United States v. Lambus

• Citation: 897 F.3d 368
• Decision Date: 25 July 2018
• Docket Number: August Term, 2017,Docket No. 16-4296
• Parties: UNITED STATES of America, Appellant, v. Kamel LAMBUS, aka Kamel Angevine, aka K, aka Kamel Angenevine, Stanley Fuller, aka Wardy, aka Webo, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

897 F.3d 368

UNITED STATES of America, Appellant,

v.Kamel LAMBUS, aka Kamel Angevine, aka K, aka Kamel Angenevine, Stanley Fuller, aka Wardy, aka Webo, Defendants-Appellees.^*

Docket No. 16-4296

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: February 20, 2018

Decided: July 25, 2018

MICHAEL P. ROBOTTI, Assistant United States Attorney, Brooklyn, New York (Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, David C. James, Lauren H. Elbert, Marcia M. Henry, Assistant United States Attorneys, on the brief, Brooklyn, New York), for Appellant.

RONALD RUBINSTEIN, New York, New York (Joseph R. Corozzo, Angela D. Lipsman, Rubinstein & Corozzo, New York, New York, on the brief), for Defendant-Appellee Kamel Lambus.

JAMES KOUSOUROS, New York, New York (Susan C. Wolfe, New York, New York, on the brief), for Defendant-Appellee Stanley Fuller.

Lindsay A. Lewis, New York, New York (National Association of Criminal Defense Lawyers, New York, New York; Michael C. Miller, Jeffrey Novack, Meghan Newcomer, David Hirsch, Steptoe & Johnson, New York, New York, of counsel; Timothy P. Murphy, New York State Association of Criminal Defense Lawyers, Albany, New York, of counsel), filed a brief for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers in support of Defendants-Appellees.

Before: KEARSE and LIVINGSTON, Circuit Judges, and MEYER, District Judge^** .

KEARSE, Circuit Judge:

Appeal by the United States from so much of two pretrial orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge , as (1) granted motions by defendants Kamel Lambus and Stanley Fuller to suppress evidence obtained pursuant to one of several court-authorized wiretaps, and (2) granted a motion by Lambus to suppress location data generated by a GPS tracking device attached to his ankle by his New York State parole officers. The district court ruled that the wiretap applicant had knowingly withheld from and misrepresented to the authorizing judge information that was required by 18 U.S.C. § 2518(1)(e), and the court suppressed the evidence gained from that wiretap, citing its inherent authority. See 221 F.Supp.3d 319 (2016). The court suppressed location data generated by the GPS device, ruling that Lambus's Fourth Amendment expectations of privacy were infringed on the ground that the device was used for a two-year period, without a warrant, not for purposes of State parole supervision but only for the collection of evidence that would permit the federal government to prosecute Lambus for drug trafficking. See 251 F.Supp.3d 470 (2017).

On appeal, the government challenges the suppression of the wiretap evidence, contending (a) that the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent, and (b) that the court did not find the applicant's mistakes to have been material, and it erred in failing to apply the test established by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), under which such evidence should not be suppressed unless the mistakes were material. The government challenges the suppression of GPS data, contending principally that (a) the GPS monitoring of Lambus was permissible because it was reasonably related to his parole officers' duties; (b) in light of Lambus's acknowledgements of his parole officers' authority to search his person and to attach a GPS tracker, evincing little expectation of privacy, the use of the tracker was not unreasonable under the Fourth Amendment; and (c) in any event, suppression should have been denied under the good-faith doctrine of Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

Finding merit in the government's contentions, we conclude that the district court erred in suppressing the wiretap evidence and the GPS data.

Reversed.

The United States appeals pursuant to 18 U.S.C. § 3731 from so much of two orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge , as (1) granted motions by defendants Kamel Lambus and Stanley Fuller to suppress evidence obtained pursuant to one of several court-authorized wiretaps, and (2) granted a motion by Lambus to suppress location data—apparently reflected on maps on which dots pinpointed the presence of Lambus at the times indicated—directly obtained from a GPS tracking device attached to his ankle by his New York State (or "State") parole officers. The district court ruled that the wiretap applicant had knowingly withheld from and misrepresented to the authorizing judge information that was required by 18 U.S.C. § 2518(1)(e), and the court suppressed the evidence gained from that wiretap, citing its inherent authority. See United States v. Lambus , 221 F.Supp.3d 319 (E.D.N.Y. 2016) (" Lambus I ’’). The district court suppressed the location data generated by the GPS device, ruling that Lambus's Fourth Amendment expectations of privacy were infringed on the ground that the device was used for a two-year period, without a warrant, not for purposes of State parole supervision but only for the collection of sufficient evidence to permit the federal government to prosecute Lambus for drug trafficking. See United States v. Lambus , 251 F.Supp.3d 470 (E.D.N.Y. 2017) (" Lambus II ’’).

On appeal, the government challenges the suppression of the wiretap evidence, contending (a) that the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent, and (b) that the court did not find the applicant's mistakes to have been material, and it erred in failing to apply the test established by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), under which such evidence should not be suppressed unless the mistakes were material. The government challenges the suppression of GPS data, contending principally that (a) the GPS monitoring of Lambus was permissible because it was reasonably related to his parole officers' duties; (b) in light of Lambus's acknowledgements of his parole officers' authority to search his person and to attach a GPS tracker, evincing little expectation of privacy, the use of the tracker was not unreasonable under the Fourth Amendment; and (c) in any event, suppression should have been denied under the good-faith doctrine of Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

Finding merit in the government's contentions, we reverse both decisions, concluding that the district court erred in suppressing the wiretap evidence and the GPS data.

I. BACKGROUND

Lambus and Fuller are accused of being leaders and organizers of a group of individuals that referred to itself as the Paper Chasing Goons or POV City and was a drug trafficking organization (or the "DTO"). Beginning in 2015, Lambus and Fuller, along with 10 others, were indicted principally on charges of conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and/or possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841. The indictments followed investigations that dated back to mid-2012, after Lambus had been released from State prison, and that included controlled purchases of narcotics, physical and electronic surveillances of suspected sites of narcotics activity, subpoenas, pen registers, and several 2015 wiretaps on telephones associated with Lambus, Fuller, certain of the codefendants, and other suspected DTO members. The 10 codefendants have pleaded guilty to various charges; Lambus and Fuller remain to be tried.

In 2016, Lambus and Fuller moved to suppress all evidence obtained or resulting from five 2015 wiretap orders on the ground that the first wiretap application omitted certain material facts and contained misrepresentations of fact. In addition, Lambus moved to suppress all evidence obtained or resulting from the GPS tracking device attached to his ankle by his State parole officers from May 2013 to early July 2015, arguing that those officers impermissibly disclosed the resulting data to the federal government throughout its investigation leading to the present case.

The district court, as discussed in greater detail in Part I.B.1 below, granted defendants' motion to suppress evidence of statements intercepted pursuant to the first wiretap authorization, but not evidence obtained through the subsequent authorizations. As discussed in Parts I.B.2. and I.B.3. below, the court initially denied Lambus's motion to suppress GPS-related evidence; but it granted his motion for reconsideration and, upon reconsideration, granted the motion to suppress information obtained as a direct—but not as an indirect—result of the GPS device.

Two sets of evidentiary hearings were held with respect to the motions to suppress: the first in 2016 on the original motions, and the second in 2017 following Lambus's motion for reconsideration. The evidence at these hearings included the following, largely as described by the district court in its decisions, or as provided by a witness—Thomas Scanlon—whom the district court found "very credible" (Hearing Transcript, March 15, 2017 ("Mar. 15, 2017 Tr."), at 88; id . at 16 ("I consider you a highly credible witness")); see Lambus I , 221 F.Supp.3d at 337 ("The court finds Investigator Scanlon's testimony credible.").

A. Evidence at the Suppression Hearings

1. Lambus Becomes a Parolee

Prior to 2012, Lambus had been convicted of several New York State crimes, including criminal possession of a controlled substance in the 5th degree, see N.Y. Penal L. § 220.06 ; attempted criminal possession of a controlled substance in the 5th degree, see id ., and in the 3rd degree, see id . § 220.39; and attempted criminal possession of a weapon in the 2nd degree, see id . § 265.03. He had...