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United States v. Bailey

United States District Court, W.D. New York

February 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO BAILEY, Defendant.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. Chief Judge United States District Court

         INTRODUCTION

         The four count Indictment in this case alleges that Defendant Ricardo Bailey: (1) conspired to possess with intent to distribute 500 grams or more of cocaine; (2) used and maintained the premises at 54 Strong Street, Rochester, New York to manufacture and distribute cocaine; (3) possessed a .40 caliber glock pistol in furtherance of drug trafficking crimes; and (4) possessed with intent to distribute 500 grams or more of cocaine. See ECF No. 97. By Text Order dated June 5, 2015, this matter was referred to United States Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). ECF No. 98.

         Presently before the Court are three separate Report and Recommendations from Judge Payson. The first Report and Recommendation (ECF No. 164) recommends the denial of Defendant's Motion to Suppress certain wiretap evidence (ECF Nos. Ill. 119); the second Report and Recommendation (ECF No. 168) recommends the denial of Defendant's Motion to Dismiss based upon speedy trial grounds (ECF NO. 151); and the third Report and Recommendation (ECF No. 173) recommends the denial of Defendant's remaining motions (ECF Nos. Ill. 112, 119, 127, 128, 140, 145, 156).

         Defendant has timely objected (ECF Nos. 166, 171, 176) to each of Judge Payson's Report and Recommendations, and the government filed a response to Defendant's objections to the first Report and Recommendation. ECF No. 174. The government did not file any response to Defendant's objections to the second or third Report and Recommendations.

         Since Defendant has filed objections, this Court must conduct a de novo review as to those portions of the Report and Recommendations to which objections have been made. See 28 U.S.C. § 636(b)(1)(C). In doing so, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. As part of this review, the Court has considered all of the parties' submissions to date, and based upon that de novo review, I find no basis to alter, modify or reject Judge Payson's first or second Report and Recommendations, and will defer consideration of Judge Payson's third Report and Recommendation for the reasons discussed below.

         DISCUSSION

         I. The First Report and Recommendation

         Judge Payson's first Report and Recommendation (ECF No. 164) addresses and rejects Defendant's motions to suppress evidence that was obtained through the use of eavesdropping warrants issued by Monroe County Court Judge Vincent DiNolfo. ECF Nos. Ill. 119. Specifically, Defendant challenges three specific eavesdropping warrants issued by Judge DiNolfo. He challenges a warrant issued on January 5, 2015 for phone number 646-842-5157; he challenges a warrant issued on January 14, 2015 for phone number 585-615-9785; and he challenges a warrant issued on January 26, 2016 for phone number 347-968-3130.

         At the outset, neither Judge Payson nor this Court reviews Judge DiNolfo's decision to issue the requested warrants de novo. As a reviewing court, both Judge Payson and this Court must only look to see if "the facts set forth in the application were minimally adequate to support the determination that was made." United States v. Concepcion, 579 F.3d 214, 218 (2d Cir. 2009). Further, it is well settled that the government need not "exhaust all conceivable investigative techniques before resorting to electronic surveillance." Id. Rather, a law enforcement officer who applies for an eavesdropping warrant is only required to inform the issuing judge "of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods." Id.

         In reviewing a probable cause determination, the Court gives "due weight to inferences drawn from those facts by resident judges and law enforcement officers, " United States v. Wilson, 699 F.3d 235, 242 (2d Cir. 2012) (internal quotation marks and alterations omitted), as "courts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not." United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004). Reviewing courts "must accord considerable deference to the probable cause determination of the issuing magistrate." United States v. Clark, 638 F.3d 89, 93 (2d Cir. 2011) (quoting Walczykv. Rio, 496 F.3d 139, 157 (2d Cir. 2007)).

         A. Normal Investigative Techniques

         The main thrust of Defendant's argument is that the officers who applied for and executed these eavesdropping warrants did not sufficiently demonstrate that normal investigative procedures had been attempted or would be unsuccessful before they resorted to the use of wiretaps. Applying the standards recited above, this Court disagrees.

         As Judge Payson recounted, the officers who applied for these warrants indeed utilized traditional investigative techniques, such as surveillance and interviews with a confidential informant. However, they also informed Judge DiNolfo, as the issuing judge, that while these techniques provided valuable information, they also had certain limitations as it related to their investigation. As two examples, the officers recounted that while surveilling one vehicle, the driver utilized driving tactics which are ordinarily designed to avoid or detect surveillance, and those tactics made physical surveillance difficult to use. Further, while the officers used a confidential informant to gather information about the drug distribution activities they were investigating, the officers also informed Judge DiNolfo that the informant could not introduce an undercover officer to those higher up in the drug distribution organization, which limited their ability to further investigate all aspects of their investigation.

         Despite Defendant's protestations to the contrary, this Court concludes, as did Judge Payson, that the officers provided at least the required "minimally adequate" facts to allow Judge DiNolfo to conclude that the issuance of the requested warrants was appropriate. As a result, Defendant's challenge to the warrants based on the alleged ...


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