Opinion
6:20-CR-06101 EAW
2021-05-26
UNITED STATES of America, v. Archie DONALDSON, Defendant.
Everardo A. Rodriguez, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
Everardo A. Rodriguez, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pending before the Court are objections filed by defendant Archie Donaldson ("Defendant") to a Report and Recommendation issued on April 1, 2021, by United States Magistrate Judge Mark W. Pedersen (the "R&R") (Dkt. 403) regarding a motion to suppress tangible evidence that Defendant filed as part of his omnibus motions (Dkt. 233). The R&R recommends denying the motion to suppress. (Dkt. 403). For the reasons set forth below, the Court adopts the R&R and denies Defendant's motion to suppress.
BACKGROUND
Defendant is charged by way of a superseding indictment returned on March 25, 2021, with the following five counts: (1) a narcotics conspiracy involving fentanyl, heroin, cocaine base, and cocaine, in violation of 21 U.S.C. § 846 (count one); (2) possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (count eight); (3)91 possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count nine); (4) possession of a firearm in furtherance of the drug trafficking crimes alleged in counts one, eight and nine, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (count ten); and (5) felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count eleven). (Dkt. 394). Counts eight, nine, ten and eleven are all alleged to have occurred on April 30, 2020, with the superseding indictment expressly alleging the location as 45 Southview Terrace in Rochester, New York, for counts eight, nine and ten. (Id. at 6-7).
Defendant's omnibus motions included a motion to suppress evidence seized pursuant to a search warrant authorized by Magistrate Judge Pedersen for 45 Southview Terrace. (Dkt. 233 at ¶¶ 45-81). In support of the motion, Defendant argued that probable cause was lacking for issuance of the search warrant, and that the good faith exception did not save the warrant. (Id. ). After briefing and oral argument, Magistrate Judge Pedersen issued the R&R rejecting Defendant's contentions. (Dkt. 403). Specifically, after summarizing the information regarding 45 Southview Terrace included in paragraphs 306-307, 311, 328-329, and 334 of the affidavit of Sabatino Smith, Special Agent with the Drug Enforcement Administration, submitted in support of the search warrant (see Dkt. 403 at 4-7), the R&R concluded that the information "demonstrated a ‘fair probability that contraband or evidence of a crime’ would be found at 45 Southview Terrace." (Dkt 403 at 10-11 (quoting Illinois v. Gates , 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The R&R noted that it was not appropriate to consider the paragraphs related to 45 Southview Terrace in isolation, and instead the entirety of Agent Smith's 171-page, 454-paragraph affidavit provided "a vast amount of detail regarding the trafficking activities of those involved in this drug ring." (Id. at 11). The R&R alternatively concluded that even if the warrant for 45 Southview Terrace lacked probable cause, the good faith exception applied thus warranting denial of the motion to suppress. (Id. at 15).
Defendant objects to the R&R's conclusions. (Dkt. 431). Specifically, he makes the following arguments in support of his objections: (1) the R&R erred when it concluded that there was a factual basis to believe that co-defendant Lateef Budd ("Budd") operated a Honda motor vehicle from 4 Florack (a focal point of the drug trafficking activities described in Agent Smith's affidavit) to the area of 45 Southview Terrace on April 15, 2020 (id. at 10-11); (2) the R&R erred when it concluded that there was a factual basis to believe that activities occurring on April 18-19, 2020, resulted in contraband being carried into 45 Southview Terrace (id. at 11-12); (3) the R&R improperly relied on the failure to assert in Defendant's second declaration (see Dkt. 314 at 5-6) that he did not go outside his residence to meet anyone for drug trafficking purposes on the dates in question (Dkt. 431 at 12-13); (4) the R&R's reliance on United States v. Williams , 350 F. Supp. 3d 261 (W.D.N.Y. 2018) was misplaced (id. at 13-14); and (5) the R&R's reliance on United States v. Kortright , No. 10 CR 937 KMW, 2011 WL 4406352 (S.D.N.Y. Sept. 13, 2011) was misplaced (id. at 15-17).
The government submitted a memorandum in opposition to Defendant's objections. (Dkt. 442). The government responds to Defendant's argument that there was no factual basis to conclude that Budd was the individual operating the Honda on April 15, 2020, by citing to paragraph 307 of Agent Smith's affidavit that expressly states that Budd operated the Honda on the date in question. (Id. at 4). The government argues that the identification of Budd is not rendered invalid because Agent Smith did not explain in paragraph 307 that the pole camera at 4 Florack allowed law enforcement to observe Budd exit the Honda and enter 4 Florack, especially when one considers that Agent Smith did identify the pole camera at 4 Florack elsewhere in the affidavit. (Id. ). With respect to the activities on April 18-19, 2020, the government cites to the information in Agent Smith's affidavit that Budd and another individual in a second car ("Vehicle 11") traveled in tandem to Syracuse where they parked across the street from "known drug dealer Tommy Brunson," whom co-defendant Jan Carlos Gonzalez Rivera, the alleged leader of the narcotics conspiracy, had visited two days earlier; that Vehicle 11 was observed engaging in countersurveillance maneuvers both in Syracuse and in the parking lot of Budd's apartment in Penfield; that Budd was observed with a yellow bag and a gray suitcase, both of which were inside Vehicle 11 at various points; and that Vehicle 11 then traveled from Budd's parking lot to 45 Southview Terrace after returning from Syracuse. (Id. at 5-6). The government argues that this supports Agent Smith's opinion in paragraph 334 of his affidavit that 45 Southview Terrace was connected to Budd's drug trafficking activities. (Id. ). The government's response does not expressly address Defendant's arguments concerning the R&R's reliance on his second declaration, or his arguments with respect to the Williams and Kortright decisions, but contends based on established caselaw that probable cause supported issuance of the warrant and there is no basis for alternatively finding that the good faith exception does not apply.
DISCUSSION
I. Legal Standards
A. Review of R&R
A district court reviews any specific objections to a report and recommendation on a dispositive issue, such as a motion to suppress, under a de novo standard. Fed. R. Crim. P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). To trigger the de novo review standard, objections to a report and recommendation "must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines , 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009).
B. Probable Cause Determination for Issuance of Warrant
"[P]robable cause to search a place exists if the issuing judge finds a ‘fair probability that contraband or evidence of a crime will be found in a particular place’ and a federal court must apply a ‘totality-of-the-circumstances analysis’ in pursuing this inquiry." United States v. Ponce , 947 F.2d 646, 650 (2d Cir. 1991) (quoting Gates , 462 U.S. at 238, 103 S.Ct. 2317 ).
[T]he duty of a court reviewing the validity of a search warrant is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed. A search warrant issued by a neutral and detached magistrate is entitled to substantial deference, and doubts should be resolved in favor of upholding the warrant.
United States v. Rosa , 11 F.3d 315, 326 (2d Cir. 1993) (alterations in original) (quotations and citation omitted). "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit [applying for a warrant] should not take the form of de novo review." United States v. Smith , 9 F.3d 1007, 1012 (2d Cir. 1993) (second alteration in original) (quoting Gates , 462 U.S. at 236, 103 S.Ct. 2317 ). "[R]esolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. (quoting United States v. Ventresca , 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ); see United States v. Clark , 638 F.3d 89, 93 (2d Cir. 2011) ("Such deference derives not only from the law's recognition that probable cause is ‘a fluid concept’ that can vary with the facts of each case, but also from its ‘strong preference’ for searches conducted pursuant to a warrant, and its related concern that ‘[a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." (alteration in original) (citations omitted)).
C. Good Faith Exception
"A violation of the Fourth Amendment does not necessarily result in the application of the exclusionary rule[.]" United States v. Rosa , 626 F.3d 56, 64 (2d Cir. 2010). "Indeed, exclusion ‘has always been our last resort, not our first impulse.’ " Herring v. United States , 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ). Instead, whether the exclusionary rule applies "depends on the ‘efficacy of the rule in deterring Fourth Amendment violations in the future’ as well as a determination that ‘the benefits of deterrence ... outweigh the costs.’ " Rosa , 626 F.3d at 64 (quoting Herring , 555 U.S. at 141, 129 S.Ct. 695 ). The " ‘good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’ " Herring , 555 U.S. at 145, 129 S.Ct. 695 (quoting United States v. Leon , 468 U.S. 897, 922 n.23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). "The good-faith exception ... holds that when the agents executing a search warrant act with an objectively reasonable good-faith belief that their conduct is lawful, improperly obtained evidence remains admissible because in such circumstances, the deterrence rationale loses much of its force, and exclusion cannot pay its way." United States v. Eldred , 933 F.3d 110, 118 (2d Cir. 2019) (quotation and citation omitted).
In United States v. Leon , the Supreme Court identified four circumstances in which the good faith exception does not apply and the officer's reliance on the warrant will not be considered to have been in good faith:
(1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable.
United States v. Moore , 968 F.2d 216, 222 (2d Cir. 1992) (citing Leon , 468 U.S. at 923, 104 S.Ct. 3405 ). "These exceptions reflect the general rule that, ‘[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.’ " United States v. Romain , 678 F. App'x 23, 25 (2d Cir. 2017) (alteration in original) (quoting Herring , 555 U.S. at 144, 129 S.Ct. 695 ). " ‘The pertinent analysis of deterrence and culpability is objective,’ and " ‘our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal" in light of "all of the circumstances." ’ " Rosa , 626 F.3d at 64 (quoting Herring , 555 U.S. at 145, 129 S.Ct. 695 ).
" ‘The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance’ on an invalidated warrant." Clark , 638 at 100 (citations omitted). Moreover, as counseled by the Second Circuit, in assessing whether the government has met its burden, a court must consider that "in Leon , the Supreme Court strongly signaled that most searches conducted pursuant to a warrant would likely fall within its protection." Id.
II. ANALYSIS
Based on the standards discussed above and a careful analysis of the issues presented by Defendant's objections, the Court agrees with the thorough discussion set forth in the R&R and concludes that Defendant's motion to suppress should be denied. The Court relies on the findings in the R&R, but expressly addresses each of Defendant's arguments set forth in his objections below.
First, there is no merit to Defendant's contention that the R&R improperly found a factual basis to conclude that Budd went from 4 Florack to the area of 45 Southview Terrace on April 15, 2020. Agent Smith plainly stated in paragraph 307 of his affidavit that that is exactly what Budd did on April 15, 2020. (See Dkt. 1 at ¶ 307). Contrary to Defendant's contention, the R&R did not find facts that were not alleged in Agent Smith's affidavit, and Defendant incorrectly attempts to limit the basis of the information set forth in paragraph 307 to the GPS tracker—when, in fact, only the first sentence of paragraph 307 (setting forth when Budd left his apartment and the fact that he drove directly to 4 Florack) states that it is based on information from the GPS tracker. (Id. ). Thus, it was plainly reasonable for Magistrate Judge Pedersen to conclude that Agent Smith's affidavit established that on April 15, 2020, Budd, a key player in the alleged drug trafficking conspiracy, left his apartment, went directly to 4 Florack where he stayed for about 15 minutes, and then went to the area of 45 Southview Terrace, where he remained for 5 to 10 minutes, and then returned to his apartment about one hour later. (Id. ).
Second, there is similarly no merit to the contention that the R&R improperly found that the activities of April 18-19, 2020, supported a probable cause determination with respect to the search of 45 Southview Terrace. As the government highlights in its opposition memorandum, the investigation revealed that on the dates in question, Budd traveled with another individual to Syracuse for alleged drug trafficking activities, and then once Budd and this individual returned to Budd's apartment complex, the other individual drove to 45 Southview Terrace (after engaging in countersurveillance activities upon departing Budd's apartment complex, such as driving in circles and making last second lane changes and turns). (See id. at ¶¶ 321-29).
Third, Defendant's second declaration is irrelevant to the probable cause determination, and the Court does not view the R&R as suggesting otherwise. Apparently the second declaration was submitted in an attempt to respond to the government's argument that there was pole camera and physical surveillance of Budd on April 15, 2020, establishing his presence at both 4 Florack and 45 Southview Terrace. (See Dkt. 431 at 12). It is not clear to the Court how Defendant's second declaration addressed the pole camera evidence which related to activities at 4 Florack, not 45 Southview Terrace. With respect to the physical surveillance of Budd at 45 Southview Terrace, the government points out in its opposition memorandum that the information was not submitted to bolster the probable cause determination, but rather "to rebut defendant's contention in his suppression motion and on this appeal that the allegations in the Smith affidavit were false or made up." (Dkt. 442 at 8). Thus, Defendant's attempt to counter that information has no bearing on whether the search warrant was supported by probable cause.
Fourth, the Court agrees with Defendant that the facts here are different than United States v. Williams , 350 F. Supp. 3d 261 (W.D.N.Y. 2018), among other reasons being that this case deals with an alleged large scale major drug trafficking organization as opposed to the single defendant drug dealer at issue in Williams . See 350 F. Supp. 3d at 268 (citing United States v. Donald , 417 F. App'x 41, 43 (2d Cir. 2011) and United States v. Fama , 758 F.2d 834, 837-38 (2d Cir. 1985) in support of the principle that the size of a narcotics trafficking scheme is a factor relevant to the probability that contraband will be located at a drug trafficker's residence). But the R&R did not suggest that the facts in Williams were similar to this case. Rather, it cited Williams , and United States v. Singh , 390 F.3d 168, 182 (2d Cir. 2004), in support of the principle that "investigators do not need to observe a defendant bringing drugs into or out of a residence to be searched to establish probable cause." (See Dkt. 403 at 11 (quotation omitted)). The Court does not find this discussion inapplicable here.
Finally, the R&R's citation to Kortright in support of its conclusion that the warrant application was not so lacking in indicia of probable cause as to render reliance upon it unreasonable, is neither misplaced nor does it undermine the R&R's conclusion about the applicability of the Leon good faith exception. As the R&R notes, this "is a very difficult threshold to meet"—to establish that a warrant issued by a judicial officer is so lacking in probable cause as to render law enforcement's reliance on it unreasonable. (See Dkt. 403 at 24) (citing United States v. Falso , 544 F.3d 110, 128 n.24 (2d Cir. 2008) ). Kortright recognized that high bar, finding that even though the warrant lacked probable cause the evidence would not be suppressed because "a reasonably well trained officer would not have known that the search was illegal" and "the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination." 2011 WL 4406352, at *9. United States v. Moran , 349 F. Supp. 2d 425 (N.D.N.Y. 2005), relied upon by Defendant, does not require a different result. There, no facts connected the premises to the drug conspiracy other than the fact that a member of the alleged conspiracy may have resided at the location. In rejecting the government's argument that the good faith exception applied, the court noted that "[t]his is not a case where some facts in the application connect the criminal activity to the residence, permitting a reasonable officer to rely upon the issuing magistrate's determination that the facts were sufficient to support probable cause." Id. at 477. By contrast, in this case Agent Smith's affidavit is anything but bare bones, and it plainly is not devoid of facts connecting 45 Southview Terrace to drug trafficking activities.
In sum, for the reasons set forth more thoroughly in the R&R, and mindful of the deferential standard applicable to reviewing an issuing court's probable cause determination, the Court agrees that probable cause supported issuance of the warrant for 45 Southview Terrace. Based on the totality of the circumstances set forth in Agent Smith's affidavit, Magistrate Judge Pedersen had a substantial basis for concluding that there was a fair probability that contraband or evidence of a crime would be found at 45 Southview Terrace. Moreover, even if the warrant lacked probable cause, for the reasons discussed in detail in the R&R, suppression would not be appropriate under the Leon good faith exception.
CONCLUSION
For the foregoing reasons, the Court adopts the Report and Recommendation (Dkt. 403) and denies Defendant's motion to suppress the evidence seized upon execution of the search warrant at 45 Southview Terrace (Dkt. 233).
SO ORDERED.