United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFFORD JUDGE
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.
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
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).
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).
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).
Defendant's Objections to the R&R
Standard of Review
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").
Findings of Fact
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.
The March 10, 2011, Stop in Jackson County, 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.).
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.).
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.).
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.
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.).
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).
The November 8, 2013, Stop in Ukiah, California
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.).
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.).
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.).
January 13, 2014, Stop in San Francisco
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.).
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 ...