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United States v. Banks

September 29, 2009


The opinion of the court was delivered by: David N. Hurd United States District Judge



Defendant Andrew S. Banks ("defendant") moves pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C) to suppress evidence seized during the execution of a search warrant for an apartment and during a search of his person incident to his arrest without a warrant. The United States of America ("the Government") opposes defendant's motion. Pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978), a hearing was held on May 28, 2009 in Utica, New York to determine the truthfulness of the factual assertions made in the search warrant application. Following the conclusion of the Franks hearing, additional evidence was received to evaluate the lawfulness of defendant's arrest without a warrant. Decision was reserved.


On August 27, 2007, Special Agent William J. Mayo ("SA Mayo") of the Bureau of Alcohol, Tobacco, Firearms & Explosives applied for a warrant to search Building 5, Apartment 11 ("B5 A11") within the Griswold Heights Public Housing Apartment Complex ("the apartment complex") located in Troy, New York. SA Mayo stated he had reason to believe that located within the apartment was "evidence of the possession of a firearm and/or ammunition by a prohibited person in violation of Title 18, United States Code, Section 922(g)(8) within the Northern District of New York." (See Ex. B to Def's. Mot. to Suppress, Dkt. No. 26-4.) Within the attached affidavit in support of the warrant application, SA Mayo affirmed, inter alia, the following: (1) he had learned from a Confidential Informant ("CI") cooperating with the Troy Police Department that defendant was in possession of several firearms, including two handguns and a .223 caliber rifle; (2) the CI reported that defendant used B5 A11 as a location to store, repair, and clean firearms for others living within the apartment complex; (3) the CI had provided reliable information on past occasions regarding narcotics trafficking; (4) Troy Housing Authority records indicated B5 A11 was registered to Daisy Lind, the mother of defendant's two-month old daughter; (5) defendant was subject to a Order of Protection issued on June 4, 2007, prohibiting him from assaulting, harassing, or threatening Ms. Lind; and (6) on July 8, 2007, a complaining witness reported being menaced with an "AK-47 type rifle" at or near an apartment inside building 13 of the apartment complex. (Id.)

A search warrant was later issued and executed for B5 A11, whereupon federal law enforcement officials seized two firearms, ammunition, and legal documents bearing defendant's name. (Ex. C to Def's. Mot. to Suppress, Dkt. No. 26-5.) Although not physically seized, (see id.), articles of clothing belonging to the defendant were found inside the apartment and subsequently photographed. (Ex. D to Def's. Mot. to Supress, Dkt. No. 26-6, 3.) SA Mayo indicated in his investigative report that the apartment was unoccupied at the time of entry. (Ex. E to Def's. Mot. to Suppress, Dkt. No. 26-7.) According to the inventory report, the search was executed on August 28, 2007, at approximately 7:15 p.m. (Ex. C to Def's. Mot. to Suppress, Dkt. No. 26-5.)

Shortly after the search began, defendant was observed walking towards a group of officers outside the front entrance to B5 A11. Having noticed the presence of law enforcement, defendant identified himself, explained his relationship to Ms. Lind and one of her daughters, and asked about their safety. SA Mayo informed him that everyone was safe and instructed him to leave the area. As defendant was leaving the area, another law enforcement official asked him to return because he had not yet been searched "for weapons." (Hr'g Tr., 60; see also Def's. Decl., Dkt. No. 26-2, ¶12.) After refusing to be searched, Troy Housing Authority Officer Matthew McLaughlin ordered another officer to arrest defendant for trespassing on Troy Housing Authority property and for violating the Order of Protection prohibiting him from harassing Ms. Lind. (Id. at 60, 97.)

Defendant was then handcuffed and searched incident to his arrest. The search of his person revealed a key to the front door for Ms. Lind's apartment. Defendant was thereafter booked and processed at the Troy Police Station prior to his arraignment on August 29, 2007. He was later indicted by a federal grand jury on September 26, 2008 for being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8). (See Indictment, Dkt. No. 20.)


Defendant challenges the validity of the search warrant for Ms. Lind's apartment and the search of his person incident to his arrest without a warrant. First, defendant argues SA Mayo made omissions in his search warrant application that were material to the magistrate's determination of probable cause. Second, defendant contends his arrest was illegal without a warrant.

A. Motion to Suppress Evidence Seized from Ms. Lind's Apartment

The Fourth Amendment to the United States Constitution requires that a search warrant be based upon probable cause. U.S. CONST. amend. IV; see also FED. R. CRIM. P. 41(d). To determine probable cause, an issuing magistrate must consider whether the totality of the circumstances set forth in the warrant application and supporting affidavits establish a "fair probability" that evidence of a crime will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983). Upon review of a decision to issue a search warrant, a magistrate's prior determination of probable cause is afforded great deference, and "any doubt about the existence of probable cause [is resolved] in favor of upholding the warrant." United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998) (citing United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992)).

Generally, the exclusionary rule bars evidence obtained in violation of the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 1691 (1961). However, even if a search warrant is ultimately determined to lack probable cause, evidence will be admissible so long as the law enforcement officials who executed the search "relied on the warrant in 'objective good faith.'" United States v. Cancelmo, 64 F.3d 804, 807 (2d Cir. 1995) (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420 (1984)). The question of an officer's good faith reliance, or lack thereof, "is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 923, n.23, 104 S.Ct. at 3420.

In Leon, the Supreme Court identified four situations where an executing officer's reliance on a search warrant could not have been in good faith: (1) the issuing magistrate was either knowingly or recklessly misled by false information during his review of the warrant application; (2) the issuing magistrate entirely abandoned his judicial role; (3) the officer's affidavit in support of the warrant application was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;" or (4) the warrant application is facially ...

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