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United States v. Mazzara

United States District Court, S.D. New York

October 27, 2017


          OPINION & ORDER


         On July 26, 2016, Michael Mazzara (“Mazzara”), Charles Kerrigan (a/k/a “Duke”), and Anthony Mascuzzio (“Mascuzzio”) were arrested pursuant to a sealed complaint charging them with one count of conspiracy to commit bank burglary and two counts of bank burglary. (Mem. of Law of the U.S. in Opp'n to the Defs.' Pretrial Mots. (“Govt. Mem.”) at 2, ECF No. 130.) At that time, Mascuzzio was on federal supervised release after having pled guilty to transporting stolen property across state lines. (Id. at 2, 18.) Mazzara, Charles Kerrigan, and Mascuzzio were indicted on August 25, 2016; that indictment was twice superseded. The operative indictment charges each defendant, along with a fourth, Christopher Kerrigan (collectively, “defendants”), with conspiracy to commit bank burglary, bank burglary, and bank theft.[1] (See generally Sealed Superseding Indictment (“S2 Indictment”), ECF No. 65.)

         Pending before the Court are a series of pretrial motions, two of which seek suppression of evidence (Mazzara and Mascuzzio have each brought their own independent suppression motion), and others seeking routine pretrial disclosures. (See generally ECF Nos. 115, 120, 122, 124, 125, 129, 140, 141, 142, and 143). Because none of the motions require resolution of a disputed issue of fact, the Court has not held an evidentiary hearing. All defendants purport to join in all motions.

         Mazzara's principle contention is that a nineteen to twenty-one-month period of warrantless, uninterrupted video surveillance from a camera mounted on a utility pole across the street from his residence violated his reasonable expectation of privacy under the Fourth Amendment. (See generally Mem. of Law (“Mazzara Mem.”), ECF No. 118.) He seeks to suppress all video footage and investigative fruits related thereto. Mazzara's motion presents a difficult, non-frivolous question of if and when extended video surveillance of public conduct impinges upon the personal and societal values protected by the Fourth Amendment. The Court concludes that the Fourth Amendment does not prohibit extended video surveillance of the type at issue here. Additionally, the Court concludes that the officers conducting the surveillance were acting in good faith, and therefore the motion to suppress should also be denied on that basis.

         Mascuzzio separately seeks to suppress evidence recovered from a search of his residence at the time of his arrest that was conducted jointly by the U.S. Probation Department and other federal agents. (See generally Mem. of Law in Support of Anthony Mascuzzio's Pretrial Mots. (“Mascuzzio Mem.”), ECF No. 123.) It is clear to the Court that a condition of Mascuzzio's supervised release provided for such searches by the U.S. Probation Department. Neither this motion, nor Mascuzzio's remaining applications for pretrial disclosures present any difficult legal issues.

         For these reasons and the others set forth below, the Court DENIES each of the pending pretrial motions.

         I. BACKGROUND

         A. The Pole Camera Surveillance

         The following facts are taken from the parties' submissions concerning the pretrial motions at issue here, and are undisputed unless otherwise noted.

         On or about November 6, 2014, the Federal Bureau of Investigation (“FBI”) and New York City Police Department (“NYPD”) (collectively, the “police”) installed a video camera on a utility pole (the “Pole Camera”) across the street from the shared residence of defendants Mazzara and Charles Kerrigan at 1849 West 10thStreet in Brooklyn, New York. (Mazzara Mem. at 2; Govt. Mem. at 4.) The Pole Camera, which was mounted approximately 12 feet above the ground, “captured views of the street and sidewalk in front of 1845 and 1849 West 10th Street” as well as “the driveway to the left” (the “Driveway”) (collectively, the “Surveilled Area”). (Govt. Mem. at 4.)

         The Pole Camera recorded the Surveilled Area continuously[2] for approximately twenty-one months, from on or about November 6, 2014 until August 6, 2016 (the “Surveillance Period”). (Mazzara Mem. at 2; Govt. Mem. at 5.) All together, the Pole Camera collected somewhere between eighteen to nineteen months of footage.[3] (Mazzara Mem. at 2; Govt. Mem. at 11.) Initially, the Camera's view of the Surveilled Area was “largely unobstructed.” (Govt. Mem. at 5.) However, on May 18, 2016, a wooden fence was erected that partially obstructed the view of the Driveway and the front of 1845 West 10th Street. (Id.)

         During the Surveillance Period, the Pole Camera captured footage that, according to the Government, depicts “all four defendants making preparations for and disposing of proceeds of two bank burglaries.” (Govt. Mem. at 5.) According to Mazzara, the Pole Camera also captured footage of “all the monumental and mundane experiences and details of [his] personal life, ” including his “outdoor interactions with his new born child, his girlfriend, his ex-girlfriend, his friends, his family, and his acquaintances.” (Mazzara Mem. at 2-3.) The police installed the Pole Camera without a warrant and did not obtain a warrant at any point during the Surveillance Period. (Mazzara Mem. at 3.)

         B. The Search of Mascuzzio's Residence

         On November 4, 2011, Mascuzzio pled guilty to an indictment charging him with conspiracy to distribute narcotics and conspiracy to transport stolen property across state lines. (Govt. Mem. at 18.) As a result, Mascuzzio was sentenced to fifty-seven months of incarceration and three years of supervised release. (Id.) One of the conditions of Mascuzzio's supervised release stated:

[Mascuzzio] shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. [Mascuzzio] shall inform any other residents that the premises may be subject to search pursuant to this condition.

(Id.; Mascuzzio Mem. at 4-5.) Mascuzzio was released from custody on or about March 12, 2015, and his period of supervised release began the same day. (Govt. Mem. at 18.)

         On July 22, 2016, Magistrate Judge Netburn signed a sealed complaint charging Mascuzzio, Mazzara, and Charles Kerrigan with one count of conspiracy to commit bank burglary and two counts of bank burglary. (Govt. Mem. at 18-19; Mascuzzio Mem. at 4.) Subsequently, the Government obtained warrants to conduct searches at, inter alia, the homes of Mazzara and Charles Kerrigan. (Mascuzzio Mem. at 4.) The Government did not obtain a warrant to search Mascuzzio's home at 192 Bay 25th Street in Brooklyn, New York. Nonetheless, a joint team of federal agents and officers from the U.S. Probation Department executed a search at that address on July 26, 2016, and removed numerous items from the residence. (Govt. Mem. at 19; Mascuzzio Mem. at 4.) Mascuzzio was taken into custody the same day. (Govt. Mem. at 19.)


         Mazzara's suppression motion is principally directed at the duration of the Pole Camera surveillance. He argues that the duration of the surveillance transforms what might otherwise be lawful surveillance of public conduct into an unlawful search into the intimacies of his private life. The motion thus directly presents the question of whether long-term video surveillance runs afoul of the Fourth Amendment. This is not an easy question, and the answer is not found directly in precedential case law. This Court therefore looks to the key underlying principles applicable to answering this question.

         A. Supreme Court Jurisprudence Relevant to Surveillance

         The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Kentucky v. King, 563 U.S. 452, 459 (2011).[4] Over the past forty years, the scope of protection conferred by the Fourth Amendment has evolved greatly, from its narrow roots in concepts of property and trespass, to a more expansive person-based protection, and eventually back again. What follows is a brief review of the Supreme Court's shifting jurisprudence.

         In 1967, the Supreme Court explicitly moved away from a property-based Fourth Amendment jurisprudence in Katz v. United States, 389 U.S. 347, 351 (1967). There, the Court held that the interception of a telephone conversation by an electronic listening device placed on the exterior of a closed telephone booth violated a person's reasonable expectation of privacy. Although the interception did not involve a trespass (that is, a physical penetration of the telephone booth), the Court rejected the premise that property interests alone control the right of the Government to engage in warrantless search and seizure. Id. at 351-53. Instead, the Court concluded that the “Fourth Amendment protects people, not places.” Id. at 351 (emphasis added). Accordingly, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. at 351-52 (citations omitted).

         In 1983 and 1984, the Supreme Court expanded upon this person-based concept of Fourth Amendment protection in a pair of cases regarding the warrantless monitoring of electronic surveillance devices. First, in United States v. Knotts, 460 U.S. 276, 285 (1983), the Court held that police monitoring of an electronic “beeper” placed into a container of chloroform sold to the respondent did not invade any legitimate expectation of privacy, and thus was neither a “search” nor a “seizure” under the Fourth Amendment. Although the police could have located the respondent's remote drug laboratory by visually following his public movements, the Court held that “[n]othing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. “Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.”[5] Id. at 284.

         One year later, the Supreme Court addressed two questions left open by Knotts: (1) whether placement of a beeper by the original owner of the container, but without the knowledge of the buyer, constituted a search or seizure; and (2) whether monitoring the beeper falls within the scope of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance. See United States v. Karo, 468 U.S. 705, 707 (1984). The Court concluded that installation of the beeper did not infringe any Fourth Amendment interest, but monitoring the beeper signal inside a residence did. Id. at 713-14. In so holding, the Court reiterated the longstanding principle that private residences are places in which individuals reasonably expect privacy free from governmental intrusion, and that those same principles are applicable in situations where the government “surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.” Id. at 715. Unlike in Knotts, where the beeper provided no information about the interior of the cabin, the beeper in Karo revealed “a critical fact about the interior of the premises that the Government [was] extremely interested in knowing and that it could not have otherwise obtained without a warrant.” Id. Together, Knotts and Karo stand for the proposition that “a search of a house should be conducted pursuant to a warrant, ” but that surveillance of public movement, even with the aid of electronic devices, need not be. Id. at 718.

         In 1986, the boundary of acceptable public surveillance was expanded yet again in a case involving intentional aerial flight over an enclosed yard. See California v. Ciraolo, 476 U.S. 207 (1986). There, the Supreme Court reaffirmed its approach in Katz, describing the “touchstone of Fourth Amendment analysis” as “whether a person has a ‘constitutionally protected reasonable expectation of privacy.'” Id. at 211 (citing Katz, 389 U.S. at 360). The Court further described Katz as establishing a “two-part” inquiry: “first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).

         In Ciraolo, the Supreme Court held that the respondent had “[c]learly . . . met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits” by encircling his yard with a 10-foot fence. Id. But because the police surveillance occurred in a “navigable airspace, ” the Court concluded that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed, ” and therefore “respondent's expectation that his garden was protected from such observation [was] unreasonable and is not an expectation that society is prepared to honor.” Id. at 213-14. Even though the surveilled area was within the curtilage of the home, the Court held that “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Id. at 213. The Court also rejected respondent's argument that the investigative purpose of the aerial surveillance rendered it unlawful. Id. at 213-14.

         In 1989, the Supreme Court decided another aerial surveillance case, Florida v. Riley, 488 U.S. 445 (1989). There, the surveillance involved a helicopter twice flying over a targeted property at 400 feet, looking into a greenhouse on respondent's property. Id. at 448. The Supreme Court relied on Ciraolo in holding that the targeted aerial surveillance did not run afoul of the Fourth Amendment, stating that although respondent “no doubt intended and expected that his greenhouse would not be open to public inspection”, “[a]ny member of the public could legally have been flying over [the] property in a helicopter at the altitude of 400 feet and could have observed [the] greenhouse. The police officer did no more.” Id. at 449-51. Because “no intimate details connected with the use of the home or curtilage were observed . . . there was no violation of the Fourth Amendment.” Id. at 452.

         In a concurring opinion, Justice Sandra Day O'Connor agreed that observation of the curtilage of a home from a helicopter 400 above ground “did not violate an expectation of privacy ‘that society is prepared to recognize as reasonable.'” Id. at 452 (citing Katz, 389 U.S. at 361.) She noted that the defendant bears the burden of proving that his expectation of privacy is a reasonable one, and therefore that a “search” has occurred within the meaning of the Fourth Amendment. Id. at 455. In a dissenting opinion, Justices Brennan, Marshall, and Stevens expressed concern that “[t]he plurality undertakes no inquiry into whether low-level helicopter surveillance by police of activities in an enclosed backyard is consistent with ‘aims of a free and open society.'” Id. at 456-57.

         Fast forward to 2012. In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court held that warrantless placement of a tracking device on a motor vehicle is an unconstitutional search under the Fourth Amendment. But although the Court was unanimous in outcome, it was sharply divided in reasoning. The majority, applying pre-Katz, trespass-based principles of Fourth Amendment analysis, concluded that placing a tracking device on a car constitutes a common-law trespass, and that the Fourth Amendment “must provide at a minimum the degree of protection it afforded when it was adopted.”[6] Id. at 412 (emphasis in original). Writing for the majority, Justice Scalia stated that the principles set forth in Katz did not replace the “common-law trespassory test”, but merely expanded upon it. Id. at 409. As a result, “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Id. at 411 (emphasis in original).

         In a concurring opinion, Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan) stated that the majority's reliance on principles of trespass “strains the language of the Fourth Amendment . . . has little if any support in current Fourth Amendment case law[, ] and [] is highly artificial.” Id. at 419. Justice Alito relied on the Katz “reasonable expectation of privacy” test to conclude that while “relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable”, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at 430 (internal citation omitted). Justice Alito took issue with the fact that “for four weeks, law ...

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