United States District Court, Western District of New York
For Otis Willis, also known as " O", Defendant: Matthew D. Nafus, LEAD ATTORNEY, Scottsville, NY.
For Tiffany St. Denis, Defendant: Mark D. Funk, LEAD ATTORNEY, Rochester, NY.
For USA, Plaintiff: Tiffany H. Lee, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.
REPORT & RECOMMENDATION PRELIMINARY STATEMENT
MARIAN W. PAYSON, United States Magistrate Judge.
By Order of Hon. Frank P. Geraci, United States District Judge, dated January 17, 2013, all pretrial matters in the above captioned case have been referred to this Court pursuant to 28 U.S.C. § § 636(b)(1)(A)-(B). (Docket # 8).
On October 24, 2013, the grand jury returned a three-count second superseding indictment charging defendants Otis Willis (" Willis") and Tiffany St. Denis (" St. Denis") with conspiracy to commit sex trafficking of minors, in violation of 18 U.S.C. § 1594(c). (Docket # 73). Both defendants are also charged with substantive sex trafficking of a minor, in violation of 18 U.S.C. § § 1591(a)(1) and (b)(2). In addition, St. Denis is charged with distributing cocaine to a person under twenty-one years of age, in violation of 21 U.S.C. § 859(a).
Currently pending before this Court are motions by Willis and St. Denis to suppress evidence of two photographic identifications. (Docket ## 17, 80, 116, 117). Also pending before the Court are St. Denis's motions to suppress evidence seized pursuant to search warrants and to suppress statements. (Docket # 80). For the reasons discussed below, I recommend that the district court deny defendants' motions.
I. Search Warrant for Samsung Cricket Phone
On August 9, 2012, this Court issued a warrant to search a silver and black Samsung Cricket Phone, identification number A3LSCHR261 (the " Samsung Cricket phone"). (Docket # 80-5). Federal Bureau of Investigation (" FBI") Special Agent Barry W. Couch (" Couch") submitted an affidavit in support of the warrant application. (Id. at 7-15).
Couch's affidavit recounted information he had learned through his investigation of sex trafficking of a minor by Willis and St. Denis. (Id. at ¶ 5). Couch stated that CW1, a friend of the victim's mother, contacted the FBI and reported that Willis and St. Denis were involved in trafficking the victim (" CW2"). (Id.). Couch interviewed CW1 on August 3, 2012. (Id. at ¶ 6). According to CW1, she and CW3 (the mother of CW2), discovered that CW2 was staying with St. Denis at St. Denis's residence located on the corner of Eighth and Bay Streets in Rochester, New York. (Id.). During the week of July 25, 2012, CW1, CW3 and three other individuals went to that location and were involved in an altercation with its occupants. (Id.). After the altercation, one of the individuals who had accompanied CW1 and CW3 retrieved a pair of glasses and a cellphone from the ground, believing that they belonged to CW1. (Id.). The cellphone retrieved from the ground was the Samsung Cricket phone.
According to CW1, the Samsung Cricket phone did not have a battery, but CW1 was able to obtain a battery for the phone. (Id.). Upon viewing the phone's contents, CW1 determined that the phone belonged to St. Denis and that it contained text messages containing " escorting" prices, photographs of Willis and St. Denis and photographs of partially-clothed teenage girls. (Id.). CW1 provided the Samsung Cricket phone to Couch. (Id.).
Couch also interviewed CW3, who told him that subsequent to the altercation at St. Denis's residence, CW3 received a phone call from " Otis" stating that he wanted his phone returned. (Id. at ¶ 7). CW3 also reported that CW2 had been retrieved from St. Denis's residence and told CW3 that she had obtained drugs in exchange for being prostituted by St. Denis. (Id.).
On the same day, Couch interviewed CW2, who was sixteen years old. (Id. at ¶ 8). CW2 told Couch that a woman named " Tiffany" had provided her cocaine for free for approximately four years. (Id.). According to CW2, Tiffany told CW2 approximately two or three weeks earlier that she could no longer obtain cocaine for free and would have to prostitute in exchange for cocaine, which CW2 agreed to do. (Id.).
According to CW2, Tiffany posted prostitution advertisements on a website titled " Backpage.com" using a laptop computer and her cellphone. (Id.). According to Couch, he showed the Samsung Cricket phone to CW2, and she positively identified the phone as the one that Tiffany had used to post prostitution advertisements of CW2 on Backpage.com. (Id.). CW2 told Couch that she had engaged in prostitution activities with approximately five or six different men and provided the proceeds from the activities to Tiffany. (Id.).
CW2 told Couch that a man named Otis also participated in prostitution activity with Tiffany. (Id. at ¶ 9). CW2 reported that on more than one occasion she had witnessed Tiffany give money to Otis after CW2 had engaged in prostitution activities. (Id.). According to CW2, she had twice expressed her desire to stop engaging in prostitution activities and to return to her home. (Id.). CW2 stated that on both occasions Otis " beat" her, leaving bruises on her body. (Id.). CW2 reported that Otis had raped her and that she felt that she was being held against her will. (Id.).
CW2 was interviewed by Task Force Officer Brian Tucker (" Tucker") on August 8, 2012. (Id. at ¶ 10). During this interview, CW2 stated that her mother had not retrieved her from inside Tiffany's residence, but had picked her up from the street just before the altercation at the residence. (Id.). CW2 had attempted to run away from her mother, but her mother found her. (Id.). CW1 and CW3 approached St. Denis's residence after CW2 had been located. (Id.).
CW2 also stated that she had confided to CW1 the circumstances of her prostitution in exchange for drugs, and CW1 may have informed CW3. (Id.). According to CW2, although she had been using drugs for four years, she had been obtaining cocaine for free from Tiffany for approximately one year. (Id.). In addition, CW2 told Tucker that she had never actually observed Tiffany give money to Otis. (Id.). Finally, CW2 recounted that after the altercation at St. Denis's residence, Otis called the Samsung Cricket, spoke to CW3 and requested the return of his phone. (Id.).
II. Search Warrant for 495 Bay Street
On August 23, 2012, this Court issued a warrant to search 495 Bay Street, Rochester, New York. (Docket # 80-3). The warrant, which was issued upon an affidavit sworn by Couch, authorized the search and seizure of various items, including laptop computers, cellular telephones and records. (Id. at 5).
In addition to much of the same information that was contained in his August 9, 2012 affidavit ( compare Docket # 80-3 with # 80-5), Couch's August 23, 2012 affidavit also stated that during the August 3, 2012 interview of CW2, she told him that Tiffany also participated in prostitution activities and used a black Dell laptop, in addition to the Samsung Cricket phone, to post advertisements on Backpage.com. (Docket # 80-3 at ¶ ¶ 8, 10). According to CW2, she was staying at Tiffany's residence on the corner of Bay and Eighth Streets in Rochester, New York, along with Otis, during the period that she was engaging in prostitution activities. (Id. at ¶ ¶ 8-9). CW2 told Couch that Otis made the decisions whether Tiffany or CW2 would be assigned to each particular prostitution client. (Id. at ¶ 9).
CW2 described St. Denis's residence as a multi-dwelling residence that was either white or light gray in color. (Id. at ¶ ¶ 8, 10). During the August 8, 2012 interview with Tucker, CW2 stated that Tiffany's residence was on the left when facing the front of the building. (Id.). According to CW2, Tiffany previously had lived on the right side of the premises. (Id. at ¶ 10). CW2 reported that a set of stairs was located immediately inside the door to the residence and a bedroom was located on the left at the top of the stairs. (Id.).
During the same interview, Tucker showed CW2 a single photograph, and CW2 identified the person depicted as Otis. (Id.). According to Couch, the photograph was of Otis B. Willis, Jr., and a search of an online database called " Accurint.com" had associated the name Otis B. Willis, Jr. with 495 Bay Street, Rochester, New York. (Id.).
In his affidavit, Couch also reported that a federal search warrant for the Samsung Cricket phone had been executed on the phone. (Id. at ¶ 11). His affidavit also stated that records obtained pursuant to a subpoena served on Cricket Communications, Inc. revealed that St. Denis was the subscriber of the Samsung Cricket phone. (Id.).
According to Couch, he conducted an internet search and located an advertisement on Backpage.com that had been posted on June 30, 2012. (Id. at ¶ 12). Couch stated the advertisement listed the Samsung Cricket phone number as the contact phone number and contained two photographs of a female's face. (Id.). Couch further stated that the advertisement also listed another contact phone number. (Id. at ¶ 15).
On August 20, 2012, Couch showed CW2 the advertisement containing the photographs. (Id. at ¶ 13). According to Couch, CW2 identified the female depicted in the photographs as " Tiffany." (Id.). Couch also showed CW2 several photographs of 495 Bay Street, Rochester, New York, and CW2 identified the residence as the one where she had been staying with Tiffany. (Id.). On that same day, Couch conducted physical surveillance at 495 Bay Street, Rochester, New York, and identified the residence as a light gray, multi-story, two residence home, with a left side residence entrance marked with the number " 495." (Id. at ¶ 14).
III. Search Warrant for Cell Phones Seized from St. Denis on August 24, 2012
On August 23, 2012, this Court issued warrants to search five cellphones based upon another sworn application by Couch. (Docket # 80-6 at 2-6, 7-21). Couch's affidavit recounted the information contained in his previous affidavits, along with some additional information.
According to Couch, on March 6, 2012, the Amherst New York Police Department (" Amherst Police") responded to a complaint of possible prostitution at a hotel located in Amherst, New York. (Id. at ¶ 5). When they arrived, the manager of the hotel informed Amherst Police that Willis and another male had checked into the hotel with two females. (Id.). After they checked in, the manager visited the Backpage.com website and observed an advertisement depicting one of the females who had accompanied Willis to the hotel. (Id.).
Amherst Police then observed an adult male arrive at the hotel in his car, enter room 201 and leave the hotel approximately thirty minutes later. (Id. at ¶ 6). The police stopped the man's car and questioned him. (Id.). The man admitted that he had paid $100 in exchange for sexual activities in hotel room 201 to a girl named " Kiesha, " whom he had met by responding to an advertisement on Backpage.com. (Id.).
Amherst Police then observed two males and two females exiting room 215 of the hotel. (Id. at ¶ 7). One of the males was identified as Willis, and the females were identified as St. Denis and CW4, a minor. According to the hotel manager, St. Denis was the individual depicted in the Backpage.com advertisement, and CW4 was identified as " Kiesha" by the man whose car had been stopped. (Id.).
On March 11, 2012, FBI Special Agent Jennifer Amo (" Amo") interviewed CW4. (Id. at ¶ 8). CW4 reported that she had first met Willis in December 2011. (Id.). CW4 told Amo that she spent time at Willis's Grand Avenue premises on several occasions. (Id.). According to CW4, Willis asked to take photographs of CW4, but she had refused. (Id.). CW4 stated that she met St. Denis while she was visiting the Grand Avenue residence. (Id. at ¶ 9). According to CW4, St. Denis was a prostitute who told CW4 that she worked for Willis. (Id.). CW4 stated that Willis and St. Denis attempted to persuade her to engage in prostitution, but she refused. (Id. at ¶ 8).
CW4 told Amo that she was forced to leave the Grand Avenue premises when St. Denis accused her of stealing. (Id. at ¶ 9). After she left, she repeatedly received phone calls from Willis asking her to return. (Id.). CW4 reported that Willis invited CW4 to accompany him to Amherst, New York. (Id.). CW4 agreed, and was accompanied by Willis, St. Denis and Willis's nephew. (Id.). Willis or his nephew paid for CW4's train ticket, and they traveled to a hotel in Amherst, New York. (Id.).
According to CW4, once they arrived at the hotel, they rented two separate rooms. (Id. at ¶ 10). CW4 stated that she was encouraged to allow photographs of herself to be taken, and eventually acceded. (Id.). Willis's nephew stated that CW4 would be called " Kiesha." (Id. at ¶ 11). According to CW4, St. Denis took photographs of CW4 using Willis's nephew's phone. (Id.). CW4 reported that two " customers" came to the hotel that night, one of whom was the man who was stopped by Amherst Police. (Id.). According to CW4, St. Denis told her that she needed to give her money to Willis because he had provided her a place to reside and hygiene products. (Id. at ¶ 12). According to CW4, St. Denis advertised herself online using the name " Michelle." (Id.).
According to Couch, subpoenaed records from Backpage.com included: (1) an advertisement that had been posted on March 6, 2012, captioned " Kiesha has *JUST ARRIVED* - 19, " with an associated customer name of " Tiana Santiago" and an address of " 334 Grand Avenue, Rochester, New York" ( id. at ¶ 22); (2) advertisements with the same pictures of St. Denis that had been identified by CW2, with associated customer names of " Michelle Santiago" and " Tiffany St. Denis" and addresses of " 334 Grand Avenue, Rochester, New York" and " 495 Bay Street, Rochester, New York" ( id. at ¶ 23); and, (3) other advertisements containing pictures of St. Denis identified as " Tiana, " which listed the Samsung Cricket phone number as the contact number and firstname.lastname@example.org as a contact email address, with an associated customer name of Tiffany St. Denis and address of 334 Grand Avenue ( id. at ¶ 24).
According to Couch, on August 24, 2012, he and Tucker interviewed St. Denis at a motel located in Rochester, New York after she had been arrested for prostitution. (Id. at ¶ 25). St. Denis stated that she had met CW2 in December 2011 and identified a photograph of CW2. (Id.). St. Denis told Couch that she lived at 495 Bay Street, Rochester, New York and that she used to live at 493 Bay Street. (Id.). St. Denis admitted to having engaged in prostitution activities for the previous six months and to sometimes using the name " Michelle Santiago." (Id.).
A wallet and five cellphones were seized from the motel room where St. Denis had been arrested. (Id. at ¶ ¶ 26-27). The wallet contained identification and debit cards with Willis's name on them, one of which had been used to pay for one of the Backpage.com advertisements. (Id.).
IV. August 24, 2012 Interview of St. Denis
This Court conducted an evidentiary hearing concerning the circumstances surrounding St. Denis's post-arrest statements. (Docket ## 87-88). During the hearing, the government offered testimony from Tucker. (Tr. A 5).
Tucker testified that he had been employed by the Rochester Police Department (" RPD") for approximately twenty-nine years and had been an investigator for approximately twenty-five years. (Tr. A 6). At the time of the hearing, Tucker was assigned to the FBI Child Exploitation Task Force. (Tr. A 5).
According to Tucker, he was involved in an investigation of St. Denis on August 24, 2012. (Tr. A 7). Tucker testified that he had been contacted regarding A.P., a minor who had allegedly been advertised for prostitution on the Backpage.com website. (Id.). According to Tucker, he had identified St. Denis and Willis as suspects and had determined that St. Denis had placed a prostitution advertisement depicting herself on Backpage.com. (Tr. A 7-8). Tucker testified that St. Denis was contacted and, acting in an undercover capacity, he arranged to meet her that day at approximately 11:00 a.m. at a motel in Rochester. (Tr. A 8-10; Tr. B 5-6).
According to Tucker, he was accompanied to the hotel by members of the FBI task force, the RPD Narcotics Unit and the Gates Police Department. (Id.). When Tucker arrived, he contacted St. Denis, and she gave him a room number. (Id.). Tucker knocked on the hotel room door and was invited inside by St. Denis. (Tr. A 10). A short while later, approximately three to five officers knocked on the door to the room. (Tr. A 10-11; Tr. B 6-7). Tucker answered the door, and the officers entered with their guns drawn, directed St. Denis to the ground, announced that she was under arrest and took her into custody. (Id.). St. Denis was permitted to get dressed and told that the officers wanted to talk to her about a girl named A.P. (Tr. A 11-12; Tr. B 7-8).
Tucker could not recall whether St. Denis was handcuffed. (Tr. A 11-12; Tr. B 7-8). According to Tucker, he sat on the edge of the bed, and Couch and St. Denis were seated at a table in the hotel room. (Tr. A 11-12; Tr. B 10). Tucker testified that none of the officers wore uniforms or displayed their service weapons after the arrest. (Tr. A 12-13; Tr. B 11, 20). According to Tucker, St. Denis did not appear to be ill, injured or under the influence of drugs or alcohol. (Tr. A 13; Tr. B 9, 19-20).
Tucker testified that he advised St. Denis of her Miranda rights by utilizing an RPD notification and waiver card. (Tr. A 14, 20; Government's Exhibit (" Gov. Ex.") 1; Tr. B 8-9). According to Tucker, he first completed information on the front of the card, including the date, location, St. Denis's name, his own name and St. Denis's level of education. (Tr. A 15). Tucker then turned the card over and read the rights verbatim from the card. (Tr. A 15-16). After reading the rights, Tucker asked St. Denis, " Do you understand what I have just said to you, " and St. Denis responded, " Yes." (Id.). Tucker asked St. Denis, " With these rights in mind, do you agree to talk with me now?" (Id.). St. Denis responded affirmatively, and Tucker then began to interview her. (Tr. A 16-17). Tucker testified that St. Denis did not indicate that she did not understand her rights or ask any questions about them. (Tr. A 16, 18).
Tucker interviewed St. Denis for approximately fifteen or twenty minutes. (Tr. A 17; Tr. B 10). During the interview, neither Tucker nor any of the other officers made any threats or promises to St. Denis to induce her to speak to Tucker. (Tr. A 16-17). Tucker testified that St. Denis never indicated that she wanted an attorney or to terminate the interview. (Tr. A 17-18). According to Tucker, St. Denis was cooperative and " ...