United States District Court, W.D. New York
REPORT, RECOMMENDATION AND ORDER
H. KENNETH SCHROEDER, Jr., 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.
The defendant, Terrance Baylor ("the defendant"), is charged in a multi count indictment with having violated Title 21 U.S.C. §§ 841(a)(1) and 856(a)(1) (Counts 1 and 2), Title 18 U.S.C. §§ 922(g)(1) and 924(c)(1) (Counts 2 and 4) along with a forfeiture count pursuant to Title 18 U.S.C. §§ 924(d) and 3665 and Title 28 U.S.C. § 2461(c). The defendant has filed a motion seeking to "suppress any evidence that the government would seek to use against him at trial found pursuant to a search of 165 Box Street in Buffalo, New York, which was defendant's residence." Dkt. #40, p. 4, ¶ 13 The defendant has also filed a motion seeking to suppress statements allegedly made by him to law enforcement officers on the basis that such statements "were not preceded by the requisite so-called Miranda Warnings' or other constitutional safeguards such that [his] statements were unlawfully obtained." Dkt. #29, p. 12, ¶ 32.
The government has filed its opposition to the defendant's motions. Dkt. #s 20 and 41.
Oral argument on the defendant's motions was heard by this Court on December 4, 2013, and thereafter, this Court issued an Order directing that the "notes of the informant which served as a partial basis for the issuance of the search warrant for 165 Box Street, Buffalo, New York on February 7, 2012" by the Buffalo City Court Judge be produced to this Court for an in camera review in resolving the defendant's motion to suppress physical evidence. Notes made by Acting Buffalo City Court Judge Jeffrey F. Voelkl were delivered to this Court along with a covering Memorandum on December 13, 2013 pursuant to the aforesaid order. The matter was then taken under advisement by this Court.
On February 7, 2012, Lt. Paul R. Delano of the Buffalo Police Department ("BPD") and a confidential informant ("CI") appeared before the Hon. Jeffrey F. Voelkl, Acting Buffalo City Court Judge, for purposes of obtaining a search warrant authorizing a search of the defendant's residence located at 165 Box Street, Buffalo, New York. Lt. Delano submitted a sworn affidavit in support of the warrant application, and the informant was placed under oath by Judge Voelkl and provided "in camera testimony" in support of the warrant application. Dkt. #29, Exhibit A attached thereto. Judge Voelkl made "short hand" notes setting forth the substance of the CI's sworn testimony given in support of the search warrant application seeking a search warrant authorizing the search of the defendant's residence located at 165 Box Street, Buffalo, New York. These notes, reviewed by this Court in camera, reveal that the CI knew the defendant for a number of years and had purchased drugs from him at his residence located at 165 Box Street, Buffalo, New York. Reference is also made in the judge's notes to a "defaced firearm" and "guns" "at [the] house." Lastly, the CI testified that he/she had purchased "crack" on recent specified days from the defendant. The sheet on which the judge's notes were written was signed by the CI.
DISCUSSION AND ANALYSIS
1. Suppression of Physical Evidence:
In his motion seeking "suppression of physical evidence, " the defendant has failed to provide an affidavit setting forth factual data supporting his claim of lack of probable cause for the issuance of the search warrant for his residence at 165 Box Street, Buffalo, New York. Instead, all that is submitted is the speculation of defense counsel opining that "the informant was not sufficiently reliable and had no basis of knowledge regarding the subject matter of the testimony offered before the City Court Judge." Dkt. #40, p. 5, ¶ 15. The basis for his belief is found in the defense attorney's statement that "review of the material disclosed to date, conversations with the defendant, an independent investigation into this matter reveals that the informant in this matter may have been a former girlfriend of the defendant against whom an Order of Protection was issued in the defendant's favor." Dkt. #40, p. 3, ¶ 5. Such speculation is legally insufficient to support a motion to suppress evidence or warrant a suppression hearing.
As the Court of Appeals for the Second Circuit has stated:
A plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden. "[W]here [the] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.... [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). In particular, where the officer requesting the search warrant relies on an informant, the magistrate's role is to examine the totality of the circumstances and to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for... ...