United States v. Okparaeke

UNITED STATES OF AMERICA, v. CHUKWUEMEKA OKPARAEKE, Defendant.

No. 17-CR-225 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 21, 2018

ORDER AND OPINION

NELSON S. ROMÁN, United States District Judge

Defendant Chukwuemeka Okparaeke ("Defendant") is charged in a five-count Superseding Indictment with: (1) conspiracy to distribute, and to possess with intent to distribute, controlled substances in violation of 21 U.S.C. §§ 813, 841(a)(1), 841(b)(1)(A), 841(b)(1)(C) and 846; (2) attempted importation of 100 grams and more of mixtures and substances containing acrylfenanyl in violation of 21 U.S.C. §§ 813, 952(a), 960(a)(1), 960(b)(1)(F) and 963; (3) attempted distribution of, and possession with intent to distribute, 100 grams and more of mixtures containing a detectable amount of acrylfenanly in violation of 21 U.S.C. §§ 813, 841(a)(1), 841(b)(1)(A), and 846; (4) distribution of, and possession with intent to distribute, furanly fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (5) importing U-4770, a Schedule I controlled substance, into the United States in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(3). (See generally Superseding Indictment, ECF No. 41.) Before the Court is Defendant's third motion to suppress. (ECF No. 58.) For the following reasons, Defendant's motion is DENIED in part and GRANTED to the limited extent of setting this matter down for a hearing. The parties are directed to appear for a suppression hearing on Wednesday, October 10, 2018 at 10:30 a.m.

I. BACKGROUND

The Court assumes familiarity with the facts of this case. See United States v. Okparaeka, No. 17-CR-225 (NSR), 2018 WL 3323822, (S.D.N.Y. July 5, 2018).

The Government formally commenced judicial proceedings against Defendant Chukwuemeka Okparaeka on March 17, 2017 by filing a criminal Complaint. (ECF No. 2). The Government then filed an Indictment on April 12, 2017. (ECF No. 15.)

Defendant first filed a motion to suppress on December 27, 2017. (ECF No. 28.) The Government filed its opposition in a timely manner, and Defendant's Reply followed. (ECF No. 35, 37.) A grand jury then returned a Superseding Indictment on March 5, 2018. (ECF No. 41.) In light of the Superseding Indictment, and Defendant's representation that he wished to address the new charges in his suppression motion, this Court denied Defendant's suppression motion without prejudice, and set a briefing schedule for Defendant's renewed motion. (ECF No. 44.)

Defendant filed a motion to suppress on April 13, 2018. (ECF No. 45.) The Court denied the motion in part on July 5, 2018. (ECF No. 56.) At the July 6, 2018 status conference, Defendant's counsel represented that he mistakenly did not include a number arguments from his first motion to suppress in the April 13 motion. This Court granted Defendant leave to file a third motion to suppress addressing the omitted arguments.

A. The Underlying Investigation

This case arises from two independent investigations: one by the Fairfax County, Virginia, Police Department and the other by federal investigators.

In or about January 2017, a Customs and Border Protection ("CBP") agent at John F. Kennedy Airport intercepted packages during a random screening. (Aff. of Tony Mirvis ("MirvisAff."), Exh. 2, Aff. in Supp. of Application for Search and Seizure Warrant ("Cellphone Warrant Aff.") ¶¶ 8-9(a), ECF No. 59; Gov't Mem. of Law in Opp. to Def. Motion to Suppress Evid. ("Gov't Opp."), Ex. C, Aff. in Supp. of Application for Search and Seizure Warrant ("Residence Aff.") ¶¶ 13(a), ECF No. 62.) The packages, addressed to "Emeka Okparaeke" at a United Parcel Service ("UPS") store located in Middletown, New York, originated from Hong Kong and contained a substance that tested positive for an anologue of fentanyl. (Residence Aff. ¶ 13(a)-(c); Cellphone Aff. 9(a)-(d).)

In an attempt to ascertain the packages' recipient, United States Postal Inspector Brad Ruggieri ("Ruggieri"), who had been informed of the interception, arranged for the United States Postal Service ("USPS") tracking information for the packages to indicate that they had arrived at the post office in Middletown, New York. (Cellphone Aff. ¶¶ 1, 9-10.) On January 31, 2017, a person by the last name "Okparaeke" called the Post Office and inquired about the status of one of the intercepted packages. (Id. ¶ 11.) Okparaeke provided a call number for his cell phone at which he could be reached. (See id.) Ruggieri then created a duplicate package with a filler ("Package-2") and placed it in the Middletown Post office. (See id. ¶¶ 11-12.) The Defendant visited the Middletown Post Office on February 1, 2017, attempted to pick up the intercepted package, but an undercover USPIS agent handed him Package-2 instead (Id. ¶ 13.) As Defendant exited the post office, Ruggieri and other law enforcement officers arrested and transported him to the Middletown police station. (Id. ¶ 14.)

At the police station, Ruggieri, along with a Homeland Security Investigations ("HSI") agent, interviewed Defendant after taking away his cellphone, wallet, and car keys. During the interview, Ruggieri purportedly communicated to Plaintiff that he was "not under arrest" but rather was "being detained." (See id. ¶ 15; Mem. of Law in Supp. of Def. Pre-Trial Motions("Def. Mot.") 4, ECF No. 61.) An HSI agent asked Defendant for his phone number, which he provided. The agents then read Defendant his Miranda warnings. (See Cellphone Warrant Aff. ¶ 15; Def. Mot. 4.) After Defendant signed and initialed the Miranda warnings, he stated that "Invariably I have to ask for an attorney." (Def. Mot. 4.) Ruggieri again responded by noting that he was not under arrest, but instead was detained. (Id.) The HSI agent then asked Defendant for his phone number a second time, which Defendant provided. The HSI agent returned Defendant's cellphone, wallet, and car keys. Ruggieri then asked Defendant if they could search his phone, to which Defendant agreed. Defendant identified his phone as a Galaxy S5. Defendant then provided the phone number a third time. After Defendant consented to a search of his cellphone he again asked to speak to an attorney. (Id. at 5.)

State officials in Virginia also investigated the Defendant prior to the merger of the investigations by, inter alia, setting up controlled buys through Defendant's suspected online alias, "Fentmaster." On or about March 5, 2017, a detective with the Fairfax County Police Department made an undercover purchase of approximately 100 grams of U-4770, a Schedule I synthetic opioid, from Fentmaster through a dark web site known as AlphaBay Marketplace. (See Gov't Opp., Ex. D, Aff. in Supp. of Application for Search and Seizure Warrant ("Packages Warrant Aff.") ¶ 20(a).) While conducting surveillance on March 7, 2017, the detective observed Defendant's vehicle parked near a town house in Kearny, New Jersey. (Id. ¶¶ 20(b)-(c).) Defendant walked towards the vehicle with two white plastic bags in his hands, placing them in separate trash receptacles. (Id. ¶ 20(c).) The contents of the bags in the receptacles would test positive for U-47700. (Id. ¶ 21.) The detective then observed Defendant exit the Kearny town house holding two large USPS plastic bins with parcels inside. (Id. ¶ 20(d).)

On March 17, 2017, a federal magistrate judge signed a criminal Complaint charging Defendant with one count of conspiracy to distribute analogues of fentanyl, and issued a warrant for his arrest. (Id. ¶ 26.) Ruggieri and other law enforcement officers arrested Defendant and conducted a search of his home in Middletown, New York. (Id.) Law enforcement also conducted a search, pursuant to a warrant issued by Judge Mannion in the District of New Jersey, of the vehicle and room rented by Defendant in Kearny, New Jersey. (Id.) From the search of the Defendant's New Jersey room, law enforcement recovered packages with several kilograms of mixtures and substances containing U-47700, mixtures and substances containing over a kilogram of acrylfentanyl, an analogue of fentanyl, and several other controlled substances. (Id. ¶ 27.) Law enforcement agents also recovered eighty-two mailing envelopes, five of which contained substances that tested positive for quantities of acrylfentanyl and U-47700. (Id.) One of the packages recovered from the room featured a Hong Kong return address and contained a substance that tested positive for U-47700. (Id. ¶ 28.)

B. Defendant's Cellphone

Law enforcement agents became interested in Defendant's cellphone during the course of the investigation. Prior to the February 1, 2017 interview, the Defendant used his cellphone to call the post office on two separate occasions to inquire of his package. During the February 1, 2017 interview by federal agents, law enforcement agents became more interested in the cellphone. As Ruggieri noted, the Defendant kept his device on or near his person at all times and identified the device's model and call number. (Cell Phone Warrant Aff. ¶ 17.) As Ruggieri further explained in his Affidavit, based on his training and experience, individuals engaged in narcotics trafficking typically store records relating to that activity on electronic devices such as cell phones. (Id. ¶ 19.) Some of those records include logs of online chats, emails, and contactinformation. (Id.) Ruggieri submitted to the Court that there is probable cause to believe that Okparaeke is engaged in the subject offenses and that evidence is likely found on the device in question. (Id. ¶ 21.)

The Government eventually obtained a warrant and searched Defendant's phone. In the application for the search warrant, Ruggieri used the phone number and the physical description of the phone he received from Defendant during the course of the February 1 interview. (Id.¶ 17.)

State officials also had an interest in Defendant's phone. Their interest, however, focused on the phone's tracking capabilities. On February 24, 2017, Judge Azcarate, a...