USA v. Isreal et al

3:20-cr-00126-JBA

2021 | Cited 0 times | D. Connecticut | September 20, 2021

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. ASANTE GAINES

Crim. No. 3:20cr126 (JBA)

September 20, 2021 RULING ON DEFENDANT ASANTE GAINES MOTIONS TO SUPPRESS Defendant Asante Gaines was arrested on January 27, 2020 in connection with his alleged involvement in the attempted murder of four rival gang members in front of a Bridgeport state courthouse. He moves to suppress (1) the portion of his custodial statement made before he was given his Miranda warnings [Doc. # 199]; (2) the records of his cell phone number ending in 6126 obtained via search warrant [Doc. # 200]; and (3) evidence derived from his electronic monitoring bracelet [Doc. # 201]. The Government opposes all motions [Docs. ## 202, 203]. I. Background

Around noon on January 27, 2020 four men were shot in their vehicle outside of a Bridgeport courthouse. -1] ¶ 1.) Surveillance footage shows a gray Subaru Forester, which was reported stolen from Stamford, CT on January 8, 2020, drive and gun shots fired from inside the Subaru. (Id. ¶ 4.) Then the Subaru is shown speeding away from the scene. (Id.) The surveillance footage shows another vehicle, a blue Volkswagen Golf, leaving the scene in the opposite direction. Hours later, police located the blue Volkswagen in East Bridgeport. (Id.) After a brief high-speed car chase, four men exited the vehicle on foot; among them was Defendant Asante Gaines. Opp [Doc. # 203] at 7.) Police arrested Defendant, who was wearing an electronic

monitoring bracelet as a condition of his parole, 1

and brought him to the police station after he was checked for injuries at the hospital. (Id. at 3.) Police also recovered a cache of cell phones from the blue Volkswagen and another cell phone on person at the time of the arrest. (Id. at 7-9.)

At the police station, a Bridgeport police detective interviewing Defendant asked him for his name, birthdate, address and cell phone number. The Government offers the following excerpt from the interrogation:

Lt. LaMaine: Can you do me a favor and spell Asante for me? Gaines: A-s-a-n-t-e LaMaine: A-n-t-e, Gaines, right? How do you spell that? Gaines: G-a-i-n-e-s LaMaine: And your date of birth? Gaines: x/xx/96 LaMaine: And where do you live? Gaines: 431 Ellsworth Avenue, New Haven, Connecticut LaMaine: Aah cellphone number? Gaines: 475-309-6126 LaMaine: 6126, umm you have two right? Gaines LaMaine phones? What about the other one? Gaines LaMaine though? Gaines LaMaine: Oh the other one, you only use it for like Wifi? Gaines: Yeah (Omnibus Opp at 12.) Thereafter, police read Defendant his Miranda rights. Later in the interrogation, the detective told Defendant that he would seek a search warrant for the (Mot. to Suppress Custodial Statement [Doc. # 199] at 3.) During the interrogation, the detective also referred to GPS location, allegedly obtained from his Parole Officer by way of the electronic monitoring device on his ankle. (Mot. to

1 Defendant was released on parole on December 2, 2019. As a condition of parole, he agreed to wear ess [Doc. # 202-1] at 1.)

Suppress Evid. Derived from Electronic Monitoring Bracelet [Doc. # 201] at 2.) After waiving his Miranda rights, Defendant admitted to being in the blue Volkswagen with other codefendants, including Diomie Blackwell. ( [Doc. # 203-1] ¶¶ 9-10.) A car registered to Blackwell was seen by police following the

gray Subaru after the shootings. (Id. ¶ 5.)

On January 31, 2020, Bridgeport police obtained a search warrant for the call records, text message logs, data usage information, and location data for the number ending in 6126 from January 13 to January 27, 2020. (See id. ¶¶ 13-14.) Defendant was then charged with RICO conspiracy, VCAR assault with a dangerous weapon, VCAR attempted murder, and VCAR conspiracy to commit murder. (Superseding Indictment [Doc. # 92] at 1-2, 8-9.)

Defendant now moves to suppress three pieces of evidence. First, he seeks to suppress question seeking that information as well as admission that he owned a second

cellphone. ess Custodial Statement [Doc. # 199] at 1). Second, Defendant seeks to exclude and failed to provide probable cause. (Mot. to Suppress Evidence Obtained from Cellphone

[Doc. # 200] at 1). Finally, Defendant moves to suppress monitoring bracelet that he was wearing on January 27, 2020, tracking GPS data revealing

his location at various times that day and the evidence derived therefrom. Evidence Derived from Electronic Monitoring Bracelet [Doc. # 201] at 1.) The Government

opposes all motions arguing that Miranda warnings are not necessary for general pedigree questions Opp at 11), that the warrant was not overbroad, (id. at 16-17), and that, as a parolee who opted to wear the GPS tracking device, Defendant enjoys no privacy interest in the data Case 3:20-cr-00126-JBA Document 277 Filed 09/20/21 Page 3 of 14 [Doc. # 202] at 1-2).

II. Discussion

A. Custodial Statements Defendant argues that the interviewing detective suspiciously waited to recite the Miranda pre-

Miranda disclosure of his cellphone number and the fact that he owned another phone could be incriminating because, during the post-Miranda portion the interrogation, the detective Custodial Statement [Doc. # 199] at 2-3.) The Government does not contest that Defendant

was in custody and was not given his Miranda warning when police asked him about his cell phones, numbers, and usage. Rather, the Government argues that the pedigree exception applies here because he two cell phone numbers were asked for routine, administrative purposes given that Defendant was arrested with two cell phones. (Omnibus Opp at 11.)

. . . shall be compelled in any criminal case To preserve this right, law enforcement must inform individuals subject to custodial interrogation of their rights to consult with a lawyer and to have the lawyer with him during int Miranda v. Arizona, 384 U.S.

436, 471 (1966). The Miranda safeguards protect any person in custody who is subjected to either express questioning or its functional equivalent. Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005).

However, an exception to the Miranda requirement exists where questioning comprises merely e information through a law

enforcement officer s questions during the non-investigative booking process that typically follows a suspect s arrest . . . Id. at 221 (citing Pennsylvania v. Muniz, 496 U.S. 582, 601, (1990)). To be sure, not all questions fall under this exception. It applies only when the question asked by an officer: booking or pretrial services, (2) appear[s] reasonably related to the police s administrative

concerns, and (3) . . . United States v. Durand, 767 F. App x 83, 87 (2d Cir. 2019) (quoting Rosa, 396 F.3d at 221) (internal quotations omitted); see also United States v. Mack, No. 3:13-CR-00054 (MPS), 2016 WL 1391043, at *3 -Miranda question as to whether an incriminating response [] a United States v. Barclay,

No. 1:19-CR-00221-BLW, 2020 WL 5995579, at *3 (D. Idaho Oct. 9, 2020) (suppressing pre- Miranda admission which the defendant solicited pictures from an underaged girl using the phone number he

gave to the police).

Initially, Defendant seeking his cell phone number was a valid pedigree question. Police may ask Defendant for his cell phone number as a matter of administrative booking before advising Defendant of his Miranda rights. See United States v. Durr, No. 09 CR 6232L, 2010 WL 3199887, at *7 (W.D.N.Y. July 22, 2010); see also United States v. Nogueira, No. 08 CR 876 (JG), 2009 WL 3242087, *2 (E.D.N.Y. 2009) (finding that uestions regarding the defendants telephone numbers amounted to routine booking questions . Although the police used the information obtained from their pre-Miranda questioning to secure a warrant for the 6126 number, the coincidentally incriminating nature of the that pedigree questioning does not fall under the strictures of Miranda. Rosa, 396 F.3d at

221. The police might have presumed that one of the cell arrest was linked to his personal phone number, but it was reasonable as an administrative

formality to obtain an accurate phone number from Defendant. See United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986) (affirming admission of defendant s response to a pedigree question, even though the response helped establish defendant s intent to commit the crime with which he was charged). Thus, the Court concludes that the Bridgeport police detective lawfully asked for cell phone number, as the question was asked for an administrative purpose and was not reasonably likely to elicit incriminating evidence.

But once Defendant confirmed his phone number for the detective, further inquiry into a second phone went beyond the pedigree exception. The detective had established just before inquiring about a second phone in police possession, obviating any administrative need to learn whether that second phone belonged to Defendant. United States v. Mateo Because the DEA Agents were well aware of Defendant s cell phone number, they had no need to ask her for it in order to process her for a federal crime. . Without a clear administrative need, the questions likely served an investigative purpose.

Furthermore, the police should have known that De another phone recovered during his arrest might be incriminating. representation to Defendant that he intended to apply for a warrant in connection with the

phones, (Mot. to Suppress Custodial Statement [Doc. # 199] at 3), the police likely knew during the interview that tted use of the phone would be useful to the Government in proving one or more elements to the conspiracy charged against him, (Omnibus Opp at 12). Thus, extracting from Defendant information about a second cell phone after already acquiring his phone number offered little more than verbal confirmation of a potentially See Durand, F. Supp. 3d at 73; see also Mateo, 392 F. Supp. 3d at 457, 462 (holding a question about a phone

number improper where the number was already known, and phone calls were recorded). Accordingly use of a second cell phone must be excluded because he was not properly informed of his Miranda rights before that questioning commenced.

B. Defendant raises three arguments to support his contention that the warrant issued to search his cell phone was unlawful: (1) it was not supported by probable cause; (2) it lacked particularity; and (3) it was overbroad in the scope of information searched and timeframe from which data was gathered. (Mot. to Suppress Evidence Obtained from Cellphone [Doc. # 200] at 1.) Conversely, the Government justifies the warrant as sufficiently specific in scope and time because the fourteen-day period for which the warrant sought s corresponded with the time during which it alleges Defendant engaged in a conspiracy with his codefendants. (Omnibus Opp at 20.) The Government argues further that the warrant sought only communications logs rather than the content of those messages so that investigators could determine only who else Defendant engaged in the alleged conspiracy with and when. (Id. at 20-21.) Finally, the Government maintains that, if the warrant was not sufficiently particular, the good faith exception applies because the officers relied in good faith on a judg Id. at 22.)

earch is undertaken by law enforcement officials to discover

evidence of criminal wrongdoing . . . reasonableness generally requires the obtaining of a Veronia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (citing Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989)). When police acquire a warrant supported by a judicial finding of probable cause, that United

States v. Travisano, 724 F.2d 341, 345 (1983) (internal citations omitted). The Court considers for a finding of probable cause. United States v. Clark, 638 F.3d 89, 93 (2d

Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). With this framework in mind, the Court reviews the warrant application for each potential Constitutional infirmity Defendant asserts.

i. Probable Cause United States v.

Webb, 623 F.2d 758, 761 (2d Cir. 1980). [n] . . . assessment of probabilities in particular factual contexts[] not readily, or even usefully, reduced to a neat Gates, 462 U.S. at 232. A finding of probable cause is especially essential in the context of smartphone searches. Courts violations occasione United States v.

Galpin enforcement seize and search people becau United States v.

Smith, 967 F.3d 198, 207 (2d Cir. 2020) (internal citations omitted); see also Riley v. California and a qualitative sense from other objects that might be kept on an arrestee s person[, . . . ] notabl[y

Even in view of the substantial privacy concerns contemplated by the Supreme Court in Riley, the warrant executed in this case did not infringe Fourth Amendment rights required by Riley and its progeny. See Smith v. Maryland, 442 U.S. 735, 745 (1979) (holding

ntertain[] no actual expectation of privacy in the phone numbers [] dialed,

Moreover, while location data and other data mined from a cell phone are afforded heightened protections, those considerations were accounted for when the police obtained a warrant supported by cell phone for his communication and location records. See Riley, 573 U.S. at 386 (holding that police officers must generally obtain a warrant before searching the contents of a phone); Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) ( Before compelling a wireless carrier to turn over a subscriber s [cell site location information], the Government's obligation is a familiar one get a warrant. ).

probable cause. First, Defendant was the occupant of a vehicle matching the description of

the Volkswagen seen at the courthouse at the time of the shootings. (See Search Warrant, -1] ¶ 4 ankle monitor confirm this fact. (Id. ¶ 7.) The location data from the cell phone reasonably

could provide police with additional corroboration. Second, Defendant admitted to being at the courthouse with another codefendant, Diomie Blackwell whose car was also seen following the gray Subaru after the shootings (Id. ¶¶ 5, 9-10), raising further suspicion about s and the other suspects involved. This collection of events coupled with the deference afforded to judicial determinations of probable cause satisfies the Court that the magistrate judge had a substantial basis for finding probable cause cell phone data would reveal incriminating evidence about his activities.

ii. Particularity/Overbreadth overbreadth. The issue of particularity concerns whether the warrant identifies with reasonable certainty those items to be seized. United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). To be h the police have

established probable cause[,] describe the place to be searched[, and] specify the items to be Galpin, 720 F.3d at 445 46 (internal citations omitted); see also United States v. Bianco, 998 F.2d 1112, 1116 (2d Cir. 1993) (finding unconstitutional a warrant that did not mention a particular criminal statute or specify the type of criminal conduct).

On the other hand, the search and s United States v. Dupree,

781 F. Supp. 2d 115, 148 n. 14 (E.D.N.Y. 2011) (internal quotation marks omitted). Thus, an otherwise unobjectionable description of the objects to be seized is defective if it is broader Galpin, 720 F.3d at 446 (internal quotations omitted) (citing 2 W. LaFave, Search and Seizure § 4.6(a) (5th ed. 2012)); United States v. George, 975 F.2d 72, 76 (2d Cir. 1992) (finding that a warrant because it did not specify the nature of suspected crimes); United States v. Buck, 813 F.2d

588, 590 92 (2d Cir. 1987) limit the type of evidence to be seized).

The warrant in this case was sufficiently particular in the data requested. The police had probable cause to believe that the cell phone location data would confirm what they implicated his involvement in the shootings and his communications would reveal his involvement in planning. The police did not seek a total extraction of the cell limited the participation in the planning and execution of the conspiracy. Defendant argues that the

associations with the other codefendants. (Mot. to Suppress Evidence Obtained from

Cellphone [Doc. # 200] at 6.) But when viewed in the totality of the circumstances, that is not so. The issuing magistrate judge had sufficient information to support probable cause that that his movements were consistent with the movements of the other codefendants the day the courthouse shootings took place. (See -1] ¶ 13; Omnibus Opp at 9 n.4.) Thus, the warrant did not authorize a search that was less particular than the probable cause justified.

Additionally, the warrant was not overbroad. The warrant authorized the seizure of the call records, text messages, data usage, and location records for the time period of January 13, 2020 shortly after the gray Subaru was reported as stolen to January 27, 2020, the date of the shootings. This temporal limit is sufficiently tied to the acts of the conspiracy for which Defendant is charged. Although the Government does not allege that Defendant occupied the stolen Subaru, his activities before and after the shootings reveal relevant connections to the occupants of the Subaru. (See # 203-1] at ¶¶ 4-5.) As the warrant application detailed, the police had probable cause to

believe that Defendant had been in communication with others in planning an attempted murder and that the theft of the Subaru was a step toward that goal. (See generally id.). Therefore, the warrant was not overly broad in scope or timeframe.

Considering the specific type of information sought by the police, the temporal limits placed on those records, suspected offenses, and the deference owed to a judicial determination of probable cause,

the Court finds that the warrant conformed to the measure of probable cause and particularity the Fourth Amendment demands and it was not overbroad in its reach. The evidence gathered as a result will not be excluded. 2

2 The Government additionally argues that the good faith exception applies to the evidence gathered pursuant to the warrant because the police relied in good faith on a magistrate Case 3:20-cr-00126-JBA Document 277 Filed 09/20/21 Page 11 of 14

C. Data Obtained from Electronic Monitoring Device Defendant contends that the evidence should be suppressed because the gathering of data from the electronic monitoring device was a search that violated his reasonable expectation of privacy under the Fourth Amendment and he did not consent to the data being shared with the police. (See from Electronic Monitoring Bracelet [Doc. # 204] at 2].) The Government argues that the

hould not be suppressed because Defendant had no legitimate expectation of privacy and he consented to the dissemination of the location data. (See . to Mot. to Suppress Evid. Derived from Electronic Monitoring Bracelet ( Gov t s Resp. ) [Doc. # 202] at 9.)

United States v. Chadwick, 433 U.S. 1, 7 (1977),

abrogated by California v. Acevedo, 500 U.S. 565 (1991). of privacy [] because . . . parole is an established variation on imprisonment of convicted

criminals, parolees are more likely to commit futur Samson v. California, 547 U.S.

843, 850, 853 (2006) (internal quotations omitted) unambiguous search condition significantly diminishe[s his] reasonable expectation of

Id. at 852.

When Defendant chose to be released on parole, he agreed to fully participate in the GPS tracking program and was made aware that his location would be recorded in an official record via an electronic monitoring device on his ankle. (See GPS Monitoring Agreement at 1.) Thus, he has a substantially diminished expectation of privacy in his location at any given

at 22.) Because the Court finds that the warrant was valid, it declines to opine on this argument.

time. Samson, 547 U.S. at 852. While this does not mean that Defendant enjoys no privacy in his whereabouts, what privacy interest he does retain must be balanced against the law enforcement motivation for extracting data from the monitoring device. See United States v. Dennis, No. 3:18-cr-328 (VAB), 2020 WL 1316658, at *7-8 (D. Conn. March 20, 2020) (finding that the parolee subjected to a law enforcement search had at least a minimal expectation of privacy that needed to be balanced against the government interest).

Turning to the law enforcement interest, the police had a legitimate reason for Defendant violated an Exclusion Order that was a condition of his parole by traveling to Bridgeport on the day of the shootings. (Gov t s Resp. at 5.) Moreover, his connections to the codefendants gave police cause to believe that Defendant was involved in a conspiracy to murder members of a rival gang at the courthouse. In the hours after the courthouse shootings, police were engaged in an effort to apprehend the suspects who were on the loose at that time. Considering the G Samson, 547 U.S. at 853,

and the particular circumstances, it was reasonable for police to Officer confirming his whereabouts that day, to

ascertain the extent of his involvement in a recent crime, and to track him down for arrest. (See -1] at 4.)

Due to minimal privacy interest in the GPS data recorded by his electronic ankle monitor, , and the knowledge The evidence gathered from the GPS tracking device will not be suppressed.

III. Conclusion

[Doc. # with respect to the data gathered from his cell phone and GPS tracking device [Docs. ## 200,

201] are DENIED. No evidentiary hearing is necessary as the parties do not have any material factual disputes. 3

IT IS SO ORDERED.

_____________________/s/_______________________ Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 20th day of September 2021.

3 ers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) (internal citations and quotation marks omitted). In the present case, however, although D s arguments raise issues relating to the constitutionality of the un-Mirandized statements, warrant, and ankle monitor data search, there are no contested issues of fact. Therefore, the Court does not find it necessary to hold such hearing.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. ASANTE GAINES

Crim. No. 3:20cr126 (JBA)

September 20, 2021 RULING ON DEFENDANT ASANTE GAINES MOTIONS TO SUPPRESS Defendant Asante Gaines was arrested on January 27, 2020 in connection with his alleged involvement in the attempted murder of four rival gang members in front of a Bridgeport state courthouse. He moves to suppress (1) the portion of his custodial statement made before he was given his Miranda warnings [Doc. # 199]; (2) the records of his cell phone number ending in 6126 obtained via search warrant [Doc. # 200]; and (3) evidence derived from his electronic monitoring bracelet [Doc. # 201]. The Government opposes all motions [Docs. ## 202, 203]. I. Background

Around noon on January 27, 2020 four men were shot in their vehicle outside of a Bridgeport courthouse. -1] ¶ 1.) Surveillance footage shows a gray Subaru Forester, which was reported stolen from Stamford, CT on January 8, 2020, drive and gun shots fired from inside the Subaru. (Id. ¶ 4.) Then the Subaru is shown speeding away from the scene. (Id.) The surveillance footage shows another vehicle, a blue Volkswagen Golf, leaving the scene in the opposite direction. Hours later, police located the blue Volkswagen in East Bridgeport. (Id.) After a brief high-speed car chase, four men exited the vehicle on foot; among them was Defendant Asante Gaines. Opp [Doc. # 203] at 7.) Police arrested Defendant, who was wearing an electronic

monitoring bracelet as a condition of his parole, 1

and brought him to the police station after he was checked for injuries at the hospital. (Id. at 3.) Police also recovered a cache of cell phones from the blue Volkswagen and another cell phone on person at the time of the arrest. (Id. at 7-9.)

At the police station, a Bridgeport police detective interviewing Defendant asked him for his name, birthdate, address and cell phone number. The Government offers the following excerpt from the interrogation:

Lt. LaMaine: Can you do me a favor and spell Asante for me? Gaines: A-s-a-n-t-e LaMaine: A-n-t-e, Gaines, right? How do you spell that? Gaines: G-a-i-n-e-s LaMaine: And your date of birth? Gaines: x/xx/96 LaMaine: And where do you live? Gaines: 431 Ellsworth Avenue, New Haven, Connecticut LaMaine: Aah cellphone number? Gaines: 475-309-6126 LaMaine: 6126, umm you have two right? Gaines LaMaine phones? What about the other one? Gaines LaMaine though? Gaines LaMaine: Oh the other one, you only use it for like Wifi? Gaines: Yeah (Omnibus Opp at 12.) Thereafter, police read Defendant his Miranda rights. Later in the interrogation, the detective told Defendant that he would seek a search warrant for the (Mot. to Suppress Custodial Statement [Doc. # 199] at 3.) During the interrogation, the detective also referred to GPS location, allegedly obtained from his Parole Officer by way of the electronic monitoring device on his ankle. (Mot. to

1 Defendant was released on parole on December 2, 2019. As a condition of parole, he agreed to wear ess [Doc. # 202-1] at 1.)

Suppress Evid. Derived from Electronic Monitoring Bracelet [Doc. # 201] at 2.) After waiving his Miranda rights, Defendant admitted to being in the blue Volkswagen with other codefendants, including Diomie Blackwell. ( [Doc. # 203-1] ¶¶ 9-10.) A car registered to Blackwell was seen by police following the

gray Subaru after the shootings. (Id. ¶ 5.)

On January 31, 2020, Bridgeport police obtained a search warrant for the call records, text message logs, data usage information, and location data for the number ending in 6126 from January 13 to January 27, 2020. (See id. ¶¶ 13-14.) Defendant was then charged with RICO conspiracy, VCAR assault with a dangerous weapon, VCAR attempted murder, and VCAR conspiracy to commit murder. (Superseding Indictment [Doc. # 92] at 1-2, 8-9.)

Defendant now moves to suppress three pieces of evidence. First, he seeks to suppress question seeking that information as well as admission that he owned a second

cellphone. ess Custodial Statement [Doc. # 199] at 1). Second, Defendant seeks to exclude and failed to provide probable cause. (Mot. to Suppress Evidence Obtained from Cellphone

[Doc. # 200] at 1). Finally, Defendant moves to suppress monitoring bracelet that he was wearing on January 27, 2020, tracking GPS data revealing

his location at various times that day and the evidence derived therefrom. Evidence Derived from Electronic Monitoring Bracelet [Doc. # 201] at 1.) The Government

opposes all motions arguing that Miranda warnings are not necessary for general pedigree questions Opp at 11), that the warrant was not overbroad, (id. at 16-17), and that, as a parolee who opted to wear the GPS tracking device, Defendant enjoys no privacy interest in the data Case 3:20-cr-00126-JBA Document 277 Filed 09/20/21 Page 3 of 14 [Doc. # 202] at 1-2).

II. Discussion

A. Custodial Statements Defendant argues that the interviewing detective suspiciously waited to recite the Miranda pre-

Miranda disclosure of his cellphone number and the fact that he owned another phone could be incriminating because, during the post-Miranda portion the interrogation, the detective Custodial Statement [Doc. # 199] at 2-3.) The Government does not contest that Defendant

was in custody and was not given his Miranda warning when police asked him about his cell phones, numbers, and usage. Rather, the Government argues that the pedigree exception applies here because he two cell phone numbers were asked for routine, administrative purposes given that Defendant was arrested with two cell phones. (Omnibus Opp at 11.)

. . . shall be compelled in any criminal case To preserve this right, law enforcement must inform individuals subject to custodial interrogation of their rights to consult with a lawyer and to have the lawyer with him during int Miranda v. Arizona, 384 U.S.

436, 471 (1966). The Miranda safeguards protect any person in custody who is subjected to either express questioning or its functional equivalent. Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005).

However, an exception to the Miranda requirement exists where questioning comprises merely e information through a law

enforcement officer s questions during the non-investigative booking process that typically follows a suspect s arrest . . . Id. at 221 (citing Pennsylvania v. Muniz, 496 U.S. 582, 601, (1990)). To be sure, not all questions fall under this exception. It applies only when the question asked by an officer: booking or pretrial services, (2) appear[s] reasonably related to the police s administrative

concerns, and (3) . . . United States v. Durand, 767 F. App x 83, 87 (2d Cir. 2019) (quoting Rosa, 396 F.3d at 221) (internal quotations omitted); see also United States v. Mack, No. 3:13-CR-00054 (MPS), 2016 WL 1391043, at *3 -Miranda question as to whether an incriminating response [] a United States v. Barclay,

No. 1:19-CR-00221-BLW, 2020 WL 5995579, at *3 (D. Idaho Oct. 9, 2020) (suppressing pre- Miranda admission which the defendant solicited pictures from an underaged girl using the phone number he

gave to the police).

Initially, Defendant seeking his cell phone number was a valid pedigree question. Police may ask Defendant for his cell phone number as a matter of administrative booking before advising Defendant of his Miranda rights. See United States v. Durr, No. 09 CR 6232L, 2010 WL 3199887, at *7 (W.D.N.Y. July 22, 2010); see also United States v. Nogueira, No. 08 CR 876 (JG), 2009 WL 3242087, *2 (E.D.N.Y. 2009) (finding that uestions regarding the defendants telephone numbers amounted to routine booking questions . Although the police used the information obtained from their pre-Miranda questioning to secure a warrant for the 6126 number, the coincidentally incriminating nature of the that pedigree questioning does not fall under the strictures of Miranda. Rosa, 396 F.3d at

221. The police might have presumed that one of the cell arrest was linked to his personal phone number, but it was reasonable as an administrative

formality to obtain an accurate phone number from Defendant. See United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986) (affirming admission of defendant s response to a pedigree question, even though the response helped establish defendant s intent to commit the crime with which he was charged). Thus, the Court concludes that the Bridgeport police detective lawfully asked for cell phone number, as the question was asked for an administrative purpose and was not reasonably likely to elicit incriminating evidence.

But once Defendant confirmed his phone number for the detective, further inquiry into a second phone went beyond the pedigree exception. The detective had established just before inquiring about a second phone in police possession, obviating any administrative need to learn whether that second phone belonged to Defendant. United States v. Mateo Because the DEA Agents were well aware of Defendant s cell phone number, they had no need to ask her for it in order to process her for a federal crime. . Without a clear administrative need, the questions likely served an investigative purpose.

Furthermore, the police should have known that De another phone recovered during his arrest might be incriminating. representation to Defendant that he intended to apply for a warrant in connection with the

phones, (Mot. to Suppress Custodial Statement [Doc. # 199] at 3), the police likely knew during the interview that tted use of the phone would be useful to the Government in proving one or more elements to the conspiracy charged against him, (Omnibus Opp at 12). Thus, extracting from Defendant information about a second cell phone after already acquiring his phone number offered little more than verbal confirmation of a potentially See Durand, F. Supp. 3d at 73; see also Mateo, 392 F. Supp. 3d at 457, 462 (holding a question about a phone

number improper where the number was already known, and phone calls were recorded). Accordingly use of a second cell phone must be excluded because he was not properly informed of his Miranda rights before that questioning commenced.

B. Defendant raises three arguments to support his contention that the warrant issued to search his cell phone was unlawful: (1) it was not supported by probable cause; (2) it lacked particularity; and (3) it was overbroad in the scope of information searched and timeframe from which data was gathered. (Mot. to Suppress Evidence Obtained from Cellphone [Doc. # 200] at 1.) Conversely, the Government justifies the warrant as sufficiently specific in scope and time because the fourteen-day period for which the warrant sought s corresponded with the time during which it alleges Defendant engaged in a conspiracy with his codefendants. (Omnibus Opp at 20.) The Government argues further that the warrant sought only communications logs rather than the content of those messages so that investigators could determine only who else Defendant engaged in the alleged conspiracy with and when. (Id. at 20-21.) Finally, the Government maintains that, if the warrant was not sufficiently particular, the good faith exception applies because the officers relied in good faith on a judg Id. at 22.)

earch is undertaken by law enforcement officials to discover

evidence of criminal wrongdoing . . . reasonableness generally requires the obtaining of a Veronia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (citing Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989)). When police acquire a warrant supported by a judicial finding of probable cause, that United

States v. Travisano, 724 F.2d 341, 345 (1983) (internal citations omitted). The Court considers for a finding of probable cause. United States v. Clark, 638 F.3d 89, 93 (2d

Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). With this framework in mind, the Court reviews the warrant application for each potential Constitutional infirmity Defendant asserts.

i. Probable Cause United States v.

Webb, 623 F.2d 758, 761 (2d Cir. 1980). [n] . . . assessment of probabilities in particular factual contexts[] not readily, or even usefully, reduced to a neat Gates, 462 U.S. at 232. A finding of probable cause is especially essential in the context of smartphone searches. Courts violations occasione United States v.

Galpin enforcement seize and search people becau United States v.

Smith, 967 F.3d 198, 207 (2d Cir. 2020) (internal citations omitted); see also Riley v. California and a qualitative sense from other objects that might be kept on an arrestee s person[, . . . ] notabl[y

Even in view of the substantial privacy concerns contemplated by the Supreme Court in Riley, the warrant executed in this case did not infringe Fourth Amendment rights required by Riley and its progeny. See Smith v. Maryland, 442 U.S. 735, 745 (1979) (holding

ntertain[] no actual expectation of privacy in the phone numbers [] dialed,

Moreover, while location data and other data mined from a cell phone are afforded heightened protections, those considerations were accounted for when the police obtained a warrant supported by cell phone for his communication and location records. See Riley, 573 U.S. at 386 (holding that police officers must generally obtain a warrant before searching the contents of a phone); Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) ( Before compelling a wireless carrier to turn over a subscriber s [cell site location information], the Government's obligation is a familiar one get a warrant. ).

probable cause. First, Defendant was the occupant of a vehicle matching the description of

the Volkswagen seen at the courthouse at the time of the shootings. (See Search Warrant, -1] ¶ 4 ankle monitor confirm this fact. (Id. ¶ 7.) The location data from the cell phone reasonably

could provide police with additional corroboration. Second, Defendant admitted to being at the courthouse with another codefendant, Diomie Blackwell whose car was also seen following the gray Subaru after the shootings (Id. ¶¶ 5, 9-10), raising further suspicion about s and the other suspects involved. This collection of events coupled with the deference afforded to judicial determinations of probable cause satisfies the Court that the magistrate judge had a substantial basis for finding probable cause cell phone data would reveal incriminating evidence about his activities.

ii. Particularity/Overbreadth overbreadth. The issue of particularity concerns whether the warrant identifies with reasonable certainty those items to be seized. United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). To be h the police have

established probable cause[,] describe the place to be searched[, and] specify the items to be Galpin, 720 F.3d at 445 46 (internal citations omitted); see also United States v. Bianco, 998 F.2d 1112, 1116 (2d Cir. 1993) (finding unconstitutional a warrant that did not mention a particular criminal statute or specify the type of criminal conduct).

On the other hand, the search and s United States v. Dupree,

781 F. Supp. 2d 115, 148 n. 14 (E.D.N.Y. 2011) (internal quotation marks omitted). Thus, an otherwise unobjectionable description of the objects to be seized is defective if it is broader Galpin, 720 F.3d at 446 (internal quotations omitted) (citing 2 W. LaFave, Search and Seizure § 4.6(a) (5th ed. 2012)); United States v. George, 975 F.2d 72, 76 (2d Cir. 1992) (finding that a warrant because it did not specify the nature of suspected crimes); United States v. Buck, 813 F.2d

588, 590 92 (2d Cir. 1987) limit the type of evidence to be seized).

The warrant in this case was sufficiently particular in the data requested. The police had probable cause to believe that the cell phone location data would confirm what they implicated his involvement in the shootings and his communications would reveal his involvement in planning. The police did not seek a total extraction of the cell limited the participation in the planning and execution of the conspiracy. Defendant argues that the

associations with the other codefendants. (Mot. to Suppress Evidence Obtained from

Cellphone [Doc. # 200] at 6.) But when viewed in the totality of the circumstances, that is not so. The issuing magistrate judge had sufficient information to support probable cause that that his movements were consistent with the movements of the other codefendants the day the courthouse shootings took place. (See -1] ¶ 13; Omnibus Opp at 9 n.4.) Thus, the warrant did not authorize a search that was less particular than the probable cause justified.

Additionally, the warrant was not overbroad. The warrant authorized the seizure of the call records, text messages, data usage, and location records for the time period of January 13, 2020 shortly after the gray Subaru was reported as stolen to January 27, 2020, the date of the shootings. This temporal limit is sufficiently tied to the acts of the conspiracy for which Defendant is charged. Although the Government does not allege that Defendant occupied the stolen Subaru, his activities before and after the shootings reveal relevant connections to the occupants of the Subaru. (See # 203-1] at ¶¶ 4-5.) As the warrant application detailed, the police had probable cause to

believe that Defendant had been in communication with others in planning an attempted murder and that the theft of the Subaru was a step toward that goal. (See generally id.). Therefore, the warrant was not overly broad in scope or timeframe.

Considering the specific type of information sought by the police, the temporal limits placed on those records, suspected offenses, and the deference owed to a judicial determination of probable cause,

the Court finds that the warrant conformed to the measure of probable cause and particularity the Fourth Amendment demands and it was not overbroad in its reach. The evidence gathered as a result will not be excluded. 2

2 The Government additionally argues that the good faith exception applies to the evidence gathered pursuant to the warrant because the police relied in good faith on a magistrate Case 3:20-cr-00126-JBA Document 277 Filed 09/20/21 Page 11 of 14

C. Data Obtained from Electronic Monitoring Device Defendant contends that the evidence should be suppressed because the gathering of data from the electronic monitoring device was a search that violated his reasonable expectation of privacy under the Fourth Amendment and he did not consent to the data being shared with the police. (See from Electronic Monitoring Bracelet [Doc. # 204] at 2].) The Government argues that the

hould not be suppressed because Defendant had no legitimate expectation of privacy and he consented to the dissemination of the location data. (See . to Mot. to Suppress Evid. Derived from Electronic Monitoring Bracelet ( Gov t s Resp. ) [Doc. # 202] at 9.)

United States v. Chadwick, 433 U.S. 1, 7 (1977),

abrogated by California v. Acevedo, 500 U.S. 565 (1991). of privacy [] because . . . parole is an established variation on imprisonment of convicted

criminals, parolees are more likely to commit futur Samson v. California, 547 U.S.

843, 850, 853 (2006) (internal quotations omitted) unambiguous search condition significantly diminishe[s his] reasonable expectation of

Id. at 852.

When Defendant chose to be released on parole, he agreed to fully participate in the GPS tracking program and was made aware that his location would be recorded in an official record via an electronic monitoring device on his ankle. (See GPS Monitoring Agreement at 1.) Thus, he has a substantially diminished expectation of privacy in his location at any given

at 22.) Because the Court finds that the warrant was valid, it declines to opine on this argument.

time. Samson, 547 U.S. at 852. While this does not mean that Defendant enjoys no privacy in his whereabouts, what privacy interest he does retain must be balanced against the law enforcement motivation for extracting data from the monitoring device. See United States v. Dennis, No. 3:18-cr-328 (VAB), 2020 WL 1316658, at *7-8 (D. Conn. March 20, 2020) (finding that the parolee subjected to a law enforcement search had at least a minimal expectation of privacy that needed to be balanced against the government interest).

Turning to the law enforcement interest, the police had a legitimate reason for Defendant violated an Exclusion Order that was a condition of his parole by traveling to Bridgeport on the day of the shootings. (Gov t s Resp. at 5.) Moreover, his connections to the codefendants gave police cause to believe that Defendant was involved in a conspiracy to murder members of a rival gang at the courthouse. In the hours after the courthouse shootings, police were engaged in an effort to apprehend the suspects who were on the loose at that time. Considering the G Samson, 547 U.S. at 853,

and the particular circumstances, it was reasonable for police to Officer confirming his whereabouts that day, to

ascertain the extent of his involvement in a recent crime, and to track him down for arrest. (See -1] at 4.)

Due to minimal privacy interest in the GPS data recorded by his electronic ankle monitor, , and the knowledge The evidence gathered from the GPS tracking device will not be suppressed.

III. Conclusion

[Doc. # with respect to the data gathered from his cell phone and GPS tracking device [Docs. ## 200,

201] are DENIED. No evidentiary hearing is necessary as the parties do not have any material factual disputes. 3

IT IS SO ORDERED.

_____________________/s/_______________________ Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 20th day of September 2021.

3 ers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) (internal citations and quotation marks omitted). In the present case, however, although D s arguments raise issues relating to the constitutionality of the un-Mirandized statements, warrant, and ankle monitor data search, there are no contested issues of fact. Therefore, the Court does not find it necessary to hold such hearing.

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