Opinion
5:19-CR-301
2021-12-22
The UNITED STATES of America, v. Kyle M. LEEPER, Defendant.
HON. CARLA B. FREEDMAN, OF COUNSEL: RICHARD SOUTHWICK, ESQ., STEVEN D. CLYMER, ESQ., THOMAS R. SUTCLIFFE, ESQ., TAMARA THOMSON, ESQ., Assistant United States Attorneys, Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, Room 900, Syracuse, New York 13261. OF COUNSEL: ANNALEIGH E. PORTER, ESQ., ANNALEIGH E. PORTER, ATTORNEY AT LAW, Attorneys for Defendant, Merchants Commons, 220 South Warren Street, 10th Floor, Syracuse, New York 13202. OF COUNSEL: GEORGE F. HILDEBRANDT, ESQ., GEORGE F. HILDEBRANDT, ATTORNEY AT LAW, Attorneys for Defendant, Merchants Commons, 220 South Warren Street, 10th Floor, Syracuse, New York 13202. OF COUNSEL: JOEL S. COHEN, ESQ., JOEL S. COHEN, P.C., Attorneys for Defendant, 35 Worth Street 3rd Floor, New York, New York 10013.
HON. CARLA B. FREEDMAN, OF COUNSEL: RICHARD SOUTHWICK, ESQ., STEVEN D. CLYMER, ESQ., THOMAS R. SUTCLIFFE, ESQ., TAMARA THOMSON, ESQ., Assistant United States Attorneys, Acting United States Attorney for the Northern District of New York, 100 South Clinton Street, Room 900, Syracuse, New York 13261.
OF COUNSEL: ANNALEIGH E. PORTER, ESQ., ANNALEIGH E. PORTER, ATTORNEY AT LAW, Attorneys for Defendant, Merchants Commons, 220 South Warren Street, 10th Floor, Syracuse, New York 13202.
OF COUNSEL: GEORGE F. HILDEBRANDT, ESQ., GEORGE F. HILDEBRANDT, ATTORNEY AT LAW, Attorneys for Defendant, Merchants Commons, 220 South Warren Street, 10th Floor, Syracuse, New York 13202.
OF COUNSEL: JOEL S. COHEN, ESQ., JOEL S. COHEN, P.C., Attorneys for Defendant, 35 Worth Street 3rd Floor, New York, New York 10013.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, United States District Judge I. INTRODUCTION
On February 19, 2019, defendant Kyle M. Leeper ("Leeper" or "defendant") was pulled over by Cortland County Sheriff's Department (the "Department") Officer Peter Wright ("Wright") in Cortland, New York, for several traffic infractions. That stop led to a search of defendant's vehicle, which in turn led to evidence implicating defendant in a drug conspiracy and an interstate homicide. On August 15, 2019, defendant was charged by the United States of America (the "Government") with a four-count indictment.
That indictment has since been superseded twice, but as it stands defendant is charged with five counts: (1) intentional killing by a person engaged in a controlled substance offense under 21 U.S.C. § 848(e)(1)(A) ; (2) conspiracy to distribute and possess with intent to distribute controlled substances under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 ; (3) possession with intent to distribute a controlled substance under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) ; (4) discharge and murder by use of a firearm during and in relation to a drug-trafficking crime under 21 U.S.C. §§ 924(c)(1)(A)(iii) and 924(j)(1); and (5) possession of a firearm and ammunition by a felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On October 29, 2021, Leeper moved to suppress the evidence found in his vehicle as well as evidence derived from a subsequent DNA sample the Government took from him under the authority of a search warrant. That same day, the Government moved to take depositions of two witnesses. On December 6, 2021, the Government moved to withdraw its motion, and defendant consented. The Government's motion is therefore dismissed without prejudice to renew. But defendant's motion, having been fully briefed, will now be decided on the parties’ submissions and without oral argument.
Defendant only requested an evidentiary hearing on his motion with his reply brief. Dkt. 163. For reasons that will be discussed below, neither of the two facts he points to in justifying his hearing request would change the calculus.
II. BACKGROUND
On the morning of February 19, 2019, Wright was driving a patrol car in Cortland, New York. Dkt. 151-3, pp. 5-6. His sergeant, Michael Winchell ("Winchell"), rode along with him in the passenger seat. Id. at 5; Dkt. 151-4, p. 6. The two officers were heading east when Winchell noticed a blue Chevrolet Colorado truck headed in the opposite direction. Dkt. 151-3, p. 6. As it would turn out, Leeper was its driver. Id. at 10.
Pagination corresponds with CM/ECF.
Winchell pointed the truck out to Wright because it lacked a front license plate. Dkt. 151-3, p. 7. Under New York law, a vehicle registered with that state's Department of Motor Vehicles is required to have a license plate on both the front and the back, and failing to do so amounts to a traffic infraction. N.Y. VEH. & TRAF. LAW § 402(1)(a). But that New York requires a vehicle to carry two plates does not mean that every state does, so Winchell directed Wright to check the state on the rear license plate to determine whether the truck was being driven unlawfully. Dkt. 151-3, p. 7.
To get a better look, Wright turned the car around and began to follow Leeper's truck. Dkt. 151-3, p. 7. Once they were behind defendant, the police noticed that his rear license plate was for Pennsylvania, not New York. Id. Even so, they plugged the license plate number into their database to check on the truck's registration. Id. at 7-8.
After a few moments, the database reported that Leeper's truck's registration had expired. Dkt. 151-3, p. 8. At around the same time, the police noticed that there was an unauthorized sticker of a hawk in the truck's back window, which is also a violation of New York's traffic law. Id. ; see N.Y. VEH. & TRAF. LAW § 375(1)(b).
Wright and Winchell continued to follow Leeper's truck as it headed into the parking lot of a Big Lots store. Dkt. 151-3, pp. 8-9. Apparently, the police had seen enough and decided to stop the truck, so Wright pulled around behind it and turned on his lights. Id. at 9-10. Once defendant pulled over, Wright got out and approached the driver's side window while Winchell approached the passenger side. Id. at 10.
Leeper rolled the window down to greet Wright, but not all the way. Dkt. 151-3, p. 10. By way of explanation, defendant told Wright that the truck's cabin was also occupied by two sizeable Cane Corso dogs. See id. at 10-11. Apparently, defendant claimed that the dogs had an aggressive streak, and he did not want to risk them jumping out and attacking Wright. Id.
While Wright was having this exchange with Leeper, he also noticed that the "majority" of the truck's windshield was cracked. Dkt. 151-3, pp. 11-12. Wright then explained to defendant that he had stopped him because the registration on his truck was expired. Id. at 12. According to Wright, defendant acknowledged the point. Id. He also explained that he had only recently moved to New York and did not yet have a permanent address to use to register the vehicle. Id.
Wright then asked Leeper if he had a driver's license. Dkt. 151-3, p. 12. Defendant affirmed that he was licensed to drive in Pennsylvania, but that this license had expired as well. Id.
From there, Wright turned his attention to Leeper's passenger, a woman named Arlene Rodriguez ("Rodriguez"). Dkt. 151-3, p. 13. Rodriguez handed Wright her own California driver's license, which, as it turned out, was also invalid due to her having it suspended. Id. at 13-14.
Throughout all of this, Wright claims that Leeper's demeanor struck him as "extremely agitated." Dkt. 151-3, p. 15. At one point, after Wright told defendant multiple times to keep his hands on the steering wheel, defendant apparently shouted at him to "relax." Id. Wright also claims that defendant kept glancing down at the driver's-side door panel throughout their conversation, and would occasionally reach toward the panel with his left hand as well. Id.
Apparently, Leeper's behavior was putting Wright somewhat on edge. Dkt. 151-3, pp. 15-16. As a result, when he took Rodriguez's driver's license back to his car to run it through the database, he repositioned the car from a forty-five-degree angle to squarely behind defendant's truck with a little more room between the two vehicles. Id. According to Wright, the idea was to make it easier for him to maneuver the car in case trouble arose. Id. at 16.
As Wright tells it, though, Leeper did not take his repositioning the patrol car well. Instead, Wright claims that defendant stuck his head out the window, "threw his hands up[,] and started yelling[.]" Dkt. 151-3, p. 16. At that point, Wright asserts that he felt he needed to detain defendant. Id. He ordered defendant out of the car, patted him down for weapons, and checked his pockets. Id. Wright then handcuffed Leeper and put him in the rear driver's-side seat of the patrol car. Dkt. 151-3, p. 17. Next, Wright had Rodriguez call a taxi while he arranged for an SPCA car to come take care of the dogs until the situation could be resolved. Id. at 17-18. Once the two cars came, Wright asked Rodriguez to get out of defendant's truck, patted her down, and she apparently voluntarily emptied her pockets. Id. at 18.
In the meantime, Wright had called a tow truck to take Leeper's vehicle. Dkt. 151-3, p. 19. According to Wright, it was standard procedure to hold unlicensed vehicles or vehicles without a validly licensed driver until the they could be legally claimed. Dkt. 156-2 ("Wright Dec."), ¶ 3.
At this point—because it becomes a particularly contentious topic in Leeper's suppression motion—it is worth taking some time to explain how the Department's policy deals with vehicles whose driver will be in no position to get it off the road himself.
Essentially, the arresting officer must decide whether to remove a vehicle, hold it, or impound it. Dkt. 151-6, ¶ I(A). To that end, a vehicle must be removed if: (1) it is on a public highway; (2) its driver has been taken into custody; and (3) there is no reason to impound or hold it. Id. ¶ I(A)(3). If the owner does not designate an agent to drive it, the vehicle may be towed to effect the removal. Id. ¶ I(A).
Alternatively, if any of several conditions are met, the policy directs that a vehicle may be impounded. Dkt. 151-6, ¶ I(B). As relevant here, the policy permits impoundment if a defendant violated any of four provisions of New York Vehicle and Traffic Law. Id. ¶ I(B)(5). Impoundment is also permissible if the vehicle "needs to be held for safekeeping." Id. ¶ I(B)(6).
Curiously, the policy frames the terms "hold" and "impound" in the disjunctive, which implies that there is a difference between the two. Dkt. 151-6, ¶¶ I(A)(3), I(E)(1). Though the policy itself does not seem to explicitly define a "hold" or the circumstances when holding the vehicle would be proper, it defines an impound as removing a vehicle and holding it "pending further action" or placing "a condition on its release." Id. ¶ I(B).
It is possible that a vehicle that "needs to be held for safekeeping" without a "condition on its release" provides the elusive definition of "held" under the policy. Dkt. 151-6, ¶ I(B)(6). Safe to say, the policy is not a model of clarity, but this interpretation seems to comport with Wright's distinction between an impounded and a held vehicle—namely that an impounded vehicle is subject to strict controls and is not accessible to the public. See Wright Dec. ¶¶ 3, 5 (comparing and contrasting held and impounded vehicles).
According to Wright, though, a hold places no such condition. Wright Dec., ¶ 3. Instead, a hold involves taking a vehicle to a public tow lot. Id. Once there, a vehicle may be retrieved as long as someone fills out a Vehicle Release Form showing that the retriever has a valid license, registration, and insurance for the vehicle and pays for the costs incurred towing it. Id. ¶ 3. By comparison, an "impounded" vehicle is taken to the Department's restricted impound lot until the impoundment is cleared. Id. ¶ 5. Thus, by Wright's definition, a hold is distinct from both a removal and an impoundment. Id. ¶¶ 3, 5.
Regardless of whether a vehicle is removed, held, or impounded, the policy calls for a full inventory search of the vehicle before it can be towed. Dkt. 151-6, ¶ I(E). Under the policy, the inventory's purpose is to "locate and identify" valuable items, whether that value be monetary or personal. Id. at ¶ I(E)(3). An inventory search covers the entire vehicle, including any closed containers or compartments. Id. ¶ I(E)(4). Having decided to tow Leeper's truck, Wright proceeded to the next step and began an inventory search. Dkt. 151-3, pp. 19-20. He started with the passenger side of the truck, including Rodriguez's purse, which she had apparently left behind when she got into the taxi. Id. at 20. Rather than pick through the items one by one, he simply upended the purse—according to him to ensure that he did not jab himself on any needles or other hazardous objects that might be hiding inside. Id. In Rodriguez's purse he found "a glass smoking pipe with some type of white residue in it[.]" Id.
Also in the passenger's side of Leeper's truck was a blue duffel bag sitting on the floorboard. Dkt. 151-3, p. 20. Wright turned to that bag next. Id. As soon as he opened it, he noticed some type of "vacuum-sealed material." Id. When Wright began to pull that material out, several "smaller packages" fell out of it. Id. at 20-21. Those packages were folded in half and bound shut with rubber bands. Id. at 21. Inside each was a "white kind of clear chunky substance." Id.
Based on his training and experience, Wright believed the substance to be drugs. Dkt. 151-3, p. 21. At that point, Wright detained Rodriguez as well and called for another patrol car to help manage her and Leeper. Id. at 21-22.
Sergeant Garry Williams ("Williams") and his partner Sergeant Chad Burhans ("Burhans") responded to Wright's request for backup. Dkt. 151-4, pp. 4-5. When he arrived, Williams asked Wright if he had started an inventory form as he was beginning the inventory search of Leeper's car. Id. at 6. Wright had not, so Williams asked Wright to get him one so he could complete it as he finished the search. Id. at 7.
Williams’ search eventually took him to the truck's center console. Dkt. 151-4, pp. 7-8. The console was divided into two compartments: one at the top and one closer to the bottom. Id. at 8. In the top compartment, Williams found some papers, "one of which had a Hispanic male's name on it and ... a dollar amount of $3,000." Id. at 7. In the bottom compartment was a box of .380 caliber rounds. Id. at 8. Williams found two more boxes of the same ammunition—and a magazine filled with nine-millimeter rounds besides—in the driver's side door. Id.
Meanwhile, Burhans tackled the passenger's side of the vehicle. Dkt. 151-4, p. 7. His priority, at least to start, was the duffel bag with the clear, chunky substance. Id. at 8. The bag contained three pieces of eventual evidence. First, the substance that Wright discovered, which a field test soon proved to be methamphetamine. Id. at 30-32. Second, in the same duffel bag Burhans also found a baggy containing marijuana. Id. at 8. Third, in the bottom of the bag was a loaded Cobra handgun, which fires .380 caliber rounds. Id.
The rest of the inventory search was more or less unremarkable, except that the investigators also found a pink "electric stun gun" under the passenger's seat and some receipts for money transfers. Dkt. 151-4, p. 9. After completing the inventory search and seizing the items they believed to be evidence, the police took Leeper and Rodriguez back to their station. See id. at 15.
Once there, Williams took statements from both Rodriguez and Leeper. Dkt. 151-4, p. 15. For her part, Rodriguez denied any connection to the duffel bag or to the pistol. Dkt. 169, p. 36. Instead, she claimed that both were defendant's, as was the stun gun. Id.
Perhaps predictably, Leeper's version of events was decidedly different. See Dkt. 163-2, p. 2. According to him, he had met Rodriguez in California a "couple weeks" earlier. Id. While the two of them were there, he claimed that arrangements were made for them to travel to the East Coast. Id. He claimed that he had been sent with Rodriguez to help her sell methamphetamine to prove that he was not a police officer. Id. He acknowledged that the methamphetamine and the marijuana were his, but he claimed that Rodriguez had an equal share in their ownership. Id. The handgun, though, he claimed to belong solely to Rodriguez. Id. In fact, by his account she had threatened him with the pistol "a dozen times." Id.
As quickly became apparent, though, the Department was not the only law enforcement agency with an interest in Leeper. On March 7, 2019, Thomas G. Lewis ("Lewis"), a detective out of California, reached out to the Department to discuss a murder investigation in that state. Dkt. 169, pp. 5-6. Apparently, an FBI agent had spoken to Rodriguez's attorney while Rodriguez was in custody in Cortland County. Id. at 6, 8.
Rodriguez had told her attorney to tell the authorities that she and Leeper had been with the deceased, later identified as Robert Chavez ("Chavez"), in Barstow, California. Dkt. 169, p. 8. At one point, defendant and Chavez exited the vehicle and went into the desert. Id. Rodriguez claimed to have heard gunshots while they were gone. Id. at 6-8. Eventually, Leeper returned to the car. Id. at 8. Chavez did not. Id.
Chavez's body was found in the desert on January 23, 2019. Dkt. 169, pp. 6-7. Apparently, he had been shot to death, with several bullet holes in his torso. Id. Eight .380 caliber casings were found near Chavez's body. Id. at 7. Cut zip ties also lay nearby. Id. Based on the state of Chavez's body's decay and "animal activity to [his] fingers, ears[,] and feet," a coroner opined that Chavez had been killed between twenty-four and forty-eight hours before January 23, 2019. Id.
On February 12, 2019, Lewis got a search warrant to look through Chavez's Facebook Messenger records. Dkt. 169, p. 7. Those records turned up three brief calls from Rodriguez to Chavez on January 17, 2019. Id. Five minutes after the last of these calls, Chavez contacted a Matthew Zimmerman ("Zimmerman") to arrange a buy of three pounds of methamphetamine for $5,000. Id. Based on the messages, Zimmerman only delivered two at around 9:05 p.m. on the same day. Id. at 8.
The rest of Chavez's messages to Zimmerman asked that he call Chavez immediately. Dkt. 169, p. 8. Eventually, Zimmerman responded by text message that he was on his way back to Chavez. Id. But that did nothing to stop the flood of text messages; if anything, Chavez's tone only grew more desperate. Id. The last two messages Chavez sent read "[h]ow long dude he's got a gun please I beg you man", and "[h]e's not playing." Id.
Rodriguez's overture through her attorney to the FBI seemed to establish the missing link between Chavez's murder and the methamphetamine found in Leeper's truck, and the investigation entered the endgame. On March 8, 2019, Williams called Lewis back. Dkt. 169, p. 6. Williams told the Californian detective everything he knew, including some information he had gotten from a cooperator. Id. On March 11, 2019, Williams spoke with his source again, who told Williams that a Byron T. James had rented a car in Ithaca, New York, for defendant to drive to California. Id. Another investigator then confirmed that the same car the cooperator described had been detected near where Chavez was killed between the dates of January 16 and 17, 2019. Id.
Based on this evidence, Williams applied for a warrant on April 8, 2019 to search Leeper's person for "trace evidence, bodily fluids, fingerprints, clothing, ... and any other property" that could provide evidence of murder. Dkt. 169, pp. 3, 10. In addition, Williams requested to take defendant's DNA via a buccal swab. Id. at 3. The warrant was granted the same day. Id. at 2.
On August 15, 2019, a grand jury indicted Leeper for crimes related to both the methamphetamine found in his truck and Chavez's murder. Dkt. 1. On October 29, 2021, defendant moved to suppress the evidence obtained from the search of his car and of his person. Dkt. 151. This decision now follows.
III. DISCUSSION
The Fourth Amendment "guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." United States v. Gomez , 877 F.3d 76, 85-86 (2d Cir. 2017) (cleaned up). According to Leeper, his Fourth Amendment rights were violated twice, first during the traffic stop on February 19, 2019, and then again when his person was searched under the April 8, 2019 warrant. To his mind, each violation demands suppression of the resulting evidence. Unsurprisingly, the Government sees things differently, and argues that both the traffic stop and the DNA swab were reasonable. Yet despite both hinging on his Fourth Amendment protections, defendant's concerns with each critical encounter are distinct, so the Court will consider each in turn.
A. Traffic Stop
Leeper's arguments concerning the February 19, 2019 traffic stop fall into two rough categories: (1) the police exceeded the scope of a traffic stop by pulling him out of his vehicle as well as by conducting the inventory search; and (2) the inventory search itself was improper.
1. Scope of the Traffic Stop
The "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of the Fourth Amendment." Gomez , 877 F.3d at 86 (cleaned up). By extension, a traffic stop must be reasonable to survive constitutional scrutiny. Id.
A traffic stop is reasonable if the stopping officer has "probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity." Gomez , 877 F.3d at 86 (citing United States v. Stewart , 551 F.3d 187, 191 (2d Cir. 2009) ). Even a "minor" traffic violation meets this standard and provides probable cause for a stop. United States v. Scopo , 19 F.3d 777, 782 (2d Cir. 1994).
But that a stop is reasonable at the start does not mean that it remains so in perpetuity. See Rodriguez v. United States , 575 U.S. 348, 354-55, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015) (listing decisions limiting permissible duration of traffic stop). Instead, "the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’ ...." Id. A traffic stop's "mission" is twofold: (1) to address the traffic violation that warranted the stop; and (2) to "attend to related safety concerns" necessary to "ensur[e] that vehicles on the road are operated safely and responsibly." See id. at 354-55, 135 S.Ct. 1609. In the typical case, accomplishing that mission only requires a routine set of inquiries, including "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. at 355, 135 S.Ct. 1609. As a result, in the Second Circuit a stop ceases to be reasonable when "investigative inquiries unrelated to the traffic violations ‘prolonged—i.e. , added time to—the stop." Gomez , 877 F.3d at 91 (cleaned up) (citing Rodriguez , 575 U.S. at 357, 135 S.Ct. 1609 ).
Under Leeper's version of events, the search of his truck and his being handcuffed and placed in the back of Wright's patrol car both unnecessarily prolonged his traffic stop. Thus, to his mind, his seizure was unreasonable and the gun, drugs, and other evidence found during the resulting search must be suppressed.
However, the Government would paint events with a different brush. As the Government would have it, Leeper's detention was justified either as an arrest or as a temporary detention in response to the officers’ perception of defendant as a present physical threat. In either case, defendant's reliance on Rodriguez would be unjustified.
Upon careful review, Leeper's arguments that his brief detention in the back of Wright's squad car tainted the rest of the search are unavailing. The core holding of Rodriguez was that any police activity that extended the duration of a traffic stop beyond that necessary to accomplish its goals must be accompanied by particularized suspicion to support that extension. See 575 U.S. at 357-58, 135 S.Ct. 1609 (remanding for Court of Appeals to determine whether police nevertheless had individualized suspicion for dog sniff of defendant's car).
In other words, even assuming that Wright's ordering Leeper into the back of the squad car extended the scope of the traffic stop, those orders are still constitutional if supported by the appropriate level of suspicion. To that point, "the law recognizes the important need to allow authorities to graduate their responses to the demands of any particular situation." United States v. Newton , 369 F.3d 659, 674 (2d Cir. 2004) (internal quotation marks omitted) (citing United States v. Sharpe , 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ).
By extension, "where an officer has a reasonable basis to think that the person stopped poses a present physical threat to the officer or others, the Fourth Amendment permits the officer to take necessary measures to neutralize the threat ...." Newton , 369 F.3d at 674 (cleaned up). As a result, courts have upheld a "range of restraints incident to a stop" when supported by a reasonable basis to believe that there exists a present physical threat. Id. (collecting cases affirming detention and handcuffing of defendant in response to perceived physical threat as not exceeding scope of investigative stop).
Leeper's own showing supports a reasonable basis for Wright to believe that he posed a present physical threat. Defendant himself submitted Wright's grand jury testimony with his motion, and that testimony establishes that: (1) defendant did not roll his windows all the way down for fear that his self-described "aggressive" dogs would attack the officers; (2) defendant appeared agitated throughout the encounter; (3) defendant repeatedly glanced and reached down at the side panel of his door; (4) defendant shouted at Wright to "relax" in response to his directions; and (5) defendant stuck his head out the window of his truck and shouted and gestured at Wright when Wright repositioned his vehicle, apparently out of concern about how defendant was acting. Dkt. 151-3, pp. 10-11, 15-16.
Those facts put together afforded Wright reasonable suspicion that defendant posed a danger See, e.g. , United States v. Dekattu , 2019 WL 1091384, at *5 (E.D.N.Y. Mar. 8, 2019) (noting that reasonable suspicion is highly fact-bound, but that agitation in course of police with other indicia of danger meets standard). Wright therefore had the appropriate level of articulable suspicion to detain defendant for his and Williams’ safety, and did not improperly extend the traffic stop in violation of Rodriguez .
Even if the police had improperly extended the stop by detaining Leeper, though, his argument depending on that stop would still fail. Defendant's detention was an altogether separate event from Wright's decision to tow his truck. And it was that decision, not defendant's detention, that caused the eventual inventory search. In other words, any impropriety in the detention would not have caused the police to discover the resulting evidence, and therefore defendant's arguments would not allow for suppression in any case. See Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (noting that "but-for causality is ... a necessary ... condition for suppression" and holding that suppression was not warranted because of defendant's failure to establish but-for causation).
But by the same token, the mere fact that Leeper's detention did not unlawfully extend his traffic stop says nothing about whether Wright's decision to tow the truck resulted in an unlawful extension. Even so, the Court is satisfied that Wright's towing defendant's truck was similarly appropriate under these facts.
After all, part and parcel of a traffic stop's mission of "ensuring that vehicles on the road are operated safely and responsibly" means not permitting unlicensed drivers to operate unregistered and damaged vehicles. Rodriguez , 575 U.S. at 355, 135 S.Ct. 1609. As a result, "police have the authority, despite the absence of a warrant, to seize and remove from the streets automobiles in the interests of public safety and as part of their community caretaking functions ...." United States v. Lyle , 919 F.3d 716, 728 (2d Cir. 2019). That authority "is beyond reasonable challenge." Id.
However, like so many other spheres of the Fourth Amendment's influence, an officer's decision to impound or otherwise remove a vehicle still must be reasonable. Lyle , 919 F.3d at 731. The question of reasonableness for a decision to tow a vehicle considers the totality of the circumstances. Id. Among those circumstances, whether an officer adhered to existing, standardized criteria in deciding to tow the defendant's vehicle is a factor worth accounting for. Id. But it is not a dispositive one. Id. at 728, 731 (noting circuit split as to whether impoundment must be undertaken as part of policy or whether totality of circumstances must be considered and ultimately rejecting policy requirement).
Synthesizing those principles, if Wright's decision to tow Leeper's truck was reasonable under these circumstances, that decision was in service of the traffic stop's objective of ensuring that the roads stay safe and did not impermissibly extend the duration of the traffic stop. See, e.g. , United States v. Soderman , 983 F.3d 369, 374 (8th Cir. 2020) (ruling that officer's discovery that defendant's "driver's license had been suspended justifiably extended the lawful scope of the traffic stop because of [defendant's] legal inability to remove the vehicle from the scene and the consequential need for a licensed driver or a tow truck to do so"); cf., e.g. , Hawthorne ex rel. Hawthorne v. Cnty. of Putnam , 492 F. Supp. 3d 281, 296-99 (S.D.N.Y. 2020) (finding that traffic stop "lasted only as long as necessary to complete all activities related to ... traffic infractions" where defendant police officer in civil suit towed vehicle because no licensed driver was available to remove it). Under the totality of the circumstances, Wright's decision to tow Leeper's truck was reasonable. After all, neither defendant nor Rodriguez were licensed to drive it. Dkt. 151-3, pp. 12-14. And even if they were licensed, the truck had no valid registration. Id. at 8. And even if it did , the windshield was substantially cracked. Id. at 11-12. The truck was simply not fit to be driven, and even in a counterfactual where defendant and Rodriguez had not been arrested after the police discovered the methamphetamine, it was reasonable to remove the vehicle under these facts. See Lyle , 919 F.3d at 731 (finding removal of vehicle reasonable where driver was not properly licensed even if there was no expectation defendant would be in custody for long).
To rebut this conclusion, Leeper argues that towing his truck was contrary to Department policy. Specifically, he argues that removal was not justified because the Big Lots parking lot is not a "public highway." Dkt. 151-6, ¶ I(A). At the same time, impounding the vehicle also would have been contrary to the policy, because defendant met none of the attendant criteria for impoundment. Id. ¶ I(B).
Leeper's argument fails. First, once again the reasonableness of the decision to remove the truck does not live or die on Wright's compliance with the policy. Lyle , 919 F.3d at 728, 731. Second, a vehicle may be impounded under the policy if "[i]t needs to be held for safekeeping." Dkt. 151-6, ¶ I(B)(6). Even assuming that Rodriguez and defendant were never going to be arrested, Wright had no way of knowing if or when defendant or Rodriguez would be able to find someone who could legally retrieve the truck. Wright was thus more than justified in determining that the truck needed to be held somewhere out of harm's way. The alternative would have been to leave the truck unattended for an indefinite stretch of time, opening it up to the possibility that it would be stolen or that defendant or Rodriguez would return to it and continue to drive it unlawfully. Wright's decision to hold the truck thus met the policy's definition of an impoundment in any case.
Third, according to Wright, standard practice is to "hold" a vehicle when it has no lawful operator capable of removing it himself. Wright Dec. ¶ 3. In other words, there is uncontradicted evidence that Wright complied with standard practice even if he had not strictly followed the written policy. Though Leeper may be tempted to point out that Wright's position is self-serving and, perhaps, convenient, that the policy itself plainly contemplates that a "hold" is a separate event from an impoundment—but never clearly defines a hold—also lends independent circumstantial support to Wright's version of standard procedure. See Dkt. 151-6, ¶¶ I(A)(3), I(E)(1).
Given these three considerations, to whatever extent Wright can be said to have deviated from standard practice or policy, at the least it can be said without doubt that any deviation was not so significant as to make his decision to impound Leeper's truck unreasonable. See Lyle , 919 F.3d at 731 (citing United States v. Lopez , 547 F.3d 364, 372 (2d Cir. 2008) for proposition that even complete absence of impoundment policy does not make impoundment unlawful).
It is also unclear on these facts what Leeper would have had the police do instead of impounding his truck. Much as he may protest the police not allowing him to call someone else to pick his truck up, Wright was under no obligation to do so. United States v. Zimmerman , 480 F. Supp. 3d 446, 453 (E.D.N.Y. 2020) ("Officers have no obligation to contact an absent third party before impounding, or to grant a defendant's request to make arrangements to secure the vehicle.") (citing Lyle , 919 F.3d at 731 ).
And in any case, Leeper never asked to have someone else pick the truck up. See Dkt. 151-3, pp. 8-16. Instead, the most the officers knew at the time of the impoundment was that defendant was new to New York and that Rodriguez knew no one in the area. Id. at 12; Dkt. 169, p. 35 (Rodriguez in statement to police claiming that she told Wright that she did not know anyone in area).
Finally, even if the officers were required to ask if any licensed driver could have picked the truck up, it was not fit to be driven in any case because the windshield was cracked and its registration had lapsed. Dkt. 151-3, pp. 8, 11-12. In short, it was reasonable as a matter of law for Wright to impound defendant's truck, and by extension his traffic stop was not unduly extended. See Zimmerman , 480 F. Supp. 3d at 453 (finding impoundment reasonable when unlicensed defendant could not drive vehicle away and it was uncertain when car could be retrieved).
2. Validity of the Inventory Search
Thus, the police lawfully took Leeper's truck into custody. Perhaps anticipating that holding, defendant nevertheless argues that the inventory search itself was improper, even if everything preceding it was not.
To that end, "when police take a vehicle into custody, they may search [it] and make an inventory of its contents without need for a search warrant and without regard to whether there is probable cause to suspect that the vehicle contains contraband or evidence of criminal conduct." United States v. Williams , 930 F.3d 44, 53 (2d Cir. 2019) (internal citations and quotation marks omitted).
The rationale behind these searches is not all that different from the logic supporting impounding vehicles. Specifically, police have an obligation as "community caretakers" to protect: (1) property while it is in police custody; (2) the police against spurious claims of lost or stolen property; and (3) the police from potential danger. Williams , 930 F.3d at 54. Those objectives are separate and apart from a police officer's objectives in furthering criminal investigations or prosecutions. Id.
Yet important as it may be to ensure that property is not lost or destroyed on law enforcement's watch, the Fourth Amendment's protections against unlawful searches must still have their say as well. Lopez , 547 F.3d at 370. To strike a balance between protecting property from damage on the one hand and intrusion on privacy on the other, courts require that inventory searches be performed using "standardized criteria or established routine." Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (internal citations omitted).
That said, every detail of a search procedure need not be covered by an express, standardized policy. Lopez , 547 F.3d at 371. "For example, there need not be a standardized policy as to the order in which different parts of a car are searched, or whether officers performing the search need to report the results on a standardized form." Williams , 930 F.3d at 55 (cleaned up). Ultimately, the procedures need only be adequate to protect a property owner's Fourth Amendment interests and to prevent police officers from having "so much latitude" that an inventory search becomes a purposeful means of discovering evidence. Id. (citation omitted).
Because the restrictions on inventory searches are principally tied to the Fourth Amendment, once again a challenge to an inventory search pivots on the fulcrum of reasonableness. See Williams , 930 F.3d at 56. The reasonableness of an inventory search in turn depends on its objective justification. Id. In principle, that means that an inventory search must be "administered in good faith[ ] according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Id. (internal citations, quotation marks, and emphasis omitted).
Critically, though, the "purpose" that courts assess in examining inventory searches is "not the officer's subjective purpose in searching, but the purpose of the administrative program itself. " Williams , 930 F.3d at 56 (emphasis in original) (citing Brigham City, Utah v. Stuart , 547 U.S. 398, 404-05, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). Thus, the essential inquiry does not look at the mind of the officer conducting the search, but instead at "ensuring that the purpose behind the program is not ultimately indistinguishable from the general interest in crime control." Brigham City , 547 U.S. at 405, 126 S.Ct. 1943 (emphasis in original and internal citations and quotation marks omitted).
Leeper begins his assault on the inventory search by claiming that Wright, Williams, and Burhans did not search his vehicle as a routine inventory, but instead were hunting for evidence of a crime. That argument fails for three reasons.
First and foremost, Leeper's focus on the mindsets of the individual officers is irrelevant. What matters in ensuring the legitimacy of an inventory search is that the policy itself protects the Fourth Amendment interests of property owners, not whether any officer administering that policy might have had an imperfect motive for doing so. Brigham City , 547 U.S. at 404-05, 126 S.Ct. 1943.
In other words, even assuming that Wright, Williams, or Burhans did intend to uncover evidence during their inventory search, that would not point to the policy itself being invalid. Accordingly, any arguments of bad faith by the investigating officers are beside the point. Because Leeper has not raised any concerns with the policy itself—on the contrary, he relies on it repeatedly in arguing for suppression—there is no basis to find the inventory search invalid on the basis of bad faith or an investigatory motive.
Second, even if the law were otherwise, Leeper has failed to point to any evidence that plausibly supports his argument that Wright's true motive was to search for evidence of a crime, rather than to conduct a pro forma inventory search. The best evidence defendant points to for that proposition is that: (1) Wright "dumped" Rodriguez's purse rather than taking the items out one by one; (2) Wright did not simply turn the items in the truck over to defendant and Rodriguez; and (3) Wright failed to list the items he uncovered on an inventory sheet.
For the first point, the Court is unsure how, exactly, upending a purse conveys an intent to discover evidence. To be sure, "dumping" Rodriguez's purse as opposed to picking the items out piecemeal may betray a certain degree of haste, perhaps even eagerness. But defendant has altogether failed to explain how impatience of either sort suggests an investigatory motive, or even would have advanced any investigative motive he might have had. If anything, a more careful approach would seem to increase the odds of finding evidence, rather than risking incriminating items becoming lost in a pile of mundane bric-à-brac.
On the other hand, there are any number of good-faith reasons that Wright might have dumped out the purse, including expediting the tedious task of combing through Leeper's truck to find valuables. There is also Wright's own explanation for dumping the purse: namely, to ensure that he did not accidentally injure himself on needles or other dangerous objects hidden inside. Dkt. 151-3, p. 20.
The Court is also unable to find any improper investigatory animus in Wright's decision to search the purse—or any of the items in the truck—rather than turn them over to Leeper and Rodriguez on the spot. The Department's policy required an inventory search of the entire vehicle and "any closed containers" inside it before defendant's truck could be towed. Dkt. 151-6, ¶ I(E)(1, 4).
Specifically regarding the purse, Rodriguez demonstrated that she planned on leaving it with the truck by not taking it with her when she got into the taxi. See Dkt. 151-3, pp. 18, 20 (Wright describing Rodriguez exiting truck and entering taxi while purse remained behind). It is difficult to fault Wright for complying with his department's written policy by searching a container that was apparently going to remain in the truck. Dkt. 151-6, ¶ I(E)(1, 4).
As for the rest of the items in Leeper's vehicle, defendant seems to argue that Wright should have simply emptied it all on the side of the road in his care since defendant was not under arrest at the time. But that would be expressly contrary to policy. See Dkt. 151-5, ¶ I(E) (requiring inventory search prior to towing). It would also be expressly contrary to practicality, considering that it would have left defendant and Rodriguez to fill a taxi with the entire contents of defendant's truck, not to mention themselves and defendant's dogs.
To the extent that defendant is arguing that he was not under arrest and thus did not fit the terms of the policy because the truck would have been in his "immediate custody, care, or control," after being towed, Dkt. 151-6, ¶ I(E)(1), that argument ignores that defendant would need to get a valid license and registration before being permitted to withdraw his truck, Wright Dec. ¶ 3. It was not at all clear when defendant would have been able to retrieve his truck under these facts, and it certainly cannot be said that he would have been able to take possession of his truck immediately.
Similarly, Leeper has not suggested much reason to take issue with Wright's failure to document the items during the inventory search. To be sure, defendant is correct when he argues that the Department requires that any items found during an inventory "be listed on an inventory sheet as to description, location[,] and disposition." Dkt. 151-6, ¶ I(E)(5). But absent from that policy is any requirement as to when the inventory sheet should be filled out. See id.
Nor is there reason to fault the policy for not requiring the inventory sheet to be filled out at a set time when the policy is not required to mandate a sheet to be filled out at all. See Williams , 930 F.3d at 55 (noting that adequate inventory search policy need not even specify whether inventory sheets are required in first place). In addition, it is undisputed on the record that Wright began his inventory search with Rodriguez's purse, then immediately looked through the duffel bag containing the methamphetamine. Dkt. 151-3, pp. 19-20 (Wright explaining that he started with Rodriguez's purse before turning to duffel bag).
Thus, Wright's failure to start an inventory sheet while in the very beginning of the inventory search when no policy required that he fill it out at any particular time also does not suggest impropriety. As a consequence, even if Wright's subjective intent had mattered, Leeper has not identified any basis to impute an investigatory motive to him. Williams , 930 F.3d at 56. Third, Leeper's arguments concerning Williams and Burhans’ motive would have missed the mark entirely, because by the time they had begun searching Leeper's car, there was probable cause to support an investigative search of the entire vehicle.
Defendant did not argue that Wright's search of his and Rodriguez's pockets conveyed an investigative intent, although he did raise the issue at other points of his memorandum of law. Setting aside that the entire argument of Wright's individual investigative intent remains irrelevant, Williams , 930 F.3d at 56, the Court would not have been moved by that argument in any case. Even assuming in defendant's favor that neither he nor Rodriguez granted consent to the pocket search—which Wright's grand jury testimony suggests for defendant and says outright for Rodriguez, Dkt. 151-3, pp. 16, 18—an overreach in one dimension of the February 19, 2019 traffic stop would not be enough on its own for the Court to suppress the fruits of a policy-mandated inventory search, Dkt. 151-6, ¶ I(E); see United States v. Mendez , 315 F.3d 132, 138-39 (2d Cir. 2002) (affirming denial of suppression of fruits of search when inventory search would have inevitably uncovered evidence anyway).
Under the automobile exception to the warrant requirement, "law enforcement can conduct even a full search of a readily mobile vehicle if there is probable cause to believe that the vehicle contains evidence of a crime." Alexander v. City of Syracuse , 573 F. Supp. 3d 711, 733 (N.D.N.Y. Dec. 1, 2021) (citing United States v. Navas , 597 F.3d 492, 497 (2d Cir. 2010) ). The scope of that search can include "every part of the vehicle and its contents including all containers and packages that may conceal the object of the search." Navas , 597 F.3d at 497 (cleaned up).
By the time that Williams and Burhans had arrived to help Wright manage the situation, Wright had already found the duffel bag full of a chunky, clear substance in smaller plastic baggies. See Dkt. 151-3, pp. 20-21 (Wright calling for another police vehicle after discovering substance). Wright testified before a grand jury that based on his training and experience, he believed that substance to be an illicit drug. Id.
An officer's observation of a substance that he believes to be illegal drugs is certainly enough to establish probable cause. Cf., e.g. , McZorn v. Johnson City Police Dep't , 2009 WL 5216946, at *4 (N.D.N.Y. Dec. 30, 2009) (finding probable cause to search rest of car as matter of law in civil suit when officer found two bags of suspected marijuana in false arrest plaintiff's purse). Accordingly, even if Leeper had managed to point to an investigative intent on Williams’ or Burhans’ part, and even if that investigative intent mattered for the purposes of an inventory search, defendant's arguments would still fail because they were allowed to perform a full, warrantless search of defendant's truck in any case.
As the Government points out, defendant requested an evidentiary hearing for the first time in his reply brief, apparently for two reasons: (1) interrogating the contours of Wright and Williams’ conversation with Wright as to whether he had started an inventory sheet before searching defendant's truck; and (2) determining whether Wright had smelled marijuana at some undefined point in his interactions with defendant. Because, as has just been discussed, Williams was permitted to conduct a full search of the truck under the automobile exception and neither Williams’ nor Wright's subjective intent in conducting the inventory search matters, a hearing on the first question would be twice meaningless. Similarly, the Court never needed to rely on—or even consider—any smell of marijuana Wright may have experienced in determining whether the search of the truck was valid. Accordingly, defendant has not shown any basis for a hearing, and the Court will decide his motion on the submissions. See Gentile v. Cnty. of Suffolk , 926 F.2d 142, 148 (2d Cir. 1991) ("[I]f facts urged in support of a hearing would not entitle the moving party to relief as a matter of law, no evidentiary hearing is required.") (citing United States v. Irwin , 612 F.2d 1182 (9th Cir. 1980) ).
Even so, Leeper makes one final argument in favor of suppressing the fruits of the search of his truck. Specifically, he argues that the officers failed to comply with the Department's policy for inventory searches, and thus the search should not be afforded the protection those searches usually enjoy. See Wells , 495 U.S. at 4, 110 S.Ct. 1632 (holding that inventory searches must be carried out according to set procedure to be valid).
In the course of getting to this point, the Court has considered and discarded Leeper's argument that the police officers failed to comply with the policy by not contemporaneously filling out an inventory form. That leaves defendant with only two argued policy deviations. First, defendant argues that Williams and Burhans erred by not specifically noting several minor items in their report. However, the Second Circuit has explicitly rejected the notion that a failure to uniformly list every item found in a vehicle warrants suppression. Lopez , 547 F.3d at 371 (holding that failure to "itemize each object found" does not invalidate inventory search so long as inventory of significant items is created).
Second, Leeper argues that several items were left in defendant's truck in the open. That is contrary to the Department's policy, which requires that any personal item be: (1) returned to its owner; (2) secured in the vehicle out of sight; or (3) secured with the property clerk. Dkt. 151-6, ¶ I(F)(1). Nevertheless, the Court remains unmoved. After all, the purpose behind the requirement of standardized procedures is to ensure that a property owner's Fourth Amendment rights are not unnecessarily curtailed. See Lopez , 547 F.3d at 371 (pointing out that "[a] standardized policy is needed to ensure that inventory searches do not become a ruse for a general rummaging in order to discover incriminating evidence" (internal citations and quotation marks omitted)).
Though the requirement that property be stowed out of sight would certainly be helpful to ensure that the property does not get stolen or damaged, it does nothing to limit the intrusion of an inventory search on the owner's Fourth Amendment rights. Lopez , 547 F.3d at 371. Nor did the deviation have much in the way of practical consequences in this case, when Leeper's truck found itself in a restricted impound lot after evidence of a crime was discovered hiding inside it. Wright Dec. ¶ 5.
Accordingly, that Williams and Burhans deviated slightly from the Department's policy by not hiding the items in the truck from sight does nothing to invalidate the inventory search. Having considered all of defendant's arguments, the Court has found none warranting suppression. Defendant's motion to suppress the fruits of the February 19, 2019 search of his truck must be denied. See, e.g. , Zimmerman , 480 F. Supp. 3d at 453-55 (upholding impoundment of vehicle and resulting "thorough" inventory search despite officers immediately searching fuse box and finding contraband).
B. DNA Sample
However, Leeper's arguments in favor of suppression are not exhausted yet. Specifically, defendant argues that the search of his person to recover his DNA was improper as well. He claims two defects in this second search: (1) the warrant that issued to secure his DNA was defective; and (2) defendant was not given an opportunity to contest the warrant.
1. Propriety of Search Warrant
Given the invasion of bodily integrity involved, it comes as little surprise that obtaining a DNA sample from a person via a buccal swab is a search. Maryland v. King , 569 U.S. 435, 446, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013). As a consequence, the ability of law enforcement to conduct a buccal swab is constrained by the Fourth Amendment's protections. Id. That is to say, any police officer's attempt to sample a defendant's DNA via buccal swab must be reasonable. Id. at 447, 133 S.Ct. 1958.
In the ordinary case, "a search pursuant to a warrant issued by a judicial officer upon a finding of probable cause is presumptively reasonable." Ganek v. Leobowitz , 874 F.3d 73, 81 (2d Cir. 2017). As a result, courts "accord considerable deference to the probable cause determination of the issuing magistrate." United States v. Thomas , 788 F.3d 345, 350 (2d Cir. 2015). Ultimately, a reviewing court's analysis of a search warrant looks to ensure "that the totality of the circumstances afforded the magistrate ‘a substantial basis’ for making the requisite probable cause determination." Id. (citing Illinois v. Gates , 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ).
Leeper's challenge to the issuance of the search warrant in the first place cashes out to two lines of argument: (1) the warrant was supported by insufficiently reliable evidence; and (2) the warrant failed to explain specific items on which evidence would be found using the sample obtained from the buccal swab.
On the first point, Leeper takes particular issue with the unreliability of Rodriguez's and the confidential informant's statements. Neither of his concerns are justified.
First, Leeper argues that Rodriguez's statements implicating defendant in Chavez's murder passed through multiple layers of hearsay before reaching the magistrate that issued the warrant. That is certainly true. Dkt. 169, pp. 6-8 (Rodriguez's narrative being passed from her to her attorney, to FBI agent, to several police officers, before reaching Williams). And to be sure, the probable cause inquiry involves considering the reliability of sources of information, including the extent to which the police rely on hearsay. United States v. Canfield , 212 F.3d 713, 718 (2d Cir. 2000) ("Probable cause is a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, 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 ....").
Although it must also be said that Lewis got the same story again directly from Rodriguez's attorney, apparently with Rodriguez's permission. Dkt. 169, pp. 8-9.
However, it bears keeping in mind that the layers of hearsay between Rodriguez and Williams consisted exclusively of her own attorney—an agent of Rodriguez's charged with carrying out her legal interests—and then several law enforcement officers. See Dkt. 169, pp. 6-8; see Carter v. Healthport Techs., LLC , 822 F.3d 47, 58 (2d Cir. 2016) ("[T]he relationship between a lawyer and client is one of agent and principal."). It is also worth noting that the full length of that game of telephone was on display in the warrant application for the magistrate to peruse and weigh as he saw fit. See Dkt. 169, pp. 6-8. Under these facts, the Court is unpersuaded that the simple fact of hearsay undercuts the evidentiary support for probable cause.
This is all the truer because as the Government points out, the probable cause analysis frequently relies on the legal fiction that what is known to one officer involved in an investigation is known to all. See United States v. Colon , 250 F.3d 130, 135 (2d Cir. 2001) (holding that search is permissible where actual searching officer lacks specific information to support probable cause but other officers involved in investigation knew that information). That fiction depends entirely on the assumption that law enforcement officers engaged in an investigation can each credit the information in another's possession. See id. It would be a strange logic indeed to abandon that credit once the information is actually—rather than just presumptively—shared.
In short, much as Leeper may make of the multiple layers of hearsay between Rodriguez and Williams, those layers consist of Rodriguez's agent and a series of people that the probable cause analysis credits as a matter of course. See Carter , 822 F.3d at 58 (noting that attorney is client's agent); Colon , 250 F.3d at 135 (entitling judicial officer in probable cause analysis to credit all information known by one investigating officer to all others). Defendant's hearsay argument is meritless.
Second, Leeper attacks Rodriguez and the confidential informant's credibility on a direct, fundamental level. As far as Rodriguez is concerned, defendant notes that she, too, was wrapped up in the investigation into defendant, and thus had a motive to lie. For the confidential informant, he points out that the warrant application makes no mention of any indicia of reliability.
To that end, in reviewing whether an informant's tip can support probable cause, courts look to the informant's "veracity, reliability[,] and basis of knowledge." Gates , 462 U.S. at 230, 103 S.Ct. 2317. "In assessing the veracity of an informant's statements, it is improper to discount the information provided simply because the informant has no proven record of truthfulness or accuracy." United States v. Gagnon , 373 F.3d 230, 236 (2d Cir. 2004) (cleaned up). In particular, the informant's past reliability is beside the point when she is "in fact a participant in the very crime at issue." Id.
That said, "a criminal informer is less reliable than an innocent bystander with no apparent motive to falsify[.]" Gagnon , 373 F.3d at 236. Similarly, an informant who passes on a tip anonymously is less reliable than one who provides information face-to-face. Id.
But veracity, reliability, and the basis of knowledge are still ultimately part of an inquiry that embraces the totality of the circumstances. See Gagnon , 373 F.3d at 236. An essential part of that totality is the extent to which an informant's information "is corroborated by independent police investigation." Id.
As far as Rodriguez is concerned, Leeper principally objects that she had motive to lie because she was also involved in the investigation into Chavez's murder. He also protests that she did not provide her information face-to-face. To defendant's point, Rodriguez's admitted involvement in Chavez's death both eliminates any need for the Government to establish her reliability on the one hand and merits greater scrutiny on the other. Gagnon , 373 F.3d at 236. However, once again that was not a secret; the issuing magistrate knew full well that Rodriguez had something to gain by implicating defendant. Dkt. 169, pp. 6-8.
Further, Leeper's objection that Rodriguez did not share her story with the police face-to-face does not meaningfully disrupt the calculus. Of course, there would have been at least some marginal gains in credibility if a law enforcement officer had spoken to Rodriguez directly to gauge her veracity while she was telling her version of Chavez's death. See Gagnon , 373 F.3d at 236. But the binary that Gagnon set up ranges from a face-to-face confession to an anonymous telephone tipster. See id. As a result, its logic in favoring the face-to-face over the anonymous is that there can be consequences for a known person passing along a false tip while an anonymous tipster can escape unscathed. See id. Rodriguez telling her attorney to tell law enforcement her story falls much closer to the former than the latter, and any resulting hit to her credibility is mild at worst. Dkt. 169, pp. 6-8. In any case, she told her attorney to pass along to Lewis that she would be willing to speak to him herself. Id. at 9. As a consequence, the lack of a face-to-face tip is really more a matter of Lewis's choice than a reason to suspect falsehood from Rodriguez.
However, what ultimately dooms Leeper's arguments concerning both Rodriguez and the confidential informant's reliability is their corroboration in concert and through independent investigation. See Gagnon , 373 F.3d at 236. The cooperator told Williams that a third party had rented a car on defendant's behalf for him to drive to California. Dkt. 169, p. 6. The police confirmed that on January 16 and 17, 2019, the car the cooperator described had been near where Chavez was found dead. Id.
Meanwhile, Rodriguez told the police that she had been with Leeper and Chavez in Barstow, California, that defendant and Chavez exited the car they were in to walk together into the desert, that she had heard gunshots, and that only defendant had returned. Dkt. 169, pp. 6-8. The police confirmed through Chavez's messages that Chavez had spoken to Rodriguez on January 17, 2019 and that a male had apparently threatened Chavez with a gun on the same day because of the same transaction. Id. at 7-8.
All together, the police independently verified that Rodriguez was with Chavez and another male around January 17, 2019, at the same time that a rental car from New York was found in the area of Chavez's murder. Dkt. 169, pp. 6-8. In addition, the investigators found a gun in Leeper's truck of the same caliber as the one used to kill Chavez. Compare Dkt. 151-4, p. 8 (Williams describing finding Cobra handgun that fired .380 caliber rounds), with Dkt. 169, p. 7 (affirming that eight .380 caliber spent casings and fired bullets were found near Chavez's body).
The sum total of that independent verification more than amply supports Rodriguez and the cooperator's identification of Leeper as the rental car's driver and Chavez's shooter, especially when the Court is bound to give "considerable deference" to the issuing magistrate's decision to issue the warrant. Thomas , 788 F.3d at 350. Defendant has thus failed to prove out a substantive defect in the search warrant. See, e.g. , United States v. Thomas , 2021 WL 4248885, at *6-9 (D. Conn. Sept. 17, 2021) (finding search warrant supported when confidential informant's account was supported by independent verification of details).
Yet Leeper still relies on one last bastion for the warrant's infirmity. Specifically, he argues that the search warrant failed to adequately describe specific pieces of evidence on which the police expected to find his DNA. To defendant's point, a DNA search must be justified by "a clear indication that in fact ... evidence will be found." Gonzalez v. City of Schenectady , 728 F.3d 149, 158 (2d Cir. 2013). To defendant's mind, then, the warrant's failure to specify what objects in the possession of investigators had DNA to compare to defendant's is fatal to the search warrant.
But Leeper asks for far too much. A search warrant affidavit need only support probable cause that evidence of a crime will be found. United States v. Boles , 914 F.3d 95, 102 (2d Cir. 2019) (defining probable cause for search warrant as "practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found"). The Court is aware of no case requiring a search warrant to specifically identify the objects to be used to compare to a suspect's DNA sample.
After all, Leeper's citation to United States v. Evans certainly does not fit that bill. 427 F. Supp. 3d 87, 90-94 (D.D.C. 2019). The Evans court simply declined to order a defendant to submit to a buccal swab to compare his DNA to that found on firearms in his home because those firearms had nothing to do with the charges at issue in the case. Id. at 94. That is to say, there was no suggestion of a physical instrumentality of the crimes actually charged in Evans that would confer probative value on the defendant's DNA. Id. In that light, the attempt to take a DNA sample looked a lot less like an attempt to solve a crime than it did a fishing expedition to discover additional wrongdoing. Id.
Thus, Evans did not stand for Leeper's proposed theory that a search warrant for DNA must list other evidence that might also have the defendant's DNA on it. 427 F. Supp. 3d at 94 ("[T]he Fourth Amendment is not offended when the [G]overnment seeks to compel a buccal swab for the purposes of linking the defendant to evidence that has relevance to the defendant's guilt or innocence of the charges against [him]."). Instead, it only required that the Government must establish probable cause that the defendant's DNA would itself be evidence of a crime. Id.
This Court agrees, and this case amply meets that standard. As was just discussed above, the search warrant for Leeper's DNA survived an extensive challenge to its factual basis. There was thus probable cause to support the notion that defendant murdered Chavez.
There are also any number of physical instrumentalities explicitly tied to Chavez's murder that would make Leeper's DNA, if present on any or all of them, probative of his culpability in Chavez's murder. Those pieces of evidence include the handgun from Leeper's truck, Chavez's clothes, the zip ties found near his body, or the rental car. See Dkt. 169, pp. 4-7. As a result, establishing probable cause that defendant was Chavez's murderer suffices to permit the police to check those physical instrumentalities for defendant's DNA.
Accordingly, the police were permitted to compare Leeper's DNA to any DNA samples found on an object involved in Chavez's murder. This basis for defendant's challenge to the April 8, 2019 search warrant must be denied. See, e.g. , United States v. Lester , 1995 WL 656960, at *7-8 (S.D.N.Y. Nov. 8, 1995) (finding fair probability that DNA evidence would link suspect to crime based on probable cause that crime had been committed and that suspect was involved in crime when items left in get-away van to test for DNA).
2. Due Process Requirements
As a final matter, Leeper argues that even if the search warrant were valid on its face, suppression should still follow because his due process rights were violated by not allowing him to be heard before taking the sample. Under New York law, he would be right. See in re Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265, 296 (1982) (holding under New York law that subject of application for sample of bodily identification is entitled to opportunity to be heard before sample can be taken).
But this case is governed by federal law. United States v. Brown , 52 F.3d 415, 420 (2d Cir. 1995). And Leeper has failed to point to any support for the notion that the federal concept of due process would also require an opportunity to be heard before a search warrant could issue to seize DNA. Nor is the Court aware of any. This argument fails, and with it, defendant's suppression motion must be denied in its entirety. IV. CONCLUSION
Leeper's suppression motion raised a number of novel arguments in favor of suppressing the Government's evidence in this case. Like most criminal cases, the facts that defendant pointed to were often unique, and there were many wrinkles that demanded scrutiny. But the Court has furnished that scrutiny and found no merit to defendant's objections. The touchstone of the Fourth Amendment—and by and large criminal investigations altogether—is reasonableness. See California v. Ciraolo , 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). By all the evidence that either party has furnished, Wright, Williams, and the other law enforcement officers acted reasonably in investigating this case, and the evidence they uncovered must not be suppressed.
Therefore, it is
ORDERED that
1. Defendant Kyle M. Leeper's suppression motion is DENIED;
2. Defendant Kyle M. Leeper's request for an evidentiary hearing to test the propriety of the Government's investigation is DENIED because no facts to which defendant points would entitle him to relief even if proven true; and
3. The Government's motion to take depositions is DENIED without prejudice to renew.
IT IS SO ORDERED.