United States District Court, S.D. New York
OPINION AND ORDER
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE.
Jason Marley has been charged with conspiracy to distribute
controlled substances and a firearms violation. On April 4,
2017, Marley moved, inter alia, to suppress evidence
related to his arrest on February 8, 2015, as well as
communications intercepted pursuant to various wiretaps [Dkt.
94]. The Court held a suppression hearing on July 20 and 21,
2017, and received post-hearing briefing. [Dkts. 137, 139,
reasons discussed below, Defendant's motion is DENIED.
Early Investigation, the Undercover Call, and the GPS
investigation of Marley grew out of a money laundering
investigation of Joseph Stern. Memorandum of Law of the
United States of America in Opposition To Defendant Jason
Marley's Pretrial Motions ("Opp. Br.") [Dkt.
108] at 1. Telephone records related to Stern's telephone
revealed four calls between Stern and the telephone with the
call number (631) 507-4484 (the "4484 phone");
three calls occurred on the morning of February 3, 2015, and
the fourth occurred on the morning of February 4, 2015.
Memorandum of Law in Support of the Pretrial Motions of
Defendant Jason Marley ("Def's Br") [Dkt. 96]
at 1; Opp. Br. at 1. Additionally, the 4484 telephone had
been in contact with a second telephone number, which was
known to the Drug Enforcement Administration
("DEA") from prior investigations and which had a
similar call pattern with Stern. Transcript of Suppression
Hearing, July 20-21, 2017 ("Tr.") at 65. These
facts led the DEA to suspect that the 4484 telephone may be
connected to Stern's money laundering operation. Opp. Br.
at 1; Tr. at 4-7.
identifying the suspect 4484 phone, DEA Special Agents James
Enders and Marlow Luna sought an order authorizing the DEA to
obtain GPS data regarding that phone ("GPS Order").
Tr. at 8. The Assistant District Attorney ("ADA")
from the Special Narcotics Prosecutor's Office from whom
they sought the GPS Order concluded that additional facts
were needed to support a request for such an order.
Id. The group determined that Luna would place an
undercover call to the 4484 phone in the hopes of generating
additional facts to support a probable cause finding.
Id. at 9.
plan was to place a call to the 4484 telephone and to attempt
to engage the person who answered the call in a conversation
about illicit activities, using cryptic or coded language.
Tr. 69-70. Luna testified that he typically begins these
calls by offering a "password" or "pass code,
" by which Luna means that he tells whomever answers the
call that he is calling on behalf of a named person. If the
other person is willing to engage with him, that person will
acknowledge that the proffered name is correct or not.
Id. Luna usually makes up a name for this purpose,
but finds the made-up name is frequently successful in
starting a conversation. Id. Luna often speaks
Spanish on these calls because, according to him, most of the
people his team investigates speak Spanish. Id. at
76-78. Luna testified that, during such undercover calls, he
does not explicitly refer to an amount of cash or narcotics,
nor does he mention drug-trafficking or money-laundering
activities, because doing so might make the other party
nervous as "it look[s] like you're talking to a
police officer." Id. at 83-84.
with the practice he had used successfully before, on
February 4, 2015, Luna placed a call to the 4484 phone and
stated, in Spanish, that he was calling on behalf of Julian,
a name he made up. Tr. at 70. The person who answered the
call, a male with a Jamaican accent, responded by asking if
he was calling on behalf of Felipe; Luna said yes.
Id. at 70-71. Luna said that he had "a
hundred" to give him, by which Luna intended to signify
that he had $100, 000 in currency to be laundered.
Id. The person told Luna that he was in Cleveland,
and that he would return later in the week and would meet
Luna in Manhattan. Id. at 71. At no point during the
call did the other party ask for clarification about Felipe
or the "hundred" Luna had referenced. Id.
conveyed this information to the ADA, who then drafted an
affidavit in support of a GPS Order; a New York state judge
signed the Order later that day. Opp. Br. at 5. The paragraph
describing the call reads as follows:
I am informed by Special Agent Luna that after obtaining the
number for TARGET CELLPHONE 1, a member of his team provided
the telephone number for J.D. MONEY LAUNDERER to an
undercover agent ("UC") working within his unit in
this investigation. UC holds himself/herself out in the
narcotics community as an individual who is capable of
laundering narcotics proceeds for-hire on behalf of illegal
drug organizations. Within the past week, UC and J.D. MONEY
LAUNDERER spoke at least one time over TARGET CELLPHONE 1 and
then arranged to meet in New York City for the purpose of
transferring narcotics proceeds in the amount of over $50,
000 within the next week. Additionally, UC provided J.D.
MONEY LAUNDERER with a code phrase indicating that UC was a
member of the above described narcotics proceeds laundering
organization and that UC had been authorized to transfer
money for J.D. MONEY LAUNDERER on behalf of the organization.
As a result, Special Agent Luna believes that both J.D. MONEY
LAUNDERER and STERN are engaged in laundering narcotics
Def s Br., Ex. A [Dkt. 96-1] ¶ 12.
asserts that the call as described by Luna in the affidavit
in support of the GPS Order did not occur. Def's Br. at
4; Affidavit of Jason Marley ("Marley Aff") [Dkt.
97] ¶ 6. Telephone records indicate that a call was
placed to the 4484 phone on February 4, 2015, at
approximately the time Enders testified that Luna made the
call. Tr. at 12-13; Def's Br., Ex. C [Dkt. 96-3]. Marley
admitted that the 4484 phone was his, that he had it on the
day of the call, that he was the only person who used it, and
that he did not authorize anyone else to answer any of his
calls. Tr. at 163. Marley testified further that he has a
Jamaican accent, that he can understand and speak Spanish,
and that he has in the past spoken Spanish over the phone.
Id. at 165-66. At the suppression hearing, Marley
also acknowledged he has spoken in Spanish on phone calls
using coded language and discussing Mexico and drug cartels.
Id. at 182-83, 189.
Investigation in Cleveland and the New York City Vehicle
February 5, 2015, the day after the GPS Order was obtained,
the DEA received GPS data indicating that the 4484 phone was
in Cleveland, Ohio. Tr. at 14. DEA agents in Cleveland
surveilled the area where the GPS data indicated the phone
was located and found a black Nissan Maxima with a New York
license plate. DEA believed the black Maxima was being used
by the person who was using the 4484 phone. Id. at
February 8, 2015, the GPS data indicated that the 4484 phone
was traveling east from Cleveland through Pennsylvania, and
the DEA surveilled the black Maxima as it crossed from
Pennsylvania into New Jersey. Tr. at 15-16. Sergeant Richard
Currao, an officer with the New York Police Department, was
part of the surveillance team, and his car had the closest
line of sight to the black Maxima as it exited the Holland
Tunnel and entered New York City. Id. at 85-88.
Currao testified that traffic was not heavy, and that the
Maxima changed from lane to lane, weaving through cars
without signaling as it drove eastbound on Canal Street.
Id. at 89, 99. Seeing this, Currao radioed his team
that he was going to pull the car over, and asked for a
second car to assist. Id. at 89. Currao pulled the
Maxima over, leaving his car protruding into the next lane.
Id. at 89-90. Another member of the DEA team parked
his vehicle in front of the Maxima, effectively boxing the
car in. Id.
a passenger in the car, was on the phone with his brother at
the time of the stop. Tr. 131-32, 170. Marley testified that
there was bumper-to-bumper traffic on Canal Street such that
illegal lane changes would have been impossible, but he could
not explain how the agents' vehicles were able to perform
the two-vehicle stop described above if the traffic had been
as he described it. Id. at 151-52, 169-70.
testified that he proceeded to the front passenger door and
knocked on the window, while another agent approached the
driver's side. Tr. at 90-91. Currao smelled a
"distinct odor of marijuana coming from the vehicle as
soon as the window went down." Id. at 91. He
asked if there were any weapons in the car; Marley replied no
and said that Currao "could look." Currao
understood Marley's statement to constitute consent to
search the vehicle.Mat 91, 113.
asked Marley to step out of the vehicle, and he patted Marley
down to check for any weapons. Tr. at 92. Currao then
suggested to his supervisor, DEA Agent Frances DiCarlo, who
had arrived on the scene, that they should take the car,
Marley, and the driver to the DEA's office nearby because
it was not safe to search the vehicle on the street-they had
effectively blocked traffic on Canal Street when they pulled
the Maxima over. Id. at 17-18, 93, 106. Currao and
the other agent also shared with DiCarlo the results of their
interviews: the passenger (Marley) lied about where he came
from, the car belonged to Marley, and the agents smelled
marijuana coming from the vehicle. Id. at 17-18,
106, 111. Marley and the driver were arrested, and Marley,
the driver, and the vehicle were all transported to the DEA
office on 10th Avenue. Id. at 19, 56-57,
Searches and Statements at the DEA Office
safely in the parking garage at the DEA office, Enders
searched Marley and found about $3, 000 on his
person. Tr. at 19, 139. Marley was taken to the
agents' office while Enders and DiCarlo began searching
the car based upon Marley's prior oral consent to Currao.
Id. at 17-18, 20-21; 62; 107-08; 113. DiCarlo testified
that the car smelled like marijuana at the start of their
search. Id. at 108.
found a 12" by 8" hole punched through the back
seat area into the trunk. Tr. at 108-09. When the agents
pulled down the back seats, the smell of marijuana
intensified. Id. at 21, 108. Enders reached through
the hole into the trunk and retrieved a bag containing about
$20, 000 in U.S. currency. Id. at 20, 108. While the
car was being searched, Luna called the 4484 phone; a
telephone near the car's center console rang and Enders
seized it. Id. at 20-21, 73.
the car had been searched, Enders asked Marley whose money
was in the trunk. Tr. at 22. Enders testified that he asked
this as part of standard forfeiture procedure. Id.
Marley said that the money was his, and Enders told him that
DEA would be seizing it. Id. Marley told Enders that
the cash was horse track winnings. Id. Enders
questioned that explanation, noting that the bills were in
small denominations; Marley did not respond. Id. at
22-23; Memorandum of Law In Reply to Government's
Opposition ("Reply Br.") [Dkt. 109] at 12. Marley
was not Mirandized prior to this exchange. Tr. at
prepared a DEA 12 receipt form to memorialize the seizure of
the currency. Tr. at 27-28; Suppression Hearing, July 20-21,
2017, Government's Exhibit 201 ("GX201"). The
form described the item seized as an "Undetermined
Amount of United States Currency, " and it was signed by
Enders, Luna, and Marley. Tr. at 28-29; GX201. Although
Marley claimed during the suppression hearing that he had not
been told that the money was being forfeited, he admitted
that Enders told him that the money would be seized and that
he was given a receipt for the $20, 000. Tr. at 147-48, 180;
pedigree information was recorded on a DEA 202 form. Tr. at
23-24; Suppression Hearing, July 20-21, 2017,
Government's Exhibit 301 ("GX301"). The
pedigree information included data on Marley's family and
employment, and also reflected two phone numbers for him. Tr.
at 25-26; GX301. The first phone number listed corresponded
to the 4484 phone that was being tracked, while the other
number, (347) 425-3271, corresponded to a second phone (the
"3271 phone") that Marley had on his person at the
time of his arrest, and which the agents initially seized.
Tr. at 26, 29; GX301. Marley denied providing the agents with
the phone numbers for his phones, but he acknowledged that he
provided the other personal information contained on the
form, such as his occupation and the names of family members.
Tr. at 146-47, 183-85; GX301.
Enders returned the 3271 phone to Marley later that evening,
he initially decided to seize the 4484 phone, believing that
it might be needed as evidence in the Stern investigation.
Tr. at 29. It was determined a few days later that he should
return the 4484 phone, which he attempted to do by calling
Marley on the 3271 phone. He left a message, but Marley did
not call him back. Id. at 29-30, 61. Marley contends
that he never received Enders's call. Id. at
claims that, while he was being held at the DEA office, he
saw agents search his cell phones, which were
password-protected, and heard them discussing Cellebrite, a
program used to extract information from phones. Def's
Br. at 6-7, 29; Tr. at 140, 152-54. Enders and the other
agents testified that neither they nor others who were
present with Marley on February 8, 2015 searched his phones,
nor did any of them have the skills to unlock a
password-protected phone. Tr. at 30-31, 62, 81-82, 95, 109,
113. The technicians who have the ability to search such
telephones work standard weekday hours, whereas Marley's
arrest took place on a Sunday evening. Id. at 31.
While Marley testified that he saw agents looking through his
phone and specifically saw Luna do so, he also testified that
Luna took the phone to a back room where Marley could not see
him, and later testified that he did not actually see anyone
unlock the phone. Id. at 152-54, 186.
released Marley and the car from custody after several hours.
Tr. at 27; 149-50. Marley left with the 3271 phone and the
currency that had been found on his person; the DEA kept the
4484 phone and the currency found in the trunk of
Marley's car. Id. at 27-30, 60-61, 149, 184,
March 2015, about a month after Marley's arrest, DEA
obtained authority to place a wiretap on Stern's
telephone. The wiretap captured calls between Stern and an
individual using Marley's 3271 phone during which money
drops at Stern's place of business were arranged. Tr. at
32-33. That same month, agents conducting surveillance
observed a man matching Marley's description driving a
black Maxima and exiting the vehicle at Stern's business.
Id. at 33.
Stern wiretap also intercepted calls between Stern and an
individual using a Jamaican phone number. Tr. at 33-34. That
caller coordinated money drops with Stern for Marley and
others. Id. at 34-35. Several months later, Enders
learned that the authorities in Jamaica had initiated a
wiretap on the Jamaican phone. That wiretap ultimately
identified Carlton Powell as the phone's owner, and it
captured drug-related conversations between Powell and Marley
on Marley's 3271 phone. Id. at 35-36. Those
conversations, in turn, led the DEA to obtain authorization
to wiretap several of Marley's phones. Id. at
36-37. The electronic surveillance of Marley allowed the DEA
to identify co-conspirators, methods of operation, stash
houses, and the timing of drug deliveries, and allowed it to
seize narcotics and weapons and to make several arrests
(including Marley). Id. at 37; Post-Hearing
Memorandum in Opposition to Defendant's Motions to
Suppress ("Post-Hearing Opp. Br.") [Dkt. 144] at
March 2016, a search warrant was obtained for Marley's
4484 phone, which was still in DEA's possession. Tr. at
30. The warrant application for the search of that telephone
includes the following description of Luna's February 4,
2015, undercover call:
On or about February 4, 2015, a law enforcement agent acting
in an undercover capacity ("UC-1") placed a
Spanish-language call to Subject Device-1. From my
conversations with UC-1 following his call, I have learned
that during that call, in substance and in part, UC-1 stated
that UC-1 said he was calling on behalf of
"Julian." A Spanish-speaking male with a Caribbean
accent, later identified as JASON MARLEY, then responded
asking if UC-1 was, in fact, calling on behalf of
"Felipe, " to which UC-1 responded affirmatively.
UC-1 then stated that UC-1 had "100" for MARLEY;
MARLEY replied that MARLEY was presently in Cleveland, Ohio,
but would return to Manhattan on the then-upcoming Friday and
would meet UC-1 at 11:00 a.m. in Manhattan.
Def s Br., Ex. B [Dkt. 96-2] ¶ 13.
The February 4, 2015 GPS Tracking Order
moves to suppress the evidence obtained from the GPS Order,
arguing that the supporting affidavit upon which it was
granted contains false and misleading statements, without
which there was not probable cause for its issuance.
See Def's Br. at 7-11; Post-Hearing Memorandum
in Support ...