United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, Jr., Chief District Judge.
By text order dated January 17, 2013, this case was referred to United States Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). ECF No. 8. The Second Superseding Indictment in this case alleges that Defendants Otis Willis ("Willis") and Tiffany St. Denis ("St. Denis") conspired to engage in sex trafficking of minors in violation of 18 U.S.C. § 1594(c); engaged in sex trafficking of a minor in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(2) and 2, and further alleges that Defendant St. Denis distributed cocaine to a minor in violation of 21 U.S.C. § 859(a). ECF No. 73.
St. Denis' Motion seeks to suppress evidence seized from a Cricket Wireless phone as the result of an August 9, 2012 search warrant, to suppress evidence seized from 495 Bay Street pursuant to an August 23, 2012 search warrant for that location, and to suppress any statements she made on that date to law enforcement. St. Denis and Willis both seek to suppress evidence of two photographic identification procedures. ECF Nos. 17, 80, 116, 117. Magistrate Judge Payson held a suppression hearing on January 10 and 14, 2014 (ECF Nos. 92, 93) during which Investigator Brian Tucker of the Rochester Police Department and Special Agent Barry Couch of the Federal Bureau of Investigation were called to testify by the government. Id. The Defendants did not present any witnesses. Id. On November 5, 2014, Magistrate Judge Payson issued her Report and Recommendation ("R&R") (ECF No. 126), which recommends the denial of the Defendants' suppression motions. After receiving extensions of time, St. Denis filed her objections to the R&R on January 29, 2015 (ECF No. 148), and by letter dated February 6, 2015, Willis joined in those objections as they relate to the issue of identification. ECF No. 150. The Government filed their response on February 23, 2015. ECF No. 151.
This Court must conduct a de novo review of those portions of the R&R to which objections have been made. See 28 U.S.C. § 636(b)(1)(C). In doing so, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. As part of this review, the Court has considered all of the parties' submissions to date, as well as the transcript of the suppression hearing. Based upon that de novo review, I find no basis to alter, modify, or reject Magistrate Judge Payson's thorough and well-reasoned R&R.
I. Motion to Suppress Evidence from 495 Bay Street
Magistrate Judge Payson recommended denying St. Denis' motion to suppress evidence recovered during the execution of a search warrant at 495 Bay Street on two separate grounds. First, Judge Payson determined that the challenged warrant was supported by sufficient probable cause that was not stale, and second, she determined that even if the warrant was somehow deficient, that the executing officers relied on that warrant in good faith, and therefore the exclusionary rule would be inapplicable pursuant to United States v. Leon, 468 U.S. 897 (1984).
While St. Denis has objected to Magistrate Judge Payson's finding that the warrant was supported by sufficient probable cause and not stale, she has not objected to the finding that the executing officers relied on the warrant in good faith. As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of that point. Fed. R. Crim. P. 59. ("Failure to object in accordance with this rule waives a party's right to review.") Since there is no objection regarding the Leon issue, I adopt Magistrate Judge Payson's finding on this issue. However, even if I were required to review the Leon issue de novo, there is simply no evidence in the record to suggest that the officers executing the search warrant did not rely on the issued warrant in good faith, nor is there any evidence at all to suggest that Magistrate Judge Payson was misled or that she wholly abandoned her judicial role, or that the warrant was so lacking in probable cause or facially deficient to render the officers' reliance on the warrant unreasonable. Leon, 468 U.S. at 923. As a result, St. Denis' motion to suppress evidence seized as a result of the search warrant executed at 495 Bay Street, Rochester, New York must be denied.
Even if Leon's good faith analysis were removed from the equation, I also agree with Magistrate Judge Payson's determination that the challenged search warrant was indeed supported by probable cause that was not stale.
Judges who issue warrants must answer the "commonsense, practical question whether there is probable cause' to believe that contraband or evidence is located in a particular place, " Illinois v. Gates, 462 U.S. 213, 230 (1983), and the law recognizes that probable cause "does not demand certainty but only a fair probability that contraband or evidence of a crime will be found." United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004). In reviewing a probable cause determination, the Court gives "due weight to inferences drawn from those facts by resident judges and law enforcement officers, " United States v. Wilson, 699 F.3d 235, 242 (2d Cir. 2012) (internal quotation marks and alterations omitted), as "courts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not." Gaskin, 364 F.3d at 457. Further, reviewing courts "must accord considerable deference to the probable cause determination of the issuing magistrate." United States v. Clark, 638 F.3d 89, 93 (2d Cir. 2011) (quoting Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007)).
As Judge Payson pointed out, the challenged affidavit describes information provided by a minor who lived at 495 Bay Street, and who stated that St. Denis posted advertisements seeking to prostitute the minor while inside that location, and did so by using a cellular phone and laptop computer. In addition, the minor related that the laptop was located in 495 Bay Street. These facts provide sufficient probable cause to believe that evidence of sex trafficking activities - including the laptop - would be found at 495 Bay Street.
I also reject St. Denis' argument that the information to support this probable cause finding was stale. While it is true that the last time the minor was inside 495 Bay Street was at the end of July 2012, and about a month elapsed between that time and the August 23, 2012 search warrant affidavit, that lapse of time is not too great to dissipate the probability that evidence of a crime would be located at 495 Bay Street. A laptop computer is not something that is "temporary in nature or likely to dissipate over the intervening time, " United States v. LaMorte, 744 F.Supp. 573, 576 (S.D.N.Y. 1990), and I therefore conclude, as did Judge Payson, that the approximately one month gap of time did not render the information in the affidavit stale. But again, even if the information were stale, there is no information to suggest that the executing officers did not rely on the warrant in good faith, and the Leon doctrine would make suppression inapplicable in this situation - again, a determination that Magistrate Judge Payson made, and that St. Denis has not objected to.
Because the warrant was supported by sufficient probable cause and was not stale, and because there is no evidence to suggest that the executing officers did not rely on the warrant in good faith, St. Denis' motion to suppress evidence ...