United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge United States District Court
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.
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).
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.
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.
The First Report and Recommendation
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
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
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)).
Normal Investigative Techniques
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.
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.
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