United States v. Lambus (897 F.3d 368, 2018)

KEARSE, Circuit Judge:

Appeal by the United States from so much of two pretrial orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge , as (1) granted motions by defendants Kamel Lambus and Stanley Fuller to suppress evidence obtained pursuant to one of several court-authorized wiretaps, and (2) granted a motion by Lambus to suppress location data generated by a GPS

tracking device attached to his ankle by his New York State parole officers. The district court ruled that the wiretap applicant had knowingly withheld from and misrepresented to the authorizing judge information that was required by 18 U.S.C. § 2518(1)(e), and the court suppressed the evidence gained from that wiretap, citing its inherent authority. See 221 F.Supp.3d 319 (2016). The court suppressed location data generated by the GPS device, ruling that Lambus's Fourth Amendment expectations of privacy were infringed on the ground that the device was used for a two-year period, without a warrant, not for purposes of State parole supervision but only for the collection of evidence that would permit the federal government to prosecute Lambus for drug trafficking. See 251 F.Supp.3d 470 (2017).

On appeal, the government challenges the suppression of the wiretap evidence, contending (a) that the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent, and (b) that the court did not find the applicant's mistakes to have been material, and it erred in failing to apply the test established by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), under which such evidence should not be suppressed unless the mistakes were material. The government challenges the suppression of GPS data, contending principally that (a) the GPS monitoring of Lambus was permissible because it was reasonably related to his parole officers' duties; (b) in light of Lambus's acknowledgements of his parole officers' authority to search his person and to attach a GPS tracker, evincing little expectation of privacy, the use of the tracker was not unreasonable under the Fourth Amendment; and (c) in any event, suppression should have been denied under the good-faith doctrine of Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

Finding merit in the government's contentions, we conclude that the district court erred in suppressing the wiretap evidence and the GPS data.

Reversed.

The United States appeals pursuant to 18 U.S.C. § 3731 from so much of two orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge , as (1) granted motions by defendants Kamel Lambus and Stanley Fuller to suppress evidence obtained pursuant to one of several court-authorized wiretaps, and (2) granted a motion by Lambus to suppress location data-apparently reflected on maps on which dots pinpointed the presence of Lambus at the times indicated-directly obtained from a GPS tracking device attached to his ankle by his New York State (or "State") parole officers. The district court ruled that the wiretap applicant had knowingly withheld from and misrepresented to the authorizing judge information that was required by 18 U.S.C. § 2518(1)(e), and the court suppressed the evidence gained from that wiretap, citing its inherent authority. See United States v. Lambus , 221 F.Supp.3d 319 (E.D.N.Y. 2016) (" Lambus I ''). The district court suppressed the location data generated by the GPS device, ruling that Lambus's Fourth Amendment expectations of privacy were infringed on the ground that the device was used for a two-year period, without a warrant, not for purposes of State parole supervision but only for the collection of sufficient evidence to permit the federal government to prosecute Lambus for drug trafficking. See United States v. Lambus , 251 F.Supp.3d 470 (E.D.N.Y. 2017) (" Lambus II '').

On appeal, the government challenges the suppression of the wiretap evidence, contending (a) that the district court clearly erred in finding that the mistakes by the wiretap applicant were intentional rather than inadvertent, and (b) that the court did not find the applicant's mistakes to have been material, and it erred in failing to apply the test established by Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), under which such evidence should not be suppressed unless the mistakes were material. The government challenges the suppression of GPS data, contending principally that (a) the GPS monitoring of Lambus was permissible because it was reasonably related to his parole officers' duties; (b) in light of Lambus's acknowledgements of his parole officers' authority to search his person and to attach a GPS tracker, evincing little expectation of privacy, the use of the tracker was not unreasonable under the Fourth Amendment; and (c) in any event, suppression should have been denied under the good-faith doctrine of Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).

Finding merit in the government's contentions, we reverse both decisions, concluding that the district court erred in suppressing the wiretap evidence and the GPS data.

I. BACKGROUND

Lambus and Fuller are accused of being leaders and organizers of a group of individuals that referred to itself as the Paper Chasing Goons or POV City and was a drug trafficking organization (or the "DTO"). Beginning in 2015, Lambus and Fuller, along with 10 others, were indicted principally on charges of conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and/or possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841. The indictments followed investigations that dated back to mid-2012, after Lambus had been released from State prison, and that included controlled purchases of narcotics, physical and electronic surveillances of suspected sites of narcotics activity, subpoenas, pen registers, and several 2015 wiretaps on telephones associated with Lambus, Fuller, certain of the codefendants, and other suspected DTO members. The 10 codefendants have pleaded guilty to various charges; Lambus and Fuller remain to be tried.

In 2016, Lambus and Fuller moved to suppress all evidence obtained or resulting from five 2015 wiretap orders on the ground that the first wiretap application omitted certain material facts and contained misrepresentations of fact. In addition, Lambus moved to suppress all evidence obtained or resulting from the GPS tracking device attached to his ankle by his State parole officers from May 2013 to early July 2015, arguing that those officers impermissibly disclosed the resulting data to the federal government throughout its investigation leading to the present case.

The district court, as discussed in greater detail in Part I.B.1 below, granted defendants' motion to suppress evidence of statements intercepted pursuant to the first wiretap authorization, but not evidence obtained through the subsequent authorizations. As discussed in Parts I.B.2. and I.B.3. below, the court initially denied Lambus's motion to suppress GPS-related evidence; but it granted his motion for reconsideration and, upon reconsideration, granted the motion to suppress information obtained as a direct-but not as an indirect-result of the GPS device.

Two sets of evidentiary hearings were held with respect to the motions to suppress: the first in 2016 on the original motions, and the second in 2017 following Lambus's motion for reconsideration. The evidence at these hearings included the following, largely as described by the district court in its decisions, or as provided by a witness-Thomas Scanlon-whom the district court found "very credible" (Hearing Transcript, March 15, 2017 ("Mar. 15, 2017 Tr."), at 88; id . at 16 ("I consider you a highly credible witness")); see Lambus I , 221 F.Supp.3d at 337 ("The court finds Investigator Scanlon's testimony credible.").

A. Evidence at the Suppression Hearings

1. Lambus Becomes a Parolee

Prior to 2012, Lambus had been convicted of several New York State crimes, including criminal possession of a controlled substance in the 5th degree, see N.Y. Penal L. § 220.06 ; attempted criminal possession of a controlled substance in the 5th degree, see id ., and in the 3rd degree, see id . § 220.39; and attempted criminal possession of a weapon in the 2nd degree, see id . § 265.03. He had served prison terms and been subject to post-release supervision by the New York State Department of Corrections and Community Supervision ("NYSDOCCS" or "DOCCS"). Persons on post-release supervision are supervised by parole officers, are subject to the same conditions as those imposed on parolees, see id . § 70.45(3) ("conditions of post-release supervision" are required to be imposed "in the same manner and to the same extent as ... [the] conditions ... upon persons who are granted parole or conditional release"), and are referred to as "parolees" (e.g. , Hearing Transcript, December 1, 2016 ("2016 Tr."), at 58); see generally Lambus I , 221 F.Supp.3d 319 (passim).

On March 7, 2012, Lambus was released from prison and began a term of post-release supervision that was scheduled to end on August 2, 2015. Before his release, Lambus had signed a Certificate of Release to Parole Supervision ("PRS Certificate") that specified those two dates, and in which he stated, inter alia , as follows:

I, Kamel Lambus, voluntarily accept Parole Post-Release supervision. I fully understand that my person, residence and property are subject to search and inspection. I understand that Parole Post-Release Supervision is defined by these Conditions of Release and all other conditions that may be imposed upon me by the Board of Parole or its representatives . I understand that my violation of these conditions may result in the revocation of my release.

(Lambus's March 5, 2012 PRS Certificate (emphases added).) Lambus also stated his agreement to numerous specified conditions, including the following:

4. I will permit ... the search and inspection of my person , residence and property. ...

....

7. I will not be in the company of or fraternize with any person I know to have a criminal record ... except for accidental encounters in public places, work, school or in any other instance with the permission of my Parole Officer.

8. I will not behave in such manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment , nor will my behavior threaten the safety or well-being of myself or others.

9. I will not own, possess, or purchase any shotgun, rifle or firearm of any type without the written permission of my Parole Officer. ...

....

12..... I will abide by a curfew established by the P[arole] O[fficer].

13. I will fully comply with the instructions of my Parole Officer and obey such special additional written conditions as he or she ... may impose .

(Lambus's March 5, 2012 PRS Certificate ¶¶ 4, 7-9, 12, 13 (emphases added).)

In June 2012, Lambus sent a letter ("Lambus Letter" or "Letter") to Christopher Jones, who was still an inmate at the State correctional facility from which Lambus had been released in March. The Letter, which enclosed photographs that showed, inter alia , Lambus with large amounts of cash and with persons making gang-related signs, was intercepted by DOCCS's Office of the Inspector General ("IG"-now called Office of Special Investigations), and the IG referred the Letter to the parole bureau that was then supervising Lambus. That bureau in July referred the Letter to DOCCS's Bureau of Special Services ("BSS"--now called Community Supervision, Operations Center), whose function was to investigate criminal activity that had a nexus to a particular parolee. At BSS, the Lambus Letter was assigned to Scanlon, who was then an investigating parole officer.

Scanlon testified that, in accordance with the NYSDOCCS Parole Handbook (or "Handbook"), State parole officers are responsible not only for providing parolees with counseling and other assistance in adjusting to life after release from imprisonment but also for "ensur[ing] that individuals under parole supervision are obeying the laws of society and the rules of parole." (Mar. 15, 2017 Tr. 32.) Scanlon's duties as a parole investigator included "conduct[ing] threat assessment investigations, any threat to the community," and "investigat[ing] individuals that are under supervision that may be involved in criminal activity beyond what a bureau would be capable of investigating," in order to "uncover the full scope of a parole violation ," which would encompass "drug possession .... [and/or] drug trafficking by a parolee." (Id . at 31-32 (emphasis added).)

Scanlon testified that he interpreted the IG-intercepted Lambus Letter as referring to narcotics and gang activity, and in particular as indicating, inter alia , that Jones had narcotics that Lambus wanted to buy. In August 2012, Scanlon contacted a BSS investigator who was assigned to a United States Drug Enforcement Administration ("DEA") task force. He was informed that the DEA task force had been investigating Lambus. But finding no evidence that Lambus was supplying narcotics in the prison facility, the DEA task force terminated its investigation of Lambus in September or October 2012.

Scanlon nonetheless suspected, in light of Lambus's history of narcotics dealing and his Letter, that Lambus was probably again engaged actively in the distribution of narcotics. He attempted to determine the source of the inordinately large sums of money shown in the pictures sent with the Lambus Letter.

Lambus, upon his release from prison, resided in an area of Queens County managed by DOCCS's "Queens II Bureau" where he was supervised by Parole Officer (or "P.O.") Trudy Kovics and Supervising Parole Officer (or "S.P.O.") Hubert Browne. Scanlon discussed the Lambus Letter with Kovics and informed her of the negative results of the DEA task force's investigation into whether Lambus was sending drugs into the prison facility. Kovics said she had experienced no problems with Lambus, and she speculated that in the photographs Lambus was posing with bills that were counterfeit.

Scanlon doubted that the money was counterfeit and proceeded for the next several months to attempt to identify the persons shown with Lambus in the photographs and the places Lambus was frequenting. He conducted surveillances of Lambus's residences and places of employment. Although at some point Lambus claimed to hold two jobs, he reported earning just $200 per week; such wages could not account for the mounds of money with which Lambus was photographed. Nor was it clear that he actually held the jobs he claimed: During Scanlon's numerous surveillances, Lambus never appeared for work at the times or on the dates he was supposedly working.

In February 2013, Lambus moved to an area of Queens in which he was supervised by DOCCS's "Queens III Bureau." On March 17, his new parole officer found that he was not at home for his curfew. On April 5, Scanlon sent an email to the Queens III Bureau Chief, to a Queens III Bureau S.P.O., and to Scanlon's own BSS supervisor ("Scanlon April 5, 2013 Email") to provide an interim update on his investigation of Lambus for possible violations of the conditions of his release. That email stated, inter alia , that "Lambus's employment and residence are suspect," and that Lambus's Letter, his history of narcotics distribution, and "his recent changes in residence when his PO obtains curfew violations" indicate that he may be violating his release conditions. (Scanlon April 5, 2013 Email at 2.) It noted that BSS would assist Queens III Bureau with respect to a search of Lambus's residence and appropriate follow-up measures.

On April 9, 2013, several Queens III Bureau parole officers searched areas of Lambus's residence. In an ashtray in the living room area, they found remnants of marijuana cigarettes. Lambus claimed none of them belonged to him. Shortly after that search, Lambus moved back to the area managed by Queens II Bureau. P.O. Kovics resumed responsibility for his direct supervision.

2. Queens II Bureau Places Lambus on GPS Monitoring

On or about May 2, 2013, an anonymous email was sent to the NYSDOCCS website, "complain[ing] about a person on parole"-to wit, "Kamel Lambus." The email stated that

Mr. Lambus is currently still selling drugs. He is driving around in a ... 6000 Audi with no job. Mr. Lambus is also having a party on May 5th at Club Allure from 4:00 pm to 10:00 pm. He also r[uns] with a crew ... by the name of PCG Pov City Goons, Paper Chasing Goons. There are plenty of videos with him in it with guns, money, et cetera. Also the house he is living in they sell drugs out of the back of the apartment. Please keep this anonymous and forward to his parole officer T. Kovics diversion[sic] Queens.

(2016 Tr. 94-95 (anonymous email as read by Scanlon).) On May 5, during the time of Lambus's predicted party, Kovics, at the direction of Queens II Bureau Chief Mark Parker, conducted a curfew check at Lambus's residence. Lambus was not there.

On May 6, Parker and S.P.O. Browne decided that on May 8, during Lambus's next scheduled visit to the parole office, Lambus would be placed on GPS monitoring. Scanlon testified that DOCCS procedures for supervision of recalcitrant parolees, short of returning them to prison, included "graduated sanctions" such as "electronic monitoring" (Mar. 15, 2017 Tr. 11); parole officials were instructed that such GPS monitoring could properly be imposed without court orders because of parolees' "diminished expectation of fourth amendment rights" (id . at 13).

Browne testified that the decision to place Lambus on GPS monitoring was based "primari[ly] '' on Lambus's curfew violations (see Hearing Transcript, April 11, 2017 ("Apr. 11, 2017 Tr."), at 133 (emphasis added); see also id . at 113 ("a curfew violation and ... a report of illegal activities in the residence")), but that "[i]n addition to the curfew violation, allegations of drug dealings came up too, and the [May 5] party was supposed to happen in the club. All of those factors played into placing him on electronic monitoring" (id . at 135).

Thus, on May 8, 2013, a GPS tracking device was attached to Lambus's ankle.

According to Lambus's March 5, 2012 PRS Certificate, his post-release-supervision period was to end on August 2, 2015. (See also Affidavit of Kamel Lambus dated April 14, 2016, in support of his suppression motion ("Lambus Aff."), ¶ 28 ("My term of post-release supervisors [sic ] was scheduled to end on August 2, 2015.").) On May 8, 2013, Lambus signed forms acknowledging that GPS monitoring was being imposed as a special condition of his release and that the monitoring would "remain in effect until the termination of my legal period of supervision ... [u]nless otherwise amended in writing by the Division of Parole ." (Lambus's Special Conditions/GPS Monitoring Form, signed May 8, 2013, at 1 (emphases added); see also id . at 4, ¶ 7 ("I will not tamper with the transmitter on my person [or] the monitor"); id . at 4, ¶ 3 ("I agree to wear the transmitter on my person and to keep the monitor plugged into and attached to my telephone , and to do both for twenty-four hours a day , seven days a week , during the period of my participation in the program." (emphases added)).)

Lambus's affidavit in support of suppression explained his acceptance of GPS monitoring as follows:

14. Parker advise[d] me in sum and substance that he would violate me and send me back upstate to prison unless I agreed to have a GPS ankle bracelet installed on me.

15. Based on the choice between those two options, I signed the consent form and allowed them to put the GPS location monitoring bracelet on my person that day.

....

25. I only signed the consent form to put the GPS ankle monitor on me because I feared being sent back to prison.

(Lambus Aff. ¶¶ 14-15, 25.)

BSS had not been forewarned of Queens II Bureau's intention to place Lambus on GPS monitoring. Scanlon learned of it only when Kovics called him on May 8 and informed him that it had been done "because of [Lambus's] curfew violation." (2016 Tr. 98.) Scanlon's initial reaction to the GPS monitoring was somewhat negative because he thought it could compromise his investigation by making Lambus more circumspect and thereby making his criminal activity more difficult to detect and prove. A year later, however, Scanlon would recommend that the monitoring be continued because it was in fact assisting his investigation. (See Parts I.A.3. and I.A.4. below.)

3. Scanlon Seeks Federal Assistance

From the fall of 2012--when the DEA task force terminated its investigation into whether Lambus was sending drugs into prison-until early June 2013, no federal agencies were involved in the investigation of Lambus by BSS. The May 2013 decision to place the tracking device on Lambus had been made solely by members of Queens II Bureau, not at the behest the federal government, and indeed without any input or foreknowledge by BSS.

Once the GPS tracker was installed, only Queens II Bureau and BSS had independent access to the GPS data. Those data aided Scanlon's investigative efforts by identifying places that Lambus was frequenting, allowing surveillances in promising areas. As a result, Scanlon got confirmation that Lambus was, inter alia , associating with known felons, frequenting known stash houses, and attempting to obtain a weapon. Lambus was also wearing gang colors, and he was found in possession of an unexplained amount of cash. Scanlon was persuaded that Lambus was not adhering to the conditions of his release, and it appeared that Lambus was a high-ranking member of the DTO. But Scanlon doubted that he had enough evidence to have Lambus returned to prison for parole violations.

Scanlon testified that BSS had limited resources; and as he began to fathom "the apparent scope of [Lambus's] involvement" in the DTO, he realized that he "needed assistance to investigate the case further" (Hearing Transcript, March 17, 2017 ("Mar. 17, 2017 Tr."), at 141), in the form of "additional manpower" and "funding ... to assist us in identifying the whole crew and pursuing the investigation to dismantle that crew" (2016 Tr. 106). Such personnel identifications were important because it was part of Scanlon's job to determine whether other DTO members were also parolees; and dismantling "the rest of Mr. Lambus'[s] criminal organization" was important to "public safety." (Mar. 17, 2017 Tr. 145.)

Accordingly, in early June 2013, Scanlon called Special Agent Steve Lee at the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). This was Scanlon's first Lambus-related contact with federal law enforcement agents in 2013. In mid-June, Scanlon met with Special Agent Christopher Popolow of Homeland Security Investigations ("HSI"), a branch of ICE. Scanlon described the information that BSS's investigation had developed with regard to Lambus, several other identified individuals, and their apparent narcotics trafficking activity. Scanlon testified that HSI "agreed to assist us with the case." (2016 Tr. 106.)

Scanlon testified that HSI was designated the lead agency because it supplied, inter alia , manpower, undercover agents, and money for controlled purchases (see id . at 107; Mar. 17, 2017 Tr. 143); but BSS shared control of the investigation (see id .). GPS monitoring data provided starting points for surveillances, but the federal agents had no direct access to those data. Scanlon passed the GPS data to members of the joint investigation.

Scanlon "was one of the lead investigators on the team" (id . at 170) and was "considered one of the lead case agents" (id . at 142). The federal agents did not give Scanlon instructions, and he did not give instructions to them. Scanlon took investigative steps on his own initiative. He also had strategy meetings with the federal agents and "would request certain activities be performed, such as surveillance, request for pole cameras." (Id .) When actions were agreed upon, Popolow, the other lead agent in the first year of the joint investigation, would typically deploy the federal personnel.

In August of 2014, HSI and BSS contacted the DEA, and three DEA agents--who were also working on other cases--joined the investigation of Lambus. (See , e.g. , Apr. 11, 2017 Tr. 178; see also Mar. 17, 2017 Tr. 200 (still later, they were joined by agents of the Federal Bureau of Investigation ("FBI")).) DEA Special Agent Gerald Russell testified that Scanlon was "a key member of the [Lambus-investigation] group" (Apr. 11, 2017 Tr. 202); he was "the leader from [the NYSDOCCS] side, working jointly with the leaders from [HSI] and the DEA" and "help[ed] in drawing up the plan" (id . at 225, 198). In addition to providing the rest of the team with data from the GPS monitoring device, Scanlon participated in surveillances, attended controlled drug purchases, monitored wiretaps, and participated in meetings. (See id . at 188, 201-02, 205, 222; see also id . at 226 (Scanlon "provided a great deal of intel, so he assumed a role of a leader, ... sharing all of that kind of data amongst the agencies involved").)

4. Lambus's GPS Monitoring Is Continued Until Mid-2015

Lambus states that he "never agreed that the GPS device would remain on [him]

indefinitely" (Lambus Aff. ¶ 26); and there is no dispute that, after a few months, he "repeatedly asked" to have the device removed (id . ¶ 18; see Hearing Transcript, April 10, 2017 ("Apr. 10, 2017 Tr."), at 96). S.P.O. Browne testified that his understanding was that Lambus would be on GPS monitoring for a "minimum" of six months, which was the normal minimum for non-sex offenders, and that such monitoring would seldom end on the originally scheduled date. (E.g. , Apr. 11, 2017 Tr. 153-54, 160-61, 167.) Bureau Chief Parker indicated that he likely told Lambus that the need for GPS monitoring would be reevaluated in three-to-six months.

Despite Lambus's repeated requests for the GPS tracker's removal, he was subjected to GPS monitoring until July 2015, i.e. , for more than two years. Browne testified that at some point during that period it was his view that that monitoring should end. However, Parker-who had authority to terminate the monitoring-had received a memorandum from the BSS bureau chief in early July 2013, requesting that BSS be informed and consulted with respect to changes in Lambus's supervision (see Apr. 10, 2017 Tr. 101-02). The memorandum stated as follows:

"Please note that the BSS continues to actively investigate the [Lambus] case. To date this investigation has pointed towards his involvement in a significant Narcotics operation, the scope of which has not yet been determined . The BSS is now working closely with ICE and a protracted investigation is expected . This memo is considered strictly confidential and all measures should be taken to prevent our Target from knowledge of this investigation. It is further requested that any change in his supervision program be communicated to the BSS and that BSS be consulted prior to any consideration of revocation ."

Lambus II , 251 F.Supp.3d at 485 (quoting July 2, 2013 memorandum to Parker from BSS Bureau Chief James Shapiro (emphases ours)).

Scanlon testified that DOCCS is not required to "violate" a parolee-i.e. , to initiate violation proceedings against him-for "every" violation; and the most likely punishment for a minor violation "such as a curfew violation or possession of marijuana" would be "just a verbal admonishment." (Mar. 17, 2017 Tr. 139-140.) In Scanlon's view, imposition of such punishment on Lambus for a minor violation would not have deterred Lambus from continuing to engage in drug trafficking. (See id . at 140.) Thus, "[d]uring the course of GPS monitoring," Scanlon asked Lambus's "parole officer not to initiate violation proceedings for minor violations" because "[a]t that point we were trying to determine the broader scope of his involvement with drug trafficking and ... I was concerned that if we violated him on minor violations, we would compromise the investigation and not have defined his role in the entirety." (Id . at 139.)

Scanlon also testified that although he periodically gave Parker general updates on the BSS/HSI investigation, he shared only limited details because he had become wary of alerting Lambus. (See Mar. 17, 2017 Tr. 148-49.) For example, prior to May 2013, Scanlon had been able to get information about Lambus's activities through his social media pages; but Lambus, learning that certain of his posts had come to Parker's attention, promptly curtailed his use of such pages, thereby closing a useful investigative avenue. (See Mar. 15, 2017 Tr. 40-41.)

In the spring of 2014, when Parker was considering ending Lambus's GPS monitoring, he consulted with BSS, with the DOCCS regional director, and with DOCCS Deputy Commissioner Thomas Herzog, as to whether to do so. Scanlon testified that he recommended that the GPS monitoring of Lambus be continued. While in most cases six months would be a sufficient monitoring period, "individuals that [BSS] deems as high risk in the community .... would stay on [monitoring] indefinitely , until the maximum ." (Mar. 15, 2017 Tr. 15 (emphases added).) Scanlon viewed Lambus as a high risk parolee in this respect because of his "[g]ang involvement, his past history, and his apparent level of narcotics trafficking." (Id .) However, at that time, Scanlon did not believe DOCCS had sufficient evidence to prove a major parole violation; indeed, in his view, the investigators did not obtain such evidence until they listened to wiretaps in 2015. (See id . at 122-23; id . at 123 (the pre-wiretap evidence "raised [Scanlon's] suspicions that [Lambus] was engaging in drug trafficking," but Scanlon "did not have sufficient evidence to prove a violation of parole").) In December 2013, Scanlon and Popolow had met with an Assistant United States Attorney ("AUSA") to discuss their investigation and were informed that their evidence "didn't meet the threshold" for federal prosecution. Lambus II , 251 F.Supp.3d at 479 (internal quotation marks omitted). Scanlon testified that it would be many months before it was determined that there would be a federal prosecution.

"After being told" by an AUSA in December 2013 "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 ...." Lambus II , 251 F.Supp.3d at 479 (quoting Mar. 17, 2017 Tr. 209). Scanlon testified that, after reviewing the evidence indicating that "previous State incarcerations did not deter Mr. Lambus from continuing in his drug distribution ring," and after speaking with his BSS supervisors and DOCCS Deputy Commissioner Herzog, Scanlon "thought federal prosecution along with the[ ] [more severe] penalties would be the best outcome to stop this behavior." (Mar. 17, 2017 Tr. 147, 156.) Accordingly, Scanlon's recommendation to Parker in the spring of 2014 was to continue the GPS monitoring of Lambus for the duration of the joint BSS-HSI investigation, based on Scanlon's DOCCS training and existing DOCCS protocols (see Mar. 15, 2017 Tr. 45), and based on evidence that Lambus had persisted in ignoring curfews, was associating with known felons, and appeared to be a leader of the narcotics activity-and that Lambus "was tampering with the GPS" (id . at 44).

Parker decided to continue the GPS monitoring of Lambus based on the recommendations of BSS, and of the regional director and Deputy Commissioner Herzog-Parker's "higher up[s]" in NYSDOCCS. (Apr. 10, 2017 Tr. 97.) Federal agents never made any recommendation to Scanlon as to whether GPS monitoring should continue. The GPS tracker remained on Lambus until he was arrested on the present federal charges in July 2015.

5. Federal Agents Request Authorization for Wiretaps

In the meantime, in early 2015, it was decided that federal court authorizations for wiretaps would be sought to assist the investigation of the DTO. Eventually, five wiretap applications were made; all were granted.

An affidavit in support of the first application was prepared on January 9, 2015 ("First Wiretap Affidavit") by an HSI agent to whom we refer as the "HSI Agent" (the name being undisclosed here, as it was redacted in the district court, see , e.g. , Lambus I , 221 F.Supp.3d at 327-31 ). The First Wiretap Affidavit requested authorization to intercept, for up to 30 days, telephone calls and text message transmissions to and from a certain number ending in 5283 (the "5283 telephone" or "subject telephone"), for a mobile telephone known to be used by one of the targets of the proposed wiretap. The law enforcement officers had learned of that number from a confidential informant ("CI") who had been found credible and reliable, some of his information having been corroborated by subsequent narcotics seizures.

The First Wiretap Affidavit stated that HSI agents and other law enforcement officers were investigating numerous persons for narcotics and firearms offenses, including distribution of controlled substances and conspiracy to do so, use of firearms in furtherance of those offenses, and dealing in firearms. It defined as wiretap "Target Subjects" a dozen persons including Lambus and Fuller and stated that the drug trafficking organization also included other persons whom law enforcement had not been able to identify.

The HSI Agent stated that the affidavit was based on, inter alia : personal participation in the investigation of the offenses referred to; reports by other special agents; information received from the CI; reports of physical surveillances conducted between July 17, 2013, and November 21, 2014, which identified stash houses; consensually intercepted wire communications; controlled purchases by the CI from suspected members of the DTO; and the seizure, during a judicially authorized search, of cocaine base and drug paraphernalia from a residence at which Lambus and two other wiretap targets were present.

The affidavit described various other investigative techniques the officers involved in the investigation had used or attempted in the past. They included, in addition to the methods referred to above, other judicially-issued search warrants; analysis of toll records; pen registers for telephones that had contact with the 5283 telephone and that were used by known narcotics traffickers; use of pole cameras; and subpoenas to financial and penal institutions in an effort to locate documentary evidence. The HSI Agent stated that those methods had not proven effective in determining the extent of the DTO or the identity of its suppliers; further, it was unlikely that the CI or undercover officers would be able to penetrate more deeply into the drug trafficking organization, given that such organizations tend to be compartmentalized and that the members of the DTO, wary of law enforcement, were reluctant to do business with persons other than trusted associates.

In a section of the First Wiretap Affidavit titled "Prior Applications," the HSI Agent also stated as follows:

As of December 22, 2014, a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate [sic ] that there have been no prior applications seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE .

(Emphasis added.) This statement, however, was not true.

As the HSI Agent's affidavits in pursuit of the next wiretap authorizations revealed, prior to January 9, 2015, there had in fact been several wiretap applications leading to orders authorizing interception of communications of some persons identified as wiretap targets in the First Wiretap Affidavit. The orders included a total of four authorizations in 2011 with regard to Fuller and one other Target Subject; an order in 2003 with regard to a third Target Subject; and two orders in 2004 with regard to an individual who was not literally a Target Subject as that term was defined in the First Wiretap Affidavit but who was listed in that affidavit's subsequent description of "Targets."

The HSI Agent who authored the First Wiretap Affidavit-and who had requested the check of the federal law enforcement databases referred to in its "Prior Applications" section-testified at the 2016 suppression hearing that the error in that section of the First Wiretap Affidavit resulted from a flawed request on the electronic surveillance ("ELSUR") form that was submitted to request the database checks. The HSI Agent testified that instead of listing on the ELSUR form all of the wiretap targets later named in the First Wiretap Affidavit, "I put in [on the ELSUR form] who I expected to actually intercept on that phone" (2016 Tr. 161), and that in stating that the databases had been searched with respect to all of the individuals named in the affidavit, "I misunderstood what I was saying" (id . at 157).

In preparing an affidavit to support the second wiretap application, the HSI Agent learned from an AUSA that the "Prior Applications" statement in the First Wiretap Affidavit was inaccurate. Thus, the errors were not repeated in connection with the second and subsequent wiretap applications. New ELSUR requests were completed, and all known prior applications with respect to all identified targets were listed in the affidavits that were submitted in support of those later applications.

The HSI Agent testified that the initial errors had not been intentional:

THE COURT: Did you do that deliberately to mislead the Judge?

THE WITNESS: No, sir.

THE COURT: How did you know to correct it?

THE WITNESS: I believe after we went to put the second wire affidavit together, I discussed it with the AUSA at the time and he was ... like, no, you did it wrong the first time.

(2016 Tr. 160.)

THE COURT: Did you do that deliberately [in your first submission] to [then-Judge] Gleeson?

THE WITNESS: No, sir.

THE COURT: Did you correct it with the next application?

THE WITNESS: I believe I did, sir, yes.

....

THE COURT: This hearing is closed.

[Fuller's Attorney]: Well, Judge-

THE COURT: I don't want to go over what is obviously an error on his part. Whether that's sufficient to suppress is a matter you will brief.

(Id . at 164-65.) The court indicated, however, that it was inclined to grant at least that aspect of the motions to suppress:

THE COURT: .... When I get an application coming before me, I have to have absolute reliance on the fact that the affidavits are as carefully made out as possible.

Here they were done carelessly , I don't say that critically, by an experienced man. Whatever you got from that wiretap is not coming in. It's going to be suppressed. Because I am not convinced that [then-Judge] Gleeson would have signed it if he knew this. Brief it and be prepared to try the case without that material.

(Id . at 166 (emphases added).)

B. The District Court's Decisions

Following the hearings in 2016, the district court in Lambus I , granted defendants' suppression motions only to the extent of excluding conversations intercepted pursuant to the first wiretap authorization. Eventually, in Lambus II , the court also partially granted Lambus's motion to exclude GPS-related evidence.

1. Suppression as to the January 9 Wiretap Authorization

In Lambus I , the district court found that the HSI Agent's error in the First Wiretap Affidavit's description of prior applications with respect to Target Subjects was not inadvertent; and in the exercise of supervisory authority, the court precluded the government from introducing evidence of conversations intercepted pursuant to the January 9, 2015 wiretap authorization.

The court observed that the federal wiretap statute requires, inter alia , as follows:

"Each application shall include the following information: [...] (e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or place specified in the application, and the action taken by the judge on each such application."

Lambus I , 221 F.Supp.3d at 328 (quoting 18 U.S.C. § 2518(1)(e) (emphasis in Lambus I )). The court also noted that this Court in United States v. Rajaratnam , 719 F.3d 139 (2d Cir. 2013) (" Rajaratnam" ), cert. denied , --- U.S. ----, 134 S.Ct. 2820, 189 L.Ed.2d 785 (2014), had held it appropriate to apply the Franks v. Delaware standard in deciding a suppression motion based on errors in an application for a wiretap authorization:

"Under Franks [v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ] and its progeny, if a search warrant contains a false statement or omission, and the defendant makes a substantial preliminary showing (1) that the false statement or omission was knowingly and intentionally, or with reckless disregard for the truth, included by the government in a search warrant affidavit, (2) that the information was material, and (3) that with the affidavit's false or omitted material aside, the affidavit's remaining content is insufficient to establish probable cause , then the fruits of the search must be suppressed." United States v. Bianco , 998 F.2d 1112, 1125 (2d Cir. 1993) (citing Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ) (emphasis added). "[T]o suppress evidence obtained pursuant to an affidavit containing erroneous information, the defendant must show that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the [issuing] judge's probable cause [or necessity] finding." [Rajaratnam , 719 F.3d] at 146 (internal quotation marks omitted).

Lambus I , 221 F.Supp.3d at 331-32.

Discussing the federal wiretap statute's "own exclusionary rule," which had been addressed in United States v. Giordano , 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the district court noted that the statute

provides that no intercepted communications can be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter. 18 U.S.C. § 2515. The specific grounds for exclusion .... are that: (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a).... Only violations of statutory requirements that "play[ ] a substantive role with respect to judicial authorization of intercept orders and consequently impose[ ] a limitation on the use of intercept procedures" require suppression . United States v. Donovan , 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (internal quotation marks omitted). The Donovan court's holding was limited to cases where the defective affidavit was only "unlawfully made" inadvertently.

Lambus I , 221 F.Supp.3d at 332 (other internal quotation marks omitted) (emphasis ours).

Notwithstanding the grounds for exclusion specified in the wiretap statute and the standards stated in Franks and its progeny, the court stated that "[t]he specific grounds stated above do not divest the court of its 'inherent authority to regulate the administration of criminal justice among the parties before the bar' through its general suppression powers." Id . at 332 (quoting United States v. Cortina , 630 F.2d 1207, 1214 (7th Cir. 1980) (citing McNabb v. United States , 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) )).

"Federal courts may use their supervisory power in some circumstances to exclude evidence taken from the defendant by willful disobedience of the law." United States v. Payner , 447 U.S. 727, 735 n. 7, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (internal quotation marks and emphasis omitted). "The inherent supervisory power serves to ensure that the courts do not lend a judicial imprimatur to any aspect of a criminal proceeding that smacks of lawlessness or impropriety." United States v. HSBC Bank USA, N.A. , 2013 WL 3306161, at *6 (E.D.N.Y. July 1, 2013). "The courts have wielded this authority substantively, that is, to provide a remedy for the violation of a recognized right of a criminal defendant." Id . at *4 (citing cases).... See [ also ] Elkins v. United States , 364 U.S. 206, 222-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (holding that "the imperative of judicial integrity" requires illegally gathered evidence to be suppressed).

Lambus I , 221 F.Supp.3d at 332-33. Still, the court had noted that

[e]xclusion of the fruits of an unconstitutional search is not required in every case. "For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs ." .... "[T]he deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue." .... "[W]hen the police act with an objectively reasonable good-faith belief that their conduct is lawful ... the deterrence rationale loses much of its force." .... "[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."

Id . at 331 (quoting Davis v. United States , 564 U.S. at 237, 238, 232, 131 S.Ct. 2419 (emphasis in Lambus I )).

The court ultimately found pertinent two pre- Rajaratnam decisions:

In Bianco , the Court of Appeals held that a violation of section [2518](1)(e) is "subject to the statutory exclusionary provisions of [ 18 U.S.C.] §§ 2515 and 2518(10) ; that subsection (1)(e) constitutes a non-central provision of Title III; that the government's failure to comply with the requirements of subsection (1)(e) was in good faith and inadvertent error, and suppression is neither permissible [n]or appropriate." 998 F.2d at 1128 (internal citation omitted). The court rested its decision to affirm the denial on the fact that the "omission of the prior surveillance applications" was "inadvertent" and the issue of "the requirements of subsection (1)(e) as applied to a roving intercept application had not been addressed in any reported decisions" prior to the submission of the wiretap application. Id . Similarly, in United States v. Barnes , the defendant argued that "the government's failure to disclose the existence of concurrent state wiretaps (which, in part, targeted Barnes) requires suppression of the evidence obtained from the federal wiretaps." 411 Fed.Appx. 365, 368 (2d Cir. 2011). The court noted that "nothing in the record suggests that the government's affiant was aware of the state wiretaps, which were applied for after the state and federal investigations were severed." Id . The court held that defendant's mere speculation that the federal government must have been aware of the state wiretaps "is insufficient to demonstrate a knowing omission on the part of the government. Thus, the affiant's omission 'was not intentional, but inadvertent' and does not violate § 2518(1)(e)." Id . (quoting Bianco , 998 F.2d at 1128 ).

A natural implication of Bianco and Barnes is that section 2518(1)(e) of the wiretap statute is violated by the government's "knowing," non-inadvertent omission. Where the government knowingly omits information in violation of Title III's statutory requirements, suppression is appropriate.

Lambus I , 221 F.Supp.3d at 345.

The court found that the HSI Agent's truncated list of persons for whom the ELSUR search was to be made was knowing and non-inadvertent. In the First Wiretap Affidavit, submitted on January 9, 2015,

the Special Agent wrongly stated: "As of December 22, 2014, a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior applications seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE."

Id . at 328 (emphasis in Lambus I ).

On February 12, 2015, Special Agent [REDACTED] applied for a wiretap authorization for two more telephones believed to be associated with the DTO .... The affidavit was largely the same as the previous affidavit, with a few notable additions. Whereas in the prior affidavit, Special Agent [REDACTED] had averred that "[a]s of December 22, 2014 a check of federal law enforcement databases ... indicate that there have been no prior applications seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects" ... a check of those same databases on January 29, 2015 revealed four prior authorizations , from 2003 to 2011, that the government had obtained to intercept the communications of some of the Target Subjects. ...

When questioned about this discrepancy at the suppression hearing before this court, the Special Agent conceded that Paragraph 24 of the January 9 Affidavit was "absolutely wrong." .... He testified that he checked the databases, "but not for the full set of names ... it was a couple names. It was not the entire target list." .... The Special Agent apparently "misunderstood" what he was saying in the affidavit ... , and before he submitted an affidavit in connection with the second wiretap application, an AUSA told him that he "did it wrong the first time."

Id . at 330 (brackets and emphases in Lambus I ).

The court found that "the omission was not 'inadvertent;' it was knowing":

The Special Agent testified that despite having been an affiant in previous wiretap applications ... , he did not know that he needed to check for prior wiretap applications related to all the target interceptees. ... This mistake alone, despite precedent to the contrary, may have constituted mere inadvertence. But this was not the Special Agent's only error. The HSI agent swore that "a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior application seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE." [First Wiretap Affidavit] at ¶ 24 (emphasis added). When he swore to this statement, he knew it was false. This was not a "misunderstanding." .... It was perjury.

Id . at 346 (emphases in Lambus I ).

Concluding that "[s]uppression is an appropriate remedy for such an omission," the court stated that it

need not rely on Franks or Giordano to rule that any evidence gathered pursuant to the January 9, 2015 wiretap order is suppressed. It is within the court's inherent authority to suppress evidence gathered unlawfully in order to maintain the integrity of its own proceedings and of government affiants appearing before it-particular[ly] in an in-chambers appearance without opposing counsel present . See, e.g. , Elkins , 364 U.S. at 222-24, 80 S.Ct. 1437 ; see also Payner , 447 U.S. at 735 n. 7, 100 S.Ct. 2439 ; McNabb v. United States , 318 U.S. 332, 63 S.Ct. 608 [87 L.Ed. 819 (1943) ] ; Cortina , 630 F.2d at 1214 ; HSBC Bank USA, NA. , 2013 WL 3306161 at *4-6.

Wiretap applications are made ex parte . Judges rely on the absolute fidelity of the government agents and prosecutors who swear to affidavits and answer questions before the court in chambers attesting to the facts necessary to obtain a wiretap. In reliance on their fidelity, courts almost always grant their requests. See Wiretap Report 2015, available at http://www.uscourts.gov/statistics-reports/wiretap-report-2015 (in 2015 all [4,148] wiretap applications made pursuant to federal and state law were granted). Knowingly false statements cannot be tolerated, especially if those statements are made at proceedings where the courts have little choice but to take the government at its word. Any evidence of statements made on wiretaps gathered pursuant to the January 9, 2015 wiretap order is suppressed.

Lambus I , 221 F.Supp.3d at 346 (emphases added).

2. The Initial Denial of the Motion To Suppress GPS-Related Data

In Lambus I , the district court denied Lambus's motion to suppress any evidence obtained from or derived from the GPS monitoring device attached to his ankle. While noting that the device had been attached initially for the proper purpose of monitoring whether Lambus was abiding by his curfew, the court plainly disapproved of NYSDOCCS' subjecting Lambus to such monitoring for more than two years; it viewed NYSDOCCS officers, after the GPS tracker had been attached for a month, as failing to perform their parole supervisory functions; and it condemned federal officers' participation in the investigation of Lambus while knowing of the GPS monitoring and failing to seek and obtain a judicial warrant for its use in the criminal investigation. The court noted that

in the instant case, coordination by the agencies unwittingly turned Lambus [sic ] into a stalking horse for the federal agencies. Lambus knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was expected [sic ] of any criminal wrongdoing, but to monitor whether he was abiding by the curfew condition of his parole. ... This purpose shifted as federal law enforcement began using the location data to build a narcotics trafficking case against a dozen individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite, presumably, possessing evidence of criminal wrongdoing.

Lambus I , 221 F.Supp.3d at 344 ; see also id . at 342 (referring to the so-called "stalking horse" theory (internal quotation marks omitted), which disapproves of a parole officer's acting as a stalking horse for law enforcement officers by searching a parolee not in the performance of the P.O.'s own duties but solely in response to a prior request by, and in concert with, law enforcement officers-a theory adopted in some Circuits but rejected by this Court, see generally United States v. Reyes , 283 F.3d 446, 462-65 (2d Cir.) (" Reyes "), cert. denied , 537 U.S. 822, 123 S.Ct. 106, 154 L.Ed.2d 31 (2002) ; United States v. Newton , 369 F.3d 659, 666-67 (2d Cir.) (" Newton "), cert. denied , 543 U.S. 947, 125 S.Ct. 371, 160 L.Ed.2d 262 (2004) ).

Notwithstanding its disapproval of the treatment of Lambus, the district court concluded, following the suppression hearings in 2016, that exclusion of GPS data was not warranted.

"[W]hen the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful .... the deterrence rationale [of the exclusionary rule] loses much of its force." Davis , 564 U.S. at 238, 131 S.Ct. 2419 (internal quotation marks and citation omitted).... "[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." Davis , 564 U.S. at 232, 131 S.Ct. 2419.

Lambus I , 221 F.Supp.3d at 341. The court noted that "[t]wo Second Circuit Court of Appeals opinions"- Reyes , 283 F.3d 446, and Newton , 369 F.3d 659 -"condone the coordination between parole and general law enforcement." Lambus I , 221 F.Supp.3d at 342.

Although viewing certain factual circumstances in Reyes and Newton -the shorter durations of the privacy intrusions and the purposes of the intrusions-as more appropriate than the facts here for application of the good-faith rule, see id . at 342-44, the court noted that both Reyes and Newton had expressly rejected the stalking-horse theory as a basis for suppression, see id . at 342. The district court concluded that

[t]he unequivocal language in these two decisions- Reyes and Newton -created a binding appellate precedent that police involvement with a warrantless search of a parolee does not stamp the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate supervisory objective .

In the instant case, the search was initiated by NYSDOCCS to monitor Lambus's adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was reasonable given the Court of Appeals's Reyes and Newton decisions . Neither the NYSDOCCS officers nor the federal law enforcement officers behaved inappropriately . There would therefore be little deterrent value in excluding the evidence. The court declines to suppress the location data evidence.

Lambus I , 221 F.Supp.3d at 342-43 (emphases added); see id . at 342 ("Reliance by the parole officers and federal agents on the broad language in these appellate precedents was objectively reasonable.").

3. The Eventual Suppression of Certain GPS-Generated Data

Following the district court's 2016 opinion in Lambus I , Lambus moved for reconsideration of so much of that decision as denied his motion to suppress GPS-related evidence. He pointed out that the court had not rejected his contention that the GPS monitoring violated his Fourth Amendment rights but had instead found that the violation did not merit a suppression order because the coordination between DOCCS and the federal agencies was conducted in good faith, an issue that had not been briefed by the parties. Following procedural events not material here, the district court granted the motion for reconsideration; and in March and April 2017 it held several days of hearings on the GPS suppression motion. On the first such day, the district court said

I am prepared to suppress the ankle bracelet, beginning one month after it was imposed, placed on [Lambus]. At which point we know that the Feds knew about it. ...

....

.... I am prepared to tentatively, subject to hearing from everybody and briefing ... , tentatively decide that it is to be suppressed because the Feds depended on it and they should have gone at that point to a Federal Judge, Magistrate Judge, or District Judge to get an approval. ...

(Mar. 15, 2017 Tr. 87.)

I'm not saying it is illegal , your putting it on. But only that, once the Feds effectively in this case , not as a general rule, but in this specific case, I'm prepared to say, took control, from that point on, they--and knowing that there was this bracelet[-]they should have gone to a judicial officer . That is my present analysis.

I understand that it is pushing the envelope fairly far and some might read Second Circuit decisions[ ] as to suggest that it goes too far. But I am prepared to do it.

(Id . at 92 (emphases added); see id . at 91 ("my tentative view of where the law should be" (emphasis added)).)

Thereafter, the court heard additional testimony from Scanlon and testimony from Bureau Chief Parker, S.P.O. Browne, and DEA Special Agent Russell, the essence of which has been described in Parts I.A.1.-I.A.4. above. Following those hearings, the court issued its decision in Lambus II , finding 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 [GPS] device to provide evidence for the prospective federal criminal case , and not for any state parole supervision or violation charge," 251 F.Supp.3d at 475 (emphases added), and concluding that "[i]nformation obtained as a direct-but not indirect-result of use of the device" should be suppressed, id . at 474.

As detailed below, the court found, inter alia , that after being contacted by Scanlon, the federal agents immediately took control of the investigation, see id . at 478, 483 ; th