United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Defendant Tushar Walia is charged in a two-count indictment with conspiracy to distribute and possess with intent to distribute XLR11 and attempted possession of XLR11 with intent to distribute, in violation of Title 21, United States Code, Sections 841(b)(1)(C) and 846. Currently before the Court is Defendant's motion to suppress post-arrest statements and tangible evidence obtained after a search of Defendant's cellular telephone and certain packages, and Defendant's application for a hearing concerning five photographic identifications made by witnesses. For the reasons discussed below, the Court denies Defendant's motion to suppress his post-arrest statements and tangible evidence without a hearing. The Court will hold a hearing to determine whether the photographic identifications were unduly suggestive.
According to the complaint filed on March 12, 2014 in support of an application for an arrest warrant for Defendant, on or about March 6, 2014 and again on March 8, 2014, agents from Homeland Security Investigations of the United States Department of Homeland Security ("HIS"), detained a total of eight suspicious packages (four on each day), which packages had been shipped from China and were destined for a storage locker in Queens, New York, rented by "Anup Shah." (Compl. ¶ 1.) The packages contained a substance that was tested and determined to contain XLR 11, a synthetic cannabinoid which is a Schedule I controlled substance. ( Id. )
On or about March 11, 2014, HIS agents delivered the seized packages to the storage locker and conducted surveillance. (Compl. ¶ 4.) The agents observed Defendant collect the packages from the storage locker and subsequently placed Defendant under arrest. ( Id. ¶¶ 4-6.) After reading Defendant his Miranda rights, Defendant admitted that he used the name Anup Shah as an alias. ( Id. ¶ 6.) Defendant also stated that he believed the packages contained synthetic cannabis and that he had received approximately 10 to 12 packages per week since early 2013, earning approximately $20, 000 to reship the packages to various addresses in California. ( Id. ) Shortly after his arrest, agents searched the packages and Defendant's cellular telephone pursuant to Defendant's written consent and determined that the packages contained XLR 11. ( Id. ¶ 8.)
On or about March 9, 2014 and March 10, 2014, agents showed photographic arrays to five individuals, all of whom identified Defendant as the individual known to them as Anup Shah. (Government's Memorandum of Law in Opposition to Defendant's Motion to Suppress at 4-5.)
a. Motion to suppress statements and evidence
"[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers 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." Jones v. United States, 365 F.Appx. 309, 310 (2d Cir. 2010) (citing United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992)). While a defendant's allegations that he was not advised of his Miranda rights is sufficient to require an evidentiary hearing, see United States v. Mathurin, 148 F.3d 68, 69-70 (2d Cir. 1998) (per curiam), such a hearing is not required if the defendant's papers in support of the motion to suppress do not create a dispute over a material fact, see United States v. Caming, 968 F.2d 232, 236 (2d Cir. 1992). See also Jones, 365 F.Appx. at 310 (finding no abuse of discretion in not holding an evidentiary hearing where "there was no material factual dispute...."); United States v. Pierce, No. 06-CR-42, 2007 WL 1175071, at *3 (E.D.N.Y. Apr. 19, 2007) ("Absent a contested issue of material fact, a defendant is not entitled to an evidentiary hearing.") (citing Pena, 961 F.2d at 339); United States v. Robinson, 153 F.Supp.2d 188, 191 (E.D.N.Y. 2001) ("[A] district court is not required to hold an evidentiary hearing if the defendant's moving papers did not state sufficient facts which, if proven, would have required the granting of the relief requested.'") (quoting United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969); United States v. Fruchter, 104 F.Supp.2d 289, 308 (S.D.N.Y. 2000) ("A motion to suppress does not require a hearing unless there is a factual dispute.") (citing Pena, 961 F.2d at 339).
In addition, no hearing is required if the defendant fails to support the factual allegations of the motion with an affidavit from a witness with personal knowledge. See United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967) (holding that statement by attorney did not raise a factual issue where it did not allege personal knowledge on the part of the attorney); see also United States v. Mottley, 130 F.Appx. 508, 510 (2d Cir. 2005) (holding that attorney's statements in a reply brief were insufficient to create an issue of fact and because the defendant failed to deny the allegations against him in his affidavit, the affidavit failed to raise an issue of fact and the district court properly denied an evidentiary hearing); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) ("[M]ere conclusory allegations or denials in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist." (citation and internal quotation marks omitted)).
Here, in support of his motion for an evidentiary hearing to suppress his statements and evidence obtained from the packages and his cellular telephone, Defendant submitted a signed statement from counsel and a memorandum of law. (Docket Entry No. 14.) Because Defendant failed to submit an affidavit from someone with personal knowledge about the circumstances under which his statements were made and the search of the packages and his cellular telephone conducted, Plaintiff has not disputed the government's assertion that he was read his Miranda warnings and knowingly waived same and that he gave written consent to search the packages and his cellular telephone. Therefore, Plaintiff is not entitled to an evidentiary hearing.
Moreover, even if the Court accepts counsel's statement, despite counsel's lack of personal knowledge, said statement does not raise any contested issue of material fact. Counsel states that Defendant "does not recall being administered his Miranda warnings." (Statement of Len Kamndang ¶ 7.) Such a statement is insufficient to contest the government's assertion, as set forth in the complaint, that Defendant orally waived his Miranda rights. See Mottley, 130 F.Appx. at 510 (noting that statements submitted by defendant's attorney in a reply brief "cannot by themselves create a factual issue"); see also United States v. Giamela, No. 05-CR-06, 2005 WL 1423332, at *1 (S.D.N.Y. June 13, 2005) (finding statement by defendant that he did "not recall being advised.... [his] Miranda rights" insufficient to raise a contested issue of fact for an evidentiary hearing). Similarly, counsel's statement that Defendant does not "recall giving consent to search" the packages or his cellular telephone does not contradict the government's claim that Defendant did consent to the search of the packages and the cellular telephone, nor does it contradict or challenge the actual consent to search form that Defendant signed. Thus, counsel's statements, even if accepted by the Court, fail to deny the government's allegations and therefore do not raise any disputed issues of material fact as to the circumstances of Defendant's statements or the search of the packages and his cellular telephone.
Defendant's motion to suppress his statements made after he was read his Miranda rights and waived said rights, and to suppress the tangible evidence obtained as a result of ...