United States District Court, E.D. New York
REPORT AND RECOMMENDATION
Y. Shields United States Magistrate Judge
Tyrone Robinson (“Robinson” or the
“Defendant”) is charged in a superseding
indictment with crimes arising from nine gunpoint robberies
and attempted robberies, as well as charges of conspiracy and
firearms crimes. Docket Entry herein (“DE”) 5. In
a Memorandum of Decision and Order dated November 1, 2017
(hereinafter the “November 1 Decision”) the
District Court granted in part and denied in part several of
Defendant's pretrial motions. See DE 83. Relevant here is
the denial without prejudice of Defendant's motion to
suppress the seizure of his cellular telephone.
cell phone was taken by officers of the New York State
Department of Correction and Community Supervision
(hereinafter “Parole”) during execution of an
arrest warrant issued by that office. The government argued that
seizure of the cell phone was justified by a
“safekeeping” policy applied by Parole when a
parolee is arrested. As to that branch of Robinson's
pretrial motion, the District Court held that a hearing was
necessary to determine the facts surrounding the alleged
policy, and the question of whether the taking of
Robinson's cell phone violated the Fourth Amendment to
the United States Constitution. That suppression hearing was
referred for Report and Recommendation to this Court, which
held the hearing on January 8, 2018.
reasons set forth below, this Court respectfully recommends
that the motion to suppress be denied.
The November 1 Decision and the Scope of the
noted, the November 1 Decision held that a hearing was
necessary to determine the merits of Defendant's motion
to suppress the seizure of his cell phone during execution of
a Parole arrest warrant (the “Warrant”). The
District Court identified three separate areas of inquiry.
it was held that a hearing was necessary to determine whether
the seizure of the phone was rationally and reasonably
related to a parole officer's duties in connection with
the execution of the Warrant. With respect to this issue, the
District Court noted the Government's position that the
seizure was made pursuant to a routine safekeeping policy of
such items. In view of the fact that the Government's
assertion of this policy was supported by neither factual
testimony nor documentary evidence the District Court held
that a hearing was necessary to determine the existence and
parameters of any such policy.
the District Court noted that a hearing could shed light on
the question of whether the seizure might be justified
pursuant to the “inevitable discovery” rule. With
respect to this theory, the Government argued that the cell
phone would have been inevitably discovered during execution
of a later search warrant at Robinson's apartment on July
8, 2016 -- nearly one month after execution of parole
warrant. At the hearing before this Court, the Government
made clear that it would not be presenting evidence with
respect to the inevitable discovery doctrine. Therefore, this
Court held no hearing, and makes no findings as to that
the District Court held that a suppression hearing might
develop facts as to whether, assuming an unlawful seizure,
the Fourth Amendment requires exclusion of the cell phone.
With respect to this issue, the District Court noted that the
hearing might allow presentation of evidence as to whether
suppression would deter future unlawful behavior by arresting
facts set forth below are drawn from documents before the
District Court, as well as those developed at this
Court's evidentiary hearing. The recitation of facts is
in accord with both Rule 12(c) of the Federal Rule of
Criminal Procedure, which requires that “essential
findings” be stated on the record, and 28 U.S.C.
§636(b)(1)(B), which requires that this Court submit
proposed findings of fact to the District Court. See
Fed. R Crim. P. 12(c); 28 U.S.C. §636 (b)(1)(B).
Facts Set Forth in the November 1 Decision
evidence before the District Court established that on August
4, 2015, after service of a New York State sentence to a two
year term of incarceration, Robinson was released on parole.
See November 1 Decision at 20-21. On March 26, 2016,
Robinson was arrested for false impersonation in violation of
Section 190.23 of the New York State Penal Law. Id.
at 21. Three days later, on March 29, 2016, the Warrant was
issued alleging that Defendant violated the conditions of his
release. Specifically, Robinson was charged with:
• giving false pedigree information to police during a
• allegedly committing burglary;
• failing to notify his parole officer of his arrest;
• being outside of his approved residence after his 7
p.m. curfew ...