United States v. Regan
| Docket Number | 21-CR-135 JLS |
| Decision Date | 05 April 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL REGAN, Defendant. |
| Court | U.S. District Court — Western District of New York |
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. John L Sinatra, Jr., in accordance with 28 U.S.C. § 636(b)(1) for all pretrial matters and to hear and report upon dispositive motions.
The defendant, Michael Regan (Athe defendant@), is charged in a multicount indictment with having violated Title 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B), 2282A(b)(2)(and 2422(b) along with a forfeiture allegation. Dkt. #18.
The defendant, by way of counsel, originally filed a motion “to suppress pursuant to Federal Rules of Criminal Procedure 4(c)(3)(A) and the Fifth Amendment” wherein he seeks suppression of “all statements and physical evidence subsequently seized” because the defendant “was not provided with a copy of any warrant, nor given the details of the arrest that Rule 4 requires.” Dkt. #69, pp. 2-3. The defendant also filed a “motion to dismiss count 2 [of the indictment] as legally insufficient,” as well as a “motion to sever counts 2 and 5 [of the indictment]” and a “motion to suppress identification” that was “unduly suggestive and unreliable” thereby requiring preclusion of an “in court identification of the defendant.” Dkt. #69, pp. 11-21.
The government filed its response to these motions wherein it advocated that each motion be denied. Dkt. #72.
Oral argument on the defendant's motions was heard by this Court on March 1, 2023. Since this Court found that the defendant had not submitted a proper affidavit in support of his motion to suppress the use of his statements made to law enforcement officers and suppression of “physical evidence subsequently seized,” the defendant was given additional time within which to file a proper affidavit in support of his motion to suppress the use of evidence against him and to file a supplemental motion addressing an error in his motion for severance of certain counts in the indictment. These additional filings were made on March 10, 2023 (Dkt. #74, 75) and the government's opposition to same was filed on March 17, 2023 (Dkt. #76). The matter was then taken under advisement by this Court.
FACTS[1]
On December 3, 2020, this Court issued a Criminal Complaint against the defendant and a warrant for his arrest based on that Complaint and the affidavit submitted in support of the Complaint wherein he was charged with having violated Title 18 U.S.C. §§ 2251(a) and 2422(b). Dkt. #1.
On December 4, 2020, FBI agents executed the arrest warrant by arresting the defendant at his residence and also executed search warrants authorizing the search of the person of the defendant and the search of a gray 2020 Jeep automobile which was registered to the wife of the defendant and the residence of the defendant. 20-MJ180, 20-MJ-181, 20-MJ-182. At the time of his arrest, the defendant was employed as a New York State Corrections Officer. After having placed the defendant under arrest, a law enforcement officer gave Miranda warnings and advice of rights to the defendant which he acknowledged he understood. . Subsequent to receiving the Miranda warnings and advice of rights, the defendant waived his right to remain silent and to have a lawyer present while he answered questions made to him by law enforcement officers. (Exhibit C, Dkt. #69). The defendant further evidenced his waiver of rights in a written statement which he gave to Special Agent Garver and Task Force Officer Hockwater. In this written statement, the defendant made certain inculpatory admissions. (Exhibit C, Dkt. #69).
The execution of the search warrants on December 4, 2020 resulted in the seizure of a cell phone belonging to the defendant which allegedly contained child pornography materials.
On December 3, 2020, prior to the arrest of the defendant and the execution of the aforesaid search warrants, law enforcement personnel interviewed an individual who is described as “Minor Victim 2.” This person provided a detailed physical description of the defendant and her extensive association with the defendant. In addition, Minor Victim 2 provided a description of the vehicle in which alleged sexual activity took place between her and the defendant. After doing so, Minor Victim 2 was shown a photograph of the Jeep motor vehicle registered to the defendant's wife which Minor Victim 2 identified as being the vehicle that she and the defendant used for engaging in sexual activities.
The defendant admits that a search warrant authorizing the search of his residence on December 4, 2020 was utilized by law enforcement in carrying out the search of his residence. Dkt. #69, p. 2. However, he claims that he “was never shown any search or arrest warrant, nor were the charges described to him.” Dkt. #69, p.2. As a result, he asserts that the requirements of Fed. R. Crim. P. 4(c)(3)(A) were not complied with thereby requiring the suppression of the use of evidence obtained by the prosecution on December 4, 2020. Dkt. #69, p. 3. It is noted that the defendant is not claiming that his rights under the Fourth Amendment were violated by law enforcement officers on December 4, 2020. Instead, he seeks to have the exclusionary rule applied to the evidence obtained by law enforcement personnel on December 4, 2020 because of their failure to comply with the requirements of Rule 4(c)(3)(A) of the Fed. R. Crim. P.
Rule 4(c)(3)(A) states:
A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the original or a duplicate original warrant to the defendant as soon as possible.
In support of his position, the defendant cites Bryson v. United States, 419 F.2d 695 (D.C. Cir. 1969). Dkt. #69, pp. 4-5. However, the per curiam decision of the court in Bryson establishes the contrary of defendant's position wherein the court stated: “Absent the need for a broad exclusionary rule to enforce Rule 4(c)(3) - a question we leave open for a case which properly presents it - we can find no reason to reverse.” Id. at 701-702. In his concurring opinion, Judge Berger expressly stated: “I concur in the majority's opinion which affirms without remand because, as the majority implicitly recognizes, a violation of Rule 4(c)(3) does not require that the fruits of an incidental search be suppressed.” Id. at 702.
As the United States Supreme Court has held, “the [exclusionary] rule's sole purpose . . . is to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-237 (2011). “No court has held that a violation of Rule 4(c)(3)(A) warrants the application of the exclusionary rule.” United States v. Rodriguez-Arvizu, 2022 W.L. 1164880 *3 ; United States v. Chung, 2016 WL 11432472 *8 (N.D.Ga. Sept. 12, 2016).
Since the search of the defendant's person and his residence were conducted pursuant to search warrants, this Court is not aware of any claim by the defendant that his rights under the Fourth Amendment to the Constitution were violated. Therefore, any evidence seized from his person or his residence is not subject to suppression based on his claim that the agents failed to comply with the requirements of Rule 4(c)(3)(A) of the Fed. R. Crim. P.
Although the defendant states that he “was purportedly Mirandized a moment following his arrest on December 4, 2020” and that “he then provided a two-page handwritten inculpatory statement” and made “numerous more incriminating statements,” he argues that “all statements” made by him “should be suppressed” because he “was not provided with a copy of any warrant, nor given the details of the arrest that Rule 4 requires." Dkt. #69, pp. 2-3. This argument is rejected as being totally without merit. As previously stated, the exclusionary rule does not apply to alleged violations of Rule 4(c)(3)(A) of the Fed. R. Crim. P. The records in this case clearly establish that the defendant was given Miranda warnings and advice of rights “a moment after his arrest” even though he claims it was “purportedly” done. Dkt. #69, p. 2. The defendant signed a waiver of his rights after having received the Miranda warnings and advice of rights. (See Exhibit C attached to Dkt. #69). The defendant also acknowledged that the agents had identified themselves to him and that S.A. Garver “advised [him] of [his] Miranda rights which [he] also read and understood” since he was “a corrections officer and understood what Miranda rights are” and that he was giving this written statement of “[his] own free will.” (See Exhibit C attached to Dkt. #69). It is pointed out that the defendant had been a New York State corrections officer since 2007.
Even if it were assumed, for purposes of argument, that the defendant was not “given the details of [his] arrest,” that nevertheless is no legal reason to invalidate his waiver of rights after having been given Miranda warnings and advice of rights. The United States Supreme Court “has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is ‘trickery' sufficient to invalidate a suspect's waiver of Miranda rights.” Once Miranda warnings are given, it is difficult to see how official silence would cause a suspect to misunderstand the nature of...
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