GPS ankle bracelet installed on me.” Apr. 14, 2016 Lambus Aff.,
attached as Exhibit H to Lambus’s Supplemental Mem. in Supp. of Suppression, ECF No. 266-2
(“Apr. 14, 2016 Lambus Aff.”), at ¶¶ 14, 25. Lambus also said that Supervisor Parker told him
he would only have the GPS on him for 3-6 months, but the ankle bracelet remained on until his
arrest over two years later on the federal charges he now faces. Id. at ¶¶ 16, 29. Both Lambus’s
affidavit and the Parolee Chrono Report confirm that he repeatedly asked to have the GPS
tracking device removed. Id. at ¶¶ 18-24; Combined Parolee Chrono Report, attached as Exhibit
A to Lambus’s Supplemental Mem. in Supp. of Suppression, ECF No. 266-1, at 9-12

7

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 10 of 43 PageID #: 4505

(documenting seven separate occasions, from October 23, 2013 through June 25, 2014, when
Lambus asked his parole officer about removing the GPS tracking device).
d. Initial Wiretap Application
On January 9, 2015, Special Agent Christopher Popolow of the HSI Narcotics/Violent
Gang Unit submitted an affidavit to a judge of this court in support of an application to intercept
wire and electronic communications received and sent by a subject telephone number (the “5283
Telephone”) for 30 days. See Jan. 9, 2015 Aff. The 5283 Telephone was being used by Earl
“Choice” Davis, a target of the investigation. Id. at ¶¶ 3, 12. The purpose of the Special Agent’s
request was to assist in a HSI investigation of a group of individuals in the Bloods gang in
Queens that had been ongoing “[s]ince 2013.” Id. at ¶¶ 5-9; 25. The “Targets” section of the
affidavit listed a dozen individuals, including Lambus and Fuller. Id. at ¶¶ 11-23.
Crucially, in a section titled “Prior Applications,” the Special Agent wrongly stated: “As
of December 22, 2014, a check of federal law enforcement databases, including FBI, DEA, ATF,
and HSI databases, indicate that there have been no prior applications seeking Court
authorization to intercept the wire, oral, or electronic communications of the Target Subjects or
over the SUBJECT TELEPHONE.” Id. at ¶ 24 (emphasis added).
The federal wiretap statute requires an officer applying for a wiretap authorization to
include a “full and complete statement of the facts concerning all previous applications” to
wiretap any of the persons targeted in the application. 18 U.S.C. § 2518(1)(e). The provision
reads as follows:
“Each application for an order authorizing or approving the interception of a wire, oral, or
electronic communication under this chapter shall be made in writing upon oath or
affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to
make such application. Each application shall include the following information: […] (e)
a full and complete statement of the facts concerning all previous applications known to
the individual authorizing and making the application, made to any judge for
8

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 11 of 43 PageID #: 4506

authorization to intercept, or for approval of interceptions of, wire, oral, or electronic
communications involving any of the same persons, facilities or place specified in the
application, and the action taken by the judge on each such application.”
18 U.S.C. § 2518(1)(e) (emphasis added).
In his affidavit, the Special Agent dedicated 29 paragraphs to explaining why HSI’s
investigation provided probable cause to believe that the target subjects of the wiretaps were
members of a DTO that was distributing narcotics throughout New York. Id. at ¶¶ 25-53. HSI’s
ongoing efforts to investigate the DTO were broken down into several different categories:
information learned through a confidential informant (“CI”) and through controlled purchases of
narcotics by the CI (id. at ¶¶ 26-30); analysis of toll records derived from a pen register of the
5283 Telephone, which revealed extensive contacts between the 5283 Telephone and other
phones belonging to known narcotics traffickers and other suspected members of the conspiracy
(id. at ¶¶ 31-39); the criminal history of the Target Interceptees (id. at ¶¶ 40-50); and location
data, obtained via judicially authorized warrants, for phones and vehicles belonging to suspected
members of the DTO (id. at ¶¶ 51-53).
The affidavit described in detail other investigative techniques that had been used in the
investigation, what those techniques had uncovered, and how and why those techniques had
either been tried and failed or appeared likely not to succeed in effectuating the objectives of the
investigation. Id. at ¶¶ 54-78. The stated objectives of the investigation were to reveal: “(1) the
nature, extent and methods of operation of the drug business of the Target Interceptees; (2) the
identities and roles of accomplices, aiders and abettors, co-conspirators and participants in their
illegal activities; (3) the distribution and transfer of the contraband and money involved in those
activities; (4) the existence and location of records; (5) the existence, location and source of
resources used to finance their illegal activities; (6) the existence, location and disposition of the

9

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 12 of 43 PageID #: 4507

proceeds from those activities; (7) the existence and location of firearms used in furtherance of
drug trafficking and (8) the existence and locations of items used in furtherance of those
activities.” Id. at ¶ 10.
Techniques employed by law enforcement prior to applying for the wiretap included the
use of confidential sources, undercover agents, physical surveillance, mail covers, search/arrest
warrants, grand jury and/or witness interviews, trash searches, location data, pen registers, trap
and trace devices, toll analysis, subscriber information, pole cameras, and criminal database
checks.
In general, while these techniques revealed information about who was participating in
the DTO and certain locations of relevance, the Special Agent averred that their use would not
catch the targets in the act of committing an offense or allow penetration of the inner workings of
the DTO. See, e.g., id. at ¶¶ 56, 61, 67, 75. Of particular relevance to Defendants’ motions, the
affidavit referred to Lambus and the ankle bracelet he was wearing:
“KAMEL LAMBUS is serving a term of parole in connection with a state narcotics
conviction. As a condition of his parole, LAMBUS is wearing an electronically
monitored ankle bracelet, which provides location data for his whereabouts on a periodic
basis. This location data has assisted agent in identifying locations where members of
the conspiracy conduct their narcotics trafficking operations. Specifically, this location
data has assisted investigators in identifying the location of suspected stash houses such
as 119-26 165th Street, 107-53 Watson Place and 177-38 106th Road.”
Id. at ¶ 71 (emphasis added).
Activity at and near suggested stash house locations—119-26 165th Street, 107-53
Watson Place and 177-38 106th Road—is a common thread that connects several of the subjects
of the investigation. Between July 17, 2013 and November 21, 2014 law enforcement officers
conducted in-person surveillance of those three residences and identified them as “stash houses
used by members of the conspiracy to store and distribute heroin and cocaine base.” Id. at ¶ 60.

10

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 13 of 43 PageID #: 4508

The affidavit explicitly noted that Daykm Trappier, Shavona Trappier, and Kayseem Spencer
appear to meet and socialize at 107-53 Watson Place. Id.
On May 2, 2014, law enforcement officers discovered “cocaine base and drug
paraphernalia during a judicially authorized search” at 177-38 106th Road, and “Kareem
Mitchell, Scott Williams, and Lambus were present at the residence” when the officers
discovered the cocaine. Id. at ¶ 34 n. 15. See also id. at ¶ 18 (“At the time the officers executed
the [May 2, 2014] search, Kareem Mitchell, Scott Williams and Lambus were in the immediate
vicinity of 177-38 106th Road, Queens, New York together.”). The CI communicated with Earl
Davis on the 5283 telephone to arrange buying narcotics from Davis at 177-38 106th Road, and
the CI did so on December 17, 2014. Id. at ¶¶ 27-30. A pen register connected a phone
belonging to Lolita Grissom to the 5283 telephone, and Grissom was with the CI at 177-38 106th
Road “[i]n or about December 2014.” Id. at ¶ 34.
The electronic monitoring bracelet had been placed on Lambus as a special condition of
his release on May 8, 2013, months before any other investigative activity documented in this
affidavit linked those locations to the DTO.
Another connection between the targets was the presence of glassines of heroin that
contained a unique mark. Glassines marked with a gold foil circle with a black fist and the word
“Power” emblazoned on the fist were purchased by the CI from Davis on December 17, 2014,
were in Kasheem Spencer’s possession when he was arrested on November 19, 2014, and were
purchased by another confidential source from Scott Williams on November 10, 2014. Id. at ¶
32.

11

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 14 of 43 PageID #: 4509

A judge of this court approved a government wiretap application on January 9, 2015. See
Jan. 9, 2015 Order, attached as Exhibit A to the Government’s Mem. in Opp. to Def.’s Motion to
Suppress, ECF No. 287-1.
e. Subsequent Wiretaps
On February 12, 2015, Special Agent Popolow applied for a wiretap authorization for
two more telephones believed to be associated with the DTO, a “4421 Telephone” and a “2029
Telephone.” See Feb. 12, 2015 Popolow Aff., attached as Exhibit C to the Government’s Mem.
in Opp. to Def.’s Motion to Suppress, ECF No. 287-3 (“Feb. 12, 2015 Aff.). The affidavit was
largely the same as the previous affidavit, with a few notable additions. Whereas in the prior
affidavit, Special Agent Popolow had averred that “[a]s of December 22, 2014 a check of federal
law enforcement databases…indicate that there have been no prior applications seeking Court
authorization to intercept the wire, oral, or electronic communications of the Target Subjects”
(Jan. 9, 2015 Aff. at ¶ 24 (emphasis added)), a check of those same databases on January 29,
2015 revealed four prior authorizations, from 2003 to 2011, that the government had obtained to
intercept the communications of some of the Target Subjects. Feb. 12, 2015 Aff. at ¶¶ 27-31.
When questioned about this discrepancy at the suppression hearing before this court, the
Special Agent conceded that Paragraph 24 of the January 9 Affidavit was “absolutely wrong.”
Hr’g Tr. at 155:21-23. He testified that he checked the databases, “but not for the full set of
names…it was a couple names. It was not the entire target list.” Id. at 156:3-157:7. The Special
Agent apparently “misunderstood” what he was saying in the affidavit (id. at 157:13-19), and
before he submitted an affidavit in connection with the second wiretap application, an AUSA
told him that he “did it wrong the first time.” Id. at 160:23-25.

12

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 15 of 43 PageID #: 4510

The February affidavit added a few paragraphs describing conversations the government
intercepted pursuant to the prior wiretap authorization on the 5283 Telephone. The wiretap had
intercepted conversations between that phone line and a 2029 Telephone and 4421 Telephone
when individuals involved in the DTO appeared to be discussing narcotics trafficking. Feb. 12,
2015 Aff. at ¶¶ 39-44. The February affidavit also described an analysis of toll records and pen
registers for the 2029 and 4421 Telephones. The 2029 Telephone was being used by a target of
the investigation then known as “Trick,” (id. at ¶¶ 3, 26) and the 4421 Telephone was being used
by Shakeem Powell and Shavona Trappier, two other targets of the investigation. Id. at ¶¶ 3, 22,
24. The affidavit also contained an identical paragraph about how the government is obtaining
location data on Kamel Lambus through use of an electronically monitored ankle bracelet. See
Jan. 9, 2015 Aff. at ¶ 71; Feb. 12, 2015 Aff. at ¶ 93. Another judge of this court approved this
application on February 12, 2015. Feb. 12, 2015 Order, attached as Exhibit D to the
Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-4.
On three more occasions, HSI, through affidavits submitted by Special Agent Popolow,
applied for wiretaps for phones believed to be used by targets in their investigation. See
Popolow Affidavits attached as Exhibits E, G, and I to the Government’s Mem. in Opp. to Def.’s
Motion to Suppress, ECF No. 287-5, -7, and -9 (“Mar. 20, 2015 Aff.”, “Apr. 28, 2015 Aff.”, and
“June 11, 2015 Aff.”, respectively). These applications were approved, respectively, by various
judges of this court on March 20, 2015, April 28, 2015, and June 11, 2015. See Orders attached
as Exhibits F, H, and J to the Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF
No. 287-6, -8, and -10. These three applications contained the same paragraph describing
Lambus’s GPS monitoring as the January 9 and February 15 affidavits, and added a sentence that
“[t]his location data, examined in conjunction with intercepted communications” acquired from

13

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 16 of 43 PageID #: 4511

earlier wiretaps, “suggests” and “demonstrates” that Lambus supplied Trappier and Powell with
heroin. See Mar. 20, 2015 Aff. at ¶ 106; Apr. 28, 2015 Aff. at ¶ 122; June 11, 2015 Aff. at ¶ 136.

III.

Law
a. Standard of Review on Motion to Suppress Location Data
“On a motion to suppress, a defendant bears the initial burden of establishing that a

government official acting without a warrant subjected him to a search or seizure. Once the
defendant has met this burden, the burden…shifts to the government to demonstrate by a
preponderance of the evidence that the search or seizure did not violate the Fourth Amendment.”
United States v. Williams, 2008 WL 4516234, at *4 (W.D.N.Y. Oct. 2, 2008) (internal citations
omitted).
Exclusion of the fruits of an unconstitutional search is not required in every case. “For
exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy
costs.” Davis v. United States, 564 U.S. 229, 237 (2011) (emphasis added). “[T]he deterrence
benefits of exclusion vary with the culpability of the law enforcement conduct at issue.” Id. at
238 (internal quotation marks and alteration omitted). “[W]hen the police act with an objectively
reasonable good-faith belief that their conduct is lawful…the deterrence rationale loses much of
its force.” Id. (internal citations and quotation marks omitted). “[S]earches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” Id. at 232.
b. Standard of Review on Motion to Suppress Evidence Gathered from January
9, 2015 Wiretap
An application for a wiretap pursuant to 18 U.S.C. § 2518 “requires that wiretap
applications provide ‘a full and complete statement of the facts and circumstance relied upon by
14

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 17 of 43 PageID #: 4512

the applicant’ to establish probable cause, and a ‘full and complete statement as to whether or not
other investigative procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous.’” United States v. Rajaratnam, 719 F.3d 139,
144 (2d Cir. 2013) (quoting the statute). “Under Franks [v. Delaware, 438 U.S. 154 (1978)] and
its progeny, if a search warrant contains a false statement or omission, and the defendant makes a
substantial preliminary showing (1) that the false statement or omission was knowingly and
intentionally, or with reckless disregard for the truth, included by the government in a search
warrant affidavit, (2) that the information was material, and (3) that with the affidavit’s false or
omitted material aside, the affidavit’s remaining content is insufficient to establish probable
cause, then the fruits of the search must be suppressed.” United States v. Bianco, 998 F.2d 1112,
1125 (2d Cir. 1993) (citing Franks, 438 U.S. at 155-56) (emphasis added). “[T]o suppress
evidence obtained pursuant to an affidavit containing erroneous information, the defendant must
show that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate
falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were
necessary to the [issuing] judge’s probable cause [or necessity] finding.” Id. at 146 (internal
quotation marks omitted).
“Title III contains its own exclusionary rule. It provides that no intercepted
communications can ‘be received in evidence in any trial * * * if the disclosure of that
information would be in violation of this chapter.’ 18 U.S.C. § 2515. The specific grounds for
exclusion under § 2515 are set forth in § 2518(10)(a). They are that: (i) the communication was
unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted
is insufficient on its face; or (iii) the interception was not made in conformity with the order of
authorization or approval. 18 U.S.C. § 2518(10)(a).” Bianco, 998 F.2d at 1125. Only violations

15

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 18 of 43 PageID #: 4513

of statutory requirements that “play[] a substantive role with respect to judicial authorization of
intercept orders and consequently impose[] a limitation on the use of intercept procedures”
require suppression. United States v. Donovan, 429 U.S. 413, 435 (1977) (internal quotation
marks omitted). The Donovan court’s holding was limited to cases where the defective affidavit
was only “unlawfully made” inadvertently. It did not address the question: is suppression
required, if the violation was committed knowingly or intentionally. See id. at 436, n. 23 (“There
is no suggestion in this case that the Government agents knowingly [violated the statute] for the
purpose of keeping relevant information from the District Court…[i]f such a showing had been
made, we would have a different case.”); see id. at 439, n. 26 (“[T]his case does [not] present an
opportunity to comment upon the suggestion…that suppression might be required if the agents
knew before the interception that no inventory would be served.”) (internal citation omitted).
The specific grounds stated above do not divest the court of its “inherent authority to
regulate the administration of criminal justice among the parties before the bar” through its
general suppression powers. United States v. Cortina, 630 F.2d 1207, 1214 (7th Cir. 1980)
(citing McNabb v. United States, 318 U.S. 332 (1943)). “Federal courts may use their
supervisory power in some circumstances to exclude evidence taken from the defendant by
willful disobedience of the law.” United States v. Payner, 447 U.S. 727, 735 n. 7 (1980)
(internal quotation marks and emphasis omitted). “The inherent supervisory power serves to
ensure that the courts do not lend a judicial imprimatur to any aspect of a criminal proceeding
that smacks of lawlessness or impropriety.” United States v. HSBC Bank USA, N.A., 2013 WL
3306161, at *6 (E.D.N.Y. July 1, 2013). “The courts have wielded this authority substantively,
that is, to provide a remedy for the violation of a recognized right of a criminal defendant.” Id. at
*4 (citing cases). Suppression of evidence is but one remedy available to a court exercising its

16

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 19 of 43 PageID #: 4514

supervisory authority to maintain the integrity of a judicial proceeding. See, e.g., Elkins v.
United States, 364 U.S. 206, 222-24 (1960) (holding that “the imperative of judicial integrity”
requires illegally gathered evidence to be suppressed).
c. Fourth Amendment Prohibition of Unreasonable Searches and Seizures
The Fourth Amendment protects the reasonable expectations of privacy of all people,
including (at least to some degree) parolees. It states:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.
The government’s placement of a device upon a person’s body to track his or her
movements is a trespass that constitutes a search. See, e.g., Grady v. North Carolina, 135 S. Ct.
1368, 1370 (2015); United States v. Jones, 132 S. Ct. 945, 949-51 (2012).
“Although the text of the Fourth Amendment does not specify when a search warrant
must be obtained, this Court has inferred that a warrant must generally be secured.” Kentucky v.
King, 563 U.S. 452, 459 (2011); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)
(“It is well settled under the Fourth and Fourteenth Amendments that a search conducted without
a warrant issued upon probable cause is per unreasonable…subject only to a few specifically
established and well-delineated exceptions.”) (internal quotation marks omitted). This
“presumption may be overcome in some circumstances because the ultimate touchstone of the
Fourth Amendment is reasonableness.” King, 563 U.S. at 459 (internal quotation marks and
alteration omitted). Courts determine whether a search is reasonable under the Fourth
Amendment by “examining the totality of the circumstances.” United States. v. Knights, 534
U.S. 112, 118 (2001) (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)).
17

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 20 of 43 PageID #: 4515

“Whether a search is reasonable is determined by assessing, on the one hand, the degree
to which it intrudes upon an individual's privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S.
843, 847 (2006) (internal quotation marks omitted). If a person is under penal supervision and
subject to searches as a condition of his release, that status is a “salient circumstance” that
“informs both sides of that balance.” Knights, 534 U.S. at 118-19. Parolees, as compared to
probationers, are closer on the “continuum” of state-imposed punishments to prisoners “because
parole is more akin to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at
850. That said, parolees have Fourth Amendment rights. Id. at 850, n. 2 (“Contrary to the
dissent’s contention, nothing in our recognition that parolees are more akin to prisoners than
probationers is inconsistent with our precedents. Nor, as the dissent suggests, do we equate
parolees with prisoners for the purpose of concluding that parolees, like prisoners, have no
Fourth Amendment rights.”).
d. Reasonableness of Warrantless Searches of Parolees Conducted Pursuant to
“Special Needs”
In Griffin v. Wisconsin, the Supreme Court held that warrantless searches of persons
under penal supervision are constitutional because they are justified by the “special needs” of the
probation system which make “the warrant and probable-cause requirement impracticable.” 483
U.S. 868, 873-74 (1987) (internal quotation omitted). In the penal supervision context,
“[s]upervision…is a ‘special need’ of the State permitting a degree of impingement upon privacy
that would not be constitutional if applied to the public at large.” Id. at 875; see also Zielinski v.
DeFreest, 2013 WL 4838833, at *8 (S.D.N.Y. Sept. 10, 2013) (the special need that allows the
government to search without a warrant “derives from the need for supervision… ‘to assure that
[court imposed] restrictions are in fact observed.’”) (quoting United States v. Lifshitz, 369 F.3d
18

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 21 of 43 PageID #: 4516

173, 178 (2d Cir. 2004) (alteration in Zielinski). “[T]he law requires that such greater intrusions
occur pursuant to a rule or regulation ‘that itself satisfies the Fourth Amendment’s
reasonableness requirement.’” United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004)
(quoting Griffin, 483 U.S. at 873).
The pertinent “rule or regulation” pursuant to which the special need searches of state
parolees must be conducted was placed on reasonableness grounds by the New York Court of
Appeals in People v. Huntley, 371 N.E.2d 794 (N.Y. 1977):
“Where… the search and seizure is undertaken by the parolee's own parole officer, in our
view whether the action was unreasonable and thus prohibited by constitutional
proscription must turn on whether the conduct of the parole officer was rationally and
reasonably related to the performance of the parole officer’s duty. It would not be
enough necessarily that there was some rational connection; the particular conduct must
also have been substantially related to the performance of duty in the particular
circumstances.” 371 N.E.2d at 797 (emphasis added).
The Court explained “that the parole officer’s duty has two, sometimes potentially
inconsistent aspects: he has an obligation to detect and to prevent parole violations for the
protection of the public from the commission of further crimes; he also has a responsibility to the
parolee to prevent violations of parole and to assist him to a proper reintegration into his
community.” Id. It emphasized that the special continuing relationship between the parolee and
the parole officer was central to its holding, noting that “conduct which may be unreasonable
with respect to a parolee if undertaken by a police officer may be reasonable if taken by the
parolee’s own parole officer. In general the standard by which the reasonableness of a search or
seizure with respect to a parolee by a police officer is to be measured would be the familiar
requirement of a showing of probable cause.” Id. (internal citations omitted). The lack of
evidence “that the searching parole officers were seeking contraband or evidence in aid of

19

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 22 of 43 PageID #: 4517

prosecution for criminal activity” factored heavily into its analysis that the parole search at issue
was properly conducted for parole purposes. Id. at 798.
Huntley based decisions maintain that opinion’s distinction between permissible searches
conducted for valid supervisory purposes and impermissible searches conducted primarily to
enable the police to gather evidence for general law enforcement purposes. See People v.
Candelaria, 406 N.Y.S.2d 783, 786 (N.Y. App. Div. 1978) (suppressing evidence seized during
a search of parolee’s home conducted by parole officers and police because “a parolee’s status
ought not to be exploited to allow a search which is designed solely to collect contraband or
evidence in aid of the prosecution of an independent criminal investigation…[w]hen the search
is of such a nature, the parole officer becomes the conduit of the police officer in doing what the
police officer could not do himself.”) (emphasis added) (internal citations omitted); People v.
Mackie, 430 N.Y.S.2d 733, 734-35 (N.Y. App. Div. 1980) (“We cannot accept the People’s
argument that the warrantless search was proper as one related to Officer Szczech’s duty to
detect and prevent parole violations. On the contrary, we find from the evidence that the search
was unmistakably a search by police officers to obtain evidence in furtherance of a criminal
investigation and that parole officer Szczech was merely a ‘conduit’ for doing what the police
could not do otherwise.”) (internal citations omitted); People v. Way, 319 N.Y.S.2d 16, 20 (N.Y.
Co. Ct. 1971) (suppressing evidence gathered as a result of an unconstitutional search because if
a parolee’s “privacy is to be invaded from time to time for the protection of the public, and for
his rehabilitation, this may be done only by his parole officer in the course of and for the purpose
of effectively supervising him. This may not be done for the prime purpose of circumventing the
ordinary constitutional processes for the convenience of law enforcement officers in the course
of their investigation.”); People, ex rel. Vasquez v. Warden, 958 N.Y.S.2d 62 (N.Y. Sup. Ct.

20

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 23 of 43 PageID #: 4518

2010) (suppressing evidence where a search by police was done in the presence of parole officers
because the “parole officers’ presence on September 29, 2009 was not parole related, but was to
supply a color of legality to a warrantless entry by the police into a private dwelling in violation
of the parolee’s constitutional protections.”); see also People v. Marcial, 971 N.Y.S.2d 328, 330
(N.Y. App. Div. 2013) (affirming trial court’s decision to suppress evidence where the evidence
was gathered during a search that “had no parole-related objective. Instead, the court found that
the parole officer merely facilitated the police’s contact with the defendant.”) (emphasis added).
The Huntley rule is also in accord with Supreme Court precedent holding that “uncover[ing]
evidence of ordinary criminal wrongdoing” and a “general interest in crime control” are not
special needs that justify suspicionless searches. City of Indianapolis v. Edmond, 531 U.S. 32,
42, 44 (2000)
The Court of Appeals for the Second Circuit has observed, in the context of federal
probation, that both probation officers and law enforcement personnel have “objectives and
duties” that are “unavoidably parallel and…frequently intertwined” because both are concerned
with crime prevention and detection (United States v. Reyes, 283 F.3d 446, 463 (2d Cir. 2002)).
But Huntley cases insist that the duties and objectives of these two branches of law enforcement
are not identical.
e. Reasonableness of Warrantless Searches of Parolees under a “Totality of the
Circumstances” Test
In Samson, the Supreme Court evaluated a warrantless search of a parolee without any
analysis of the special needs doctrine. 547 U.S. at 852 n. 3. Instead, the court examined the
“totality of the circumstances” to determine if a search was reasonable, and therefore
constitutional. Id. at 848. This test required weighing the search’s intrusion on the individual’s
privacy against “the degree to which it is needed for the promotion of legitimate governmental
21

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 24 of 43 PageID #: 4519

interests.” Id. The parolee’s search condition, imposed pursuant to California statute, was a
“salient” circumstance affecting his reasonable expectation of privacy, and the state’s interest in
supervising parolees, previously classified as a “special need,” was simply the “legitimate
governmental interests” on the other side of the scale. Id. at 852-53.
The parolee’s unambiguous awareness that California’s parole regulations required the
parolee to “submit to suspicionless searches by a parole officer or other peace officer at any
time” meant “that petitioner did not have an expectation of privacy that society would recognize
as legitimate.” Id. at 852 (internal quotation marks omitted).
“Courts disagree as to whether or not the relevant parole regulation in New York is
similar to the California statute at issue in Samson…there is no consensus on whether or not
Samson applies to cases involving New York parolees.” United States v. White, 622 F. Supp. 2d
34, 41 (S.D.N.Y. 2008) (citing cases).
The Court of Appeals for the Second Circuit has refused to read Samson as holding that
“parolees in fact have no legitimate expectation of privacy and thus [a search of a parolee] could
not…violate[] the Fourth Amendment, irrespective of the legitimacy of the State’s interests in
conducting it.” United States v. Quinones, 457 F. App’x 68, 69, n. 1 (2d Cir. 2012) (emphasis in
original). Instead, it has continued to decide cases under the “the more solicitous [Huntley]
standard” and has chosen to “save any further analysis for a case where a distinction between
Huntley and Samson would make a difference.” Id. (citing cases) (internal quotation marks
omitted).
In Grady, the Supreme Court emphasized its application of the “totality of the
circumstances” test. The Court was asked whether satellite-based GPS monitoring of sex
offenders, for life, by the North Carolina agency that oversees parolees and probationers

22

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 25 of 43 PageID #: 4520

constitutes a “search” for Fourth Amendment purposes. The Court concluded “that a
State…conducts a search when it attaches a device to a person’s body, without consent, for the
purpose of tracking that individual’s movements.” 135 S. Ct. at 1370. The Court withheld
judgment on whether the search was constitutional, noting that the “reasonableness of a search
depends on the totality of the circumstances, including the nature and purpose of the search and
the extent to which the search intrudes upon reasonable privacy expectations.” Id. at 1371
(citing Samson). The per curiam opinion does not make any explicit reference to the “special
needs” doctrine.

IV.

Monitoring: Application of Law to Facts
a. Constitutionality of the Electronic Monitoring Search
The placement of a location-tracking electronic monitoring bracelet on Lambus’s ankle

on May 8, 2013 constituted a search. Grady, 135 S. Ct. at 1370. No warrant supported it; the
government bore the burden of proving the search constitutional. United States v. Davis, 111 F.
Supp. 3d 323, 331 (E.D.N.Y. 2015). Constitutionality turns on its reasonableness, and “[t]he
reasonableness of a search depends on the totality of the circumstances, including the nature and
purpose of the search and the extent to which the search intrudes upon reasonable privacy
expectations.” Id. at 1371. Following the approach of the Court of Appeals for the Second
Circuit (see Quinones, 457 F. App’x at 69, n. 1), the reasonableness of the search will first be
tested under the Huntley standard, and then under a “totality of the circumstances” test.
i. Nature and Purpose of the Search
According to Investigator Scanlon, the decision to place an electronic monitoring bracelet
on Lambus was made by Lambus’s parole officer and her supervisors in the NYSDOCCS

23

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 26 of 43 PageID #: 4521

“supervisory bureau” in order to monitor his compliance with the curfew condition of his parole.
Hr’g Tr. at 98:5-13. Lambus argues that the GPS device was actually placed on him, and kept on
him, at the behest of federal law enforcement authorities to aid a federal investigation into
narcotics distribution. He contends that the search was conducted by NYSDOCCS to further
general law enforcement objectives, not to pursue a legitimate parole-related objective. If this
were the case, the search would fail under Huntley because that decision draws a bright line
between parole-related searches by a parole officer and general law enforcement searches by a
police officer. Huntley, 371 N.E.2d at 797. The latter type of search may have a “rational
connection” to a parole-related objective, given that both law enforcement and parole officers
have the “parallel and…intertwined” “objective[] and dut[y]” to detect “illegal activities” (Reyes,
283 F.3d at 463), but a search is not “substantially related” to a parole-related objective if it is
primarily conducted “in aid of prosecution for criminal activity.” Huntley, 371 N.E.2d at 798.
To substantiate his allegations, Lambus has pointed to “circumstantial evidence” that
BSS was coordinating with other law enforcement agencies. Lambus’s Supplemental Mem. in
Supp. of Suppression, ECF No. 266, at 6-9. Entries by Investigator Scanlon in the NYSDOCCS
electronic tracking system indicate that he was in contact with outside law enforcement agencies
about Lambus in mid-to-late 2012 and the spring of 2013. See Parolee CMS at 3-6. Investigator
Scanlon testified, however, that the decision to place Lambus on electronic monitoring was made
by the parole officers in charge of supervising Lambus, and neither BSS nor any federal law
enforcement agency was involved in that decision. Hr’g Tr at 97:3-15. He swore that the
Lambus’s violations of his curfew, a condition of his parole, is what motivated the supervisory
bureau to impose the GPS monitoring. Id. at 98:5-13. Lambus’s Parolee Chrono Report

24

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 27 of 43 PageID #: 4522

indicates he had violated his curfew on two occasions prior to the date he was placed on
electronic monitoring. See Parolee Chrono Report at 33 and 38.
The court finds Investigator Scanlon’s testimony credible. Mere innuendo and
speculation by Defendants that the decision to put an ankle bracelet on Lambus was at the behest
of federal law enforcement is not sufficient. The search, at least initially, was substantially
related to the parole objective of ensuring Lambus complied with his parole conditions. It passes
constitutional muster under Huntley.
Ending the analysis here, however, would be premature. At some point in the following
two years, the GPS remained on Lambus, not because of the curfew violation, but to assist BSS
with its investigation into whether Lambus and others were trafficking narcotics. Hr’g Tr. at
104:5-15.
BSS contacted the federal authorities in June 2013—one month after Lambus was
braceleted—to ask for their assistance in investigating a large narcotics trafficking ring, of which
Lambus was a participant. Id. at 104:9-105:14. A federal law enforcement agency, HSI,
thereafter became the “lead agency” in the investigation; it arranged for physical surveillance,
undercover infiltration of the DTO, controlled buys, and wiretaps. Id. at 106:11-107:7. On July
2, 2013—two months after the braceleting—BSS told the supervisory bureau that it was
“working closely with [federal] ICE” to investigate Lambus and asked that it “be consulted prior
to any consideration of revocation” of Lambus’s parole. July 2, 2013 BSS Memo, attached as
Exhibit S to the Government’s Mem. in Opp. to Def.’s Motion to Suppress, ECF No. 287-19.
Though Investigator Scanlon testified that the “ultimate decision” to keep the tracking
device on Lambus was always made by the NYSDOCCS supervisory bureau (Hr’g Tr. at 110:211), he admitted that BSS was “involved in the decision to keep Mr. Lambus on the GPS” about

25

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 28 of 43 PageID #: 4523

a year after the device was initially attached. Id. at 109:9-13. Scanlon recommended that the
supervisory bureau “continue to keep him on the GPS so that … [BSS could] continue its
investigation as to his activities, his whereabouts and if he was still noncompliant with his
special conditions, specifically conducting criminal activity specifically narcotics distribution.”
Id. at 109:14-22. While Scanlon testified that the federal government did not ask him to make
that recommendation for continued braceleting (id. at 109:23-24), by the time he did so, the
federal government can be assumed to have been the “lead agency” in the investigation.
Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a
supervisory search to a general law enforcement search is difficult. That the line was crossed
during the two years seems clear.
Parole officers must serve the community at large and the parolee, a dual responsibility
requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly
violate both the conditions of his parole and the law—for months and months on end—betrays
both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for
recidivism in aid of public protection.
A state cannot use a parolee as a sort of fly paper, trailing him around the community for
years, trolling for criminals. If the state wishes to search someone for the primary purpose of
furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution,
the “warrant and probable-cause requirement is not…‘impracticable’” (Griffin, 483 U.S. at 873);
the search cannot be justified as a “special need,” even if the searchee is a parolee. See Huntley,
371 N.E.2d at 797 (“In general the standard by which the reasonableness of a search or seizure
with respect to a parolee by a police officer is to be measured would be the familiar requirement
of a showing of probable cause.”).

26

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 29 of 43 PageID #: 4524

ii. Lambus’s Reasonable Privacy Expectations
The extent to which Lambus’s privacy is deemed invaded by the electronic monitoring
depends on several factors, including his status as a parolee, the clarity of the conditions of his
parole, and the nature of information being gleaned from the search. See United States v. Lara,
815 F.3d 605, 610 (9th Cir. 2016). Lambus, as a parolee, had a diminished expectation of
privacy. Samson, 547 U.S. at 852. A “diminished expectation” of privacy is different from “no
expectation” of privacy. See id. at 850, n. 2. A person on parole or supervised release needs to
be dealt with presumptively as someone trying to rehabilitate with the aid of the government
authorities. He or she remains in possession of many of the central aspects of personal
constitutional rights, including presumed innocence of any further criminal activity, and a limited
right to privacy.
Lambus had agreed to certain conditions as part of his parole, including “permit[ting]
[his] Parole Officer to visit [him] at [his] residence and/or place of employment
and…permit[ting] the search and inspection of [his] person, residence, and property” without a
warrant. See Certificate of Release. The conditions of his release are silent on whether
NYSDOCCS had the right to know exactly where he was at each moment—save for a catchall
provision which requires Lambus to “fully comply with the instructions of [his] Parole Officer
and obey such special additional written conditions as he or she, a Member of the Board of
Parole or an authorized representative of the Division of Parole, may impose.” Id. Unlike the
probation order in Knights, where the order “clearly expressed the search condition” of his
residence, a condition about which the probationer was “unambiguously informed,” (534 U.S. at
119), a search condition granting NYSDOCCS the right to know Lambus’s location at all times
for over two years was not clearly expressed in his Certificate of Release.

27

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 30 of 43 PageID #: 4525

Under New York law, acceptance of such general conditions is not a waiver of all Fourth
Amendment rights. See, e.g., Huntley, 371 N.E.2d at 798 (the standard authorization in a
parolee’s certificate of release “is not to be taken as an unrestricted consent to any and all
searches or as a blanket waiver of all constitutional rights to be secure from unreasonable
searches and seizures.”). The “salience” of his Certificate of Release (Knights, 534 U.S. at 11819) to Lambus’s expectation of privacy is limited.
Lambus signed a document on the day he was put on electronic monitoring
acknowledging that GPS monitoring was a special condition of his release that would “remain in
effect until the termination of [his] legal period of supervision,” which could last until August 2,
2015. Special Conditions Acknowledgement. He claims he was coerced into signing this paper,
and only did so because NYSDOCCS threatened to “violate” his parole and imprison him if he
refused to consent. Apr. 14, 2016 Lambus Aff. at ¶¶ 14, 25.
The government has the burden of showing that consent to a search was voluntarily
given. United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981) (citing Schneckloth,
412 U.S. 218 (1973)). The court does not rule on this issue of consent, but it notes that the
government has presented no evidence of consent other than Lambus’s “acknowledgement” that
the condition has been “imposed upon [him].” See Special Conditions Acknowledgement. And,
Lambus testified that he was threatened with imprisonment if he did not accede to this special
condition. Apr. 14, 2016 Lambus Aff. at ¶¶ 14-15, 25. Lambus also testified that Supervisor
Parker told him he would only have the GPS on him for 3-6 months. Id. at ¶ 16.
The document relied upon by the government merely shows that the GPS search was
“imposed” as a special condition of the Lambus parole.

28

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 31 of 43 PageID #: 4526

The nature of an “imposition” undermines the notion of consent. The existence of a
threat of imprisonment if consent is refused also counsels against a finding of voluntariness. See,
e.g., United States v. Isiofia, 370 F.3d 226, 232-33 (2d Cir. 2004) (affirming a district court’s
conclusion that consent to search was not given voluntarily when law enforcement officers said
the defendant would be jailed if he did not consent); see also Samson, 547 U.S. at 863, n. 4
(Stevens, J., dissenting) (considering a parolee, whose only choice is between compliance and
jail, as having given “consent” to a search condition is a “manifest fiction” because the parolee
“has little genuine option to refuse.”) (internal quotation marks omitted).
Evidence apart from Lambus’s affidavit substantiates his testimony that he was told the
bracelet would only remain on his person for 3-6 months. A record from Veritracks, the vendor
that provides GPS monitoring services to NYSDOCCS, indicates that the initial GPS monitoring
period was set to last only until November 8, 2013, exactly 6 months after the bracelet was
attached. Veritracks Record, attached as Exhibit I to Lambus’s Supplemental Mem. in Supp. of
Suppression, ECF No. 266-1. Lambus’s Parolee Chrono Report also shows that from October
2013 on, Lambus repeatedly asked his parole officer to remove the device. See Combined
Parolee Report at 9-12. Nearly a year after NYSDOCCS began GPS monitoring of Lambus,
when queried by Lambus about when the electronic monitor would be removed, Lambus’s parole
officer said she “does not know.” Id. at 11 (April 16, 2014 entry). The government failed to
meet its burden to establish that Lambus voluntarily consented to the placement of a GPS
tracking device on him for over two years.
The information gained by the government through continuous GPS monitoring of an
individual helps the government “reveal an intimate picture of [the individual’s] life.” United
States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), affirmed on other grounds by Jones, 132

29

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 32 of 43 PageID #: 4527

S. Ct. 945 (2012). “GPS monitoring—by making available at a relatively low cost such a
substantial quantum of intimate information about any person whom the Government, in its
unfettered discretion, chooses to track—may alter the relationship between citizen and
government in a way that is inimical to democratic society.” Jones, 132 S. Ct. at 956
(Sotomayor, J., concurring) (internal quotation marks omitted). “What the technology yields and
records with breathtaking quality and quantity is a highly detailed profile, not simply of where
we go, but by easy inference, of our associations—political, religious, amicable and amorous, to
name only a few—and of the pattern of our professional and avocational pursuits.” People v.
Weaver, 909 N.E.2d 1195, 1199–200 (N.Y. 2009). The “intimate picture” revealed by GPS
surveillance grows more intimate, and, therefore, more problematic, the longer the surveillance
continues uninterrupted. Cf. In re U.S. for an Order Authorizing Release of Historical Cell-Site
Info., 2011 WL 679925, at *1-2 (E.D.N.Y. Feb. 16, 2011) (reviewing cases involving continuous
GPS surveillance and granting a government application for the release of historical cell-site
information because the “shorter time period” of 21 days, broken into separate three-, six-, and
twelve-day periods, is not “necessarily…as revealing as the sustained month-long monitoring at
issue in Maynard.”).
Lambus, as a parolee, did not have an unfettered right to privacy in some of the
information that can be gleaned through continuous GPS surveillance. For example, he was not
free to associate with criminals during his parole. See Certificate of Release. But, a parolee still
has a First Amendment right to exercise his religion, and constant government surveillance
which in effect audits his religious practice is highly burdensome. See generally U.S. v.
Hernandez, --- F. Supp. 3d ----, 2016 WL 5107017 (E.D.N.Y. Sept. 20, 2016) (holding that a

30

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 33 of 43 PageID #: 4528

condition of federal supervised release that prevented a releasee from attending religious services
of his choosing is unconstitutional).
In the instant case, Lambus’s location was monitored 24 hours a day, every day from
May 8, 2013 to July 8, 2015—791 days. In People v. Weaver, the New York Court of Appeals
recognized that even if a person has a diminished expectation of privacy in a car traveling on a
public road, continuously tracking the car through use of a GPS monitoring device was a
“massive invasion of privacy” that was “inconsistent with even the slightest reasonable
expectation of privacy.” Id. at 1201. Here, too, the “massive invasion of privacy” by continuous
GPS surveillance vitiated Lambus’s reasonable expectation of privacy, even if such an
expectation was “slight.”
iii. Totality of the Circumstances
It is difficult to precisely balance the competing interests of Lambus and the government
to determine if the search was reasonable when weighing the totality of the circumstances. The
shifting purpose of the search—from monitoring whether a parolee was violating the conditions
of his parole, to gathering evidence about a narcotics trafficking ring—lessens the legitimacy of
the government’s interest in the particular braceleting. While Lambus’s status as a parolee
certainly diminished his reasonable expectation of privacy, it did not eviscerate such
expectations entirely; the search at issue was extraordinarily invasive of the reasonable privacy
expectation he possessed.
iv. Lack of Counsel
If Lambus had been represented by counsel during his parole, he might have challenged
NYSDOCCS’s decision to subject him to this continuing search for such a long duration.
Individuals who lack counsel are left in the lurch when attempting to remedy violations of rights

31

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 34 of 43 PageID #: 4529

to their privacy. It is an unfortunate and common occurrence in our country that rights without
counsel are no rights. In a case like the present one, where the invasion of privacy is so
substantial and the government’s purpose is so questionable, a search is likely unreasonable and
therefore unconstitutional at some point. The court does not reach that issue in the instant case.
See infra Part IV(b).
Judicial notice is taken that a substantial percentage of some groups in some communities
are subject to parole and supervised release. Allowing free tracking of those members
substantially affects the freedom and equality of the community.
b. Good Faith Exception to the Exclusionary Rule
“[W]hen the police act with an objectively ‘reasonable good-faith belief’ that their
conduct is lawful….the deterrence rationale [of the exclusionary rule] loses much of its force.”
Davis, 564 U.S. at 238 (internal quotation marks and citation omitted). This rule is akin to the
“qualified immunity” doctrine that protects individual officers from liability in civil lawsuits.
See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982) (“[Q]ualified immunity would be
defeated if an official knew or reasonably should have known that the action he took within his
sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he
took the action with the malicious intention to cause a deprivation of constitutional rights or
other injury”) (internal quotation marks and emphases omitted). “[S]earches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” Davis, 564 U.S. at 232.
Two Second Circuit Court of Appeals opinions condone the coordination between parole
and general law enforcement. See United States v. Reyes, 283 F.3d 446 (2d Cir. 2002); United

32

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 35 of 43 PageID #: 4530

States v. Newton, 369 F.3d 659 (2d Cir. 2004). Reliance by the parole officers and federal agents
on the broad language in these appellate precedents was objectively reasonable.
In Reyes, the Court examined the “stalking horse” theory, which it explained as follows:
A probation officer acts as a stalking horse if he conducts a probation search on prior
request of and in concert with law enforcement officers. However, collaboration between
a probation officer and police does not in itself render a probation search unlawful. The
appropriate inquiry is whether the probation officer used the probation search to help
police evade the Fourth Amendment’s usual warrant and probable cause requirements or
whether the probation officer enlisted the police to assist his own legitimate objectives. A
probation officer does not act as a stalking horse if he initiates the search in performance
of his duties as a probation officer.
283 F.3d at 463 (emphasis added).
The Court of Appeals for the Second Circuit refused to concede “that this ill-defined
theory exists;” it decided “that the doctrine is not a valid defense in this Circuit.” Id. It noted
that “verifying whether the supervisee is dealing in drugs or committing other crimes” is a
responsibility of a probation officer, and “[a]ccordingly, the objectives and duties of probation
officers and law enforcement personnel are unavoidably parallel and are frequently
intertwined…Consequently, the notion of the ‘stalking horse’ stands in stark contrast to the law
governing the long-established practices of probation and parole officers.” Id. The Court added,
in dicta, that while the facts indicated that the search of the probationer involved a “coordinated
effort between [the probation office and the DEA], the law permits such cooperation as long as
the probation officers are pursuing legitimate probation-related objectives.” Id. at 464 (internal
quotation marks omitted).
Two years after Reyes, in Newton, a defendant challenged a warrantless search where
parole officers were accompanied by the police, “a variation of…a ‘stalking horse’ theory.” 369
F.3d at 667. The Court of Appeals for the Second Circuit held that the “stalking horse” theory
“is largely foreclosed by our decision in [Reyes], which specifically rejected stalking horse
33

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 36 of 43 PageID #: 4531

challenges to warrantless searches by probation or parole officers accompanied by the police.”
Id. Rejecting the defendant’s attempt to distinguish Reyes on the ground that the search in Reyes
was less intrusive, the court declared: “Reyes’s rejection of challenges to coordinated efforts
between probation/parole officers and other law enforcement officials turned not on the
particular level of intrusion in that case, but on the legitimacy of the supervision objectives being
pursued by the probation officers.” Id. The court explained that “[i]n any event, the facts of this
case…do not support a stalking horse challenge [because] a probation officer does not act as a
stalking horse if he initiates the search in the performance of his duties as a probation officer.”
Id. at n. 3 (internal quotation marks omitted). The court concluded its analysis by “reiterat[ing]
Reyes’s rejection of stalking horse challenges.” Id. at 667.
The unequivocal language in these two decisions—Reyes and Newton—created a binding
appellate precedent that police involvement with a warrantless search of a parolee does not stamp
the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate
supervisory objective.
In the instant case, the search was initiated by NYSDOCCS to monitor Lambus’s
adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory
objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was
reasonable given the Court of Appeals’s Reyes and Newton decisions. Neither the NYSDOCCS
officers nor the federal law enforcement officers behaved inappropriately. There would
therefore be little deterrent value in excluding the evidence. The court declines to suppress the
location data evidence. See, e.g., Davis, 564 U.S. at 237-38 (“[T]he deterrence benefits of
exclusion vary with the culpability of the law enforcement conduct at issue…when the police act

34

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 37 of 43 PageID #: 4532

with an objectively reasonable good-faith belief that their conduct is lawful…the deterrence
rationale loses much of its force.”) (internal citations, quotation marks, and alteration omitted).
The instant case is, however, distinct from Reyes and Newton in striking ways that may
prompt the courts to revisit their jurisprudence in this area in a more generous future case.
The nature of the search in the instant case made it a much greater impingement on
Lambus’s privacy than the privacy of the defendants in Reyes and Newton. The searches at issue
in Reyes and Newton, a home visit and a home search, respectively, were of a finite duration and
were explicitly delineated as conditions of release. The search of Lambus lasted continuously
for over two years and was not specifically covered by Lambus’s Certificate of Release. See
supra Part IV(a)(ii). While “the overriding respect for the sanctity of the home” cannot be
doubted (Payton v. New York, 445 U.S. 573, 601 (1980)), the degree of impingement on a
person’s privacy caused by a one-time intrusion into her home pales in comparison to the
stripping of privacy caused by generating “a precise, comprehensive record of a person’s public
movement that reflects a wealth of detail about her familial, political, professional, religious, and
sexual associations.” Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring).
The degree of coordination between the supervising and law enforcement agencies in this
case is quite different from Reyes and Newton. In those cases, coordination was relatively brief,
whereas federal law enforcement officers and NYSDOCCS officers cooperated in investigating
Lambus for two years prior to his arrest. Government’s Mem. in Opp. to Def.’s Motion to
Suppress. at 15 (HSI and BSS began coordinating in June 2013).
The purpose of the search in the present case differs markedly from the purpose of the
searches in Reyes and Newton. In Reyes, the DEA and U.S. Probation Office coordinated to
search Reyes’s house because they believed he might be cultivating marijuana. 283 F.3d at 451-

35

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 38 of 43 PageID #: 4533

52. About one week after the DEA found marijuana on his property pursuant to a consent search
(id. at 453-54), Probation charged Reyes with three violations of the conditions of his supervised
release and attempted to revoke his release. Id. at 454-55.
In Newton, the parole officers believed the defendant was in possession of a gun and
reasonably brought in the police because of a “not-insubstantial risk that Newton’s response to
any inquiry might be violent.” 369 F.3d at 667. Once the parole officers found a gun during the
search, the defendant was placed under parole arrest and turned over to the police officers to
process a new state criminal arrest. Id. at 664. One month after his arrest and the state criminal
charges were dismissed, he was charged in an indictment with being a felon in possession of a
firearm. Id.
In both cases parole and law enforcement officers suspected the supervisee was
committing a specific crime in violation of his parole and coordinated for a limited time to search
to determine if he was engaging in a precise criminal activity. And the agencies acted swiftly to
charge the defendants as a result of the criminal wrongdoing they uncovered as a result of the
search.
Whereas in Reyes and Newton, the defendants contended that the supervising agency was
the stalking horse for the law enforcement agency, in the instant case, coordination by the
agencies unwittingly turned Lambus into a stalking horse for the federal agencies. Lambus
knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was
expected of any criminal wrongdoing, but to monitor whether he was abiding by the curfew
condition of his parole. See Hr’g Tr. at 98:5-13. This purpose shifted as federal law
enforcement began using the location data to build a narcotics trafficking case against a dozen

36

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 39 of 43 PageID #: 4534

individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite,
presumably, possessing evidence of criminal wrongdoing. See supra at Part IV(a)(i).
These three factors—the nature of the search, the degree of coordination, and the purpose
of the search—help guide courts in determining if the “particular circumstances” of a
coordinated investigative effort by parole and law enforcement officers violate the boundaries of
the Huntley rule’s instruction that a warrantless parole search must be “substantially related to
the performance of duty” of a parole officer and not merely be “rational[ly] connect[ed]” to the
parole officer’s duty. 371 N.E.2d at 797. The more intrusive the search, the deeper the
coordination between the agencies, and the more wide-ranging the web of criminal activity the
search seeks to detect, the less substantial the relation of the search is to the supervision of the
parolee being searched. The longer the search, the more likely it is to be “seeking contraband or
evidence in aid of prosecution for criminal activity” (id. at 798) for the purpose of “uncover[ing]
evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 42. Such a search could not
be justified under the tent of the “special needs” doctrine. Nicholson v. Goord, 430 F.3d 652,
663 (2d Cir. 2007) (reviewing Supreme Court precedent and holding that “normal lawenforcement objectives…fall outside of the special-needs exception”) (internal quotation marks
omitted).

V.

Motion to Suppress Recordings from Wiretap Authorized on January 9, 2015
In its January 9, 2015 wiretap application, the government violated 18 U.S.C. §

2513(1)(e) by failing to disclose “previous applications” for wiretaps of some of target
interceptees in the January 9th affidavit. See supra at Part II(c)-(d); Bianco, 998 F.2d at 1128
(“[T]he duty to disclose prior applications under § 2518(1)(e) covers all persons named in the

37

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 40 of 43 PageID #: 4535

application and not just those designated as ‘principal targets’”). The government argues that the
omission of these prior wiretap applications would not have changed the judge’s decision to
authorize the application because the evidence gathered through those wiretaps was “stale,” and
therefore would have had no impact on necessity or probable cause. See Hr’g Tr. at 146:16147:6. This argument relies upon the “corrected affidavit” doctrine—an outgrowth of the Franks
decision—which instructs a court to consider whether a judge would have issued the warrant if
the omitted information was included in the original affidavt. See, e.g., United States v.
Canfield, 212 F.3d 713, 717-18 (2d Cir. 2000). Suppressing evidence under this precedent
requires the defendant to “show that: (1) the claimed inaccuracies or omissions are the result of
the affiant’s deliberate falsehood or reckless disregard for the truth; and (2) the alleged
falsehoods or omissions were necessary to the [issuing] judge’s probable cause [or necessity]
finding.” Rajaratnam, 719 F.3d at 146 (internal quotation marks omitted).
This is not the only route through which a defendant can suppress evidence obtained
through a defective Title III wiretap affidavit; the wiretap statute has its own exclusionary rule.
See generally United States v. Giordano, 416 U.S. 505, 524 (1974) (“The issue does not turn on
the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment
rights, but upon the provisions of Title III”). In two cases involving motions to suppress due to
noncompliance with section (1)(e) of the wiretap statute, the Court of Appeals for the Second
Circuit affirmed a district court’s decision to deny suppression. Both those cases are
distinguishable on the ground that the omission in this case was not inadvertent.
In Bianco, the Court of Appeals held that a violation of section (1)(e) is “subject to the
statutory exclusionary provisions of [18 U.S.C.] §§ 2515 and 2518(10); that subsection (1)(e)
constitutes a non-central provision of Title III; that the government's failure to comply with the

38

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 41 of 43 PageID #: 4536

requirements of subsection (1)(e) was in good faith and inadvertent error, and suppression is
neither permissible or appropriate.” 998 F.2d at 1128 (internal citation omitted). The court
rested its decision to affirm the denial on the fact that the “omission of the prior surveillance
applications” was “inadvertent” and the issue of “the requirements of subsection (1)(e) as applied
to a roving intercept application had not been addressed in any reported decisions” prior to the
submission of the wiretap application. Id. Similarly, in United States v. Barnes, the defendant
argued that “the government’s failure to disclose the existence of concurrent state wiretaps
(which, in part, targeted Barnes) requires suppression of the evidence obtained from the federal
wiretaps.” 411 F. App’x 365, 368 (2d Cir. 2011). The court noted that “nothing in the record
suggests that the government’s affiant was aware of the state wiretaps, which were applied for
after the state and federal investigations were severed.” Id. The court held that defendant’s mere
speculation that the federal government must have been aware of the state wiretaps “is
insufficient to demonstrate a knowing omission on the part of the government. Thus, the
affiant’s omission ‘was not intentional, but inadvertent’ and does not violate § 2518(1)(e).” Id.
(quoting Bianco, 998 F.2d at 1128).
A natural implication of Bianco and Barnes is that section 2518(1)(e) of the wiretap
statute is violated by the government’s “knowing,” non-inadvertent omission. Where the
government knowingly omits information in violation of Title III’s statutory requirements,
suppression is appropriate. See United States v. Bellosi, 501 F.2d 833 (D.C. Cir. 1974)
(suppressing evidence where government intentionally violated requirement that an application
for a wiretap inform the judge of prior wiretap applications); United States v. Luong, CR-960094-MHP, Dkt. No. 586 (N.D. Cal., July 14, 1998) (unpublished) (reviewing circuit court
precedent and holding that “a reckless failure to comply with section 2518(1)(e)” is sufficient

39

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 42 of 43 PageID #: 4537

grounds for suppression “without resorting to a Franks analysis.”); cf. United States v. Ceballos,
302 F.3d 679, 684-85 (7th Cir. 2002) (denying a motion to suppress where prior wiretap
applications were not disclosed after the affiants ran a database search and the search came up
empty); United States v. Lujan, 936 F.2d 406, 409 (9th Cir. 1991) (“We are persuaded by those
other circuits which have concluded that suppression was not required by the section 2518(1)(e)
nondisclosure under similar findings of unintentional noncompliance.”).
In the instant case, the omission was not “inadvertent;” it was knowing. The Special
Agent testified that despite having been an affiant in previous wiretap applications (Hr’g Tr. at
159:2-6), he did not know that he needed to check for prior wiretap applications related to all the
target interceptees. See id. at 157:5-7. This mistake alone, despite precedent to the contrary,
may have constituted mere inadvertence. But this was not the Special Agent’s only error. The
HSI agent swore that “a check of federal law enforcement databases, including FBI, DEA, ATF,
and HSI databases, indicate that there have been no prior application seeking Court authorization
to intercept the wire, oral, or electronic communications of the Target Subjects or over the
SUBJECT TELEPHONE.” Jan. 9, 2015 Aff. at ¶ 24 (emphasis added). When he swore to this
statement, he knew it was false. This was not a “misunderstanding.” See Hr’g Tr. at 157:10-19.
It was perjury. Suppression is an appropriate remedy for such an omission.
The court need not rely on Franks or Giordano to rule that any evidence gathered
pursuant to the January 9, 2015 wiretap order is suppressed. It is within the court’s inherent
authority to suppress evidence gathered unlawfully in order to maintain the integrity of its own
proceedings and of government affiants appearing before it—particular in an in-chambers
appearance without opposing counsel present. See, e.g., Elkins, 364 U.S. at 222-24; see also

40

 Case 1:15-cr-00382-JBW-MDG Document 317 Filed 12/22/16 Page 43 of 43 PageID #: 4538

Payner, 447 U.S. at 735 n. 7; McNabb v. United States, 318 U.S.; Cortina, 630 F.2d at 1214;
HSBC Bank USA, NA., 2013 WL 3306161 at *4-6.
Wiretap applications are made ex parte. Judges rely on the absolute fidelity of the
government agents and prosecutors who swear to affidavits and answer questions before the
court in chambers attesting to the facts necessary to obtain a wiretap. In reliance on their
fidelity, courts almost always grant their requests. See Wiretap Report 2015, available at
http://www.uscourts.gov/statistics-reports/wiretap-report-2015 (in 2015 all 4, 148 wiretap
applications made pursuant to federal and state law were granted). Knowingly false statements
cannot be tolerated, especially if those statements are made at proceedings where the courts have
little choice but to take the government at its word. Any evidence of statements made on
wiretaps gathered pursuant to the January 9, 2015 wiretap order is suppressed.
No evidence has been presented that what was overheard as a result of this wiretap led to
other evidence. The issue of fruit of the poisoned tree has not yet been posed. This issue may be
raised at the in limine hearing on January 3, 2017.

VI.

Conclusion
The search by way of the ankle bracelet is not suppressed.
Any evidence of statements overheard pursuant to the January 9, 2015 wiretap order is

suppressed.
S

ORDERED.

/i_

/

/

w~

ack B. Weinstein
Senior United States District Judge
Date: December 22, 2016
Brooklyn, New York

41