United States v. Nelson

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UNITED STATES OF AMERICA, v. RICHARD ANTHONY NELSON, Defendant.

No. 20 Crim. 353 (BMC) (VMS)

United States District Court, E.D. New York

October 24, 2022

REPORT AND RECOMMENDATION

VERA M. SCANLON, UNITED STATES MAGISTRATE JUDGE

Defendant Richard Anthony Nelson (“Defendant”) is charged with illegal reentry after one or more convictions for the commission of an aggravated felony in violation of 8 U.S.C §§ 1326(a) and (b)(2). See ECF Nos. 1, 8. The Honorable Brian M. Cogan referred this case to the undersigned for all pretrial matters. Defendant moved to suppress evidence. See ECF No. 30. The United States of America (the “Government”) opposed the motion. See ECF No. 33. Defendant replied. See ECF No. 38. After the Court heard the parties' arguments, the parties submitted supplemental briefing. See ECF Nos. 46-47, 49-50, 53-55. For the reasons discussed below, I respectfully recommend that the District Court deny Defendant's motion.

I. Background

a. The Affidavit And Complaint In Support Of An Arrest Warrant

As alleged in an affidavit and complaint in support of an arrest warrant dated August 5, 2019, Defendant is a citizen of Jamaica. See ECF No. 1. Defendant entered the United States as a lawful permanent resident on or about March 5, 1986. See id. Between 1992 and 2005, Defendant was convicted of certain criminal offenses, including Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law Section 220.39(1), and Felon in Possession of Firearm and Ammunition, in violation of Title 18, United States Code, Section 922(g). See id. On February 21, 2008, Defendant was removed to Jamaica pursuant to a removal order entered by an Immigration Judge on or about December 20, 2007. See id. ¶ 3.

On June 22, 2019, a confidential source (“CS”) known to the United States Marshals Service notified law enforcement agents that Defendant was in Brooklyn, New York, having entered the United States from Jamaica after having been previously deported from the United States. See Id. ¶¶ 4-5. The CS provided law enforcement agents with an open-source social media page for “Richie Tek,” and agents determined that “Richie Tek's” appearance matched Defendant's appearance by comparing photographs from “Richie Tek's” social media site with photographs of Defendant. See id. ¶ 6. “Richie Tek” made social media posts referencing his deceased daughter by name. See id. ¶ 7. A law enforcement record search identified a female with the name “Richie Tek's” posts mentioned, whose father's name matched Defendant's name. See id. “Richie Tek's” date of birth also matched that of Defendant. See id. A search of federal immigration records revealed that Defendant had not requested permission from either the United States Attorney General or the Secretary of the Department of Homeland Security to reenter the United States after removal. See id. ¶ 8.

In connection with the above allegations made in the complaint, the Government requested that an arrest warrant be issued for Defendant. See id. at 4. An arrest warrant issued on August 5, 2019. See ECF No. 2. As relevant here, Defendant does not contest the validity of the arrest warrant. See 7/15/2022 Tr. at 11:25-12:2, ECF No. 55.

b. The Search Warrant

On or about August 7, 2020, the Government applied pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(c)(1)(A) for a search warrant requiring the cellular telephone service provider T-Mobile US, Inc. (“T-Mobile”) to search the cellular telephone assigned to a call number ending in 3681 (the “Target 3681 Cell Phone”) for historical cell site location information (“CSLI”) for the time period of July 7, 2020, to August 7, 2020, and for thirty days of prospective CSLI and other location data, and to disclose it to the Government (the “Search Warrant”). See Search Warrant Aff., ECF No. 30-2.^[1]

According to the Search Warrant affidavit, there was probable cause to believe that Defendant was using the Target 3681 Cell Phone based on its patterns of usage. See Id. In support of this belief, the affiant provided the following information:

Toll records for a telephone number ending in 6138 (the “6138 Number”), which was subscribed in the name of Defendant's daughter who, according to public records was deceased, showed a pattern of calls and text messages indicating that numerous telephone calls and text messages were made to a telephone number ending in 1128 (the “1128 Number”). See id. ¶ 16. The 1128 Number was subscribed in the name of an individual with whom Defendant was believed to be romantically involved (“Individual 1”). See id. Publicly available photographs posted on social media showed Defendant and Individual 1 together, and records obtained from Facebook showed that Defendant accessed his Facebook account from an Internet Protocol (“IP”) address associated with Individual 1. See id. Toll records for the 6138 Number also showed that it made or retrieved numerous telephone calls and text messages to telephone numbers associated with Defendant's mother, brother and friend. See id. ¶ 17.

T-Mobile records showed that at the time of the Search Warrant application, the 6138 Number had recently been reassigned to another customer. See Id. ¶ 18. On or about June 27, 2020, the Target 3681 Cell Phone was activated in the name of subscriber “Lamont Waugh” at an address in Brooklyn, New York. See id. ¶ 19. “Waugh is a common surname in [Defendant's family, and the Brooklyn address provided to T-Mobile is not a real address.” See id. (internal quotation marks omitted).

T-Mobile records showed that the 6138 Number and the Target 3681 Cell Phone had exchanged telephone calls and text messages with multiple telephone numbers in common. See id. ¶ 20. For instance, between July 7, 2020, and August 5, 2020, the Target 3681 Cell Phone exchanged approximately 436 telephone calls with Individual 1's 1128 Number, which made up approximately 16.24% of all telephone calls the Target 3681 Cell Phone made or received during that period. See id. The Target 3681 Cell Phone also exchanged telephone calls and text messages with Defendant's mother, brother and friend during the same time period. See id.

Based on this pattern of common calls and the affiant's training and experience, the affiant believed that Defendant had used both the 6138 Number and the Target 3681 Cell Phone. See id. The affidavit sets forth that “there is probable cause to believe that [Defendant], also known as ‘Richie Tek,' has violated Title 18, United States Code, Section 1326(b)(2) (illegal reentry),” and that the location data pertaining to the Target 3681 Cell Phone will “assist law enforcement in arresting [Defendant], who is a ‘person to be arrested' within the meaning of Federal Rule of Criminal Procedure 41(c)(4).” See id. ¶ 5. The warrant sought historical CSLI for the period of July 7, 2020, to August 7, 2020, and 30 days of prospective location data, including both CSLI and E-911 Phase II data. See Search Warrant Aff. Attach. B at 1-2, ECF No. 30-2. The affidavit explains that E-911 Phase II data, also known as “GPS data” or “latitude-longitude data” provides “relatively precise location information about the cellular telephone itself, either via GPS tracking technology built into the phone or by triangulating on the device's signal using data from several of the provider's cell towers.” See Id. ¶ 23. Cell-site data provides “typically less precise” location information by identifying the cell tower that received a radio signal from the cell phone. See id. The affidavit explains that the “historical cell-site information will allow law enforcement officers to identify any recent patterns of behavior showing [Defendant's] common locations, which will assist law enforcement to locate and arrest [Defendant].” See id. ¶ 22.

The Government attached the arrest warrant to the Search Warrant application. See ECF No. 30-2 at 22. On the “Application for A Search Warrant” form accompanying the warrant affidavit, in the section for “[t]he basis for the search under Fed. R. Crim. P. 41(c),” the Government checked the box next to “a person to be arrested or a person who is unlawfully restrained.” See ECF No. 33-1 at 2. The Court granted the Government's application and issued the Search Warrant. See ECF No. 30-2 at 1.

c. Defendant's Arrest

Eleven days after the Search Warrant issued, government agents arrested Defendant at 113-37 205th Street, Queens, New York 11412, where he resided with his girlfriend, Rhoda Ricketts. See Def. Ex. C, Form I-213, ECF No. 30-4; Def. Ex. D, Ricketts Decl., ECF No. 30-5. Ms. Ricketts was present during the arrest. See generally Ricketts Decl. According to Ms. Ricketts, officers arrived at around 6:00 a.m. and informed her that they had an arrest warrant for Defendant. See id. ¶¶ 3-6. Approximately ten law enforcement officers, including “ICE/ERO.ECPT members, USMS NY/NJ RFTF members and DEA NY Special Agents,” entered her home. See Form I-213; Ricketts Decl. ¶ 9. Officers went upstairs, where they discovered Defendant in a bedroom. Ricketts Decl. ¶ 11. They also went into the basement, where Ms. Ricketts's mother and daughter were sleeping. Id. ¶ 12.^[2]

After arresting Defendant, officers asked him autobiographical questions, including his name, date of birth, social security number and place of birth, which he answered. See Defendant's Memorandum of Law in Support of His Motion to Suppress (“Def. Memo.”) at 7, ECF No. 30; Form I-213. The Court will hereinafter refer to this information as Defendant's “pedigree information.” The officers also inquired about Defendant's knowledge of other crimes, asked him to cooperate with them against suspected criminals, and they prepared a DEA ...