United States v. Green

UNITED STATES OF AMERICA, v. BRANDON GREEN, Defendant.

(S5) 16 Cr. 281 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: December 6, 2018

December 4, 2018

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Defendant Brandon Green is charged with (1) RICO conspiracy, in violation of 18 U.S.C. § 1962(d); (2) narcotics conspiracy, in violation of 21 U.S.C. § 846; and (3) use of a firearm in connection with these crimes, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (ii) and (iii). (S5 Indictment (Dkt. No. 417-1) Counts One, Four, and Five)

The Indictment charges that Green and a dozen other defendants are members of a criminal gang known as the "Blood Hound Brims" that operates in New York City, Westchester County, Elmira, Syracuse, and Binghamton, New York, and in parts of Pennsylvania. The Government alleges that the Blood Hound Brims gang is a faction of the nationwide "Bloods" street gang. The Government claims that the Blood Hound Brims have a complex and highly organized leadership structure, are engaged in large-scale distribution of heroin, powder cocaine, crack cocaine, and marijuana, and engage in acts of violence, including attempted murder, conspiracies to commit murder, assaults, and robberies. Defendant Green is alleged to have conspired to murder another alleged gang member, co-defendant David Cherry, during a power struggle within the gang. (S5 Indictment (Dkt. No. 417-1) Count One) Green - who was in custody in connection with a federal drug trafficking conviction from 2004 until October 2010 (Green Aff. (Dkt. No. 244-2)) - is alleged to have played a leadership role in the Blood Hound Brims. (S5 Indictment (Dkt. No. 417-1) ¶ 4)

Green has moved to suppress physical evidence recovered from his residence at 3370 Madison Avenue, Bridgeport, Connecticut. (Mot. (Dkt. No. 243)) For the reasons stated below, Green's motion will be denied.

BACKGROUND

I. GREEN'S PRE-HEARING SUBMISSIONS

In support of his motion to suppress, Green has submitted his own affidavit and declaration, as well as a declaration from his girlfriend, Jennifer Turcios. Green's submissions set forth the following version of events:

In May 2017, Turcios and Green lived in a low-rise apartment building located at 3370 Madison Avenue, Bridgeport, Connecticut. (See GX 24) The two shared Apartment 19B, a duplex apartment. (Turcios Decl. (Dkt. No. 244-4) ¶¶ 1, 11; Green Aff. (Dkt. No. 244-2) ¶ 5) On May 16, 2017 - at approximately 6:00 a.m. - Turcios left her apartment and began driving to work. She noticed a vehicle pull up quickly behind her. (Turcios Decl. (Dkt. No. 244-4) ¶ 2) The vehicle had flashing lights, and Turcios pulled over to the side of the road. (See id.) Two individuals approached Turcios' car window. (Id.) They did not identify themselves as police, and Turcios did not learn until later that they were from the United States Marshal's Service. (Id.)

One of the marshals asked for Turcios' identification, which she provided. (Id. ¶ 3) When Turcios asked why she had been pulled over, the marshal did not respond. (Id.) Instead, the marshal showed Turcios a photograph of a man, and asked her if the man shown was her boyfriend. (Id.) Turcios testified that the photograph was not of good quality and that theman shown did not look like Green, so she told the marshal that she did not know. (Id.) The marshals then instructed Turcios to call her supervisor and inform her that she would be late to work. (Id. ¶ 4) Turcios complied. (Id.)

One of the marshals asked Turcios if they could search her apartment. (Id. ¶ 5) Before Turcios responded, the marshal said, "we are going to get in one way or the other." (Id.) Turcios did not consent. (Id.) At this point, one of the marshals reached through the driver's side window - across Turcios' body - and took her house keys from her purse, which was open and sitting on the passenger seat. (Id. ¶ 6)

One of the marshals asked Turcios if she had any photographs of her boyfriend. (Id. ¶ 7) Turcios said that she did not. (Id.) The marshal then took her phone out of her hand. The phone was not password protected, and the marshal began scrolling through material stored on the phone. (Id.) Turcios did not consent to the marshal seizing and searching her phone. (Id.)

The marshal then instructed Turcios to "wait there," and he left with her house keys and her identification. (Id. ¶ 8) One of the marshals stayed behind, sitting in the vehicle that had initially pulled up behind Turcios. (Id. ¶ 9) Turcios "did not feel free to leave, [because the marshals] had taken [her] ID and [her] house keys, and there was another [marshal] in the car behind [her]." (Id. ¶ 9)

Back at their apartment, Green was watching television downstairs. A marshal used a key to gain entry to the apartment. (Green Aff. (Dkt. No. 244-2) ¶¶ 6-7) The marshals entered with their guns drawn, and ordered Green to turn around and raise his hands in the air. (Id. ¶ 7) Green was then handcuffed and placed on a couch. (Id. ¶ 9) Green did not consent to the entry or any search of the premises. (Id. ¶ 8)

After handcuffing Green, the marshals searched the entire apartment. (Id. ¶ 14) They seized, among other things, phones, cash, and six firearms. (Green Supp. Decl. (Dkt. No. 244-3) ¶ 2; Breslin Decl. (Dkt. No. 244-1) ¶ 3)

According to Green, none of the items seized were in plain view. (Green Aff. (Dkt. No. 244-2) ¶¶ 12-13) The phones and cash were hidden inside drawers, closets, and boxes in an upstairs bedroom. (Id. ¶ 11) The firearms had been stored in a locked Louis Vuitton handbag that was hidden under a pile of laundry in the back of Green's bedroom closet. (Green Supp. Decl. (Dkt. No. 244-3) ¶ 3; Breslin Decl. (Dkt. No. 244-1) ¶ 3)

Marshals returned to Turcios' vehicle about ten minutes after they had left to arrest Green. (See Turcios Decl. (Dkt. No. 244-4) ¶ 10; Green Aff. (Dkt. No. 244-2) ¶ 15) One of the marshals instructed Turcios to call her supervisor and say that she would not be coming into work that day. (Turcios Decl. (Dkt. No. 244-4) ¶ 10) A marshal then entered the passenger side of Turcios' car and directed her to drive to her apartment. (Id.)

Upon arriving at the apartment, the marshals took Turcios inside. (Id.) Turcios observed Green in handcuffs, sitting on a couch on the first floor. (Id. ¶ 11) The contents of the downstairs closets were strewn on the floor. (Id.)

A marshal handed Turcios a consent to search form, and instructed her to sign it. (Id. ¶ 12) The marshal told Turcios that if she did not sign the form, she would be arrested. (Id.) Turcios asked the marshal on what grounds she would be arrested. The marshal responded that he would show her when they went upstairs, but that she first had to sign the consent to search form. (Id. ¶ 13) Turcios testified that she was "absolutely terrified" and believed that the marshals were going to arrest her, so she signed the form. (Id.) "In that moment, having beenforced to return to the apartment, with the agent standing over [her], threatening to arrest [her] if [she] did not sign the form, [Turcios] . . . did not feel that [she] had the right to refuse." (Id.)

Once Turcios signed the consent to search form, the marshals conducted a comprehensive search of the apartment, flipping over mattresses and emptying drawers. (Id. ¶ 14) During the search, the marshals kept shouting at Turcios to "tell them where the money [is]," stating that they knew Green had money. (Id. ¶ 18) A marshal took Turcios upstairs and showed her several firearms. (Id. ¶ 15) One of the firearms was pink. A marshal gestured towards this weapon and then pointed at Turcios, asking "if they should 'put that on her.'" (Id.) Turcios observed a Louis Vuitton bag "torn open on the floor." (Id. ¶ 16)

Turcios states that she had given Green the Louis Vuitton bag "for him to keep his cash and valuables in[,] because it had a lock." (Id.) Only Green had a key to the lock on the bag, and Turcios "did not know where he kept the key, what he stored in the bag, or where in the [bedroom] closet he kept it." (Id. ¶ 17; Green Supp. Decl (Dkt. No. 244-3) ¶ 3; Turcios Decl. (Dkt. No. 244-4) ¶ 16)

II. SUPPRESSION HEARING

On June 18 and June 19, 2018, this Court conducted an evidentiary hearing concerning Green's motion to suppress. The Government called Deputy U.S. Marshal Kevin Kamrowski; Senior Inspector Nicholas Ricigliano of the U.S. Marshal Service; Officer Steven Luciano of the Norwalk Police Department; Deputy U.S. Marshal Eric Kushi; Senior Inspector James Masterson of the Marshal Service; and Deputy U.S. Marshal Tracy Amaladas. (See June18, 2018 Hearing Tr. (Dkt. No. 338) at 85, 123, 160, 195; June 19, 2018 Hearing Tr. (Dkt. No. 340) at 243-44, 272-73)¹

Jennifer Turcios testified on behalf of Green. (See id. at 6)

A. The Government's Evidence

1. Pre-Arrest Planning and Surveillance

On May 16, 2017, at about 6:00 a.m., a team composed of approximately ten law enforcement officers - including Deputy Marshal Kamrowski, Inspector Ricigliano, Officer Luciano, Deputy Marshal Kushi, Inspector Masterson, and Deputy Marshal Amaladas - met at the Bridgeport Police Department. (See June 18, 2018 Hearing Tr. (Dkt. No. 338) at 87-88, 125-26, 162-63, 197-98; June 19, 2018 (Dkt. No. 340) at 247-48, 273) Deputy Kamrowski has worked for the Marshal Service for eleven years, and has been a member of the Warrant Squad for approximately five years. (June 18, 2018 Hearing Tr. (Dkt. No. 338) at 85) Inspector Ricigliano has worked for the Marshal Service for approximately 22 years, and is currently assigned to the New York/New Jersey Regional Fugitive Task Force (the "Task Force"). (Id. at 123) Officer Luciano has worked for the Norwalk Police Department for approximately eight years, and was a member of the Task Force for approximately three and a half years. (Id. at 160-61) Deputy Kushi has worked for the Marshal Service for approximately nine years, and is likewise assigned to the Task Force. (Id. at 195) Inspector...