United States v. Lambus
| Decision Date | 04 May 2017 |
| Docket Number | 15-CR-382. |
| Parties | UNITED STATES of America v. Kamel LAMBUS, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Bridget M. Rohde, Acting United States Attorney, E.D.N.Y., By: Lauren Howard Elbert, Marcia Maria Henry, Michael P. Robotti, 271 Cadman Plaza East, Brooklyn, NY 11201, for United States
Angela D. Lipsman, Joseph R. Corozzo, Jr., Ronald Rubinstein, Rubinstein & Corozzo LLP, 260 Madison Avenue, 22nd Floor, New York, NY 10016, for Defendant
MEMORANDUM AND ORDER ON MOTION TO SUPPRESS
A. State Parole Supervision of Lambus...475
A. Motion to Suppress...488
C. Supreme Court Requirement of Judicial Approval for Tracking Devices...492
D. State Searches under Control of Federal Rules if Evidence is to be Used in Federal Prosecutions...493
A. Installation of Tracking Devices...494
B. Use of Tracking Device is a Separate Search...495
C. Rules on Obtaining Judicial Approval Known to Federal Officials...496
Absent exigent circumstances, federal investigative or other authorities must obtain a court order before installing or using a location tracking device to monitor the movements of any person or thing. State parole authorities assume they do not need such an order; they placed a device on a state parolee, Kamel Lambus, and kept it on for over two years under the pretext that it was being used to ensure compliance with a curfew. In fact, almost from the moment of installation, information from the device was exclusively relied upon by federal authorities working cooperatively with a state official to conduct a complex federal criminal investigation of a major heroin conspiracy that resulted in a federal indictment of defendant.
Upon recognizing that they were relying on this device to help track a large heroin distribution ring, federal officials should have 1) checked to see if court approval had been given, and, if not, 2) obtained approval from a federal district or magistrate judge. They did not do so. See infra Part II.C.4; Part IV.B.
The key to the instant case was stated by Judge Friendly forty-five years ago in United States v. Birrell , 470 F.2d 113 (2d Cir. 1972). Paraphrasing Judge Friendly's opinion in Birrell : Id. at 117.
Defendant Kamel Lambus, who wore the tracking device, has not been charged with a parole violation by the state. He has been indicted by a federal grand jury as a drug conspirator based in part on evidence obtained from that device. He moves to suppress evidence obtained from the device. His motion is granted in part. Information obtained as a direct—but not indirect—result of use of the device is suppressed. Evidence which may indirectly have been obtained from the device, that is to say, evidence that was obtained with the aid of the device that would have been obtained independently by visual surveillance or otherwise, is not now suppressed.
Suppression is not to be used for punitive purposes; it should be limited to necessary instruction to law enforcement forces and necessary protection of the privacy of those being prosecuted. See Herring v. United States , 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ().
Following this court's original decision granting a motion to reconsider its denial of Lambus's motion to suppress location data, an extensive evidentiary hearing was held. See infra Part VI, Procedural History. It provided extensive new information about the placement and use of the device on defendant's ankle and the nature of the relationship between state and federal authorities in obtaining evidence. The court concludes that within one month of placement of the tracking device on defendant's ankle, the federal authorities, working closely with state authorities, directed use of the device to provide evidence for the prospective federal criminal case, and not for any state parole supervision or violation charge. See infra Appendix A: Acronyms and Defined Terms ("Appendix A"); Appendix B: Personnel, Agencies and Documents ("Appendix B"); and Appendix C: Chronology of Relevant Events on the Use of the Tracking Device Placed on Defendant Kamel Lambus ("Appendix C").
A. State Parole Supervision of Lambus
Kamel Lambus was discharged from prison and became a parolee under the supervision of the New York Department of Corrections and Community Supervision ("DOCCS") on March 7, 2012. Included in the terms of his parole, which was to last for about three years and five months, was an agreement by Lambus to "permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment" and to "fully comply with the instructions of [his] Parole Officer and obey such special additional written conditions as he or she, a Member of the Board of Parole or an authorized representative of the Division of Parole, may impose." Gov't Exh. 1.
Suspecting Lambus of attempting to introduce narcotics into a state prison, a member of the DOCCS Bureau of Special Services ("BSS"), Officer Thomas Scanlon, began investigating Lambus shortly after his release from prison. BSS is a specialized division within DOCCS that investigates parolees who may be committing parole violations; the officers traditionally thought of as "parole officers" are members of DOCCS supervisory bureaus. See Apr. 10, 2017 Hr'g Tr. at 65:24–66:5; Dec. 1, 2016 Hr'g Tr. at 57:11–59:18; see also infra Appendix A; Appendix B. This initial investigation quickly led to cooperation between New York State and federal authorities regarding the defendant. In July 2012, New York's BSS reviewed mail Lambus sent to a prison and pictures gathered from social media sites that appeared to depict Lambus holding large sums of money while other men displayed gang signs. 3500–TS–9; Gov't Exh. 3.
BSS passed along this material to the federal Drug Enforcement Administration ("DEA"), which began its own investigation of Lambus. 3500–CB–8. Nothing incriminating of Lambus was revealed by this preliminary investigation. Id. But state BSS Officer Scanlon continued to monitor Lambus for suspicious activities. Id. ; see infra Appendix C.
On April 5, 2013, state Officer Scanlon wrote to officers of the New York DOCCS Queens III Supervisory Bureau—which was then responsible for supervising Lambus's parole—providing an "interim update regarding the investigation being conducted on Lambus for possible violations of the conditions of his parole." 3500–CB–8. Scanlon noted that "[BSS] was made aware of [the letter Lambus sent to the prison] on 7/3/12 [and] ... [BSS] determined from the DEA that they were not [pursuing] the matter further since their (DEA & NYSDOCCS [Inspector General] ) [investigation] failed to reveal drugs being distributed into targeted DOCCS facilities by Lambus at that time." Id. Scanlon expressed concern over the criminal history of Lambus's employer, and stated that "[BSS] continues to investigate/develop leads as to Lambus' activities." Id. He believed Lambus " Id. (emphasis added). Scanlon said that BSS will "assist your staff with a search of Lambus' residence, and appropriate follow-up, in a cooperative effort to attempt to determine if Lambus is in compliance with the terms of his release agreement." Id. The same day he sent the email, BSS Officer Scanlon requested that Lambus's parole officers in the supervisory bureau conduct curfew visits and search his residence for contraband. Gov't Exh. 11 at 4–5.
The supervisory bureau followed up on BSS's requests. Senior Parole Officer Candace Benjamin made a home visit to Lambus on April 9, where she found "marijuana roaches" in two ashtrays in Lambus's living room. Gov't Exh. 10 at 36. Lambus claimed they did not belong to him. Id. About a week later, the Lambus parole was transferred from the Queens III Supervisory Bureau to the Queens II Supervisory Bureau. His primary parole officer there was Trudy Kovics. Id. at 35. Following an anonymous tip on May 2, Queens II Supervisory Bureau Chief/Area Supervisor Mark Parker instructed his parole officers to conduct a curfew visit. Gov't Exh. 11 at 6–7. On May 5, as per the instructions of her Area Supervisor, Officer Kovics conducted a curfew visit. Lambus was not home. Gov't Exh. 10...
To continue reading
Request your trial
-
United States v. Lambus
...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 findi......
-
Mackey v. Hanson
...Mr. Mackey relies on the decision of the United States District Court for the Eastern District of New York in United States v. Lambus, 251 F. Supp.3d 470 (E.D.N.Y. 2017), the Court notes the district court's decision to suppress GPS data from a parolee's ankle monitor was reversed on appeal......
-
United States v. Brennan
...that the Second Circuit appears to have applied Rule 37 in the context of an interlocutory appeal. See United States v. Lambus , 251 F. Supp. 3d 470, 501 (E.D.N.Y. 2017), rev'd on unrelated grounds , 897 F.3d 368 (2d Cir. 2018) (explaining that the district court had previously issued an or......