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Second Circuit Reverses Trial Court Rulings Suppressing Wiretap and GPS Evidence

On July 25, 2018, in United States v. Lambus, No. 16-4296 (Kearse, Livingston, Jeffrey Meyer, D.J.), the Second Circuit issued a lengthy decision reversing pretrial rulings suppressing evidence obtained from wiretaps and GPS monitoring.

The appeal arises out of the indictment of Kamel Lambus and Stanley Fuller for drug trafficking charges following a years-long investigation.  Both Lambus and Fuller moved to suppress all evidence from wiretaps conducted in 2015 on the basis that the government’s wiretap applications contained misrepresentations and omitted material facts, and Lambus moved to suppress evidence obtained through the GPS data recovered from an ankle bracelet he wore as a condition of parole.

The first issue involved wiretap evidence.  When applying for a wiretap to target Lambus, Fuller, and others, the government affidavit in support stated—incorrectly—that there had been no prior applications for wiretaps of these targets.  The agent who authored the affidavit testified that the misstatement was the result of an error querying a database of electronic surveillance, and it was corrected in subsequent wiretap applications.  Judge Weinstein suppressed the evidence from the first wiretap, even while acknowledging that the error was the result of carelessness, not an intent to mislead the court.  The Second Circuit reversed, holding that the evidence was admissible because the application was neither perjurious nor intentionally false.

Lambus also moved to suppress GPS evidence obtained from an ankle tracking monitor that he wore as a condition of parole for an earlier state court conviction.  The state authorities investigating whether Lambus was violating the terms of his parole brought in federal law enforcement agencies as well, who were investigating whether Lambus was involved in a drug trafficking ring.  Judge Weinstein, who was critical of the federal agents’ participation in the use of the GPS monitoring device without seeking a warrant, granted (on reconsideration) Lambus’ motion to suppress evidence that was obtained as a direct result of the use of the GPS device.  The Second Circuit reversed on this issue as well.  It took issue with the district court’s finding that federal agents directed the continued use of the ankle bracelet, and further noted the diminished expectations of privacy of parolees.  Under the totality of the circumstances, the Court concluded that Lambus had no reasonable expectation of privacy that was violated by the GPS monitoring.

We will post a more detailed discussion of this extensive opinion in the coming days.