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United States of America v. Tyshawn Augustus

August 3, 2012

UNITED STATES OF AMERICA,
v.
TYSHAWN AUGUSTUS,
DEFENDANT.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Defendant Tyshawn Augustus moves, pursuant to Federal Rule of Criminal Procedure 12(b)(3) and the Fifth Amendment of the United States Constitution, to suppress certain statements that he made during his transfer from state to federal custody on July 14, 2010, as the product of unlawful custodial interrogation. (Doc. No. 18.) The Court held a two-day hearing at which two witnesses testified: New York City Police Department ("NYPD") Detectives Robert Negron ("Negron") and Joseph Fazzingo ("Fazzingo"). For the reasons below, defendant's motion is GRANTED in part and DENIED in part.

FINDINGS OF FACT

I. NYPD's Brooklyn South Narcotics

Detective Negron, employed by the NYPD since 2000 and a detective for the last five years, is currently assigned to Brooklyn South Narcotics. (Hr'g Tr. at 7.) Within that command, Negron is assigned to a "module" responsible for the 76th and 78th Precincts, and was the lead investigator responsible for gathering information regarding drug and gun activity at the Red Hook Houses, a public housing development located in the 76th Precinct. (Id. at 44, 64-66, 79.) Also assigned to this module were Detective Ricardo Nunez ("Nunez"), Negron's partner, and Detective Paul Farella ("Farella"). (Id. at 65-66.) Over his career, Negron has participated in over four-hundred arrests, including approximately five to ten federal arrests, all in the Eastern District of New York. (Id. at 7, 18.) He has never been cross-designated as a federal agent. (Id. at 80.) Negron had never seen or met defendant Tyshawn Augustus until July 14, 2010, the date of defendant's arrest on federal charges. (Id. at 9.)

Fazzingo is a twenty-year veteran of the NYPD and has been assigned to various commands including the 76th Precinct and Brooklyn South Narcotics. (Id. at 78-79.) Fazzingo is currently assigned to the Brooklyn South Narcotics Major Case Squad, and the Red Hook Houses is a focus of that squad. (Id.)Because he is "deputized" or "cross-designated" to make federal arrests, he has participated in approximately two-hundred federal arrests, all within the Eastern District of New York. (Id. at 79-80.) As discussed more fully below, Fazzingo served as liaison between the NYPD and federal authorities regarding the investigation of defendant, swore out a federal arrest warrant for defendant and was responsible for processing defendant's federal arrest. (Id. at 80-81, 91-92.) Having worked in the same area for 20 years, Fazzingo "knew of" Tyshawn Augustus and knew he was "a drug dealer." (Id. at 90-91.)

II.The Search of 774 Henry Street, Apartment 1A

On June 4, 2010, the NYPD executed a state-court authorized search warrant at 774 Henry Street, Apartment 1A, Brooklyn, New York. (Affidavit of Joseph Fazzingo ("Fazzingo Aff.") at ¶ 1.) The warrant was executed by Detective Ricardo Nunez and other NYPD personnel. (Hr'g Tr. at 27.) Neither Detective Negron nor Detective Fazzingo participated in the execution of this warrant. (Id. at 27, 44) The search uncovered, inter alia, narcotics, a firearm, mail addressed to the defendant and defendant's photographic identification card from New York City Parks & Recreation. (Fazzingo Aff. at ¶¶ 3-5.) No occupants were present during the search, and the only tenant listed in public housing records for Apartment 1A had been deceased since 2009. (Id. at ¶¶ 1, 6.)

III.Federal Arrest of Tyshawn Augustus

As the liaison between the NYPD and the United States Attorney's Office, Fazzingo learned about the search warrant and the ensuing investigation related to defendant Tyshawn Augustus. (Hr'g Tr. at 80-81.) On June 28, 2010, based on a sworn affidavit by Fazzingo detailing the results of the search warrant and other information, Magistrate Judge Lois Bloom issued a federal arrest warrant for Tyshawn Augustus. (Gov. Ex. 1.) Fazzingo testified that Negron was the source of the detailed information contained in Fazzingo's affidavit. (Hr'g Tr. at 81, 93-94.)

Negron initially attempted to minimize his role in the investigation by testifying that: (1) he had no involvement in the investigation of defendant prior to July 14, 2010, the day of defendant's arrest (id. at 26-28); (2) he was chosen to execute the arrest warrant merely because it was Fazzingo's warrant and he and Fazzingo worked together (id.); and (3) he did not talk to Fazzingo prior to executing the arrest warrant (id. at 30). He also attempted to minimize the importance of connecting Augustus to the evidence seized pursuant to the search warrant. (Id. at 41-43.) The Court does not credit Negron's testimony on these points. Rather, as discussed more fully infra, the Court finds credible Negron's testimony, given on cross-examination, in which he testified that even prior to the issuance of the federal arrest warrant, and certainly before July 14, 2010, he was intimately familiar with the evidence uncovered in the search of 774 Henry Street, Apartment 1A and in the related investigation, including the evidence directly connecting defendant to that apartment. For example, Negron testified that, even prior to the issuance of the arrest warrant, Negron knew that the search uncovered drugs and a firearm in an empty apartment, one that was last listed to a person who had died years earlier. Negron also knew that the police recovered mail addressed to Augustus, evidence of attempts to deliver other pieces to him at Apartment 1A, and a parks department identification in defendant's name. (Id. at 41-42, 44-46.) Negron also knew that the defendant had received a summons after the search warrant was executed, as he was the one who got a copy of it, which Negron was sure contained residency information. (Id. at 62.) As further evidence of Negron's involvement with and knowledge of the investigation leading to defendant's arrest, Negron testified that he knew he would find the defendant at Rikers Island because he had been previously made aware of defendant's arrest on the unrelated charges. (Id. at 56-57, 59-60.) As Negron testified, he was the "lead investigator in an ongoing investigation in Red Hook, and the search was executed in Red Hook." (Id. at 43-44.) Indeed, as he testified, Negron had presented that information to an AUSA who had already been assigned to the investigation in an effort to secure a federal arrest warrant for Augustus. (Id. at 43-49.) *fn1 Thus, based on totality of the credible testimony, the Court finds that prior to July 14, 2010, both Negron and Fazzingo were familiar with the key details of the investigation of the defendant, including all of the facts detailed in Fazzingo's affidavit in support of the arrest warrant.

On July 14, 2010, Detectives Negron and Farella went to Rikers Island to pick-up defendant and transport him to the Eastern District courthouse for federal arraignment. (Hr'g Tr. at 7-10, 84-85.) Fazzingo had lodged the warrant at Rikers Island where defendant was being held on unrelated charges, (id. at 57, 84) and asked Negron to pick up the defendant from Rikers Island because Negron was "more familiar with the Red Hook Houses case" (id. at 86). Upon arriving at Rikers Island, Negron provided a copy of the arrest warrant to a corrections officer. (Id. at 9-10). A short time later, defendant was produced and Negron placed defendant in his minivan for transport. (Id. at 10.) Though he had never met Augustus before, Negron was confident that he had in his custody the individual wanted on the warrant. (Id. at 57-59.)

IV.Defendant's Statements to Detective Negron

The ride from Rikers Island to the courthouse took approximately forty-five minutes to an hour. (Id. at 61.) At no time was defendant read his Miranda rights, nor was he told why he was being arrested. (Id. at 4, 13, 62.) The parties' have stipulated, and the facts clearly demonstrate, that defendant was in custody throughout his entire encounter with the NYPD detectives on July 14, 2010. (Id. at 3-4.) During the ride, the two detectives did not speak with one another, and Farella never spoke with the defendant. (Id. at 10, 61.)

At some, unspecified point during the ride, Negron asked defendant questions regarding "basic pedigree information" including "[n]ame, date of birth, address, social security number, [and] telephone." (Id. at 10-11.) Negron testified that he asked the questions to "gain knowledge of who . . . is in custody." (Id. at 11.) He recorded defendant's responses on a "random white piece of paper," which he subsequently lost, and made other related notations ...


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