Appeal from an order of the United States District Court for the Western District of New York (William M. Skretny, J.; Jeremiah J. McCarthy, M.J.) suppressing evidence on the grounds that (1) probable cause did not support a search warrant for the whole of a multi- family dwelling; (2) defendant's post-arrest statement was tainted by the invalid warrant; and (3) the "good faith exception" to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922 (1984), did not apply to the facts of the case. Although the warrant was defective, the good faith exception does apply so that no suppression of evidence was warranted.
The opinion of the court was delivered by: Reena Raggi, Circuit Judge:
Before: SACK, RAGGI, and LYNCH, Circuit Judges.
In this case, in which defendant Will Nelson Clark stands indicted in the United States District Court for the Western District of New York (William M. Skretny, Judge) on two counts of unlawful possession of cocaine base, the United States appeals from a pre-trial order entered on July 16, 2009, suppressing both physical evidence seized pursuant to a search warrant and defendant's post-arrest statement on the grounds that (1) the warrant to search a multi-family dwelling was not supported by probable cause; (2) defendant's statements were tainted by the unlawful search; and (3) the "good faith exception" to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922 (1984), does not apply to the facts of this case. We agree that the search warrant was not adequately supported by probable cause, but we conclude that the good faith exception to the exclusionary rule applies in this case to defeat the motion to suppress. Accordingly, we reverse the challenged suppression order and remand the case for further proceedings consistent with this opinion.
A. The Challenged Search Warrant
On June 10, 2008, detectives with the Niagara Falls Police Department sought and obtained from a city court judge a warrant to search both "the person known as WILL N. CLARK," and the premises at "1015 Fairfield Ave, being a multi family dwelling" for "[c]ocaine and any other controlled substances" as well as a range of physical items indicative of drug dealing. Search Warrant at 1. Although nothing before the issuing judge appears to have indicated the size of the building and whether "multi family" referenced two or twenty distinct residential units, the warrant authorized a search of the entire premises, including "any and all persons present at this location during execution of said search warrant, all rooms, contents of those rooms, including any computers and hard drives of same . . ., hallways, stairways, storage areas, basement, attic areas, closets, any and all locked and secured areas, locked safes or containers and porches to said address." Id.*fn1
In support of this expansive warrant, two detectives swore to an affidavit disclosing that an informant of "unknown reliability"*fn2 had advised police that Clark was selling cocaine at 1015 Fairfield Avenue, a "multi family dwelling," but only to persons previously known to him. Aff. for Search Warrant ("Warrant Aff.") at 2-3. The informant had also stated that Clark had "full control over 1015 Fairfield Ave." Id. at 2. In further support of the warrant, the detectives swore that in the course of numerous surveillances of the subject premises, police had observed defendant Clark "entering and remaining and exercising control at the residence of 1015 Fairfield Ave." Id. In addition, in May 2008, police supervised two controlled purchases of cocaine by the confidential informant from Clark. On the first occasion, after confirming that the informant had no drugs in his possession, police observed him "going directly to the area of 1015 Fairfield Ave, staying for a short period of time, and then retu[r]ning directly back to your deponents" whereupon the informant turned over an "off white chunk substance" that tested as cocaine. Id. On the second occasion, after again confirming that the informant had no drugs in his possession, police observed him "going directly to the area of 1015 Fairfield Ave, entering the front porch area, staying for a short period of time, and then returning directly back to your deponents," where he turned over an "off white chunk substance" that tested as cocaine. Id.
B. The Evidence and Statements Obtained During Execution of the Search Warrant
Police executed the challenged search warrant on June 12, 2008, at which time Clark was present in a downstairs apartment on the 1015 Fairfield Avenue premises. From that apartment, police seized a quantity of drugs, which subsequently tested as cocaine base, approximately $1703 in cash, and various items of drug paraphernalia.*fn3 Clark was promptly arrested and advised of his Miranda rights, whereupon he was shown the seized contraband and asked if it was real. Clark nodded affirmatively and asked, "What am I looking at? 25 or what?" Appellee's Br. at 5.
C. District Court Proceedings
On July 31, 2008, a federal grand jury in the Western District of New York indicted Clark on two counts of drug possession: Count One charges that on June 12, 2008, Clark possessed with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A); Count Two charges Clark with simple possession of more than 5 grams of cocaine base on the same date in violation of 21 U.S.C. § 844(a).
Clark filed a pre-trial motion to suppress the physical evidence seized on June 12, 2008, arguing that it derived from a warrant that was invalid for lack of probable cause, overbreadth, and staleness. He moved to suppress his post-arrest query, arguing that it was tainted by the unlawful search.*fn4
Pursuant to a general referral of all pre-trial matters, Magistrate Judge Jeremiah H. McCarthy issued reports on April 14 and 27, 2009, recommending that the district court suppress both the seized evidence and the post-arrest statement. See Report & Recommendation, United States v. Clark, No. 08-CR-196(S)(M) (W.D.N.Y. Apr. 27, 2009); Interim Report and Recommendation ("Interim R & R") at 2, United States v. Clark, 08-CR- 196(S)(M) (W.D.N.Y. Apr. 14, 2009). The magistrate judge concluded that the warrant was not supported by probable cause to search the whole of the subject multi-family dwelling and that the unlawful search tainted Clark's post-arrest statement. The magistrate judge further concluded that the government could not claim the benefits of the good faith exception to the exclusionary rule because (1) the issuing judge had failed to act as a neutral and detached magistrate, (2) the warrant was facially defective, and (3) the lack of probable cause to search the entire multi-family dwelling was so apparent that police could not reasonably rely on the validity of the warrant. Accordingly, the magistrate judge recommended that the district court suppress the seized physical evidence as the product of an unreasonable search and Clark's post-arrest statement because it was tainted by the search.
After unsuccessfully seeking reconsideration, the government filed objections to the magistrate judge's reports with the district court, which rejected them without discussion in a text order and granted defendant's suppression motion. The government timely appealed, invoking our jurisdiction pursuant to 18 U.S.C. § 3731.
The government submits that the district court erred in ordering suppression of seized evidence and Clark's statements because the challenged search warrant was supported by probable cause and, in any event, Leon's good faith exception to the exclusionary rule applies to this case.*fn5
In considering these arguments, we are mindful that a court reviewing a challenged warrant - whether at the district or appellate level - "must accord considerable deference to the probable cause determination of the issuing magistrate." Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). Such deference derives not only from the law's recognition that probable cause is "a fluid concept" that can vary with the facts of each case, but also from its "strong preference" for searches conducted pursuant to a warrant, Illinois v. Gates, 462 U.S. 213, 232, 236 (1983), and its related concern that "[a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting," United States v. Ventresca, 380 U.S. 102, 108 (1965). Thus, the task of a review ing court is simply to ensure that the "totality of the circumstances" afforded the magistrate "a substantial basis" for making the requisite probable cause determination. Illinois v. Gates, 462 U.S. at 238 (internal quotation marks omitted). When, as in this case, we review a district court's assessment of a search conducted pursuant to a warrant, we apply the clear error standard to its findings of historical fact, but we "analyze de novo the ultimate determination of such legal issues as probable cause and the good faith of police officials in relying upon a warrant." United States v. Smith, 9 F.3d 1007, 1011 (2d Cir. 1993); accord United States v. Gagnon, 373 F.3d 230, 235 (2d Cir. 2004).
Applying these principles to this case, we conclude that, even after deferential review, we cannot identify a "substantial basis" for the issuing judge to have authorized a search of the entire multi-family dwelling at 1015 Fairfield Avenue and all persons in it. At the same time, however, we conclude that defendant's suppression motion should have been denied pursuant to the good faith exception to the exclusionary rule. The record does not support the district court's conclusions that the issuing judge abandoned his neutral and detached role, that the warrant was invalid on its face, or that the lack ...