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