United States v. Lucas

• Decision Date: 13 May 2019
• Docket Number: 1:17-CR-00129EAW
• Citation: 379 F.Supp.3d 182
• Parties: UNITED STATES of America, v. Richard LUCAS, Defendant.
• Court: U.S. District Court — Western District of New York

379 F.Supp.3d 182

UNITED STATES of America,

v.Richard LUCAS, Defendant.

1:17-CR-00129EAW

United States District Court, W.D. New York.

Signed May 13, 2019

Timothy C. Lynch, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Buffalo, NY, Robert Charles Singer, Singer Legal PLLC, Williamsville, NY, for Richard Lucas.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Defendant Richard Lucas ("Defendant") stands accused by way of a one-count Indictment returned on July 11, 2017, with conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846. (Dkt. 18). Defendant was initially charged with co-defendant Dominic Daniels, but Mr. Daniels pleaded guilty on July 19, 2018. (Dkt. 91). Defendant's trial is scheduled to commence on May 14, 2019.

A suppression hearing was held in this matter on May 7, 2018, and continued on July 13, 2018. (Dkt. 68; Dkt. 94). The Court ultimately denied Defendant's motion to suppress in its entirety. (Dkt. 127; Dkt. 144).

Currently pending before the Court is Defendant's motion to reopen the suppression hearing and conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), related to "the search warrant issued for a storage locker located at 1275 Sheridan Drive, Life Storage, Unit 632, Tonawanda, New York ["Unit #632"]." (Dkt. 154 at 1). For the reasons set forth below, the Court denies Defendant's request for a Franks hearing and finds that suppression of the items recovered from the search of Unit #632 is not warranted.

BACKGROUND

The background of this matter is set forth in detail in the Court's Decision and Order entered October 5, 2018 (Dkt. 127) (the "October 5th Decision and Order"), familiarity with which is assumed for purposes of this Decision and Order. The Court will summarize the relevant factual and procedural background as necessary.

A search warrant authorizing the search of Unit #632 was signed by Erie County Court Judge Kenneth F. Case on or about May 17, 2017. (Dkt. 35-2 at 9). Two days earlier (the date of Defendant's arrest), Judge Case signed a search warrant authorizing a search of Room #113 at the Comfort Inn and Suites Buffalo Airport Hotel (hereinafter referred to as "the Comfort Suites"). (Dkt. 44-1 at 5-6).

Judge Case's notes for the search warrant issued for Room #113 reference Dominic Daniels meeting with Defendant, described as a "known cocaine dealer," in Room #113 at the Comfort Suites and purchasing a large quantity of cocaine. (Def. Ex. 11 A¹ ). The notes further reference Mr. Daniels' arrest with a ½ kilogram of cocaine, Defendant's possession of the key to Room #113 at the time of his arrest, and, the Erie County Sheriff's Department ("ECSD") having confirmed with the hotel that Defendant had rented Room #113. (Id. ). The notes also reference Defendant's arrest after fleeing from law enforcement at the Comfort Suites. (Id. ).

On May 17, 2017, Detective Timothy Donovan of the ECSD swore out an affidavit in support of the warrant to search the storage locker. (Govt. Ex.² 28). In that affidavit, Detective Donovan stated that Defendant had a rental agreement for Unit #632, and at the time of his arrest two days earlier, Defendant had in his possession two storage keys. Detective Donovan also stated that on May 17, 2017, "Apollo," an ECSD narcotics dog, positively indicated on Unit #632. A separate affidavit signed by Apollo's handler, Deputy Robert Galbraith of the ECSD, confirmed the positive indication for a narcotic odor on Unit #632 and set forth Apollo's training and certifications. (Govt. Ex. 45). In addition, Judge Case's notes generated in connection with the search warrant for the storage locker stated, in addition to the foregoing, that the keys possessed by Defendant at the time of his arrest fit into the lock on Unit #632, Defendant had a significant history of cocaine dealing, and that the prior affidavits were relevant and incorporated into the warrant application for the storage unit. (Dkt. 124).

On December 5, 2017, Defendant filed an omnibus pretrial motion seeking several forms of relief, including suppression of the storage locker evidence. (Dkt. 35-1 at 13). On October 5, 2018, the Court denied Defendant's suppression motion as to the evidence recovered from Unit #632. (Dkt. 127 at 43-45 (rejecting Defendant's arguments that storage locker evidence should be suppressed on grounds that underlying arrest and seizure was unlawful, and that dog sniff in curtilage of locker violated Defendant's Fourth Amendment rights)).

On November 6, 2018, one day before Defendant's trial was originally scheduled to begin, Defendant filed the instant motion. (Dkt. 154). Defendant argued that newly discovered evidence indicates that the day prior to the issuance of the search warrant for Unit # 632, a different narcotics dog did not alert on it, and that this newly discovered evidence requires a hearing pursuant to Franks . (Dkt. 154 at 3). Because of the then-pending trial, the Government filed its opposition to Defendant's motion the same day. (Dkt. 158). For reasons unrelated to the instant motion, Defendant's trial was subsequently adjourned to May 14, 2019. (Dkt. 161; Dkt. 168; Dkt. 189).

On May 7, 2019, the Court held an evidentiary hearing. (Dkt. 203). The Government presented testimony from Brian Krull, area manager of operations for Life Storage, Deputy Galbraith, Detective Donovan, and Detective Timothy Carney of the ECSD. (Id. ). Defendant presented testimony from Shrell Sheppard, the mother of one of his children. (Id. ). The Court heard oral argument of Defendant's motion on May 9, 2019. (Dkt. 206). Defendant also filed a letter in advance of the oral argument outlining relevant case law and some of his arguments. (Dkt. 205). At the time of oral argument, the Court reserved decision.

DISCUSSION

Defendant argues that the new information about the dog sniff (namely, that a day prior to the search warrant for Unit #632 being issued a different dog did not alert on it) requires the Court to hold a Franks hearing and ultimately to suppress the evidence recovered from Unit #632. The Court disagrees, for the reasons discussed below.

I. Legal Standard

"[I]t is within a district court's discretion to reopen a suppression hearing." United States v. Tisdol, 450 F.Supp.2d 191, 194 (D. Conn. 2006) ; see also United States v. Bayless , 201 F.3d 116, 131 (2d Cir. 2000) ("We conclude that the abuse of discretion standard accurately reflects the degree of deference properly accorded a district court's decisions regarding evidentiary matters and the general conduct of trials[.]"). "[I]t has long been the law in this Circuit that, in order to reopen a suppression hearing on the basis of new evidence, the moving party ... must show that the evidence was unknown to the party, and could not through due diligence reasonably have been discovered by the party, at the time of the original hearing." United States v. Leaver, 358 F.Supp.2d 273, 279 & n.30 (S.D.N.Y. 2005). "[T]he standard for reopening a suppression hearing based on new evidence is as stringent as the standard for reconsideration." United States v. Almonte, No. 14 CR. 86 KPF, 2014 WL 3702598, at *3 (S.D.N.Y. July 24, 2014) ; see also United States v. Oliver, 626 F.2d 254, 260 (2d Cir. 1980) (upholding refusal to reopen a suppression hearing because, among other things, defendant failed to offer "new evidence of material significance"). When the proffered new evidence "do[es] not bear on the core findings of the suppression hearing," a court does not abuse its discretion in declining to reopen the hearing. United States v. Oquendo, 192 F. App'x 77, 81 (2d Cir. 2006) ; see also United States v. Pena Ontiveros, No. 07 Cr. 804(RJS), 2008 WL 2446824, at *4 (S.D.N.Y. June 16, 2008) (holding that "reopening the suppression hearing would be futile" because the new evidence "would not change the Court's previous decision").

With respect to Defendant's request for a Franks hearing, "[a] defendant is permitted to challenge the veracity of a search warrant in limited circumstances. One such circumstance is where the affidavit in support of the search warrant is alleged to contain deliberately or recklessly false or misleading information." United States v. Canfield, 212 F.3d 713, 717 (2d Cir. 2000) (citing Franks, 438 U.S. at 164-72, 98 S.Ct. 2674 ). Under Franks, to justify a full hearing regarding a search warrant's validity, a defendant must make "a substantial preliminary showing that (1) the affidavit contained false statements made knowingly or intentionally, or with reckless disregard for the truth; and (2) the challenged statements or omissions were necessary to the Magistrate's probable cause finding." United States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987) (quotation omitted). "In considering whether an affidavit contains misrepresentations or omissions, the reviewing court should also supplement the affidavit with any facts that were not in the affidavit but that were proven at the suppression hearing." United States v. Liburd, No. 17-CR-296 (PKC), 2018 WL 2709199, at *3 (E.D.N.Y. June 5, 2018) (quotation omitted). Moreover, even where a search-warrant affidavit contains false or misleading information, "a Franks hearing is required only if, ‘with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause.’ " United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (quoting Franks, 438 U.S. at 156, 98 S.Ct. 2674 ).

II. Standing to Challenge Search Warrant

As a threshold matter, the Government argues that Defendant lacks standing to challenge the search warrant because he did not have a cognizable privacy interest in Unit #632. In support of this argument, the Government presented evidence that Defendant entered into...