Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORI(
`
`UNITED STATES OF AMERICA,
`
`-v-
`
`DAJAHN MCBEAN, a/k/a "Jeezy Mula,"
`a/k/a "Freeze,"
`
`Defendant.
`
`PAUL A. ENGELMA YER, District Judge:
`
`24 Cr. 541 (PAE)
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`OPINION & ORDER
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`This decision resolves a motion to suppress evidence seized from the Metropolitan
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`Detention Center ("MDC") cell of defendant Dajahn McBean.
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`On October 17, 2024, a grand jury in this District returned Indictment S2 24 Cr. 541
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`(PAE). It charged McBean and two others with offenses including participation in a murder-for-
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`hire conspiracy. See Dkt. 32 ("Indictment"). The charges center on the allegation that, in late
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`2023, Mc Bean, while detained at the MDC awaiting sentencing on a separate case, orchestrated a
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`murder-for-hire plot aimed at killing Laquan Williams, with whom he had been feuding. As
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`alleged, that plot resulted, on December 26, 2023, in a shooting outside a Queens, New York
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`nightclub that wounded Williams and killed Clarisa Burgos, a woman who had accompanied
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`Williams to the nightclub. Salient here, on December 29, 2023, three days after the shooting,
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`prison officials searched McBean's MDC cell. They recovered, among other contraband, a
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`cellphone, broken in pieces, that McBean had evidently attempted to destroy while the prison
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`officials sought entry into his cell.
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 2 of 27
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`McBean now moves to suppress that cellphone and its contents. 1 He claims that the
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`warrantless search of his cell violated his right to be free from unreasonable searches under the
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`Fourth Amendment. For the reasons that follow, the Court denies McBean's motion.
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`I.
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`Overview
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`A.
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`The Alleged Murder-for-Hire-Scheme
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`The Indictment charges McBean and two others-Chelsey Harris and Karl Smith-with
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`conspiracy to commit murder for hire resulting in personal injury and death, in violation of 18
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`U.S.C. § 1958; stalking resulting in life-threatening bodily injury and death, in violation of 18
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`U.S.C. § 2261; and conspiracy to destroy records, in violation of 18 U.S.C. § 371. The following
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`is a summary of pertinent events as alleged by the Government, drawn from the Indictment and
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`the Government's statements in pretrial hearings and written submissions.
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`In December 2023, McBean and Williams were engaged in a feud over social media. At
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`the time, McBean was in custody at the MDC, awaiting sentencing on a charge of assault in-aid-
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`of racketeering, to which he had pled guilty in the Eastern District of New York on September 8,
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`2023. See United States v. McBean, No. 20 Cr. 260 (E.D.N.Y. 2020) (Dkt. 123) (the "EDNY
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`case"). While at the MDC, McBean used a contraband cell phone to recruit and communicate
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`with Harris and Smith, to arrange a plot to lure Williams to a Queens nightclub, where shooters
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`recruited by or at the behest ofMcBean would murder Williams.
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`On December 24, 2023, McBean, assisted by Smith and Harris, lured Williams to Hush, a
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`nightclub in Queens. Outside the nightclub, gunmen shot and hit Williams's car multiple times,
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`but their shots missed him.
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`1 The Government represents that it is seeking to gain access to the contents of the damaged
`cellphone but has not yet succeeded in doing so. Dkt. 74 at 8 n.3. The search ofMcBean's
`prison cell also recovered marijuana, but the Government represents that it does not intend to
`introduce it as evidence at trial. Id. at 14 n.4.
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`2
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 3 of 27
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`On December 26, 2023, McBean, Smith, and Harris lured Williams to Xscape, a different
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`Queens nightclub. Outside the nightclub, three gunmen opened fire at a car in which Williams
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`sat in the driver's seat. The shots struck Williams numerous times and killed Burgos, who was
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`seated in the front passenger seat.
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`B.
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`Pertinent Investigative Steps
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`In the investigation that followed, the New York City Police Department ("NYPD") soon
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`identified McBean as a person of interest.
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`On December 27, 2023, the NYPD received an anonymous tip that an inmate named
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`Dajahn McBean, housed in federal prison, had "put a $200k hit" on Williams from prison, where
`"he [McBean] has a phone." Dkt. 74, Ex. 2, ,r 4(g) (filed under seal) ("McBean SW"). The tip
`further indicated that McBean had recruited a woman, whose Instagram account was associated
`with Harris, to set up a meeting with Williams to effectuate the hit. Id. ,r,r 4(g)-(h). The NYPD
`found social media evidence of a feud between McBean and Williams. And surveillance videos
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`of the area around Xscape reviewed by NYPD showed Harris interacting with person(s) in
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`Williams's car just before the shooting. Later on December 27, 2023, law enforcement officers
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`interviewed Harris at the 107th precinct in Queens.
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`That same day, an NYPD detective contacted the U.S. Attorney's Office for the Southern
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`District of New York ("USAO") regarding McBean, whom the NYPD had identified as a federal
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`inmate detained at the MDC. As developed below, the USAO thereafter conveyed to the MDC
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`the NYPD's request that McBean's cell be searched.
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`On December 29, 2023, MDC officials conducted a search ofMcBean's cell at the MDC,
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`and recovered the damaged contraband cellphone that McBean moves here to suppress.
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`3
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 4 of 27
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`C.
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`McBean's Suppression Motion: Procedural History
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`Trial is scheduled to begin on July 28, 2025. On February 18, 2025, McBean moved to
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`suppress the fruits of the search of his cell, claiming that it violated the Fourth Amendment. Dkt.
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`71.2 He filed a supporting memorandum oflaw, Dkt. 73 ("McBean Br."), and exhibits, including
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`factual affirmations by himself and by his counsel, Dkt. 72 ("Spilke Deel."). On March 4, 2025,
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`the Government opposed. Dkt. 74 ("Gov't Br."). On March 10, 2024, McBean replied. Dkt. 77
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`("McBean Reply Br."). On March 12, 2025, the Court scheduled an evidentiary hearing on
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`McBean's suppression motion.3
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`On April 3, 2025, the Court held an evidentiary hearing. The Government called one
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`witness, Lieutenant Sandra Ubiera, the MDC official who organized and led the search of
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`McBean' s cell. It also presented video and documentary evidence. The defense cross-examined
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`Ubiera, but did not offer live testimony.
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`II.
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`Findings of Fact
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`A. Evidence Considered
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`The factual findings below are based on the hearing testimony of Lieutenant Ubiera,
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`McBean's pre-hearing affidavit, Dkt. 72 at 23-24 ("McBean Aff."),4 exhibits annexed to
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`McBean's brief, Dkt. 73, and exhibits received at the hearing. These consisted of: (1) a video
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`2 Harris has separately moved to suppress two cellphones and their contents. Dkt. 70. Those
`cellphones were seized by NYPD officers at the conclusion ofHarris's interview at a police
`precinct on December 27, 2023. The Court has denied that motion in a separate decision. See
`Dkt. 91.
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`3 "Tr." refers to the transcript of the April 3, 2025 evidentiary hearing.
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`4 The Court affords McBean's account less weight because he did not testify, and as a result, his
`account was not subjected to cross-examination. See, e.g., United States v. Rodriguez, 368 F.
`App'x 178, 180 (2d Cir. 2010) (summary order); United States v. Medina, 19 F. Supp. 3d 518,
`535 n.13 (S.D.N.Y. 2014) (collecting cases).
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`4
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`recording of MDC officials' search ofMcBean's cell on December 29, 2023, GX 1;
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`(2) McBean's disciplinary record while detained at the MDC, GX 2; (3) Federal Bureau of
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`Prisons ("BOP") Program Statement No. 5270.09, which describes the BOP's inmate discipline
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`program, GX 3 (the "Inmate Discipline Program");5 (4) the BOP Inmate Admission and
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`Orientation Handbook, which provides inmates with notice of the BOP's disciplinary rules, GX
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`4 (the "BOP Inmate Handbook"); and (5) a photograph of the cellphone recovered from
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`McBean's cell, GX 5. In recounting the background to McBean's MDC detention, the Court
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`also draws upon the docket history of the EDNY case.
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`B.
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`Facts Established
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`The Court finds the following facts established by a preponderance of the evidence. 6
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`These are largely undisputed, including as to the circumstances that brought about the MDC's
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`search ofMcBean's cell and the manner in which the search was carried out. The Court found
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`the testimony of Lieutenant Ubiera-the only live witness---credible, based on, inter alia, her
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`demeanor, competence, potential bias, and the extent to which her testimony was inherently
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`logical and consistent with physical evidence.
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`5 The BOP operates the MDC. Congress has charged the BOP with "the protection, instruction,
`and discipline of all persons charged with or convicted of offenses against the United States." 18
`U.S.C. § 4042 (a)(3).
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`6 On a motion to suppress, the defendant bears the burden of proving that evidence was seized
`unlawfully. Where, however, as here, the defense shows that the underlying search occurred
`without a warrant, the Government bears the burden of proving that the search was lawful. See
`United States v. Goulbourne, No. 23 Cr. 544, 2024 WL 4025997, at *4 (S.D.N.Y. Sept. 3, 2024);
`United States v. Gonzalez, 111 F. Supp. 3d 416,433 (S.D.N.Y. 2015); United States v.
`Echevarria, 692 F. Supp. 2d 322,332 (S.D.N.Y. 2010). The Govemment must establish the
`legality of such a search by a preponderance of the evidence. United States v. Rivera, 700 F.
`Supp. 3d 60, 67 (S.D.N.Y. 2023); United States v. Hagood, No. 20 Cr. 656 (PAE), 2021 WL
`2982026, at *2 (S.D.N.Y. July 15, 2021), aff'd, 78 F.4th 570 (2d Cir. 2023).
`5
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 6 of 27
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`1.
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`Background to McBean's MDC Detention: The EDNY Case7
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`As of the search of his MDC cell, McBean was awaiting sentencing in the EDNY case, in
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`which he had been indicted in July 2020. See Dkt. 1. A Superseding Indictment, returned
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`Febmary 2023, charged that McBean had been a member of Real Ryte, a street gang based in
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`Brooklyn, and that McBean and others had engaged in violent hostilities with a rival gang,
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`Breadgang. Dkt 64 at 3-7.
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`On September 8, 2023, McBean pied guilty, before United States District Judge Hector
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`Gonzalez, to assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C.
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`§§ 1959(a)(3), 2, 3551. Dkt. 123 ("Plea Tr."). McBean admitted, inter alia, that, on January 3,
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`2017, he had assaulted with a firearm an individual whom he believed was a member of a rival
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`gang, and that he did so to maintain his position in Real Ryte. Id. at 21-24. 8
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`2.
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`Pre-Search Communications to the MDC
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`McBean's brief attaches as exhibits certain email communications between law
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`enforcement and MDC officials in the days leading up to the search of Mc Bean's cell. 9 These
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`establish that (1) on the day the NYPD received an anonymous tip that McBean had used a
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`contraband cellphone in the MDC to orchestrate the murder-for-hire scheme, an NYPD detective
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`7 Docket citations in this subsection are to the docket of the EDNY case, McBean, 20 Cr. 260
`(filed July 2020).
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`8 On May 9, 2024, Judge Gonzalez sentenced McBean to 150 months' imprisonment. See
`Dkt. 146 (judgment entered May 14, 2024).
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`9 The emails indicate, on their face, that the officials also communicated over telephone. See
`Spilke Deel., Ex.Cat 11-12.
`·
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`6
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 7 of 27
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`sought to contact MDC officials; and (2) the USAO thereafter served as a go-between conveying
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`to the MDC the NYPD's request that McBean's cell be searched. IO
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`3.
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`MDC Officials Search McBean's Cell and Recover the Cellphone
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`Lieutenant Ubiera is a member of the Special Investigations Unit of the MDC. Tr. at 19.
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`In that capacity, she oversees operations to ensure the safety of inmates, staff, and visitors, and
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`investigates inmate misconduct, including violent incidents such as stabbings and slashings. Id.
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`She is responsible for conducting searches of inmates' cells to find contraband. Id. Weapons,
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`illicit drugs, and cellphones are among the most frequent targets of cell searches. Id. at 53.
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`Relevant here, an inmate is forbidden to possess a cellphone, and such poses a serious
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`security concern. Id. at 30-32. As a result, BOP regulations, and BOP officials enforcing them,
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`treat such possession as a severe disciplinary infraction. Id. That is because an inmate can use a
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`cellphone to orchestrate crime (including violent crime) inside and outside the MDC. Id. MDC
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`officials frequently search inmates' cells for contraband, including cellphones. They do so
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`prompted by, inter alia, reports from prison staff, other inmates, members of the public, and
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`"outside" law enforcement agencies, such as the Federal Bureau ofinvestigation, Drug
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`IO A limited timeline of these pre-search communications over email is as follows. On December
`27, 2023, at 10:30 a.m., Assistant United States Attorney Andrew Chan emailed USAO Special
`Agent Stefano Braccini, asking whom NYPD Detective Daniel Alessandrino could contact to
`request a search ofMcBean's MDC cell, and copying Detective Alessandrino on the email. Id.
`at 11-12. Special Agent Braccini responded by offering to speak with Detective Alessandrino.
`Id. The record does not memorialize the immediately ensuing communications. But at 2:14 p.m.
`that day, Special Agent Braccini notified Detective Alessandrino by email that McBean's cell
`would be searched that night. Id. at 11.
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`On December 28, 2023, at 6:45 a.m., Detective Alessandrino emailed Special Agent
`Braccini, seeking an update as to the planned cell search. Id. at 10. Special Agent Braccini
`responded that he had heard "nothing" but that he would inquire by telephone (the record does
`not disclose of whom). Id. At 8:46 a.m., Detective Alessandrino sent another email to Special
`Agent Braccini at 8:46 a.m., listing the names Mark Waiters and Semaj Smith (who were
`McBean's co-defendants in the EDNY case). Id. at 9.
`7
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 8 of 27
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`Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
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`About half of such reports come from law enforcement. Id. at 21-24. During her nine-year
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`tenure at the MDC, Lieutenant Ubiera has participated in hundreds of cell searches. Id. at 19, 21.
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`On December 29, 2023, sometime before the 4 p.m. inmate count, Lieutenant Ubiera's
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`superior, Captain Carlos Rodriguez, notified her that McBean might possess a contraband
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`cellphone, and directed her to search his cell. Id. at 32-34, 54, 75. He told her that the cellphone
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`might have been used to facilitate a crime outside the MDC' s walls, based on information he had
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`received from Special Agent Braccini. Id. at 33, 56-57. Lieutenant Ubiera perceived a sense of
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`"urgency" in Rodriguez's communication and decided to search McBean's cell that day. Id. at
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`33.
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`Lieutenant Ubiera prepared for the search operation during the next few hours. She
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`reviewed video surveillance and conducted due diligence to gauge the risks presented to the
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`search team by and around McBean's cell. Id. at 34, 58. She was aware that McBean shared his
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`cell with another inmate, as is customary at the MDC; McBean's cellmate was Mark Waiters, a
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`co-defendant of his in the EDNY case. Id. at 20, 32. Having previously searched McBean's cell
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`on multiple occasions, Lieutenant Ubiera did not have to do extensive background research. Id.
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`at 49, 58. She nevertheless proceeded deliberatively, aware of the safety risks faced by the
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`prison officials who would be conducting the search. Id. at 58-60. She was also mindful that, if
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`the search were conducted when the general population was away from its cells, there was a
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`higher likelihood that the contraband cellphone would not be found; for example, if McBean had
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`"rent[ed]" it to another inmate. Id. at 58, 61. She assembled a search team of around 8 to 12
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`officers, and prepared a tactical plan outlining team members' roles. Id. at 34, 61-63.
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`8
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 9 of 27
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`At or around 7:07 p.m. that day, Ubiera's search team entered Housing Unit 161 in the
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`MDC. Tr. at 55; GX 1, at 00:01. As the team made its way to the Unit's upper tier, where
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`McBean's cell was located, Ubiera heard inmates "catcalling" to alert other inmates that a search
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`team was nearby. Tr. at 34, 76. She also noticed that the vertical rectangular window, set in the
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`otherwise solid door to McBean's cell, appeared to have been covered from the inside by an
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`opaque object. Id. at 42. When the search team attempted to unlock the door ofMcBean's cell
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`by normal means-inserting the key and turning the knob-it did not budge. Id. at 62-66; GX 1,
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`at 00:20-00:35. McBean and/or Waiters had barricaded the door. Tr. at 42, 76-77. They also
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`refused to comply with the search team's instructions to allow the door to be opened. Id. at 35-
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`36, 49, 76-77. A struggle ensued. Id. Ultimately, the search team opened the door using a
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`crowbar. Id. at 41, 43; GX 1, at 00:35-00:55.
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`After gaining entry, the search team placed Mc Bean and Waiters in handcuffs and led
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`them out of the cell. See GX 1, at 2:09-2:27. The search team seized part of a cellphone, which
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`contained the glass exterior or its remnants, from McBean's hand. Tr. at 72-73. The team found
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`other parts of the cellphone scattered throughout the cell, which was in a state of"disarray." Id.
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`at 81. These were handed to Ubiera, who collected and entered them into evidence. Id. The
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`search continued for approximately 20 minutes. See GX 1, at 23: 16.
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`4.
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`McBean Is Disciplined for Possessing Dangerous Contraband
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`After discovery of the contraband cellphone, the BOP charged McBean with violating,
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`inter alia, Section 108 of the BOP Inmate Discipline Program. Tr. at 48. That provision
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`prohibits inmates and detainees from "[p ]ossess[ing] ... a hazardous tool" that is "most likely to
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`be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily
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`9
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 10 of 27
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`harm to others; or those hazardous to institutional security." Inmate Discipline Program at 45
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`tbl. 1. It lists among those tools "portable telephone, pager, or other electronic device." Id. I I
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`On January 4, 2024, Officer Rogers conducted the disciplinary hearing. Gov't Br, Ex. 5
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`at 1. McBean denied having "a phone in [his] hand" and "taking a swing" at a member of the
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`search term who had entered his cell. Id. Officer Rogers found, however, that the "weight of the
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`evidence" contradicted McBean' s account. Id. He found that Mc Bean had been in possession of
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`a hazardous tool, in violation of Section 108. Id. He also found McBean guilty of assaulting an
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`officer, in violation of Section 224A. Gov't Br, Ex. 5 at 1. The MDC imposed corresponding
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`sanctions on McBean. Id.
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`5.
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`Law Enforcement Obtains a Search Warrant for the Cellphone
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`On January 3, 2024, NYPD sought, and a state-court judge issued, a warrant authorizing
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`a search of the cellphone seized by MDC officials. See McBean SW at 2. A supporting affidavit
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`by NYPD Detective Philip Degorter described the search ofMcBean's cell, the recovery of"a
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`damaged red Apple iPhone with a shattered and detached screen," and the factual basis to find
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`probable cause supporting a forensic search of the phone. Id. at 1. It recounted, inter alia, that
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`the NYPD had received a Crimestoppers tip on December 27, 2023, which accused McBean of
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`orchestrating the shooting of Burgos and Williams. It stated that:
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`[the shooting] happened because of an individual known as Dajahn McBean who
`is currently in Federal Prison in Washington D.C; that Dajahn McBean ordered the
`hit; that Dajahn McBean has a phone in prison and that he used a female [Harris],
`whose Instagram account name is Ms. Chinn, to set up a meet with a male
`[Williams], whose Instagram name is Chinaman; Dajahn McBean wanted
`Chinaman killed; Dajahn McBean put a $200k hit on Chinaman and that the female
`was shot by accident.
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`II This prohibition applies to "sentenced and unsentenced inmates in [BOP] custody." Inmate
`Discipline Program at 2.
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`10
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`Id. ,i 4(g). It reported aspects ofNYPD officers' December 27, 2023 interviews of Williams, at
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`Jamaica Hospital, in which he informed law enforcement that he had a "beef' with McBean, id. ,i
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`4(k), and of Harris, id. ,i 4(j).
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`The affidavit further identified Instagram posts confitming the "beef' between McBean
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`and Williams. See id. ,i 4(1). Several, attributed to Williams, derided McBean. One included a
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`photo ofMcBean with the following text: "[H]e lives in the basement of his moms house he
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`never paid rent or paid a phone bill in his life he's a mother boy he beg me for money when he
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`came home in 2015 none of his friends had money." Id. Another stated: "[I]f code 33 post
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`anything it's comin from the biggest hater which is jeezy mula he have no old friends looking for
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`new ones." Id. 12 A third addressed the shooting at Hush. Williams mocked the individuals
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`involved in the shooting: "[S]hots fire im not dead I'm up; threw 10 shots and missed all 10 is
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`crazy go get a refund twin; excuse me rookies y'all did a terrible job last night refund me my
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`money plz (laughing emojis) my mother wig is all over the net I need my name ifs all I got
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`(laughing emojis); and get your refund." Id.
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`III.
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`Discussion
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`McBean argues that the warrantless search of his cell violated the Fourth Amendment,
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`requiring suppression of the cellphone and its contents. The Government counters that, under
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`Hudson v. Palmer, 468 U.S. 517 (1984), McBean, as an inmate, lacked an objectively reasonable
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`expectation of privacy in his cell, and thus cannot claim a Fourth Amendment violation.
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`The Court denies McBean's motion. Under Hudson and its progeny, McBean lacked an
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`objectively reasonable expectation of privacy in his MDC cell, barring him from challenging the
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`search of his cell under the Fourth Amendment. That is so even assuming that, under this line of
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`12 The Government has represented that McBean goes by the nickname "Jeezy Mula."
`11
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 12 of 27
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`authority, Mc Bean retained a limited privacy interest with respect to searches undertaken solely
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`for law enforcement investigative purposes that did not implicate prison security interests,
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`because that interest of his was not implicated here. The Court therefore denies his motion to
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`suppress.
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`A.
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`Applicable Law
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`The Fourth Amendment protects "[t]he right of the people to be secure in their persons,
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`houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.
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`A search under the Fourth Amendment "occurs when the government violates a subjective
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`expectation of privacy that society recognizes as reasonable." Ky/lo v. United States, 533 U.S.
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`27, 33 (2001); see also, e.g., Carpenter v. United States, 585 U.S. 296,304 (2018). Relevant
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`here, a person claiming the Fourth Amendment's protection must have "a legitimate expectation
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`of privacy in the invaded place." Minnesota v. Carter, 525 U.S. 83, 88 (1998).
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`A prison cell, generally, is not such a place. The Supreme Court so held in Hudson, a
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`seminal case. And, as reviewed below, a body of ensuing caselaw has reinforced that prison
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`inmates lack a reasonable expectation of privacy in their cells.
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`In Hudson, an inmate claimed that prison officials' "shakedown" search of his prison cell
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`violated the Fourth Amendment. 468 U.S. at 520. The inmate argued that the cell search was
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`unreasonable because it had been conducted solely to "harass" him, and not for any reason
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`related to institutional security. Id. The Supreme Court rejected the premise of this claim: It
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`held that the Fourth Amendment's "proscription against unreasonable searches does not apply
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`within the confines of the prison cell." Id. at 526. That was so, the Court explained, because the
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`inmate lacked a "legitimate expectation of privacy" in his prison cell. Id. at 530. And it framed
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`that holding broadly:
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`12
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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 13 of 27
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`Notwithstanding our caution in approaching claims that the Fourth Amendment is
`inapplicable in a given context, we hold that society is not prepared to recognize as
`legitimate any subjective expectation of privacy that a prisoner might have in his
`prison cell .... The recognition of privacy rights for prisoners in their individual
`cells simply cannot be reconciled with the concept of incarceration and the needs
`and objectives of penal institutions.
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`Id at 525-26 ( emphasis added). Because prison cells are "[ v ]irtually the only place inmates can
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`conceal weapons, drugs, and other contraband," the Court stated, "unfettered access to these cells
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`by prison officials ... is imperative if drugs and contraband are to be ferreted out and sanitary
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`surroundings are to be maintained." Id at 527. Thus, the Court held, in evaluating a Fourth
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`Amendment claim by an inmate, it does not matter whether prison officials searched the inmate's
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`cell pursuant to "an enunciated general policy," based on "suspicion ... directed at [that]
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`particular inmate," or "wholly [at] random." Id. at 529 (quoting Marrero v. Commonwealth, 284
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`S.E. 2d 809, 811 (Va. 1981)). Such a claim, the Court held, does not lie, and the Fourth Circuit
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`thus had erred in recognizing a "limited privacy right" under the Fourth Amendment where a cell
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`search had been conducted "solely" to harass a prisoner and/or to destroy his property. Id. at
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`521-22.13
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`Hudson grew out of a series of decisions by the Supreme Court that limited prisoners'
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`constitutional rights where necessary to accommodate the "institutional needs and objectives" of
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`prisons. Bell v. Wo!fish, 441 U.S. 520, 546-47 (1979). These prison interests centered on
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`internal security, but also were held to include retribution for unlawful conduct, deterrence, and
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`rehabilitation. See id. at 537 ("Loss of freedom of choice and privacy are inherent incidents of
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`confinement."); accordBlockv. Rutherford, 468 U.S. 576,588 (1984); Woljfv. McDonnell, 418
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`13 The Court held that the remedy for misconduct of this nature, if any, was under the Fourteenth
`Amendment (for a state inmate), the Eighth Amendment, and/or state tort law. See id. at 530;
`see also id. at 540 (O'Connor, J., concurring) (identifying "constitutional sources" other than
`Fourth Amendment).
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`13
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`

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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 14 of 27
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`U.S. 539,556 (1974); Pell v. Procunier, 417 U.S. 817, 826 (1974); Lanza v. New York, 370 U.S.
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`139, 144 (1962).
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`Important here, two years after Hudson-in a decision that is the focus of McBean' s
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`present motion-the Second Circuit recognized a narrow exception to Hudson, for a pretrial
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`detainee awaiting resolution of the criminal charges against him. United States v. Cohen, 796
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`F.2d 20 (2d Cir. 1986), arose from a prison official's warrantless search of an inmate's papers
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`while he was held pending trial on drug distribution conspiracy charges. Id. at 21. The lead
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`prosecutor had initiated the search and dictated its scope. The prosecutor had "directed" the
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`prison official "to look for certain types of documents" that "may have contained the names and
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`phone numbers of [the defendant's] co-conspirators and witnesses" whom the defendant "had
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`already contacted and was still in the process of trying to contact." Id. The prison official then
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`carried out the prosecutor's instructions: after entering the inmate's cell, the official examined,
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`for approximately half an hour, papers of the type identified by the prosecutor. See id. The
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`prison official then left, only to return a short time later to examine those papers for another
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`hour. See id. The Second Circuit held that, notwithstanding Hudson, this search breached the
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`Fourth Amendment. It held that a pretrial detainee retains a "much diminished" Fourth
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`Amendment right, against unreasonable searches of his prison cell that (1) are instigated by
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`"non-prison officials," and (2) do not serve an "institutional security" purpose. Id. at 24.
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`Because the cell search breached the "small remnant" of the Fourth Amendment right held by a
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`pretrial inmate, the Circuit held, the evidence obtained in the search was required to be
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`suppressed. Id.
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`The Second Circuit in Cohen pointedly emphasized three limits to its holding that the
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`defendant inmate could challenge his cell search under the Fourth Amendment. First, the inmate
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`14
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`

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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 15 of 27
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`in Cohen was a pretrial detainee who, at the time of the search, had not been adjudged guilty of
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`the crimes for which he was being held. Because a defendant's pretrial confinement is not penal
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`in nature, the Circuit stated, it does not "necessarily entail[] a restriction or withdrawal of
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`constitutional rights ... justified by the considerations underlying our penal system." Id. at 22-
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`23. Second, the search of the defendant's cell had been "initiated by the prosecution solely to
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`obtain information for a superseding indictment." Id. at 24 (emphasis added). Had the search
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`been "initiated" by a prison official, the Circuit stated, it "would not [have] be[ en] subject to
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`constitutional challenge, regardless of whether security needs could justify it." Id. Third, the
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`prison officials lacked any independent rationale for the search, as was revealed by the prison
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`official's unilateral focus on the inmate's papers. See id. at 21. On the contrary, the record
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`"clearly reveal[ ed]" that the decision to conduct the search "was not made by those officials in
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`the best position to evaluate the security needs of the institution"-the prison officials-nor was
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`it "even colorably motivated by institutional security concerns." Id. at 23; cf Wolfish, 441 U.S.
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`at 546 ("There is no basis for concluding that pretrial detainees pose any lesser security risk than
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`convicted inmates." (emphasis added)).
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`The Second Circuit has twice rejected efforts by inmates to extend the limited Fourth
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`Amendment right recognized in Cohen.
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`In Willis v. Artuz, 301 F.3d 65 (2d Cir. 2002), the Circuit reaffirmed that the Fourth
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`Amendment right recognized in Cohen is held only by pretrial detainees. The inmate there,
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`serving a life sentence, sued for damages under 42 U.S.C. § 1983, claiming that prison officials'
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`waiTantless search of his cell had violated the Fourth Amendment. See id. at 66. Aspects of the
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`search in Willis resembled that in Cohen: It had been conducted "at the behest of the police" to
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`uncover evidence of an as-yet-uncharged crime, and it "did not serve any purpose related to
`
`15
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`

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`Case 1:24-cr-00541-PAE Document 92 Filed 04/15/25 Page 16 of 27
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`prison security." Id. But, the Circuit held, these circumstances did not give rise to a Fourth
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`Amendment right. The decisive fact, the Circuit held, was that the inmate had already been
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`convicted when his cell was searched, and thus he lacked an objectively reasonable expectation
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`of privacy. Id. at 69. In contrast to a pretrial detainee, the Circuit stated, a convicted prisoner's
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`privacy interests must yield-even where institutional security was not at issue-to society's
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`interests in retribution and detenence. See id. For this reason, the Circuit held, Hudson governs
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`once an inmate's guilt has been established, regardless whether the search was motivated by the
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`prison's interests in maintaining internal security and order. Accord United States v. Stanishia,
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`687 F. App'x 183, 186 (3d Cir. 2017)("[C]onvicted prisoners ... have no Fourth Amendment
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`right with respect to searches of their cells."); United States v. Huart, 735 F.3d 972, 975 (7th Cir.
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`2013) ("It is well settled that prisoners have no reasonable expectation of privacy in the
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`belongings they keep with them.").
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`In United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988), the Circuit again reinforced
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`Cohen's limits. The Cohen exception to Hudson, it held, did not apply to a federal inmate who
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`was simultaneously held b