The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Defendant Daniel Carter ("Carter") is charged in a single-count Indictment with conspiring to possess with intent to distribute a Schedule II controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Specifically, the Indictment alleges that in or about June 2003 and in or about April 2004, Carter knowingly, willfully and unlawfully conspired with others to possess with intent to distribute, and to distribute, five kilograms or more of a mixture and substance containing a detectable amount of cocaine.
On April 7, 2006, the defendant filed an omnibus motion seeking, inter alia, suppression of evidence obtained pursuant to a wiretap and suppression of physical evidence seized as the fruit of that wiretap.
By Order dated February 1, 2006, this case was referred to Magistrate Judge Marian W. Payson for report and recommendation on pretrial motions. On June 12, 2006, Judge Payson issued a Decision and Order and Report and Recommendation recommending, inter alia, that the defendant's motions to suppress evidence obtained pursuant to a wiretap and to suppress physical evidence seized as the fruit of that wiretap be denied. See June 12, 2004 Decision and Order at p. 13-14.
In support of his motion objecting to Judge Payson's Decision and Order and Report and Recommendation which denied his motion to suppress evidence obtained pursuant to a wiretap, Carter argues that (1) the supporting affidavits used to obtain the wiretap orders failed to establish necessity for the issuance of an eavesdropping warrant; (2) the government failed to meet the notice requirement; and (3) the government failed to adequately explain phone calls that were intercepted outside the scope of the wiretap orders.
For the reasons set forth below, I affirm and adopt Judge Payson's Decision and Order and Report and Recommendation in its entirety, and deny the defendant's motions to suppress evidence obtained pursuant to a wiretap and to suppress physical evidence seized as the fruit of that wiretap.
Pursuant to 28 U.S.C. § 636(b)(1), after the filing of a Report and Recommendation, any party may serve and file written objections to such proposed finding and recommendation. After such filing, [a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1). A district court, however, may not reject the credibility findings of a Magistrate Judge without conducting an evidentiary hearing in which the district court has the opportunity to observe and evaluate witness credibility in the first instance. Cullen v. United States, 194 F.3d 401 (2nd Cir. 1999).
Objections to Orders of the Magistrate are governed by 28 U.S.C. § 636(b)(1)(A), which provides in relevant part that Orders relating to pretrial matters which are clearly erroneous or contrary to law may be reconsidered by a judge of the court. 28 U.S.C.A. § 636(b)(1)(A) (West 1993). I apply these standard to the following analysis.
The relevant facts of this case were set forth in Judge Payson's Report and Recommendation. On February 2, 2004, Monroe County Court Judge John Connell issued an eavesdropping warrant authorizing the interception of telephone communications over cellular telephone number 585-202-9134, which was believed to be utilized by Carter. The wiretap warrant was issued upon the affidavit of Rochester Police Officer David Simpson. In that affidavit, Simpson affirmed that since August 2003, he had been conducting an investigation into the narcotics trafficking activities of Carter and Travaris Meeks, the owner of Mad Flavors Clothing Store.
Among other evidence presented in his affidavit, Simpson described information and assistance that had been provided to the investigating agents by two confidential informants, identified as CI-1 and CI-2. According to Simpson, the informants had provided information relating to narcotics trafficking conducted by Meeks and Carter at Mad Flavors Clothing. CI-1's information generally pertained to Meeks, while CI-2's information pertained to both Meeks and Carter, who, according to CI-2, sold cocaine for Meeks as his "right had man." Simpson characterized both informants as reliable, setting forth ...