Tuesday, January 17th, 2023

The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes.

The case also addresses the scope of a defendant’s Sixth Amendment right to the effective assistance of counsel “when the government presents a witness to whom the defendant has volunteered his thoughts about defense strategy and who, after learning the defendant’s thoughts, agrees to testify for the government.” Here, the government witness was a person who shared a jail cell with the defendant, during a two-week period of pretrial detention, and later became a government informant. Because the witness “was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not intrude on the attorney-client relationship. That is fatal to his Sixth Amendment claim.” See Opinion (“Op.”) at 3, 17.


“In July 2014, Chandler was released from federal custody” and began serving a “three-year term of supervised release.” Op. at 4-5. The terms of his supervised release required him to “submit his person, residence, vehicle or place of business to a search if the Probation Department has reasonable belief [that] contraband is present.” He also was obligated to “permit a probation officer to visit him [ ] at any time at home or elsewhere” and to “permit confiscation of any contraband observed in plain view of the probation officer.” Op. at 5.

“Senior United States Probation Officer Dennis Stickley was assigned to supervise Chandler.” Op. at 5. “Sometime in November 2014, [Chandler] notified Officer Stickley” that he was residing in a house in Springfield Gardens, Queens, with his girlfriend. Id.

Reports about Chandler’s conduct

“Later in November [2014],” Chandler’s estranged wife told Probation Officer Stickley that Chandler had threatened her; she obtained an order of protection, and on January 5, 2015, Stickley learned Chandler had been arrested for violating the order. On or about January 1, 2015, “Mrs. Chandler” told Stickley that Chandler had arrived at her uncle’s house, argued with her, and “maneuver[ed] … an area along his hip to make it seem like he was in possession of a firearm.” Op. at 6  (alterations in opinion). “Mrs. Chandler also reported to Officer Stickley her understanding that, on January 4, Chandler had brandished a firearm during a conversation with her uncle.” Id. She also “gave Officer Stickley a phone number that she said Chandler was using to sell drugs[.]” And she informed Stickley “that Chandler, who had been driving a rental car, had in the past habitually kept a gun in the center console between the car’s front seats.” Id.

Finally, on January 12, 2015, “Mrs. Chandler sent Officer Stickley a text message reporting that, two days earlier on January 10, Chandler had ‘pistol-whipped’ a member of a rival gang at a Long Island nightclub” and “that someone had fired a gun at the club that night.” See Op. at 7. Officer Stickley confirmed with a Nassau County detective at the police precinct where the club was located “that an altercation between two gang members had occurred at the club on the night Mrs. Chandler identified and that an individual had discharged a firearm during the altercation.” Id.

The Probation Officer decides to search the residence and car

“Officer Stickley prepared a  written operations plan” to search Chandler’s residence and vehicle “under the authority of the terms of Chandler’s supervised release.” Op. at 6. “In the plan,” Stickley stated “that reasonable suspicion  supported the search because of (1) Chandler’s history of violence and weapons possession; (2) Chandler’s arrest for violating an order of protection [against his wife]; and (3) the fact that a confidential source had advised Officer Stickley that Chandler possessed a firearm.” Id.

“On January 13, Officer Stickley—joined by other federal probation officers and officers of the New York City Police Department (‘NYPD’)—conducted the planned search” of Chandler’s residence in Springfield Gardens, Queens. Inside the home, the officers found two loaded 9 mm handguns, 80 glassine bags of heroin, and a bag containing cocaine. See Op. at 7.

They also found the keys to Chandler’s rental car, which “NYPD officers located … parked a block away from the house.” Id. “Searching the car, the officers found a firearm in the center console[.]” Elsewhere in the car, “they located a brown bag filled with pills and a powdery substance, a scale, and a cell phone.” Id. “Not long after, members of NYPD arrested Chandler.” Id.

Ballistics analysis of one of the handguns that was found at Chandler’s residence linked him to a shooting that occurred in Hempstead, New York, on December 13, 2014. Two people identified Chandler as the shooter, and at trial, “expert ballistics testimony tied a bullet from the December 13 shooting scene and a bullet recovered from [the victim’s] body” to one of the handguns found “in Chandler’s residence.” See Op. at 11.

Chandler was indicted, and subsequently tried, “on seven counts related to dealing in cocaine and heroin and related firearm usage in 2014 and early 2015.” (The Hempstead shooting was one of the counts). See Op. at 3, 9.

Before trial, Chandler briefly shares a jail cell with Shedret Whithead

Between January 14, 2016 and January 26, 2016 — before “[t]rial began in late September 2016″ — Chandler and Shedret Whithead shared a jail cell at the Metropolitan Detention Center. See Op. at 10.  According to Whithead, “Chandler had asked to be bunked with Whithead, and Whithead had agreed, because they had known each other since they were children.” Op. at 12. “[I]n February 2016, after their approximately two-week period of cohabitation ended, Whithead’s counsel first emailed the prosecution to suggest a meeting.” Op. at 10. “Members of the prosecution team first met with Whithead in April 2016, and on that occasion, he provided information to the Government regarding defendant and his current charges.” Id.

Whithead’s testimony at trial

Whithead became a cooperating Government witness and testified that, while he and Chandler were cellmates, Chandler admitted “that he possessed firearms and that he had shot an individual in Hempstead, New York, who had been selling drugs in Chandler’s territory.” Op. at 12. Chandler also revealed to Whithead “his planned litigation strategy to challenge the admissibility of, and cast doubt upon, specific elements of the government’s evidence. Specifically, … Chandler told him that he planned to achieve this by arguing that the searches of his house and rental car were botched, that the DNA found on the gun seized from the rental car was the result of innocently transporting it from one location to another, and that his alibi for the night of the [Hempstead] shooting was that he was at a party with his girlfriend.” Id. (emphasis in added).

“After deliberations, the jury rendered a verdict on all counts.” Op. at 12.

I. Because the defendant was on supervised release, the probation officer required only a reasonable suspicion to search his residence and car.

Before trial, the district court denied Chandler’s motion to suppress the evidence found during the searches of his house and rental car, finding “that reasonable suspicion supported the searches.” Op.  at 9.

On appeal, Chandler acknowledged that the terms of his supervised release allowed the probation officers to search his house or vehicle if they “‘ha[d] a reasonable belief [that] contraband [was] present[.]’” See Op. at 23 (quoting the Appellant’s Brief). “He also concede[d] that the officers had a reasonable belief that he was engaged in criminal activity outside of his home.”  Id. (emphasis in opinion).

But he claimed that “the Probation Department …  needed, but lacked, observational or informant-derived evidence to establish a link between the interior of his home and car and his drug-trafficking activity and gun possession.” Op. at 23 (emphasis in opinion).

The Circuit rejected Chandler’s argument.

It noted that Chandler relied on out-of-circuit cases “involving the legitimacy of police searches that are subject to the Fourth Amendment warrant requirement.” Op. at 23. But those cases aren’t applicable here because “[i]ndividuals serving a term of federal supervised release … enjoy a diminished right of privacy.” Id. at 24. So, “‘the probable cause requirements of the Fourth Amendment, which apply to a regular law enforcement officer executing a search warrant for an individual’s home, simply do not apply to visits by probation officers to the homes of convicted persons serving a term of supervised release.’” Id. at 25 (quoting United States v. Reyes, 283 F.3d 446, 462 (2d Cir. 2002)). Thus, the Supreme Court has held, “‘[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.’” Op at 25 (emphasis added) (quoting United States v. Knights, 534 U.S.  112, 121 (2001)).

Moreover, “the supervisee—here, Chandler—expressly consents to allow a warrantless search on ‘reasonable suspicion’ instead of ‘probable cause.’” Op. at 25-26.

Additionally, the Circuit “proceed[ed] on the understanding that the ‘reasonable belief’ standard provided in the Conditions of Supervised Release that governed Chandler’s supervision is no different from the ‘reasonable suspicion’ standard referred to by both parties and adopted in United States v. Knights, 534 U.S.  112, 121 … (2001).” Op. at 23, n.9.

The Circuit concluded that the information that Probation Officer Stickley had received about Chandler “easily satisfied” the reasonable suspicion standard. See Op. at 26-27.

The Circuit doesn’t apply the “Special Needs Doctrine

The Circuit notes that it had “recently held that state parole officers’ warrantless search of a defendant parolee’s home  —concededly unsupported by reasonable suspicion—was nonetheless consistent with the Fourth Amendment under the Special Needs Doctrine.” Op at 25, n.11 (citing United States v. Braggs, 5 F.4th 183, 188 (2d Cir. 2021)). But it stated: “We do not apply Braggs or the Special Needs Doctrine here, having concluded on the record before us that the search of Chandler’s residence and car rested squarely on reasonable suspicion.” Id.

The “stalking horse” theory isn’t a valid defense in this Circuit

Chandler also contended that the Probation Department impermissibly acted as a “stalking horse” for the NYPD. “He asserts that the NYPD was the real law enforcement animator of the searches, but because it lacked probable cause to conduct the searches, it conscripted the federal probation officers with their less demanding standard to conduct the searches.” Op. at 27.  The Circuit stated that it had previously ruled “that the ‘stalking horse’ theory ‘is not a valid defense in this  Circuit[,]’” and it saw “no reason to revisit that ruling here.” Op. at 27 (quoting Reyes, 283 F.3d at 463).

II. The testimony of a former cellmate about the defendant’s trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel because the former cellmate wasn’t a government informant when the defendant confided in him.

Before trial, the district court conducted a hearing, under Massiah v. United States, 377 U.S. 201 (1964), “to determine whether [Shedret] Whithead acted as a government agent when he was Chandler’s cellmate in January 2016” and thereby subjected Chandler to a constitutionally improper interrogation. Op. at 9-10, 17;  see Massiah, 377 U.S. at 207 (holding that the government is not constitutionally permitted to interrogate, even through an informant, a person under indictment who has counsel).

The district court found that Shedret Whithead, “‘[t]he Cooperating Witness[,] was not acting as an agent of the government because he obtained the information before becoming an  informant.’” Op. at 10. Thus, it ruled that the statements Chandler made “to the Cooperating Witness were not obtained in violation of the Sixth Amendment.” Id.

On appeal, however, Chandler did not renew his Massiah argument (that Whithead was somehow part of an improper government interrogation). He argued rather that the introduction of portions of the former cellmate’s testimony “violated his Sixth Amendment right to effective assistance of counsel by disclosing details regarding his trial strategy to the jury.” Op at 13.  Chandler relied on statements in the Supreme Court’s opinion in Bursey v. Weatherford, 429 U.S. 545 (1977) that suggested that a Sixth Amendment violation could occur if the government deliberately interfered with the relationship between a defendant and counsel by using an informant “‘to learn what it could about the defendant’s defense plans and the informant was instructed to intrude on the lawyer-client relationship or [if] the informant has assumed for himself that task,’ and the informant communicated that information to the prosecution[.]’” Weatherford, 429 U.S. at 554, 557.

Chandler, however, “did not properly object at trial to the introduction of litigation-strategy evidence.” Accordingly,  the Circuit reviewed his argument for plain error. See Op at 13-14 & n.6.

But it appears the Circuit would’ve rejected Chandler’s Sixth Amendment claim under any standard of review.  It states: “Since Whithead was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not intrude on the attorney-client relationship. That is fatal to his Sixth Amendment claim.” Op. at 17.

The Circuit further states that there’s no indication that Whithead revealed any “privileged” communication of Chandler’s attorney. There’s no evidence Whithead “ever interacted with Chandler’s counsel, overheard any discussions between Chandler and his attorney, or otherwise intruded on the attorney-client relationship.” Op. at 19. Instead, “as far as the record reveals, what Chandler told Whithead about his defense was far more likely to be Chandler’s own thoughts than advice received from counsel, because it would have been unethical for an attorney to advise at least some of the trial strategy disclosed by Chandler” — such as Chandler’s stated intention to present a “false alibi” at trial. Op. at 19, 21.

Finally, the Court explained that, in any event: “[S]tatements such as these— voluntarily made by defendants to third parties who are not agents of the government at the time of their utterance—are by definition not privileged and cannot be used to establish an ‘invasion’ of the attorney-client relationship attributable to the government.” Op. at 21 (emphases in opinion); see id. n.7 (even if the information that Chandler  communicated to his cellmate had been privileged, he waived any privilege “by disclosing the confidential information”).

Comments are closed.