U.S. v. Smith

Citation9 F.3d 1007
Decision Date12 November 1993
Docket NumberNo. 1104,D,1104
PartiesUNITED STATES of America, Appellant, v. Stanford SMITH a/k/a Willie Ellis Eveleigh, Defendant-Appellee. ocket 92-1665.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael G. Rossetti, Asst. U.S. Atty., for W.D.N.Y., Buffalo, NY (Dennis C. Vacco, U.S. Atty., of counsel), for appellant.

James P. Harrington, Buffalo, NY, for defendant-appellee.

Before OAKES, ALTIMARI, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

The United States appeals from an order entered November 2, 1992 in the United States District Court for the Western District of New York, Richard J. Arcara, Judge, that adopted a report and recommendation of Leslie G. Foschio, Magistrate Judge. The court granted defendant-appellee Stanford Smith's motion in limine to suppress the introduction into evidence at trial of narcotics and a handgun seized at an apartment pursuant to a search warrant. The government contends that the district court erred in determining that (1) probable cause did not exist to search the apartment, and (2) the search was not justified under the "good faith" exception to the exclusionary rule.

We agree, and reverse the order of the district court.

Background

This appeal arises from a pretrial motion in limine following Smith's April 19, 1991 arrest and April 25, 1991 indictment. The five-count indictment charged Smith, alleged to be a native and subject of Guyana, with: (1) possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (1988); (2) using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) (1988 & Supp. II 1990); (3) making false, fictitious and fraudulent statements regarding a matter within the jurisdiction of the Immigration and Naturalization Service in violation of 18 U.S.C. Sec. 1001 (1988); (4) possessing a false identification document with intent to defraud the United States in violation of 18 U.S.C. Sec. 1028(a)(4) (1988); and (5) unlawfully entering the United States after previously having been deported, in violation of 8 U.S.C. Sec. 1326 (1988 & Supp. II 1990). Following the indictment, Smith moved to suppress the introduction into evidence of a quantity of cocaine base and a 9mm handgun seized by police officials upon the execution of a search warrant. Judge Arcara referred the suppression motion to Magistrate Judge Foschio for report and recommendation pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988).

The facts giving rise to this appeal are as follows, and are not significantly disputed by the parties. Prior to March 1, 1991, a confidential informant (the "CI") who claimed to have information concerning the sale of narcotics in the City of Niagara Falls, New York approached William Evans, a narcotics officer with five years experience in the Niagara County Sheriff's Department. Specifically, the CI asserted that at least two individuals whom the CI believed were Jamaicans from "out of town" were engaged in the sale of narcotics at apartment 201 (the "Apartment") of 413 13th Street, a small, run-down residential apartment building in Niagara Falls. The CI also advised Evans that weapons, as well as drugs, were possibly being sold at the Apartment. Evans had not previously employed the assistance of this CI. Rather, the CI had contacted local police authorities to offer assistance in apprehending persons selling narcotics in exchange for leniency regarding unrelated narcotics offenses then pending against him. The information provided by the CI was corroborated by Evans' supervisor; Evans did not know the source of the supervisor's intelligence.

On March 1, 1991, Evans met the CI at a location near the Apartment building. After informing Evans that he had recently transported persons to the Apartment building to purchase narcotics, the CI agreed to attempt a purchase of drugs at the Apartment under Evans' supervision. Evans then searched the CI for contraband and supplied him with $40 in "buy money" provided by the Niagara County Drug Task Force ("NCDTF"). Evans observed from a parked car as the CI entered the Apartment building. Approximately four or five minutes later, the CI emerged with a small plastic bag containing a chunk of material which field tested positive for the presence of cocaine. The CI informed Evans that he had purchased the cocaine from a man named "John" in the Apartment, and described "John" as a black Jamaican male approximately 5'5"' tall, of slight to medium build, with a beard and moustache. The CI further stated that another black male was also present in the Apartment, and that he did not know the first or last name of that man.

At a later date, Evans entered the apartment building to confirm that an apartment 201 did, in fact, exist. In addition, on two occasions between March 1 and April 19, 1991 the CI unsuccessfully attempted to purchase narcotics at the Apartment at the prompting, and under the supervision, of Evans.

On April 19, 1991, however, after being informed by the CI that "John" had returned to Niagara Falls, Evans supplied the CI with NCDTF buy money, searched him for contraband, and waited outside as the CI entered the Apartment building. The CI emerged shortly thereafter with a small packet whose contents field tested positive for the presence of cocaine. On this occasion, the CI stated that "John" was present in the Apartment with a black female, and described "John's" height as 5'10". Evans did not directly observe, nor electronically surveill, the CI in the act of procuring the cocaine from "John" in the Apartment on either occasion when cocaine was purchased.

Immediately following the April 19 purchase of narcotics, Evans prepared an affidavit application for a search warrant on a prepared "fill in" form utilized by the NCDTF when a warrant is required expeditiously. He then arranged to meet that evening at approximately 11:00 p.m., accompanied by the CI, with Niagara City Court Judge Mark A. Violante at police headquarters in order to obtain a warrant to search the Apartment. The warrant application specified the Apartment by number and address, and requested authorization to search the entire Apartment for cocaine and other controlled substances, as well as documents or currency tending to show the source and buyers of the narcotics, the scope of the narcotics enterprise, and the identity of the persons controlling the Apartment. The application described the two individuals using the Apartment as "John LNU [last name unknown]" and "John Doe," an unknown person. It stated that: (1) Evans had received information from the CI that two Jamaican males periodically occupied the Apartment and sold cocaine there; (2) in March and April the CI had informed Evans that he had purchased narcotics from these individuals; and (3) the substances purchased on those occasions had tested positive for cocaine.

During the meeting at police headquarters, Evans reiterated to Judge Violante the substance of the information contained in the warrant application and affidavit regarding the circumstances of the two successful purchases of cocaine, the latter of which had occurred only about two hours earlier. Based on information provided to him by the CI, Evans also described to Judge Violante the layout of the Apartment (a one-room studio). The CI related the circumstances of the narcotics purchases to Judge Violante, stating that "John" and another black male were present at the March 1 purchase, and the same "John" and a black female were present at the April 19 purchase. Judge Violante took written notes while speaking with Evans and the CI, but he did not utilize a stenographer or tape recorder to record the discussion.

After hearing these statements and asking Evans if he had anything to add, Judge Violante authorized the warrant, which Evans and approximately fifteen to seventeen police officers immediately executed. Smith was arrested at the Apartment, and a search of the premises yielded, inter alia, the narcotics and handgun currently at issue. In light of the immigration and weapons charges detailed in the indictment, the United States Attorney for the Western District of New York took over Smith's prosecution.

At the suppression hearing before Magistrate Judge Foschio, Judge Violante testified that although he swore Evans prior to discussing the details surrounding the investigation of the Apartment, the CI was never sworn. Evans testified, however, that when he was sworn by Judge Violante, the CI also raised his hand and therefore was also sworn. Judge Violante further stated that he considered the proceedings before him to have been conducted in accordance with N.Y.Crim.Proc.Law Sec. 690.40(1) (McKinney 1984) as he understood it, and in particular that Evans' affidavit applying for the search warrant satisfied the requirement of Sec. 690.40(1) that Evans' "examination ... be either recorded or summarized on the record by the court."

Judge Violante testified that the CI was not sworn "because I had no stenographer and I wasn't going to rely on him and I had no tape recorder." Judge Violante further testified that while he took into consideration the statements made by the CI, he made no determination regarding the CI's credibility, and would have issued the warrant based solely upon Evans' affidavit and sworn testimony if the CI had not accompanied Evans to the warrant proceeding. The CI did not testify at the suppression hearing.

Magistrate Judge Foschio ruled that the evidence seized in executing the warrant must be suppressed because probable cause had not been established for issuance of the warrant. Specifically, the magistrate judge opined that because (1) Evans had not independently corroborated the CI's statements regarding the use of the Apartment by Jamaican males; (2) there was no evidence of the CI's previous reliability; (3) prior to the two cocaine...

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