Opinion
No. 04 Cr. 929 (LMM).
March 25, 2005
MEMORANDUM AND ORDER
1.
Defendant moves for suppression of the fruits of searches of storage units leased by him and an apartment in which he regularly resided.
The storage units were searched pursuant to a search warrant issued on April 6, 2004 at 3:35 P.M. in the United States District Court for the Eastern District of New York by Magistrate Judge Robert M. Levy. That warrant was obtained on the basis of an affidavit of Paul Manning, an agent of the Bureau of Immigration and Customs Enforcement ("ICE"). After describing incriminating information learned from confidential informants in 2003 and non-incriminating (considered by itself) information learned from subsequent surveillance and investigation, the Manning affidavit states:
Upon learning all of this information, ICE agents obtained consent from the managing agent for the realty company that manages storage facility to permit a dog trained in the detection of controlled substances to sniff the outside of the PREMISES [i.e., two side-by-side storage units within a storage facility]. On April 6, 2004, a dog so trained sniffed the doors to the PREMISES. Upon doing so, the dog reacted positively, thereby indicating a high probability that the PREMISES contains one or more controlled substances. The trainer of the dog who performed the sniff has informed me that the dog has repeatedly proven reliable and accurate in the detection of controlled substances.
(Aff. Paul Manning, Apr. 6, 2004, ¶ 8.)
The search of the storage units, as stated by agent Manning in a subsequent affidavit also dated April 6, 2004, resulted in the recovery of "among other things, a heroin stamp and stamp pad, several boxes of plastic baggies, including one box of baggies stamped `Maximum Power,' a scale, three gas masks, a bottle of apparent cutting agent, a sifter, a heat sealer, a bag of approximately 15 rounds of .38 caliber and .32 caliber bullets." (Aff. Paul Manning, Apr. 6, 2004, ¶ 9.) On the basis of this second affidavit, Judge Levy issued a second warrant, for a search of the apartment, dated April 6, 2004 at 6:15 P.M.
The issue considered here is whether the first Manning affidavit, without considering any other facts, was a sufficient basis upon which to issue the warrant for the search of the storage units.
Thus, the Court does not consider here (i) whether there was additional information that should have been presented to Judge Levy, cf. United States v. Reilly, 76 F.3d 1271, 1280-81 (2d Cir. 1996), nor (ii) the reliability, in general, of the use of dogs to detect narcotics, see Illinois v. Caballes, 125 S. Ct. 834, 839-40 (2005) (Souter, J., dissenting), or (iii) the accuracy, in fact, of the particular dog as used in the present case.
2.
On the day on which the challenged affidavit was submitted, Judge Levy would have had an ample basis on which to assume that dog sniff evidence as to the presence of narcotics was, in the Second Circuit, generally considered reliable. See, e.g., United States v. Glover, 957 F.2d 1004, 1013 (2d Cir. 1992) (". . . once the narcotics dog `hit on' Glover's bags, the police had probable cause to obtain a search warrant."); United States v. Waltzer, 682 F.2d 370, 373 (2d Cir.), cert. denied, 463 U.S. 1210 (1983) ("Where designation by a dog with a record of accuracy occurs . . . we hold that probable cause has been established as to the person possessing the luggage." (Footnote omitted)).In 1995, faced with the argument that "insufficient information was provided in the Search Warrant Application as to the reliability of the canine which alerted to the bags in Kansas City . . .," Judge Patterson, after a careful review of case law, found a warrant valid on the ground that the application "supplied adequate information to show that [the dog] possessed training and skill in identifying narcotics, and provided grounds for a reasonable belief that a crime was being committed."United States v. Cortez, 1995 WL 422029, at *2-*3 (S.D.N.Y. July 18, 1995). The information provided, according to the decision, was that the dog was "trained" and had been responsible for "numerous" narcotics seizures, including 22 in 1995 (with specified amounts of seizures of marijuana, Methamphetamine, PCP and cocaine). Id. at *3. Here, agent Manning's first affidavit does indicate that the dog was trained and, according to its handler, reliable.
Defendant's principal argument as to the sufficiency of agent Mannings' affidavit is that the affidavit does not state that the handler of the dog who performed the sniff of the storage units was present when the dog did so. He is correct. However,
Further, defendant points out (assuming the handler was not present), there is no statement regarding agent Manning's expertise in handling the dog. The government has, however, proffered that the handler was in fact present when the dog reacted. (Transcript, Feb. 15, 2005, at 11.)
after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969), and United States v. Ventresca, 380 U.S. 102, 108, 109 (1965)). "Determinations by magistrates and judges who issue warrants are `accorded great deference and "any doubts should be resolved in favor of upholding the warrant[s]."'" United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir.), cert. denied, 506 U.S. 834 (1992) (quoting United States v. Vasquez, 634 F.2d 41, 45 (2d Cir. 1980) (quoting United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.) (per curiam),cert. denied, 445 U.S. 966 (1980))).
The affidavit is certainly not as carefully drafted as it might have been, but Judge Levy could have reasonably inferred that the handler (to whom, according to the affidavit, agent Manning had been in contact) was present when the dog performed the sniff. "The Magistrate was entitled to make reasonable inferences from the facts stated in the affidavit." Jackstadt, 617 F.2d at 14 (citations omitted). The Court accordingly concludes that the challenged affidavit was, if barely, nevertheless sufficient.
3.
Defendant's other arguments relate to issues turning on specific facts concerning the dog's reliability in the specific context of the sniff of the storage units performed on April 6, 2004, and cannot be resolved without an evidentiary hearing. Counsel will be contacted to schedule a date.
SO ORDERED.