The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Defendant Terrance Sykes ("Sykes") is charged in a three-count Indictment with possession with intent to distribute 50 grams or more of cocaine base, possession of 5 grams or more of cocaine base, and possession of a firearm in furtherance of a drug crime, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A); 844(a), and 18 U.S.C. § 924(c)(1).
On July 4, 2005, the defendant filed an omnibus motion seeking, inter alia, suppression of physical evidence obtained during the execution of a search warrant at 263 Emerson Street in the City of Rochester, New York. Sykes contends that there was no probable cause for the issuance of the search warrant, and that because the application for the warrant was so lacking in any indicia of probable cause, no police officer could have reasonably believed that the search warrant was valid.
By Order dated October 4, 2005, this case was referred to Magistrate Judge Marian W. Payson for pretrial proceedings.
Pursuant to that Order, on October 27, 2005, Judge Payson issued a Report and Recommendation recommending that defendant's motion to suppress be denied. Specifically, Judge Payson determined that regardless of whether or not there was probable cause to issue the search warrant, the officers conducting the search reasonably relied on the validity of the warrant in executing the warrant, and therefore, pursuant to precedent set forth in United States v. Leon, 468 (U.S. 897 (1984), defendant's motion to suppress should be denied.
The defendant, in three separate filings, has objected to Judge Payson's Report and Recommendations on grounds that there was no probable cause to search the premises at 263 Emerson Street, and that because the application in support of the search warrant was so devoid of any information that could establish probable cause to search the premises, the officers executing the search warrant could not have reasonably believed the warrant to be valid. On November 15, 2005, plaintiff, acting pro se, filed objections to the Report and Recommendation. (Docket item no. 45) Two days later, the defendant filed additional objections. (Docket item no. 44) On February 14, 2006, defendant's attorney filed a third set of objections to the Magistrate's Report and Recommendation.*fn1 (Docket item no. 65). For the reasons set forth below, I affirm and adopt Judge Payson's Report and Recommendation in its entirety, and deny defendant's motions to suppress.
Pursuant to 28 U.S.C. § 636(b)(1), after the filing of a Report and Recommendation, any party may serve and file written objections to such proposed findings and recommendations. After such filing,
[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
28 U.S.C. § 636(b)(1). A district court, however, may not reject the credibility findings of a Magistrate Judge without conducting an evidentiary hearing in which the district court has the opportunity to observe and evaluate witness credibility in the first instance. Cullen v. United States, 194 F.3d 401 (2nd Cir. 1999). I apply these standards to the following analysis.
The facts of this case were set forth in Judge Payson's Report and Recommendation, and familiarity with those facts is presumed. In summary, the search of 263 Emerson Street was conducted pursuant to a search warrant issued by Monroe County Court Judge Frank Geraci. The warrant was issued upon the application of City of Rochester Police Officer Scott Hill ("Hill"). Hill stated in his application that he had been investigating apparent drug activity at 263 Emerson St., and that as part of his investigation, he arranged to have a confidential informant make controlled buys of cocaine at that location. Hill stated in his warrant application that the confidential informant had provided the Rochester Police Department with reliable information in the past, and that the information provided had led to numerous arrests and convictions.
According to Hill's affidavit in support of his application for a search warrant, Hill gave the informant $1,000.00 to purchase 31 grams of cocaine from 263 Emerson St. Prior to making the purchase, the informant drove to an unspecified location and picked up another person. The two then drove to 263 Emerson Street, where the unidentified person left the vehicle, and entered through the eastern-most door of 263 Emerson St., the location of the suspected drug dealing. After a few minutes, the unidentified person emerged from the house, got back into the car with the confidential informant, and they drove back to the location where the informant had picked him up. The informant dropped the unidentified person off, and ...