United States v. Lesane

1

UNITED STATES, v. ERIC LESANE, Defendant.

No. 22-CR-110 (VSB)

United States District Court, S.D. New York

September 13, 2022

Elizabeth Anne Espinosa U.S. Attorney's Office New York NY Counsel for United States of America

Donald Joseph Yannella, III Donald Yannella P.C. New York, NY Jenna Minicucci Dabbs Arjun Mody Mark Aaron Weiner Kaplan Hecker & Fink LLP New York, NY Counsel for Defendant

OPINION & ORDER

VERNON S. BRODERICK. UNITED STATES DISTRICT JUDGE

Defendant Eric Lesane (“Defendant” or “Lesane”) is charged with possession of a firearm in connection with drug trafficking and following a felony conviction. Currently before me is Lesane's motion to suppress evidence seized as a result of his arrest and to inspect grand jury minutes related to his case. Because I find that the Government has met its burden under either the special needs exception or the probable cause standard, and because inspection of grand jury minutes is not required under the circumstances presented here, Lesane's motion is DENIED.

I. Factual Background and Procedural History

This matter arises out of alleged violations of supervised release in a criminal case pending before Judge Paul G. Gardephe. In 2013, Lesane pleaded guilty to one count of possession of a firearm with a defaced serial number after a felony conviction. See Judgment, U.S. v. Eric Lesane, 12-cr-524-PGG, Doc. 24 (“Judgment”). Lesane had previously been convicted of a felony robbery offense in New York State in 2001, among other offenses. (See PSR ¶¶ 27-56.)^[1] The New York State Division of Parole also advised that Lesane was known to be affiliated with the Crips gang. (See id. ¶ 60.) Judge Gardephe sentenced Lesane to 94 months' imprisonment to be followed by a three-year term of supervised release. (See Judgment at 2, 3.) The terms of Lesane's supervised release required, among other things, that:

The Defendant shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.

(Id. at 4.) Lesane was also required to “notify [his] probation officer at least ten days prior to any change in residence.” (Id. at 3.) Lesane's supervision commenced on April 6, 2021. (See Warrant Pet. at I.)^[2] At the start of his supervision, Lesane reported to Probation that he lived at 1725 Purdy Street, Bronx, NY (“1725 Purdy Street”). (See Am. VOSR at 2.)^[3] On November 2, 2021, someone from the New York City Police Department (“NYPD”) called Lesane's probation officer and told her that Lesane was “a person of interest as someone in possession of multiple firearms,” and that Lesane was living at 2551 Hering Avenue, Bronx, NY (“2551 Hering Avenue”), an address Probation did not know was associated with Lesane. (Warrant Pet. at 1.) Lesane met with his probation officer on December 16, 2021 and January 10, 2022, and did not report that he had changed addresses. (See id. at 2.)

Probation conducted surveillance at 2551 Hering Avenue on two days in January 2022. On January 10, 2022 at approximately 6 p.m., one group of probation officers surveilled 2551 Hering Avenue while Lesane's probation officer was outside of 1725 Purdy Street. (See Jan. Chrono at 1 .)^[4] Lesane's probation officer called and texted Lesane from outside 1725 Purdy Street, and Lesane said he was not at home but that he would have his friend drop him off there. (See id.) The group of probation officers at 2551 Hering Avenue then “observed an individual fitting the physical description” of Lesane leaving the building and getting into a car. (Id.) That individual was wearing a black jacket and black jeans. (She id.) Lesane's probation officer then called Lesane, who explained that he was walking to 1725 Purdy Street because his friend had dropped him off a few blocks away. (See id.) Lesane's probation officer believed Lesane “intentionally” arrived on foot because he was aware of Probation's presence. (Warrant Pet. at 2.) Shortly thereafter, Lesane arrived at 1725 Purdy Street wearing a black jacket and black jeans. (See Jan. Chrono at 1.) Lesane's probation officer surreptitiously took a picture of Lesane and sent the image to the group of officers outside 2551 Hering Avenue, who confirmed that Lesane was the same person they had just seen leave 2551 Hering Avenue. (See id.)

Lesane's probation officer spoke with him outside of 1725 Purdy Street. While they were talking, Lesane's sister came outside and asked Lesane where he had put her phone. (See id.) Lesane answered her, and she went back inside. (See id.) During the conversation with his probation officer, Lesane admitted to “making clothing and advertising to his peers (including other gang members), so they can support his business.” (Id.) Lesane's probation officer asked him to send images of the four custom-made jackets he had described. (See id.)

On January 20, 2022, Lesane's probation officer and another officer again conducted surveillance at 2551 Hering Avenue. (See id. at 2.) This time, around 5:50 p.m., the probation officers observed Lesane standing in the middle of the street outside 2551 Hering Avenue talking to someone. (See id.) Lesane was wearing a white t-shirt and jeans. (See id.) Lesane and the other person entered 2551 Hering Avenue through a door in the alley way. (See id.) At 6:13 p.m., the officers saw Lesane exit through the side door, “look both ways up the street and return into the building.” (Id.)

On January 24, 2022, Lesane's probation officer submitted a violation report to Judge Gardephe and petitioned him to issue an expedited warrant for Lesane's arrest. (See generally Warrant Pet.) The violation report charged Lesane with two specifications: (1) “fail[ing] to truthfully answer inquiries of the probation officer, in that he denied any changes in address,” and (2) “fail[ing] to notify the Probation Office of a change in residence, in that he failed to report a change in address.” (Id. at 1.) The violation report also described the substance of the call from the NYPD and summarized Probation's subsequent surveillance on January 10 and 20, 2022. (See id.) Judge Gardephe issued a warrant for Lesane's arrest. (See Warrant.)^[5]

On February 1, 2022, the U.S. Marshals arrested Lesane at 2551 Hering Avenue. (See Feb. Chrono.)^[6] When probation officers arrived on the scene, they met with NYPD officers who told the probation officers that the U.S. Marshals had taken Lesane into custody and had given the NYPD officers personal effects recovered from Lesane upon his arrest, including a set of keys. (See id.) The probation officers “opened the door to the residence and proceeded to make entry on the residence,5' and “used a key (that was confiscated from [Lesane]) to open a bedroom off of the kitchen area.” (Id.) The officers recovered, among other things, two rifles, a 9mm pistol, a semiautomatic shotgun, a “ghost” gun (a gun without a serial number that is assembled by its user), large quantities of ammunition including high-capacity magazines, a black baseball bat with barbed wire wrapped around it, what appeared to be several packages of marijuana, and $10,300.00 in cash. (See Evidence Voucher.)^[7] In the apartment, the officers also found a brown leather wallet containing, among other things, Lesane's BOP ID card and “other various BOP information.” (See id.) The Government subsequently produced a second evidence voucher documenting the seizure and possession of the keys used to open the doors. (See Doc. 24, at 7 n.4; see also Doc. 40, at 7:1-8.)

On February' 3, 2022, Lesane's probation officer submitted an amended violation report to Judge Gardephe. (See generally Am. VOSR.) The amended report included tlncc additional specifications: (1) “committing] a federal crime, felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),” (2) “possessing] ammunition,” and (3) “possessing] a dangerous weapon, specifically a baseball bat modified for the specific purpose of causing bodily injury in that it was wrapped in barbed wire.” (Id. at 3.) On that same date, Lesane was separately charged in a criminal complaint with possession of firearms following a felony conviction, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1.) On February 17, 2002, an indictment was filed charging Lesane in three counts: (1) possession of firearms following a felony conviction, in violation of 18 U.S.C. § 922(g)(1); (2) distribution and possession with intent to distribute marijuana for remuneration, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D); and (3) possession of firearms in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(a)(A)(i). (Doc. 5.) On April 11, 2022, the case was reassigned to me.

On May 11, 2022, Lesane filed a motion to suppress all evidence seized as a result of his arrest and to inspect his grand jury minutes. (Doc. 20 (“Def.'s Mem.”).) On May 25, 2022, the Government filed an opposition. (Doc. 24 (“Gov't's Opp.”).) On June 17, 2022 Lesane filed a reply. (Doc. 33 (“Def.'s Reply”).) On July 7, 2022,1 held oral argument on the matter. (See Doc. 40 (“Tr.”).) On July 28, 2022, the parties filed supplemental briefing. (Doc. 42 (“Def.'s Supp. Br.”); Doc. 43 (“Gov't's Supp. Br.”).) On August 5, 2022,1 held a status conference, and thereafter, Lesane filed a second supplemental briefing. (Doc. 47 (“Def.'s Second Supp. Br.”).) I adjourned a conference scheduled for ...