United States v. Clark

Decision Date04 October 2021
Docket Number1:19-CR-00155 EAW
Citation565 F.Supp.3d 381
Parties UNITED STATES of America, v. Deshema CLARK, Defendant.
CourtU.S. District Court — Western District of New York

Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

Currently pending before the undersigned is a motion to suppress filed by defendant Deshema Clark ("Clark"), seeking suppression of evidence recovered from the search of her home at 164 Parkridge Avenue in Buffalo, New York ("164 Parkridge") on October 9, 2019. (Dkt. 268). For the following reasons, Clark's motion to suppress is denied.

BACKGROUND

Clark, along with her co-defendants, is presently charged in a 24-count second superseding indictment. (Dkt. 106). Clark is charged in three counts: narcotics conspiracy in violation of 21 U.S.C. § 846 (Count 1); maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 23); and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2 (Count 24). (Id. ). During the search of 164 Parkridge on October 9, 2019, law enforcement recovered marijuana, and also obtained statements from Clark and searched her cellphone.1 (Dkt. 268 at ¶ 6).

Clark and her co-defendants filed pretrial motions in February 2020. As part of her pretrial motions, Clark sought production of the search warrant application executed on October 9, 2019, at her residence at 164 Parkridge. (See Dkt. 189). At oral argument on Defendantspretrial motions on May 20, 2021 (Dkt. 229), the Court ordered the government to provide to Clark a copy of the search warrant application for 164 Parkridge (Dkt. 230 at 29-30; see also Dkt. 241). The Court further instructed the government that, if there was information it believed should be redacted from the application before providing it to Clark, the government could make an ex parte and sealed submission to the Court. (Dkt. 241). The government submitted ex parte and under seal for the Court's review the search warrant application with proposed redactions and an affidavit in support of the proposed redactions, which the Court approved. (Dkt. 239; Dkt. 240; Dkt. 241).

Clark filed her motion to suppress on July 21, 2021 (Dkt. 268), and the government filed a response on August 2, 2021 (Dkt. 277). The Court held oral argument on the motion on August 3, 2021, and requested the government to provide it with a copy of the redacted search warrant application for 164 Parkridge. The Court received a copy of the redacted search warrant later that day.

DISCUSSION

Clark contends that evidence obtained during the search of 164 Parkridge must be suppressed as the affidavit submitted in support of the warrant does not provide a substantial basis for a finding of probable cause, including because it does not contain any information indicating that any evidence of a crime would be located at 164 Parkridge, and because information supporting the warrant was stale at the time the warrant was executed. (Dkt. 268 at ¶ 8). Clark further contends that the good faith exception to the exclusionary rule does not apply because the affidavit was so lacking in indicia of probable cause as to render the belief in its existence unreasonable, and the issuing judge was misled by information in the affidavit the affiant knew or should have known was false. (Id. at ¶ 9). In the alternative, Clark moves for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the statements in the warrant. (Id. at ¶ 32).

I. Probable Cause

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "To establish probable cause to search a residence, two factual showings are necessary—first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence." United States v. Travisano , 724 F.2d 341, 345 (2d Cir. 1983).

"[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 Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). When reviewing the validity of a search warrant:

the duty of [the] court ... 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) (quotations and citations omitted); Walczyk v. Rio , 496 F.3d 139, 157 (2d Cir. 2007) ("[A] reviewing court must accord considerable deference to the probable cause determination of the issuing magistrate...."). "[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) (quoting Gates , 462 U.S. at 236, 103 S.Ct. 2317 ) (alteration in original). "[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)).

The Court has reviewed the search warrant application for 164 Parkridge (the "search warrant application"), as well as the affidavit in support of the search warrant sworn to by FBI Special Agent Clinton Winters (hereinafter, the "Winters Affidavit"). Agent Winters is an experienced narcotics investigator fully familiar with the facts and circumstances of the investigation of Clark and her co-defendants. (Winters Aff., ¶¶ 2-3). The affidavit includes a section detailing the background of the investigation, including the alleged involvement of Clark's co-defendant Deandre Wilson ("Wilson") in the murders of three individuals on September 15 and 16, 2019. (Id. at ¶¶ 7-12). The affidavit also details law enforcement efforts to identify a black BMW observed through surveillance in the vicinity of Box Avenue on September 15 and 16, 2019, where Wilson and his co-defendants allegedly burned human remains. (Id. at ¶¶ 11-13). Law enforcement subsequently identified this vehicle as a 2011 black BMW sedan, bearing New York license plate HWE4177, and registered to a Stephanie Pearson, who law enforcement know to be Wilson's mother. (Id. at ¶ at 13).

Thereafter, the black BMW was observed in the vicinity of 164 Parkridge. On September 29, 2019, law enforcement located the black BMW parked on the street across from 164 Parkridge. (Id. at ¶ 20). On October 2, 2019, law enforcement observed the black BMW parked on Parkridge Avenue, south of 164 Parkridge. (Id. at ¶ 21). At that time, an unknown black male in a red Lincoln Navigator parked near the black BMW and appeared to check if the door of the BMW was locked. (Id. ). The unknown black male walked up the driveway of 164 Parkridge, and then returned to the black BMW, which he entered and departed the area. (Id. ). Law enforcement obtained a search warrant for the black BMW (id. at ¶ 14), and on October 3, 2019, they stopped the black BMW in front of 164 Parkridge after observing it fail to stop at the stop sign at Parkridge and Hutchinson Avenues (id. at ¶ 15). Deandre Wilson was identified as the operator and sole occupant of the vehicle. (Id. ). Law enforcement also observed the black BMW parked in the driveway of 164 Parkridge on October 4, 2019 (id. at ¶ 22), and parked in the street near 164 Parkridge on October 5, 2019, and on October 7, 2019 (id. at ¶ 23).

As relevant to the murders that occurred on September 15, 2019, law enforcement discovered that on that date, Clark posted to Facebook that she attended a concert at Darien Lake Performing Arts Center. (Id. at ¶ 25). Law enforcement also developed information based on a license plate reader recording the black BMW driving east on the thruway and T-Mobile phone records for a phone belonging to one of the victims, which led Agent Winters to believe, based on his training and experience, that the victim's cellular telephone was located in the black BMW at or near the Darien Lake Performing Arts Center on September 15, 2019, at 8:25 p.m. (Id. ).

In other words, the black BMW—which was observed in the vicinity of the September 15 and 16, 2019 murders being investigated—is also linked to 164 Parkridge because it was observed there on several occasions soon after the murders, including between September 29, 2019 through October 7, 2019. In addition, it appears that Clark was at Darien Lake and in the vicinity of the black BMW and the phone belonging to one of the murder victims on September 15, 2019. Consistent with this information, the warrant permits law enforcement to search 164 Parkridge for evidence of the aforementioned murders. (See Winters Aff., at ¶ 6 (citing 18 U.S.C. § 924(c) (possession and brandishing of a firearm in furtherance of drug trafficking), 18 U.S.C. § 924(j) (murder in furtherance of...

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