Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. WANG

June 29, 2004.

UNITED STATES,
v.
ZHU MING WANG and KONG LIANG WANG, Defendants.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

Zhu Min Wang ("Zhu") and Kong Liang Wang ("Kong") (collectively, "Defendants") have moved for an order suppressing the fruits of two searches conducted pursuant to search warrants, or, in the alternative, for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to challenge the validity of the affidavits submitted in support of the warrants. For the following reasons, their motions are denied.

  Background

  From October 2003 to January 2004, officers with the New York City Police Department conducted surveillance of the Defendants during an investigation of their sale of contraband cigarettes from Tin Tin hair salon (the "Salon") in lower Manhattan. They observed the Defendants carrying bags from apartment 3 (the "Apartment") at 13 Market Street in Manhattan to the Salon.

  On January 20, the officers executed two state court search warrants, one at the Salon and the other at the Apartment. They located cartons of contraband cigarettes at the Salon and the Apartment, as well as a briefcase at the Salon containing a magnetic key card for Manhattan Mini Storage with a handwritten code "6-8-10" and containing a driver's license with a photograph of defendant Kong Liang Wang under the name Zhen Su Li. The Defendants were arrested during the search of the Salon.

  On January 22, the officers executed a third search warrant, this one issued by a federal Magistrate Judge, for unit 6-8-10 at Manhattan Mini Storage (the "Storage Unit") in lower Manhattan and seized more cartons of cigarettes. The defendants have been indicted for conspiracy to sell contraband cigarettes in violation of 18 U.S.C. § 2342(a).

  On May 29, defense counsel moved to suppress the searches of the Apartment and the Storage Unit. To support the motion, defense counsel offered their own joint affidavit based on information and belief. It contained no evidence based on personal knowledge. In reply to the Government's opposition to the motion, the Defendants submitted an affidavit of Ada Wo ("Wo") reflecting observations she made on March 1 at the building in which the Apartment is located and outside the Storage Unit.*fn1

  Discussion

  Probable cause for a search warrant exists if there is a "fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998) (citation omitted). "Probable cause is fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (citing Illinois v. Gates, 462 U.S. 213, 232 (1983)). It is clear, however, that "only the probability, and not the prima facie showing, of criminal activity is the standard of probable cause." Salameh, 152 F.3d at 113 (citation omitted). Ultimately, a determination of probable cause requires a "practical, commonsense decision" as to whether the totality of the evidence set forth in the affidavit in support of the warrant indicates a probability of finding contraband or evidence of a crime. Canfield, 212 F.3d at 718 (citation omitted).

  A search and seizure executed pursuant to a warrant is presumed valid. United States v. Awadallah, 349 F.3d 42, 64 (2d. Cir. 2003). Under certain circumstances a defendant may be permitted to challenge the validity of a warrant by disputing the veracity of factual statements made in the affidavit in support of the warrant. Id.; see Franks, 438 U.S. at 164-72. In order to be entitled a Franks hearing, a defendant "must make a substantial preliminary showing that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding." Salameh, 152 F.3d at 113 (citation omitted).

  To make the required showing, "the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof." Franks, 438 U.S. at 171. The alleged falsehoods or omissions are not considered material to the judge's probable cause finding if, after putting aside any erroneous information and material omissions, "there remains a residue of independent and lawful information sufficient to support probable cause." Awadallah, 349 F.3d at 65 (citation omitted).

  1. The Search Warrant for the Apartment

  The Defendants attack the following statements in the affidavit submitted in support of the search warrant to search the Apartment.

  (1) The affiant learned from a fellow detective that on November 15, that detective was stationed on the third floor of the building in which the Apartment was located and saw Kong enter the Apartment empty handed and later leave ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.