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United States v. Green

United States District Court, W.D. New York

March 2, 2018





         Defendant Alexander Green ("Defendant") and the Government each ask the undersigned to review determinations made by United States Magistrate Judge Feldman, who handled pretrial matters in this case pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Dkt. 9). Defendant has fded objections (Dkt. 297) to a Report and Recommendation issued by Judge Feldman on November 3, 2017 (Dkt. 281) ("the R&R"), recommending denial of Defendant's motion to suppress statements and evidence. The Government has appealed (Dkt. 290) Judge Feldman's Decision and Order (Dkt. 282) ("the D&O") finding that the speedy trial clock began running after the Government missed the deadline to file its post-suppression hearing brief.

         Based upon this Court's de novo review, and for the reasons discussed below, the Court accepts and adopts the R&R and denies Defendant's motion to suppress. In addition, the Court disagrees that the speedy trial clock began running when the Government missed a filing deadline, and therefore, for the reasons discussed below, the D&O is reversed.


         On March 27, 2014, Defendant and his brother, Charles Green, were indicted on one count of conspiracy to possess with the intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846, and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Dkt. 1). On April 10, 2015, Defendant filed omnibus motions arguing that, among other things, physical evidence and statements obtained from three separate stops should be suppressed. (Dkt. 82 at 14). Evidentiary hearings were conducted before Judge Feldman on March 30, 2016 (see Dkt. 151), January 9, 2017 (see Dkt. 217), January 10, 2017 (see Dkt. 218), and January 19, 2017 (see Dkt. 219). Defendant filed his post-hearing brief on May 4, 2017. (Dkt. 232). The Government filed its post-hearing brief out of time on July 13, 2017 (Dkt. 252), accompanied by a cover letter to Judge Feldman that Defendant conceded should be construed as a letter motion for late filing (Dkt. 282 at 6 n.2; Dkt. 257 at ¶ 23). The Government's brief was due June 19, 2017. (Dkt. 290 at 1).

         On July 18, 2017, the Government filed a formal motion asking Judge Feldman to accept its post-hearing brief out of time. (Dkt. 253). Defendant opposed the motion on July 27, 2017 (Dkt. 257), and the Government replied on July 28, 2017 (Dkt. 258). Judge Feldman held oral argument on July 31, 2017, at which time he granted the Government's motion to file its post-hearing brief out of time but reserved decision on Defendant's argument that the time from when the Government's brief was due (June 19, 2017) until the date the brief was filed with the letter motion seeking an extension of time (July 13, 2017) should be counted against the Government for speedy trial purposes. (Dkt. 259). Defendant sought permission to file a reply brief to the Government's post-hearing brief (Dkt. 257 at ¶¶ 24-26), which was granted, and Defendant filed his reply on August 16, 2017 (Dkt. 266). The Government filed its reply on August 23, 2017. (Dkt. 270). On September 22, 2017, and then again on October 23, 2017, Judge Feldman issued Orders indicating that the pending motion had been taken under advisement on August 23, 2017, and that further time was necessary to fully consider the motion. (Dkt. 272; Dkt. 280). Judge Feldman ultimately granted a continuance in the interests of justice until November 6, 2017, for purposes of the speedy trial clock. (Dkt. 280).

         On November 3, 2017, Judge Feldman issued the R&R (Dkt. 281), and on November 7, 2017, he issued the D&O (Dkt. 282). The Government timely filed an appeal of the D&O on December 8, 2017 (Dkt. 290), and Defendant filed his memorandum in opposition to the appeal on January 5, 2018 (Dkt. 298). Defendant timely filed objections to the R&R on January 2, 2018 (Dkt. 297), and the Government filed its response to the objections on January 16, 2018 (Dkt. 299). The undersigned heard oral argument on January 29, 2018, at which time the Court reserved decision and took the matter under advisement. (Dkt. 313).

         I. Defendant's Objections to the R&R

         A. Standard of Review

         A district court reviews a report and recommendation to which a party has timely objected under a de novo standard. Fed. R. Crim. P. 59(b)(3); see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir. 1997) (requiring a district court to make de novo determinations to the extent that a party makes specific objections to a magistrate judge's findings). The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. Fed. R. Crim. P. 59(b)(2) ("Failure to object in accordance with this rule waives a party's right to review."); see Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009) (to trigger the de novo review standard, objections to a report "must be specific and clearly aimed at particular findings in the magistrate judge's proposal").

         B. Findings of Fact

         The Magistrate Judge set forth his factual findings from the hearings held on March 30, 2016 (see Dkt. 151), January 9, 2017 (see Dkt. 217), January 10, 2017 (see Dkt. 218), and January 19, 2017 (see Dkt. 219), and, based upon this Court's de novo review of the record, the testimony and exhibits admitted during the hearings fully support those factual findings. The Court incorporates by reference those factual findings into this Decision and Order and summarizes only the facts relevant to Defendant's objections. Defendant does not dispute the basic facts of any of the three searches. (Dkt. 297 at 2). Rather, he objects to certain conclusions that the Magistrate Judge reached based on those facts. (Id.).

         C. The March 10, 2011, Stop in Jackson County, Oregon

         Oregon State Highway Patrol Trooper Brent Sitowski ("Sitowski") observed, using radar, a car travelling "72 miles per hour in a 55 mile per hour speed zone" at about 1:30 a.m. on March 10, 2011, in Jackson County, Oregon. (Dkt. 281 at 3). He stopped the car and approached the passenger window where he detected a strong odor of fresh marijuana. (Id.). Sitowski testified that he knew the odor to be that of fresh marijuana because Southern Oregon is "kind of known as the mecca for marijuana" in the nation. (Id.). Sitowski also observed that the driver of the car, Brandon Lewis ("Lewis"), "had kind of slow movements when he was looking around for documentation; his eyes were watery and bloodshot; and he just kind of overall appeared lethargic." (Id.). Both Lewis and Defendant, who was the passenger in the car, produced their driver's licenses, and Defendant informed Sitowski that he had rented the vehicle. (Id.). Sitowski then contacted dispatch to run record checks on Lewis and Defendant. (Id.).

         Based on the time of day, Lewis's appearance, and the odor of fresh marijuana, Sitowski began to investigate Lewis for driving under the influence. (Id. at 3-4). Trooper Hillyear ("Hillyear"), who had also arrived on the scene, remained at the passenger side of the vehicle with Defendant. (Id. at 4). Hillyear noticed the smell of marijuana emanating from the car and asked Defendant whether he had an Oregon medical marijuana card. (Id.). Defendant replied that he did not. (Id.).

         After advising Lewis of his Miranda rights and administering a field sobriety test at 1:39 a.m., Sitowski concluded that Lewis had consumed alcohol but was not intoxicated. (Id.). Sitowski then asked Lewis if he had a medical marijuana card (to which Lewis replied that he did not), explained that he could smell marijuana, and asked Lewis whether there was any marijuana in the car. (Id. at 5). Lewis admitted that there was a marijuana joint in his jacket located inside the vehicle. (Id.). Sitowski then asked Lewis for "consent to search the vehicle and all of its contents for any narcotics or contraband or firearms." (Id.). Lewis agreed and signed the Oregon State Police's standard consent form authorizing a search of the entire vehicle at 1:51 a.m. (Id.).

         Before searching the vehicle, Sitowski asked Defendant to step out of the car. (Id.). Defendant appeared visibly intoxicated and smelled of alcohol. (Id.). Defendant consented to a pat-down of his person, and Sitowski discovered two cell phones. (Id.). Sitowski informed Defendant that Lewis had admitted to having a small amount of marijuana and asked Defendant if he could search the vehicle. (Id.). Defendant responded, "It seems like I should talk to a lawyer, " and, "I didn't even know we had pot in the car." (Id.). Sitowski testified that his request to search the vehicle made Defendant appear "extremely nervous." (Id. at 5-6). At 2:01 a.m., Defendant agreed to allow Sitowski to retrieve Lewis's jacket from the car and signed the same general consent form that Lewis had signed. (Id. at 6). Sitowski testified that he understood that Defendant's signed written consent form had been verbally limited to allow only the retrieval and search of the jacket. (Id.).

         While retrieving the jacket, Sitowski noticed an "overwhelming smell of marijuana emitting from the vehicle, " which was not consistent with the smell of the marijuana joint contained in Lewis's jacket. (Id.). Sitowski then contacted his supervisor and called Senior Trooper Greg Costanzo ("Costanzo"), a canine handler, at 2:11 a.m. (Id.). Costanzo and his canine, Cookie, arrived on the scene at approximately 2:18 a.m. (Id.). Satisfied that there was reasonable suspicion to conduct a dog sniff, Costanzo deployed Cookie, who alerted to the trunk seam and the passenger door. (Id. at 7). Cookie then sniffed the interior of the car and alerted to an area near the back seat. (Id.).

         Based on the marijuana smell and the canine alert, Sitowski conducted a probable cause search of the vehicle. (Id.). He discovered a duffel bag containing three vacuum sealed one-pound packages of marijuana; a backpack containing two one-pound packages of marijuana; a food sealer; unused vacuum seal bags; plastic gloves; rubbing alcohol; packaging peanuts; and USPS receipts addressed to New York. (Id.). Sitowski completed his search of the vehicle at approximately 2:32 a.m., at which point Defendant and Lewis were arrested. (Id. at 7-8).

         D. The November 8, 2013, Stop in Ukiah, California

         On November 8, 2013, Ukiah City Peace Officer Kevin Murray ("Murray") observed a car commit what he believed to be a traffic infraction and initiated a traffic enforcement stop. (Id. at 21-22). Upon stopping the vehicle, Murray provided the vehicle information to dispatch and was notified that the car was a rental. (Id. at 22). Murray then approached the vehicle and explained to the occupants that he had made the stop for an illegal turn by crossing over multiple lanes of traffic while performing a U-turn. (Id.). Murray asked each occupant for identification and noted that neither the driver (Aden McDonald ("McDonald")) nor the passenger (Defendant) was from the area. (Id. at 22-23). Defendant and McDonald stated that they had friends in Ukiah and were staying at the Hampton Inn, where the stop occurred. (Id. at 23). Murray asked whether any illegal narcotics or large amounts of United States currency were in the vehicle, and the occupants responded that there were not. (Id.). Murray learned that Defendant was the lessee of the vehicle, and Murray asked Defendant if he could search the vehicle. (Id.). Defendant consented to a search of the exterior of the car but said that Murray could not search the interior. (Id.). Officer Murray testified on direct examination that Defendant had agreed that Murray could search the outside of the vehicle with his "K-9 partner." (Id.). On cross-examination, Murray testified that Defendant consented to a search of the exterior of the car and that he was "sure" that Defendant and McDonald were aware that Murray had a canine with him because he was wearing a K-9 unit badge and his dog was likely barking. (Id.).

         Murray's canine, Thor, alerted to the door seam near the passenger side front door handle. (Id. at 24). Murray then informed the other officer who had arrived on the scene that Thor had given a positive indication for the presence of illegal narcotics, that he was going to direct the occupants of the vehicle to exit, and that he would then conduct a search of the interior. (Id.). McDonald stated that he did not want Murray to search the interior, but Murray explained that the dog sniff had established probable cause to search. (Id.). The occupants exited the vehicle, as directed. (Id.).

         Based on the canine alert to the passenger side of the vehicle, where Defendant was sitting, Murray patted Defendant down and found several thousands of dollars of United States currency and three cellular phones on his person. (Id. at 25). Upon counting the money, Murray determined that it totaled $99, 894. (Id. at 26). Defendant was handcuffed and placed in the back of the patrol vehicle pending confirmation of whether an outstanding out-of-state warrant for Defendant's arrest was extraditable. (Id. at 24-25). Murray then searched the passenger side of the vehicle with the assistance of another officer, and they found six more cell phones, two laptops, and a black briefcase inside of which they found plastic vacuum-sealed bags, one containing money. (Id. at 25). The officers also found a backpack in the back seat in which they found the sixth phone and a black notebook. (Id.).

         E. January 13, 2014, Stop in San Francisco Airport

         Officer Blake Molyneaux ("Molyneaux") is a member of the San Francisco Police Department and is assigned to a DEA Task Force located in the San Francisco Airport. (Id. at 31). On January 13, 2014, he received an email stating that Defendant was flying into San Francisco International Airport with one piece of checked luggage. (Id.). Molyneaux checked Defendant's criminal history and discovered an outstanding arrest warrant from Oregon and a previous marijuana related conviction from New York. (Id.).

         Molyneaux and four other officers in plain clothes waited for Defendant to disembark the plane. (Id.). They observed Defendant exit the aircraft and walk to the luggage carousel carrying a tote bag. (Id. at 31-32). Molyneaux testified that Defendant appeared to be nervous as he waited for his luggage. (Id. at 32). Defendant retrieved a bag from the carousel and proceeded to the customer service counter, where he remained for a few minutes. (Id.). When Defendant left the customer service counter, Molyneaux approached him, showed his credentials, identified himself as a member of the DEA Task Force, and asked if he could speak to Defendant for a minute. (Id.). Defendant agreed. (Id.). At that point, Trask Force Officer Ron Drake ("Drake"), also in plain clothes, identified himself and joined the conversation. (Id.). Molyneaux advised Defendant that he was a member of a task force "attempting to control drug trafficking through the use of airports." (Id.). He advised Defendant that Defendant was not under ...

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