Defendant also submitted as part of his proof, two video
recordings that he made of his home and the area surrounding it
on December 24, 1990 and January 3, 1991. These videos were
taken on a bright, clear day. Obviously, these videos do not
accurately portray the precise conditions on February 15, 1990,
because the video was made many months after the search warrant
was executed. In addition, the video was filmed during daylight
hours on a clear day, while the officers observed the premises
on a dark, rainy evening. Nevertheless, the Court received the
exhibits for the limited purpose of viewing the general
condition of the premises and the nature of the neighborhood.
The Court also received photographs submitted by both sides
which depict the condition of the premises.
The videos and the photographs show 3457 Latta Road to be a
large white two-story colonial farmhouse. The building appears
to be much larger and older than the other houses on the same
side of the street. These other houses appear to be
single-family, ranch-style homes. There is a commercial farm
market across the street.
It is clear that the house is large, but only when one
observes it from the side and can see that it stretches back
for some distance into the lot. When one views the house from
the front, it merely appears to be a traditional white colonial
with a porch. The size of the house is not apparent from the
front. The videos clearly show several very large evergreen
trees and shrubs, which block portions of the front of the
house as well as the east and west sides of the house. There is
a large evergreen that blocks the view from the road on the
west side of the house, where the electric meters are located.
The best view of that side of the house is obtained by leaving
the road and walking into the vacant adjacent lot next to the
premises. Even in the daylight, the several large evergreens
and shrubs block a substantial portion of the house. On the
east side of the house, there are two side doors and if one is
positioned right next to those doors, in the daylight, it does
appear that there are two separate door-bells.
When viewing the house in the video from directly across the
street (where the agents were located), the house appears to be
a single-family home. In my view, there is no observable
indication to the contrary from this position.
Even in daylight, when approaching the premises by
automobile, it is difficult to observe much about the premises
because a significant portion of the home is blocked by large
evergreen trees and shrubs. The two electric meters on the west
side of the house are blocked to some extent by bushes and
shrubs and it would appear to be almost impossible to observe
those meters from the road in the dark.
B. Suppression of Physical Evidence.
Defendant moves to suppress silencers and other items that
were seized from his home on February 15, 1990, pursuant to the
search warrant. He argues that the warrant was not supported by
probable cause and that the warrant was defective on its face
because it failed to describe the place to be searched with
sufficient particularity, in violation of the Fourth Amendment.
Specifically, he claims that the warrant did not distinguish
between the two apartments located at the 3457 Latta Road
address, which law enforcement agents should have known were
separate dwelling units.
In response to defendant's motion, the Government claims that
the sworn affidavit filed in support of application for the
warrant establishes probable cause. Furthermore, the
particularity clause of the Fourth Amendment was not violated
because the officers reasonably believed that 3457 Latta Road
was a single-family dwelling. Finally, the Government maintains
that even if the warrant was somehow deficient, suppression is
not warranted here because the officers acted in good-faith and
in reasonable reliance upon a validly executed search warrant.
See United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct.
3405, 3420-21, 82 L.Ed.2d 677 (1984).
1. Probable Cause.
Defendant first objects that the warrant under which the
agents searched his residence was not based on probable cause.
In my view, defendant's challenge to the validity of the search
warrant is without merit. I have carefully reviewed the
application for the warrant and I believe that there was ample
basis for concluding that probable cause existed in this case.
The Supreme Court has clearly indicated that the conclusions
of a neutral magistrate regarding probable cause are entitled
to a great deal of deference by a reviewing court, and the
temptation to second-guess those conclusions should be avoided.
Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76
L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102,
108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Jones v.
United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 736, 4
L.Ed.2d 697 (1960).
Gates requires that a court considering the sufficiency of an
agent's affidavit look at the "totality of the circumstances."
Gates, supra, 462 U.S. at 231, 103 S.Ct. at 2328. In employing
this flexible standard, the Supreme Court in Gates stated:
The task of the issuing magistrate is simply to
make a practical, commonsense decision whether,
given all the circumstances set forth in the
affidavit before him, including the "veracity" and
"basis of knowledge" of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in
a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
"substantial basis for . . . conclud[ing]" that
probable cause existed.
Id. at 238-39, 103 S.Ct. at 2332 (citations omitted) (emphasis
Defendant also claims that the warrant affidavit provided no
factual nexus between 3457 Latta Road and the sought-after
items. Because the affidavit did not mention whether Shacket
delivered the silencers to Maneti's home or whether Shacket
actually saw the silencers there, defendant contends that
probable cause was lacking. Contrary to defendant's assertions,
however, a warrant may issue even in the absence of "direct,
first-hand, or `hard' evidence" linking the criminal objects to
a particular place. United States v. Thomas, 757 F.2d 1359,
1367 (2d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 67,
88 L.Ed.2d 54 (1985); see also United States v. Malin,
908 F.2d 163, 165 (7th Cir.) ("direct evidence . . . is not necessary to
a probable cause determination"), cert. denied, ___ U.S. ___,
111 S.Ct. 534, 112 L.Ed.2d 544 (1990); United States v.
Jackson, 756 F.2d 703, 705 (9th Cir. 1985). Rather, an issuing
court need only conclude that it would be reasonable to seek
the sought-after objects in the place designated in the
affidavit; a court need not determine that the evidence is in
fact on the premises. Malin, 908 F.2d at 166.
Moreover, in making a probable cause determination, a judge
"`is entitled to draw reasonable inferences about where
evidence is likely to be kept, based on the nature of the
evidence and the type of offense.'" Malin, 908 F.2d at 166
(quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399
(9th Cir. 1986)); see also United States v. Fama, 758 F.2d 834,
838 (2d Cir. 1985) (agent's expert opinion as to where a
suspect is likely to keep evidence of his illegal activity is
an important factor when making probable cause determination);
United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.)
(magistrate entitled to make reasonable inferences from the
facts stated in affidavit), cert. denied, 445 U.S. 966, 100
S.Ct. 1656, 64 L.Ed.2d 242 (1980). In the case of firearms,
courts have held that a reasonable inference of where one would
likely keep such evidence is at home. See, e.g., United States
v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (reasonable to
believe that defendant's gun and silencer would be found in his
residence), cert. denied, 488 U.S. 1031, 109 S.Ct. 841, 102
L.Ed.2d 973 (1989); United States v. Steeves, 525 F.2d 33, 38
(8th Cir. 1975) (people who own firearms generally keep them at
home or on their persons); United States v. Rahn, 511 F.2d 290,
Cir.) (it was reasonable to assume that individuals keep
weapons in their homes), cert. denied, 423 U.S. 825, 96 S.Ct.
41, 46 L.Ed.2d 42 (1975).
In Anderson, 851 F.2d 727, for example, the defendant argued
that probable cause was lacking because the warrant affidavit
contained no facts that the objects of the search, a pistol and
silencer, were located in his residence. The government
contended, on the other hand, that "it was reasonable to assume
that individuals keep weapons in their homes." Id. at 729. In
agreeing with the government's position, the Fourth Circuit
upheld the validity of the warrant, stating:
It was reasonable for the magistrate to believe
that the defendant's gun and the silencer would be
found in his residence. Therefore, even though the
affidavit contained no facts that the weapons were
located in defendant's trailer, we reject his
argument that the warrant was defective.
Id. See also United States v. Hatfield,