Opinion
1:19-CR-00155 EAW
2021-10-04
UNITED STATES of America, v. Deshema CLARK, Defendant.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Currently pending before the undersigned is a motion to suppress filed by defendant Deshema Clark ("Clark"), seeking suppression of evidence recovered from the search of her home at 164 Parkridge Avenue in Buffalo, New York ("164 Parkridge") on October 9, 2019. (Dkt. 268). For the following reasons, Clark's motion to suppress is denied.
BACKGROUND
Clark, along with her co-defendants, is presently charged in a 24-count second superseding indictment. (Dkt. 106). Clark is charged in three counts: narcotics conspiracy in violation of 21 U.S.C. § 846 (Count 1); maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 23); and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2 (Count 24). (Id. ). During the search of 164 Parkridge on October 9, 2019, law enforcement recovered marijuana, and also obtained statements from Clark and searched her cellphone. (Dkt. 268 at ¶ 6).
Clark has filed a separate motion to suppress her statements and the evidence obtained from her cellphone (Dkt. 189; see also Dkt. 279; Dkt. 297), which is currently pending before the Court.
Clark and her co-defendants filed pretrial motions in February 2020. As part of her pretrial motions, Clark sought production of the search warrant application executed on October 9, 2019, at her residence at 164 Parkridge. (See Dkt. 189). At oral argument on Defendants’ pretrial motions on May 20, 2021 (Dkt. 229), the Court ordered the government to provide to Clark a copy of the search warrant application for 164 Parkridge (Dkt. 230 at 29-30; see also Dkt. 241). The Court further instructed the government that, if there was information it believed should be redacted from the application before providing it to Clark, the government could make an ex parte and sealed submission to the Court. (Dkt. 241). The government submitted ex parte and under seal for the Court's review the search warrant application with proposed redactions and an affidavit in support of the proposed redactions, which the Court approved. (Dkt. 239; Dkt. 240; Dkt. 241).
Clark filed her motion to suppress on July 21, 2021 (Dkt. 268), and the government filed a response on August 2, 2021 (Dkt. 277). The Court held oral argument on the motion on August 3, 2021, and requested the government to provide it with a copy of the redacted search warrant application for 164 Parkridge. The Court received a copy of the redacted search warrant later that day.
DISCUSSION
Clark contends that evidence obtained during the search of 164 Parkridge must be suppressed as the affidavit submitted in support of the warrant does not provide a substantial basis for a finding of probable cause, including because it does not contain any information indicating that any evidence of a crime would be located at 164 Parkridge, and because information supporting the warrant was stale at the time the warrant was executed. (Dkt. 268 at ¶ 8). Clark further contends that the good faith exception to the exclusionary rule does not apply because the affidavit was so lacking in indicia of probable cause as to render the belief in its existence unreasonable, and the issuing judge was misled by information in the affidavit the affiant knew or should have known was false. (Id. at ¶ 9). In the alternative, Clark moves for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the statements in the warrant. (Id. at ¶ 32).
I. Probable Cause
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "To establish probable cause to search a residence, two factual showings are necessary—first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence." United States v. Travisano , 724 F.2d 341, 345 (2d Cir. 1983).
"[P]robable cause to search a place exists if the issuing judge finds a ‘fair probability that contraband or evidence of a crime will be found in a particular place’ and a federal court must apply a ‘totality-of-the-circumstances analysis’ in pursuing this inquiry." United States v. Ponce , 947 F.2d 646, 650 (2d Cir. 1991) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). When reviewing the validity of a search warrant:
the duty of [the] court ... is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed. A search warrant issued by a neutral and detached magistrate is entitled to substantial deference, and doubts should be resolved in favor of upholding the warrant.
United States v. Rosa , 11 F.3d 315, 326 (2d Cir. 1993) (quotations and citations omitted); Walczyk v. Rio , 496 F.3d 139, 157 (2d Cir. 2007) ("[A] reviewing court must accord considerable deference to the probable cause determination of the issuing magistrate...."). "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit [applying for a warrant] should not take the form of de novo review." United States v. Smith , 9 F.3d 1007, 1012 (2d Cir. 1993) (quoting Gates , 462 U.S. at 236, 103 S.Ct. 2317 ) (alteration in original). "[R]esolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. (quoting United States v. Ventresca , 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ); see United States v. Clark , 638 F.3d 89, 93 (2d Cir. 2011) ("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, 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." (alteration in original) (citations omitted)).
The Court has reviewed the search warrant application for 164 Parkridge (the "search warrant application"), as well as the affidavit in support of the search warrant sworn to by FBI Special Agent Clinton Winters (hereinafter, the "Winters Affidavit"). Agent Winters is an experienced narcotics investigator fully familiar with the facts and circumstances of the investigation of Clark and her co-defendants. (Winters Aff., ¶¶ 2-3). The affidavit includes a section detailing the background of the investigation, including the alleged involvement of Clark's co-defendant Deandre Wilson ("Wilson") in the murders of three individuals on September 15 and 16, 2019. (Id. at ¶¶ 7-12). The affidavit also details law enforcement efforts to identify a black BMW observed through surveillance in the vicinity of Box Avenue on September 15 and 16, 2019, where Wilson and his co-defendants allegedly burned human remains. (Id. at ¶¶ 11-13). Law enforcement subsequently identified this vehicle as a 2011 black BMW sedan, bearing New York license plate HWE4177, and registered to a Stephanie Pearson, who law enforcement know to be Wilson's mother. (Id. at ¶ at 13).
Thereafter, the black BMW was observed in the vicinity of 164 Parkridge. On September 29, 2019, law enforcement located the black BMW parked on the street across from 164 Parkridge. (Id. at ¶ 20). On October 2, 2019, law enforcement observed the black BMW parked on Parkridge Avenue, south of 164 Parkridge. (Id. at ¶ 21). At that time, an unknown black male in a red Lincoln Navigator parked near the black BMW and appeared to check if the door of the BMW was locked. (Id. ). The unknown black male walked up the driveway of 164 Parkridge, and then returned to the black BMW, which he entered and departed the area. (Id. ). Law enforcement obtained a search warrant for the black BMW (id. at ¶ 14), and on October 3, 2019, they stopped the black BMW in front of 164 Parkridge after observing it fail to stop at the stop sign at Parkridge and Hutchinson Avenues (id. at ¶ 15). Deandre Wilson was identified as the operator and sole occupant of the vehicle. (Id. ). Law enforcement also observed the black BMW parked in the driveway of 164 Parkridge on October 4, 2019 (id. at ¶ 22), and parked in the street near 164 Parkridge on October 5, 2019, and on October 7, 2019 (id. at ¶ 23).
As relevant to the murders that occurred on September 15, 2019, law enforcement discovered that on that date, Clark posted to Facebook that she attended a concert at Darien Lake Performing Arts Center. (Id. at ¶ 25). Law enforcement also developed information based on a license plate reader recording the black BMW driving east on the thruway and T-Mobile phone records for a phone belonging to one of the victims, which led Agent Winters to believe, based on his training and experience, that the victim's cellular telephone was located in the black BMW at or near the Darien Lake Performing Arts Center on September 15, 2019, at 8:25 p.m. (Id. ).
In other words, the black BMW—which was observed in the vicinity of the September 15 and 16, 2019 murders being investigated—is also linked to 164 Parkridge because it was observed there on several occasions soon after the murders, including between September 29, 2019 through October 7, 2019. In addition, it appears that Clark was at Darien Lake and in the vicinity of the black BMW and the phone belonging to one of the murder victims on September 15, 2019. Consistent with this information, the warrant permits law enforcement to search 164 Parkridge for evidence of the aforementioned murders. (See Winters Aff., at ¶ 6 (citing 18 U.S.C. § 924(c) (possession and brandishing of a firearm in furtherance of drug trafficking), 18 U.S.C. § 924(j) (murder in furtherance of drug trafficking), and 18 U.S.C. § 844(i) (destruction by fire of a vehicle used in interstate commerce))). The "Schedule of Items to be Searched for and Seized" also lists specific items to be seized, including "[d]ocuments and records regarding the ownership and/or possession of the searched premises ... cellular (mobile) telephones" and:
Any items that are visibly stained with human blood or which test positive for the presence of human blood, or which have evidence of a fire, or which have evidence of gunshot residue, or which have evidence of a struggle, or are consistent with items observed on the surveillance footage from 225 Box Ave., 236 Box Ave., or pole cameras from September 15, 2019 and September 16, 2019, including but not limited to, tarps, adult clothing, children's clothing, sneakers, shoes, gasoline, gas cans, bags, gloves, lighters, hair, fiber trace evidence, and any personal belongings of Miguel Valentin-Colon, Nicole Merced, Dharmyl Roman, and Noelvin Valentin.
(See Search Warrant Application, Attachment B). It also authorizes the swabbing of the premises for DNA and trace evidence from these individuals and from Clark's co-defendants James Reed, Jariel Cobb, Jahaan McDuffie, Destenee Bell, and Wilson. (Id. ). Additionally, the search warrant application references violations of the laws regarding drug trafficking. (See Winters Aff., at ¶ 6; see also Search Warrant Application, Attachment B (citing 21 U.S.C. § 846 )).
The Winters Affidavit states that probable cause exists to believe that a search warrant executed at 164 Parkridge would lead to evidence of narcotics trafficking. (Winters Aff., at ¶ 6). Attachment B to the search warrant application, which is the "Schedule of Items to be Searched for and Seized," cites to 21 U.S.C. § 846, but Attachment B does not specifically list evidence consisting of controlled substances or other evidence of narcotics trafficking. Rather, Attachment B lists evidence of violations of 18 U.S.C. §§ 924(c), 924(j), and 844(i) —in other words, evidence of the murders. Nonetheless, Clark has not argued that the marijuana seized from 164 Parkridge was outside the scope of the warrant, presumably because it was located in area(s) authorized to be searched for evidence of the murders. It is up to Clark to meet her initial burden to articulate a basis for suppression and present a prima facie case for exclusion of evidence. See, e.g. , United States v. Bayless , 921 F. Supp. 211, 213 (S.D.N.Y. 1996). Since Clark has not raised this issue, and since the record is not sufficiently developed as to each of the items seized and whether they were seized pursuant to the warrant or on some other basis, such as evidence in plain view, the Court specifically does not address whether evidence was seized outside the scope of the warrant.
In response to Clark's argument that the warrant does not contain information relative to her criminal history or that illegal activities occurred at 164 Parkridge, the government cites to cases supporting a probable cause finding even in the absence of information connecting drugs to the premises because drug traffickers frequently maintain at their homes evidence of their illegal activities. (See Dkt. 277 at 6 (citing United States v. Mouson , 16-CR-284, 2016 WL 7188150, at *5 (S.D.N.Y. Dec. 2, 2016) ("drug traffickers frequently maintain at their homes large amounts of cash, drugs, books, ledgers, and other documents evidencing their criminal activities.") and United States v. Jackson , 493 F. Supp. 2d 592, 610 (W.D.N.Y. 2006) (drug traffickers maintain evidence of drug trafficking activities at their homes, and this supports a probable cause finding even in the "absence of any specific information connecting suspected drugs to [those] premises"))). Information connecting narcotics to a specific residence is not necessarily required when the drug trafficking operation—like the one here—is large-scale. (See Search Warrant Application, Attachment C, Exhibit C, at ¶ 6 ("This organization distributes kilogram-level cocaine and heroin/fentanyl, as well as marijuana, and are identified members of the Box Avenue/Cash Money Gang, which is a violent street gang in Buffalo, New York. This investigation has revealed that the organization is moving bulk quantities of cocaine, heroin/fentanyl, and marijuana into the Western New York area.")); United States v. Fama , 758 F.2d 834, 837-38 (2d Cir. 1985) (suggesting that the size of a narcotics trafficking scheme is a factor relevant to the probability that contraband will be located at a drug trafficker's residence). However, a defendant's status as a drug dealer alone does not give rise to a fair probability that evidence of drug trafficking will be found in his or her home. See United States v. Lahey , 967 F. Supp. 2d 698, 712 n.16 (S.D.N.Y. 2013) ("But the question of whether there was probable cause to believe that [the defendant] was a drug dealer is potentially distinct from the question of whether there was probable cause to search his apartment."); United States v. Kortright , No. 10 CR 937, 2011 WL 4406352, at *7 (S.D.N.Y. Sept. 13, 2011) ("[S]tale information ... that [a defendant] dealt drugs on a handful of occasions, combined with ... an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search....").
The search warrant application includes at least some information suggesting Wilson's involvement in a large-scale drug trafficking conspiracy. The Winters Affidavit contains one redacted sentence describing information law enforcement received relating to Wilson's involvement in the narcotics conspiracy. (See Winters Aff., at ¶ 16). Attachment C to the search warrant application, which includes the affidavit submitted in support of the search of 236 Box Avenue on September 25, 2019 (also sworn to by Agent Winters), contains information relating to the alleged drug trafficking activities perpetrated by Reed and Cobb, although there is no specific mention of Wilson. (See Search Warrant Application, Attachment C, at ¶¶ 3, 12-16; see also id. at ¶¶ 15-16 ("Based on the foregoing information, your affiant has probable cause to believe REED and COBB, and others, have been, and continue to be involved in the distribution of bulk quantities of cocaine, heroin/fentanyl, and marijuana," and explaining that although there was no "specific information that narcotics, namely heroin and cocaine, are presently being stored at the above-listed locations ... significant narcotics traffickers such as dealers in large quantities of cocaine, heroin/fentanyl, marijuana, and other controlled substances frequently maintain, at their residence, or other residences" evidence relating to their drug trafficking activities)). Attachment C has as an exhibit the warrant application submitted in support of the search of six residences and three vehicles. (See Search Warrant Application, Attachment C, Exhibit C, at ¶ 5). This warrant, which was signed on September 24, 2019 and sworn to by Agent Winters, provides further information relating to the investigation. Like the warrant application signed on September 25, 2019, this warrant application provides information relating to drug trafficking allegedly perpetrated by Cobb, Reed, McDuffie, and Bell, but again, there is no specific information relating to Wilson's participation in the drug trafficking conspiracy. (See id. at ¶ 23 ("Based on the information provided by the informants, REED, COBB, McDUFFIE, BELL, and others unidentified, have continuously operated a drug trafficking organization since approximately 2005.")). Nor does the search warrant application, or any of the attachments thereto, contain specific information indicating that Clark was involved in the drug trafficking conspiracy allegedly perpetrated by Reed, Cobb, McDuffie, and Bell. While the Winters Affidavit states that Clark is "friends on Facebook" with Cobb (see Winters Aff., at ¶ 26), there is no indication from the warrant that they associated for the purpose of engaging in a narcotics conspiracy.
However, the search warrant signed on September 24, 2019 states that law enforcement found in the hotel room of the murder victims "approximately two kilograms of suspected narcotics," and therefore in Agent Winters's training and experience, the murders that occurred on September 15 and 16, 2019 were related to drug trafficking. (See Search Warrant Application, Attachment C, Exhibit C, at ¶ 54). Further, the same search warrant describes drug trafficking engaged in by Reed, Cobb, McDuffie, and Bell at 211 and 225 Box Avenue, where the black BMW driven by Wilson was seen and where the human remains were burned. (Id. at ¶¶ 59-66). In other words, there is information contained in the search warrant application connecting Wilson to the murders, and also information that the murders were connected to drug trafficking. Based on a totality of the circumstances analysis, the search warrant application and the documents attached thereto arguably connect Wilson to the drug trafficking conspiracy.
Given the information contained in the warrant application relating to the black BMW, and considering the deference to be accorded to the probable cause determination of the issuing magistrate judge, the Court concludes that the search warrant application for 164 Parkridge is supported by probable cause. Rosa , 11 F.3d at 326 ("A search warrant issued by a neutral and detached magistrate is entitled to substantial deference, and doubts should be resolved in favor of upholding the warrant." (quotations and citation omitted)). As explained above, the Winters Affidavit details several occasions on which the black BMW—the same vehicle observed at the scene of the murders on September 15 and 16, 2019—was observed at 164 Parkridge following the murders, including one occasion on which law enforcement positively identified Wilson. Further, law enforcement developed information leading them to believe that the cellphone of one of the murder victims was located inside the black BMW and near Darien Lake on September 15, 2019, where Clark also stated she was on that date. Based on this information, Agent Winters concluded that Wilson regularly stayed at 164 Parkridge, kept and maintained items, such as clothing and a cellular phone or phones, at 164 Parkridge, and based on his training and experience, there was probable cause to believe that evidence of the murders would be found there. (Winters Aff., at ¶ 28; see also Search Warrant Application, Attachment C, at ¶ 18 (based on Agent Winters's training and experience, during the commission of a homicide it is commonplace for blood and other biological material to transfer from the victim's to the offender's body and clothing, and that "it is reasonable to conclude that the victims’ blood was transferred to the offenders’ person and may have been subsequently transferred to the Target Premises to be searched.")); Fama , 758 F.2d at 838 ("A number of cases have ruled that an agent's expert opinion is an important factor to be considered by the judge reviewing a warrant application."). In other words, considering the information law enforcement developed regarding the black BMW and their consistent observation of that vehicle at 164 Parkridge, there was a fair probably that evidence of a crime would be located there.
Clark argues that Agent Winters's statement that Wilson "regularly stayed" at 164 Parkridge is conclusory and not supported by factual allegations in the affidavit, and in fact it is inconsistent with other portions of the affidavit, which detail surveillance at 164 Parkridge and do not indicate that law enforcement saw Wilson there prior to issuance of the warrant. (Dkt. 268 at ¶¶ 15-16, 22). The Court disagrees. The Court raised this issue at oral argument on August 3, 2021, and the government highlighted the surveillance of 164 Parkridge and of Wilson, including law enforcement's observations of the black BMW at or near 164 Parkridge, a stop of Wilson driving the BMW outside of 164 Parkridge, as well as the identification of an unknown black male who fit Wilson's description, walking up the driveway of 164 Parkridge. As further explained above, the Winters Affidavit details law enforcement's observations of the black BMW at or around 164 Parkridge on several occasions following September 15 and 16, 2019, including on October 3, 2019, when they stopped and positively identified Wilson. Given this information, the Court concludes that there was a "fair probability that contraband or evidence of a crime" would be found at 164 Parkridge, see Ponce , 947 F.2d at 650 (citation omitted), and therefore the warrant application for 164 Parkridge is supported by probable cause.
The government also noted that law enforcement had developed information that Wilson was a romantic partner of Clark, and that he regularly stayed at 164 Parkridge, although that information is not contained in the Winters Affidavit.
II. Good Faith Exception
Even if the warrant lacked probable cause and Clark's Fourth Amendment rights were violated when her residence was searched, the Court finds that the evidence would not be suppressed under the good faith exception recognized in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Both Clark and the government address application of Leon to the search warrant for 164 Parkridge. (See Dkt. 268 at ¶¶ 18-23; Dkt. 277 at 11-13).
The exclusionary rule does not automatically operate to suppress the seized evidence. "Indeed, exclusion has always been our last resort, not our first impulse." United States v. Rosa , 626 F.3d 56, 64 (2d Cir. 2010) (quoting Herring v. United States , 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ). There are four circumstances where an exception to the exclusionary rule would not apply and evidence obtained pursuant to a warrant lacking probable cause should be excluded:
(1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; [or] (4) where the warrant is so facially deficient that reliance upon it is unreasonable.
United States v. Moore , 968 F.2d 216, 222 (2d Cir. 1992) (citing Leon , 468 U.S. at 923, 104 S.Ct. 3405 ). "These exceptions reflect the general rule that, ‘[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.’ " United States v. Romain , 678 F. App'x 23, 25 (2d Cir. 2017) (alteration in original) (quoting Herring , 555 U.S. at 144, 129 S.Ct. 695 ). "The pertinent analysis of deterrence and culpability is objective, and our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances." Rosa , 626 F.3d at 64 (quotations and citations omitted).
" ‘The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance’ on an invalidated warrant." Clark , 638 F.3d at 100 (citations omitted). Moreover, as counseled by the Second Circuit, in assessing whether the government has met its burden, a court must consider that "in Leon , the Supreme Court strongly signaled that most searches conducted pursuant to a warrant would likely fall within its protection." Id.
Clark argues that the good faith exception does not apply because of the first and third Leon factors. (Dkt. 268 at ¶¶ 18, 20). As to the first Leon factor, the Court finds that Agent Winters did not "knowingly mislead" the Magistrate Judge. It is the government's burden to establish the good faith of its officers. United States v. Clark , 638 F.3d at 100. On the other hand, to even obtain a hearing on whether a law enforcement affidavit contains knowing or reckless falsehoods, a defendant must make "a ‘substantial preliminary showing’ that a deliberate falsehood or statement made with reckless disregard for the truth was included in the warrant affidavit and the statement was necessary to the judge's finding of probable cause." United States v. Falso , 544 F.3d 110, 125 (2d Cir. 2008) (quoting Franks v. Delaware , 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ). Although Clark disagrees with Agent Winters's statement that Wilson "regularly stayed" at 164 Parkridge, there is support for that statement in the affidavit, including both the identification of Wilson on October 3, 2019 in the black BMW in front of 164 Parkridge and surveillance of his black BMW at the residence on several occasions. Accordingly, Agent Winters’ statement is not misleading, and the first Leon circumstance is not applicable here.
As to the third Leon factor, " Leon instructs that officers cannot reasonably rely on a warrant issued on the basis of an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Clark , 638 F.3d at 103 (internal quotations and citations omitted). "Such a concern most frequently arises when affidavits are bare bones, i.e. , totally devoid of factual circumstances to support conclusory allegations," and "is particularly acute when facts indicate that the ‘bare-bones description ... was almost calculated to mislead.’ " Id. (alteration in original) (quoting United States v. Reilly , 76 F.3d 1271, 1280 (2d Cir. 1996), aff'd on reh'g , 91 F.3d 331 (2d Cir. 1996) ). However, in cases where "thoughtful and competent judges might disagree" as to whether an application establishes probable cause, "the error [is] committed by the district court in issuing the warrant, not by the officers ... execut[ing] it," and the exclusionary rule will not apply. Id. at 104 (internal quotations and citations omitted); see Falso , 544 F.3d at 129.
The search warrant application in this case is not "bare bones," and it is not devoid of facts connecting 164 Parkridge to evidence of a crime. Both the Winters Affidavit, as well as the attachments to the search warrant application, explain the ongoing investigation of Clark and her co-defendants, including Wilson's suspected involvement in a triple-murder on September 15 and 16, 2019. The Winters Affidavit highlights the presence of the black BMW both at the scene of the crime and in connection with one of the victim's cellular telephones, thereby connecting it to the murders under investigation. Further, both the black BMW and Wilson were observed at 164 Parkridge following the murders. In other words, it was reasonable for law enforcement to believe that evidence of a crime—namely, the murders taking place on September 15 and 16, 2019—would be found at 164 Parkridge, and this is supported by Agent Winters's statement that based on his training and experience, during the commission of a homicide it is commonplace for blood and other biological material to transfer from the victim to the offender, which may subsequently transfer to the residence. See Fama , 758 F.2d at 838 (holding that agent's expert opinion "should also be considered as a factor contributing to objective good faith"). Accordingly, the third Leon circumstance is not applicable.
Although Clark has not raised them, the Court has also considered whether the remaining Leon circumstances are applicable, and concludes that they are not. There is no evidence that the issuing Magistrate Judge wholly abandoned his judicial role. Further, the warrant is not so facially deficient that reliance upon it is unreasonable. "In Leon , the Supreme Court observed that ‘a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.’ " Clark , 638 F.3d at 101 (quoting Leon , 468 U.S. at 923, 104 S.Ct. 3405 ). In other words, the fourth Leon circumstance applies when the warrant omits or misstates the place to be searched, or the things to be seized. See Massachusetts v. Sheppard , 468 U.S. 981, 985-86, 988 n.5, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (warrant facially deficient where warrant for narcotics searches was used to authorize search for evidence of a murder); United States v. George , 975 F.2d 72, 78 (2d Cir. 1992) (officers could not reasonably rely on warrant to seize evidence of criminality not limited to the type of evidence or to a particular crime). The warrant for 164 Parkridge does not contain a facial deficiency.
III. Staleness
Clark lastly argues that the information supporting the warrant for 164 Parkridge was stale at the time the warrant was executed. (Dkt. 268 at 8). Specifically, Clark contends that law enforcement suspected Wilson used the black BMW in the commission of a crime on September 15 and 16, 2019, and it was not until approximately two weeks later on September 29, 2019, when law enforcement first saw that vehicle across the street from 164 Parkridge, and the warrant was not signed until October 8, 2019. (Id. at ¶¶ 25-26).
"A warrant may lack probable cause and become ‘stale’ when the evidence supporting it is not sufficiently close in time to the issuance of the warrant." United States v. Serrano , 192 F. Supp. 3d 407, 409 (S.D.N.Y. 2016) (quotations and citation omitted); see also United States v. Raymonda , 780 F.3d 105, 114 (2d Cir. 2015) ("we may conclude that a warrant lacks probable cause where the evidence supporting it is not sufficiently close in time to the issuance of the warrant that probable cause can be said to exist as of the time of the search —that is, where the facts supporting criminal activity have grown stale by the time that the warrant issues" (quotations and citation omitted)). There is "no bright-line rule for staleness ... which must instead be evaluated on the basis of the facts of each case." Id. (quotations and citations omitted). "Two critical factors in determining whether facts supporting a search warrant are stale are the age of those facts and the nature of the conduct alleged to have violated the law," and "when the supporting facts present a picture of continuing conduct or an ongoing activity, ... the passage of time between the last described act and the presentation of the application becomes less significant." United States v. Ortiz , 143 F.3d 728, 732 (2d Cir. 1998) (quotations and citations omitted). "Narcotics conspiracies are the very paradigm of the continuing enterprises for which the courts have relaxed the temporal requirements of non-staleness." United States v. Rowell , 903 F.2d 899, 903 (2d Cir. 1990) (alteration and citation omitted).
Here, approximately three weeks passed between the alleged murders on September 15 and 16, 2019, and the search of 164 Parkridge on October 9, 2019. Law enforcement identified the black BMW soon after obtaining surveillance from the date of the murders, and first identified it outside of 164 Parkridge on September 29, 2019. Clark's home was searched 10 days later on October 9, 2019. As evidenced by the attachments to the search warrant application, during the time period between the murders and the search of 164 Parkridge, law enforcement continued to investigate and gather evidence relating to the murders, including by executing search warrants on September 24 and 25, 2019, and conducting surveillance at 164 Parkridge, where it last observed the black BMW on October 7, 2019—only two days before the search of 164 Parkridge. Considering the ongoing nature of the investigation against the defendants, the approximately three-week period that lapsed between the murders and the search of 164 Parkridge does not render the warrant stale.
CONCLUSION
For the foregoing reasons, Clark's motion to suppress (Dkt. 268) is denied, as is her related request for a Franks hearing.
SO ORDERED.