Friday, March 11, 2011

A Good-Faith-Based Decision

United States v. Clark, No. 09-3462-cr (2d Cir. March 8, 2011) (Sack, Raggi, Lynch, CJJ)

In the district court, defendant Clark moved to suppress physical evidence and statements obtained after execution of a search warrant, and the district court granted the motion. On this, the government’s appeal, the circuit agreed that the warrant was defective - it did not establish probable cause - but that, contrary to the district court’s conclusion, the good faith exception applied. The court accordingly reversed and remanded.


Local police officers in Niagara Falls, New York, obtained a warrant from a city court judge to search Clark and "1015 Fairfield Ave, being a multi family dwelling” for drugs and drug dealing paraphernalia. The supporting affidavit disclosed that an informant of “unknown reliability” told them that Clark was selling cocaine there, and that Clark had “full control” over the location. The affidavit also described two controlled purchases of cocaine that took place in “the area of 1015 Fairfield Ave.”

When the officers executed the warrant, Clark was in a downstairs apartment, and the officers found cocaine base, money, and other evidence. They arrested and Mirandized Clark who asked, “What am I looking at? 25 or what?”

On Clark’s suppression motion, the district court held that the warrant was not supported by probable cause to search the entire multi-family dwelling, and that the search tainted Clark’s statement. It also held that the good faith exception did not apply because the issuing judge “failed to act as a neutral and detached magistrate,” the warrant was “facially defective,” and the lack of probable cause was “so apparent that the police could not reasonably rely on the validity of the warrant.”

The Appeal

The circuit, like the district court, could not identify a “substantial basis” for the local judge to authorize a search of the entire multi-family dwelling. Included in the Fourth Amendment is a particularity requirement. Concerns as to this requirement most often arise when the warrant does not concretely or accurately describe the place to be searched. But particularity is also an issue when the warrant describes a multi-family dwelling, because it is possible that the “breadth of that description outruns the probable cause supporting the warrant.”

The government tried to argue that the warrant application asserted that Clark exercised “control over the entire premises,” and thus that there was no particularity problem. The circuit was not convinced. Control over a multiple-occupancy building can support a warrant to search the whole premises, but only where the warrant is supported by probable cause to believe that “evidence of criminality will be found throughout the building.” The mere allegation of “control,” without more, is not enough. Here, the allegations of “control” were not enough to establish probable cause to support a search of all residences in the building. The allegation came from an untried informant, and the assertion was entirely conclusory. There was thus no basis for the issuing judge to find probable cause. The judge was not told the size of the building or the number of units, and the affidavit did not explain what the informant meant by “full control,” or include any descriptive facts on the issue. Moreover, the affidavit’s description of the controlled purchases only established that Clark was in the “area” of 1015 Fairfield Avenue. It did not establish where within the building he conducted his drug business and certainly did not establish that he had control over all parts of the building.

Thus, even though there was probable cause that Clark was dealing drugs from “somewhere within 1015 Fairfield Avenue,” the totality of the circumstances did not provide a “substantial basis to conclude that Clark so controlled the various residential units in that multi-family dwelling that there was probable cause to think evidence of his criminal conduct could be found throughout the building.”

But, nevertheless, the court held that the district court erred in its application of the good faith exception. First, the issuing judge did not abandon his judicial role. While he made a legal error in identifying probable cause, this does not indicate the “sort of wholesale abandonment” necessary to overcome the good faith exception. Nor was the warrant facially deficient. That occurs only when “it omits or misstates information specifically required to be contained therein,” that is, “the place to be searched, and the persons or things to be seized.” The warrant here had no such defect. While the warrant was not, in fact, based on probable cause, the probable cause need not be “stated in the warrant itself.” Rather, a lack of probable cause is a defect in the supporting affidavit, not the warrant. Finally, the warrant was not so lacking in probable cause as to preclude reasonable reliance. The affidavit here was not “bare bones” - it was not “totally devoid of factual circumstances to support conclusory allegations,” even though it did not provide “detailed factual allegations” to support probable cause to search the entire building. It still had enough detail to render reliance on it reasonable, since it clearly established probable cause to believe that Clark was dealing drugs form somewhere within the building. And, while the affidavit’s allegation of “control” was “entirely conclusory,” the officers’ reliance on the warrant was not so “flagrant or culpable” as to warrant suppression. When the warrant was issued it was not yet settled that “control” had to be alleged with “some factual specificity.” Thus, a well-trained officer could not be faulted for relying on a warrant that lacked such specificity.

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