United States v. Swinton

• Decision Date: 24 April 2017
• Docket Number: 6:15-CR-06055-EAW.
• Citation: 251 F.Supp.3d 544
• Parties: UNITED STATES of America, v. Robert L. SWINTON, Defendant.
• Court: U.S. District Court — Western District of New York

251 F.Supp.3d 544

UNITED STATES of America,

v.Robert L. SWINTON, Defendant.

6:15-CR-06055-EAW.

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

Signed April 24, 2017

Jennifer M. Noto, U.S. Attorney's Office, Rochester, NY, for United States of America.

Donald M. Thompson, Rochester, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Defendant Robert L. Swinton, Jr. ("Defendant"), appearing pro se with standby counsel, stands accused by way of a five-count Indictment, returned April 21, 2015, as follows:

Count 1: Conspiracy to manufacture and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 ;

Count 2: Possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 ;

Count 3: Use of premises to manufacture, distribute, and use controlled substances, in violation of 21 U.S.C. § 856(a)(1), and 18 U.S.C. § 2 ;

Count 4: Possession of firearms in furtherance of drug trafficking crimes (the offenses charged in Counts 1 through 3), in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; and

Count 5: Possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ;

(Dkt. 53). The Court referred all pre-trial matters to Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Dkt. 54).

Defendant has filed both counseled and pro se objections to the Magistrate Judge's two Reports and Recommendations (Dkt. 78; Dkt. 94) ("R & Rs") that recommended denial of Defendant's various suppression motions. (Dkt. 59). After a de novo review, including a careful review of the submissions of the parties, the Court accepts and adopts the proposed findings and conclusions set forth in the R & Rs, for the reasons set forth therein. However, with respect to Defendant's motion to suppress the evidence obtained from Defendant's cellular telephone, while the Court agrees with the Magistrate Judge's recommendation to deny Defendant's motion to suppress that evidence, this Court believes that, in addition to the reasoning that the search fell within the good faith exception set forth in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the plain language of the warrant authorized the search of the cellular telephone text messages and related content.

PROCEDURAL HISTORY

On July 6, 2015, Defendant, through counsel, filed a pretrial motion seeking various forms of relief. (Dkt. 59). Among other requests, Defendant sought a Franks hearing and moved to suppress tangible evidence (including the cellular telephone content), statements he made during and subsequent to the execution of a search warrant on October 16, 2012, and recorded telephone calls he made from the Monroe County Jail. (Id. ). On August 3, 2015, the Government filed a response in opposition. (Dkt. 61). After additional filings by both parties (Dkt. 63; Dkt. 67; Dkt. 70), and appearances before Judge Payson (Dkt. 62; Dkt. 65; Dkt. 66; Dkt. 68), Judge Payson conducted an evidentiary hearing on December 1, 2015, at which Rochester Police Sergeant Edward McDonald testified about Defendant's statements made during the execution of a search warrant at 562 Maple Street, and Rochester Police Investigator Myron Moses testified about Defendant's statements made several hours later at the Public Safety Building. (Dkt. 71; Dkt. 72). The parties filed post-hearing submissions before Judge Payson. (Dkt. 75; Dkt. 76; Dkt. 77).

On February 10, 2016, Judge Payson issued a Report and Recommendation recommending that the Court deny Defendant's request for a Franks hearing and deny his motions to suppress tangible evidence, statements made during and subsequent to the execution of the search warrant, and recorded telephone calls he made from the Monroe County Jail ("February 2016 R & R"). (Dkt. 78 at 30). However, Judge Payson reserved decision on Defendant's motion to suppress certain evidence seized from the cellular telephone pending an evidentiary hearing. (Id. ).

An evidentiary hearing was conducted before Judge Payson on April 4, 2016, at which Commander Joseph Morabito, who was employed by the Rochester Police Department and extracted the text messages from Defendant's cellular telephone, testified about, inter alia , the basis for his belief that the search warrant authorized the extraction. (Dkt. 83; Dkt. 84). The parties later submitted post-hearing memoranda of law. (Dkt. 90; Dkt. 91).

On October 21, 2016, Judge Payson issued a second Report and Recommendation recommending that the Court deny Defendant's motion to suppress evidence seized from the cellular telephone ("October 2016 R & R"), reasoning that the good faith exception applied even if the warrant's plain language did not authorize the search. (Dkt. 94).

On December 12, 2016, Defendant, through counsel, filed consolidated objections to the R & Rs. (Dkt. 101). On February 17, 2017, the Government filed a response to Defendant's consolidated objections. (Dkt. 107).

On or about March 3, 2017, this Court received documentation from Defendant requesting, among other things, to proceed pro se. On March 10, 2017, after conducting a colloquy with Defendant, the Court granted Defendant's request to proceed pro se. (Dkt. 115). On that same date, the Court arranged for the Clerk's Office to file the various written submissions received from Defendant, including the supplemental pro se objections to the R & Rs (Dkt. 112), an "Affidavit of Truth" (Dkt. 113), and an "Affidavit of Due Process Violations" (Dkt. 114). Defendant requested that the Court consider these additional submissions, and the Court permitted the Government an opportunity to respond. (Dkt. 116; Dkt. 117). On March 23, 2017, the Government filed a response to the additional pro se submissions. (Dkt. 118).

DISCUSSION

A district court reviews any specific objections to a report and recommendation under a de novo standard. Fed. R. Crim. P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). To trigger the de novo review standard, objections to a report "must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines , 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). Following review of the report and recommendation, the district judge "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).

Further, "[t]he Second Circuit has instructed that where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings." United States v. Lawson, 961 F.Supp.2d 496, 499 (W.D.N.Y. 2013) (citing Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) ("[A] district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge." (quoting Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999) ))); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) ("Had the district court rejected the magistrate's conclusions regarding the credibility of the central witnesses without hearing live testimony from those witnesses, troubling questions of constitutional due process would have been raised."); see also United States v. Raddatz, 447 U.S. 667, 675–76, 100 S.Ct. 2406, 65 L.Ed.2d 424, (1980) (district court is not required to rehear witness testimony when accepting a magistrate judge's credibility findings).

The Court incorporates the recitation of the facts as provided in the R & Rs, and will recount them here only as necessary to explain the Court's ruling. After a de novo review, the Court agrees with all of the conclusions set forth in the R & Rs: Defendant's motion to suppress the statements made on October 16, 2012, should be denied; Defendant's motion to suppress the recorded telephone calls from Monroe County Jail should be denied; Defendant's request for a Franks hearing should be denied; and Defendant's motion to suppress tangible evidence, including the evidence seized from the cellular telephone, should be denied. However, with respect to Defendant's motion to suppress the cellular telephone evidence, in addition to the October 2016 R & R's conclusion that the motion should be denied because of the good faith exception, this Court concludes that the search of the text messages and related content was authorized by the plain language of the warrant. Thus, based upon a de novo review, Defendant's motions are denied for the reasons set forth in the February 2016 R & R and the October 2016 R & R, but as discussed further below, this Court also concludes that the plain language of the warrant authorized the cellular telephone search.

I. Motion to Suppress Cellular Telephone Evidence

Defendant, through counsel, objects to the Magistrate Judge's recommendation to deny his motion to suppress evidence seized from his cellular telephone. (Dkt. 101 at 2–7). In his motion papers, Defendant argued that the search warrant did not authorize the search and seizure of the contents of the cellular telephone. (Id. ).

The warrant at issue authorized a search of the apartment at 562 Maple Street for the following items:

Any evidence that tends to demonstrate that a drug related offense was committed or that a particular person participated in the commission of such offense, written records, books and computer records tending to show sale and trafficking of Cocaine and money showing profits from the sale of Cocaine, safe deposit box records and keys, records, ledgers, notes or other writings reflecting deposit, withdrawal, investment, custody or location of money, real property, personal property or

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