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United States v. Marley

United States District Court, S.D. New York

October 31, 2017

UNITED STATES OF AMERICA,
v.
JASON MARLEY, ORLANDO HARLEY, and NYKOLI WILLIAMS Defendants.

          OPINION AND ORDER

          VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE.

         Defendant 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, 143, 144].

         For the reasons discussed below, Defendant's motion is DENIED.

         I. FACTS

         A. Early Investigation, the Undercover Call, and the GPS Tracking Order

         The 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.

         After identifying the suspect 4484 phone, DEA Special Agents James Enders and Marlow Luna[1] 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.

         Luna's 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.

         Consistent 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. at 84.

         Luna 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 proceeds.

Def s Br., Ex. A [Dkt. 96-1] ¶ 12.

         Marley 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.

         B. Investigation in Cleveland and the New York City Vehicle Stop

         On 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.[2] 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 14-15.

         On 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.

         Marley, 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.

         Currao 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.[3]Mat 91, 113.

         Currao 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, 94, 96.

         C. Searches and Statements at the DEA Office

         Once safely in the parking garage at the DEA office, Enders searched Marley and found about $3, 000 on his person.[4] 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.[5] DiCarlo testified that the car smelled like marijuana at the start of their search. Id. at 108.

         Enders 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.

         After 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 23.

         Enders 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; GX201.

         Marley's 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.

         Although 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 149.

         Marley 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.

         DEA 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, 189;GX201.

         D. Subsequent Investigation

         In 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.

         The 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[6] 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 10.

         In 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.

         II. DISCUSSION

         A. The February 4, 2015 GPS Tracking Order

         Marley 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 ...


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