United States District Court, S.D. New York
MEMORANDUM AND ORDER
ALISON J. NATHAN, District Judge.
Before the Court are various pretrial motions from the Defendants Felix Parrilla, Gary Thomas, and Kirk Tang Yuk. For the reasons that follow, the Defendants' motions for joinder of their motions are GRANTED, Tang Yuk's motions are DENIED, Thomas' motion is DENIED, and Parrilla's motion is DENIED in part and the Court reserves decision in part.
This case involves allegations of a narcotics conspiracy. The following allegations are taken from the indictment and various affidavits, warrant applications, and other exhibits presented by the parties.
According to the government, the investigation of the Defendants began after the arrest and seizure of two individuals and roughly 25 kilograms of cocaine in New York City on September 22, 2012. See, e.g., Conniff Decl. Ex. B (Johnston Aff., Jan. 31, 2013) at 11. One arrestee became a cooperating witness ("CW-1") and provided information about the cocaine and its origins. According to CW-1, the 25 kilograms seized in New York were part of an 80-kilogram load from Antigua and routed through Saint Croix, United States Virgin Islands, where Gary Thomas and CW-1 hid the cocaine in a false-bottomed crate loaded with automobile parts. Id. After the crate was shipped to Miami, Florida, CW-1 unloaded the cocaine and separated it for distribution. Id. CW-1 gave two kilograms to Tang Yuk to sell on consignment, took 25 kilograms for distribution in New York, and delivered the remaining 53 kilograms to Parrilla at a location in Fort Lauderdale, Florida. Id. at 12. Warrantless canine sniffs and a sneak-and-peek search pursuant to a warrant were conducted in September 2012. Id. at 15-16.
The Government conducted a wiretap investigation targeted at the Defendants, seeking and obtaining a series of judicial orders beginning in October 2012, permitting the interception of communications on various telephones associated with the defendants. Id. at 14. The Government conducted surveillance pursuant to the orders, intercepting large volumes of phone calls and other communications.
On May 16, 2013, a grand jury returned the Indictment in this case, charging Parrilla, Thomas, Tang Yuk with a single count of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. The Indictment specifically alleges that they "intentionally and knowingly, did combine, conspire, confederate, and agree together and with each other to violate the narcotics laws, " and that "kit was a part and an object of the conspiracy that" the defendants "would and did distribute and possess with the intent to distribute... five kilograms and more of... cocaine." Indictment ¶¶ 1-3.
Arrest warrants were issued out of the Southern District of New York, and on June 5, 2013, agents arrested Parrilla at a home in Ocala, Florida. Gov. Mem., Ex. M (Smith Report). According to the DEA, after Parrilla's arrest, agents conducted a protective sweep and seized cell phones and other items from a bedroom within the home. Id. According to Homeland Security Investigations, other agents arrested Tang Yuk while he was driving a vehicle in Miramar, Florida, and seized a phone and iPad. Conniff Decl., Ex. G (Papure Affidavit), ¶ 8.
The Defendants were all subsequently brought to the Southern District of New York. Tang Yuk filed motions for dismissal of the indictment, suppression of evidence, and other relief. Dkt. No. 74. Thomas moves to transfer his case to Saint Croix. Dkt. No. 78. Parrilla moves to suppress evidence. Dkt. No. 81. The Government opposed all motions. Dkt. No. 88. Tang Yuk and Parrilla replied in support of their motions. Dkt. Nos. 95-97.
II. JOINDER OF MOTIONS
The Defendants have each requested permission to join in their co-defendants' motions. See Parrilla Mem. 32 (moving to incorporate and adopt his co-defendants motions, while reserving the right to object to any motion not intended to be adopted or incorporated); Thomas Mem. 1 (moving to join his co-defendants motions "to the extent that any such motion can be applied to him and is not inconsistent with any of his positions"); Tang Yuk Motion 1 (seeking "such other and further relief as requested in the motions of any co-defendants"). The Court grants these requests, and the decisions made with respect to each co-defendant's motion shall apply where appropriate to the others as well.
III. FOURTH AMENDMENT MOTIONS TO SUPPRESS
Tang Yuk and Parrilla each bring a motion to suppress evidence they claim was obtained in violation of the Fourth Amendment. Tang Yuk moves to suppress a cell phone and iPad seized following his arrest. Parrilla seeks to suppress two cell phones seized after his arrest, as well as two canine sniffs and their fruits. The Government opposes suppression and maintains that all motions may be denied without an evidentiary hearing. On April 18, 2014, the Court ordered oral argument and supplemental briefing with regard to Parrilla's motion to suppress the two canine sniffs. Dkt. No. 108. The Court reserves decision on that issue, but for the reasons that follow, denies Tang Yuk's motion to suppress, and denies Parrilla's motion to suppress the cell phones.
A. Parrilla Arrest and Cell Phone Seizure
Parrilla moves to suppress two cell phones seized from a home following his arrest on June 5, 2013, Parrilla Mem. 27-31. Parrilla argues that agents performed an unlawful warrantless search of a home at which he was an overnight guest. Parrilla Mem. 27. The Government opposes and argues the search and seizure were lawful. The Court concludes that the cell phones were lawfully seized after being observed in plain view during a lawful protective sweep into the master bedroom, so this motion is denied.
Criminal defendants seeking to suppress evidence must first make a showing that their own Fourth Amendment rights were violated by a challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). Parrilla's affidavit asserts that he was arrested when he opened the front door of the residence at about 12:20 PM on June 5, 2013; that DEA agents entered the home without a search warrant or his consent or anyone else's consent; and that the agents "conducted a full blown search of the residence, " seizing two of his cell phones that were located inside. Parrilla Aff. ¶ 6-7. He also makes the undisputed contention he was staying at the home as an overnight guest of his children's mother, who owned the house and lived there with their children. Parrilla Aff. ¶ 6. As an overnight guest, Parrilla was entitled to a reasonable expectation of privacy in the house where he was arrested. Minnesota v. Olson, 495 U.S. 91, 98 (1990). Because Parrilla has shown that the "the place... subjected to the warrantless search is one in which [he]... had a reasonable expectation of privacy, the burden of showing that the search fell within one of the exceptions to the warrant requirement is [shifted] on[to] the government." United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999) (citing United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993).
Warrantless searches are "per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is the protective sweep exception, through which officers making an arrest at a home may "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 334 (1990). The issue then is whether the master bedroom of the home was an "immediately adjoining" space.
According to the report by DEA Special Agent Paul W. Smith, the search of the home was a "security sweep, for safety purposes." Gov. Mem., Ex. M (Smith Report), ¶ 5. Smith's report implies that the master bedroom was near the front door, stating that Parrilla was seen looking at the agents through the window of the master bedroom after they knocked on the front door. Id. at ¶ 3.
Parrilla argued in his opening brief that the master bedroom was an "upstairs bedroom." Parrilla Mem. 29. In response, the Government submitted a document that it represents is a floor plan of the house. Gov. Mem., Ex. N, This floor plan indicates that in fact the home has only one story. The floor plan shows that the front door opens into a living/dining room, which is adjacent to a master bedroom located at the front corner of the house. Parrilla's reply claims he "has raised material issues of fact" but does not dispute the accuracy of floor plan submitted by the government. Parrilla Reply ¶ 16. Parrilla offers only a conclusory statement-in his briefing, not in his affidavit-that "the master bedroom was not immediately adjoining the place of Mr. Parrilla's arrest." Id. ¶ 10.
"Particularly when... an apartment is small, an immediately adjoining room is searchable under the protective sweep' exception." United States v. Alejandro, 100 F.Appx. 846, 848 (2d Cir. 2004) (citing United States v. Lauter, 57 F.3d 212, 216-17 (2d Cir. 1995)). Here, the floor plan and description in Smith's report show that the master bedroom was "immediately adjoining" the room to which the front door opened, and thus within the permissible scope of a protective sweep conducted without cause. See United States v. Chervin, No. 10 Cr. 918 (RPP), 2011 WL 4373928, at *4 (S.D.N.Y. Sept. 20, 2011) ("[C]ourts have held that arrests made in hallways with adjacent bedroom entrances are subject to the Buie immediately adjoining' protective sweep."). Since the master bedroom was merely the width of one room away from the place of arrest, it is a place from which an attack could be immediately launched. The Court therefore finds that the search of the master bedroom was within the scope of a permissible protective sweep.
Although warrantless seizures are also per se unreasonable, the well-established plain view exception allows officers who "are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, [to]... seize it without a warrant" Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see United States v. Gamble, 388 F.3d 74, 76 (2d Cir. 2004) ("The plain view' exception authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.") (citation and quotation marks omitted). The combined effect of the two doctrines articulated above is that "[p]atently incriminating evidence that is in plain view during a proper security check may be seized without a warrant." United States v. Rudaj, 390 F.Supp.2d 395, 400 (S.D.N.Y. 2005) (quoting Kiyuyung, 171 F.3d at 83), aif'd sub nom. United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009).
Parrilla's only objection to the seizure of the phones under the plain view exception is his contention that the agents were not lawfully present in the bedroom. See Parrilla Mem. 30. It is undisputed that the phones were observed in plain view, and that, in the context of an arrest for narcotics conspiracy, their incriminating nature was immediately apparent. Given the Court's finding that the agents were lawfully present in the bedroom to conduct a protective sweep, the seizure was reasonable under the plain view exception. See Kiyuyung, 171 F.3d at 83.
In the alternative, Parrilla requests an evidentiary hearing "to determine the basis for, timing and scope of the protective sweep of the master bedroom." Parrilla Reply ¶ 16 (citing United States v. English, No. 10 Cr. 431 (CM), 2011 WL 3366490 (S.D.N.Y. July 29, 2011)). However, a defendant is not entitled to an evidentiary hearing on a motion to suppress unless they "can show a contested issue of material fact with respect to the issue for which the hearing was requested." United States v. Del Rosario, No. 12 Cr. 81 (KBF), 2012 WL 1710923, at *2 (S.D.N.Y. May 11, 2012). A hearing is not required without moving papers that are "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question." United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) (quoting United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992)) (internal quotation marks omitted); see United States v. Thompson, No. 13 Cr. 378 (AJN), 2013 WL 6246489, at *3 (S.D.N.Y. Dec. 3, 2013). Against this standard, Parrilla's allegation that a full blown search occurred is too general and conclusory to make an evidentiary hearing necessary. See United States v. Dewar, 489 F.Supp.2d 351, 359-60 (S.D.N.Y. 2007). Since "[d]efendants must present [or] submit a sworn affidavit from one with personal knowledge of the underlying facts" to create a factual dispute requiring a hearing, id., Parrilla's assertion, contained not in his affidavit, but his memorandum of law, that the master bedroom was upstairs is an insufficient "[a]ttorney allegation [that] cannot provide the Court with a basis for making a finding of fact." United States v. Marquez, 367 F.Supp.2d 600, 603-04 (S.D.N.Y. 2005) (citing Giannullo v. City of New York, 322 F.3d 139, 142 (2d Cir. 2003) (noting that a memorandum of law "is not evidence at all")); see United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967) (upholding denial of motion to suppress evidence obtained under a search warrant without an evidentiary hearing, because "there was no factual issue to be resolved" when the suppression motion was grounded in an the defendant's attorney's affidavit lacking personal knowledge of the facts at issue). Had Parrilla provided testimony in his affidavit that the master bedroom was upstairs, he arguably would have created a material dispute of fact with respect to whether the room was "immediately adjoining." He did not. Nor does his reply memorandum contest the Government's factual assertions regarding the layout of the home. Accordingly, Parrilla's motion to suppress the phones is denied without a hearing.
B. Tang Yuk Phone and iPad Seizure
Tang Yuk also moves to suppress a phone and iPad seized from a vehicle he was driving immediately prior to his arrest on June 5, 2013, arguing the government has not established a lawful basis for their seizure. Tang Yuk Suppression Mem. 11. Tang Yuk argues that "it is entirely unclear what circumstances led to this seizure, " given that "[t]he government's affidavit in support of a search warrant for these items provides almost no detail regarding the circumstances of the seizure." Tang Yuk Suppression Mem. 11. Tang Yuk thus concludes that the lack of factual evidence requires suppression. Tang Yuk Suppression Reply 6. The Government's response did not add any evidence pertaining to this seizure, and claimed instead that Tang Yuk failed to meet his burden of calling the search or seizures into question. Gov. Mem. 48. ...