The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(c) (Docket No. 2). The instant matter before the Court is the defendant's motion (Docket No. 36) reconsidering the Report & Recommendation (Docket No. 35) issued in this case recommending denial of defendant's motion to suppress (see Docket No. 20). Familiarity with that Report is presumed.
The original defense motion to suppress was filed on April 11, 2011(Docket No. 20). The Government filed responding papers (Docket No. 27, Gov't Response (with exhibits), dated June 30, 2011; see also Docket No. 26, Government Response (without exhibits), dated June 20, 2011). The Court ordered the Government to produce in camera the notes and records of the Jamestown City Court Judge that issued the search warrant at issue here (Docket No. 28), and the Government produce those records on August 17, 2011. On September 23, 2011, this Court ordered the Government to produced to defendant a redacted version of the search warrant transcript and warrant application, redacting the name of the Government informant (Docket No. 32). An evidentiary hearing was set for October 20, 2011 (id.), but not held. The Government argued then that a hearing was not necessary (see also Docket No. 33, Gov't Atty. Aff. ¶ 4) while defendant argued that he had not yet seen the in camera materials (text minute entry, Oct. 20, 2011), noting that defendant obtained the redacted version of the transcript on October 24, 2011 (Docket No. 36, Def. Atty. Affirm. at 1 n.1). The Government argued that this motion should be decided upon the search warrant, warrant application, and in camera testimony, that the warrant ultimately was issued by a neutral and detached magistrate (Docket No. 33, Gov't Atty. Aff. ¶¶ 5, 4).
This Court, without conducting an evidentiary hearing, rendered the Report, finding that, based on the totality of the circumstances presented in this case, there was probable cause to issue the search warrant (Docket No. 35, Report & Rec. at 6). The Report did not consider the Government's alternative argument for good faith reliance on the warrant under United States v. Leon, 468 U.S. 897 (1984) (id.) and found that the informant's information was not stale to vitiate the warrant (id. at 6-7).
The motion for reconsideration was argued on January 24, 2012, and that motion then was deemed submitted (Docket No. 38).
Defendant is charged with manufacture of marijuana, in violation of 21 U.S.C. §§ 841(a), (b)(1)(D), separate counts for possession of marijuana and cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 844(a). He is also charged with using premises in Jamestown, New York, for the purpose of manufacturing and distributing marijuana, in violation of 21 U.S.C. § 856(a)(1). Defendant is also charged with possession of a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1). (Docket No. 1, Indict.)
On March 11, 2010, Judge John LaMancuso*fn1 of Jamestown City Court issued a search warrant for the upper apartment of 96 Water Street, Jamestown (Docket No. 20, Def. Atty. Affirm. at 4 & n.3, Exs. B, C). Later that day, officers from the Southern Tier Regional Drug Task Force executed a search warrant on the upper apartment of 96 Water Street, Jamestown, New York, defendant's residence. There, the officers recovered marijuana plants, plastic bags containing a substance later determined to be cocaine base, plastic baggies containing marijuana, a .22 caliber derringer with five rounds of ammunition, a grinder and digital scale. (Docket No. 13, Gov't Response at 1-2.)
Defendant moved to suppress the search warrant issued by the Jamestown City Court to the Southern Tier Regional Drug Task Force and suppress all evidence flowing from that warrant (Docket No. 20, Def. Atty. Affirm. at 1) and sought a suppression hearing (id. at 1-2).
Defendant argues that a confidential informant was the only source of incriminating information to justify the warrant, without any investigation to corroborate the informant's information (id. at 5). There was no indication that contraband was purchased, sold, or used, or field tested (id.). He concludes that the totality of the circumstances did not support a finding of probable cause to issue a search warrant for the 96 Water Street upper apartment (id. at 6). No description of Jose R. Caceres was offered, there was no summary of the interior of the apartment, or any indication of how the informant came about this information or the informant's reliability (id. at 6-7). Since there was no indication as to when the informant came about his or her information, defendant argues that it is potentially stale and not sufficient basis for a search warrant (id. at 7-8).
The Government responds, first, that the search warrant was supported by probable cause, here based on the personal knowledge of the affiant police officer, Detective Daniel Johnson, and the oral testimony of Johnson and the confidential informant before the city court judge (Docket No. 27, Gov't Response at 4, Ex. 1). Alternatively, the Government argued that, if the warrant was not supported by probable cause, the officers executing it acted in good faith, see United States v. Leon, 468 U.S. 897 (1984) (id. at 5-8).
In Camera Inspection of Warrant Application
The application for the search warrant was based upon the personal knowledge of applicant Detective Dan Johnson and information obtained from a confidential informant who testified before the Jamestown City Court Judge (see Docket No. 27, Gov't Response at 2. Ex. 1; see also Docket No. 20, Def. Ex. B). Detective Johnson testified that an informant had given Johnson specific information about a large marijuana growing operation at defendant's residence, giving details about the height of the plants, the power supply, and irrigation. Detective Johnson also stated that he believed that this marijuana operation was part of defendant's son's operation and that the son had a pending prosecution in state court. Detective Johnson stated that the informant had come forward voluntarily. Johnson stated that he had not been in defendant's residence ...