Opinion
06-cr-413 (DLI)
11-15-2016
UNITED STATES OF AMERICA, v. CAMERON SPENCER, JR, Defendant.
MEMORANDUM AND ORDER
DORA L. IRIZARRY, Chief United States District Judge :
Before the Court is Defendant Cameron Spencer, Jr.'s ("Defendant") motion to suppress physical evidence and post-arrest statements, along with an affirmation signed by him in support thereof, in connection with his violation of supervised release ("VOSR"). (See Def's. Letter in Supp. Of Mot. to Suppress ("Def's. Ltr."), Dkt. Entry No. 856.) Defendant contends that the admission of this evidence violates his Fourth, Fifth, and Sixth Amendment rights. The government opposes asserting that the Fourth Amendment's exclusionary rule is not applicable to proceedings for violations of supervised release, and that, in any event, it does not seek to introduce Defendant's post-arrest statements at the VOSR hearing. (See Gov's. Letter in Opp. to Mot. to Suppress ("Gov's. Ltr."), Dkt. Entry No. 858.) For the reasons set forth below, Defendant's motion to suppress is denied without a hearing.
At a status conference held on July 15, 2016, the Court orally denied Defendant's suppression motion. This Memorandum and Order memorializes the reasons for that ruling.
BACKGROUND
Familiarity with the facts and circumstances of this case is assumed. At all times relevant to this motion, Defendant was on supervised release. The relevant facts and circumstances are taken from Defendant's affirmation in support of his motion, and the Revised Violation of Supervised Release Report issued by the Department of Probation on December 3, 2015. (Revised Violation of Supervised Release Report, Dkt. Entry No. 855.)
On December 15, 2006, Defendant pled guilty to conspiracy to distribute and possession with the intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. §§ 846 and 841(a)(1), and to possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (See Dkt. Entry No. 145.) On March 4, 2009, Defendant was sentenced to sixty months of imprisonment and five years of supervised release with conditions. (See Dkt. Entry Nos. 430, 431.) Defendant commenced supervision on June 4, 2014. (See Violation of Supervised Release Report, dated July 17, 2015, Dkt. Entry No. 815.)
On July 15, 2015, New York City police officers responded to a radio call that Defendant and two other men were acting in a suspicious manner by walking into the backyards of various residences in Queens, New York. (See Revised Violation of Supervised Release Report ("VOSR Rep."), dated December 3, 2015, Dkt. Entry No. 855, at 5.) The police officers arrived and questioned Defendant and the two other individuals. (Id., see also Affirmation of Cameron Spencer, Jr. ("Spencer Aff."), Dkt. Entry No. 856, at ¶ 2.) The officers handcuffed and searched the three men. (Id., Spencer Aff., at ¶ 2.) Upon searching the Defendant, the officers recovered car keys, a small quantity of OxyContin pills, a cell phone, an additional set of keys, and an identification card from his pockets. (Id., Spencer Aff., at ¶ 2.) The officers also searched the other two individuals and recovered a set of handcuffs from one of them. (Id.)
The Revised Violation of Supervised Release Report was improperly filed as pertaining to co-defendant Cameron Spencer, rather than to Cameron Spencer, Jr.
Upon recovering the car keys, the officers asked Defendant what he was doing in the area and to which vehicle the keys belonged. (Spencer Aff., at ¶ 2.) Defendant responded that he was "looking for a relative," had "picked up the car keys from the floor of the van," and "did not know who owned the van." (Id.) The officers used the keys to open and search the van where they found a loaded .380 caliber handgun, a roll of duct tape, and marijuana. (VOSR Rep., at 6.) Based on this encounter, the officers arrested Defendant and the other two individuals. (Id.) Shortly thereafter, a complaint was filed in Queens County Criminal Court charging Defendant with possession of a loaded firearm, and criminal possession of a controlled substance. (Id.) On November 9, 2015, Defendant pled guilty, in Queens County Criminal Court, to Disorderly Conduct, in violation of NYSPL 240.20, and was sentenced to a conditional discharge Order of Protection. (Id.)
After his arrest, Defendant was held in local custody for approximately two weeks, until he was transferred to the Brooklyn federal court. (Spencer Aff., at ¶ 3.) Around July 28, 2015, Defendant asked a United States Marshal if he could speak to someone about his case, and two agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") arrived. (Id.) Defendant told the ATF agents that he wanted to make a deal for a favorable plea. (Id., at ¶ 3.) The agents informed Defendant that they needed specific information before a deal could be made and allegedly led Defendant to believe that what he said would not be used against him. (Id.) Defendant informed the agents that he "had bought the gun that was found in the car after [he] was arrested." (Id.) During the meeting, the agents allegedly did not inform Defendant that he had a right to remain silent, a right to a lawyer, or that anything he said could be used against him in court. (Id.) After this initial meeting, Defendant met with federal agents on numerous occasions and made various unknown incriminating statements in August 2015. (See Def's. Reply Letter in Supp. Of Mot. to Suppress ("Def's. R. Ltr."), at 2, Dkt. Entry No. 862.)
Defendant's affirmation is the only account available concerning the statements he allegedly made in July 2015.
Defendant now faces seven charges of violating the terms of his supervised release. (See VOSR Rep., at 5-7; Addendum to Violation of Supervised Release Report, Dkt. Entry No. 869.) Of the seven charges, the following three are based specifically on his local arrest and evidence seized in connection to that arrest: (1) possession of a loaded firearm; (2) possession of a controlled substance; and (3) association with felons. (See VOSR Rep., at 5-7.) On December 10, 2015, Defendant moved to suppress the firearm, narcotics, and the statements he made both on the day of his arrest and to federal agents around July 28 and to prevent their use in his VOSR proceeding. (Def's. Ltr., at 1.) Defendant also moved to suppress additional incriminating statements he made to law enforcement on various dates in August 2015 claiming those statements were obtained in violation of his Fifth and Sixth Amendment rights. (See Def's. R. Ltr., at 2.)
DISCUSSION
I. Fourth Amendment Violations
"The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands." United States v. Leon, 468 U.S. 897, 906 (1984). "To safeguard Fourth Amendment rights, the Supreme Court created 'an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.'" United States v. Bershchansky, 788 F.3d 102, 112 (2d Cir. 2015) (quoting Herring v. United States, 555 U.S. 135, 139, 129 (2009)). The primary purpose of the exclusionary rule is "to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, 414 U.S. 338, 347 (1974). However, the rule is not applicable to all proceedings, but only to those where the rule's "deterrence benefits outweigh its 'substantial social costs.'" Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998). The Supreme Court "repeatedly [has] declined to extend the exclusionary rule to proceedings other than criminal trials," Id., and has declined to make it applicable to parole revocation proceedings. Id. at 364.
Contrary to the Supreme Court precedent discussed above, Defendant urges the Court to apply the exclusionary rule to his violation of supervised release proceeding. In response, the government argues that the Supreme Court's decision in Scott forecloses the rule's application. The Second Circuit has not addressed the precise issue before this Court nor has any court within this district. See United States v. Peterson, 559 F. App'x 92, 95 (2d Cir. 2014) (Summary Order) (refusing to reach question of whether "the exclusionary rule should apply in supervised release revocation proceedings"); United States v. Reyes, 283 F.3d 446, 470 (2d Cir. 2002) (same). This Court holds that Scott's reasoning applies with equal force to supervised release proceedings, and Defendant's motion is denied accordingly.
In Scott, the Supreme Court held that the exclusionary rule did not apply in state parole revocation proceedings. Scott, 524 U.S. at 364. To reach this conclusion, the Court weighed the deterrence benefits of applying the rule to parole revocation proceedings against its social costs. Id. at 364-65. Considering the rule's benefits, the Court noted that the rule's application would provide "only minimal deterrence benefits" because the use of the rule "in the criminal trial context already provide[d] significant deterrence of unconstitutional searches." Id. at 364. Weighing the "substantial social costs" of applying the rule, the Court stated that the costs of excluding probative evidence was "particularly high" in parole revocation proceedings because the State had an "overwhelming interest" in ensuring that a parolee complied with the conditions of their parole and were returned to prison if they failed to comply. Id. at 365. The Court reasoned that the exclusion of evidence establishing a parole violation "hamper[ed] the State's ability to ensure compliance with these conditions by permitting the parolee to avoid the consequences of his noncompliance." Id. Thus, the Court declined to extend the rule because any deterrence benefits did not outweigh the substantial costs. Id. at 367.
Defendant contends that Scott is inapplicable because that case involved a parole revocation proceeding and his case involves a supervised release revocation hearing. The Court disagrees because the goals served by federal supervised release are equal to those of state parole supervision. Faced with the same argument, the Fourth Circuit Court of Appeals noted that both proceedings were "analogous contexts." United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999). Supervised release is analogous to parole in that it has the same purpose: to determine if individuals have violated the conditions of their release and, if so, whether the violations warrant or require a penalty. See United States v. Janvier, 599 F.3d 264, 266 (2d Cir. 2010); United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). The Second Circuit repeatedly has stated that it "considers the constitutional protections for revocation of supervised release to be the same as those afforded for revocation of parole or probation." Sanchez, 225 F.3d at 175; see also United States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006). Given these clear cut similarities between both types of proceedings, Scott's logic and cost-benefit analysis are applicable to VOSR hearings. See Reyes, 283 F. 3d at 458 (noting diminished Fourth Amendment protections apply with "equal force" to federal supervised release).
In order for the Fourth Amendment's exclusionary rule to apply to a VOSR proceeding, "the benefits of deterrence must outweigh the costs." Herring, 555 U.S. at 141. Defendant argues that the deterrence benefits of applying the exclusionary rule in the current case differ from those in Scott because here the police officers searched Defendant for the purpose of future criminal prosecution in a state case and not in a subsequent VOSR proceeding. Defendant's argument does not explain why this factual distinction either alters Scott's deterrence analysis or outweighs the costs of applying the exclusionary rule. Additionally, Defendant's argument misses the point in Scott's deterrence analysis. In dicta, the Supreme Court explicitly stated that, it is the "likelihood that illegally obtained evidence will be excluded" from a subsequent trial that provides the deterrence against violating Constitutional requirements, but this deterrence motive is nonexistent where the officers are unaware that the individual is a parolee. Scott, 524 U.S. at 367. In that situation, admitting the evidence at a parole revocation proceeding "surely has little, if any, effect on the officer's incentives." Id. Importantly, here, there is no indication that the officers who seized and searched Defendant were aware that he was on federal supervised release; therefore, applying the Fourth Amendment's exclusionary rule to VOSR hearings would provide minimal deterrence benefits.
Having identified and analyzed the deterrence benefits of applying the rule, the Court then must weigh them "against the 'substantial social costs exacted by the exclusionary rule.'" Illinois v. Krull, 480 U.S. 340, 352-53 (1987) (internal citation omitted). The costs of applying the exclusionary rule to supervised release revocation proceedings are identical to the "particularly high" costs identified in Scott. In both contexts, an individual's release is permitted specifically because the individual is required to comply with certain requirements. Citing Scott, the Second Circuit recognized that the "'overwhelming interest in ensuring that a parolee complies with [parole] requirements and is returned to prison if he fails to do so,' also exists in full measure with respect to a convicted person serving a term of federal supervised release." Reyes, 283 F.3d at 462 (citing Scott, 524 U.S. at 369). Thus, just like in Scott, applying the rule would inhibit the government's ability to ensure compliance with the conditions of supervised release and permit individuals "to avoid the consequences of [their] noncompliance." Id. at 365. These high costs are not outweighed by the marginal deterrence benefits of applying the exclusionary rule particularly where, as here, the police officers were not aware of Defendant's supervised release status and were investigating a new state law violation. Accordingly, the Fourth Amendment's exclusionary rule does not apply to these proceedings.
Suppression of evidence "has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006). The Second Circuit has recognized that diminished Fourth Amendment protections apply to individuals on parole and federal supervised release, see Reyes, 283 F.3d at 458, and that the same constitutional protections apply to both kinds of revocation proceedings. Sanchez, 225 F.3d at 175. Applying this precedent and Scott, one district court within this Circuit has refused to apply the exclusionary rule to VOSR proceedings. See United States v. Medrano, 2012 WL 3055758, at *2 (S.D.N.Y. July 20, 2012); United States v. Betances, No. 03-CR-134 (JSR), Dkt. Entry No. 206 (S.D.N.Y. Apr. 26, 2012). Similarly, after Scott, other circuits also have held that the Fourth Amendment's exclusionary rule does not apply to VOSR proceedings. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir. 2000) (per curiam); Armstrong, 187 F.3d at 393-94.
Defendant argues for the first time in his reply that the Court should apply the Second Circuit's decision in United States v. Rea, 678 F.2d 382, 388 (2d Cir. 1982), decided sixteen years before Scott, to the issue at hand. As an initial matter, the Court is entitled to disregard this new argument raised for the first time in Defendant's reply. See In re Harris, 464 F.3d 263, 268 n. 3 (2d Cir. 2006); Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (per curiam). Furthermore, Defendant's argument is disingenuous. On the one hand, Defendant argues that the Court should not apply Scott because that case involved a parole revocation proceeding, while on the other hand Defendant urges the Court to apply Rea, which also involved a parole revocation hearing. Nonetheless, out of an abundance of caution, the Court has considered Defendant's argument and finds it meritless.
In Rea, the Second Circuit held "that evidence seized by a probation officer in an illegal warrantless search of a probationer's home is inadmissible at a subsequent probation revocation hearing." Rea, 678 F.2d at 388. Two judges within this Circuit have concluded that Rea, "was abrogated by Scott." Medrano, 2012 WL 3055758, at *2 (S.D.N.Y. July 20, 2012); Betances, No. 03-CR-134 (JSR), Dkt. Entry No. 206 (S.D.N.Y. Apr. 26, 2012). This Court agrees with that conclusion. In Rea, the Second Circuit weighed the deterrence benefits of applying the exclusionary rule against its costs. Rea, 678 F.2d at 389. The Circuit concluded that "the deterrent effect to be gained by applying the exclusionary rule in probation revocation hearings [...] substantially outweighs the potential injury to the function of those proceedings." Id. Since Rea, the Supreme Court conducted the same balancing test and reached the opposite conclusion. Scott, 524 U.S. 524 at 368-69. Therefore, Rea's reasoning can no longer be considered authoritative circuit precedent.
Defendant's remaining arguments seeking application of the Fourth Amendment's exclusionary rule to a VOSR proceeding do not alter the Court's analysis. Defendant either contends that supervised release is different from parole because an individual on supervised release has finished his prison sentence, unlike a parolee who is still serving it, or that his situation is factually distinguishable from Scott because the evidence here was seized without his consent. Notably, these arguments miss the mark because they neither explain why the benefits of applying the rule outweigh the social costs, nor why the Court should deviate from the rule that the same constitutional protections apply in both parole revocation proceedings and VOSR hearings.
II. Fifth and Sixth Amendment Violations
Defendant also seeks to suppress statements he made to federal agents at the time of his arrest on July 15, 2015, while in custody on July 28, 2015, and on various dates in August 2015. Aside from his Fourth Amendment argument, Defendant contends that these statements are inadmissible at his VOSR proceeding because they violate his Fifth and Sixth Amendment rights. The government represents that it does not intend to introduce any of Defendant's post-arrest statements at a hearing and, thus, Defendant's motion concerning the July 15 and July 28 statements is moot. While the government intends to introduce Defendant's statements to law enforcement officers during his cooperation in August 2015, there is no Fifth or Sixth Amendment violation because Defendant agreed to speak with law enforcement officers outside the presence of his attorney as part of his cooperation. Nonetheless, the Court addresses the admissibility of the August 2015 statements.
Defendant's moving papers and his accompanying affirmation do not contain any facts from which the Court can determine if Defendant was still in custody at the time he made the statements in August 2015.
An evidentiary hearing is not required on a motion to suppress unless the defendant submits sworn factual allegations from an individual with personal knowledge. See United States v. Gillette, 383 F.2d 843, 848 (2d Cir.1967); see also United States v. Ciriaco, 121 F. App'x 907, 909 (2d Cir. 2005) (Summary Order); United States v. Barrios, 2000 WL 419940, at *1 (2d Cir. Apr. 18, 2000) (Summary Order). The allegations must be "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question." United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) (internal citation and quotation makrs omitted). A defendant seeking a Miranda suppression hearing must make more than a "bald assertion" that the statement in question was involuntary. United States v. Mathurin, 148 F.3d 68, 69 (2d Cir.1998) (per curiam). If the defendant's request for a hearing is not accompanied by a sufficient "specification of the factual basis for [the] characterization, the district court is not required to have a hearing." Id. Additionally, where the allegations of factual dispute are "'general, conclusory or based on conjecture' no hearing is required." United States v. Wilson, 493 F. Supp.2d 364, 380 (E.D.N.Y. 2006).
Here, Defendant submitted an affirmation, under penalty of perjury, that lacks the detail and specificity required to establish a contested issue of fact regarding a Fifth or Sixth Amendment violation while he was cooperating with law enforcement. See United States v. Davis, 2009 WL 637164, at *11 (S.D.N.Y. Mar. 11, 2009). Defendant seeks to suppress all the statements he made to law enforcement officers after July 28, 2015, but offers no definite or detailed factual allegations regarding those statements. Indeed, Defendant's affirmation contains no factual assertions regarding any event after July 28, 2015. While Defendant's reply contains a conclusory statement that, "the introduction of the post federal arrest statements made after July 28, would violate" his Fifth and Sixth Amendment rights, a statement in an attorney's brief is insufficient to create a factual dispute to justify a hearing. See United States v. Mottley, 130 F. App'x 508, 510 (2d Cir. 2005) (Summary Order); United States v. Townsend, 2016 WL 3562055, at *3 (E.D.N.Y. June 23, 2016). Thus, there are no factual allegations from which the Court could conclude that Defendant's Fifth and Sixth Amendment rights were violated after July 28, 2015. See United States v. Jass, 331 F. App'x 850, 855 (2d Cir. 2009) (Summary Order) (noting that "district court acted well within its discretion in concluding that an evidentiary hearing" was not required because specific allegation "lacked specificity"); Townsend, 2016 WL 3562055, at *2; United States v. Wright, 2012 WL 1132421, at *4 (E.D.N.Y. Apr. 2, 2012); United States v. Needham, 2004 WL 1903061, at *7 (S.D.N.Y. Aug. 26, 2004) (denying Fifth and Sixth Amendment suppression motion where moving papers contained "no factual contentions" regarding the claims).
For the same reasons, Defendant's argument that the statements are inadmissible under Federal Rule of Evidence 410 is meritless. --------
CONCLUSION
For the reasons set forth above, Defendant's motion to suppress is denied without a hearing. SO ORDERED. Dated: Brooklyn, New York
November 15, 2016
/s/_________
DORA L. IRIZARRY
Chief Judge