United States v. Steppello, No. 10-4527 (2d Cir. 2011)
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The government appealed from two interlocutory orders. The first order suppressed cocaine seized from defendant's person incident to his warrantless arrest, as well as statements made by defendant, based on a lack of probable cause to support the arrest. The order also suppressed evidence seized from defendant's residence pursuant to the execution of a search warrant on the ground that without the reference to the cocaine seized from defendant's person, the warrant application did not establish probable cause to search the residence. The second order denied the government's motion for reconsideration of the suppression decisions in the first order. The court held that the district court erred in determining that defendant's warrantless arrest was not supported by probable cause, and thus, evidence seized from defendant's person and residence, as well as the statements made by defendant during and after his arrest, should not have been suppressed. Accordingly, the judgment was reversed and remanded.
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10-4527-cr United States v. Steppello 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: December 7, 2011 Decided: December, 23, 2011) Docket No. 10-4527-cr UNITED STATES OF AMERICA, Appellant, v. DEAN A. STEPPELLO, Defendant-Appellee. Before: JACOBS, Chief Judge, CABRANES, and WESLEY, Circuit Judges. Appeal from two interlocutory orders of the United States District Court for the Northern District of New York (Hurd, J.). The first order suppressed cocaine seized from Defendant s person incident to his warrantless arrest, as well as statements made by Defendant, based on a lack of probable cause to support the arrest. The order also suppressed evidence seized from Defendant s residence pursuant to the execution of a search warrant on the ground that without the reference to the cocaine seized from Defendant s person, the warrant application did not establish probable cause to search the residence. The second order denied the government s motion for reconsideration of the suppression decisions in the first order. We hold that the district court erred in determining that Defendant s warrantless arrest was not supported by probable cause, and thus evidence seized from Defendant s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 person and residence, as well as the statements made by Defendant during and after his arrest, should not have been suppressed. REVERSED and REMANDED. PAUL D. SILVER, Assistant United States Attorney (Richard Southwick, Tamara Thomson, Assistant United States Attorneys, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellant. LEE D. GREENSTEIN, Law Offices of Lee D. Greenstein, Delmar, NY, for Defendant-Appellee. PER CURIAM: The government appeals two interlocutory orders of the 23 United States District Court for the Northern District of 24 New York (Hurd, J.), entered on August 20, 2010 and October 25 29, 2010, respectively. 26 seized from the person of Defendant-Appellee Dean A. 27 Steppello incident to his warrantless arrest, as well as 28 statements made by Steppello, based on a lack of probable 29 cause to support the arrest. 30 evidence seized from Steppello s residence pursuant to the 31 execution of a search warrant on the ground that without the 32 reference to the cocaine seized from Steppello s person, the The first order suppressed cocaine The order also suppressed 2 1 warrant application did not establish probable cause to 2 search the residence. 3 government s motion for reconsideration of the suppression 4 decisions in the first order. 5 the district court erred in determining that Steppello s 6 arrest was not supported by probable cause. 7 conclude that the evidence seized from Steppello s person 8 and residence, as well as the statements made by Steppello 9 during and after his arrest, should not have been 10 13 The government argues that We agree and suppressed. 11 12 The second order denied the I. Background A. Steppello s Arrest On June 25, 2008, James Eric Jones, an investigator 14 with the New York State Police Community Narcotics 15 Enforcement Team ( CNET ), executed a search warrant at the 16 residence of Richard Szuba. 17 to cooperate with police and identified Steppello as his 18 cocaine supplier. 19 Steppello had been the subject of an earlier drug 20 investigation and that he had sold cocaine in the presence 21 of a New York state trooper in November 2001. 22 indicated that his transactions with Steppello had been During the search, Szuba agreed Investigator Jones was aware that 3 Szuba 1 ongoing for approximately four years and that Steppello 2 would supply him with four ounces of cocaine in exchange for 3 approximately $3600 every two weeks. 4 the coded nature of their cocaine transactions Szuba would 5 call Steppello on his cell phone and ask Are you good? and 6 Steppello would deliver the cocaine to Szuba s residence 7 shortly thereafter. 8 residence on the second floor of a two-story house, and 9 described Steppello s vehicle as an Envoy or sport utility 10 11 Szuba then described Szuba showed the police Steppello s vehicle ( SUV ).1 While officers were questioning Szuba at his house, 12 others, including Investigator Sullivan, were surveilling 13 Steppello s residence. 14 Steppello to determine whether he would be nearby because 15 during their surveillance of Steppello s home, they observed 16 a person leaving the building.2 The officers had Szuba call At approximately 1:14 p.m., 1 There is a discrepancy in the suppression hearing testimony about the color of the vehicle. Szuba testified that he told police that Steppello drove a silver colored SUV type truck. Investigator Matthew Sullivan testified that Szuba told police that Steppello operated a gray or silver colored GMC. However, Investigator Jones testified that Szuba described Steppello s vehicle as a light gold colored Envoy or SUV. 2 The record does not indicate that the officers knew the identity of the person leaving. Indeed, the record does not establish that Szuba provided Steppello s physical description to the police. Nor does the record establish that Investigator 4 1 Investigator Jones closely observed Szuba call Steppello, 2 whose telephone number was preprogrammed as a speed dial 3 number in Szuba a cell phone. 4 Investigator Jones heard Szuba say you good, this 5 afternoon, 20 minutes. 6 that someone was speaking to Szuba, he could not hear what 7 that person said. 8 Investigator Jones that Steppello would arrive at Szuba s 9 house in twenty minutes with cocaine. 10 During the conversation, Although Investigator Jones knew At the completion of the call, Szuba told At 1:34 p.m., Investigator Sullivan observed a white 11 male arrive at Steppello s residence in a silver GMC SUV and 12 enter the residence. 13 Sullivan observed the white male get back into the vehicle 14 and drive away. 15 to the vicinity of Szuba s residence, where he terminated 16 the surveillance to avoid detection. 17 immediately notified the officers at Szuba s residence that 18 the person under surveillance was coming. 19 Five minutes later, Investigator Investigator Sullivan followed the vehicle Investigator Sullivan Although Szuba advised officers that he usually left Jones knew Steppello s physical description from his knowledge of the earlier investigation. 5 1 the garage door open when Steppello delivered cocaine,3 the 2 police closed the door and hid in the garage. 3 male arrived at Szuba s house and parked his GMC Envoy in 4 the driveway. 5 Investigator Jones, who was in the garage, that Steppello 6 called Szuba s cell phone ten times and Szuba s house once.4 7 When the officers heard a person exit the vehicle, they 8 proceeded to exit the garage and arrested the white male in 9 the driveway. 10 The white An officer inside the house relayed to As the officers took the person to the ground to handcuff him, he uttered that he could do somebody. 11 The officers immediately searched the person and found 12 a small plastic bag containing cocaine in his pants pocket. 13 The person arrested was Steppello. 14 Investigator Jones issued Miranda warnings, Steppello stated Moments later, after 3 The district court did not make this specific factual finding. The record indicates that the finding is supported by the testimonies of not only two officers, but also Szuba himself. On appeal, Steppello merely argues that Szuba testified that the garage door was not always open when Steppello arrived, and a third officer did not recall any discussion about the garage door. However, Steppello does not contest that Szuba testified that he generally left the garage door open for Steppello. 4 Investigator Jones did not actually see the white male make the phone calls because he could not continue looking through a garage window for fear of being discovered. Szuba testified that he did not receive any phone calls from Steppello while the police were at his house. However, Szuba also explained that officers took his phone from him during that time. Cellular telephone records established that Steppello made eleven unanswered calls to Szuba between 1:43 p.m. and 1:47 p.m. 6 1 that he wanted to speak to his attorney and the District 2 Attorney before identifying his supplier. 3 B. 4 Search Warrant for Steppello s Residence After securing the cocaine from Steppello s person, 5 Investigator Jones proceeded to the Utica City Court, where 6 he reviewed and signed both the application for a warrant to 7 search Steppello s residence and vehicle and the affidavit 8 in support of the search warrant application. 9 established that Investigator Jones a New York State police The affidavit 10 officer for twelve years and member of the CNET for 11 approximately three years had been thoroughly trained to 12 combat drug trafficking. 13 that as a result of his training and experience with drug- 14 related investigations and arrests and with handling 15 confidential informants, Investigator Jones was familiar 16 with the communication methods and customs used by persons 17 involved in drug trafficking. 18 The affidavit also established The affidavit then set forth the events that occurred 19 that day, which included the controlled phone call Szuba 20 made to Steppello, the surveillance of Steppello s 21 residence, and the arrest of Steppello and incident seizure 22 of cocaine from his person. The affidavit also noted 7 1 Steppello s criminal history and that he was the registered 2 owner of the GMC Envoy he drove to Szuba s house. 3 the affidavit concluded, based upon the information provided 4 by Szuba, the surveillance conducted by New York State 5 Police, and the resulting arrest of Steppello and incident 6 seizure of cocaine from his person, that Steppello was 7 utilizing his residence and vehicle to further a cocaine 8 distribution operation. 9 Finally, The Utica City Court issued the search warrant. During 10 the subsequent search of Steppello s residence, police 11 seized two jars containing cocaine, drug-related 12 paraphernalia, and $4000 in cash. 13 C. Indictment and Suppression Decision 14 On May 28, 2009, a grand jury returned a two-count 15 indictment charging Steppello with possessing with intent to 16 distribute an unspecified quantity of cocaine, in violation 17 of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and possessing with 18 intent to distribute more than 500 grams of cocaine, in 19 violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). 20 pretrial motion, Steppello sought to suppress the cocaine 21 seized from his person incident to his arrest, as well as 22 the cocaine seized from his residence pursuant to the 8 In a 1 execution of the search warrant. 2 Steppello sought to suppress statements he made following 3 his arrest on the basis that they were the fruit of his 4 unlawful arrest. 5 conducted an evidentiary hearing on the issues raised by 6 Steppello s motions. 7 In a subsequent motion, On June 7, 2010, the district court In a Memorandum-Decision & Order, entered on August 20, 8 2010, the district court determined that the admissibility 9 of the cocaine seized from Steppello s person and the 10 statements he made following his arrest depended on whether 11 police had probable cause to arrest him. 12 concluded that probable cause was lacking because at the 13 time Steppello was arrested, the police had nothing more 14 than the partially corroborated account of a criminal 15 informant with no history of reliability. 16 Steppello, 733 F. Supp. 2d 347, 351 (N.D.N.Y. 2010). 17 court also noted that Steppello had not engaged in any 18 suspicious activity while under surveillance. 19 next determined that the admissibility of evidence seized 20 from Steppello s residence depended on the legality of his 21 arrest because without the reference to the cocaine seized 22 from his person, the warrant application did not establish 9 The court United States v. The The court 1 probable cause to search the residence. 2 district court granted Steppello s motion to suppress (1) 3 the cocaine seized incident to his arrest; (2) the 4 statements he made during and after his arrest; and (3) the 5 evidence seized from his residence. 6 D. 7 Accordingly, the Motion for Reconsideration The government moved for reconsideration of the 8 district court s suppression decision. The government 9 argued that, in light of this Court s decision in United 10 States v. Gagnon, 373 F.3d 230 (2d Cir. 2004), the district 11 court improperly discounted the information provided by 12 Szuba. 13 erred when it determined in its suppression decision that no 14 cellular phone records were in evidence to corroborate the 15 government s account that Steppello made eleven calls to 16 Szuba while sitting in his car in Szuba s driveway. 17 district court denied the motion for reconsideration without 18 explanation. 19 General of the United States, this appeal ensued. The government also noted that the district court With the authorization of the Solicitor 20 21 22 10 The 1 2 II. Discussion A. Legality of Steppello s Arrest5 3 The government contends that the district court erred 4 in determining that police lacked probable cause to arrest 5 Steppello because the court failed to consider the totality 6 of the circumstances known to police and failed to 7 appreciate the reliability of Szuba s information. 8 agree. 9 Steppello s arguments on appeal square with our well- 10 11 We Neither the district court s determination nor established principles of probable cause. Probable cause exists if a law enforcement official, 12 on the basis of the totality of the circumstances, has 13 sufficient knowledge or reasonably trustworthy information 14 to justify a person of reasonable caution in believing that 15 an offense has been or is being committed by the person to 16 be arrested. 17 cause standard is a practical, nontechnical conception that Gagnon, 373 F.3d at 236. 5 [T]he probable- On appeal from a district court s grant of a motion to suppress, we review factual findings for clear error, viewing those facts in the light most favorable to the government, and we analyze de novo the ultimate determination of such legal issues as probable cause. United States v. Howard, 489 F.3d 484, 49091 (2d Cir. 2007) (citation and internal quotation marks omitted). We likewise analyze de novo whether the exception for a search incident to . . . arrest is applicable. United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (citation omitted). 11 1 deals with the factual and practical considerations of 2 everyday life on which reasonable and prudent men, not legal 3 technicians, act. 4 contextual, a court must examine the totality of the 5 circumstances of a given arrest. 6 Delossantos, 536 F.3d 155, 159 (2d Cir. 2008) (citations and 7 internal quotation marks omitted). 8 9 Because the standard is fluid and United States v. Contrary to the district court s conclusion, the facts surrounding Steppello s arrest, see supra Part I.A., were 10 sufficient to provide police with probable cause to make the 11 arrest. 12 discounting the evidence. 13 to examine the totality of the circumstances, and instead, 14 considered individual facts in isolation. 15 Pringle, 540 U.S. 366, 371 (2003); Delossantos, 536 F.3d at 16 161. 17 facts in light of the training and experience of the 18 arresting agents. 19 20 21 22 23 24 25 26 The district court made two significant errors in First, the district court failed See Maryland v. Second, the district court failed to evaluate the Delossantos, 536 F.3d at 161. [S]ome patterns of behavior which may seem innocuous enough to the untrained eye may not appear so innocent to the trained police officer who has witnessed similar scenarios numerous times before. As long as the elements of the pattern are specific and articulable, the powers of observation of an officer with superior training and experience should not be disregarded. 12 1 Id. (alteration in original) (internal quotation marks 2 omitted). 3 For example, the district court erred in discounting 4 the significance of the phone call between Szuba and 5 Steppello due to its brevity, the inability to hear what 6 defendant said, and the lack of any reference to a drug 7 sale. 8 the arrest, Investigator Jones had been employed by the New 9 York State Police for twelve years and a member of the CNET Steppello, 733 F. Supp. 2d at 351. At the time of 10 for three years. 11 experience certainly would have recognized that the cryptic 12 nature of the call was consistent with other transactions in 13 which drug dealers often engage in a so-called narcotics 14 code. 15 Cir. 2001) (internal quotation marks omitted). 16 immediately after the phone call, Szuba confirmed to 17 Investigator Jones that Steppello would be at Szuba s 18 residence in twenty minutes with cocaine.6 19 An officer with his training and United States v. Velasquez, 271 F.3d 364, 372 (2d Indeed, Next, the district court erred in discounting the 6 The use of code language makes sense and is chronicled regularly in our cases. See Velasquez, 271 F.3d at 372; United States. v. Bryce, 208 F.3d 346, 349 (2d Cir. 1999); United States v. Cancelmo, 64 F.3d 804, 808 (2d Cir. 1995). One would not expect two individuals involved in the sale of illegal substances to speak in traditional terms of commerce. 13 1 significance of the eleven phone calls made by Steppello to 2 Szuba immediately prior to Steppello s arrest. 3 the district court s assertion that there was a lack of any 4 evidence of defendant s or Szuba s cellular phone records 5 for the day of the arrest, Steppello, 733 F. Supp. 2d at 6 352, Steppello s phone records were received in evidence 7 during the suppression hearing. 8 that he never received any of the calls, he also testified 9 that the police took his phone away from him for a while Contrary to Although Szuba testified 10 that day. Moreover, in light of Investigator Jones s 11 training and experience, it would have been reasonable for 12 him to believe that Steppello acted suspiciously by making 13 the phone calls instead of getting out of the car, 14 especially given Szuba s prediction that closing the garage 15 door might alert Steppello. 16 Finally, although police did not identify the white 17 male under surveillance, the circumstances suggested that it 18 was Steppello: (1) at 1:14 p.m., Szuba called Steppello and 19 said the same coded words he claimed to have used before to 20 purchase cocaine from Steppello; (2) immediately after that 21 phone call, Szuba told Investigator Jones that Steppello 22 would be arriving in twenty minutes with cocaine; (3) at 14 1 1:34 p.m., a person driving the type of SUV Szuba described 2 as Steppello s vehicle arrived at and entered Steppello s 3 residence; (4) five minutes later, the person drove the SUV 4 to Szuba s residence; (5) upon arriving at Szuba s house, 5 the person did not immediately exit the car; and 6 (6) Steppello made eleven phone calls to Szuba between 1:43 7 p.m. and 1:47 p.m. 8 those circumstances at the time of the arrest would be 9 entitled to conclude that the person under surveillance was Any reasonable officer with knowledge of 10 Steppello, and that he was about to deliver cocaine to 11 Szuba. 12 With regard to the reliability of the information 13 provided by Szuba, the district court erred in discounting 14 that information on the ground that Szuba did not have a 15 history of reliability as a confidential informant. 16 United States v. Gagnon, we found that probable cause 17 existed to search the defendant s vehicle and thus reversed 18 this same district judge s order suppressing currency seized 19 during the search. 20 clearly articulated the legal principles used to evaluate 21 information provided by informants: 22 23 373 F.3d at 240. In In doing so, we Often the information needed to supply probable cause is not gathered independently by police 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 officers but instead is provided by professional criminal informants, witnesses to a particular event, or participants in the crime at issue. In assessing the veracity of an informant s statements, it is improper to discount the information provided simply because [the informant] has no proven record of truthfulness or accuracy. There is, in particular, no need to show past reliability when the informant is in fact a participant in the very crime at issue. However, although other circuits have recognized that criminals caught red-handed may be reliable sources of information because [t]he informant s interest in obtaining leniency creat[es] a strong motive to supply accurate information, we have also cautioned that a criminal informer is less reliable than an innocent bystander with no apparent motive to falsify. Whether or not the informant speaks to an officer in person or through the mediation of an anonymous means of communication may also bear upon the reliability of the information he provides; thus, a face-to-face informant must be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false. Gagnon, 373 F.3d at 236 (alternations in original) 40 (citations, internal quotation marks, and ellipses omitted). In addition to considering an informant s veracity, reliability, and basis of knowledge, in assessing the totality of the circumstances we also evaluate whether the information an informant provides is corroborated by independent police investigation because an informant who is right about some facts is more likely to be right about others. We consider such corroboration in evaluating the existence of probable cause even if only an informant s account of anticipated innocent activities is confirmed. 41 16 1 Here, as in Gagnon, the district court employed an 2 incorrect legal standard in evaluating the information 3 provided by the informant. 4 crime at issue; he gave the information to the officers in 5 person after they executed a valid search warrant at his 6 residence; and at that time, Szuba was motivated to be 7 truthful to receive leniency. 8 reliability. 9 Szuba was a participant in the Those circumstances suggest See id. at 237-38. Moreover, the information Szuba provided was specific 10 and corroborated. For example, Szuba predicted just what 11 Steppello would do in response to his cryptic phone call. 12 Szuba also accurately described Steppello s residence and 13 the type of vehicle he drove. 14 was clearly and inexplicably wrong in concluding that there 15 was no independent corroboration of [Szuba s] allegation of 16 [Steppello s] drug dealing. 17 351. 18 cocaine in the presence of an undercover officer while he 19 was the subject of a prior narcotics investigation. 20 corroborated information supports the finding that police 21 had probable cause to arrest Steppello. Finally, the district court Steppello, 733 F. Supp. 2d at Investigator Jones was aware that Steppello had sold 22 17 Szuba s 1 In sum, given the totality of the circumstances, the 2 officers had probable cause as a matter of law to believe 3 that Steppello was delivering cocaine at the time of his 4 arrest. 5 Steppello s arrest and the statements he made during the 6 course of his arrest should not have been suppressed. Accordingly, the cocaine seized incident to 7 8 9 10 B. 11 court and the government that without reference to the 12 cocaine seized from Steppello s person, probable cause was 13 lacking to issue the warrant to search his residence. 14 Accordingly, whether the district court erred in suppressing 15 the evidence seized from Steppello s residence turns on the 16 legality of Steppello s arrest.8 17 Suppression of the Evidence Seized From Steppello s Residence7 As an initial matter, we agree with both the district As explained above, the district court erred in 18 determining that police did not have probable cause to 19 arrest Steppello at Szuba s house. The fact that the 7 We review de novo whether there was probable cause to issue a search warrant. United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006). 8 The district court also declined to apply the good faith exception to the exclusionary rule. Steppello, 733 F. Supp. 2d at 354 (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)). The government, however, has declined to address the good faith ruling on appeal. 18 1 officers seized cocaine from Steppello s person incident to 2 his lawful arrest, along with the other facts disclosed in 3 the application and affidavit in support of the search 4 warrant, certainly established probable cause to believe 5 that cocaine was located in Steppello s residence. 6 United States v. Elmore, 482 F.3d 172, 184 (2d Cir. 2007). 7 Accordingly, the search was lawful, and the evidence seized 8 from Steppello s residence should not have been suppressed. See 9 10 C. Remand Instructions 11 We note that we are reversing the suppression order of 12 this district judge on substantially the same grounds as we 13 reversed the same judge s suppression order in Gagnon. 14 are mindful that there are factual differences between 15 Gagnon and this case, but we cannot overlook that the legal 16 principles set forth in Gagnon strongly compel that Szuba s 17 information should not have been discounted and that 18 probable cause existed to arrest Steppello. 19 court made no credibility determinations that undercut the 20 factual record we have recited above. 21 22 We The district The government brought our decision in Gagnon to the district judge s attention in its motion for 19 1 reconsideration, but the district judge denied the motion 2 without comment. 3 an objective observer to question [the judge s] 4 impartiality, we have the power to remand the case to a 5 different judge. 6 97 F.3d 1, 21 (2d Cir. 1996) (alteration in original) 7 (internal quotation marks omitted); see also United States 8 v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc). 9 believe that is warranted here. When circumstances might reasonably cause Pescatore v. Pan Am. World Airways, Inc., We Accordingly, we order that, 10 upon remand to the district court, this case be transferred 11 to a different judge. 12 13 III. Conclusion For the foregoing reasons, the suppression order of the 14 district court is REVERSED and the case is REMANDED with 15 instructions to assign the case to a different judge. 20
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