Opinion
3:22-CR-455
2023-07-20
UNITED STATES of America, v. Charles HARRISON, Defendant.
JESSICA N. CARBONE, ESQ., THOMAS R. SUTCLIFFE, ESQ., Ass't United States Attorneys, HON. CARLA B. FREEDMAN, United States Attorney for the Northern District of New York, 100 South Clinton Street, Suite 900, Syracuse, NY 13261. GABRIELLE DIBELLA, ESQ., RANDI JUDA BIANCO, ESQ., Ass't Federal Public Defenders, HON. LISA PEEBLES, Federal Public Defender for the Northern District of New York, 4 Clinton Square, 3rd Floor, Syracuse, NY 13202.
JESSICA N. CARBONE, ESQ., THOMAS R. SUTCLIFFE, ESQ., Ass't United States Attorneys, HON. CARLA B. FREEDMAN, United States Attorney for the Northern District of New York, 100 South Clinton Street, Suite 900, Syracuse, NY 13261. GABRIELLE DIBELLA, ESQ., RANDI JUDA BIANCO, ESQ., Ass't Federal Public Defenders, HON. LISA PEEBLES, Federal Public Defender for the Northern District of New York, 4 Clinton Square, 3rd Floor, Syracuse, NY 13202. ORDER ON PRE-TRIAL MOTIONS DAVID N. HURD, United States District Judge
I. INTRODUCTION
After defendant Charles Harrison ("Harrison" or "defendant") had served most of his 120-month prison sentence for a 2012 federal drug conviction, the Bureau of Prisons ("BOP") transferred him to a Residential Re-Entry Center ("RRC") in Bloomfield, Connecticut to serve out the remainder of his federal time. Defendant stayed at the RRC for about six months, but on September 7, 2021, he walked out of the facility on a day pass and never came back. The District of Connecticut eventually issued a warrant for his arrest.
It took six months or so, but on March 29, 2022, a U.S. Marshals Service ("USMS") Task Force tracked Harrison down to a small apartment on Yager Street in Binghamton, New York. The Task Force officers were actually investigating a tip about a totally different fugitive, but after a brief chat with the woman who answered their knock on the apartment door, they realized defendant might very well be hiding there instead.
The USMS Task Force officers soon searched the apartment, found a 9mm handgun with a scrubbed serial number lying on the floor in a bedroom, and uncovered Harrison hiding under a mattress and a pile of clothes in another room. They arrested him on the warrant and sent him back to the District of Connecticut. He has since pleaded guilty to escaping from custody there.
Meanwhile, back here in the Northern District of New York, the USMS sought and obtained a "buccal swab warrant" (i.e., a warrant authorizing a cheek swab to collect a DNA sample). The USMS sent Harrison's DNA off to the FBI lab, hoping to match it up to the handgun they'd recovered from the apartment. When the lab test came back as a good match, the United States of America (the "Government") presented the matter to a grand jury.
On December 8, 2022, a federal grand jury sitting in the Northern District of New York returned a one-count indictment that charges Harrison with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Dkt. No. 1. Defendant was arrested and then returned to this District to stand trial, which was initially scheduled for April. Dkt. Nos. 10, 29. After some preliminary discovery disputes, Dkt. No. 9, the parties agreed to push the trial date to July 17, Dkt. No. 35.
On June 9, 2023, with the trial date still set for mid-July, Harrison filed four pretrial motions. First, defendant moved to dismiss the § 922(g)(1) charge alleged in the indictment as an unconstitutional restriction on his Second Amendment rights in light of recent Supreme Court case law. Dkt. No. 42. Second, defendant moved to compel some discovery related to the Task Force's investigation into the apartment as well as their later inquiry into the provenance of the handgun they recovered there. Dkt. No. 44.
Defendant also moved for leave to file under seal two clips of bodycam footage from the Task Force officers' search of the apartment. Dkt. No. 43. Those exhibits have been submitted to the Court in electronic format, reviewed in camera, and considered in connection with the pending motions. Accordingly, defendant's motion for leave to file those exhibits will be granted.
Third, Harrison moved to suppress the handgun recovered from the Binghamton apartment because it was obtained during a warrantless search that allegedly violated his Fourth Amendment rights. Dkt. No. 45. And fourth, he moved to suppress the DNA evidence because it was obtained with a search warrant affidavit that allegedly contained false statements and insufficient facts to support a finding of probable cause. Dkt. No. 46.
On June 30, 2023, the Government filed timely oppositions to Harrison's pre-trial motions. Dkt. Nos. 51, 52, 53, 54. Defendant initially sought leave to file reply briefs in further support of his arguments, Dkt. No. 56, but then decided to just file a reply in support of his motion to dismiss the indictment without waiting for the Court to act on his pending request, Dkt. No. 66.
Later, the Government filed a brief letter that offers a "clarification" about some of the facts stated in its opposition to defendant's motion to suppress the firearm. Dkt. No. 83. This letter has also been reviewed and considered in connection with this motion practice.
Thereafter, Harrison moved by letter motion for permission to file a reply in support of his motion to suppress the DNA evidence, Dkt. No. 67, and for leave to file a reply in support of his motion to suppress the firearm, Dkt. No. 75. Defendant also filed a letter in further support of his motion to suppress the DNA evidence. Dkt. No. 81. All of these filings have been reviewed and will be considered in connection with the pending motions.
On July 7, 2023, because the jury trial was still scheduled to begin the morning of July 17, the parties filed two motions in limine as part of their pre-trial papers. The Government, for its part, moved to exclude as hearsay any statements that Samantha Rolison, a woman who has identified herself as Harrison's girlfriend, made to investigators after defendant's indictment in this case. Dkt. No. 61. Defendant, for his part, moved to admit the bodycam footage recorded during the search of the apartment. Dkt. No. 79. These motions have also been briefed. Dkt. Nos. 80, 82.
On July 11, 2023, in light of the supersized motion practice stacked up and pending in this one-count criminal matter, the trial was adjourned from July 17 to Monday, August 14, 2023, at 9:30 a.m. in Utica, New York. The six motions have been taken on the submission of the papers, without oral argument, and with no further briefing permitted absent leave of the Court. II. BACKGROUND
The factual summary presented in this section is based on the overlapping narratives presented in the parties' briefing and other supporting materials, including the bodycam footage filed by Harrison. Factual disputes relevant to specific aspects of the pending motion practice have been noted.
This story begins right where it ends: in Binghamton, New York. On September 28, 2010, Federal Bureau of Investigation ("FBI") Special Agent John Paul Bokal, Jr. swore out a criminal complaint that charged Harrison and four others with conspiring to possess with the intent to distribute and to distribute cocaine and crack cocaine in excess of 280 grams. United States v. Ash et al., 3:10-CR-486-TJM at Dkt. No. 1. This criminal complaint accused defendant, who was then on probation for a previous felony drug conviction, of being part of a cocaine distribution ring operating out of the Binghamton, New York area. See id. Indictments soon followed. Id. at Dkt. Nos. 13, 25.
On June 30, 2011, Harrison pleaded guilty, pursuant to a plea agreement, to one count of a superseding indictment that charged him with a drug trafficking conspiracy that involved, inter alia, 50 or more grams of cocaine base (i.e., crack cocaine) and 500 or more grams of cocaine. Ash, 10-CR-486 at Dkt. No. 63 & accompanying text minute entry. Thereafter, U.S. District Judge Thomas J. McAvoy sentenced defendant principally to 120 months' imprisonment on December 5, 2012. Id. at Dkt. Nos. 92, 93. Defendant was remanded to the custody of the USMS and later handed over to the BOP.
Defendant's plea initially subjected him to a statutory mandatory minimum term of 20 years' imprisonment, but with the benefit of the 2010 Fair Sentencing Act, defendant's sentencing exposure was reduced to a 10-year mandatory minimum. See Ash, 10-CR-486 at Dkt. No. 89.
On March 20, 2021, with less than a year to go on this ten-year sentence, the BOP transferred Harrison to the Drapelick Residential Re-Entry Center, a halfway house in Bloomfield, Connecticut. Defendant stayed at this facility for almost six months. But on September 7, 2021, just a few days before his term of imprisonment would have been completed, defendant walked out of the place on a day pass and never returned. The District of Connecticut later charged defendant with escape from custody, a violation of 18 U.S.C. § 751, and issued a warrant for his arrest on November 8, 2021.
For the next six months or so, the USMS worked to develop some leads on Harrison's likely whereabouts. Deputy Christopher Schuessler, the U.S. Marshal in the District of Connecticut assigned to find defendant, learned that local police had encountered defendant and Samantha Rolison at a motel in Newington, Connecticut on September 7, 2021. Dkt. No. 51 at 3. The Newington police did not arrest either of them, but their police report noted that Ms. Rolison described defendant as her boyfriend. Id. So Ms. Rolison's whereabouts became a possible lead on defendant's location, too.
Specific pagination corresponds to CM/ECF. For simplicity's sake, the docket citations in this opinion are based on the parties' memoranda, which incorporate the supporting exhibits referenced by them and attached to their papers.
Later, in February of 2022, a detective with the Newington police sent to Deputy Schuessler some screenshots of a user's Facebook page. Although the Facebook user's profile name was listed as "Bruklyn Secora," the picture on the page appeared to be Ms. Rolison, who was visibly pregnant. Dkt. No. 51 at 3. Ms. Rolison had tagged another user named "Bossman Harrison." Id.
Deputy Schuessler examined this photograph and noticed that in the background of the photo there was a sticker advertising jobs at a company called "Loves," a chain of travel shops with relatively few locations in the northeastern United States. Dkt. No. 51 at 3. Because he knew that one of these travel shops was located in the Binghamton area, and because he knew that defendant had previously been arrested in Binghamton back in 2012, Deputy Schuessler put two and two together and decided that Ms. Rolison and defendant were likely hiding out together in Binghamton. Id. at 3-4.
On March 24, 2022, Deputy Schuessler reached out to his counterparts in the Northern District of New York to share this information about Harrison's likely whereabouts. Dkt. No. 51 at 4. In particular, Deputy Schuessler sent a lead sheet to Deputy U.S. Marshal Andrzej Kolut, a member of the region's fugitive Task Force, and asked him to look into the possibility that defendant might be hiding out somewhere in Binghamton. Id. The lead sheet noted that defendant was believed to be accompanied by Ms. Rolison. Id. Deputy Schuessler also shared the photographs of her that he had obtained. Id.
On March 28, 2022, Deputy Schuessler learned that the New York State Police had encountered Harrison and Ms. Rolison on February 12, 2022. Dkt. No. 51 at 4-5. According to a State Police report, a State Trooper had pulled over a vehicle with multiple occupants in Sanford, New York, a town about thirty miles east of Binghamton. Id. at 5. The police report stated the driver had identified herself as Ms. Rolison, one of the passengers had identified himself as defendant, and together they'd told the State Trooper they were headed home to Binghamton. Id. at 5. They had even given the officer an address: 21 Yager Street. Id. Because Ms. Rolison's car registration was expired and she had no proof of insurance, the State Police impounded the car. Id. But they did not arrest anyone at that time. Id. Deputy Schuessler immediately called up the fugitive Task Force in Binghamton and shared the information he'd just learned from the State Police report. Id.
But Harrison was not the only fugitive on the Task Force's to-do list. In late March of 2022, they had also received some information that suggested another, unrelated fugitive wanted on a different warrant—a man named Richard Estrella—might be living with a woman named Amber Spohn at an apartment at 17 Yager Street in Binghamton. Dkt. No. 51 at 5.
On March 29, 2022, Task Force officers decided to visit the apartment at 17 Yager Street to see if this Estrella guy might be hiding out there. Dkt. No. 51 at 5. Around 10:00 a.m., Task Force officer Dennis Pavelski knocked on the door and announced his presence. Id. A woman, who was later identified as Amber Spohn, answered the door. Id. When Task Force officer Pavelski asked who else was in the apartment, Ms. Spohn told him it was just she and her friend "Brooklyn." Id.
At that time, Task Force officer Pavelski recalled that they had received a lead sheet from Deputy Schuessler in Connecticut that mentioned another wanted fugitive—Harrison—was probably traveling with a woman calling herself "Brooklyn." Dkt. No. 51 at 6. So the Task Force officers asked Ms. Spohn to "have everyone step out here"; i.e., out of the apartment, and out of earshot of anyone else who might be hiding inside. Id.
Ms. Spohn stepped out of her apartment. Dkt. No. 51 at 6. So did a second woman. Id. One of the Task Force officers recognized this second woman as Ms. Rolison. Id. He had seen the Facebook photographs that they'd received from Deputy Schuessler. Id. The Task Force officers also knew from Deputy Schuessler that Ms. Rolison and Harrison were believed to be traveling together. Id. The officers realized that if Ms. Rolison was here, then defendant might well be present in the apartment, too. Id.
Task Force officer Pavelski entered the apartment as Ms. Spohn and Ms. Rolison exited. Dkt. No. 51 at 6. Ms. Rolison stopped to ask if she could get her shoes, and the officers let her do so. Id. When they asked her if anyone else was present in the apartment, Ms. Rolison said "not that I know of." Id. The officers asked her the same question again about a minute later, and this time Ms. Spohn answered: "not that I know of." Id. Ms. Spohn then said, without prompting, "you can go ahead and look though." Id.
The Task Force officers took Ms. Spohn up on her offer and began a sweep of the apartment. Dkt. No. 51 at 7. Within a couple of minutes Task Force officer Pavelski found a 9mm handgun with an altered serial number lying in plain view on the floor next to a bed in one of the rooms. Id. He seized the firearm, paused the sweep, and called for a canine unit. Id.
In reply, defendant suggests this must be a false assertion because it would have been illogical to leave the firearm in plain view. Dkt. No. 75 at 6-7. But defendant concedes that Task Force officer Carnevale's declaration offers the only evidence of the gun's location that is actually present in this current fact record. Id. at 6. It takes more than just an accusation to generate a factual dispute that would warrant an evidentiary hearing.
When the canine unit arrived in the apartment, the officers moved some debris that had been placed in front of a closed door "next to the door to the room with a firearm in it." Dkt. No. 83 at 2. They opened that door, entered another room that had some more debris stacked around, and then the canine unit alerted to an area in the room. Id. The officers looked underneath a mattress and a pile of clothes and found defendant hiding there. Id. After they arrested defendant, the bodycam footage appears to show him ask the officers to grab his shoes out of the room that contained the gun. Dkt. No. 43.
Defendant's motion to suppress repeatedly characterizes the canine's behavior as uniformly excited (e.g., "barking and whining the entire time") while it was present in the apartment, a fact which in his view renders any "alert" completely useless and/or fictional. Dkt. No. 45-1 at 5-7. But even crediting this assertion, it does not change the legal analysis discussed infra.
On April 12, 2022, about two weeks after Harrison's arrest, Deputy Kolut applied to U.S. Magistrate Judge Andrew T. Baxter for a search warrant that would authorize him to collect a sample of defendant's DNA. Dkt. No. 46-1 at 5; Dkt. No. 46-4. Deputy Kolut's affidavit in support of the warrant explained that investigators believed it would match DNA they would recover from the 9mm handgun. Id. After Judge Baxter issued the warrant, the investigators obtained a cheek swab from defendant. Dkt. No. 46-1 at 6. This sample and the handgun were both sent off to the FBI laboratory for comparison. The lab report came back as a match on July 20, 2022. Dkt. No. 46-1; Dkt. No. 46-5.
As relevant here, the FBI lab report concluded it was extremely likely that Harrison and two other "unknown, unrelated" people contributed to the DNA recovered from the handgun. Keep in mind there were also two women present at the apartment when defendant was arrested: Amber Spohn, the leaseholder, and Samantha Rolison, who has described herself as defendant's girlfriend. Both women denied any knowledge of the firearm at the time of the search and defendant's arrest.
Later, however, Ms. Rolison contacted the local police and claimed that the handgun was actually hers. The Government interviewed Ms. Rolison in March of 2023, obtained a sample of her DNA, and sent it to the FBI lab for comparison. This lab report showed that Ms. Rolison likely contributed some DNA to the firearm, too. Dkt. No. 78.
On October 20, 2022, Harrison pleaded guilty in Connecticut to escaping from federal custody there. Dkt. No. 51 at 7. While he awaited sentencing on that charge, the grand jury in this District indicted him for being a prohibited person (i.e., a felon) in possession of the handgun. Dkt. No. 1.
III. DISCUSSION
A. Defendant's Pre-Trial Motions
First, Harrison has moved to dismiss the § 922(g)(1) charge alleged in the indictment as an unconstitutional restriction on his Second Amendment right to keep and bear arms in light of recent Supreme Court case law. Dkt. No. 42. Second, defendant has moved to compel certain discovery related to the Task Force's investigation into the apartment as well as their later inquiry into the provenance of the handgun they recovered there. Dkt. No. 44.
Third, Harrison has moved to suppress the firearm recovered from the Binghamton apartment because it was obtained during a warrantless search that allegedly violated his Fourth Amendment rights. Dkt. No. 45. And fourth, defendant has moved to suppress the DNA evidence because it was obtained with an affidavit that allegedly contained false statements and insufficient facts to support a finding of probable cause. Dkt. No. 46.
1. Motion to Dismiss the Indictment
First, Harrison has moved to dismiss the § 922(g)(1) charge alleged in the indictment as constitutionally defective. Dkt. No. 42-1 at 2. Although he concedes that he has a prior felony conviction, defendant argues § 922(g)(1) is an unconstitutional restriction on his Second Amendment rights. Id. As defendant explains, recent Supreme Court case law makes it clear that the Second Amendment's reference to "the people" still includes people who have been convicted of felonies. Id. at 3. Defendant argues that this broadly inclusive language means the burden is on the Government to rebut the presumption that his conduct; i.e., his alleged possession of the handgun inside the apartment while being a person convicted of a felony, was still constitutionally protected. Id. at 8.
Harrison contends the Government cannot rebut this presumption. In order to do so, defendant argues the Government must show that "there was a historical tradition of regulating firearm possession by felons at the time the Second Amendment was ratified." Dkt. No. 42-1 at 8. However, because federal law did not criminalize firearm possession by felons until as recently as 1968, defendant maintains the Government cannot show that § 922(g)(1) fits within this historical tradition of firearm regulation. Id. at 7-8.
In opposition, the Government argues that clear, binding Second Circuit precedent forecloses Harrison's challenge to the validity of § 922(g)(1). Dkt. No. 53 at 4-7. But even assuming otherwise, the Government contends that "[a]s a matter of both text and history, the Second Amendment does not prevent legislatures from prohibiting firearm possession by those who have demonstrated disregard for the rule of law through the commission of felony offenses." Id. at 8. As the Government points out, multiple circuits have already considered and rejected the kind of constitutional challenge advanced by defendant. Id. at 8. So too have about 140 district courts. Id. at 9 & n.3.
The Government's brief offers a discussion of Founding-era materials regarding the historical permissibility of felon disarmament in further support of its position. Dkt. No. 53 at 15-25.
In reply, Harrison urges the Court to disregard the Circuit precedent identified by the Government because, at least in defendant's view, recent Supreme Court decisions have rendered it incompatible with a modern view of the Second Amendment. Dkt. No. 66 at 2-7. Defendant goes on to argue that the Government's analysis of Founding-era materials does not support the conclusion that a blanket disarmament of felons is consistent with the Second Amendment. Id. at 9-12.
The Second Amendment provides that: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. For the better part of this Nation's history, it was understood that this amendment did not meaningfully restrict lawmakers' ability to regulate the civilian use or possession of weapons. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).
In fact, since the passage of the Gun Control Act of 1968, a broad class of law-breakers—e.g., "anyone convicted of a crime punishable by imprisonment for a term exceeding one year"—have been "prohibited from owning firearms for life under 18 U.S.C. § 922(g)(1)." Medina v. Whitaker, 913 F.3d 152, 155 (D.C. Cir. 2019). Until recently, that kind of broad legislative prohibition would hardly have raised an eyebrow. See, e.g., Lewis v. United States, 445 U.S. 55, 65-66, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (rejecting constitutional challenge under predecessor federal statute that criminalized "receipt" of firearm by a felon).
But in 2008, the ground on which that settled view of the law was built began to shift underfoot. That year, the Supreme Court held that the Second Amendment actually guarantees "an individual right to keep and bear arms" that "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
While cautioning that it was "not unlimited," the Supreme Court held that the individual right secured by this amendment includes those weapons "in common use" that are "typically possessed by law-abiding citizens for lawful purposes." Heller, 554 U.S. at 624-26, 128 S.Ct. 2783. The Court explained that chief among those "lawful purposes" was "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783. Referring to a handgun as the "quintessential self-defense weapon," Heller invalidated a District of Columbia law that amounted to a "complete prohibition" on the possession of handguns in the home. Id. at 629, 128 S.Ct. 2783.
Then, in 2010, the Supreme Court incorporated this newly recognized individual Second Amendment right against the states, extending Heller to invalidate a pair of municipal statutes that, like the law challenged in Heller, banned handguns in the home. McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Notably, however, in Heller and again in McDonald, the Supreme Court insisted that its recognition of an individual constitutional right to keep and bear arms should not be understood by courts to "cast doubt on longstanding prohibitions on the possession of firearms by felons." Heller, 554 U.S. at 626, 128 S.Ct. 2783; McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (repeating these "assurances").
With these marching orders in hand, the lower courts set out to develop a revised framework for assessing the constitutionality of Second Amendment restrictions. While doing so, this Circuit and others relied on the Supreme Court's repeated assurances about the continuing validity of "longstanding regulatory measures" to reject a series of constitutional challenges brought by felons convicted of, inter alia, possessing firearms in violation of § 922(g)(1).
As relevant here, in a per curiam opinion captioned United States v. Bogle, 717 F.3d 281 (2d Cir. 2013), a unanimous panel of the Second Circuit relied on the "assurances" from Heller and McDonald to "join every other circuit to consider the issue in affirming that § 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons." Id. at 281-82.
Eventually, after years of litigation over Heller and McDonald, the lower courts settled on a "two-step analytical framework, determining first whether the regulated weapons fall within the protections of the Second Amendment and then . . . applying the appropriate level of constitutional scrutiny." N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 253 (2d Cir. 2015).
But in 2022, the Supreme Court granted review in a case called N. Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), which challenged the constitutional validity of New York's pistol licensing scheme. Among other things, the Supreme Court in Bruen rejected the two-step approach that had developed in the lower courts as "one step too many." Id. at 2127.
As the Supreme Court explained, "Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context." Bruen, 142 S. Ct. at 2127. Instead, "the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id.
Bruen has again upset this area of constitutional law. But even measured against this shifting body of precedent, Harrison's challenge to the validity of § 922(g)(1) must still be rejected. To be sure, defendant correctly points out that since Bruen was decided, the U.S. Court of Appeals for the Third Circuit, sitting en banc, has sustained an as-applied Second Amendment challenge to the validity of § 922(g). Range v. Att'y Gen., 69 F.4th 96, 106 (3d Cir. 2023).
Defendant has asserted an as-applied and a facial challenge. Dkt. No. 42-1 at 9. Because his narrower, as-applied challenge fails, it is unnecessary to reach the broader, facial iteration of this constitutional argument. See, e.g., Kane v. De Blasio, 19 F.4th 152, 174 (2d Cir. 2021) (reiterating Supreme Court's strong admonition that as-applied challenge should be adjudicated before deciding any broader constitutional question).
In Range, the plaintiff had previously pleaded guilty in Pennsylvania state court to making a false statement to obtain food stamps. 69 F.4th at 98. A few years later, the plaintiff made several attempts to purchase a firearm but was rejected by Pennsylvania's background check system. Id. After doing a little bit of research, the plaintiff discovered that although his conviction for food stamp fraud was classified as a misdemeanor under Pennsylvania state law, it still qualified as felony-equivalent conduct under § 922(g)(1) because it was punishable by up to five years' imprisonment. Id.
Dissatisfied that his Pennsylvania misdemeanor conviction had resulted in his complete disarmament, the plaintiff in Range brought an as-applied challenge to § 922(g)(1), arguing that the Supreme Court's decision in Bruen made clear that disarmament for welfare fraud would be inconsistent with the text and history of the Second Amendment. The district court initially rejected that argument. And a three-judge panel of the circuit affirmed that conclusion. But the active judges voted to rehear the plaintiff's case en banc and then remanded the matter to the district court with instructions to enter a judgment in favor of the plaintiff. See Range, 69 F.4th at 98, 106.
Of course, Range was an as-applied constitutional challenge that is readily distinguishable on its facts. Unlike the food stamp fraudster who pleaded guilty to an unusual state law misdemeanor, Harrison's prior misconduct involves an actual federal felony: his 2012 federal drug conviction in front of Judge McAvoy. Just as importantly, though, the list of post-Bruen precedent that is actually favorable to defendant's Second Amendment text-and-history argument basically begins and ends with the en banc opinion in Range.
For instance, on direct appeal from a § 922(g) conviction, a panel of the Eighth Circuit has applied Bruen and still found that "Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons." United States v. Jackson, 69 F.4th 495, 505 (8th Cir. 2023). A boatload of district court opinions have done much the same. Dkt. No. 53 at 9 n.3 (collecting cases).
In fact, as one district court in this Circuit observed in rejecting a Second Amendment challenge to this felon-disarmament statute soon after Range was decided, the Second Circuit's pre-Bruen holding (from United States v. Bogle, mentioned supra) still "remains binding precedent within this Circuit on the constitutionality of section 922(g)." United States v. Hampton, 2023 WL 3934546, at *12 (S.D.N.Y. June 9, 2023).
This is so, the trial court reasoned, because although the Supreme Court's opinion in Bruen abrogated the second step of the two-step framework, the Second Circuit's opinion in Bogle did not rely on that framework to affirm the constitutionality of § 922(g). Hampton, 2023 WL 3934546, at *12. Instead, the Second Circuit's opinion in Bogle "reasoned purely from language in Heller and McDonald expressly affirming 'longstanding prohibitions on the possession of firearms by felons.' " Id. (quoting Bogle, 717 F.3d at 281).
Thus, "[w]ith Heller and McDonald still in full force after Bruen, Bogle remains binding precedent within this Circuit on the constitutionality of section 922(g)." Hampton, 2023 WL 3934546, at *12; see also United States v. Garlick, 2023 WL 2575664, at *5 (S.D.N.Y. Mar. 30, 2023) ("Bruen does not alter the holding of Bogle: Section 922(g) is a constitutional regulation on the possession of firearms."). A review of these and other cases persuasively demonstrate that Bogle remains binding precedent in this Circuit on the constitutional question of felon disarmament under § 922(g)(1). Accordingly, Harrison's motion to dismiss the indictment as defective must be denied.
2. Motion to Compel Discovery
Second, Harrison has moved to compel certain discovery related to law enforcement's investigation into (1) the Binghamton apartment; and (2) the 9mm handgun recovered there. Dkt. No. 44-1.
First, Harrison has requested any documentation or other evidence that may have contributed in any way to law enforcement's initial belief that the unrelated fugitive named Richard Estrella would be found there. Defendant argues that he is entitled to the content of any communications on this topic between any confidential informants and law enforcement "because it could lead to evidence that Mr. Estrella was another resident or guest of the [apartment]," and "would provide additional clues as to whom the firearm belongs." Id. at 4-5. Indeed, defendant says, this information might well establish that Mr. Estrella owned the firearm. Id.
Second, Harrison argues that he is entitled to a transcript of certain grand jury testimony given by Samantha Rolison. Dkt. No. 44-1 at 6. As defendant explains, he has learned that Ms. Rolison testified "that the firearm belongs to her, what she paid for it, when she purchased it, the color and general appearance of the firearm, and the reasons she bought and carried it." Id.
Harrison argues that this grand jury testimony is exculpatory because it casts doubt on the Government's assertion that he possessed the gun. Dkt. No. 44-1 at 6. Defendant contends that a transcript of her testimony is more valuable than the notes of Ms. Rolison's interview that the Government has already disclosed to them. Id. Defendant also contends that, if Ms. Rolison were to testify at trial, the transcript might be grounds for impeachment. Id.
In opposition, the Government argues that it has already provided to Harrison's counsel the materials related to law enforcement's investigation into Richard Estrella. Dkt. No. 54 at 5. The Government contends that, to the extent defendant seeks any written communications about Mr. Estrella's whereabouts, those documents just do not exist. Id.
As to Ms. Rolison, the Government explains that it cannot violate grand jury secrecy by confirming or denying her involvement in any investigative proceedings. Dkt. No. 54 at 6. However, the Government maintains that it has complied with its obligations under both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Rule 16 of the Federal Rules of Criminal Procedure. Id. at 6-10.
Upon review, Harrison's motion to compel this discovery will be granted in part and denied in part. As to the issue of Mr. Estrella, the Government has represented to the Court that it has already disclosed all existing materials related to that component of the investigation. Accordingly, this branch of defendant's motion to compel will be denied without prejudice to renew in the event these representations prove inaccurate.
As to the issue of Ms. Rolison, the Government has represented to the Court that it (1) does not intend to call Ms. Rolison as a witness; (2) has already provided defendant's counsel with the substance of Ms. Rolison's statements; and (3) has disclosed any "other reports, information, and documentation" related to Ms. Rolison's claim about the gun. Id. at 7-9. In addition, as the Government points out, defendant's counsel appears to have direct and ongoing access to Ms. Rolison. Id. at 9. Indeed, defendant has disclosed Ms. Rolison as a trial witness on his witness list. Dkt. No. 76.
Even so, because the issue of possession of the 9mm handgun forms the factual dispute at the core of this criminal case, on or before August 4, 2023, the Government is directed to appropriately redact, and then disclose to defendant's counsel, any grand jury transcript in which Ms. Rolison has testified about her ownership, possession, or knowledge of the handgun.
3. Motion to Suppress the Handgun
Third, Harrison has moved to suppress the handgun recovered from the Binghamton apartment because it was obtained during a warrantless search that allegedly violated his Fourth Amendment rights. Dkt. No. 45-1 at 2. As defendant explains, the Task Force officers were only searching for Richard Estrella, a different fugitive they expected to find at the apartment. Id. at 6.
Harrison concedes that officers also had an arrest warrant for him, but argues that the officers did not have any belief that he was present at the apartment at the time of their search. Dkt. No. 45-1 at 6. In defendant's view, absent a search warrant for the premises itself, the officers did not have a proper constitutional basis on which to conduct a general search of the apartment. Id. at 6-9. And because he was an overnight guest of Ms. Rolison, defendant claims he had a reasonable expectation of privacy in the apartment. Id. at 9-11. Thus, he has standing to challenge the search. Id.
In opposition, the Government argues that Harrison did not have an expectation of privacy in the apartment because he was a federal fugitive at the time of the search. Dkt. No. 51 at 8-9. And even if defendant did enjoy the Fourth Amendment's protection, the Government contends that the officers had developed enough information to permit a search. Id. at 10-14.
In the alternative, the Government argues that Ms. Spohn, the apartment leaseholder, gave the officers consent to search. Dkt. No. 51 at 14-17. While the Government acknowledges that Task Force officer Pavelski had "entered" the apartment before Ms. Spohn stated that she consented to the search, the Government maintains that the relevant factors weigh strongly against invalidating Ms. Spohn's consent. Id. As a final matter, the Government argues that, even if a Fourth Amendment violation occurred, the fruits of the search should not be suppressed because the circumstances militate against the application of the exclusionary rule. Id. at 18-19.
In reply, Harrison insists that he enjoyed an expectation of privacy under the traditional, property-based approach to the Fourth Amendment despite his status as a federal fugitive. Dkt. No. 75 at 3-5. Defendant also argues that the arrest warrant for Mr. Estrella was not sufficient to authorize the search of the apartment that occurred. Id. at 5-6. Defendant suggests that the Task Force officers' assertion that the handgun was lying in plain view is not credible because it is illogical. Id. at 6. Finally, to the extent that the Government relies on Ms. Spohn's consent as the apartment leaseholder, defendant argues that her verbal consent was invalid because it was not given until after the search had already begun. Id. at 7-8.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Importantly, though, "Fourth Amendment rights are personal rights [that] may not be vicariously asserted." United States v. Ray, 541 F. Supp. 3d 355, 379 (S.D.N.Y. 2021) (quoting United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002)).
"When considering a claimed violation of Fourth Amendment rights, the burden is on the defendant to establish that his own rights under the Fourth Amendment were violated." United States v. Legree, 375 F. Supp. 3d 222, 228 (E.D.N.Y. 2019); see also United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) ("It has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure.").
Courts "often refer to this principle as the requirement that a defendant have 'standing' to bring a suppression motion." United States v. Lewis, 62 F.4th 733, 741 (2d Cir. 2023); see also Byrd v. United States, 584 U.S. 395, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (2018) ("The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search . . . ."). As U.S. Circuit Judge Alison Nathan, writing for a unanimous panel in United States v. Lewis, neatly summarized this area of search-and-seizure law:
A defendant can establish that their Fourth Amendment rights were violated by showing that they had a "reasonable expectation of privacy" in the area searched, Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), or that the Government has "physically intrud[ed] on constitutionally protected areas" to which they have a property entitlement, Florida v. Jardines, 569 U.S. 1, 11, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).Lewis, 62 F.4th at 741. These are fact-bound determinations that often call for a case-by-case analysis of reasonableness rather than the application of a bright-line rule. See id. at 743.
Upon review of the warrantless search that occurred in light of these legal standards, Harrison's motion to suppress the firearm must be denied. As an initial matter, defendant's "standing" argument; i.e., his basis for asserting a Fourth Amendment challenge to the search, appears to rely heavily on the fact that he was staying overnight at the apartment that morning.
Defendant also argues that Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), requires law enforcement to obtain a search warrant before searching a third-party's residence for the subject of an arrest warrant. Dkt. No. 45-1 at 7-9. But Steagald only applies to challenges raised by a third-party resident later charged with a crime. United States v. Snype, 441 F.3d 119, 133 (2d Cir. 2006). So Steagald might be helpful to Ms. Spohn, or perhaps Ms. Rolison. But not defendant.
It is true that the Supreme Court has recognized that "overnight guests" can invoke the Fourth Amendment's protections. Minnesota v. Olson, 495 U.S. 91, 97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). This "overnight guest" theory of Fourth Amendment standing generally requires a showing by the defendant that he actually enjoyed the owner or host's permission to be there, United States v. Ray, 541 F. Supp. 3d at 380 (collecting cases), as well as some indication that the defendant was viewed as a true "guest" rather than merely a person who was there with the owner's permission to conduct business for "a matter of hours," Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); United States v. Cody, 434 F. Supp. 2d 157, 165 (S.D.N.Y. 2006) (explaining this guest / invitee distinction).
But Harrison has not established that he is entitled to invoke the Fourth Amendment's protection under this body of law. Everyone seems to agree that it was Amber Spohn, not Samantha Rolison, who held the lease on the Binghamton apartment. Defendant's one-page affidavit in support of his suppression motion makes no mention of Ms. Spohn. Nor does it explain Ms. Rolison's relationship, if any, to Ms. Spohn or to the apartment. Instead, defendant merely avers that on this one occasion he "spent the night" there with his "girlfriend Samantha Rolison." Dkt. No. 45-8.
This is not sufficient to trigger the "overnight guest" rule articulated by the Supreme Court in cases like Olson and Carter. But even assuming that this affidavit was sufficient to establish that he otherwise stood in the shoes of a so-called "overnight guest," the circumstances of Harrison's presence in the apartment at the time of the search compel the conclusion that he cannot lawfully invoke the Fourth Amendment's protections for overnight guests.
Defendant's affidavit also fails to describe what space (or spaces) the host (or hosts) might have given him access to within the small apartment. For example, does defendant want to claim that he was staying in the room where the handgun was found? The Second Circuit has cautioned that even an "overnight guest" does not necessarily enjoy a subjective expectation of privacy in the entire premises. See, e.g., United States v. Osorio, 949 F.2d 38, 41 (2d Cir. 1991).
After all, Harrison was no ordinary guest. He was a fugitive. He had escaped from BOP custody in the District of Connecticut. And he was the subject of an arrest warrant issued as a result of that escape. The Second Circuit has described a prison escapee as "no more than a trespasser on society." United States v. Roy, 734 F.2d 108, 111 (2d Cir. 1984). That makes good sense, because "[a] federal escapee remains in legal custody of the Federal Bureau of Prisons even when outside the prison walls." United States v. Ward, 561 F.3d 414, 417 (5th Cir. 2009) (Higginbotham, J.).
This does not mean that a defendant's escape from custody necessarily "deprive[s] him of all expectations of privacy." Roy, 734 F.2d at 111. But what an escapee cannot do is "expand his legitimate expectations of privacy by escaping." Id. at 111-12. To conclude otherwise "would offer judicial encouragement to the act of escape and would reward an escapee for his illegal conduct." Id. at 112; see also Ward, 561 F.3d at 418 ("A prisoner cannot by escape rewrite his sentence such that his punishment no longer includes a loss of Fourth Amendment protected privacy.").
So what kind of privacy expectation would Harrison have enjoyed if he remained in BOP custody at the halfway house? Defendant consented to a severely curtailed set of privacy expectations as part of his transfer to the Residential Re-Entry Center in Connecticut. Dkt. No. 51 at 9. Among other things, the facility's handbook cautions that:
[The Drapelick Center] conducts random and unannounced searches of program areas and vehicles as well as pat searches in order to ensure the safety and security of the clients, visitors and staff. Searches will be conducted with respect to your dignity and personal property. You are not authorized to be present during bedroom, common area or vehicle searches.Dkt. No. 51 at 9.
Harrison's response to this body of unfavorable legal precedent on the severely diminished privacy rights of prison escapees (and on the specific search rules governing the RRC) is to argue that the halfway house's search rules "did not authorize the search that took place in this case" because "[t]he warrantless search here . . . was not of a program area or vehicle" but "of a private apartment in a different state." Dkt. No. 75 at 4.
But this response is too clever by half. First, it fails to distinguish United States v. Edelman, 726 F.3d 305 (2d Cir. 2013), a case in which a panel of the Second Circuit had no trouble rejecting a Fourth Amendment suppression argument brought by a defendant who had escaped from a halfway house and was later apprehended in an apartment located elsewhere. Id. at 310.
In Edelman, the defendant consented to a modification of the terms of his federal supervised release that placed him in a residential re-entry facility for five months. 726 F.3d at 307. The halfway house required the defendant to agree to a broad provision authorizing warrantless searches of his property and person at "any time." Id. The defendant stayed at the facility for a few months but eventually walked out. Id. A warrant issued for his arrest. Id.
Acting on a tip from an informant, the U.S. Marshals Service soon located and arrested the defendant in the lobby of an apartment building. Edelman, 726 F.3d at 307. The officers also seized a set of apartment keys from the defendant, figured out the apartment to which the keys belonged, learned that the defendant had subleased the apartment from another person, and then entered the apartment with that person's consent. Id. at 308. There, the officers found drug trafficking evidence in plain view. Id. They later returned with a warrant that yielded additional evidence of drug crimes. Id.
As relevant here, the defendant moved to suppress the evidence seized from the apartment as violation of his Fourth Amendment rights. Edelman, 726 F.3d at 310. The trial court rejected that argument and the Second Circuit affirmed. In doing so, the panel endorsed the lower court's conclusion that the defendant did not enjoy an "objectively reasonable expectation of privacy" in the apartment because, as a condition of his residence at the halfway house, the defendant had "agreed to subject himself to search of his person and property 'at any time.' " Id. In reaching this conclusion, the panel in Edelman reiterated the longstanding-rule that a defendant cannot "expand his legitimate expectations of privacy by escaping." Id. (citation omitted).
In other words, Edelman imported the severely curtailed set of privacy expectations from the halfway house where the defendant escaped to the apartment where the escapee-defendant was later found. The same approach leads to the same result in this case. Indeed, accepting Harrison's argument to the contrary would permit exactly the outcome that this Circuit and others have so far refused to sanction: it would allow a person in custody to expand the scope of his Fourth Amendment rights by escaping from that custody.
These conclusions are more than enough to justify the denial of Harrison's motion to suppress. But even beyond these realities, there is also the matter of Amber Spohn's consent to search her apartment. As noted supra, there is no dispute that Ms. Spohn was the leaseholder. There is no dispute that Ms. Spohn told the Task Force officers they could "look through" the apartment.
Ms. Spohn was clearly authorized to, and did, consent to a search of her apartment. "Although warrantless searches of private property are generally presumed to be unreasonable, the law recognizes certain exceptions, for example, when the search is conducted pursuant to the consent of an authorized person." United States v. Snype, 441 F.3d 119, 130 (2d Cir. 2006).
Where, as here, consent is the basis for a search, the Government "bears the burden of proving by a preponderance of the evidence that the consent was voluntary." Snype, 441 F.3d at 131. "[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
Harrison argues, and the Government acknowledges, that Task Force officer Pavelski entered at least a few feet into the apartment before receiving Ms. Spohn's verbal consent to search her place. "When a consent to search follows an illegal entry, this circuit requires the government to show more than the voluntariness of the consent; it must also demonstrate that 'the taint of the initial entry has been dissipated' in order to admit evidence seized following the illegal entry." Snype, 441 F.3d at 132 (quoting United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990)). "The Supreme Court has identified the following factors as relevant to that consideration: (1) the giving of Miranda warnings, (2) the temporal proximity of the illegal entry and the alleged consent, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct." Id. (cleaned up).
Assuming for present purposes that Task Force officer Pavelski's conduct amounted to an "illegal entry," an application of this multi-factor test still leads to the conclusion that any taint had dissipated. Neither Ms. Spohn nor Ms. Rolison were arrested. Although officer Pavelski was inside the confines of the apartment at the time Ms. Spohn gave consent, their interaction was relatively conversational. And there were no guns drawn or threats made.
Ms. Spohn also volunteered consent before being asked for permission to search. Some circuits have held that this fact alone weighs rather heavily in favor of a finding that any taint from an unlawful entry has dissipated, which renders the consent valid. United States v. Pedroza, 269 F.3d 821, 828 (7th Cir. 2001); United States v. Mendoza-Salgado, 964 F.2d 993, 1012 (10th Cir. 1992). Finally, although defendant characterizes the officers' conduct as "flagrant," officer Pavelski entered only a few feet into the apartment before receiving Ms. Spohn's consent. The officers were also there for a legitimate purpose: they had developed information to support a belief that there might be a federal fugitive (first Estrella but soon enough Harrison) present in the apartment. Accordingly, defendant's motion to suppress will be denied.
4. Motion to Suppress the DNA Evidence
Fourth, Harrison has moved to suppress the DNA evidence because the search warrant was obtained with a law enforcement affidavit that allegedly contained false statements and insufficient facts to support a finding of probable cause. Dkt. No. 46-1 at 2. In particular, defendant argues Deputy Kolut's affidavit falsely states that (1) Ms. Spohn consented to the search of the apartment; and (2) the canine unit alerted to the area where defendant was found hiding. Id. at 7-8. Defendant contends that, even crediting these false assertions, the only thing that in any way ties him to possession of the firearm is the fact that he was found hiding in the same apartment where it was recovered. Id. In defendant's view, this fact alone was not sufficient to establish probable cause to issue the warrant. Id.
In opposition, the Government points out that Ms. Spohn did in fact give the officers consent to search the apartment. Dkt. No. 52 at 4. Although the Government acknowledges that there is an issue as to the precise timing (and therefore legal validity) of that verbal consent, the Government argues that is a legal issue for the Court to decide (not a factual one to be disputed in a search warrant application). Id. Likewise, the Government points out that defendant's claim about the canine unit's behavior is based on speculation, since the bodycam footage he has submitted does not clearly show what the canine did or did not do. Id. According to the Government, defendant has failed to make the necessary threshold showing that Deputy Kolut's affidavit "intentionally or recklessly included false statements, or that such purported false statements were necessary to a finding of probable cause." Id. at 5.
As to the question of probable cause to obtain the cheek swab warrant, the Government argues that Harrison's formulation misstates the relevant legal standard. Dkt. No. 52 at 5. In the Government's view, there is no support for the contention that the affidavit needed to establish probable cause to believe that defendant's specific DNA would match the firearm. Id. Instead, the Government argues, Deputy Kolut's affidavit established probable cause because he averred that (a) the firearm was recovered in an apartment where defendant, then a federal fugitive subject to an arrest warrant, was found; and (b) the two other women present at the time and place where the firearm was recovered had already denied any knowledge of the weapon. Id. at 7-8.
In reply, Harrison argues that a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), is necessary because he has made the necessary showing that Deputy Kolut's affidavit contained false statements. Dkt. No. 67 at 3. And in support of this argument, defendant has filed a letter in which he claims that law enforcement records obtained from the canine unit further establish that Deputy Kolut's assertion about when and where the canine unit alerted in the apartment were false or misleading. Dkt. No. 81.
This legal analysis starts on some common ground. "[U]sing a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples" is a search under the Fourth Amendment. Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013). Notably, though, Deputy Kolut relied on a DNA search warrant issued by Judge Baxter. So the backdrop to this particular dispute is the Fourth Amendment's Warrants Clause, which commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.
"In determining whether probable cause to issue a search warrant exists, '[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " United States v. Serrano, 937 F. Supp. 2d 366, 372 (E.D.N.Y. 2013) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
In other words, "[t]he quantum of proof necessary to establish probable cause is only a probability, and not a prima facie showing, of criminal activity[.]" Serrano, 937 F. Supp. 2d at 372 (citation and internal quotation marks omitted). Accordingly, "[a]n affidavit in support of an application for a search warrant demonstrates a proper showing of probable cause when it sets forth facts sufficient to enable a reasonably prudent person to believe a search of the areas described within the warrant will uncover evidence of a crime." Id. (citing Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967)).
"Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Consequently, the Supreme Court has held that a magistrate's determination that probable cause exists to support the issuance of a warrant "should be paid great deference by reviewing courts." Gates, 462 U.S. at 236, 103 S.Ct. 2317. As relevant here, "a search carried out pursuant to a warrant is presumed valid." United States v. Mandell, 752 F.3d 544, 551 (2d Cir. 2014) (per curiam) (citation and internal quotation marks omitted).
These and other legal presumptions work to limit the circumstances under which a defendant can challenge the validity of a search warrant. See United States v. Rutherford, 71 F. Supp. 3d 386, 391 (S.D.N.Y. 2014) ("A grudging or negative attitude by reviewing courts toward warrants[ ] is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant[.]").
However, one way to challenge the validity of a search carried out with a warrant is to allege that the affidavit supporting the warrant application contains deliberately or recklessly false or misleading information or material omissions of fact. See, e.g., United States v. McKenzie, 13 F.4th 223, 236 (2d Cir. 2021). Pursuant to Franks v. Delaware, "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." 438 U.S. at 155-56, 98 S.Ct. 2674.
"Hearings under Franks are not freely granted." United States v. Mandell, 710 F. Supp. 2d 368, 372 (S.D.N.Y. 2010). To trigger a Franks hearing, the defendant must make "a substantial preliminary showing" of (1) falsity; i.e., "that a false statement . . . was included by the affiant in the warrant affidavit," (2) knowledge; i.e., that the affiant made the allegedly false statement "knowing and intentionally, or with reckless disregard for the truth," and (3) materiality; i.e., that "the allegedly false statement is necessary to the finding of probable cause." United States v. Sandalo, 70 F.4th 77, 85 (2d Cir. 2023) (quoting Franks, 438 U.S. at 155-56, 98 S.Ct. 2674).
Measured against this standard, Harrison is not entitled to suppression of the DNA or even a Franks hearing. As an initial matter, the Government is correct that Deputy Kolut's assertion about the fact of Ms. Spohn's verbal consent was not "false" or misleading. Defendant concedes in his own papers that Ms. Spohn so consented. Dkt. No. 46-1 at 8-9. And as discussed in detail supra, Ms. Spohn's consent was validly obtained. The Government also appears to be correct about defendant's challenge to the canine unit's behavior. Defendant concedes in his papers that the bodycam footage does not clearly show whether and when the canine alerted.
In short, Harrison has not made the "substantial preliminary showing" necessary to warrant a Franks hearing. But even if these statements were considered material and then excised from Deputy Kolut's affidavit, probable cause would still exist to support the warrant issued by Judge Baxter. To understand why, compare the facts of this case to the fact pattern presented by United States v. Evans, 427 F. Supp. 3d 87 (D.D.C. 2019), one of the primary cases on which Harrison relies in his papers.
In Evans, a grand jury indicted the two defendants along with several of their family members as co-conspirators in an extortion racket. After law enforcement recovered several weapons while executing search warrants at their co-defendants' residences, the government moved to compel the two defendants to provide a cheek swab to determine if either defendants' DNA could be matched to the weapons law enforcement had recovered from the other locations. The trial court denied the government's request, reasoning that the government had failed to offer sufficient individualized suspicion connecting the two defendants to the weapons, especially since the charged crimes and conduct did not involve the use of firearms.
This case is nothing like Evans. There is no question that the search of the apartment turned up a handgun with an altered or unreadable serial number. There is no question that Harrison, a wanted fugitive, was found in a nearby room. And there is no question that the two other people present at the time denied knowledge of the firearm. These facts, taken together, were sufficient to support the issuance of the search warrant to further investigate whether one discovery could be connected to the other.
As noted elsewhere, defendant contends it is "illogical" for the firearm to be left out in plain view. But he has not validly placed this fact in dispute.
Harrison goes on to argue that the Government was obligated to test the firearm for DNA, or at least show that some DNA was recoverable from the firearm, before seeking the cheek swab warrant. Dkt. No. 46-1 at 10-12. As defendant explains, at the time Deputy Kolut applied to Judge Baxter for the search warrant he "did not have any reason to believe that sufficient DNA for comparison analysis could or would be extracted from the firearm because law enforcement had not yet received any laboratory test results or even sent the firearm to a laboratory for testing." Id. at 11.
Harrison is correct to note that several magistrate judges in other judicial districts have expressed some interest in this timing question. For example, in United States v. Robinson, 2011 WL 7563020 (D. Minn. Dec. 2, 2011), the magistrate judge concluded that a state court had issued a DNA warrant in the absence of probable cause because law enforcement had not first shown there was DNA that could be recovered from the item they had seized.
Notably, though, the magistrate judge still recommended the defendant's motion to suppress be denied and concluded that law enforcement could just re-apply for an order to test the defendant's DNA after showing that testable DNA existed on the item they had seized. Robinson, 2011 WL 7563020, at *4. This recommendation was later adopted by the presiding district judge. 2012 WL 948670 (D. Minn. Mar. 20, 2012).
Another magistrate judge has taken a similar approach, denying a search warrant request as premature and advising the Government to re-apply for a warrant after DNA testing the firearm or to redraft the warrant application to make it conditional on obtaining testable DNA from the firearm. United States v. Castillo, 2016 WL 6158133, at *3 (S.D. Fla. Oct. 24, 2016).
But these cases hardly justify suppression or a Franks hearing. In each of these cases, the magistrate judge permitted the Government to move forward with their investigation into the defendant's DNA sample. It is also worth noting that these cases involved initial applications submitted to magistrate judges for (a) permission to obtain a DNA cheek swab or (b) a court order authorizing a comparison test to an existing DNA sample.
Those two events already occurred in this case because Judge Baxter issued a search warrant that authorized them. Even crediting Harrison's characterization of the magistrate judge's opinions in Robinson and Castillo, defendant has not pointed to any authority in this Circuit that somehow requires law enforcement to "first extract DNA from an item before obtaining a defendant's sample to compare." Dkt. No. 52 at 7. The fact that other magistrates in other judicial districts might have wanted to see a bit more from the search warrant affiant before signing off on a warrant does not vitiate the probable cause determination made in this case. In short, this argument does not justify a Franks hearing. Nor does it justify suppression. Accordingly, defendant's motion to suppress the DNA evidence will be denied.
These warrants are typically issued ex parte. In Castillo, the judicial officer directed the Government to solicit defense counsel's input. And in Robinson, there was an intervening state court warrant that authorized law enforcement to take the DNA sample but did not authorize them to conduct a comparison test.
B. The Parties' Motions in Limine
As noted supra, the parties have filed motions in limine as part of their pre-trial papers. The Government has moved to exclude as hearsay certain statements that Samantha Rolison made to law enforcement following defendant's indictment in this case. Defendant, for his part, has moved to admit the bodycam footage recorded during the search of the apartment.
A party may seek a ruling on the admissibility of certain anticipated evidence by filing a motion in limine. Walker v. Schult, 365 F. Supp. 3d 266, 275 (N.D.N.Y. 2019) (explaining the "term is used in the broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered").
A party may also move in limine for a ruling on the permissibility at trial of an anticipated line of argument. 3 Moore's Federal Practice § 16.77(4)(d)(ii).
"Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." Walker, 365 F. Supp. 3d at 275 (citation omitted). "The movant has the burden of establishing that the evidence is not admissible for any purpose." Id. "The trial judge may reserve judgment on a motion in limine until trial to ensure the motion is considered in the proper factual context." Id. Finally, "[t]he court's ruling regarding a motion in limine is subject to change when the case unfolds." Id.
5. The Government's Motion
The Government has moved to exclude certain statements that Samantha Rolison made about the handgun recovered from the apartment. Dkt. No. 61 at 2. As the Government explains, Ms. Rolison initially denied knowledge of the firearm. Id. Later, however, Ms. Rolison telephoned Task Force officer Pavelski and claimed the handgun belonged to her. Id. She made similar statements to a Deputy U.S. Marshal and one of the Government's attorneys during an in-person meeting in March of 2023. Id. According to the Government, these statements are hearsay not subject to any exception. Id.
In opposition, Harrison argues that he intends to introduce Ms. Rolison's statements about the firearm for non-hearsay purposes, including to (1) prove the scope of law enforcement's investigation; (2) establish what information law enforcement officials possessed about the firearm; (3) demonstrate the timing of when the officials learned that information; and (5) show what steps, if any, investigative steps officials have taken since recovering the firearm in March of 2022. Dkt. No. 82 at 3.
Harrison goes on to suggest in his opposition that, if Ms. Rolison were to somehow "become[ ] unavailable to testify," any statements that she made to a grand jury would still be admissible under the Federal Rules of Evidence, either as an unavailable witness (under Rule 804(b)(1)) or as statements against her penal interest (under Rule 804(b)(3)). Dkt. No. 82 at 3-4.
Upon review, the Government's motion will be denied without prejudice to renew at trial. Ms. Rolison appears on Harrison's witness list. If called, she would be competent to testify as to her personal knowledge of the handgun. However, as defendant notes, Ms. Rolison has a criminal history that would likely subject her to criminal liability if she were to have possessed the handgun. Although defendant insists that her statements to a grand jury would be admissible anyway, the Court declines to consider whether those statements would qualify under Rule 804 at this time.
6. Defendant's Motion
Harrison has moved to admit the bodycam footage recorded by two of the Task Force officers during their search of the Binghamton apartment. Dkt. No. 79 at 2. In defendant's view, the footage is not hearsay because it would be used to "show the context of the investigation and how it unfolded." Id. at 3. Even assuming otherwise, defendant argues that any audio statements recorded on the footage would qualify as present sense impressions or excited utterances. Id. at 3-4. In the alternative, defendant points out that the Government already intends to introduce portions of the bodycam footage and therefore the rule of completeness requires that the rest of the footage be shown to the jury. Id. at 4-5.
In opposition, the Government acknowledges that it intends to introduce portions of the footage: in particular, about four minutes of video and four still shots taken from the footage. Dkt. No. 80 at 2. The Government also acknowledges that additional portions of the bodycam footage may well be permissible to use at trial. Id. However, the Government argues that defendant's motion should be denied for now because it seeks "a blanket order permitting him to introduce over two hours of footage without offering any particularized theory of relevance or admissibility." Id.
Upon review, Harrison's motion will be denied without prejudice for the reasons identified by the Government; i.e., absent more information about defendant's planned evidentiary showing, a blanket order permitting the introduction of a two-hour video that includes conversation about extraneous topics and video of irrelevant subjects would be inappropriate. Accordingly, defendant's motion will be denied without prejudice.
IV. CONCLUSION
Harrison chose to become a fugitive just days before he was scheduled to be released. He was eventually found hiding in an apartment. There was a handgun with an altered serial number found in a nearby room. Everyone who was present at the time denied knowledge of the gun. Later, defendant's girlfriend called up the local police and tried to claim the firearm was hers.
Maybe it was. But ownership and possession are distinct legal concepts, and § 922(g)(1) criminalizes the latter. This case seems to present a factual dispute about possession, which can be actual or constructive as well as sole or joint. Those are good issues for a fact-finder at a trial. So it is not clear why this case became a vehicle for so much motion practice.
Therefore, it is
ORDERED that
1. Defendant's motion to dismiss the indictment (Dkt. No. 42) is DENIED;
2. Defendant's request to file bodycam footage under seal (Dkt. No. 43) is GRANTED;
3. Defendant's motion to compel discovery (Dkt. No. 44) is GRANTED in part and DENIED in part as set forth on page 23 of this opinion;
4. Defendant's motion to suppress the handgun (Dkt. No. 45) is DENIED;
5. Defendant's motion to suppress the DNA evidence (Dkt. No. 46) is DENIED;
6. Defendant's request to file reply briefs (Dkt. No. 56) is GRANTED in part and DENIED in part as set forth in paragraphs 7 through 10;
7. Defendant's reply brief on his motion to dismiss the indictment (Dkt. No. 66) is ACCEPTED for filing;
8. Defendant's letter motion seeking to file a reply brief in support of his motion to suppress the DNA evidence (Dkt. No. 67) is GRANTED and the attached reply memorandum is ACCEPTED for filing;
9. Defendant's letter motion seeking to file a reply brief in support of his motion to suppress the handgun (Dkt. No. 75) is GRANTED and the attached reply memorandum is ACCEPTED for filing;
10. Defendant's letter request seeking to file a letter in further support of his motion to suppress the DNA evidence (Dkt. No. 81) is GRANTED and the letter is ACCEPTED for filing;
11. The Government's motion in limine seeking to exclude as hearsay evidence of statements that Samantha Rolison made to law enforcement following defendant's indictment (Dkt. No. 61) is DENIED without prejudice to renew during trial; and
12. Defendant's motion in limine seeking to admit the bodycam footage (Dkt. No. 79) is DENIED without prejudice to renew during trial.
IT IS SO ORDERED.