United States v. Melvin
| Docket Number | 20-CR-61-A |
| Decision Date | 04 October 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JACOB MELVIN, Defendant. |
| Court | U.S. District Court — Western District of New York |
Defendant Jacob Melvin, the only defendant remaining in this multi-defendant case, is charged in all counts of an eight-count Indictment (Dkt. No. 1) with Hobbs Act conspiracy (Counts 1 and 4); Hobbs Act robbery (Counts 2 and 5); using possessing, and brandishing a firearm (Counts 3 and 6); felon in possession of a firearm and ammunition (Count 7); and possession of a firearm with an obliterated serial number (Count 8).
The case was assigned to this Court, and the Court referred the case to Magistrate Judge Jeremiah J. McCarthy pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. On March 13, 2023, following a two-day evidentiary hearing,[1]Magistrate Judge McCarthy issued a Report and Recommendation (“R&R”) (Dkt. No. 230) recommending that this Court deny Defendant's motions to suppress (Dkt. No. 56) evidence obtained from a warrantless search of 36 Hoffman Place (lower rear apartment), Buffalo, New York on February 19, 2019, and a subsequent show-up identification of Defendant on that same date. Counts 1, 2, and 3 of the Indictment arise from the February 19, 2019 armed robbery of food and U.S. currency from a victim delivery person employed by Niagara Deli & Pizzeria that prompted the warrantless search. Counts 7 and 8 relate to a firearm recovered on May 19, 2019 that, according to the Government, resembled the firearm used in the February 19, 2019 robbery and the second charged armed robbery, and had Defendant's DNA on it.
Defendant filed objections to the R&R (Dkt. No. 231) on March 24, 2023. The Government filed a response in opposition (Dkt. No. 233), and Defendant filed reply papers (Dkt. No. 234). The Court held oral argument on May 17, 2023, at which time the matter was considered submitted; thereafter, the Court indicated that it required additional time to conduct further research in its evaluation of Defendant's objections.
As explained herein, Defendant's objections to the R&R are granted, Judge McCarthy's R&R is adopted in part and rejected in part, and the case is recommitted to Judge McCarthy for a ruling on the merits of Defendant's motion to suppress.
A magistrate judge may review a dispositive matter, such as a motion to suppress, for “proposed findings of fact and recommendations for disposition” of the motion. 28 U.S.C. § 636(b)(1)(B); see 28 U.S.C. § 636(b)(1)(A). Any party objections made thereto trigger a de novo review by the district court, which “may accept, reject, or modify, in whole or in part the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
The Court assumes the parties' familiarity with the prior proceedings and the issues that are under review.
As the parties are well aware, Judge McCarthy's R&R recommends denying the motion to suppress on the threshold issue of standing, only, which is the sole issue addressed herein.[2]
To challenge the law enforcement officers' search of the apartment at 36 Hoffman Place based upon a Fourth Amendment violation, Defendant bears the burden of establishing his standing to bring such a motion. See United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991). In other words, Defendant must show the allegedly illegal conduct infringed upon his personal constitutional rights. See United States v. Padilla, 508 U.S. 77, 81 (1993); Rakas v. Illinois, 439 U.S. 128, 131 n.1, 134 (1978). “This inquiry involves two distinct [but related] questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable.” United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008). It is the second prong of this inquiry that Judge McCarthy zeroed in on.
Along with his suppression motion (Dkt. No. 56), Defendant filed an affidavit of standing (Dkt. No. 57) asserting that at the time of his arrest on February 19, 2019, he was on New York State parole, and he had been released to the 36 Hoffman Place apartment where he had resided for four months at the time of the search. He also asserted he was responsible for paying rent and utilities; he had keys to the apartment and when he was present there, he controlled who had access; and he received mail at the apartment and stored his belongings there. According to Defendant, he had just returned home when Buffalo Police Department (“BPD”) officers entered the premises and searched it, absent anyone's consent.
After hearing oral argument, Judge McCarthy ordered an evidentiary hearing on Defendant's motion to suppress the February 19, 2019 identification of Defendant and the warrantless search of the 36 Hoffman Place apartment, “including whether [D]efendant had an objectively reasonable expectation of privacy in the premises[.]” Dkt. No. 66 (text order [emphasis added]); see Dkt. No. 118 (hearing tr.), pp. 4-5.
Following the hearing and in his R&R, Judge McCarthy credited the hearing testimony of Defendant's supervising parole officer, Scott Rogacki, “over the untested assertions of [Defendant]'s affidavit.” Rogacki testified that Defendant did not have permission to reside with his girlfriend at 36 Hoffman Place until February 28, 2019, over a week after the February 19, 2019 search (see Dkt. No. 118, pp. 1415). Parole records corroborated this testimony (see Dkt. No. 226-3 [Gov't Ex. 3], p. 2), as did testimony by BPD Lieutenant William Moretti concerning a videotaped, post-arrest interview of Defendant in which Defendant stated he resided at 79 Schuele Avenue (see Dkt. No. 218 [hearing tr.], p. 70). Rogacki also testified that pursuant to Defendant's conditions of parole, he had to be at his approved residence of 79 Schuele Avenue during the hours of 9:00 p.m. to 8:00 a.m., including on February 19, 2019 (see Dkt. No. 118, pp. 11-13, 15; see also Dkt. No. 226-4 [Gov't Ex. 4], p. 2 [Certificate of Release to Parole Supervision, noting one of Defendant's special conditions of release was “I will abide by a curfew established by the PAROLE OFFICER.”]). The search of the apartment at 36 Hoffman Place commenced at approximately 11:40 p.m., when Defendant would have been expected-because it was within the hours of curfew-to be at 79 Schuele Avenue.
In sum, Judge McCarthy found that 36 Hoffman Place was not Defendant's residence at the time of the search (or at the very least, not his approved residence), and contrary to Defendant's representations in his affidavit, it was not the address parole released him to.
The Certificate of Release to Parole Supervision also set forth the following standard condition of release to New York State parole:
4. I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property. I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible.
Dkt. No. 226-4 (Gov't Ex. 4), p. 1 (emphasis added). Defendant signed the parole supervision form acknowledging he had read and understood the conditions of his release, including this search condition. Id.; see Dkt. No. 118, pp. 8-11.
Judge McCarthy further found that even if Defendant was an overnight guest at 36 Hoffman Place on February 19, 2019, as Defendant claimed in the alternative, his “expectation of privacy was far from that of a conventional overnight guest” due to his parole status and being subject to curfew and search conditions he had consented to. Judge McCarthy reasoned that “[u]nder these circumstances” Defendant failed to meet his burden of showing he had an objectively reasonable expectation of privacy in 36 Hoffman Place at the time of the search so as to challenge it. In making this recommendation, he cited two out-of-Circuit cases, which are discussed further below, and quoted the Supreme Court proposition that “parolees . . . have severely diminished expectations of privacy by virtue of their status alone.” Samson v. California, 547 U.S. 843, 852 (2006).
To start, the Court adopts Judge McCarthy's recommendation, based on his credibility determinations, finding that Defendant resided at 79 Schuele Avenue and not 36 Hoffman Place when the search took place-and that Defendant did not have permission from Rogacki to stay overnight at 36 Hoffman Place on that date. See United States v. Quintana, 12-CR-214S, 2018 WL 718565, 2018 U.S. Dist. LEXIS 19420, *3 (W.D.N.Y. Feb. 6, 2018) (). Defendant concedes as much in his objections; he was at the apartment outside the hours of his established curfew, and it was not an “approved overnight residence.”
The closer and more complicated question is whether Defendant's diminished expectation of privacy due to his parole status rendered any expectation of privacy he had in the 36 Hoffman Place apartment objectively unreasonable, meaning he has no standing under this set of circumstances.
Defendant does not contest, nor could he, that as a parolee his expectation of privacy was “severely diminished.” Samson, 547 U.S. at 852. Rather, Defendant argues that his parole status...
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