United States v. Swinton

251 F. Supp. 3d 544, 2017 U.S. Dist. LEXIS 62172
CourtDistrict Court, W.D. New York
DecidedApril 24, 2017
Docket6:15-CR-06055-EAW
StatusPublished
Cited by3 cases

This text of 251 F. Supp. 3d 544 (United States v. Swinton) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Swinton, 251 F. Supp. 3d 544, 2017 U.S. Dist. LEXIS 62172 (W.D.N.Y. 2017).

Opinion

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Defendant Robert L. Swinton, Jr. (“Defendant”), appearing pro se with standby counsel, stands accused by way of a five-count Indictment, returned April 21, 2015, as follows:

Count 1: Conspiracy to manufacture and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846;
Count' 2: Possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2;
Count 3: Use of premises to manufacture, distribute, and use controlled substances, in violation of 21 U.S.C. § 856(a)(1), and 18 U.S.C. § 2;
Count 4: Possession of firearms in furtherance of drug trafficking crimes (the offenses charged in Counts 1 through 3), in violation of 18 U.S.C. §§ 924(c)(l)(A)(i) and 2; and
Count 5: Possession of firearms and ammunition by a convicted , felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);

(Dkt. 53). The Court referred all pre-trial matters to Magistrate Judge Marian W. Payson pursuant to 28 • U.S.C. § 636(b)(1)(A) and (B). (Dkt. 54).

Defendant has filed both counseled and pro se objections to the Magistrate Judge’s .two Reports and Recommendations (Dkt. 78; Dkt. 94) (“R .& Rs”) that recommended denial of Defendant’s various suppression motions. (Dkt. 59). After a de novo review, including a careful review of the submissions 'of the parties, the Court accepts and adopts the proposed findings and conclusions set forth in the R. & Rs, for the reasons set forth therein. However, with respect to Defendant’s motion to suppress the evidence obtained from Defendant’s cellular telephone, while the Court [548]*548agrees with the Magistrate Judge’s recommendation to deny Defendant’s motion to suppress that evidence, this Court believes that, in addition to the reasoning that the search fell within the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the plain language of the warrant authorized the search of the cellular telephone text messages and related content.

PROCEDURAL HISTORY

On July 6, 2015, Defendant, through counsel, filed a pretrial motion seeking various forms of relief. (Dkt. 59). Among other requests, Defendant sought a Franks hearing and moved to suppress tangible evidence (including the cellular telephone content), statements he made during and subsequent to the execution of a search warrant on October 16, 2012, and recorded telephone calls he made from the Monroe County Jail. (Id.). On August 3, 2015, the Government filed a response in opposition. (Dkt. 61). After additional filings by both parties (Dkt. 63; Dkt. 67; Dkt. 70), and appearances before Judge Payson (Dkt. 62; Dkt. 65; Dkt. 66; Dkt. 68), Judge Payson conducted an evidentia-ry hearing on December 1, 2015, at which Rochester Police Sergeant Edward McDonald testified about Defendant’s statements made during the execution of a search warrant at 562 Maple Street, and Rochester Police Investigator Myron Moses testified about Defendant’s statements made several hours later at the Public Safety Building. (Dkt. 71; Dkt. 72). The parties filed post-hearing submissions before Judge Payson. (Dkt. 75; Dkt. 76; Dkt. 77).- ,

On February 10, 2016, Judge Payson issued a Report and Recommendation recommending that the Court deny Defendant’s request for a Franks hearing and deny his motions to suppress tangible evidence, statements made during and subsequent to the execution of the search warrant, and recorded telephone calls he made from the Monroe County Jail (“February 2016 R & R”). (Dkt. 78 at 30). However, Judge Payson reserved decision on Defendant’s motion to suppress certain evidence seized from the cellular telephone pending an evidentiary hearing. (Id.).

An evidentiary hearing was conducted before Judge Payson on April 4, 2016, at which Commander Joseph Morabito, who was employed by the Rochester Police Department and extracted the text messages from Defendant’s cellular telephone, testified about, inter alia, the basis for his belief that the search warrant authorized the extraction. (Dkt. 83; Dkt. 84). The parties later submitted post-hearing mem-oranda of law. (Dkt. 90; Dkt. 91).

On October 21, 2016, Judge Payson issued a second Report and Recommendation recommending that the Court deny Defendant’s motion to suppress evidence seized from the cellular telephone (“October 2016 R <& R”), reasoning that the good faith exception applied even if the warrant’s plain language did not authorize the search. (Dkt. 94);

On December 12, 2016, Defendant, through counsel, filed consolidated objections to the R & Rs. (Dkt. 101). On February 17, 2017, the Government filed a response to Defendant’s consolidated objections. (Dkt. 107).

On or about March 3, 2017, this Court received documentation from Defendant requesting, among other things, to proceed pro se. On March 10, 2017, after conducting a colloquy with Defendant, the Court granted Defendant’s request to proceed pro se. (Dkt. 115). On that same date, the Court arranged for the Clerk’s Office to file the various written submissions received from Defendant, including the supplemental pro se objections to the R & Rs [549]*549(Dkt. 112), an “Affidavit of Truth” (Dkt. 113), and an “Affidavit of Due Process Violations” (Dkt. 114). Defendant requested that the Court consider these additional submissions, and the Court permitted the Government an opportunity to respond. (Dkt. 116; Dkt. 117). On March 23, 2017, the Government filed a response to the additional pro se submissions. (Dkt. 118).

DISCUSSION

A district court reviews any specific objections to a report and recommendation under a de novo standard. Fed. R. Crim. P. 59(b)(3);' see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made”). To trigger the' de novo

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Bluebook (online)
251 F. Supp. 3d 544, 2017 U.S. Dist. LEXIS 62172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-swinton-nywd-2017.