United States v. Lambus (251 F. Supp. 3d 470, 2017)

Citations

251 F. Supp. 3d 470

Full opinion text

MEMORANDUM AND ORDER ON MOTION TO SUPPRESS

Jack B. Weinstein, Senior United States District Judge

Table of Contents

I. Introduction... 474

II. Facts... 474

A. State Parole Supervision of Lam-bus. . .475

B. Installation of the Ankle Bracelet Tracking Device... 476

C. Federal Takeover.. .477

1. BSS Collaboration with Federal Law Enforcement.. .477

2. Circumvention of the DOCCS Supervisory Bureau...483

3. Use of Tracking Devices Solely to Further the Federal Criminal Investigation. . .485

4. Knowledge by Federal Authorities of Need for Judicial Approval... 487

III. Law...488

A. Motion to Suppress... 488

B. Requirement of Federal Judicial Approval for Placement or Use of Tracking Devices for Investigatory Purposes ...490

C. Supreme Court Requirement of Judicial Approval for Tracking Devices ...492

D. State Searches under Control of Federal Rules if Evidence is to be Used in Federal Prosecutions... 493

IV. Application of Law to Facts... 494

A. Installation of Tracking Devices ...494

B. Use of Tracking Device is a Separate Search...495

C. Rules on Obtaining Judicial Approval Known to Federal Officials... 496

D. Consent Not Given... 497

E. Privacy Right of Defendant Violated. . .498

V. “Good-Faith” Exception to the Exclusionary Rule... 499

VI. Procedural History.. .501

VII. Need for. Statutory and Supreme Court Clarification.., 502

VIII. Conclusion... 503.

APPENDIX A: Acronyms and, Defined Terms.. .504

APPENDIX B: Personnel, Agencies and Documents... 506

APPENDIX C: Chronology of Relevant Events on the Use of the Tracking Device Placed on Defendant Kamel Lam-büs... 508

I, Introduction

Absent exigent circumstances, federal investigative or other authorities must obtain a court order before installing or using a location tracking device to monitor the movements of any person or thing. State parole authorities assume they-do not need such an order; they placed a device on a state parolee, Kamel Lambus, and kept it on for over two years under the pretext that it was being used to ensure compliance with a curfew. In fact, almost from the moment of installation, information from the device was exclusively relied upon by federal authorities working cooperatively with a state official to conduct a complex federal criminal investigation of a major heroin conspiracy that resulted in a federal indictment of defendant.

Upon recognizing that they were relying on this device to help track a large heroin distribution ring, federal officials should have 1).checked to see if court approval had been given, and, if not, 2) obtained approval from a federal district or magistrate judge. They did not do so. See infra Part II.C.4; PartIV.B.

The key to the instant case was stated, by Judge Friendly forty-five years ago in United States v, Birrell, 470 F,2d 113 (2d Cir. 1972), Paraphrasing Judge Friendly’s opinion in Birrell: “The propriety of the first intrusion into [defendant’s] privacy [by the state] does not automatically sanction a second [by the federal government]. ,,. [A] search by law enforcement officers of another sovereign for a different ■ purpose could not be made without a warrant.” Id. at 117.

Defendant Kamel Lambus, who wore the tracking, device, has not been charged with a parole violation by the state. He has been indicted by a federal grand jury as a drug conspirator, based in part on evidence obtained from that device. He moves to suppress evidence obtained from the device. His motion is granted in part. Information obtained as a direct—but not indirect—result of use of the device is suppressed, Evidence which may indirectly have been obtained from the device, that is to say, evidence that was obtained with the aid of the device that would have been obtained independently by visual surveillance or otherwise, is not now suppressed.

Suppression is not to be used for punitive purposes; it should be limited to necessary instruction to law enforcement forces and necessary protection of the privacy of those being prosecuted. See Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009)’ (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the,price paid by the, justice system.”).

II. Facts

Following this court’s original decision granting a motion to reconsider its denial of Lambus’s motion to suppress location databan extensive evidentiary hearing was held. See infra Part VI, Procedural History. It provided extensive new information about the placement and use of the device on defendant’s ankle and the nature of the relationship between state and federal authorities in obtaining evidence. The court concludes that within one month of placement of the tracking device on defendant’s ankle, the federal authorities, working closely with state authorities, directed use of the device to. provide evidence for the prospective federal criminal case, and not for any state parole supervision or violation charge. See infra Appendix A: Acronyms and Defined Terms (“Appendix A”); Appendix B: Personnel, Agencies and Documents (“Appendix B”); and Appendix C: Chronology of Relevant Events on the Use of the Tracking Device Placed ■ on Defendant Kamel Lambus (“Appendix C”).

A. State Parole Supervision of Lambus

Kamel Lambus was discharged from prison and became a parolee under the supervision of the New York Department of Corrections and Community Supervision (“DOCCS”) on March 7, 2012. Included in the terms of his parole, which was to last for about three years and five months, was an agreement by Lambus to “permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment” and to “fully comply with the instructions-of [his] Parole Officer and obey' such- special additional written conditions as he or she, a Member of the Board of Parole- or an authorized representative of the Division of Parole, may impose.” Gov’t Exh. 1.

Suspecting Lambus of attempting to introduce narcotics into a state prison, a member of the DOCCS Bureau of Special Services (“BSS”), Officer Thomas Scanlon, began investigating Lambus shortly after hjs release from prison. BSS is a specialized division within DOCCS that investigates parolees who may be committing parole violations; the officers traditionally thought of as “parole officers” are members of DOCCS supervisory bureaus. See Apr. 10, 2017 Hr’g Tr. at 65:24-66:5; Dec. 1, 2016 Hr’g Tr. at 67:11-59:18; see also infra Appendix A;- Appendix B. This initial investigation quickly led-to cooperation between New York State and federal authorities regarding the defendant. ■ In July 2012, New York’s'BSS'reviewed mail Lam-bus sent to a prison and pictures gathered from social media sites that appeared -to depict Lambus holding large sums of money while other men displayed gang signs. 3500-TS-9; Gov’t Exh. 3.

BSS passed along this material to the federal Drug Enforcement Administration (“DEA”), which began its own investigation of Lambus. 3500-CB-8. Nothing incriminating of Lambus was revealed by this preliminary investigation. Id. But state BSS Officer - Scanlon continued to monitor Lambus for suspicious activities. Id.; see infra Appendix C.

On April 5, 2013, state Officer Scanlon wrote to officers of the New York DOCCS Queens III Supervisory Bureau—which was then responsible for supervising Lam-bus’s parole—providing an “interim update regarding the investigation being conducted on Lambus for possible violations of the conditions of his parole.” 3500-CB-8. Scanlon noted that “tiBSS] was made aware of [the letter Lambus sent to the prison] on 7/3/12 [and] ... [BSS] determined from the DEA that they were not [pursuing] the matter further since their (DEA & NYSDOCCS [Inspector General] ) [investigation] failed to reveal drugs being distributed into targeted DOCCS facilities by Lambus at that time.” Id. Scan-lon expressed concern over the criminal history of Lambus’s employer, and stated that “[BSS] continues to investigate/develop leads as to Lambus’ activities.” Id. He believed Lambus “may be engaged in behavior contrary to his . release agreement. As per our discussion, this Bureau continues to investigate and identify - possible locations, individuals, and vehicles which may be associated to Lambus. This information will be provided to you once obtained.” Id. • (emphasis added). Scanlon said that BSS will “assist your staff with a search of Lambus’ residence, and appropriate follow-up, in a cooperative effort to attempt to determine if Lambus is in compliance with the terms of his release agreement.” Id. The same day he sent the email, BSS Officer Scanlon requested that Lambus’s parole officers in the supervisory bureau conduct curfew visits and search his residence, for contraband. Gov’t Exh. 11 at 4-5.

The supervisory bureau followed up on BSS’s requests. Senior Parole Officer Candace Benjamin made a home visit to Lam-bus on April 9, where she found “marijuana roaches” in two ashtrays in Lambus’s living room. Gov’t Exh. 10 at 36. Lambus claimed they did not belong to him. Id. About a week later, the Lambus parole was transferred from the Queens III Supervisory Bureau to the Queens II Supervisory Bureau. His primary parole officer there was Trudy Kovics. Id. at 35. Following an anonymous tip on May 2, Queens II Supervisory Bureau Chief/Area Supervisor Mark Parker instructed his parole officers to conduct a curfew visit. Gov’t Exh. 11 at 6-7. On May 5, as per the instructions of her Area Supervisor, Officer Kovics conducted a curfew visit. Lambus was not home. Gov’t Exh. 10 at 33.

B. Installation of the Ankle Bracelet Tracking Device

The day after the missed curfew, State Parole Officer Kovics and State Senior Parole Officer Hubert Browne, her direct supervisor, met and decided to place Lam-bus on electronic location ■ monitoring. Id. The decision to place the tracking, device on Lambus was made solely by the members of the supervisory bureau, not at the behest of BSS or the federal government. Mar. 15, 2017 Hr’g Tr. at 20:4-7, 23:7-9; Dec. 1, 2016 Hr’g Tr. at 97:3-15. On May 8, 2013, Lambus’s parole officers placed a tracking device on Lambus’s ankle. Gov’t Exh. 10 at 33. According to the State parole officers, it is within their inherent authority to impose this punishment without any oversight from the judiciary. Mar. 15, 2017 Hr’g Tr. at 12:20-14:15. No judicial approval was obtained.

Before the tracking device was installed, Lambus signed a form acknowledging that the “special condition” of electronic monitoring could last “until the termination of [his] legal ’period of supervision.” Gov’t Exh. 14. The court finds that this extensive consent was not voluntarily given. Lambus signed the acknowledgement form only upon threat of incarceration. Lambus stated that he was “coerced” into giving his consent because Bureau Chief/Area Supervisor Mark Parker, a supervisor at the DOCCS supervisory bureau responsible for his rehabilitation, told Lambus that “he would violate me and send me back.upstate to prison unless I agree to have a GPS ankle bracelet installed on me.” Apr. 14, 2016 Lambus Aff., attached as Exh. H to Lambus’s Supplemental Mem. in Supp. of Suppression, ECF No. 266-2 (“Apr. 14, 2016 Lambus Aff.”), at ¶¶ 14-15, 25. Lam-bus also said that Chief Parker told him he would only have the' GPS on him for three to six months, but the ankle bracelet in fact-remained on his person until his arrest over two years later on the federal charges he now faces. Id. at ¶¶ 16, 29. Under oath, Chief Parker did not deny threatening Lambus with incarceration if he did not agree to the special condition, recounting that he discussed with Lambus “the consequences of not adhering to any special conditions ... and [that] the consequences could lead to a violation and his incarceration.” Apr. 10, 2017 Hr’g Tr. at 94:1-10.

To the extent that Lambus’s consent was voluntary, it was limited in scope to a search lasting only a few months. The DOCCS handbook describes “Electronic Monitoring” only once, in passing, as a “graduated response” that is part of a “network of alternatives to incarceration” for parolees caught using drugs while on parole. Gov’t Exh. .67 at 30; see also Mar. 15, 2017 Hr’g' Tr. at 26:3-11 (defining “graduated sanction”). The DOCCS “Policy and Procedures Manual” on “Electronic Monitoring,” promulgated in December 2006, identified three categories of cases where electronic monitoring may be useful: (1) alternatives to incarceration, (2) community safety, and (3) domestic violence. Gov’t Exh. 80; Mar. 17, 2017 Hr’g Tr. at 132:6-24. The manual notes that once someone is enrolled in electronic monitoring, the duration of monitoring will continue generally from four to six months as a maximum:

[The] releasee’s status on electronic monitoring will be reviewed by with the Senior Parole Officer during cases conferences and recorded in ease chronos. The duration of electronic monitoring program participation mil generally range from a period of four to six months.... The Area Supervisor will routinely review all electronic monitoring cases with appropriate staff and determine program continuance or termination based on the releasee’s progress.

Gov’t Exh. 80 (emphasis added). The “reports generated by the contractor [that maintains the information generated by the tracking device] must be routinely reviewed by the Parole Officer/Senior Parole Officer to determine equipment operation and case compliance with the program.” Id. “If it is recommended that a releasee be removed from electronic monitoring, the Parole Officer will consult with the Senior Parole Officer. The Senior Parolee Officer must seek removal authorization from the Area Supervisor.” Id.

A document from Veritracks (the program operated by the contractor which maintained the data generated by the tracking device) and statements from both Lambus and Bureau Chief Mark Parker confirm that they had agreed that the electronic monitoring would last only a few months. 3500-HB-10 (listing the “Sched GPS End Date” for Lambus as 11/08/2013); April 10, 2017 Hr’g Tr. at 94:14-20; Apr. 14, 2016 Lambus Aff. at ¶ 16.

Lambus’s parole officers testified that Lambus complained “many times” about the continued attachment of the tracking device after it had been on for several months. Apr. 10, 2017 Hr’g Tr. 95:24-96:9 (Chief Parker testifying that beginning in October 2013, Lambus asked “on a number of occasions” when the tracking device could be removed); Apr. 11, 2017 Hr’g Tr. at 159:4-7 (Senior Parole Officer Hubert Browne testifying that Lambus “complained a lot” about the tracking device).

Despite the verbal understanding between Lambus and his parole officers that the tracking device would only remain on his person for a few months, it remained on his person for over two years in order to obtain evidence for the federal criminal investigation until his arrest’in the^ instant case on July 8, 2015 by federal officers for federal crimes. Apr. 11, 2017 Hr’g Tr. at 182:23-183:3.

C. Federal Takeover

1. BSS Collaboration with Federal Law Enforcement

BSS Officer Scanlon informed federal Homeland Security Investigations (“HSI”) Special Agent Christopher Popolow about the tracking device “almost contemporaneously” with the installation of the device.

THE COURT: But realistically, approximately to the best of your recollection, it was almost contemporaneous, as I understand it, with the placement of the GPS ... [t]hat somebody in the Fed investigation' was told or was indicated or knew there was a GPS on him.

BSS OFFICER SCANLON: Yes.

THE COURT: Almost contemporaneously.

BSS OFFICER SCANLON:. Yes, to the best of my recollection.

THE COURT: With the placement. Who was that?

.BSS OFFICER SCANLON: That would have been Special Agent Christopher Popolow.

Mar. 15, 2017 Hr’g Tr. at 17I24-1&12. At about the same time, Scanlon asked Special Agent Popolow-for assistance from the federal government in- the investigation of Latnbus. Dec. 1, 2016 Hr’g Tr. at 104:23— 106:9. Popolow agreed to help, and the federal law enforcement agency almost immediately became the “lead agency” in the investigation.

THE COURT: How did [HSI] assist you?

BSS OFFICER SCANLON: ... Initially by conducting surveillances— ;

THE COURT: On who?

BSS OFFICER SCANLON: On Mr. Lambus and some of his other associates that were identified, to be engaged in narcotics transfer, transporting, of them. And— •. ⅛

THE COURT: Those other names you gave the feds?

BSS OFFICER SCANLON: Yes. They became the lead agency. They supplied the money for—they also supplied when it eventually—if you permit me to leap ahead, provided the undercovers, the money for transactions to purchase heroin and also with the help of the prosecutor’s office to obtain the Title 3 wiretaps.

Id. at 106:19-107:7. Popolow“was the main federal investigator oh the case.” Mar. 17, 2017 Hr’g Tr. at 190:19-25. Though HSI was designated the “lead agency,” BSS also exerted some control over the'investigation. '

AUSA ROBOTTI: Was HSI, Homeland Security Investigations designated the lead agency in this case?

BSS OFFICER SCANLON:. Yes, AUSA ROBOTTI: Why?

BSS OFFICER SCANLON:’ Because they were pro—they adopted the case to provide funding for several investigative tools as well as manpower.

AUSA ROBOTTI: At any point did HSI have sole control of this investigation?

BSS OFFICER SCANLON: No.

Id. at 143:5-13.

The collaboration between BSS and the federal criminal authorities, with the federal authorities taking the lead, began shortly after the installation of the tracking device. On June 6, 2013, Scanlon met with DHS/ICE and forwarded to the federal investigators “all photos & id info to date of p [Lambus] & his gang,” and DHS/ICE agreed to “assistf] NYSDOCCS-BSS w/ inv of .p.” Gov’t Exh. 2 at 20, On June 13 and 14, Scanlon for the state and Popolow for the federal forces discussed the investigation on the phone and began to identify Lambus’s “associates.” Id. Later that month, on June 24, Scanlon advised Chief Parker that he was meeting with the “feds” the next day and asked him to keep that information confidential. Id. As discussed further infra at Part II.C.2, the supervisory bureau was largely sidelined by BSS and played a limited role in the investigation. When Scanlon met with the feds on June 25, they discussed bringing in the DEA, running “penlinks” on phone numbers, and initiating .surveillance. Id.

The data gathered by the tracking device flowed regularly 'and freely from DOOCS to the federal government through BSS Officer Scanlon.' Mar. 15, 2017 Hr’g Tr. at 22:5-9; see, e.g., 3500-TS-17 through 3500-TS-124 ■' (emails between BSS Officer Scanlon- and federal authorities conveying location information generated by tracking device). Aided by the tracking device, BSS and federal investigators participated in numerous joint surveillance operations. For example, on July 11, 2013, the tracking device recorded Lambus “leaving his residence] approx. 1730 hrs” and indicated “he resumed his usual route.” Gov’t Exh. 2 at 20. Surveillance teams also physically observed him at a certain “high activity” location that day. Id. '

Scanlon regularly sent emails to Popo-low and other federal agents that included Veritracks links or maps and charts with updates on Lambus’s location-by the minute. See, e.g., 3500-TS-81. From August 7, 2013 until the investigation ended nearly two years later, Scanlon sent such emails many dozens of times. See, e.g., 3500-TS-17 through 3500-TS-124. Often, the emails included a brief description of Lambus’s activities: “He is spending a lot of time @ 119 & 165th st. Also blows off curfew constantly. @ Perfections strip club in Woodside on Sunday 8/24/14. Looking for patterns will advise if any of significance are determined.” '3500-TS-44. At times Scanlon simply wrote “take a look” or “See attached from 2/24/15 activities”. See, e.g., 3500-TS-48; -3500-TS-55. The federal investigators occasionally asked Scanlon to re-format the GPS data so they could run ■it through specialized software: “Tom I need date and latitude/longitude. It looks like they took a step further and gave us addresses, but I need the lat/long for the program to be able to read it. Is there anyway you could provide this? ... I need: date/time, latitude and longitude in an excel spreadsheet. Thanks and sorry for the hassle, Popolow.” 3500-TS-22.

On December 11, 2013, Scanlon and Po-polow met with federal prosecutors to discuss their investigation. They were informed that the “[Assistant United States Attorney] wants more drugs bought” “to determine level of consp.” Gov’t Exh. 2 at 15. As Scanlon later recalled, “[b]asically, the. [Assistant United States Attorney] stated we didn’t .meet the threshold for them to prosecute.” Mar. 17, 2017 Hr’g Tr. at 209:2-3. After being told that the federal prosecutors would consider prosecution only if the investigation turned up “evidence of more drugs [and] more weight,” the investigators did not inquire whether a state prosecution would be possible; instead, Scanlon requested “that the supervising parole Department continue with the GPS so that it would assist in [the] investigation.” Id. at 209:4-19. The only prosecutors that BSS or the federal authorities ever met with were federal prosecutors (see id. at 200:19-25), and from early on in the investigation. the decision was made that a federal prosecution would be the investigation’s ultimate goal:

AUSA ROBOTTI: You . indicated, in your previous testimony that federal prosecution had been determined to be the best resolution for this case; is that correct?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: Why is that your view? ■

BSS OFFICER SCANLON: In tny experience, when I reviewed the evidence that we had gathered, and I recognizes that previous State incarcerations .did not deter Mr. Lambus from continuing in his drug distribution ring, I thought federal prosecution along with their penalties would be the best outcome to stop this behavior.

id. at 146:24-147:10.

COROZZO (ATTORNEY FOR LAM-BUS): In fact, you never wanted it to be a state prosecution, you wanted it to be a federal prosecution again; correct?

BSS OFFICER SCANLON: It fit the guidelines. For our purposes, it appeared to be best suited for a federal prosecution. Whether I determined that or not, it would have been' up to the prosecutors, though, sir.

COROZZO (ATTORNEY FpR LAM-BUS): Well, did you contact-any state prosecutors?

BSS OFFICER SCANLON: No.

COROZZO (ATTORNEY FOR LAM-BUS): You only contacted federal prosecutors; correct?

BSS OFFICER SCANLON: Contacted a federal agent and then we went to a federal prosecutor subsequent to that.

COROZZO (ATTORNEY FOR LAM-BUS): And after you met with [Assistant United States Attorney] Parlovec-hhio, you also met with other federal prosecutors, correct?

BSS OFFICER SCANLON: Yes. Down the line. Yes.

COROZZO (ATTORNEY FOR LAM-BUS): Did you ever meet with state prosecutors?

BSS OFFICER SCANLON: Not to my knowledge, no, sir.

COROZZO (ATTORNEY FOR LAM-BUS): And you made a determination that this could not fit state prosecution as per your testimony, correct?

BSS OFFICER SCANLON: I made a determination that it would be- suited with federal prosecution, sir.

Id. at 157:12-158:6.

Lambus was far from the only target in this wide-ranging investigation. A May 14, 2014 update memorandum s written by Scanlon explained that the goal of the “multi-agency” investigation was to dismantle the large gang-affiliated narcotics operation with which Lambus was associated, and recommended that DOCCS hon- or a.federal request to not change the conditions of Lambus’s parole to avoid accidentally alerting him of the investigation. Gov’t Exh. 7. No other parolees were known targets of the investigation at this time. See id. (“Should additional parolees be identified, notification will be made accordingly to the Regions of responsibility.”). When the investigators became aware that other targets of the investigation were New York State parolees, they kept the information being uncovered from those parolees’ supervising parole officers:

COROZZO (ATTORNEY FOR LAM-BUS): And in that while that you developed evidence rising to the level of probable cause that Shavona Trappier [a DOCCS parolee] was involved in criminal conduct, did you share any of that information with her supervising parole officers?

BSS OFFICER SCANLON: No, sir.

COROZZO (ATTORNEY FOR LAM-BUS): Well, you and Agent Popolow, who you say are the two co-lead agents in the investigation, believe at this time, of January 2015, that Shavona Trappier is trafficking in narcotics, correct?

BSS OFFICER SCANLON: Yes.

COROZZO (ATTORNEY FOR LAM-BUS): That would be a violation of parole, correct?

BSS OFFICER SCANLON: Yes.

COROZZO (ATTORNEY FOR LAM-BUS): And was her supervising parole officers alerted to that?

BSS OFFICER SCANLON: To that specific issue, no, they were not.

Apr. 10,2017 Hr’g Tr. at 47:20-48:13.

After being contacted by DOCCS and HSI, the DEA joined the investigation in August or September of 2014. Apr. 11, 2017 Hr’g Tr. at 178:10-26. The DEA was made aware of the tracking device on Lambus as soon as it joined the team. Id. at 200:8-10. Scanlon’s primary contribution to the investigation was providing the team with the information generated by the tracking device on Lambus’s ankle. Id. at 222:3-18, 225:24-226:11. Scanlon had the information;' Popolow gave the instructions.

COROZZO (ATTORNEY FOR LAM-BUS): Did Tom Scanlon ever tell you a specific time that I want you to surveil a •specific location?

DEA SPECIAL AGENT RUSSELL: He listed locations that were relevant to the DTO, to the organization. And told us those locations to go to.

COROZZO (ATTORNEY FOR LAM-BUS): He provided the information. Like he provided the GPS information; correct?

DEA SPECIAL AGENT RUSSELL: That’s correct.

COROZZO (ATTORNEY FOR LAM-BUS): And it was Popolow’s call what to do; correct?

DEA SPECIAL AGENT RUSSELL: For the most part.

COROZZO (ATTORNEY FOR LAM-BUS): Now, another part of the investigation—and it was Popolow who would assign different agents, or you or your partner who would assign the different agents, during the surveillances as to what their roles would be; correct?

DEA SPECIAL AGENT RUSSELL: Yes.

Id. at 218:11-219-11.

A June 2014 DEA Report of Investigation describes the details of a joint-agency surveillance operation conducted at Lam-bus’s residence. The report, which primarily recounts physical surveillance efforts, also includes a note from Russell stating: “AGENTS NOTE: A court authorized GPS tracking device attached to Kamel LAMBUS indicating he (LAMBUS) departed the location at approximately this time.” 3500-GR-16 at ¶ 3. The note is in error. No court authorized the use of this tracking device.

In addition to the tracking device on Lambus’s ankle and physical surveillance, many other methods of investigation were utilized by law enforcement: pole cameras, controlled buys, undercover officers, informants, trash searches, additional tracking devices, and, eventually, wiretaps. See, e.g., 3500-CP-25 (listing investigative techniques employed in furtherance of the investigation). The federal investigation was successful in uncovering vast amounts of evidence of criminal activity.

AUSA ROBOTTI: Now, while Mr. Lambus was on GPS monitoring from May 2013 to June 2015, in general, what did your investigation uncover?

BSS OFFICER SCANLON: Quite a bit. So he was associating with known felons. We know he was tampering with the GPS. There were a couple of occasions with is that. We know he was engaged—well, we suspected and confirmed that he was engaged with drug trafficking, and that was basically the crux, the overall.

AUSA ROBOTTI: Were there instances of him wearing gang colors?

BSS OFFICER SCANLON: Yes. '

AUSA ROBOTTI: Was he found in possession of an unexplained amount of cash?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: Were control buys done from his associates?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: Was he also frequenting known stash houses?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: And was there an instance in which he attempted to obtain a weapon, specifically an Uzi?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: Now, what, if any-, thing, did this information indicate to-you about Mr. Lambus?

BSS OFFICER SCANLON: That he was continuing to engage in criminal activity and not adhering to the conditions of his release.

AUSA ROBOTTI: And what, if anything, did the information that you obtained indicate about his role in his drug trafficking organization? , -

BSS OFFICER SCANLON: To me, it appeared that Mr. Lambus was a higher-ranking individual in,-this PCG/POV .gang structure. . ;

Mar. 15,2017 Hr’g Tr. at 42:19-43:21.

Despite BSS possessing substantial evidence that Lambus was violating the conditions of his parole, DOCCS never charged him with a-violation or imposed any further “graduated sanctions” to control his conduct. See Apr, 10, 2017 Hr’g Tr. at 50:13-18. According to Scanlon, in order to violate a parolee, “the Division of Parole must-prove at a final hearing by a preponderance of the evidence that you have violated at least one of the conditions- of release in an important respect.” Mar. 17, 2017 Hr’g- Tr; at 136:3-7. BSS Officer Scanlon tried unsuccessfully to explain why the growing mounds of evidence were never sufficient to violate Lambus.

AUSA ROBOTTI: ■ Now, based on all of the evidence we just discussed during this GPS monitoring period, did you initiate violation proceedings against Mr. Lambus for engaging in drug trafficking?

BSS OFFICER SCANLON: No.

AUSA ROBOTTI: Why not? ,

BSS OFFICER SCANLON: As I said before, basically many of these observations did not rise to the level that we would have been able to sustain a charge. In addition to that, as we started to observe him at other locations, we were .trying to understand the scope of his involvement, the scope ,of his heroin distribution ring and to better understand the totality of the kind of violation that he was engaged in,

AUSA ROBOTTI: Now, at some point you said you started intercepting communications with Mr. Lambus involving drug trafficking; right?

BSS OFFICER SCANLON: Yes.

AUSA .ROBOTTI: Was that about February of 2015?

BSS OFFICER SCANLON: Yes.

AUSA ROBOTTI: Now, did you initiate violation! proceedings against Mr. Lam-bus at that time for drug trafficking? ■BSS OFFICER SCANLON: No.

AUSA ROBOTTI: Why not?'

BSS OFFICER SCANLON: For the same purposes: Basically, at that time we were trying to determine where he was in this organization, where -the drugs were going, what other criminal activities they may have been involved with, , other associates, other parolees associated with this case. We were trying to identify all the pieces to see how large that this organization that he was involved with was and what rank he played in it.

THE COURT: Excuse me, you say “we.” Is that the Feds and you? •

BSS OFFICER SCANLON: No. Well, based on the violation, no, that would be my agency. When I say we, sir, Your Honor, my unit, Bureau of Special Services, we were trying to determine where he was.

THE COURT: But you indicated, I thought that you were trying to identify the scope of this entire conspiracy.

BSS OFFICER SCANLON: Yes, sir.

THE COURT: Why would the scope of the conspiracy affect your reaction to the parolee when the scope of the conspiracy was essentially the goal, or determining the scope was the goal of the Feds, not you?

BSS OFFICER SCANLON: No, not-with due respect, no, not exactly. The scope would have—the implication of the scope of his organization and what role he played in it would have had an impact on what decisions were made to do—of how to handle his revocation process going forward.

THE COURT: ... I don’t understand. You now have a huge amount of evidence that he’s dealing in narcotics.

BSS OFFICER SCANLON: Uh-hum.

Mar. 15, 2017 Hr’g Tr. at 115:23-117:24.

AUSA ROBOTTI: Just to be clear, did you view yourself as having sufficient evidence to prove a violation of. parole before the wiretap in this ease?

BSS OFFICER SCANLON: No.

Id. at 122:19-22

THE COURT: Wasn’t that enough to put him in prison, a parolee negotiating for a Uzi?

BSS OFFICER SCANLON: Absolutely, positively,'not'. ■

THE COURT: No?

BSS OFFICER SCANLON: No. He would have had to have possession of that firearm. Talking about it doesn’t indicate that he has violated. He would have' had. to have an overt act! That overt act would have had to have been possession. '

THE COURT: Again, he would' have been in prison here.

Id. at Hr’g Tr. at 72:1-9,

The federal takeover of the investigation was so complete, that even after his arrest on federal drug , trafficking charges, DOCCS still chose not to charge Lambus with a violation of his parole. His parole expired on August 2, 2015 without any allegation by the state of New York that Lambus ever did anything to violate its terms. See id. at 120:17-19.

2. Circumvention of the DOCCS Supervisory Bureau

A fundamental obligation of a supervising parole officer is to manage a parolee’s compliance with his conditions of parole in order to facilitate the parolee’s rehabilitation and reintegration. To complete this objective, parole officers must have information about the parolee’s conduct. Yet the branch of DOCCS most carefully observing Lambus’s conduct, BSS, purposely withheld information from Lambus’s supervising parole officers.

The only .state officers BSS Officer Scanlon, spoke to in any detail about the pending investigation were his superiors at BSS. Mar. 17, 2017 Hr’g Tr. at 148:1-12. While he did speak on occasion with Parker, the chief of the Queens II Supervisory Bureau, the information he shared with Parker was “limited.” Id. at 148:16-18. He provided only “limited” information to Parker out of fear of compromising the investigation. Id. at 148:19-21. Merely “minimal” information was given to Lambus’s direct supervisors, Parole Officer Kovics and Senior Parole Officer Browne. Id. at 148:25-149:9. The “sum and substance” of Scanlon’s conversations with members of the supervisory bureau, which occurred “once every three or so months,” was only that BSS was continuing its investigation. Apr. 10, 2017 Hr’g Tr. at 54:10-55:6. Senior Parole Officer Browne testified that he was kept in the dark about the ongoing investigation:

AUSA ROBOTTI: Okay. And were you privy to all the details of BSS’s investigation into Mr. Lambus?

SENIOR PAROLE OFFICER

BROWNE: No.

AUSA ROBOTTI: Did you have any meetings with Mr. Scanlon from BSS about that investigation?

SENIOR PAROLE OFFICER BROWNE: On one occasion I was brought into a meeting with the area supervisor and Mr. Scanlon.

AUSA ROBOTTI: And do you remember what was discussed during that meeting?

SENIOR PAROLE OFFICER

BROWNE: They were speaking about Mr. Lambus being investigated for illegal activities.

THE COURT: By whom?

SENIOR PAROLE OFFICER

BROWNE: By other agencies. They didn’t tell me who the agencies were.

THE COURT: Federal or State or both?

SENIOR PAROLE OFFICER

BROWNE: I wasn’t told that.

AUSA ROBOTTI: Were you aware at that time that Mr. Scanlon was involved in the investigation?

SENIOR PAROLE OFFICER BROWNE: Yes.

AUSA ROBOTTI: Okay. Did you meet with ■ any Federal investigators about that investigation?