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United States v. Romain

United States District Court, S.D. New York

December 1, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
AUSTIN ROMAIN, Defendant.

Martin S. Bell, Esq., Russell Capone, Esq., PREET BHARARA, United States Attorney for the Southern District of New York New York, NY, Attorney for the Government.

Brad L. Henry, Esq., THE BLANCH LAW FIRM, P.C., New York, NY, Attorney for Defendant.

OPINION

ROBERT W. SWEET, District Judge.

Defendant Austin Romain ("Defendant" or "Romain"), has moved to suppress all evidence derived from the search by the Government of two cell phones ending in numbers -3636 and -2171 (the "Cellphones") pursuant to the Fourth Amendment of the United States Constitution.

For the reasons set forth below, Defendant's motion is denied.

Procedural History & Facts

The facts and prior proceedings in this action are set forth in this Court's prior decision and order dated April 10, 2014, familiarity with which is assumed. (See Dkt. No. 29.) Facts relevant to this motion are stated below.

The New York City Department of Investigation ("DOI") and the Drug Enforcement Agency ("DEA") have been investigating the Defendant since 2012. The DOI and DEA claim that Defendant and another individual abused their positions as corrections officers at Riker's Island, the site of ten correctional facilities that house inmates charged with committing felony crimes in New York City. (Strafaci Aff. ¶ 7.) Defendant served as a Corrections Officer between August 2007 until his arrest on or about June 17, 2013. Id . Two cellphones were taken from the Defendant during his arrest. Id. at 2.

On October 3, 2014, DEA Agent Strafaci ("Agent Strafaci") submitted an application for a search warrant ("Application") regarding the two cellphones that had been in Defendant's possession at the time of his arrest. The cellphones were described in the Application as "two cellphones in the custody of the DEA in New York, NY, including a Verizon Samsung flip-phone with Hex#A0000030E12E04, " and "a white Apple iPhone, " which had been inventoried by the DEA "as Exhibit N-4 and N3 respectively." (Appl. 1.) The Application's supporting affidavit ("Affidavit") defined the Cellphones as "two cellular telephones... presently in the possession of the DEA in New York, New York... [which] were seized in connection with arrest of Austin Romain." (Strafaci Aff. ¶ 2.)[1] The Affidavit later noted that a person believed to be the Defendant used "multiple cellular phone numbers, including numbers with call numbers ending in 1695... and 3636..." (Strafaci Aff. ¶ 12.)

The cover of the Application stated that the search was related to a violation of "21 §§ 841 and/or 846, " described as "[m]arijuana distribution and conspiracy" and stated the basis for the search as "evidence of a crime" and "property designed for use, intended for use, or used in committing a crime." (Appl. 1.) The Application incorporated, by reference, the entirety of the criminal complaint with which the defendant was originally charged ("Criminal Complaint"). Together, the Application and the Criminal Complaint articulated a series of facts briefly summarized as follows:

• The Defendant and another individual, charged separately, abused their positions as Corrections Officers by selling marijuana and tobacco to inmates at the facilities at which they worked.
• According to multiple human sources of information and phone records, the Defendant used multiple cellular phone numbers in order to carry on the drug-related scheme, including setting up narcotics-related meetings and wire payments. The communications included oral conversation and text messages with several identified numbers used by Romain. The cellular phone numbers included phone numbers ending with -3636 and -1695.
• The Defendant, upon arrest, was in the possession of two cellular phones, to wit, the Cellphones.
• It is common for individuals involved in the drug trade to possess cellular telephones, maintain the names and contact information of criminal associates on those telephones, use multiple cellular phones in order to avoid concentrating incriminating evidence in a single phone. It is also common for modern phones to contain a vast array of types of information, including voice mail, text messages, recent call activity, contacts, photographs, and separate communication by way of specialized programs or "apps."

The Application sought a list of items from each of the Cellphones to be reviewed and seized, including: any and all telephone numbers and/or direct connect numbers, including those assigned to the Cellphones, caller identification information, call log information, address information and other identification information, voicemail messages, texts, emails and photographs and app program contents. (Appl. Attach. A; see also Warrant Attach. A.)

The Court reviewed the Application and issued the search and seizure warrant ("Warrant") on that same day, which identified as items to be reviewed and seized those which derived from "two cellular telephones seized in connection with the arrest of Austin Roman [sic] on or about June 17, 2013, described further as (1) a Verizon Samsung flip-phone cellphone Model #SCH-U365 with serial number Hex#A0000030E12E04, (inventoried as Exhibit N-4 by the DEA); and (2) a white Apple iPhone in a black case (inventoried as Exhibit N-3 by the DEA) (collectively, the "CELLPHONES"), presently in the custody of the DEA in New York, New York..." (Warrant Attach. A.) The Warrant authorized the search and seizure of:

1. Any and all telephone numbers and/or direct connect numbers, including those ...

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