On July 25, 2018, in United States v. Lambus, No. 16-4296 (Kearse, Livingston, Jeffrey Meyer, D.J.), the Second Circuit issued a lengthy decision analyzing two questions related to the suppression of GPS data from an ankle bracelet and evidence obtained from a wiretap. The GPS question raises interesting issues about when a federal prosecution can make use of evidence obtained in connection with state parole supervision without a federal warrant and the relevance of state-federal coordination when making that assessment. And the wiretap issue addresses whether an undisputed, but inadvertent, error in a wiretap application should result in the suppression of evidence. On both issues, the district court (Weinstein, J.) granted the defendants’ motions to suppress, but the Circuit reversed.
The appeal stems from a multi-year investigation of a drug trafficking organization in Queens that swept up, among others, defendants Kamel Lambus and Stanley Fuller. While ten other members of the conspiracy pleaded guilty, Lambus and Fuller elected to go to trial, setting up these two evidentiary issues for ruling. See here for a short summary of the 107-page opinion. Our more detailed analysis follow below.
Ankle Monitor GPS Evidence
The GPS issue arises out of an ankle monitor that Lambus wore as a condition of supervised release following his release from a New York State prison. No federal warrant was ever issued to monitor Lambus’s movements with GPS, but federal law enforcement had access to the data through a joint investigation with state authorities, and ultimately prosecutors sought to introduce the evidence at Lambus’s trial.
Lambus was convicted of state drug offenses, and released from prison in March 2012 to a three-year term of supervised release. Upon leaving prison, Lambus signed forms confirming his understanding that his “person, residence and property are subject to search and inspection,” that he would permit his person and property to be searched, and that he would abide by other written conditions imposed by his parole officer. Just a few months into the supervised release term, Lambus’s parole officers began to suspect that he was still involved in drug activity when Lambus sent a letter to another state inmate with a photo showing him posing with “large amounts of cash” and making gang signs. Thomas Scanlon, an investigative parole officer, began surveilling Lambus’s home and purported workplaces. In addition, Lambus also began violating the curfew imposed as a condition of supervised release, and a parole officer received an anonymous email complaining that Lambus was selling drugs. Lambus’s parole officers decided to impose GPS monitoring primarily for curfew violations but also due to suspected drug trafficking. Lambus said he agreed to the ankle monitor only because the alternative was going back to prison. Lambus recalled being told that he would only have the GPS on him for three to six months, but the parole officer who installed the ankle monitor did not recall discussing any time period with Lambus.
Officer Scanlon was initially “somewhat negative” on the use of the ankle monitor, which he learned about after the fact, because it could cause Lambus to be more circumspect. Eventually, however, Scanlon found the location data useful to direct his surveillance. Short on resources, Scanlon involved federal law enforcement—first, Homeland Security Investigations, a branch of ICE, and then the DEA—to provide additional manpower and cash for drug buys. State authorities, however, retained shared control of the investigation, and federal authorities only had access to GPS data from Lambus’s ankle monitor when Scanlon shared it. Ultimately, Lambus wore the ankle monitor for more than two years, as Scanlon, as well as federal authorities, were progressing with their investigation. Lambus was never charged with violation of the conditions of his parole.
Lambus was arrested on federal charges in July 2015, about a month before the conclusion of his term of supervised release. In pretrial proceedings, Judge Weinstein initially denied the motion to suppress the GPS evidence, though (according to the Second Circuit) he “plainly disapproved” of Lambus being subjected to GPS monitoring for more than two years. Lambus, he said, had been “unwittingly . . . turned into a stalking horse for federal agencies.” Nevertheless, Judge Weinstein initially found suppression unwarranted because coordination between parole officers and law enforcement is generally permitted, and none of the law enforcement officers acted in bad faith. He concluded that two...
