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United States v. Lambus

United States District Court, E.D. New York

May 4, 2017

UNITED STATES OF AMERICA
v.
KAMEL LAMBUS, Defendant.

          Appearances United States: Bridget M. Rohde Acting United States Attorney, E.D.N.Y. Lauren Howard Elbert Marcia Maria Henry Michael P. Robotti

          Defendant: Angela D. Lipsman Joseph R. Corozzo, Jr. Ronald Rubinstein Rubinstein & Corozzo LLP

          MEMORANDUM AND ORDER ON MOTION TO SUPPRESS

          Jack B. Weinstein, Senior United States District Judge

         Table of Contents

          I. Introduction ........................................................................................................................ 1

          II. Facts ..................................................................................................................................... 2

A. State Parole Supervision of Lambus ............................................................................. 3
B. Installation of the Ankle Bracelet Tracking Device ..................................................... 5
C. Federal Takeover ............................................................................................................ 8
1. BSS Collaboration with Federal Law Enforcement ................................................. 8
2. Circumvention of the DOCCS Supervisory Bureau ............................................... 17
3. Use of Tracking Devices Solely to Further the Federal Criminal Investigation .. 20
4. Knowledge by Federal Authorities of Need for Judicial Approval ....................... 23

         III. Law .................................................................................................................................... 26

A. Motion to Suppress ...................................................................................................... 26
B. Requirement of Federal Judicial Approval for Placement or Use of Tracking Devices for Investigatory Purposes ............................................................................ 28
C. Supreme Court Requirement of Judicial Approval for Tracking Devices ............. 31
D. State Searches under Control of Federal Rules if Evidence is to be Used in Federal Prosecutions .................................................................................................................. 33

         IV. Application of Law to Facts ............................................................................................. 35

A. Installation of Tracking Devices ................................................................................. 35
B. Use of Tracking Device is a Separate Search ............................................................ 36
C. Rules on Obtaining Judicial Approval Known to Federal Officials ....................... 39
D. Consent Not Given ....................................................................................................... 41
E. Privacy Right of Defendant Violated ......................................................................... 42

         V. “Good-Faith” Exception to the Exclusionary Rule ....................................................... 44

         VI. Procedural History ........................................................................................................... 47

         VII. Need for Statutory and Supreme Court Clarification .................................................. 48

         VIII. Conclusion ......................................................................................................................... 51

         APPENDIX A: Acronyms and Defined Terms ........................................................................ 53

         APPENDIX B: Personnel, Agencies and Documents .............................................................. 55

          APPENDIX C: Chronology of Relevant Events on the Use of the Tracking Device Placed on Defendant Kamel Lambus .................................................................................................... 57

          I. Introduction

         Absent exigent circumstances, federal investigative or other authorities must obtain a court order before installing or using a location tracking device to monitor the movements of any person or thing. State parole authorities assume they do not need such an order; they placed a device on a state parolee, Kamel Lambus, and kept it on for over two years under the pretext that it was being used to ensure compliance with a curfew. In fact, almost from the moment of installation, information from the device was exclusively relied upon by federal authorities working cooperatively with a state official to conduct a complex federal criminal investigation of a major heroin conspiracy that resulted in a federal indictment of defendant.

         Upon recognizing that they were relying on this device to help track a large heroin distribution ring, federal officials should have 1) checked to see if court approval had been given, and, if not, 2) obtained approval from a federal district or magistrate judge. They did not do so. See infra Part II.C.4; Part IV.B.

         The key to the instant case was stated by Judge Friendly forty-five years ago in United States v. Birrell, 470 F.2d 113 (2d Cir. 1972). Paraphrasing Judge Friendly's opinion in Birrell: “The propriety of the first intrusion into [defendant's] privacy [by the state] does not automatically sanction a second [by the federal government]. . . . [A] search by law enforcement officers of another sovereign for a different purpose could not be made without a warrant.” Id. at 117.

         Defendant Kamel Lambus, who wore the tracking device, has not been charged with a parole violation by the state. He has been indicted by a federal grand jury as a drug conspirator based in part on evidence obtained from that device. He moves to suppress evidence obtained from the device. His motion is granted in part. Information obtained as a direct-but not indirect-result of use of the device is suppressed. Evidence which may indirectly have been obtained from the device, that is to say, evidence that was obtained with the aid of the device that would have been obtained independently by visual surveillance or otherwise, is not now suppressed.

         Suppression is not to be used for punitive purposes; it should be limited to necessary instruction to law enforcement forces and necessary protection of the privacy of those being prosecuted. See Herring v. United States, 555 U.S. 135, 144 (2009) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”).

         II. Facts

         Following this court's original decision granting a motion to reconsider its denial of Lambus's motion to suppress location data, an extensive evidentiary hearing was held. See infra Part VI, Procedural History. It provided extensive new information about the placement and use of the device on defendant's ankle and the nature of the relationship between state and federal authorities in obtaining evidence. The court concludes that within one month of placement of the tracking device on defendant's ankle, the federal authorities, working closely with state authorities, directed use of the device to provide evidence for the prospective federal criminal case, and not for any state parole supervision or violation charge. See infra Appendix A: Acronyms and Defined Terms (“Appendix A”); Appendix B: Personnel, Agencies and Documents (“Appendix B”); and Appendix C: Chronology of Relevant Events on the Use of the Tracking Device Placed on Defendant Kamel Lambus (“Appendix C”).

         A. State Parole Supervision of Lambus

         Kamel Lambus was discharged from prison and became a parolee under the supervision of the New York Department of Corrections and Community Supervision (“DOCCS”) on March 7, 2012. Included in the terms of his parole, which was to last for about three years and five months, was an agreement by Lambus to “permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment” and to “fully comply with the instructions of [his] Parole Officer and obey such special additional written conditions as he or she, a Member of the Board of Parole or an authorized representative of the Division of Parole, may impose.” Gov't Exh. 1.

         Suspecting Lambus of attempting to introduce narcotics into a state prison, a member of the DOCCS Bureau of Special Services (“BSS”), Officer Thomas Scanlon, began investigating Lambus shortly after his release from prison. BSS is a specialized division within DOCCS that investigates parolees who may be committing parole violations; the officers traditionally thought of as “parole officers” are members of DOCCS supervisory bureaus. See Apr. 10, 2017 Hr'g Tr. at 65:24-66:5; Dec. 1, 2016 Hr'g Tr. at 57:11-59:18; see also infra Appendix A; Appendix B. This initial investigation quickly led to cooperation between New York State and federal authorities regarding the defendant. In July 2012, New York's BSS reviewed mail Lambus sent to a prison and pictures gathered from social media sites that appeared to depict Lambus holding large sums of money while other men displayed gang signs. 3500-TS-9; Gov't Exh. 3.

         BSS passed along this material to the federal Drug Enforcement Administration (“DEA”), which began its own investigation of Lambus. 3500-CB-8. Nothing incriminating of Lambus was revealed by this preliminary investigation. Id. But state BSS Officer Scanlon continued to monitor Lambus for suspicious activities. Id.; see infra Appendix C.

         On April 5, 2013, state Officer Scanlon wrote to officers of the New York DOCCS Queens III Supervisory Bureau-which was then responsible for supervising Lambus's parole- providing an “interim update regarding the investigation being conducted on Lambus for possible violations of the conditions of his parole.” 3500-CB-8. Scanlon noted that “[BSS] was made aware of [the letter Lambus sent to the prison] ¶ 7/3/12 [and] . . . [BSS] determined from the DEA that they were not [pursuing] the matter further since their (DEA & NYSDOCCS [Inspector General]) [investigation] failed to reveal drugs being distributed into targeted DOCCS facilities by Lambus at that time.” Id. Scanlon expressed concern over the criminal history of Lambus's employer, and stated that “[BSS] continues to investigate/develop leads as to Lambus' activities.” Id. He believed Lambus “may be engaged in behavior contrary to his release agreement. As per our discussion, this Bureau continues to investigate and identify possible locations, individuals, and vehicles which may be associated to Lambus. This information will be provided to you once obtained.Id. (emphasis added). Scanlon said that BSS will “assist your staff with a search of Lambus' residence, and appropriate follow-up, in a cooperative effort to attempt to determine if Lambus is in compliance with the terms of his release agreement.” Id. The same day he sent the email, BSS Officer Scanlon requested that Lambus's parole officers in the supervisory bureau conduct curfew visits and search his residence for contraband. Gov't Exh. 11 at 4-5.

         The supervisory bureau followed up on BSS's requests. Senior Parole Officer Candace Benjamin made a home visit to Lambus on April 9, where she found “marijuana roaches” in two ashtrays in Lambus's living room. Gov't Exh. 10 at 36. Lambus claimed they did not belong to him. Id. About a week later, the Lambus parole was transferred from the Queens III Supervisory Bureau to the Queens II Supervisory Bureau. His primary parole officer there was Trudy Kovics. Id. at 35. Following an anonymous tip on May 2, Queens II Supervisory Bureau Chief/Area Supervisor Mark Parker instructed his parole officers to conduct a curfew visit. Gov't Exh. 11 at 6-7. On May 5, as per the instructions of her Area Supervisor, Officer Kovics conducted a curfew visit. Lambus was not home. Gov't Exh. 10 at 33.

         B. Installation of the Ankle Bracelet Tracking Device

         The day after the missed curfew, State Parole Officer Kovics and State Senior Parole Officer Hubert Browne, her direct supervisor, met and decided to place Lambus on electronic location monitoring. Id. The decision to place the tracking device on Lambus was made solely by the members of the supervisory bureau, not at the behest of BSS or the federal government. Mar. 15, 2017 Hr'g Tr. at 20:4-7, 23:7-9; Dec. 1, 2016 Hr'g Tr. at 97:3-15. On May 8, 2013, Lambus's parole officers placed a tracking device on Lambus's ankle. Gov't Exh. 10 at 33. According to the State parole officers, it is within their inherent authority to impose this punishment without any oversight from the judiciary. Mar. 15, 2017 Hr'g Tr. at 12:20-14:15. No judicial approval was obtained.

         Before the tracking device was installed, Lambus signed a form acknowledging that the “special condition” of electronic monitoring could last “until the termination of [his] legal period of supervision.” Gov't Exh. 14. The court finds that this extensive consent was not voluntarily given. Lambus signed the acknowledgement form only upon threat of incarceration. Lambus stated that he was “coerced” into giving his consent because Bureau Chief/Area Supervisor Mark Parker, a supervisor at the DOCCS supervisory bureau responsible for his rehabilitation, told Lambus that “he would violate me and send me back upstate to prison unless I agree to have a GPS ankle bracelet installed on me.” Apr. 14, 2016 Lambus Aff., attached as Exh. H to Lambus's Supplemental Mem. in Supp. of Suppression, ECF No. 266-2 (“Apr. 14, 2016 Lambus Aff.”), at ¶¶ 14-15, 25. Lambus also said that Chief Parker told him he would only have the GPS on him for three to six months, but the ankle bracelet in fact remained on his person until his arrest over two years later on the federal charges he now faces. Id. at ¶¶ 16, 29. Under oath, Chief Parker did not deny threatening Lambus with incarceration if he did not agree to the special condition, recounting that he discussed with Lambus “the consequences of not adhering to any special conditions . . . and [that] the consequences could lead to a violation and his incarceration.” Apr. 10, 2017 Hr'g Tr. at 94:1-10.

         To the extent that Lambus's consent was voluntary, it was limited in scope to a search lasting only a few months. The DOCCS handbook describes “Electronic Monitoring” only once, in passing, as a “graduated response” that is part of a “network of alternatives to incarceration” for parolees caught using drugs while on parole. Gov't Exh. 67 at 30; see also Mar. 15, 2017 Hr'g Tr. at 26:3-11 (defining “graduated sanction”). The DOCCS “Policy and Procedures Manual” on “Electronic Monitoring, ” promulgated in December 2006, identified three categories of cases where electronic monitoring may be useful: (1) alternatives to incarceration, (2) community safety, and (3) domestic violence. Gov't Exh. 80; Mar. 17, 2017 Hr'g Tr. at 132:6-24. The manual notes that once someone is enrolled in electronic monitoring, the duration of monitoring will continue generally from four to six months as a maximum:

[The] releasee's status on electronic monitoring will be reviewed by with the Senior Parole Officer during cases conferences and recorded in case chronos. The duration of electronic monitoring program participation will generally range from a period of four to six months. . . . The Area Supervisor will routinely review all electronic monitoring cases with appropriate staff and determine program continuance or termination based on the releasee's progress.

Gov't Exh. 80 (emphasis added). The “reports generated by the contractor [that maintains the information generated by the tracking device] must be routinely reviewed by the Parole Officer/Senior Parole Officer to determine equipment operation and case compliance with the program.” Id. “If it is recommended that a releasee be removed from electronic monitoring, the Parole Officer will consult with the Senior Parole Officer. The Senior Parolee Officer must seek removal authorization from the Area Supervisor.” Id.

         A document from Veritracks (the program operated by the contractor which maintained the data generated by the tracking device) and statements from both Lambus and Bureau Chief Mark Parker confirm that they had agreed that the electronic monitoring would last only a few months. 3500-HB-10 (listing the “Sched GPS End Date” for Lambus as 11/08/2013); April 10, 2017 Hr'g Tr. at 94:14-20; Apr. 14, 2016 Lambus Aff. at ¶ 16.

         Lambus's parole officers testified that Lambus complained “many times” about the continued attachment of the tracking device after it had been on for several months. Apr. 10, 2017 Hr'g Tr. 95:24-96:9 (Chief Parker testifying that beginning in October 2013, Lambus asked “on a number of occasions” when the tracking device could be removed); Apr. 11, 2017 Hr'g Tr. at 159:4-7 (Senior Parole Officer Hubert Browne testifying that Lambus “complained a lot” about the tracking device).

         Despite the verbal understanding between Lambus and his parole officers that the tracking device would only remain on his person for a few months, it remained on his person for over two years in order to obtain evidence for the federal criminal investigation until his arrest in the instant case on July 8, 2015 by federal officers for federal crimes. Apr. 11, 2017 Hr'g Tr. at 182:23-183:3.

         C. Federal Takeover

         1. BSS Collaboration with Federal Law Enforcement

         BSS Officer Scanlon informed federal Homeland Security Investigations (“HSI”) Special Agent Christopher Popolow about the tracking device “almost contemporaneously” with the installation of the device.

THE COURT: But realistically, approximately to the best of your recollection, it was almost contemporaneous, as I understand it, with the placement of the GPS . . . [t]hat somebody in the Fed investigation was told or was indicated or knew there was a GPS on him.
BSS OFFICER SCANLON: Yes.
THE COURT: Almost contemporaneously.
BSS OFFICER SCANLON: Yes, to the best of my recollection.
THE COURT: With the placement. Who was that?
BSS OFFICER SCANLON: That would have been Special Agent Christopher Popolow.

Mar. 15, 2017 Hr'g Tr. at 17:24-18:12.[1] At about the same time, Scanlon asked Special Agent Popolow for assistance from the federal government in the investigation of Lambus. Dec. 1, 2016 Hr'g Tr. at 104:23-106:9. Popolow agreed to help, and the federal law enforcement agency almost immediately became the “lead agency” in the investigation.

THE COURT: How did [HSI] assist you?
BSS OFFICER SCANLON: . . . Initially by conducting surveillances --
THE COURT: On who?
BSS OFFICER SCANLON: On Mr. Lambus and some of his other associates that were identified to be engaged in narcotics transfer, transporting of them. And --
THE COURT: Those other names you gave the feds?
BSS OFFICER SCANLON: Yes. They became the lead agency. They supplied the money for -- they also supplied when it eventually -- if you permit me to leap ahead, provided the undercovers, the money for transactions to purchase heroin and also with the help of the prosecutor's office to obtain the Title 3 wiretaps.

Id. at 106:19-107:7. Popolow “was the main federal investigator on the case.” Mar. 17, 2017 Hr'g Tr. at 190:19-25. Though HSI was designated the “lead agency, ” BSS also exerted some control over the investigation.

AUSA ROBOTTI: Was HSI, Homeland Security Investigations
designated the lead agency in this case?
BSS OFFICER SCANLON: Yes.
AUSA ROBOTTI: Why?
BSS OFFICER SCANLON: Because they were pro-- they adopted the case to provide funding for several investigative tools as well as manpower.
AUSA ROBOTTI: At any point did HSI have sole control of this investigation?
BSS OFFICER SCANLON: No.

Id. at 143:5-13.

         The collaboration between BSS and the federal criminal authorities, with the federal authorities taking the lead, began shortly after the installation of the tracking device. On June 6, 2013, Scanlon met with DHS/ICE and forwarded to the federal investigators “all photos & id info to date of p [Lambus] & his gang, ” and DHS/ICE agreed to “assist[] NYSDOCCS-BSS w/ inv of p.” Gov't Exh. 2 at 20. On June 13 and 14, Scanlon for the state and Popolow for the federal forces discussed the investigation on the phone and began to identify Lambus's “associates.” Id. Later that month, on June 24, Scanlon advised Chief Parker that he was meeting with the “feds” the next day and asked him to keep that information confidential. Id. As discussed further infra at Part II.C.2, the supervisory bureau was largely sidelined by BSS and played a limited role in the investigation. When Scanlon met with the feds on June 25, they discussed bringing in the DEA, running “penlinks” on phone numbers, and initiating surveillance. Id.

         The data gathered by the tracking device flowed regularly and freely from DOCCS to the federal government through BSS Officer Scanlon. Mar. 15, 2017 Hr'g Tr. at 22:5-9; see, e.g., 3500-TS-17 through 3500-TS-124 (emails between BSS Officer Scanlon and federal authorities conveying location information generated by tracking device). Aided by the tracking device, BSS and federal investigators participated in numerous joint surveillance operations. For example, on July 11, 2013, the tracking device recorded Lambus “leaving his res[idence] approx. 1730 hrs” and indicated “he resumed his usual route.” Gov't Exh. 2 at 20. Surveillance teams also physically observed him at a certain “high activity” location that day. Id.

         Scanlon regularly sent emails to Popolow and other federal agents that included Veritracks links or maps and charts with updates on Lambus's location by the minute. See, e.g., 3500-TS-81. From August 7, 2013 until the investigation ended nearly two years later, Scanlon sent such emails many dozens of times. See, e.g., 3500-TS-17 through 3500-TS-124. Often, the emails included a brief description of Lambus's activities: “He is spending a lot of time @ 119 & 165th st. Also blows off curfew constantly. @ Perfections strip club in Woodside on Sunday 8/24/14. Looking for patterns will advise if any of significance are determined.” 3500-TS-44. At times Scanlon simply wrote “take a look” or “See attached from 2/24/15 activities”. See, e.g., 3500-TS-48; 3500-TS-55. The federal investigators occasionally asked Scanlon to re-format the GPS data so they could run it through specialized software: “Tom I need date and latitude/longitude. It looks like they took a step further and gave us addresses, but I need the lat/long for the program to be able to read it. Is there anyway you could provide this? . . . I need: date/time, latitude and longitude in an excel spreadsheet. Thanks and sorry for the hassle, Popolow.” 3500-TS-22.

         On December 11, 2013, Scanlon and Popolow met with federal prosecutors to discuss their investigation. They were informed that the “[Assistant United States Attorney] wants more drugs bought” “to determine level of consp.” Gov't Exh. 2 at 15. As Scanlon later recalled, “[b]asically, the [Assistant United States Attorney] stated we didn't meet the threshold for them to prosecute.” Mar. 17, 2017 Hr'g Tr. at 209:2-3. After being told that the federal prosecutors would consider prosecution only if the investigation turned up “evidence of more drugs [and] more weight, ” the investigators did not inquire whether a state prosecution would be possible; instead, Scanlon requested “that the supervising parole Department continue with the GPS so that it would assist in [the] investigation.” Id. at 209:4-19. The only prosecutors that BSS or the federal authorities ever met with were federal prosecutors (see id. at 200:19-25), and from early on in the investigation the decision was made that a federal prosecution would be the investigation's ultimate goal:

AUSA ROBOTTI: You indicated in your previous testimony that federal prosecution had been determined to be the best resolution for this case; is that correct?
BSS OFFICER SCANLON: Yes.
AUSA ROBOTTI: Why is that your view?
BSS OFFICER SCANLON: In my experience, when I reviewed the evidence that we had gathered, and I recognizes that previous State incarcerations did not deter Mr. Lambus from continuing in his drug distribution ring, I thought federal prosecution along with their penalties would be the best outcome to stop this behavior.

         Id. at 146:24-147:10.

COROZZO (ATTORNEY FOR LAMBUS): In fact, you never wanted it to be a state prosecution, you wanted it to be a federal prosecution again; correct?
BSS OFFICER SCANLON: It fit the guidelines. For our purposes, it appeared to be best suited for a federal prosecution.
Whether I determined that or not, it would have been up to the prosecutors, though, sir.
COROZZO (ATTORNEY FOR LAMBUS): Well, did you contact any state prosecutors?
BSS OFFICER SCANLON: No.
COROZZO (ATTORNEY FOR LAMBUS): You only contacted federal prosecutors; correct?
BSS OFFICER SCANLON: Contacted a federal agent and then we went to a federal prosecutor subsequent to that.
COROZZO (ATTORNEY FOR LAMBUS): And after you met with [Assistant United States Attorney] Parlovechhio, you also met with other federal prosecutors, correct?
BSS OFFICER SCANLON: Yes. Down the line. Yes.
COROZZO (ATTORNEY FOR LAMBUS): Did you ever meet with state prosecutors?
BSS OFFICER SCANLON: Not to my knowledge, no, sir.
COROZZO (ATTORNEY FOR LAMBUS): And you made a determination that this could not fit state prosecution as per your testimony, correct?
BSS OFFICER SCANLON: I made a determination that it would be suited with federal prosecution, sir.

Id. at 157:12-158:6.

         Lambus was far from the only target in this wide-ranging investigation. A May 14, 2014 update memorandum written by Scanlon explained that the goal of the “multi-agency” investigation was to dismantle the large gang-affiliated narcotics operation with which Lambus was associated, and recommended that DOCCS honor a federal request to not change the conditions of Lambus's parole to avoid accidentally alerting him of the investigation. Gov't Exh. 7. No other parolees were known targets of the investigation at this time. See Id. (“Should additional parolees be identified, notification will be made accordingly to the Regions of responsibility.”). When the investigators became aware that other targets of the investigation were New York State parolees, they kept the information being uncovered from those parolees' supervising parole officers:

COROZZO (ATTORNEY FOR LAMBUS): And in that while that you developed evidence rising to the level of probable cause that Shavona Trappier [a DOCCS parolee] was involved in criminal conduct, did you share any of that information with her supervising parole officers?
BSS OFFICER SCANLON: No, sir.
. . . COROZZO (ATTORNEY FOR LAMBUS): Well, you and Agent Popolow, who you say are the two co-lead agents in the investigation, believe at this time, of January 2015, that Shavona Trappier is trafficking ...

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