Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Montgomery

United States District Court, W.D. New York

August 31, 2017




         On January 19, 2017, the Federal Grand jury returned a Superseding Indictment charging Defendants Damon Montgomery and Deshawnra Williams with one count of narcotics conspiracy. See ECF No. 84. Pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B), this case was referred to United States Magistrate Judge Jonathan W. Feldman. See ECF No. 82. Before Judge Feldman, Montgomery and Williams filed omnibus motions that included multiple motions to suppress evidence. See ECF Nos. 89, 91, 116. Judge Feldman resolved the majority of Defendants' omnibus motions on the record. See ECF No. 109. Regarding Defendants' suppression motions, Judge Feldman issued a Report and Recommendation (“R&R”). See ECF No. 134. Judge Feldman's R&R recommends that this Court deny Defendants' suppression motions. Id.

         Currently before the Court are Defendants' objections to Judge Feldman's R&R and other rulings. See ECF Nos. 136, 140. Defendant Montgomery filed his objections on August 2, 2017. See ECF No. 136. After receiving an extension of time, Defendant Williams filed her objections on August 11, 2017. See ECF No. 140. The Government filed its responses on August 15, 2017. See ECF Nos. 141, 142.


         This Court must conduct a de novo review of those portions of the R&R 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. Based upon that de novo review, the Court has no basis to alter, modify, or reject Judge Feldman's thorough and well-reasoned R&R.

         I. Defendant Montgomery

         Defendant Montgomery has asked the Court to resolve several issues. First, Montgomery objects to Judge Feldman's R&R regarding his suppression motion. See ECF No. 136. Second, Montgomery objects to Judge Feldman's orders regarding his motion for disclosure of informant information, motion for a James hearing, and motion to suppress identification. Id. Finally, Montgomery requests that this Court conduct an in camera review of the presentence report of government witnesses to determine whether those reports contain any exculpatory or impeachment materials and that this Court compel the Government to unseal redacted information.

         a. Motion to Suppress Wiretap Evidence

         Montgomery moved to suppress evidence obtained pursuant to a wiretap warrant for mobile telephone number 585-259-9554. See ECF No. 89. On December 4, 2015, New York State Supreme Court Justice Thomas Moran issued the wiretap warrant based on the sworn affidavits of Monroe County District Attorney Sandra Doorley and Rochester Police Department Investigator Edmond Bernabei. See ECF No. 133. Justice Moran issued extension orders on December 31, 2015, January 29, 2016, and February 26, 2016. Id.

         In his motion to suppress, Montgomery argued that the affidavits failed to demonstrate probable cause and exhaustion of conventional investigative techniques. See ECF No. 89. Judge Feldman recommends rejecting those arguments. See ECF No. 134 at 9-21. First, regarding probable cause, Judge Feldman found that, considering the totality of the evidence, the initial application demonstrated probable cause and the extension applications demonstrated renewed probable cause. Id. at 10-16. Second, Judge Feldman found that the applications sufficiently explained why conventional measures of investigation would not have accomplished the stated goals of the investigation. Id. at 19-21. Now, objecting to Judge Feldman's R&R, Defendant Montgomery reiterates his arguments that the initial and extension applications were not based on probable cause and that the applications failed to demonstrate that law enforcement officers exhausted conventional investigative techniques before obtaining a wiretap warrant. ECF No. 136 at 8.

         1. Probable Cause

         The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Probable cause “does not demand certainty but only a fair probability that contraband or evidence of a crime will be found.” United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004). The task of a judge presented with a warrant application “is simply to make a practical, common-sense decision” considering “all the circumstances set forth in the affidavit before him.” Illinois v. Gates, 462 U.S. 213, 230 (1983). Reviewing courts must give “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), because “experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not.” Gaskin, 364 F.3d at 457. Further, reviewing courts “must accord considerable deference to the probable cause determination of the issuing [court].” United States v. Clark, 638 F.3d 89, 93 (2d Cir. 2011) (quoting Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007)).

         Here, Defendant Montgomery argues that the warrant application lacked probable cause because it assumed Montgomery's guilt based on his criminal history, relied on a controlled purchase that took place almost two years before investigators applied for the warrant, and failed to describe the reliability of confidential informants. ECF No. 136 at 9-14. Further, Defendant Montgomery argues that the balance of the application merely speculated that the intercepted communications were criminal in nature and that Defendant Montgomery participated in them. Id. at 13-14. The Court disagrees.

         First, although Investigator Bernabei's affidavit described Montgomery's criminal history and mentioned a two-year-old controlled purchase, see ECF No. 133 at 37-40, 42-43, the application does not detrimentally rely on that information. Investigator Bernabei mentions Montgomery's previous drug arrests and convictions to put the evidence of Montgomery's current role in a sophisticated drug distribution operation in context. See United States v. Fury, 554 F.2d 522, 531 (2d Cir. 1977) (considering the defendant's criminal record alongside other evidence and finding probable cause). The same can be said of the two-year-old controlled purchase. Investigator Bernabei described numerous controlled purchases, including three in the weeks leading up to the warrant application. Considered alongside the series of controlled purchases that followed it, the two-year-old controlled purchase illustrates the length of Montgomery's participation in this operation. See United States v. Raymonda, 780 F.3d 105, 114 (2d Cir. 2015) (“Where the affidavit establishes a pattern of continuing criminal activity, such that there is reason to believe that the cited activity was probably not a one-time occurrence, the passage of time between the last alleged event and the warrant application is less significant.”) (internal quotation marks omitted).

         Second, the application sufficiently demonstrated the reliability of the confidential informants. Investigators relied on information from two confidential informants (“CI-1” and “CI-2”). See ECF No. 133 at 42-51. Investigators know both informants, and both informants have provided reliable information in the past. United States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993) (“Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of providing reliable information.”). Additionally, both informants purchased heroin from Montgomery under the supervision of investigators. Id. at 73 (“An informant's participation in supervised drug purchases is powerful corroborative evidence for purposes of determining probable cause.”).

         Third, the Court does not agree that the balance of the information described in the application merely speculates about the criminal nature of intercepted communications and Defendant Montgomery's participation in them. Under the supervision of Investigator Bernabei, CI-2 made several phone calls to and received several phone calls from the 9554 number. See ECF No. 133 at 44-51. During those calls, CI-2 spoke to Montgomery and arranged to purchase heroin. Id. Following those phone calls, CI-2 purchased heroin. Id. On at least one occasion, CI-2 purchased heroin directly from Montgomery. Id. Moreover, pen register data indicated that, between October 15, 2015 and November 27, 2015, the 9554 number made contact with telephone numbers registered to individuals with drug-related histories hundreds of times. Id. at 51-55. Considering the totality of the circumstances, the applications demonstrated probable cause. See United States v. Diaz, 176 F.2d 52, 110 (2d Cir. 1999).

         2. Exhaustion

         An application for a wiretap warrant must contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). This requirement is “designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The wiretap warrant application need only inform the issuing court “of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.” United States v. Concepcion, 579 F.3d 214, 218 (2d Cir. 2009). The reviewing court need only ensure that the facts set forth in the supporting affidavits were “minimally adequate” to support the issuing court's conclusion that wiretaps were necessary. Id. at 217.

         Montgomery argues that Investigator Bernabei's affidavits indicated that conventional investigative techniques were successful. ECF No. 136 at 18-21. According to Montgomery, Investigator Bernabei's affidavit describes using conventional investigative techniques to obtain information about the drug distribution operations, such as the names of individuals involved in and the locations of drug transactions and stash houses, and to execute successful controlled purchases of heroin. Id. at 19-21. According to Montgomery, that information was sufficient to “succeed in the ultimate goal of arresting Damon Montgomery.” Id. at 20. The Court does not interpret the goals of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.