case is unusual in that the Court need not, and should not, even make a probable cause inquiry because the record unambiguously reflects that Magistrate Judge Lee did not issue the warrant absent the handwritten insertion. When Detective Guglielmo and AUSA Pfeffer presented Magistrate Judge Lee with the warrant affidavit at her home, she did not issue the search warrant and required that they provide additional information linking Apt. A2 with the drug activity. Only after the handwritten insertion was included in the affidavit did she conclude that there was probable cause and issue the warrant.
From this sequence of facts, the Court can only conclude that the magistrate had determined that the affidavit originally proffered by Detective Guglielmo and AUSA Pfeffer was insufficient to establish probable cause. Thus, the second prong of the Franks test is satisfied, since "suppression [is] an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit" that the affiant knew or should have known was false. U.S. v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677 (1984) (explaining that Franks survived its decision) (emphasis added). What is relevant, therefore, is the effect of the false material -- that of misleading the magistrate into finding probable cause where otherwise she would not find it.
Ordinarily, a district court does not know whether or not the magistrate would have accepted an untainted affidavit or was misled by an affidavit and consequently must conduct its own probable cause inquiry in order to ascertain whether the false material supported the finding of probable cause. The second prong of the Franks test must have been premised on this typical uncertainty. In this unusual case, however, the magistrate's own judgment on the untainted affidavit is in the record. The magistrate read the untainted affidavit, was not convinced by it, and did not sign it. As the Supreme Court has stated, "the preference for warrants is most appropriately effectuated by according 'great deference' to a magistrate's determination." U.S. v. Leon, 104 S. Ct. at 3416, citing Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637 (1969). Right, wrong, or otherwise, a magistrate's determination of probable cause must be afforded great deference, United States v. Nichols, 912 F.2d 598, 602 (2d Cir. 1990), and a district court should not substitute its own probable cause determination on an issue of insufficiency where that of the magistrate is on the record and is clear.
To reject the magistrate's original determination in a case such as this would reward and encourage deception by giving the government and police multiple shots at the apple. Where a magistrate determined that there was not probable cause, or questioned the sufficiency of facts proffered during a warrant hearing, the applicant would be encouraged to supplement the affidavit with false information that would guarantee the issuance of a warrant. Then, the search will have occurred and the police and government would still have a de novo review of the affidavit. This result would be contrary to the basic tenets expressed by the constitutional requirements for a search warrant. If the court is always to determine de novo whether probable cause exists, even after a magistrate has determined that it does not, then there is no purpose to having a magistrate issue warrants. The police might as well conduct warrantless searches since the magistrate's review would be of no consequence. The good-faith exception in Leon was founded on the principle that the government should not be penalized for the good-faith errors of an independent magistrate. This policy, however, demands that the government insure the independence of a magistrate by not benefiting from falsehoods that directly induce a warrant. In short, if the exclusionary rule is to have any meaning, it must be applied in a situation such as this where a magistrate, right or wrong, did not issue a warrant except after a proffer of perjured testimony.
The "alternative sanctions of a perjury prosecution, administrative discipline, contempt or a civil suit are not likely" to repel the "specter of intentional falsification." 438 U.S. at 168-69, 98 S. Ct. at 2682-83. The exclusionary rule's goal of deterrence, coupled with the "solemnity and moment of the magistrate's proceeding," 438 U.S. at 166, 98 S. Ct. at 2682, and the policy of great deference to the magistrate, compel this Court's decision to adopt the magistrate's apparent determination that probable cause was not established absent the handwritten insertion. The Court must therefore suppress the evidence whose seizure directly resulted from the deceit by a law enforcement officer.
The Second Circuit recently observed that "the police must be dedicated, in our democratic society, to exercising the authority of their office in a manner that protects the constitutional rights of suspects and encourages respect for the rule of law by its proper enforcement." U.S. v. Gribben, 984 F.2d 47, 52 (2d Cir. 1993). In light of this important policy, and for the reasons stated above, defendant's' motion is GRANTED and the fruits of the search of Apt. A2 shall be suppressed from his trial.
Dated: New York, New York
April 7, 1993