The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. ##2 and 29.
Presently pending is the defendant's motion for reconsideration of this Court's prior Decision and Order (Dkt. #20) denying defendant's request for a Franks hearing and to suppress evidence. Dkt. #26. More specifically, the defendant argues that "the Defense believes that there is enough new information to renew its request for the suppression of evidence due to lack of probable cause and/or conduct an evidentiary hearing." Dkt. #26, p.2. Alternatively, the defendant argues that the portions of the transcript of the proceedings before New York State Supreme Court Judge Timothy Drury that have been redacted or are inaudible would, if made available to the defendant, "overcome the burden of providing enough evidence to be entitled to a Suppression Hearing." Id. Accordingly, the defendant requests that the Court issue an Order directing the government to disclose to the defendant the entire audio recording and un-redacted transcript. The government has filed its response to defendant's motion for reconsideration (Dkt. #30) and oral argument was held on August 11, 2010.
On July 15, 2009, Buffalo Police Department Detective Richard Wagstaff presented a confidential informant to New York State Supreme Court Justice Timothy Drury. Dkt. #14, p.1. The confidential informant was fully identified to Judge Drury, placed under oath and questioned concerning, inter alia, 52 West Balcom Street, Buffalo, New York and the defendant, Isaiah Glover. Id. Copies of the Search Warrant Application and the Search Warrant issued by Judge Drury were attached to the Government's Response. See Dkt. ##14-2 and 14-3. Based on its careful review of the un-redacted transcript and audio tape of the July 15, 2009 proceedings before Judge Drury, the Court notes that the confidential informant provided Judge Drury with information about three additional locations and further that the officers applied for three additional search warrants in addition to the search warrant for 52 West Balcom Street, Buffalo, New York. In support of the Application for the Search Warrant for 52 West Balcom Street, Detective Wagstaff submitted a sworn affidavit and was present when the confidential informant was questioned by Judge Drury. Dkt. #14, p.2; Dkt. #14-2. "Based upon the sworn affidavit of Detective Wagstaff and the sworn testimony of the CI, Judge Drury signed a search warrant authorizing the search of 52 West Balcom, Buffalo, New York (single house), as well as the person of Isaiah Glover for crack cocaine, handgun [sic], ammunition and magazines." Dkt. #14, p.2; see also Dkt. #14-3.
On July 21, 2009, Buffalo Police Department officers and New York State Police officers executed the search warrant issued by Judge Drury at the defendant's residence located at 52 West Balcom Street, Buffalo, New York. Dkt. #14, p.2. During the execution of the search warrant the following items were recovered: mail in the name of the defendant; pieces of identification in the name of the defendant; personal papers; photographs; a scale; over one hundred individually wrapped baggies of crack cocaine; marijuana; a .357 caliber handgun loaded with .38 caliber ammunition; boxes of .357 and .38 caliber ammunition; a Nike shoe box; a backpack which contained the handgun and ammunition; and a Timberland boot with a large amount of crack cocaine stuffed inside. Id. During the execution of the search warrant, the defendant's mother, Wanda Battle, arrived at her home at 52 West Balcom Street and confirmed that Isaiah Glover also lived there with her and further, that the recovered items did not belong to her. Id. at p.3. Thereafter, on December 3, 2009, a Federal Grand Jury sitting in the Western District of New York returned a six-count Indictment charging the defendant with, inter alia, possession and possession with the intent to distribute a mixture containing cocaine base, possession with the intent to distribute marijuana, possession of a .357 Magnum revolver and possession of ammunition, all items recovered during the July 21, 2009 execution of the above-described search warrant. Dkt. #1.
At the time of the execution of the above-described search warrant, the defendant was serving a term of federal supervised release following his release from the Bureau of Prisons relating to a 2004 conviction for possession with the intent to distribute cocaine base. In addition to the six-count Indictment returned by a Federal Grand Jury in December 2009, the defendant also faced a Petition for Offender Under Supervision in connection with multiple violations of the term of his supervised release associated with his 2004 conviction. Specifically, the defendant was charged with thirteen violations of the terms of his supervised release. On January 12, 2010, after a supervised release violation hearing, United States District Judge Richard J. Arcara found the defendant guilty by a preponderance of evidence of all thirteen charges in the violation petition. The thirteen charges all related to the items seized on July 21, 2009 from 52 West Balcom Street and the criminal charges that were subsequently filed in New York State Court, including possession of controlled substances, possession of a weapon and possession of ammunition. On March 31, 2010, Judge Arcara revoked the defendant's term of supervised release and sentenced the defendant to a term of imprisonment of 24 months in the custody of the Bureau of Prisons for the supervised release violations.
The defendant, Isaiah Glover, is charged in a six-count Indictment with having violated Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B) (Count 1); Title 21, United States Code, Section 844(a) (Count 2); Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(D) (Count 3); Title 18, United States Code, Section 924(c)(1) (Count 4); and Title 18, United States Code, Sections 922(g)(1) and 924(a)(2) (Count 5). Dkt. #1. The defendant also faces a forfeiture count (Count 6) pursuant to Title 18, United States Code, Sections 924(d)(1) and 3665, and Title 28, United States Code, Section 2461(c). Dkt. #1.
On February 9, 2010, the defendant filed an omnibus motion for discovery, a motion for a Franks hearing and a motion to suppress evidence. Dkt. #8. With respect to the defendant's omnibus motion for discovery, on April 13, 2010, this Court issued its Decision and Order granting in part and denying in part defendant's motion for discovery. Dkt. #19. In his motion for a Franks hearing and to suppress evidence, the defendant claimed that Detective Wagstaff's affidavit submitted in support of the search warrant application for 52 West Balcom contained false, material information upon which Judge Drury relied in issuing the search warrant, to wit: that the information in Detective Wagstaff's affidavit was based on personal knowledge. The defendant then argued that during the subsequent supervised release hearing described above, Detective Wagstaff testified "that he did not have any personal knowledge whatsoever to verify anything the informant asserted. He went on to testify that he did nothing to investigate any of the allegations of the informant." Dkt. #8, p.4. Therefore, the defendant concluded that it would have been impossible for Detective Wagstaff to have personal knowledge of any of the information supplied by the confidential informant. Id. In addition, the defendant further argued that Detective Wagstaff testified that he had never had any contact with this informant before and had done nothing to establish the confidential informant's reliability. Id. Based on the foregoing, the defendant asserted that the following statement in paragraph 2 of Detective Wagstaff's affidavit was also false, to wit: "2. I have information based upon statements made to me by a reliable informant (insert brief summary of fact to be testified to by informant and police applicant in camera[)]." Dkt. #14-2. Indeed, the defendant argued that,
[i]n the warrant application, Officer [sic] Richard Wagstaff stated that his information was based on statements made to him by a 'reliable informant.' That statement was untrue. This informant had never provided information to this officer in the past. The officer did nothing to verify the reliability of this informant; no controlled buys, no surveillance, no check on the owner of the house, no question of neighbors, no record check on the owner, no anything.
Dkt. #8, pp.5-6. In addition to his request for a Franks hearing based on the allegedly false information described above, the defendant also sought the suppression of all evidence seized pursuant to the search warrant issued by Judge Drury. Moreover, the defendant requested that this Court issue an Order directing the government to turn over any notes or transcripts of the in camera proceeding before Judge Drury. The defendant further reserved the right to supplement his motion to suppress once the transcripts and/or notes were disclosed based on lack of probable cause.
In its response, the government argued that contrary to the defendant's conclusory allegations, Detective Wagstaff's affidavit did not contain any language pertaining to how long he knew the confidential informant. Instead, the government explained, the basis for Detective Wagstaff's conclusion regarding the reliability of the informant was fully described on page 1, paragraph 2 of the search warrant application wherein the detective stated:
CI has purchased crack cocaine from [sic] above location between 7/5-7/15/2009 on several occasions. CI has dealt with crack cocaine over five years. CI is familiar with the way crack cocaine looks like [sic], its affect on people, it's [sic] smell and the way it's [sic] packaged for sale.
Clearly, there were not any 'false statements' by the detective. Based upon his interview with the informant, Detective Wagstaff merely assessed the information provided by the CI and the CI's statements 'were believed or appropriately accepted by the affiant as true' before they were included in the search warrant affidavit.
Dkt. #14, pp.7-8. In addition to the foregoing, the government asserted that subsequent to the preparation of the search warrant application, the confidential informant appeared in camera for examination by Judge Drury. Judge Drury placed the confidential informant under oath and examined the confidential informant regarding the subject of the proposed search warrant. Thereafter, the government concluded, "[a]fter conducting his examination, Judge Drury was satisfied with both the reliability of the CI and that probable cause existed for the issuance of the search warrant," Dkt. #14, p.8.
On April 13, 2010, this Court issued its Decision and Order denying defendant's request for a Franks hearing. Dkt. #20. In its Decision and Order this Court stated,
[h]ere, assuming arguendo, that the statements in Detective Wagstaff's affidavit were false and misleading, and under Salameh, those statements are set aside, this Court finds that there was sufficient basis for Judge Drury to find probable cause to support the issuance of the search warrant. As detailed above, the confidential informant appeared before Judge Drury, Judge Drury questioned the confidential informant under oath and therefore Judge Drury was able to make his own, independent determination as to the reliability of the information supplied by the confidential informant. Thus, the remaining portions of Detective Wagstaff's affidavit support a finding of probable cause. Based on the foregoing, defendant's request for a Franks hearing is denied. In addition to his request for a Franks hearing, the defendant seeks the suppression of all the evidence seized pursuant to the search warrant. Because the sole basis for the suppression of the seized evidence is the assertion that the search warrant was issued based on the intentionally false and misleading information supplied by Detective Wagstaff and further, because that issue has been resolved as aforesaid, there is nothing in the record before this Court to support the holding of a suppression hearing or to warrant the suppression of the seized evidence.
In addition to his request for a Franks hearing and to suppress evidence, the defendant sought an Order from this Court directing the government to turn over any notes or transcripts of the in camera proceeding that took place between the confidential informant and Judge Drury. This Court granted the defendant's request stating,
[w]hereas, in connection with the in camera proceeding, the confidential informant responded, under oath, to questions posed by Judge Drury and provided information in support of the application for the above-referenced search warrant and whereas Judge Drury may have made an audio tape recording, a transcript and/or personal hand written notes concerning the in camera proceeding, the government is hereby directed to provide the defendant with a copy of any such audio tape recording, transcript or hand written notes, after redacting any personally identifying information of the confidential informant.
Following this Court's Decision and Order on defendant's omnibus motion for discovery (Dkt. #19) and Decision and Order on defendant's motion for a Franks hearing and to suppress evidence (Dkt. #20), the parties appeared before United States District Judge Richard J. Arcara on May 7, 2010 to set a trial date. At that time, the defendant requested that the government comply with his request for the notes and/or transcripts of the in camera proceedings before Judge Drury. Judge Arcara scheduled the matter for a further meeting to set a trial date on June 21, 2010. At that time, the defendant advised Judge Arcara that he would be filing a motion to compel the disclosure of the notes and/or transcripts of the proceedings before Judge Drury. At that time, Judge Arcara referred the matter back to the undersigned for further pretrial proceedings and scheduled the matter for another status conference on July 21, 2010. Thereafter, on June 30, 2010, the defendant filed the instant ...