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.

Background

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.

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.

Background

All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography - 242 counts in all.

Probable Cause

The affidavit in support of the search warrant was unusually thin. Sworn out by an FBI agent, it contained mostly generalized information about the use of the internet to view and collect child pornography, and the characteristics of the collectors.

With respect to Falso, the affidavit explained that the FBI had learned of a website, www.cpfreedom.com, which contained approximately eleven images of child pornography. The site also advertised additional such materials at an internet address that was hidden until a visitor purchased a membership. With respect to Falso, all the affidavit alleged was that his email address was one of several listed on the site; this suggested that “it appeared” that Falso “either gained access to or attempted to gain access to” it.

The affidavit also revealed that eighteen years earlier, Falso had been arrested in New York for sexually abusing a seven-year-old girl. He pled guilty to a misdemeanor and was sentenced to probation.

The circuit majority concluded, unlike the district court, that this information did not establish probable cause. First, the affidavit did not allege that Falso was a member of the website. That fact, while not dispositive, is an “important consideration” in these cases because it “supports the ultimate inference ... that illegal activity is afoot.” Here, the only allegation was that Falso “appeared to” have accessed or tried to access the website, but there was no specific allegation that he accessed, downloaded or viewed child pornography. And while the site contained a few such images, there was no information about where or how the images could be accessed or whether they were downloadable.

Accordingly, “inconclusive statements” about whether Falso even accessed the site, coupled with the absence of details about the site itself “falls short of probable cause.”

Nor did any of the other allegations in the affidavit furnish it. Specifically, information about Falso’s eighteen-year-old conviction was not enough. The affidavit did not allege that all or most people who are attracted to minors collect child pornography. In addition, the age of the conviction rendered it stale, and the affidavit had no information to bridge the temporal gap. Finally, the past offense did not relate to child pornography. “That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”

Accordingly, the court reversed the district court’s finding of probable cause.

Judge Livingston, in her dissent, noted that Falso’s email address appeared on the subject website, that it could not have appeared there simply by his visiting the site, and that the site used email to correspond with its members. To her, this was “probative evidence” that he not only visited the site, but that he either signed up to attempted to sign up for a membership. She also disagreed with the majority’s treatment of Falso’s prior conviction, both as to its probative meaning and its age.

Good Faith

The majority - a different one - also held that the good faith exception saved the day.

Falso first claimed that the affidavit misleadingly suggested something more than that his email appeared on the website. The court disagreed, because it was true that the investigation had revealed more than just this. It revealed not only that Falso’s address was on the website but that the site communicated with its members by email. Nor did the affidavit misleadingly suggest that Falso was a subscriber to the subject site. According to the majority, in context, it was clear that the affidavit’s use of the term “subscriber” referred to his Yahoo account, through which he maintained an email address.

The majority also held that the affidavit was not “so lacking in indicia of probable cause as to render reliance upon it unreasonable.” Whether the affidavit established probable cause is an issue “upon which reasonable minds [could] differ.” Thus, the error was “committed by the district court in issuing the warrant, not by the officers who executed it.”

Chief Judge Jacobs, in dissent, characterized the affidavit as “recklessly misleading (at best).” He focused first on the affidavit’s failure to allege a “substantial nexus” between Falso and the website. In his view, the agent tried to “create the impression that more was known than was known in fact” to fill this gap, by using the term “subscriber” in the affidavit to misleadingly make Falso look like a “subscriber” to the target website, and not just to Yahoo. In Judge Jacobs’ view this was an “artifice that carefully confuses a very important question of fact” and was not merely an instance of poor drafting. Since the agent who drafted the misleading affidavit was also the executing officer, the good faith exception should not apply.