The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Defendant Dwayne Posey ("Posey") is charged in a three-count indictment with (1) possession with intent to distribute a controlled substance - to wit cocaine base - in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A), (2) commission of the aforementioned offense within 1000 feet of a playground, in violation of 21 U.S.C. §860(a) and (3) possession of a firearm during, in relation to and in furtherance of the aforementioned offenses, in violation of 18 U.S.C. §924(c)(1). On May 28, 2004, Posey filed a motion to suppress evidence seized during the February 28, 2003 execution of a search warrant on a residence at 350 Humboldt Parkway in Buffalo, New York. On December 16, 2004 Magistrate Judge H. Kenneth Schroeder issued a Report and Recommendation ("R&R") denying Posey's motion to suppress the evidence. Pending before the Court are Posey's Objections to the R&R.*fn2
On February 26, 2003 an application for a warrant to search the upper apartment at 350 Humboldt Parkway, Buffalo, New York and a 1999 white Buick Regal was presented to United States Magistrate Judge Hugh B. Scott. The application was based on the affidavit of Dennis R. Gilbert ("Gilbert") a Buffalo Municipal Housing Authority Peace Officer and a Member of the Federal Bureau of Investigation's Career Criminal Task Force. Gilbert's affidavit was made based upon his knowledge and experience as a Municipal Housing Authority Peace Officer and upon information relayed to him by two confidential sources,"CS-1" and "CS-2".
Gilbert stated that on February 24, 2003 he met with CS-1, an individual who had known Posey for six years and who was familiar with Posey's day-to-day drug operations. CS-1 told Gilbert that on February 16, 2003 he had met Posey at 350 Humboldt Parkway, that Posey had exited 350 Humboldt Parkway and had showed CS-1 a bag containing what appeared to be crack cocaine and that Posey had told CS-1 that if CS-1 "need[ed] anything" to "get a hold of [Posey]." CS-1 also informed Gilbert that Posey lived at 350 Humboldt Parkway with his son and his son's mother and, at that time, drove a white Buick Regal with tinted windows. Finally, CS-1 stated that Posey's .45 caliber handgun had recently been stolen but that the party who had subsequently come into possession of Posey's stolen gun had been instructed to return the gun to Posey.*fn3
Gilbert also affirmed that on January 31, 2003 he had been contacted by telephone by CS-2, an individual who had known Posey for approximately two years. CS-2 reported having seen Posey driving a newer white vehicle with tinted windows and that the vehicle could have been a Chevrolet Lumina. CS-2 also reported having seen Posey driving a newer Volvo.
CS-2 contacted Gilbert again on February 6, 2003 and reported having observed Posey outside a store at East Delavan and Cambridge and that Posey had shown CS-2 a black semi-automatic .45 caliber handgun and that Posey had stated "you always got to be ready out here." CS-2 contacted Gilbert again on February 25, 2003 and reported having observed Posey in possession of a handgun multiple times in the summer of 2001 and 2002, that Posey is Michael Banks's muscle and shooter and that Posey is always in possession of a handgun.
Gilbert's affidavit also included information obtained through Social Services, public utility and New York State Department of Motor Vehicles ("the DMV") records indicating that one Nekia Davis resided at 350 Humboldt Parkway with her son whose last name is Posey. The records also revealed that numerous vehicles, including a 1995 Volvo and a 1999 white Buick Regal were registered in the name of Nekia J. Davis. Gilbert's affidavit contained no confirmed records or information relating to Posey's residence despite the fact that the DMV listed Posey's address as 34 Cambridge St., Buffalo, New York. While Gilbert stated that he had "no specific information that cocaine and/or "crack" [were] presently being stored at 350 Humboldt Parkway or [in] the 1999 Buick Regal" (Gilbert Aff. ¶10), he asserted that based on his training and experience he had learned that:
"significant narcotics traffickers such as dealers in large quantities of cocaine and heroin frequently maintain, in their residences and/or the residences of family members, girlfriends and associates, and/or places of business, amounts of cocaine and/or heroin, and large amounts of currency on hand in order to maintain and finance their ongoing narcotics business."
Gilbert Affidavit ¶10(b). Magistrate Judge Scott issued a search warrant for 350 Humboldt Parkway, upper apartment, and the 1999 Buick Regal. The warrant was executed on February 28, 2003 at which time officers seized - among other things - two handguns, a quantity of crack cocaine and approximately $2,277 in cash. All of the seized items were found in Posey's clothing.
On May 28, 2003 Posey filed a motion to suppress the evidence seized and on December 16, 2004 Magistrate Judge Schroeder issued an R&R concluding that the motion should be denied based on the good faith exception to the warrant requirement. The Magistrate Judge concluded that, even if Gilbert's failure to include information available from the DMV as to Posey's address is considered an omission, the omission did not mislead Magistrate Judge Scott. Magistrate Judge Schroeder also dismissed Posey's argument as to the reliability - or alleged lack thereof - of the confidential sources, concluding that CS-1 had met with Gilbert in person and that sufficient information provided by both CS-1 and CS-2 had been corroborated through other sources. Finally, Magistrate Judge Schroeder also concluded that - even if probable cause to search was lacking - a reasonably well-trained officer would not have known that the warrant was invalid.
Posey objects to the R&R and argues essentially the same points raised before Magistrate Judge Schroeder, namely (1) that Gilbert's affidavit omitted critical information as to Posey's actual place of residence which was readily ascertainable from the DMV records and which, if provided, would have negated probable cause for the warrant, (2) that the information upon which Gilbert's affidavit was based was stale and (3) that Gilbert's failure to corroborate the information provided by the confidential sources requires the suppression of the evidence. In the alternative, Posey argues that he is entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), as to whether Gilbert's affidavit was false and/or misleading.
The government asserts that the Objections should be denied and the R&R adopted because the information from both confidential sources was not stale in that it related to ongoing criminal activity, because the information was corroborated and because no material information was omitted from Gilbert's affidavit and - even if the omitted information was material - the evidence should not be suppressed based on the good faith exception to the warrant requirement.*fn4
The district court reviews de novo the portions of an R&R to which objections have been filed. See 28 U.S.C. § 636(b)(1)(A). If a party fails to object to a portion of an R&R, further review is generally precluded. See Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). Furthermore, on de novo review, the Court generally does not consider arguments or evidence which could have been, but were not, presented to the Magistrate Judge. See Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988). Upon de novo review of the R&R and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings and conclusions of the R&R.
As Magistrate Judge Schroeder noted, evidence seized pursuant to a warrant is admissible - even if such warrant was defective or if probable cause for the warrant was lacking - so long as the officers executing the warrant acted on it in "objective good faith." United States v. Leon, 468 U.S. 897, 919-923 (1984). "The test of objective good faith is 'whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization.'" United States v. Moore, 968 F.2d 216, 222 (2d Cir.), cert. denied sub nom Donohue v. United States, 506 U.S. ...