United States v. Steppello 1

10-4527-cr
United States v. Steppello
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Argued: December 7, 2011 Decided: December, 23, 2011) 10
11
Docket No. 10-4527-cr 12
13
14
U NITED S TATES OF A MERICA , 15
16
Appellant, 17
18
–v.– 19
20
D EAN A. S TEPPELLO , 21
22
Defendant-Appellee. 23
24
25
26
Before: 27
J ACOBS , Chief Judge, C ABRANES , and W ESLEY , Circuit Judges. 28
29
Appeal from two interlocutory orders of the United 30
States District Court for the Northern District of New York 31
(Hurd, J.). The first order suppressed cocaine seized from 32
Defendant’s person incident to his warrantless arrest, as 33
well as statements made by Defendant, based on a lack of 34
probable cause to support the arrest. The order also 35
suppressed evidence seized from Defendant’s residence 36
pursuant to the execution of a search warrant on the ground 37
that without the reference to the cocaine seized from 38
Defendant’s person, the warrant application did not 39
establish probable cause to search the residence. The 40
second order denied the government’s motion for 41
reconsideration of the suppression decisions in the first 42
order. We hold that the district court erred in determining 43
that Defendant’s warrantless arrest was not supported by 44
probable cause, and thus evidence seized from Defendant’s 45

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2
person and residence, as well as the statements made by 1
Defendant during and after his arrest, should not have been 2
suppressed. 3
4
REVERSED and REMANDED. 5
6
7
8
P AUL D. S ILVER , Assistant United States Attorney 9
(Richard Southwick, Tamara Thomson, Assistant 10
United States Attorneys, on the brief), for 11
Richard S. Hartunian, United States Attorney 12
for the Northern District of New York, Albany, 13
NY, for Appellant. 14
15
L EE D. G REENSTEIN , Law Offices of Lee D. Greenstein, 16
Delmar, NY, for Defendant-Appellee. 17
18
19
20
P ER C URIAM : 21
The government appeals two interlocutory orders of the 22
United States District Court for the Northern District of 23
New York (Hurd, J.), entered on August 20, 2010 and October 24
29, 2010, respectively. The first order suppressed cocaine 25
seized from the person of Defendant-Appellee Dean A. 26
Steppello incident to his warrantless arrest, as well as 27
statements made by Steppello, based on a lack of probable 28
cause to support the arrest. The order also suppressed 29
evidence seized from Steppello’s residence pursuant to the 30
execution of a search warrant on the ground that without the 31
reference to the cocaine seized from Steppello’s person, the 32

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3
warrant application did not establish probable cause to 1
search the residence. The second order denied the 2
government’s motion for reconsideration of the suppression 3
decisions in the first order. The government argues that 4
the district court erred in determining that Steppello’s 5
arrest was not supported by probable cause. We agree and 6
conclude that the evidence seized from Steppello’s person 7
and residence, as well as the statements made by Steppello 8
during and after his arrest, should not have been 9
suppressed. 10
I. Background 11
A. Steppello’s Arrest 12
On June 25, 2008, James Eric Jones, an investigator 13
with the New York State Police Community Narcotics 14
Enforcement Team (“CNET”), executed a search warrant at the 15
residence of Richard Szuba. During the search, Szuba agreed 16
to cooperate with police and identified Steppello as his 17
cocaine supplier. Investigator Jones was aware that 18
Steppello had been the subject of an earlier drug 19
investigation and that he had sold cocaine in the presence 20
of a New York state trooper in November 2001. Szuba 21
indicated that his transactions with Steppello had been 22

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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
ongoing for approximately four years and that Steppello 1
would supply him with four ounces of cocaine in exchange for 2
approximately $3600 every two weeks. Szuba then described 3
the coded nature of their cocaine transactions—Szuba would 4
call Steppello on his cell phone and ask “Are you good?” and 5
Steppello would deliver the cocaine to Szuba’s residence 6
shortly thereafter. Szuba showed the police Steppello’s 7
residence on the second floor of a two-story house, and 8
described Steppello’s vehicle as an Envoy or sport utility 9
vehicle (“SUV”). 1
10
While officers were questioning Szuba at his house, 11
others, including Investigator Sullivan, were surveilling 12
Steppello’s residence. The officers had Szuba call 13
Steppello to determine whether he would be nearby because 14
during their surveillance of Steppello’s home, they observed 15
a person leaving the building. 2 At approximately 1:14 p.m., 16

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Jones knew Steppello’s physical description from his knowledge of
the earlier investigation.
5
Investigator Jones closely observed Szuba call Steppello, 1
whose telephone number was preprogrammed as a speed dial 2
number in Szuba’a cell phone. During the conversation, 3
Investigator Jones heard Szuba say “you good, this 4
afternoon, 20 minutes.” Although Investigator Jones knew 5
that someone was speaking to Szuba, he could not hear what 6
that person said. At the completion of the call, Szuba told 7
Investigator Jones that Steppello would arrive at Szuba’s 8
house in twenty minutes with cocaine. 9
At 1:34 p.m., Investigator Sullivan observed a white 10
male arrive at Steppello’s residence in a silver GMC SUV and 11
enter the residence. Five minutes later, Investigator 12
Sullivan observed the white male get back into the vehicle 13
and drive away. Investigator Sullivan followed the vehicle 14
to the vicinity of Szuba’s residence, where he terminated 15
the surveillance to avoid detection. Investigator Sullivan 16
immediately notified the officers at Szuba’s residence that 17
the person under surveillance was coming. 18
Although Szuba advised officers that he usually left 19

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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
the garage door open when Steppello delivered cocaine, 3 the 1
police closed the door and hid in the garage. The white 2
male arrived at Szuba’s house and parked his GMC Envoy in 3
the driveway. An officer inside the house relayed to 4
Investigator Jones, who was in the garage, that Steppello 5
called Szuba’s cell phone ten times and Szuba’s house once. 4
6
When the officers heard a person exit the vehicle, they 7
proceeded to exit the garage and arrested the white male in 8
the driveway. As the officers took the person to the ground 9
to handcuff him, he uttered that “he could do somebody.” 10
The officers immediately searched the person and found 11
a small plastic bag containing cocaine in his pants pocket. 12
The person arrested was Steppello. Moments later, after 13
Investigator Jones issued Miranda warnings, Steppello stated 14

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7
that he wanted to speak to his attorney and the District 1
Attorney before identifying his supplier. 2
B. Search Warrant for Steppello’s Residence 3
After securing the cocaine from Steppello’s person, 4
Investigator Jones proceeded to the Utica City Court, where 5
he reviewed and signed both the application for a warrant to 6
search Steppello’s residence and vehicle and the affidavit 7
in support of the search warrant application. The affidavit 8
established that Investigator Jones—a New York State police 9
officer for twelve years and member of the CNET for 10
approximately three years—had been thoroughly trained to 11
combat drug trafficking. The affidavit also established 12
that as a result of his training and experience with drug- 13
related investigations and arrests and with handling 14
confidential informants, Investigator Jones was familiar 15
with the communication methods and customs used by persons 16
involved in drug trafficking. 17
The affidavit then set forth the events that occurred 18
that day, which included the controlled phone call Szuba 19
made to Steppello, the surveillance of Steppello’s 20
residence, and the arrest of Steppello and incident seizure 21
of cocaine from his person. The affidavit also noted 22

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8
Steppello’s criminal history and that he was the registered 1
owner of the GMC Envoy he drove to Szuba’s house. Finally, 2
the affidavit concluded, based upon the information provided 3
by Szuba, the surveillance conducted by New York State 4
Police, and the resulting arrest of Steppello and incident 5
seizure of cocaine from his person, that Steppello was 6
utilizing his residence and vehicle to further a cocaine 7
distribution operation. 8
The Utica City Court issued the search warrant. During 9
the subsequent search of Steppello’s residence, police 10
seized two jars containing cocaine, drug-related 11
paraphernalia, and $4000 in cash. 12
C. Indictment and Suppression Decision 13
On May 28, 2009, a grand jury returned a two-count 14
indictment charging Steppello with possessing with intent to 15
distribute an unspecified quantity of cocaine, in violation 16
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and possessing with 17
intent to distribute more than 500 grams of cocaine, in 18
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In a 19
pretrial motion, Steppello sought to suppress the cocaine 20
seized from his person incident to his arrest, as well as 21
the cocaine seized from his residence pursuant to the 22

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9
execution of the search warrant. In a subsequent motion, 1
Steppello sought to suppress statements he made following 2
his arrest on the basis that they were the fruit of his 3
unlawful arrest. On June 7, 2010, the district court 4
conducted an evidentiary hearing on the issues raised by 5
Steppello’s motions. 6
In a Memorandum-Decision & Order, entered on August 20, 7
2010, the district court determined that the admissibility 8
of the cocaine seized from Steppello’s person and the 9
statements he made following his arrest depended on whether 10
police had probable cause to arrest him. The court 11
concluded that probable cause was lacking because at the 12
time Steppello was arrested, “the police had nothing more 13
than the partially corroborated account of a criminal 14
informant with no history of reliability.” United States v. 15
Steppello, 733 F. Supp. 2d 347, 351 (N.D.N.Y. 2010). The 16
court also noted that Steppello had not engaged in any 17
suspicious activity while under surveillance. The court 18
next determined that the admissibility of evidence seized 19
from Steppello’s residence depended on the legality of his 20
arrest because without the reference to the cocaine seized 21
from his person, the warrant application did not establish 22

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10
probable cause to search the residence. Accordingly, the 1
district court granted Steppello’s motion to suppress (1) 2
the cocaine seized incident to his arrest; (2) the 3
statements he made during and after his arrest; and (3) the 4
evidence seized from his residence. 5
D. Motion for Reconsideration 6
The government moved for reconsideration of the 7
district court’s suppression decision. The government 8
argued that, in light of this Court’s decision in United 9
States v. Gagnon, 373 F.3d 230 (2d Cir. 2004), the district 10
court improperly discounted the information provided by 11
Szuba. The government also noted that the district court 12
erred when it determined in its suppression decision that no 13
cellular phone records were in evidence to corroborate the 14
government’s account that Steppello made eleven calls to 15
Szuba while sitting in his car in Szuba’s driveway. The 16
district court denied the motion for reconsideration without 17
explanation. With the authorization of the Solicitor 18
General of the United States, this appeal ensued. 19
20
21
22

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5 “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, 490-
91 (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
II. Discussion 1
A. Legality of Steppello’s Arrest5
2
The government contends that the district court erred 3
in determining that police lacked probable cause to arrest 4
Steppello because the court failed to consider the totality 5
of the circumstances known to police and failed to 6
appreciate the reliability of Szuba’s information. We 7
agree. Neither the district court’s determination nor 8
Steppello’s arguments on appeal square with our well- 9
established principles of probable cause. 10
“Probable cause exists if a law enforcement official, 11
on the basis of the totality of the circumstances, has 12
sufficient knowledge or reasonably trustworthy information 13
to justify a person of reasonable caution in believing that 14
an offense has been or is being committed by the person to 15
be arrested.” Gagnon, 373 F.3d at 236. “[T]he probable- 16
cause standard is a practical, nontechnical conception that 17

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12
deals with the factual and practical considerations of 1
everyday life on which reasonable and prudent men, not legal 2
technicians, act. Because the standard is fluid and 3
contextual, a court must examine the totality of the 4
circumstances of a given arrest.” United States v. 5
Delossantos, 536 F.3d 155, 159 (2d Cir. 2008) (citations and 6
internal quotation marks omitted). 7
Contrary to the district court’s conclusion, the facts 8
surrounding Steppello’s arrest, see supra Part I.A., were 9
sufficient to provide police with probable cause to make the 10
arrest. The district court made two significant errors in 11
discounting the evidence. First, the district court failed 12
to examine the totality of the circumstances, and instead, 13
considered individual facts in isolation. See Maryland v. 14
Pringle, 540 U.S. 366, 371 (2003); Delossantos, 536 F.3d at 15
161. Second, the district court failed to “evaluate the 16
facts in light of the training and experience of the 17
arresting agents.” Delossantos, 536 F.3d at 161. 18
[S]ome patterns of behavior which may seem innocuous 19
enough to the untrained eye may not appear so 20
innocent to the trained police officer who has 21
witnessed similar scenarios numerous times before. 22
As long as the elements of the pattern are specific 23
and articulable, the powers of observation of an 24
officer with superior training and experience should 25
not be disregarded. 26

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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
Id. (alteration in original) (internal quotation marks 1
omitted). 2
For example, the district court erred in discounting 3
the significance of the phone call between Szuba and 4
Steppello “due to its brevity, the inability to hear what 5
defendant said, and the lack of any reference to a drug 6
sale.” Steppello, 733 F. Supp. 2d at 351. At the time of 7
the arrest, Investigator Jones had been employed by the New 8
York State Police for twelve years and a member of the CNET 9
for three years. An officer with his training and 10
experience certainly would have recognized that the cryptic 11
nature of the call was consistent with other transactions in 12
which drug dealers “often engage in a so-called narcotics 13
code.” United States v. Velasquez, 271 F.3d 364, 372 (2d 14
Cir. 2001) (internal quotation marks omitted). Indeed, 15
immediately after the phone call, Szuba confirmed to 16
Investigator Jones that Steppello would be at Szuba’s 17
residence in twenty minutes with cocaine. 6
18
Next, the district court erred in discounting the 19

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14
significance of the eleven phone calls made by Steppello to 1
Szuba immediately prior to Steppello’s arrest. Contrary to 2
the district court’s assertion that there was a “lack of any 3
evidence of defendant’s or Szuba’s cellular phone records 4
for the day of the arrest,” Steppello, 733 F. Supp. 2d at 5
352, Steppello’s phone records were received in evidence 6
during the suppression hearing. Although Szuba testified 7
that he never received any of the calls, he also testified 8
that the police took his phone away from him for “a while” 9
that day. Moreover, in light of Investigator Jones’s 10
training and experience, it would have been reasonable for 11
him to believe that Steppello acted suspiciously by making 12
the phone calls instead of getting out of the car, 13
especially given Szuba’s prediction that closing the garage 14
door might alert Steppello. 15
Finally, although police did not identify the white 16
male under surveillance, the circumstances suggested that it 17
was Steppello: (1) at 1:14 p.m., Szuba called Steppello and 18
said the same coded words he claimed to have used before to 19
purchase cocaine from Steppello; (2) immediately after that 20
phone call, Szuba told Investigator Jones that Steppello 21
would be arriving in twenty minutes with cocaine; (3) at 22

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15
1:34 p.m., a person driving the type of SUV Szuba described 1
as Steppello’s vehicle arrived at and entered Steppello’s 2
residence; (4) five minutes later, the person drove the SUV 3
to Szuba’s residence; (5) upon arriving at Szuba’s house, 4
the person did not immediately exit the car; and 5
(6) Steppello made eleven phone calls to Szuba between 1:43 6
p.m. and 1:47 p.m. Any reasonable officer with knowledge of 7
those circumstances at the time of the arrest would be 8
entitled to conclude that the person under surveillance was 9
Steppello, and that he was about to deliver cocaine to 10
Szuba. 11
With regard to the reliability of the information 12
provided by Szuba, the district court erred in discounting 13
that information on the ground that Szuba did not have a 14
history of reliability as a confidential informant. In 15
United States v. Gagnon, we found that probable cause 16
existed to search the defendant’s vehicle and thus reversed 17
this same district judge’s order suppressing currency seized 18
during the search. 373 F.3d at 240. In doing so, we 19
clearly articulated the legal principles used to evaluate 20
information provided by informants: 21
Often the information needed to supply probable 22
cause is not gathered independently by police 23

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16
officers but instead is provided by professional 1
criminal informants, witnesses to a particular 2
event, or participants in the crime at issue. In 3
assessing the veracity of an informant’s statements, 4
it is improper to discount the information provided 5
simply because [the informant] has no proven record 6
of truthfulness or accuracy. There is, in 7
particular, no need to show past reliability when 8
the informant is in fact a participant in the very 9
crime at issue. However, although other circuits 10
have recognized that criminals caught red-handed may 11
be reliable sources of information because [t]he 12
informant’s interest in obtaining leniency creat[es] 13
a strong motive to supply accurate information, we 14
have also cautioned that a criminal informer is less 15
reliable than an innocent bystander with no apparent 16
motive to falsify. Whether or not the informant 17
speaks to an officer in person or through the 18
mediation of an anonymous means of communication may 19
also bear upon the reliability of the information he 20
provides; thus, a face-to-face informant must be 21
thought more reliable than an anonymous telephone 22
tipster, for the former runs the greater risk that 23
he may be held accountable if his information proves 24
false. 25
26
In addition to considering an informant’s 27
veracity, reliability, and basis of knowledge, in 28
assessing the totality of the circumstances we also 29
evaluate whether the information an informant 30
provides is corroborated by independent police 31
investigation because an informant who is right 32
about some facts is more likely to be right about 33
others. We consider such corroboration in 34
evaluating the existence of probable cause even if 35
only an informant’s account of anticipated innocent 36
activities is confirmed. 37
38
Gagnon, 373 F.3d at 236 (alternations in original) 39
(citations, internal quotation marks, and ellipses omitted). 40
41

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17
Here, as in Gagnon, the district court employed an 1
incorrect legal standard in evaluating the information 2
provided by the informant. Szuba was a participant in the 3
crime at issue; he gave the information to the officers in 4
person after they executed a valid search warrant at his 5
residence; and at that time, Szuba was motivated to be 6
truthful to receive leniency. Those circumstances suggest 7
reliability. See id. at 237-38. 8
Moreover, the information Szuba provided was specific 9
and corroborated. For example, Szuba predicted just what 10
Steppello would do in response to his cryptic phone call. 11
Szuba also accurately described Steppello’s residence and 12
the type of vehicle he drove. Finally, the district court 13
was clearly and inexplicably wrong in concluding that “there 14
was no independent corroboration of [Szuba’s] allegation of 15
[Steppello’s] drug dealing.” Steppello, 733 F. Supp. 2d at 16
351. Investigator Jones was aware that Steppello had sold 17
cocaine in the presence of an undercover officer while he 18
was the subject of a prior narcotics investigation. Szuba’s 19
corroborated information supports the finding that police 20
had probable cause to arrest Steppello. 21
22

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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
In sum, given the totality of the circumstances, the 1
officers had probable cause as a matter of law to believe 2
that Steppello was delivering cocaine at the time of his 3
arrest. Accordingly, the cocaine seized incident to 4
Steppello’s arrest and the statements he made during the 5
course of his arrest should not have been suppressed. 6
B. Suppression of the Evidence Seized From Steppello’s 7
Residence7
8
9
As an initial matter, we agree with both the district 10
court and the government that without reference to the 11
cocaine seized from Steppello’s person, probable cause was 12
lacking to issue the warrant to search his residence. 13
Accordingly, whether the district court erred in suppressing 14
the evidence seized from Steppello’s residence turns on the 15
legality of Steppello’s arrest. 8
16
As explained above, the district court erred in 17
determining that police did not have probable cause to 18
arrest Steppello at Szuba’s house. The fact that the 19

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19
officers seized cocaine from Steppello’s person incident to 1
his lawful arrest, along with the other facts disclosed in 2
the application and affidavit in support of the search 3
warrant, certainly established probable cause to believe 4
that cocaine was located in Steppello’s residence. See 5
United States v. Elmore, 482 F.3d 172, 184 (2d Cir. 2007). 6
Accordingly, the search was lawful, and the evidence seized 7
from Steppello’s residence should not have been suppressed. 8
9
C. Remand Instructions 10
We note that we are reversing the suppression order of 11
this district judge on substantially the same grounds as we 12
reversed the same judge’s suppression order in Gagnon. We 13
are mindful that there are factual differences between 14
Gagnon and this case, but we cannot overlook that the legal 15
principles set forth in Gagnon strongly compel that Szuba’s 16
information should not have been discounted and that 17
probable cause existed to arrest Steppello. The district 18
court made no credibility determinations that undercut the 19
factual record we have recited above. 20
The government brought our decision in Gagnon to the 21
district judge’s attention in its motion for 22

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20
reconsideration, but the district judge denied the motion 1
without comment. When circumstances “might reasonably cause 2
an objective observer to question [the judge’s] 3
impartiality,” we have the power to remand the case to a 4
different judge. Pescatore v. Pan Am. World Airways, Inc., 5
97 F.3d 1, 21 (2d Cir. 1996) (alteration in original) 6
(internal quotation marks omitted); see also United States 7
v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc). We 8
believe that is warranted here. Accordingly, we order that, 9
upon remand to the district court, this case be transferred 10
to a different judge. 11
III. Conclusion 12
For the foregoing reasons, the suppression order of the 13
district court is REVERSED and the case is REMANDED with 14
instructions to assign the case to a different judge. 15

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