United States v. McGrain

UNITED STATES OF AMERICA, v. JOSEPH McGRAIN, Defendant.

Case # 20-CR-6113-FPG-MJP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 29, 2021

DECISION AND ORDER

INTRODUCTION

Defendant Joseph McGrain is charged in a three-count Indictment with (1) enticement of a minor in violation of 18 U.S.C. § 2422(b); (2) attempted obstruction of justice in violation of 18 U.S.C. § 1512(b)(1); and (3) obstruction of justice in violation of 18 U.S.C. § 1519. ECF No. 17 at 1-2.¹ By Order dated August 21, 2020, this case was referred to United States Magistrate Judge Mark W. Pedersen pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (b)(1)(B).

On October 29, 2020, Defendant filed an omnibus motion requesting, inter alia, suppression of tangible evidence and suppression of certain statements. ECF No. 30 at 5-6. On January 25, 2021, Judge Pedersen held oral argument, ECF No. 46, and subsequently issued an order memorializing his rulings, ECF No. 47.² In that order, Judge Pedersen reserved on whether to hold a suppression hearing on the suppression of tangible evidence and the suppression of statements. Id.

On February 4, 2021, Judge Pedersen issued a report and recommendation ("R&R"), ECF No. 52, recommending that (1) Defendant's motion to suppress tangible evidence be denied; and (2) Defendant's motion to suppress certain statements be denied. Defendant filed objections to the R&R on February 16, 2021, ECF No. 53. The Government responded in opposition to Defendant's objections, ECF No. 55. For the reasons that follow, the Court ADOPTS IN PART and REJECTS IN PART Judge Pedersen's R&R and Defendant's motion to suppress is GRANTED IN PART and DENIED IN PART.

LEGAL STANDARD

On a dispositive matter—e.g., motions to suppress and to dismiss the indictment—the magistrate judge may only issue an R&R. 28 U.S.C. § 636(b)(1)(B). A district court reviews those portions of an R&R to which a party has timely objected de novo. Fed. R. Crim. P. 59(b)(3). When a party does not object to a portion of an R&R, or when the objections are conclusory, general, or without legal support, a district court reviews those portions for clear error. See United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y. 2009). After reviewing the R&R and the objections thereto, a district court "may accept, reject, or modify the recommendation." Fed. R. Crim. P. 59(b)(3).

DISCUSSION

Defendant timely objected to Judge Pedersen's R&R. ECF No. 53. Specifically, Defendant argues that Judge Pedersen erred when he (1) denied the suppression of all tangible evidence seized pursuant to the search of Defendant's van and cellular telephone; and (2) denied suppression of Defendant's statements to law enforcement on March 27, 2020 and April 6, 2020. ECF No. 53 at 3, 10.

I. Tangible Evidence

The Fourth Amendment of the United States Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.

The probable cause requirement is "not a high bar" and is met where "the totality of the circumstances indicates a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Pinto-Thomaz, 352 F. Supp. 287, 304 (S.D.N.Y. 2018) (citations omitted). "In assessing probabilities, a judicial officer must look to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id.

"The particularity requirement has three components. First, a warrant must identify the specific offense for which the police have established probable cause. Second, a warrant must describe the place to be searched. Third, the warrant must specify the items to be seized by their relation to designated crimes." United States v. Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013) (citations, footnotes & internal quotation marks omitted). In the context of digital searches, courts have recognized a "heightened sensitivity to the particularity requirement" to combat the risk that unfettered searches of digital devices could render the Fourth Amendment's protections irrelevant. Id. at 447.

A. Search of Van and Cellular Phone³

Defendant argues that the warrant affidavit for the search of the Dodge Caravan lacked probable cause under the Fourth Amendment. ECF No. 53 at 6. The Government argues that, in light of the substantial deference owed to Greece Town Court Judge Brett C. Granville's probable cause determination, the Court should deny Defendant's request to suppress this evidence. ECF No. 55 at 3.

"[T]he duty of a court reviewing the validity of a search warrant is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." United States v. Thompson, 1:18-CR-00126 EAW, 2020 WL 408354, at *6 (W.D.N.Y. Jan. 24, 2020) (citation & internal quotation marks omitted). Accordingly, "substantial deference" is accorded to an issuing judicial officer's finding that probable cause exists, and a reviewing court's inquiry is limited "to whether the officer 'had a substantial basis' for his or her determination that, given the totality of the circumstances, there was 'a fair probability that contraband or evidence of a crime w[ould] be found in a particular place.'" United States v. Reyes, 2017 WL 2633388, at *3 (D. Conn. June 19, 2017) (citing United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015)) (alterations in original).

To justify a search of Defendant's Dodge Caravan to seize his cell phone, "police needed reason to think not only that he possessed a phone, but also that the device would be located in the [vehicle] and would contain incriminating evidence of the suspected offense." See United States v. Griffith, 867 F.3d 1265, 1273 (D.C. Cir. 2017). With respect to the first consideration—Defendant's ownership of a cell phone—the affidavit provides specific reasons why policebelieved that Defendant owned a phone. The Minor Victim, who lived with Defendant, described Defendant's cell phone to police during a forensic interview. ECF No. 30-1 at 7. More specifically, the Minor Victim stated that Defendant owned "a Samsung Smartphone with what appears to be a gray case with a skull" Id. The affidavit also states that the Minor Victim provided police with Defendant's cell phone number during the interview and police later received a call from Defendant at that number. Id. Thus, the affidavit sufficiently evidences why police believed Defendant owned a cell phone. Compare United States v. Carton, No. 17 CR 680 (CM), 2018 WL 3559172, at *6 (S.D.N.Y. July 10, 2018) ("[T]he affidavit set forth comprehensive evidence . . . that [Defendant] owned a cell phone.") with Griffith, 867 F.3d at 1272 ("[T]he affidavit in this case conveyed no reason to think that [Defendant], in particular, owned a cell phone.")

Turning to the second consideration, the affidavit also supports the conclusion that police had reason to think that the cell phone would be located in the vehicle. The affidavit states that Greece Police Detective Reeder received a call from Defendant's cell phone number at 2:52 p.m. on April 6, 2020. ECF No. 30-1 at 7. As stated above, officers knew it was Defendant's cell phone number because the Minor Victim had provided the number to them during a forensic interview. Id. During the phone call, Defendant told police that he "was leaving work to come straight to the Greece Police HQ . . . and would be there in 15 minutes." Id. Defendant arrived at Greece Police Headquarters in his Dodge Caravan at around 3:30 p.m. Id. Upon arriving and being taken to an interview room, Defendant "state[d] he only had keys to his van and a wallet on his person and did not have a phone." Id. At some point after Defendant arrived at the Police Headquarters, Detective Reeder spoke with Defendant's girlfriend who stated he did not stop home between work and arriving at Police Headquarters. ECF No. 30-1 at 7.

Based on the evidence in the affidavit described above, officers knew that (1) Defendant had his cell phone with him at work when he spoke with them on it at 2:52 p.m.; (2) Defendant had arrived at Headquarters in his Dodge Caravan; (3) Defendant did not have the cell phone on his person upon his arrival (less than 40 minutes after the phone call); and (4) Defendant had not stopped home between leaving work and arriving at Headquarters. While it was possible that Defendant had either left his cell phone at work or discarded it enroute to Headquarters, the evidence in the affidavit is more than sufficient to provide officers with reason to think that Defendant's cell phone would be found in his Dodge Caravan. Compare United States v. Manafort, 314 F. Supp. 3d 258, 267 (D.D.C. 2018) ("Moreover, the agent specifically averred, based on information provided by a person with knowledge, that [Defendant] maintained business records in his home and conducted business with his computer.") and Reyes, 2017 WL 2633388, at *3 ("I cannot say in light of the deferential standard of review that the state court judge altogether lacked a substantial basis to conclude that there was probable cause. Common sense and experience suggest that it was reasonable and plausible for the state court judge to conclude that defendant would keep one or more cell phones and related records at his home.") with Griffith, 867 F.3d at 1273 ("[T]he affidavit set out no reason to believe the phone was likely to be found at the place to be searched."). This is especially true in light of the Supreme Court's recognition that "nearly three-quarters of smart phone users report being within five feet of their phones most of the time" and that cell phones are a "pervasive and insistent part of daily life." Riley v. California, ...