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U.S. v. WANG

United States District Court, S.D. New York


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 carrying a duffle bag. Kong later returned with an empty duffle bag.

  (2) On November 21, the affiant was stationed in the rear yard of that same building and saw Kong "enter" the building and "proceed up the stairs."

  (3) The affiant learned from a fellow officer that on November 21, while that officer was stationed on the third floor he saw Kong enter the apartment empty handed and later leave with a duffle bag. Later, he observed Kong re-enter the Apartment and leave empty handed.

  (4) The affiant learned from an undercover officer that on January 11, while stationed on the third floor of the Apartment's building, she observed defendant Zhu enter the Apartment and later leave carrying a red, white and blue bag and proceed down the stairs.

  Wo does not describe any observations from the rear yard of the building. She asserts, however, that the view of the Apartment from the third floor is "obstructed" and that she could not "clearly see" the Apartment or the hallway area immediately outside the Apartment. She also states that the building's door is "self-closing" and locks automatically.

  The Defendants argue that it must have been impossible for an officer stationed in the rear yard to see someone entering the building and proceeding up the stairs, or for an officer on the third floor to see people entering and leaving the Apartment. They also argue that the affidavit was deficient for failing to disclose that the building's door was locked and for failing to explain how the officers gained entry and were able to conduct surveillance inside the building. Finally, they argue that the affidavit was defective for failing to allege that the Apartment had three individually locked bedrooms leased to three different tenants.

  The Defendants have not met their burden of showing that there is an issue of fact requiring a Franks hearing. They have presented no evidence regarding sight lines from the rear yard. Their evidence regarding the ability to make observations of the Apartment entrance from the third floor does not indicate that the officers' observations could not have been made as described. Wo's affidavit describes an obstructed view, but does not suggest that no observations could be made. There was no need for the search warrant affidavit to describe how officers gained admittance to the common areas of the building. As for the search warrant affidavit's failure to describe the interior arrangement and condition of the Apartment, there is no reason to believe that the affiant had any access to the interior of the apartment or information on this subject. There is therefore no reason to believe that this omission is the result of a deliberate falsehood or reckless disregard for the truth.

  2. The Search Warrant for the Storage Unit

  The Defendants attack the following statement in the affidavit submitted in support of the search warrant to search the Storage Unit: The affiant learned from an officer who visited the Storage Unit on January 21 that he crouched down on the floor and saw through a gap of about one and a half inches what appeared to be plain brown rectangular cardboard boxes and red, white and blue striped bags similar to those inspected during the execution of the search warrant at the Apartment and found to contain cartons of cigarettes.

  The Defendants speculate that the officers must have used keys seized from the Defendants to open the door to the Storage Unit to see the bags instead of looking through the gap between the floor and door. Wo's affidavit states that her head had to touch the floor for her to see through the gap between the floor and Storage Unit door. Since the Storage Unit was empty when she made her observations, she could not determine if the striped bags would have been visible from such an angle. By repeating this inspection at other storage unit doors, however, she was able to see the very bottom of a variety of different boxes.

  Wo's affidavit does not raise an issue of fact requiring a hearing. To the contrary, it confirms the existence of the gap and the ability to observe the contents of a room through that gap.

  The Defendants also contend that the affidavit is deficient because it does not describe sales in sufficient volume from which one could reasonably infer that a storage facility, in addition to the storage areas in the Apartment and Salon, must have existed. They also argue that boxes and red, white and blue striped bags are innocuous and capable of being used for uses other than to hold illegal cigarettes.

  The affidavit is required to present information which establishes a probability, not a certainty, that incriminating evidence will be found. The affidavit does so. When read in its entirety, it provided the judicial officer with sufficient information to find the existence of probable cause to support a search of the Storage Unit.

  The Defendants have not argued that either affidavit fails to provide probable cause for the search it supports if read as a whole. Given the Defendants' failure to show that there is a need for a Franks hearing or that any one of the challenged statements should be stricken from the two affidavits at issue on the motion, it is unnecessary to determine whether the affidavits would support a finding of probable cause without the challenged passages.

  Conclusion

  The Defendants' motion to suppress and for a Franks hearing is denied.

  SO ORDERED.


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