The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
On August 1, 2005, United States Magistrate Judge Gustave J. DiBianco
issued a warrant
authorizing, inter alia, the search of defendant William Robinson's
residence, 738 West Onondaga Street, Apartment 2, in Syracuse, New
York. Law enforcement officers executed the search warrant on August
2, 2005. Presently before the Court is defendant's motion*fn1
all physical evidence law enforcement seized during their search of
his residence. The government opposes defendant's motion.
On July 20, 2005, defendant and fifteen others were charged in a one-count indictment with conspiracy to engage in a pattern of racketeering activity as part of their alleged membership in the Elk Block gang, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). On August 1, 2005, the government applied for a warrant to search, inter alia, defendant's residence for evidence of drug paraphernalia and documents related to drug distribution, phone records and address books, bank records, currency, photographs or other gang-related matter, pagers or cell phones, computer equipment, and evidence of the association and relationship of individuals in connection with gang or drug-related activity. The government supported the warrant application with an affidavit by Detective Sergeant Kevin Murphy of the Onondaga County Sheriff's Office and a copy of the indictment in this case. Regarding 738 West Onondaga Street, Apartment 2, Detective Murphy averred:
The photograph attached to the search warrant was taken today, August 1, 2005, and it accurately depicts this building. This is a multi-unit apartment complex located on the east side apartment building on West Onondaga Street. The number "2" is clearly displayed on the mailbox next to the front door.
Defendant William Robinson is believed to live at this address. As demonstrated in Overt Acts 9, 13, 26, 32, 37, 42, 44, 52 and 53, Robinson has a long history with Elk Block that includes drug dealings and shootings. Earlier today, the aforementioned [cooperating witness] confirmed that he was in the basement bedroom of this apartment last Saturday with Robinson, that it was Robinson's bedroom, and that he personally observed a handgun kept behind a television in the room. Robinson's mother, Shelly Robinson, is the listed renter of this apartment. Additionally, Onondaga County Detective Matthew Hayes has encountered Robinson at this address pursuant to numerous prior criminal investigations.
As stated, Magistrate Judge DiBianco issued the search warrant on August 1, 2005. During their execution of the search warrant the following day, law enforcement seized, among other things: several rounds of ammunition; defendant's Sheriff's identification; Elk Block pictures; and a newspaper article regarding the murder of Demetrius Elmore. Defendant moves to suppress all evidence seized from his apartment.
The Fourth Amendment to the Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; see also Fed.R.Crim.P. 41. In reviewing a magistrate's probable cause determination, the Court must "accord substantial deference to the magistrate's finding and limit . . . review to whether the issuing judicial officer had a substantial basis for the finding of probable cause." United States v. Singh, 390 F.3d 168, 181 (2d Cir. 2004). "To establish probable cause to search a residence, two factual showings are necessary-first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence." United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) (citing United States v. Harris, 403 U.S. 573, 584 (1971)).
In this case, the warrant application provided a substantial basis for the finding of probable cause. In his affidavit, Detective Murphy recited facts from the indictment, appended the indictment to the application, and incorporated the indictment by reference into his affidavit. The indictment charged defendant and others with conspiracy to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity consisting of multiple acts involving murder, conspiracy to possess with intent to distribute and distribution of crack and marijuana, and witness tampering, in violation of 18 U.S.C. § 1962(d). The indictment also charged that:
The Elk Block gang operates within a multi-block area on the south side of the City of Syracuse, New York, that is in and around Elk Street. Elk Block members routinely guard that territory and resort to acts of violence, if necessary, to ensure that no rival gang members encroach upon their territory to sell drugs, or for any other reason. If a non-Elk Block member attempts to sell crack within their territory, either on their own, or in conjunction with a rival gang, they will be summarily dismissed from the area and, likely, physically assaulted, stabbed, or shot. Rival gang members have been assaulted, stabbed or shot if they were seen in Elk Block territory, even if they were not dealing drugs. By tightly controlling their defined geographic area, Elk Block members maintain an exclusive territory within which only Elk Block members can distribute their crack cocaine.
For the vast majority of Elk Block gang members, the sale of crack cocaine is their sole source of income. Some of the more senior members of Elk Block act as crack cocaine suppliers for the younger members, who sell crack cocaine on the streets, thereby insulating somewhat the more senior members of Elk Block from exposure to criminal liability. When the younger members sell the crack cocaine, they keep a portion of the proceeds as a profit for themselves and use the balance to buy more crack cocaine from the senior members of Elk Block. The senior members of Elk
Block routinely pool their money and make, or arrange for others to make, trips to New York City on a regular basis to obtain additional quantities of crack cocaine. Elk Block gang members are expected to project a violent attitude in order to ensure that the gang's territory is protected. They are also expected to retaliate with acts of violence when rival gang members commit acts of violence against one or more Elk Block members. The Elk Block members believe that if this projection of violence and strong retaliation when acts of violence are committed against one ...