USA v. Moore

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
DERREL LEMORN MOORE, JR.
a/k/a Derrel Austin
Defendant.
REPORT AND RECOMMENDATION
Case No. 1:24-cr-162-RJA-JJM
Defendant Derrel Lemorn Moore, Jr., a/k/a Derrel Austin (hereafter referred to as
“Moore”), is charged in a four count Indictment [23]1 with possession with intent to distribute
fentanyl in violation of 21 U.S.C. §§§841(a)(1), 841(b)(1)(B) and 841(b)(1)(C), possession of a
firearm in furtherance of drug trafficking in violation of 18 U.S.C. §924(c)(1)(A)(i), and being a
felon in possession of firearms in violation of 18 U.S.C. §§922(g)(1) and 924(a)(8).
Before the court are Moore’s motions for suppression of evidence ([37], Point I)
and statements [38] arising from an allegedly unlawful search and arrest on February 17, 2022,
which have been referred to me by District Judge Richard J. Arcara for initial consideration
[25].2 Having considered the parties’ submissions and heard oral argument, for the following
reasons I recommend that the motions be denied.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	Moore’s request for other relief will be addressed in a separate Report, Recommendation and
Order.
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BACKGROUND
At his arraignment on December 20, 2024 [29], Moore elected to represent
himself, despite my cautioning him about the perils of doing so. “When an accused manages his
own defense, he relinquishes . . . many of the traditional benefits associated with the right to
counsel.” Faretta v. California, 422 U.S. 806, 835 (1975). Nevertheless, “although he may
conduct his own defense ultimately to his own detriment, his choice must be honored”. Id. at
834. I appointed AFPD Jeffrey Bagley (who had represented Moore at the Complaint stage of the
case) as standby counsel.
An evidentiary hearing was held before me on March 11, and 21, 2025 [70, 80], at
which Parole Officers Cathy Scarupa, Tiffany Hertel and David Festa, FBI Special Agent Curtis
Middlebrooks, City of Niagara Falls police detectives Gregory Spagnolo and Rashad Travis, and
Moore testified. Moore continued to represent himself during the hearing (accompanied by
standby counsel Bagley), notwithstanding my reminding him that he might be better served by
having legal representation. [70] at 132-33. At the conclusion of the hearing, both parties rested.
[80] at 215, 254.
Following the hearing, Moore moved for appointment of attorney Carla Benz to
represent him [84], and I granted that motion [85]. During oral argument of the suppression
motions on August 8, 2025 [98], Ms. Benz stated that she wished to reopen the hearing to call an
additional witness. She formally moved for that relief on August 18, 2025 [100], which the
government opposed [106]. I denied that motion for reasons stated on the record on September
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12, 2025 [111], and heard further argument on the motions to suppress on September 24, 2025
[122].
DISCUSSION
Reference is made to the parties’ post-hearing briefs ([87] at 1-7, [88] at 1-5) for
the relevant factual background, which will be discussed here only to the extent necessary to
resolve factual and legal disputes.
A. 	The Alleged Seizure of Moore’s Entrance Code
Moore argues that “Parole Officer Festa had procured [his] unique security code
from an unknown individual who allegedly worked for the building management company. This
was done without a warrant, without consent, and without any exigent circumstances”, and that
the code was “Subsequently Dissemin[at]ed to Law Enforcement in Violation of his Privacy
Interest under the Fourth Amendment”. Moore’s Post-Hearing Brief [88] at 1, 6.
However, Moore does not (and could not) argue that he possessed the only
entrance code to his apartment building, and he offered no evidence to demonstrate that PO Festa
intentionally obtained his code from the building manager, knowing that it was private. Festa
testified as follows:
“I called over there to see if there is a code
to get into the building . . . .
Q. And when you called and spoke to this . . .
person, how did you introduce yourself?
A. I told them exactly who I was and I told them
about a supervisee and I asked them what the code to get
into the building.
Q. And what was their response?
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A. Yes, and they provided me a code.
Q. Did they give you any indication that that code
box had ever been broken?
A. No.
Q. When they provided you a code, do you know if
that was a certain code, a general code, or something
else?
A. That I’m not 100 percent sure, I don't know.
Q. Did you tell them why you needed the code?
A. I don’t recall. I don’t think I did, but I don’t
recall.
Q. Did they give you any push back when you asked
for the code?
A. No.” [80] at 59-60 (emphasis added).
Moore argues that “[i]t is shocking that a private company would turn over a
tenant’s security code to a building over the phone without any way to verify the identity or
objective of the person on the other end of the call, which should suggest to the Court that there
is more to the story. Here, the burden of persuasion rests solely with the Government to establish
the legality of the seizure and or search”. Moore’s Post-Hearing Brief [88] at 11. However, it
was Moore’s burden to demonstrate that PO Festa knew that he was improperly obtaining
Moore’s private entrance code, and he failed to do so.3
3 	That was the basis for Moore’s motion to reopen the suppression hearing once he was represented
by counsel, which the government opposed. See [100, 106, 107]. The motion was committed to my
“sound discretion” ([100], ¶13). Given my repeated attempts to discourage Moore from representing
himself, coupled with the fact that the proposed witness could not meaningfully address the question of
whether Festa knew or should have known that he was improperly obtaining the entrance code, my denial
of that motion was not an abuse of discretion.
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Therefore, the use of the entrance code (whether or not it was Moore’s) to gain
entry into Moore’s apartment building furnishes no basis for suppression of evidence. “[T]he
heavy toll of suppression of evidence is warranted only to deter deliberate, reckless or grossly
negligent conduct by law enforcement.” United States v. Tucker, 2019 WL 3069987, *1
(W.D.N.Y.), adopted, 2019 WL 2281227 (W.D.N.Y. 2019); Herring v. United States, 555 U.S.
135, 144 (2009).
B. 	The Arrest and Search
“[P]robable cause to arrest exists when police officers have knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime . . . . Probable cause is determined by examining the events leading up to the
arrest, and then deciding whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.” Alberty v. Hunter, 144 F.4th
408, 415 (2d Cir. 2025). It “is a fluid standard that does not demand hard certainties or
mechanistic inquiries”, and is determined based on “the totality of the circumstances at the time
of the challenged arrest”. Id.
The same standard is applied to probable cause for a search. “As has long been
recognized, probable cause is a fluid concept - turning on the assessment of probabilities in
particular factual contexts . . . [P]robable cause to search is demonstrated where the totality of
circumstances indicates a fair probability that contraband or evidence of a crime will be found in
a particular place.” United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011). The totality of the
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circumstances at the time of Moore’s arrest and the search of his apartment amply demonstrate
the existence of probable cause.
Parole Officers Scarupa and Hertel both testified that they had been knocking on
the door of Moore’s apartment for 20-25 minutes, and also calling, without receiving a response
([70] at 22, 23, 25, 50, 52, 87), and Moore admitted the same. [80] at 117. While that was
occurring, Detective Travis was told by his Lieutenant that someone had left Moore’s apartment
carrying bags and climbed to the top of the building, returning without the bags. [80] 9-10.4
Travis then went to the top floor and obtained that tenant’s consent to access the back porch area,
where he found three bags containing drug paraphernalia, narcotics, and firearms. Id. at 10.5
After placing the bags in his vehicle, he told Scarupa and Hertel what he had found. Id. at 10-11.
That knowledge, coupled with the fact that Moore was still not answering the door, clearly
created probable cause both to arrest Moore and search his apartment.
C. 	Moore’s Statements
Moore testified that after he was taken into custody, “[t]he first thing I said was
‘attorney’ . . . . . The truth of the matter is, that night, I was coerced, tricked, to speak to an agent
and the detective based on false promises as well as stage setting. It started with the promise of
4 	Moore argues that he had not been identified as that person. However, “when assessing probable
cause to arrest, police officers are entitled to rely - as long as such reliance is reasonable - on information
provided by other law enforcement officials, including identifications which may later turn out to be
mistaken.” Oehler v. Nietzel, 2024 WL 4989300, *4 (W.D.N.Y.), adopted, 2024 WL 4661160
(W.D.N.Y. 2024).
5 	Although Moore suggests that he had a privacy interest in the area where the bags were located,
he has not claimed ownership of the bags or their contents, nor could he exclude the upstairs tenant from
that area or prevent him from granting access to Travis.“the absence of a right to exclude others from
access is an important factor militating against a legitimate expectation of privacy.” United States v.
Rahme, 813 F.2d 31, 34 (2d Cir. 1987).
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confidentiality, it would go nowhere. I believed that confidentiality and that it was off book”.
[80] at 91.
However, FBI Special Agent Middlebrooks, who interviewed Moore, testified
that he advised Moore of his right to an attorney and asked whether he wanted an attorney
present, but that Moore never requested an attorney. [70] at 100. He also denied telling Moore
that anything that he said would be off the record. Id. at 101. He further testified that before
initiating questioning, he reviewed the Miranda warnings with Moore and asked him whether he
consented to be interviewed, and that Moore agreed and signed the Miranda waiver form. Id. at
97-99. The waiver form (government exhibit 3) specifically states that “[a]nything you say can
be used against you in court”. Detective Spagnolo, who sat in on the interview, corroborated
Middlebrooks’ testimony. Id. at 121-25.
Having considered the substance of the witnesses’ testimony as well as their
demeanor, I find the testimony of Middlebrooks and Spagnolo to be more credible than that of
Moore on the subject of his custodial interview, and conclude that he was not pressured or
misled into giving statements.
CONCLUSION
For these reasons, I recommend that Moore’s motions to suppress evidence and
statements ([37], Point I), [38]) be denied. Unless otherwise ordered by Judge Arcara, any
objections to this Report and Recommendation must be filed with the clerk of this court by
November 7, 2025. Any requests for extension of this deadline must be made to Judge Arcara.
Any party who “fails to object timely . . . waives any right to further judicial review of [this]
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decision”. Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S.
140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 59(b)(2) of this Court’s Local
Rules of Criminal Procedure, “[w]ritten objections . . . shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis for each
objection, and shall be supported by legal authority”, and pursuant to Local Rule 59(b)(3), the
objections must include “a written statement either certifying that the objections do not raise new
legal/factual arguments, or identifying the new arguments and explaining why they were not
raised to the Magistrate Judge”. Failure to comply with these provisions may result in the
district judge’s refusal to consider the objection.
Dated: October 24, 2025
_/s/ 	Jeremiah J. McCarthy _____
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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