United States v. Powell

634 F.Supp.3d 48

UNITED STATES of America, v. Charles POWELL, Defendant.

21-CR-572(EK)

United States District Court, E.D. New York

Signed October 11, 2022

Andres Palacio, Government Attorney, DOJ-USAO, Brooklyn, NY, Jack Dennehy, Government Attorney, United States Attorneys Office, Brooklyn, NY, for United States of America.

Michelle A. Gelernt, Joseph Karume Samuel James, Public Defenders, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

ERIC KOMITEE, United States District Judge:

Charles Powell is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The charge arises out of law enforcement's investigation of a shooting in Brooklyn on October 7, 2020. The government contends that Powell fired a gun at three individuals, killing one and injuring others, in the course of a robbery.

The defense moves to suppress two categories of evidence: (1) certain physical evidence obtained at the time of Powell's arrest, on the basis that the arrest warrant was the product of a misleading affidavit, and (2) statements Powell made to law enforcement after his arrest, on the basis that they were the product of un-Mirandized custodial interrogation.¹

I. Background

After the October 2020 shooting, which occurred at what is alleged to be an illegal gambling location in Brooklyn, the New York City Police Department obtained surveillance footage of the incident. Affidavit & Complaint in Support of Arrest Warrant Application ("Aff.") ¶ 2, ECF No. 1. According to the complaint, the footage showed three potential suspects, two of whom fired weapons. Id. On March 18, 2021, the FBI offered assistance with the investigation. Memorandum of Law dated June 6, 2022 in Support of Motion to Suppress ("Def. Suppression Br."), Ex. A at 1, ECF No. 40-1.² That same day, Special Agent Erin Dominguez contacted the NYPD with information suggesting that an individual named Brian Castro was involved, and she provided the Instagram account names of other individuals who may have participated. Def. Suppression Br., Ex. B. at 1, ECF No 40-2. As of March 24, the NYPD had reviewed Charles Powell's social media, suggesting that he had become a suspect. Def. Suppression Br., Ex. C at 1, ECF No. 40-3.

Powell is a resident of Paterson, New Jersey. At the time, Daniel Findlay was a Sergeant in the Paterson Police Department and also assigned to the Joint Terrorism Task Force at the FBI's Garrett Mountain Resident Agency. Decl. of Daniel Findlay ¶¶ 2-3, ECF No. 36-2. NYPD officers went to the Garrett Mountain office on April 7, 2021 to show Sergeant Findlay the surveillance video of the shooting. Id. at ¶ 8. The record does not reveal precisely why Findlay was selected to view the surveillance footage. Nevertheless, Findlay identified Powell in the video. Id.

On October 7, 2021, Magistrate Judge Kuo issued a warrant for Powell's arrest. The warrant application included an affidavit sworn to by NYPD Detective Jeffrey Valenzano describing the footage and shooting. To establish Mr. Powell's identity, Valenzano stated that "Officer-1" — later revealed to be Sergeant Findlay — had identified Powell in the video. Aff. ¶ 3. The affidavit went on to assert that Officer 1 was "familiar" with Powell's appearance based on "numerous prior interactions" with him. Id.

Powell was not arrested immediately. Approximately a week after the warrant was issued, however, Powell was in a car accident; the responding officers arrested him pursuant to the warrant and transported him to a nearby hospital in custody. Transcript of May 3, 2022 Suppression Hearing ("Tr.") 110, ECF No. 38. After Powell allegedly attempted to escape the hospital, he was re-arrested and taken to the Clifton, New Jersey, Police Department. Id. at 111-12, 115-16. There, while being processed, Powell conversed with Matthew Fernandes, a Clifton police officer, about the alleged escape. Id. at 120-30.

Fernandes reported the statements that Powell now seeks to suppress. Fernandes stated that he "believe[d]" that Powell first broached the subject of the escape, by stating that "I could have got away, or oh, I almost got away," but Fernandes could not firmly recall the sequence of the conversation. Id. at 129:7-15. Fernandes "asked him how did he get past my coworkers," or words to that effect. Id. at 123:17. Powell allegedly responded that he asked a friend to "help him escape from police custody" by waiting for him outside the hospital, id. at 124:5-11, but that the plan failed because Powell attempted to flee through a different exit from where his friend was waiting. Id. at 112:1-4.

The defense filed its motions to suppress in March 2022, ECF No. 23. At a hearing on May 3, 2022, the government called three witnesses: Sergeant Findlay, Officer Fernandes, and an FBI agent whose testimony related to an issue that is now moot.³ Both parties submitted post-hearing briefs. See Def. Post-Hearing Br., ECF No. 40 ("Def. Br."); Gov. Post-Hearing Br., ECF No. 44 ("Gov. Br."). After a conference on August 29, 2022, the parties submitted additional letters on the motions. See Def. Ltr. dated Sept. 2, 2022, ECF No. 53; Gov. Ltr. dated Sept. 6, 2022, ECF No. 54; Def. Ltr. dated Sept. 9, 2022, ECF No. 57.

II. Discussion

A. Physical Evidence and Statements Obtained Pursuant to the Arrest Warrant

Powell argues that all physical evidence, statements, and observations by law enforcement obtained as a result of the arrest should be suppressed, because the arrest that led to the collection of such evidence was the fruit of Valenzano's affidavit, and that affidavit contained material misstatements and omissions. For the reasons set forth below, this motion is denied.

Detective Valenzano's affidavit described the surveillance footage, stating that "Shooter-2" could be seen firing multiple rounds in areas where cartridge casings were later recovered. Aff. ¶ 2. Valenzano went on to attest that on April 7, 2021, detectives reviewed the surveillance footage along with "Officer-1" (Findlay), a "Federal Task Force member of law enforcement." Id. at ¶ 3. To buttress the identification, the affidavit stated that Officer-1 had "numerous prior interactions with Powell and [was] familiar with Powell's appearance," and that Officer-1 had identified Powell as "Shooter-2" in the surveillance video. Id.

Powell argues that these statements were false because Findlay was not a "Federal Task Force" officer; because Findlay had not had "numerous prior interactions" with Powell and was not familiar with his appearance; and because Valenzano materially omitted to state that Findlay failed to recognize Powell in a photograph prior to viewing the surveillance video. Def. Br. 34-37.

"[A]n arrest pursuant to a facially valid arrest warrant is presumed to be made with probable cause." Martinetti v. Town of New Hartford, 12 Fed. App'x 29, 32 (2d Cir. 2001). One potential exception to this presumption, however, is the so-called Franks doctrine, which emerged in the context of search warrants. Under Franks, a defendant may contest a warrant by challenging the veracity of the supporting affidavit. Franks v. Delaware, 438 U.S. 154, 164-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).⁴ To obtain suppression, the defendant must establish that a "false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the search warrant affidavit," and that the statement was material to the probable cause determination. Id. at 155-56, 98 S.Ct. 2674. Franks extends to material omissions as well. See United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (questioning whether there were "intentional and material misrepresentations or omissions in [the] warrant affidavit").

"Material" means that "the alleged falsehoods or omissions were necessary to the [issuing] judge's probable cause finding." Id. "To determine whether a false statement was necessary to a finding of probable cause," courts "consider a hypothetical corrected affidavit, produced by deleting any alleged misstatements from the original warrant affidavit and adding to it any relevant omitted information." Ganek v. Leibowitz, 874 F.3d 73, 82 (2d Cir. 2017).

It remains an open question in this circuit whether the Franks doctrine applies to arrest warrants at all. In Awadallah, the Second Circuit noted that "[t]he Franks doctrine arose in the context of a search warrant, and neither the Supreme Court nor this Court has extended it to arrest warrants." 349 F.3d at 64 n.17 (assuming, without deciding, that Franks applied to warrant affidavit for the arrest of a material witness); see also United States v. Broward, 594 F.2d 345, 350 (2d Cir. 1979) (declining to decide whether district court correctly applied Franks to arrest warrant); Dupree v. United States, No. 10-CR-0627, 2020 WL 3960512, at *10 (E.D.N.Y. July 13, 2020) (noting that "[i]t is not clear whether Franks is applicable to false statements in an arrest warrant affidavit," but assuming it applied).⁵

Even assuming that Franks applies here, Powell has not met its standard. I address the three misstatements and omissions that Powell alleges in turn.

Findlay's "Federal Task Force" Membership. Powell argues first that the affidavit materially misstated that Officer-1 was a "Federal Task Force Member," because Findlay was not one at the time Valenzano signed the affidavit. Def. Br. 37. Findlay testified, however, that at the time he reviewed the surveillance video, he was indeed assigned to a federal task force, Tr. 23:22-24, and this testimony is essentially undisputed at this point. It is true that Findlay was no longer on the task force in October 2021 (when Valenzano wrote the affidavit). But that does not undercut the affidavit's accuracy; the affidavit stated that a "Federal Task Force member" "reviewed" the video on April 7, 2021. Aff. ¶ 3 (emphasis added). In any event, this issue is hardly material, as neither the fact nor the timing of...