United States District Court, S.D. New York
June 29, 2004.
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.
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 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
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
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
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
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
The Defendants' motion to suppress and for a Franks hearing