United States District Court, W.D. New York
For Michael Williams, Defendant: Jeffrey Wicks, LEAD ATTORNEY, Jeffrey Wicks, PLLC, Rochester, NY.
For USA, Plaintiff: Tiffany H. Lee, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.
REPORT & RECOMMENDATION
MARIAN W. PAYSON, United States Magistrate Judge.
By order of Hon. David G. Larimer, United States District Judge, dated November 1, 2012, 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 # 38). On January 15, 2013, this case was transferred to United States District Judge Frank P. Geraci, Jr. (Docket # 45).
On November 1, 2012, the grand jury returned a single-count indictment against defendant Michael Williams (" Williams") charging him with sex trafficking of a minor, in violation of 18 U.S.C. § § 1591(a)(1), 1591(b)(2) and 2. (Docket # 37). Currently pending before the Court are Williams's motions to suppress evidence seized as a result of a warrantless entry into and search of 204 Caroline Street on February 8, 2012 and evidence of a photographic identification procedure conducted several hours later, as well as to dismiss the indictment. (Docket ## 53, 86, 106). For the reasons discussed below, I recommend that the district court deny Williams's motions.
THE SUPPRESSION MOTIONS
Williams seeks to suppress evidence seized as a result of a warrantless search of the apartment at 204 Caroline Street in Rochester, New York, on February 8, 2012. Although no tangible evidence was seized from the apartment at that time, information obtained from a computer in plain view led to the subsequent issuance of a warrant to seize the computer and the apprehension of a missing minor who implicated Williams in the criminal conduct with which he is charged. (Docket # 53 at 46-49).
The government has conceded that Williams, who was present in the apartment at the time of the search, has standing to challenge the intrusion into the apartment. (Docket # 57 at 11).
Evidentiary hearings were conducted on the suppression motions on June 14, 2013, October 11, 2013 and November 6, 2013. (Docket ## 63, 75, 76). Following the hearings, both parties submitted post-hearing submissions. (Docket ## 86, 89). The government argued in post-hearing submissions that the warrantless entry into 204 Caroline Street was justified by the consent of a third party and by the exigent circumstances doctrine. (Docket # 89 at 9-13). At further oral argument requested by the defendant, this Court addressed with counsel whether the emergency aid doctrine justified the warrantless entry. (Docket # 92). Over the defendant's objection, this Court granted the government's application to reopen the hearing to adduce additional testimony relating to the applicability of that doctrinal exception to the warrant requirement. (Docket ## 92, 93). Various extensions were granted at the request of the defense, and the hearing was continued on June 20, 2014 and August 28, 2014. (Docket ## 94, 100). Supplemental post-hearing memoranda were submitted by the government on October 6, 2014 (Docket # 106) and the defendant on January 3, 2015 (Docket # 110).
I. Testimony of Joel Hasper
Joel Hasper (" Hasper"), a police officer with the Rochester Police Department (" RPD"), testified that he and Officer Matthew Lebeda responded to a 911 call from Saranac Street in Rochester on February 8, 2012, at approximately 3:50 or 3:55 p.m. (Tr. B 95-97, 107). The individual who placed the 911 call reported her belief that her niece was being held against her will. (Tr. B 97). When Hasper and Lebeda arrived at the Saranac Street residence, the missing person's aunt and cousin were present. (Id.). Sergeant Webster also arrived on the scene. (Tr. B 116).
The aunt first informed Hasper that her niece T.J. (" TJ") had been missing and was a runaway; she then told him that she had learned from her son that her niece was being held against her will. (Tr. B 97, 116-17). Hasper spoke to TJ's cousin, Nicholas Justiniano (" Justiniano"). (Tr. B 97-99). Justiniano showed Hasper various text communications on his cell phone that he said were from TJ. (Id.). He also showed Hasper on his cell phone an advertisement for escort services on Backpage.com. (Id.). The advertisement included a photograph of a scantily-clad girl using the name " Ashley" whom Justiniano identified as TJ, along with " a white female" identified in the advertisement as " Chrissy." (Tr. B 97-98). The advertisement was entitled, " 2 is so much more fun than just one, " stated, " We offer DOUBLES" and provided a phone number of (585) 285-3898. (Government's Exhibit (" G. Ex.") 5). The advertisement further provided, " Location: Rochester, My place? Southwedge . . . Or yours?" (G. Ex. 5; Tr. B 102).
Justiniano reported to Hasper that when he saw the Backpage.com advertisement, he communicated with TJ by text message, although Hasper was unable to recall who initiated the first communication. (Tr. B 103-04). Justiniano reported that he began to communicate with TJ shortly after 2:00 p.m. that day and that she told him that she could not leave because she was afraid of being beaten. (Tr. B 103-04, 123). The text messages that Justiniano showed Hasper were consistent with Justiniano's reports. (Tr. B 104, 123).
Hasper immediately began to try to locate the two phones associated with TJ -- the one listed in the advertisement and the one with which Justiniano was communicating. (Tr. B 102, 104). Working with others, Hasper identified the carrier for the phones and obtained subscriber information for the phones. (Tr. B 102-03). Both phones were registered to the same individual on Sherman Street on the west side of Rochester. (Id.). Another police officer was dispatched to the Sherman Street residence, but did not locate the identified subscriber or TJ there. (Tr. B 103, 122).
Hasper returned to the East Side police station at about 6:00 p.m. (Tr. B 107). At that time, he contacted the cell phone carrier and learned that the phone that was being used to communicate with Justiniano " hit off the 500 South Avenue cell tower . . .[, ] meaning that the cell call text, the signal was coming south of that location." (Tr. B 108, 120). Hasper testified that investigating officers were then able to determine that the person identified in the Backpage.com advertisement as " Chrissy" was in fact Chelsea Willenborg. (Tr. B 109). Police records revealed that Willenborg was currently on probation and had a listed address of 204 Caroline Street, Rochester, which was in the " Southwedge" neighborhood. (Id.). According to Hasper, Caroline Street runs off South Avenue. (Id.). The investigating officers then confirmed with the Monroe County Probation Department that the Southwedge address was an " updated" address. (Id.).
Based upon the text messages indicating that TJ was being held on a street off of South Avenue, the phone " ping" off the South Avenue cell tower, the Backpage.com advertisement identifying the Southwedge as the location, and Chrissy's verified address of 204 Caroline Street off of South Avenue, the investigating officers decided to go to 204 Caroline Street. Hasper testified that the officers met two probation officers on South Clinton Avenue on their way to Caroline Street. (Tr. B 109-10, 125). Hasper, the two probation officers, Sergeant Webster, Officer Lebeda, and Investigators Shuman, Gould and Turner then proceeded to 204 Caroline Street. (Tr. B 109-10, 126).
After other officers entered the premises at 204 Caroline Street, Hasper went inside to " stand with" the defendant, who was in the living room of the apartment. (Tr. B 111-12, 126-27, 146). Hasper obtained pedigree information from Williams. (Tr. B 112, 129-30). According to Hasper, Williams would not comply with his directions to remain still and refrain from using his cell phone so he was handcuffed and placed in Hasper's car. (Tr. B 113-14, 133-34, 151). While Hasper was detaining Williams, he did not observe any officers looking in drawers or cupboards; according to him, the officers were searching for people. (Tr. B 148-49). Approximately an hour after the officers arrived at 204 Caroline Street, Hasper drove Williams to the East Side police station. (Tr. B 114, 128).
II. Testimony of Matthew Lebeda
Matthew Lebeda (" Lebeda"), a police officer with the RPD, testified that he and Hasper responded to a 911 call from Saranac Street in Rochester sometime after 3:00 p.m. on February 8, 2012. (Tr. C 5-6, 19). The 911 dispatch log reflects that they were dispatched at 3:56 p.m. and arrived at the Saranac Street residence at 4:00 p.m. (Tr. E 54; G. Ex. 7). According to Lebeda, the emergency call reported that a minor had possibly been abducted. (Tr. C 6). The dispatch log reflects that the complainant called 911 to report that the caller's sixteen-year-old niece was allegedly being held against her will for prostitution. (Tr. E 53-54; G. Ex. 7).
When Lebeda and Hasper arrived, they spoke to the minor's cousin and aunt. (Tr. C 6-7). The minor's cousin, Justiniano, informed the officers that when he was in school he had seen a photograph of his cousin TJ in a Backpage.com advertisement. (Tr. A 7). Justiniano showed Lebeda his cell phone which he stated contained text messages between TJ and him. (Tr. C 7-8). According to Lebeda, two of the messages had been exchanged before he arrived on scene, while others were exchanged after he arrived. (Tr. C 8-9, 18-19). He testified that he transcribed them verbatim onto an incident report form, except that he converted the time into military time. (Tr. C 9-13; Tr. E 26-27; G. Ex. 6). Lebeda explained that he transcribed the first two text messages while he was at Saranac Street and the remainder at the East Side police station later that afternoon. (Tr. E 12-13). Lebeda returned to the East Side station at approximately 5:17 p.m. (Tr. E 54; G. Ex. 7).
According to Lebeda, Justiniano met him at the East Side station after Lebeda left Saranac Street. (Tr. E 23). After Lebeda finished transcribing the text messages from Justiniano's phone, Lebeda began to work on obtaining the GPS location for the phone number from which TJ was texting Justiniano. (Tr. E 15-16). Lebeda testified that as he was investigating the GPS location, Justiniano returned to the East Side police station with another male. (Tr. E 16). Justiniano and the male met Lebeda and Sergeant Webster in the hall, and Justiniano told them that he had received information that TJ might have been with Chelsea Willenborg. (Tr. E 16-17). Lebeda immediately disseminated that information to the investigators. (Tr. E 17). Lebeda testified that he looked up Chelsea Willenborg on Facebook and found a photograph of Willenborg and TJ together. (Tr. E 49).
Lebeda testified that he went directly to 204 Caroline Street from the East Side station and did not stop at the Probation Department en route. (Tr. E 51-52). The log reflects that the officers went to Caroline Street at approximately 9:53 p.m. (Tr. E 55, 59; G. Ex. 7).
According to Lebeda's investigative action report, which he testified contains a verbatim transcription of the text messages that he saw on Justiniano's phone, the first text message he was shown was an incoming message at 14:57 (2:57 p.m.) from 585-513-3937, the number Justiniano identified as TJ's cell phone:
I don't want to do this but the guy who tricked me into this shit won't let me[.] I'm not fucking no one thow cause I just can't do that to myself and if I tell u where I'm at I will get beat.
(G. Ex. 6). Justiniano responded at 15:04, " Cuzz I can fix diz let me know w[h]ere u at." Subsequent text messages between the two phones include the following messages:
o TJ: Please don't tell no one (16:15)
o J: Talk to me then (16:23)
o TJ: Don't call me cuz theres 3 Big ass nikkaz here and they will take the fone and beat me if they find out it's u (16:30)
o TJ: come at night (16:35)
o J: w[h]ere? (16:35)
o TJ: I'll tell you later just in case they take the phone from me but its off south av (16:37)
o TJ: and I ain't do nada but sleep and ...