UNITED STATES v. DECKER (2025)

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant Andre Decker is charged by indictment with one count of possession of firearms by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). Dkt. No. 1 (“Indictment”). Presently before the Court ¹ is Defendant's omnibus pretrial motion pursuant to Rules 12, 16, and 48 of the Federal Rules of Criminal Procedure to (i) suppress evidence seized against him; (ii) dismiss the Indictment for unjust and prejudicial preindictment delay; and (iii) compel the disclosure of body-worn camera footage. Dkt. No. 27 (“Motion”). The Government submitted responsive papers in opposition, and Defendant submitted reply papers in further support. Dkt. Nos. 28-29.

For the reasons set forth below, Defendant's Motion is denied.

II. BACKGROUND

The Court held a suppression hearing on February 28, 2025. Dkt. No. 45. At the hearing, the Government called as witnesses Deputy United States Marshals (“DUSM”) Anthony Loguidice and Stuart Smith.² Defendant called as a witness Attillah McKenzie. After considering the evidence offered at the hearing and submitted with the parties’ briefing, as well as the credibility of the witnesses, the Court makes the following findings of fact.

On June 23, 2023, Defendant began serving a term of supervised release. Dkt. No. 28-2 at 1. Defendant subsequently absconded from supervised release. Dkt. No. 45 at 11:14.³ On November 2, 2023, United States District Judge Nelson S. Román issued a warrant for Defendant's arrest due to his violation of supervised release. Dkt. No. 28-3. Around that time, DUSM Loguidice was assigned to locate and apprehend Defendant. Dkt. No. 45 at 10:14-17. DUSM Loguidice then determined that Defendant had been staying at 95 West Street Apartment 2 in Albany. Id. at 11:3-8. Ms. McKenzie, who is Defendant's girlfriend, resided at this address. Id. at 11:9-11; 12:3-4. According to Ms. McKenzie, Defendant stayed at 95 West Street multiple days a week. Id. at 172:16-18. On November 22, 2023, United States Magistrate Judge Daniel J. Stewart signed a premises search warrant to search 95 West Street Apartment 2 for Defendant. Dkt. No. 27-4; Dkt. No. 45 at 13:14-16.

On November 27, 2023, at 6:00 a.m., DUSM Loguidice, the team and investigative lead, met with members of the USMS Regional Task Force (“Task Force”) to execute the search warrant. Dkt. No. 45 at 21:1-19. The DUSMs did not have body-worn cameras on that date. Id. at 16:25-17:2; 150:22-24. According to the USMS Policy Directive on Body Worn Cameras (“Policy”), “DUSMs who are assigned [body-worn cameras] must complete a USMS-approved training program to ensure proper use and operations.” Government Exhibit ⁴ 1 at 7. Pursuant to the Policy, DUSMs were not permitted to use body-worn cameras without having completed the training. Id.; Dkt. No. 45 at 18:2-7. The DUSMs in Albany did not receive either body-worn cameras or the requisite training until August 2024. Dkt. No. 45 at 18:17-19; 150:22-151:12. The Policy also applied to Task Force officers from other law enforcement agencies who were assisting the DUSMs on November 27, 2023 (collectively with the DUSMs, “TFOs”) and who similarly were not permitted to use body-worn cameras that day. Dkt. No. 45 at 18:20-19:16; 151:20-24; Government Exhibit 1 at 7. As a result, there is no body-worn camera footage of the search within Ms. McKenzie's apartment on November 27, 2023. Id. at 135:8-18. The body-worn camera footage admitted into evidence was from Albany Police Department officers, one of whom was a member of the Task Force who activated his camera to record two conversations with Ms. McKenzie outside of her apartment, see id. at 72:3-13, and others of whom were not members of the Task Force but arrived as responding officers and had their cameras recording outside the apartment building, see id. at 56:13-57:6, 60:25-61:5, 62:410-13; see also Government Exhibits 10-11, 16; Defense Exhibits 4-7.

On November 27, 2023, at approximately 6:13 a.m., TFOs approached 95 West Street Apartment 2 to search the premises for Defendant. Dkt. No. 45 at 22:15-19. The common door of the apartment building was unlocked, and TFOs went to the second floor of the building to Apartment 2 and knocked on the door. Id. at 23:5-15; 36:8-11; 172:19-22. DUSM Loguidice announced his presence and explained that he was there with a warrant to search for Defendant. Id. at 36:15-21. DUSM Loguidice did not yell, nor did he use a combative tone. Id. at 37:2-17. Ms. McKenzie answered and opened the door. Id. at 23:16-20; 173:7-8. TFOs then escorted all the occupants out of the apartment, namely Ms. McKenzie, her mother, and her son, to the vestibule on the first floor of the apartment building, and then began searching the apartment for Defendant. Id. at 23:21-24:5; 40:12-22.

TFOs conducted several searches of the apartment, but did not find Defendant. Id. at 24:11-13. While TFOs were searching for Defendant, one of them noticed a window was open at the rear of the apartment and the screen in that window was pushed out. Id. at 24:13-15. DUSM Smith climbed out the window and onto the roof to see if he could locate Defendant. Id. at 24:22-25; 158:18-23. DUSM Smith did not find Defendant on the roof, but did observe Defendant hiding underneath a boat in an adjacent open garage. Id. at 158:23-25. TFOs ordered Defendant to come out. Id. at 25:10. Defendant instead climbed an adjacent wall, got onto another roof on Bradford Street, and then went inside 180 Bradford Street. Id. at 25:11-20. Defendant was ultimately apprehended in 180 Bradford Street around 7:14 a.m. Id. at 25:21-22; 57:7-8.

It was during the search for Defendant in 95 West Street Apartment 2 that members of the Task Force observed what appeared to be drugs in plain view. Id. at 41:17-25. TFOs saw a small twist tie bag that was sitting on top of a clear plastic container. Government Exhibit 8C. This clear plastic container was in the bedroom that Defendant and Ms. McKenzie shared. Government Exhibit 7; Dkt. No. 45 at 47:6-14; 48:22-25. TFOs also observed suspected drugs in a black duffel bag, which was in the hallway next to that same bedroom. Government Exhibits 8A-8B. At 6:53 a.m., DUSM Loguidice texted the Assistant United States Attorney (“AUSA”) assigned to the case that “[w]e found a bunch of drugs and drug packing material in plain view.” Government Exhibit 22 at 1. DUSM Loguidice also took photos of the suspected drugs and drug paraphernalia and texted the photos to the AUSA soon after. Id. at 1-2; Dkt. No. 45 at 46:16-47:3.

At approximately 7:20 a.m., after Defendant was in custody, DUSM Loguidice went to speak with Ms. McKenzie. Dkt. No. 45 at 57:10-12. This conversation with Ms. McKenzie was not recorded. Id. at 57:19-21. DUSM Loguidice told Ms. McKenzie that Defendant was in custody and asked whether there was anything illegal in the apartment because they had found drugs.⁵ Id. at 57:22-58:1. DUSM Loguidice then informed Ms. McKenzie that if she told him about any other contraband, she would not be charged with it. Id. at 58:7-9. However, DUSM Loguidice also mentioned that if she did not inform him of any contraband and another law enforcement officer found it later, she could be charged with it. Id. at 58:9-11; 177:10-24. It was during this conversation that DUSM Loguidice informed Ms. McKenzie that he was going to obtain a search warrant for her apartment. Id. at 63:23-24; 200:4-6. When DUSM Loguidice informed Ms. McKenzie of his intent to obtain a search warrant, he also told her that she could not go back inside the apartment in the interim. Id. at 63:25-64:2. After this conversation, Ms. McKenzie consented to a search of her apartment. Id. at 58:19-21; 177:12. In a separate conversation conducted among TFOs standing outside of 95 West Street, one TFO suggested to DUSM Loguidice that he charge everyone in the apartment with the contraband. Id. at 124:22-23; Government Exhibit 10 at 8:14. However, there is no indication that Ms. McKenzie, her mother, or her son heard this comment. Id. at 143:11-14; see also 177:6-12; 179:6-12.

At approximately 7:24 a.m., DUSM Loguidice spoke with Ms. McKenzie again, only this time, the conversation was recorded on a body-worn camera.⁶ Id. at 59:5-9. Only DUSM Loguidice and the TFO whose body-worn camera was being used approached Ms. McKenzie to obtain her consent. Government Exhibit 11. Neither TFO brandished their weapon. Id.; Dkt. No. at 60:5-6. Neither TFO used any physical force. See generally Government Exhibit 11; Dkt. No. at 60:7-10. When the two TFOs approached Ms. McKenzie to obtain her consent, she was not in handcuffs, nor was she in custody. Dkt. No. 45 at 59:25-60:2. Ms. McKenzie was still standing in the vestibule on the first floor of 95 West Street. Government Exhibit 11. Ms. McKenzie seemed to understand what DUSM Loguidice was saying to her. See generally id.; Dkt. No. 45 at 60:11-16. Throughout the interaction, Ms. McKenzie appeared calm. See generally Government Exhibit 11. Once again, Ms. McKenzie gave the TFOs consent to search her apartment. Id. at 00:37. Ms. McKenzie also confirmed that there was a firearm in the apartment. Id. at 00:48.

DUSM Loguidice testified that if Ms. McKenzie had not consented to the search of her apartment, he was prepared to obtain a search warrant based on the apparent drugs observed in plain view. Dkt. No. 45 at 58:22-25. He would have sought a search warrant authorizing a search of all of 95 West Street Apartment 2, including anywhere someone could hide drugs or illegal items. Id. at 70:4-10; Government Exhibit 22 at 1. DUSM Loguidice testified that he would have been able to prepare the warrant from his location. Id. at 69:13-18. In addition, DUSM Loguidice was in communication with the AUSA assigned to the case who was available to assist in preparing the warrant. Dkt. No. 45 at 69:10-12; Government Exhibit 22. Based on his experience, DUSM Loguidice estimated that it would have taken about an hour to prepare the search warrant and submit it to a United States Magistrate Judge. Id. at 69:19-23. And during the time it would have taken to obtain the warrant, DUSM Loguidice explained that the premises would have been secured in order to preserve evidence. Id. at 69:24-70:3.

At around 7:56 a.m., after Ms. McKenzie consented to the search of her apartment, TFOs found two firearms in the apartment. Government Exhibit 22 at 3. One firearm was in a black bag located in a closet in the bedroom shared by Ms. McKenzie and Defendant. Government Exhibits 12A-12B; Dkt. No. 45 at 77:19-21. This black bag also contained a box of ammunition. Government Exhibit 12A. Another firearm was in a blue plastic bag that was inside the same bedroom. Government Exhibits 13A-13B; Dkt. No. 45 at 79:5-10. More ammunition was found in another black bag. Government Exhibit 15. At approximately 8:09 a.m., after the search that recovered the firearms, DUSM Loguidice asked Ms. McKenzie for her consent to take a buccal swab sample to collect her DNA. Government Exhibit 16. Ms. McKenzie consented to the request. Id.; Government Exhibit 17. TFOs also asked for consent to search Ms. McKenzie's car, which she provided. Government Exhibit 16 at 01:23.

After Defendant's arrest on November 27, 2023, he admitted to violating the terms of his supervised release and received a nine-month sentence with an anticipated release date of August 26, 2024. Dkt. No. 27-1 at 12; Dkt. No. 27-17. Defendant was charged with the instant offense via the Indictment on August 22, 2024. Dkt. No. 1. Defendant asserts that in December 2023 he obtained an affidavit from his uncle, Arcel Simon, stating that Mr. Simon “owned and controlled the firearms seized from 95 West Street.” Dkt. No. 27-7 ¶ 15. Defendant further asserts that the authorities at Hudson County Jail where he was incarcerated seized Defendant's legal folder, which contained Mr. Simon's affidavit, and never returned it. Id. ¶ 17. Mr. Simon died “toward the end of 2023” and before Defendant could obtain a new affidavit. Id. ¶¶ 20-21.

III. STANDARDS OF REVIEW

A. Rule 12

A defendant may move pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure for the suppression of evidence. Fed. R. Crim. P. 12(b)(3)(C); see also Fed. R. Crim. P. 41(h). “It is well established that the burden of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (citation omitted). In this district, a defendant can satisfy his or her burden by filing “moving papers accompanied by an affidavit, based upon personal knowledge, setting forth facts which, if proven true, would entitle him to relief.” United States v. Miller, 382 F. Supp. 2d 350, 361 (N.D.N.Y. 2005) (citation omitted). “Once the movant establishes some basis for the suppression motion, for example a search or seizure conducted without a warrant, the burden of proof shifts to the Government.” United States v. Murphy, 778 F. Supp. 2d 237, 240 (N.D.N.Y. 2011), aff'd, 703 F.3d 182 (2d Cir. 2012) (citing, inter alia, Arboleda, 633 F.2d at 989). “The Government then carries the burden to demonstrate by a preponderance of the evidence that the search or seizure did not violate the Fourth Amendment.” Id. (citation omitted).

In addition, Rule 12(b)(1) allows a party to raise by pretrial motion “any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Such pretrial motions include a motion asserting a “defect in instituting the prosecution” such as “preindictment delay.” Fed. R. Crim. P. 12(b)(3)(A)(ii). “The dismissal of an indictment is an ‘extraordinary remedy’ reserved only for extremely limited circumstances implicating fundamental rights.” United States v. Espinoza, 442 F. Supp. 3d 596, 603 (S.D.N.Y. 2020) (quoting United States v. Bustos De La Pava, 268 F.3d 157, 165 (2d Cir. 2001)).

B. Rule 16

Under Rule 16 of the Federal Rules of Criminal Procedure, the Government typically must provide an item of discovery to a defendant “if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). The Second Circuit has stated that evidence is material “if it could be used to counter the government's case or to bolster a defense,” or if “the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.” United States v. Clarke, 979 F.3d 82, 97 (2d Cir. 2020) (quoting United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)). At any time, a court may “deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1).

C. Rule 48

Rule 48(b) of the Federal Rules of Criminal Procedure allows a court to “dismiss an indictment, information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.” Fed. R. Crim. P. 48(b). Rule 48(b) is “a restatement of the inherent power of the court to dismiss a case for want of prosecution.” Fed. R. Crim. P. 48(b) advisory committee note to 1944 adoption. The Second Circuit has indicated that a court's inherent power under Rule 48 “is not circumscribed by the Constitution, the statute, or the rules.” United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) (citing Hilbert v. Dooling, 476 F.2d 355, 361 (2d Cir. 1973)).

IV. DISCUSSION

Defendant broadly argues that (i) Ms. McKenzie's consent was involuntary and tainted, warranting suppression of the evidence against Defendant; (ii) the Indictment should be dismissed due to preindictment delay; and (iii) purportedly undisclosed body-worn camera footage should be disclosed. See generally Dkt. Nos. 27, 29. The Court addresses each argument in turn.

A. Motion to Suppress

1. Consent

a. Whether the Consent Was Voluntary

Defendant first argues that suppression of evidence against him is warranted because the TFOs failed to properly obtain Ms. McKenzie's consent to search her apartment. Dkt. No. 27-1 at 14, 16-17. Specifically, Defendant contends that Ms. McKenzie's consent was involuntary. Id.

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. “Although warrantless searches of private property are generally presumed to be unreasonable, the law recognizes certain exceptions, for example, when the search is conducted pursuant to the consent of an authorized person.” United States v. Snype, 441 F.3d 119, 130 (2d Cir. 2006) (citing, inter alia, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Courts typically assess the voluntariness of such consent based on the totality of the circumstances, such as “the characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. “The government has the burden of proving, by a preponderance of the evidence, that a consent to search was voluntary.” United States v. Isiofia, 370 F.3d 226, 230 (2d Cir. 2004) (citing United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983)).

In United States v. O'Brien, the court found that a defendant voluntarily consented to a search of his computer. 498 F. Supp. 2d 520, 543-44 (N.D.N.Y. 2007), aff'd, 303 F. App'x 948 (2d Cir. 2008). The court began its analysis by identifying the following factors that courts have used to assess the voluntariness and scope of a defendant's consent:

(1) whether the police made a show of force or engaged in similar coercive conduct; ․ (2) whether the police advised a suspect of his right to refuse consent (although not constitutionally mandated); ․ (3) threats to seek or obtain a search warrant; ․ (4) the location where consent was obtained; ․ (5) a defendant's maturity, sophistication, physical and mental health, and emotional state; ․ and (6) a defendant's objections, affirmative acts, or statements of acquiescence (although silence alone does not constitute consent)[.]

Id. at 536 (citations omitted). The court then determined that law enforcement officers were in the defendant's home permissibly; made no show of force; used no coercive behavior; and took precautions to avoid embarrassing the defendant. Id. at 544. Additionally, the defendant was in his home, with his parent, and was “completely cooperative.” Id. The court ultimately found that the defendant's consent was obtained voluntarily after considering the enumerated factors and the circumstances surrounding his consent. Id. at 544–45.

Here, the Court finds that the circumstances surrounding Ms. McKenzie's consent fit squarely within the factors identified in O'Brien. TFOs were permissibly present at Ms. McKenzie's apartment pursuant to a warrant to search for and arrest Defendant. When DUSM Loguidice obtained Ms. McKenzie's consent to a further search for contraband, he did so with just one other TFO present. Government Exhibit 11. Neither TFO brandished their weapons, nor did they make any other show of force. Id. Though DUSM Loguidice told Ms. McKenzie that he would obtain a search warrant, he did so to inform her that she could not return to her apartment until after the search warrant was executed, not to coerce her into giving consent to search the apartment. DUSM Loguidice obtained Ms. McKenzie's consent right outside of her home, and in the presence of her mother and another family member. Throughout the exchange, Ms. McKenzie appeared calm and able to comprehend DUSM Loguidice's words without difficulty. See generally Government Exhibit 11. Finally, Ms. McKenzie affirmatively gave her consent and was cooperative throughout the exchange. All of these circumstances suggest that Ms. McKenzie's consent to search her apartment was voluntary.

Defendant argues that another TFO's recorded suggestion to DUSM Loguidice that everyone in the apartment could be arrested rendered Ms. McKenzie's consent involuntary; however, this argument fails for two reasons. First, Ms. McKenzie was not present in the conversation when the TFO made this comment outside of 95 West Street, she did not overhear it, and there is no indication that anyone conveyed it to her. Dkt. No. 45 at 143:11-14; see also 177:6-12; 179:6-12. Second, even if Ms. McKenzie had been aware of the statement, it was not made in a threatening manner. Although a “threat to arrest all of the apartment's occupants would have been highly coercive to a reasonable individual in [that] position,” an actual threat “to arrest everyone is substantially more coercive than the statement that it might be possible to do so.” United States v. Guzman, 724 F. Supp. 2d 434, 443 (S.D.N.Y. 2010) (citations omitted); see also United States v. Perez, 198 F. Supp. 2d 406, 414-15 (S.D.N.Y. 2002), aff'd, 72 F. App'x 857 (2d Cir. 2003) (finding a warning that if there was contraband in an apartment, all the apartment's occupants could go to jail “was not made in a threatening manner, but rather in the context of the agent's discovery that [the defendant's] mother and his fourteen-year old daughter lived in the house where he kept his drug money”). The TFO suggested that DUSM Loguidice could “charge everyone if [he] want[ed].” Dkt. No. 45 at 124:22-25. This statement merely raises the possibility of multiple arrests rather than threatens multiple arrests. Thus, the Court does not find that this statement renders Ms. McKenzie's consent involuntary.

b. Whether the Consent Was Tainted

Next, Defendant argues that even if Ms. McKenzie's consent was voluntary, her consent was tainted due to the unlawful entry and search. Dkt. No. 27-1 at 14-16. “When consent to search is preceded by an unlawful government seizure [or entry], the evidence obtained from the search must ordinarily be suppressed unless the Government shows both that the consent was voluntary and that ‘the taint of the initial [seizure] has been dissipated.’ ” United States v. Murphy, 703 F.3d 182, 190 (2d Cir. 2012) (second and third alterations in original) (quoting Snype, 441 F.3d at 132).

Here, neither the entry nor search of the apartment prior to Ms. McKenzie giving consent was illegal, so neither action tainted Ms. McKenzie's consent. Defendant first argues that the entry was illegal because it violated the knock-and-announce rule. Dkt. No. 27-1 at 15. The “principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one.” Hudson v. Michigan, 547 U.S. 586, 589, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); see also 18 U.S.C. § 3109. DUSM Loguidice complied with this principle when he knocked on the apartment door, announced that he was there for Defendant, and waited for Ms. McKenzie to open the door. Indeed, Ms. McKenzie even acknowledged that DUSM Loguidice knocked on her door. Dkt. No. 45 at 172:19-22. Next, Defendant argues that TFOs searched the apartment and recovered contraband that was not in plain view. Dkt. No. 27-1 at 8, 16. Although warrantless searches are typically per se unreasonable, under the plain-view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citations omitted). Here, the TFOs found suspected drugs and drug paraphernalia on top of a plastic container and in an open black duffel bag. See Government Exhibits 8A-8C. DUSM Loguidice's contemporaneous text messages with the AUSA assigned to the case confirm that these were the only items found during the search of the apartment for Defendant. Government Exhibit 22 at 1-2. These apparent drugs were in plain view, and thus TFOs could lawfully seize them. Because neither the entry nor search was illegal, these actions did not taint Ms. McKenzie's consent.

Even if the entry or search had been illegal, any “taint” would have sufficiently dissipated. “In assessing whether the taint of the illegal entry was sufficiently diminished, we consider four factors: whether a Miranda warning was given, the ‘temporal proximity’ of the illegal entry and the alleged consent, ‘the presence of intervening circumstances,’ and ‘the purpose and flagrancy of the official misconduct.’ ” United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990) (first quoting Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and then quoting United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987)). Although Ms. McKenzie did not receive Miranda warnings, the significance of this fact is limited because she was never in custody. United States v. Lavan, 10 F. Supp. 2d 377, 385 (S.D.N.Y. 1998) (finding the significance of a lack of Miranda warnings “somewhat limited because it is unclear whether she was in custody at the time she gave consent”). The entry and search occurred approximately 60 minutes and 30 minutes respectively before Ms. McKenzie gave her consent. Dkt. No. 45 at 101:7-10; 108:3-6. Thirty minutes is a relatively brief period of time, yet courts have found that shorter periods of time were sufficient to sever the connection between an illegal entry and subsequent consent to search, especially in the presence of intervening events. See Snype, 441 F.3d at 135.

Here, Defendant's pursuit and apprehension constitutes such an event. Around 7:00 a.m., DUSM Smith spotted Defendant hiding in an adjacent property and wearing only underwear. Dkt. No. 45 at 25:1-8; 55:15-23; 111:15-19; 158:20-159:3. TFOs converged on that location. Id. at 25:9-12. Defendant climbed a wall to escape, and a rooftop chase ensued. Id. at 25:12-18. Defendant then jumped off the roof and entered another building on a third property. Id. at 25:18-20. TFOs ran down West Street and around the block, on foot, as responding Albany Police Department officers began arriving. Id. at 25:23-26:3; 56:6-19. Defendant was eventually apprehended in that building. Id. at 25:21-22. Ms. McKenzie was then informed that Defendant had been arrested. Id. at 57:22-24. Defendant's flight and apprehension constitute an intervening circumstance from the earlier search of 95 West Street, which suggests that Ms. McKenzie's consent was not obtained “as a direct result of [an] illegal Fourth Amendment search.” United States v. Lambis, 197 F. Supp. 3d 606, 613 (S.D.N.Y. 2016). Finally, “[p]urposeful and flagrant police misconduct exists where ․ the impropriety of the official's misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless.” Murphy, 703 F.3d at 192 (quoting United States v. Fox, 600 F.3d 1253, 1261 (10th Cir. 2010)). Because the TFOs did not act illegally, the factor evaluating the purpose and flagrancy of the TFO's official conduct favors a finding that any taint had dissipated. Put together, these factors suggest that even if TFOs had acted illegally, any taint would have dissipated.

2. Inevitable Discovery

The Government argues that even if Ms. McKenzie's consent was involuntary or tainted, suppression is not warranted because of the inevitable discovery doctrine. Dkt. No. 45 at 221:13-23.⁷ The Court agrees.

When evidence “would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); see also United States v. Whitehorn, 829 F.2d 1225 (2d Cir. 1987) (applying the inevitable discovery doctrine to warrantless searches under the Fourth Amendment). The Government bears the burden of proving inevitable discovery by a preponderance of the evidence. Nix, 467 U.S. at 444, 104 S.Ct. 2501. “Evidence should not be admitted, therefore, unless a court ‘can find, with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government's favor.’ ” United States v. Stokes, 733 F.3d 438, 444 (2d Cir. 2013) (quoting, inter alia, United States v. Heath, 455 F.3d 52, 60 (2d Cir. 2006)). Among other variables, warrantless search questions require consideration of whether a warrant “would have been sought, whether a warrant would have issued, whether the warrant would have specified the articles seized, whether the articles would have remained in place by the time the warrant would have been executed, and whether the articles would have been found in the hypothetical warranted search.” Lavan, 10 F. Supp. 2d at 389 (citing, inter alia, United States v. Eggers, 21 F. Supp. 2d 261, 272 (S.D.N.Y. 1998)).

The Court finds that each of the contingencies necessary to the discovery of the firearms can be resolved in the Government's favor. Though the TFOs had not yet obtained a warrant, DUSM Loguidice testified that he was prepared to obtain a search warrant, and the AUSA assigned to the case was prepared to assist. Dkt. No. 45 at 57:15-18; 69:7-18. This search warrant would have allowed him to search the entire apartment for suspected firearms, which were ultimately found in bags within the apartment. Id. at 70:4-17. This search warrant would have been based on the apparent drugs TFOs observed in plain view; the presence of suspected contraband, coupled with Defendant's previous conviction for possessing a firearm unlawfully, would have been a sufficient showing of probable cause for a United State Magistrate Judge to issue the warrant. Dkt. No. 28-4. DUSM Loguidice also testified that based on his prior experience, it would have taken him about an hour to draft the warrant and present it to a United States Magistrate Judge, and the apartment would have been secured in the interim in order to preserve any evidence. Dkt. No. 45 at 69:19-70:3. The relatively short amount of time it would have taken to obtain the search warrant, during which TFOs would have secured the apartment to preserve evidence, suggests that the firearms would have still been in the apartment by the time the warrant was executed. Thus, the Court finds that the firearms would have inevitably been discovered.

For all of these reasons, the Court denies Defendant's request to suppress evidence.

B. Motion to Dismiss for Preindictment Delay

Next, Defendant moves under Rule 48 to dismiss the Indictment for unnecessary delay between his arrest in November 2023 and indictment in August 2024. Dkt. No. 27-1 at 18-20.

An indictment that is “brought within the time constraints of the statute [of limitations] may nevertheless violate due process where pre-indictment delay has been shown to cause ‘substantial prejudice’ to the defendant's ability to present his defense and ‘the delay was an intentional device to gain [a] tactical advantage over the accused.’ ” United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (second alteration in original) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). To establish such a claim, “[a] defendant bears the ‘heavy burden’ of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose.” United States v. Schaefer, 859 F. Supp. 2d 397, 414 (E.D.N.Y. 2012), aff'd, 519 F. App'x 71 (2d Cir. 2013) (quoting Cornielle, 171 F.3d at 752).

Defendant does not show that he suffered actual prejudice as a result of the alleged preindictment delay. Prejudice in this context is defined as the “sort of deprivation that impairs a defendant's right to a fair trial.” Cornielle, 171 F.3d at 752 (citation omitted). Defendant argues that he suffered prejudice because he lost the ability to negotiate a global resolution to his supervised release violation and the pending charge the opportunity to participate in Bureau of Prisons programming, and the availability of his uncle, Mr. Simon, whom he could have a called as a witness in his favor. Dkt. No. 27-1 at 20. Neither a global resolution of his case nor access to programming has any bearing on Defendant's right to a fair trial. Additionally, “a defendant has no right to be offered a plea ․” Kovacs v. United States, 744 F.3d 44, 51 (2d Cir. 2014) (quoting Missouri v. Frye, 566 U.S. 134, 148, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012)).

Meanwhile, the unavailability of Mr. Simon as a witness likely would have occurred regardless due to his passing shortly after he allegedly gave Defendant the affidavit. Indeed, Defendant was arrested on November 27, 2023 and Mr. Simon passed “toward the end of 2023.” Dkt. No. 27-7 at ¶ 15. Given that, it is implausible that Defendant would have proceeded to trial in the time prior to Mr. Simon's death. Moreover, witness unavailability alone is not enough to justify dismissal for preindictment delay because “unavailable witnesses are inherent in any delay, even if justifiable.” United States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988). Finally, Defendant was still serving a nine-month sentence for his supervised release violation (which is distinct from the instant offense) at the time he was indicted. Compare Dkt. Nos. 28-2, 28-19, with Dkt. No. 1. Thus Defendant's detention throughout that period was not caused by any indictment-related delay. In sum, none of the grounds Defendant raises demonstrate that the elapsed time between his arrest and indictment has prejudiced him.

Nor does Defendant show that any delay was intentionally pursued by the Government. Defendant alleges that the Government obtained the indictment to coincide with Defendant's release date on his supervised release violation to “maximize [his] incarceration time and apply coercive pressure on [Defendant] to ultimately plead guilty.” Dkt. No. 27-1 at 20. However, beyond this speculation, Defendant provides no evidence suggesting that the Government's delay was intentional. Moreover, courts have found that far lengthier delays do not violate due process when the defendant does not show that the delay was an intentional device to gain a tactical advantage. See e.g., Denis v. Upstate Corr. Facility, 361 F.3d 759, 760 (2d Cir. 2004) (finding that 77-month delay in obtaining indictment did not violate defendant's right to due process).

Accordingly, Defendant's request to dismiss the Indictment for preindictment delay is denied.⁸

C. Motion to Compel

Defendant also moves pursuant to Rule 16 to compel purportedly undisclosed body-worn camera footage because “there should be more body camera footage from November 27, 2023, than the [G]overnment has disclosed.” Dkt. No. 27-1 at 17. In the alternative, Defendant requests that the Court find that the failure to activate body-worn cameras is “ ‘an adverse credibility factor’ [that should] ‘tilt the case against the [G]overnment.’ ” Dkt. No. 29 at 2 (quoting United States v. Garcia, 554 F. Supp. 3d 421, 432 (E.D.N.Y. 2021)).

The Government represents that it has disclosed all of the body-worn camera footage related to this case in its possession, after confirming with law enforcement. Dkt. No. 28 at 16. Beyond this representation, credible testimony at the hearing confirmed that no further footage exists, primarily because the activation of body-worn cameras by TFOs was effectively proscribed at the time, see Dkt. No. 45 at 18:2-7, 151:4-24, and secondarily because ADP responding officers with activated body-worn cameras did not arrive on the scene until shortly before Ms. McKenize consented to the search, see id. at 56:13-58:13. And Defense counsel confirmed on cross-examination that there is no footage of the search. See id. at 135:8-18. Given the consistent testimony on these issues, the Court credits the Government's representation that it has disclosed all available body-worn camera footage. Because there is no further body-worn camera footage for the Court to compel, the request is denied as moot. See United States v. Weigand, 482 F. Supp. 3d 224, 244 (S.D.N.Y. 2020) (denying motion to compel where the Government represented that it had already produced the requested discovery).

Additionally, the Court declines to treat the failure to activate body-worn cameras on November 27, 2023 as an adverse credibility factor. Given “the relatively recent advent of police body cameras, there is a dearth of caselaw assessing the evidentiary consequences of a police officer's failure to comply with body camera mandates where the Fourth Amendment is implicated.” Garcia, 554 F. Supp. 3d at 431. However, “courts that have addressed this issue have generally declined to make an adverse credibility finding as a result of non-compliance with [body-worn camera] activation policies.” United States v. Tillard, No. 18-cr-6091, 2019 WL 8105894, at *6 (W.D.N.Y. Oct. 4, 2019), report and recommendation adopted, No. 18-cr-6091, 2020 WL 57198 (W.D.N.Y. Jan. 6, 2020) (collecting cases). Here, however, Defendant has not established that TFOs violated any mandate or policy with respect to body-worn cameras on November 27, 2023. In any event, an officer's “failure to activate his body-worn camera does not constitute prima facie evidence of bad faith in failing to collect and preserve additional evidence,” United States v. Taylor, 312 F. Supp. 3d 170, 178 (D.D.C. 2018), particularly given the Court's assessment of the credibility of witness testimony on this issue. Because there is no evidence that TFOs transgressed the relevant policy at the time, the Court declines to make an adverse credibility finding. See Government Exhibit 1.

V. CONCLUSION

Accordingly, the Court hereby

ORDERS that Defendant's Motion, Dkt. No. 27, is DENIED; and the Court further

ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

FOOTNOTES

1.   This case was reassigned to the undersigned on January 29, 2025. Dkt. No. 30.

2.   While Mr. Smith held a supervisory role with the United States Marshals Service (“USMS”) at the time of the search, and has since been further promoted, the Court refers to him and other United States Marshals as DUSMs for convenience. Id. at 55:15-19; 146:4-9.

3.   Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the documents’ internal pagination.

4.   All exhibits referred to in this Memorandum-Decision and Order were admitted into evidence at the February 28, 2025 suppression hearing. Citations to video exhibits are referenced as “minute:second.”

5.   DUSM Loguidice also testified that, in response to his question, Ms. McKenzie volunteered that there was a firearm in the apartment. Id. at 58:2-21; 59:2-4; 91:3-8; see also id. at 156:6-16, 157:5-158:5. By contrast, Ms. McKenzie testified that DUSM Loguidice informed her that TFOs had already found a firearm in the apartment. Dkt. No. 45 at 178:2-13. Having observed and considered the witnesses’ demeanors, the Court finds the testimony of DUSMs Loguidice and Smith more credible than Ms. McKenzie on this issue, and further notes that Ms. McKenzie's testimony was also inconsistent with other record evidence. See Government Exhibit 22 (contemporaneous text messages from DUSM Loguidice to AUSA relaying that drugs were found in plain view during the search for Defendant at 6:53 a.m., and not noting that firearms were found until 7:56 a.m.).

6.   The AUSA advised DUSM Loguidice that recording Ms. McKenzie's consent would obviate the need to make her a grand jury witness at a later date. Government Exhibit 22 at 3. DUSM Loguidice testified that TFOs considered using a cell phone to record the conversation, but instead decided to activate and use the body-worn camera of an Albany Police Department officer who was a member of the Task Force that morning. Dkt. No. 45 at 71:15-72:13.

7.   At the conclusion of the suppression hearing, the Government and Defendant made closing arguments.

8.   Within his broader argument under Rule 48, Defendant also raises abbreviated Fifth and Sixth Amendment arguments. Dkt. No. 27-1 at 18-19. Both fail, primarily given the lack of demonstrated prejudice just discussed. See United States v. Mickens, Nos. 20-462, 20-630, 2021 WL 3136083, at *1 (2d Cir. July 26, 2021) (summary order) (“The defendant ‘carr[ies] a heavy burden to sustain a claim of violation of due process’ because of pre-indictment delay․ He ‘must prove that the delay resulted in actual prejudice and that the prosecution's reasons for the delay were improper.’ ”) (first alteration in original) (first quoting United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979); and then quoting Bierenbaum v. Graham, 607 F.3d 36, 51 (2d Cir. 2010)); United States v. Aquart, 92 F.4th 77, 99 (2d Cir. 2024) (“We need not here decide just how [defendant]’s actions might weigh in the Barker balance because, even if we were to resolve that question in [defendant]’s favor, his inability to demonstrate prejudice—the fourth and most important factor—precludes him from showing ․ speedy trial error.”) (citing Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Additionally, as to the Sixth Amendment, Defendant has not established that the approximately nine months between his arrest and indictment is “presumptively prejudicial” and warrants an analysis of the Barker factors. See United States v. Cabral, 979 F.3d 150, 157 (2d Cir. 2020) (“The first factor—the length of delay—is a threshold inquiry․ A defendant must show that the time period at issue has crossed the threshold ‘dividing ordinary from ‘presumptively prejudicial’ delay.’ ”) (first citing United States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015); and then quoting United States v. Ghailani, 733 F.3d 29, 43 (2d Cir. 2013)).

Anne M. Nardacci, United States District Judge: