United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE
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
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.
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.
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
Motion to Suppress Wiretap Evidence
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.
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.
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)).
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
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).
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
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).
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.
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