Opinion
05 Cr. 107 (GEL).
September 19, 2005
OPINION AND ORDER
George Melissas stands accused of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). He brings this motion to suppress the fruits of a search of his residence conducted pursuant to a warrant issued by the Hon. Douglas F. Eaton, United States Magistrate Judge, arguing that probable cause was lacking because the information on which the warrant was based was stale, and that the affidavit supporting the search warrant application omitted material information. The motion will be denied.
The search warrant was issued on February 10, 2004, and the search was conducted on February 11, 2005. The affidavit in support of the search warrant application, submitted by Special Agent Matthew Coleman of the Drug Enforcement Administration ("DEA"), recited that over a period of nine weeks between August and October 2004, a confidential informant of proven reliability made six purchases totaling 87.5 grams of crystal methamphetamine (approximately 61 grams pure) from Melissas at his Greenwich Village residence. All but one of these transactions were recorded or overheard by DEA agents. On one further occasion, on December 2, 2004, the informant again spoke with Melissas, attempting to negotiate a further purchase of four to six ounces (between 113 to 170 grams) of crystal methamphetamine. On that occasion, however, a transaction was not consummated, because "Melissas explained that he did not have enough methamphetamine on hand." (Matthew Coleman Aff. ¶ 7(g).) During this conversation, Melissas further explained that he received supplies from his source by Federal Express, that he recently purchased an $80,000 vehicle, and that he had a gun. (Id.)
There can be no doubt that if the search warrant had been sought on December 3, 2004, any reasonable magistrate judge would have found probable cause to issue the warrant. The affidavit establishes that law enforcement officers had conducted surveillance of six purchases of methamphetamine from Melissas at his apartment over the course of nine weeks. Although the conversation on December 2 failed to produce an additional sale, Melissas confirmed that he was engaged in an ongoing drug business, boasted of his profits, and stated that he could not sell the quantity of drug that the informant wanted, because he did not have "enough methamphetamine on hand" — implying that he did have some. Moreover, he advised that he possessed a gun. In light of the fact that he conducted his drug business from his apartment, it would be logical to infer that the gun would be kept there, to protect Melissas and the drugs and money he possessed. A reasonable person would surely conclude from this evidence that there was "a fair probability" that evidence of narcotics dealing would be found at Melissas's apartment. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
Melissas points out, however, that the warrant was not sought on December 3, 2004, but on February 10, 2005, more than two months later. Accordingly, he argues that the evidence in the affidavit was too stale to support a conclusion that probable cause still existed at that time. This argument must be rejected. Probable cause is "a commonsense, practical question," "turning on the assessment of probabilities in particular factual contexts." Id. at 230, 231. A reviewing court must afford great deference to the issuing magistrate's judgment that probable cause exists, United States v. Jacobetz, 955 F.2d 786, 803 (2d Cir. 1992), and must affirm if the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. Jones v. United States, U.S. 362 U.S. 257, 271 (1960); see also Gates, 462 U.S. at 238-39.
Deciding whether the evidence justifies a current finding of probable cause or is too stale is simply an aspect of this commonsense determination by the magistrate. The finding of probable cause by the experienced magistrate judge in this case cannot be faulted. The Second Circuit has identified "[t]wo critical factors" in determining whether the evidence in a search warrant application is stale: the time elapsed between the evidence and the application, and the type of crime involved.United States v. Ortiz, 143 F.3d 728, 732 (2d Cir. 1998). The age of the information has to be assessed in light of the nature of the criminal activity suspected. In the case of typically ongoing criminal conduct such as narcotics conspiracies, "the passage of time between the last described act and the presentation of the application becomes less significant."United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988) (internal citations omitted). Courts have accordingly found probable cause to remain current in narcotics cases even where the gap between the most recent information and the search was substantial. United States v. Singh, 390 F.3d 168, 181-82 (2d Cir. 2004) (finding that lapse of twenty months between information in affidavit and search warrant application was not stale); United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (finding no staleness despite 18 months between informant's statement and wiretap); United States v. Beltempo, 675 F.2d 472, 476-79 (2d Cir. 1982) (elapsed time of two months); United States v. Enoa, 1993 WL 404154 (KTD), at *2 (S.D.N.Y. Oct. 7, 1993) (elapsed time of four months). As the Second Circuit has held, "narcotics conspiracies are the very paradigm of the continuing enterprises for which the courts have relaxed the temporal requirements of non-staleness." Rowell, 903 F.2d at 903 (internal citations omitted).
Of course, there is no simple formula for determining staleness, and the fact that other courts have found probable cause still to exist after two months or more on the particular facts presented in other cases does not mean that the evidence here automatically passes muster. However, a review of the affidavit demonstrates that the magistrate's determination that probable cause continued to exist was appropriate. This is not a case where some isolated observation indicated potential criminal activity at a location which was not searched until much later. Rather, the confidential informant made six purchases over an extended period of time involving a substantial quantity of drugs. That the observed narcotics activity continued for over nine weeks from August through the very end of October 2004 by itself supports an inference that the activity would continue for a substantial period. Moreover, Melissas's own words to the informant, as recorded or overheard by law enforcement officers and reported in the affidavit, confirmed that his sales of amphetamine from his apartment were not isolated or sporadic events, but constituted a regular way of doing business, which was repeatedly described by Melissas to the informant. The informant observed a safe in the apartment in which drugs and proceeds were kept, as well as other narcotics paraphernalia. There is thus every reason to believe that the sale of drugs from the apartment was a continuing enterprise that would reasonably be likely to continue into February 2005.
Nor does the incident in December undermine this conclusion. On the contrary, as reported in the affidavit, the incident confirmed that Melissas continued to operate his drug business as usual. Although a sale was not consummated on that occasion, Melissas did not indicate that he had ceased doing business, or had changed his location or method of doing business, but instead indicated only that he was low on methamphetamine and could not at that time complete a transaction of the size proposed by the informant. Significantly, Melissas's statement that he did not have "enough" of the drug implied that he continued to possess a store of illegal substances at that very moment, and the logical inference under all the circumstances was that those substances would be found at Melissas's apartment. Accordingly, the magistrate judge had every reasonable basis for concluding that there remained "a fair probability that contraband or evidence of a crime [would continue to] be found in [Melissas's apartment]" as late as February 2005. Gates, 462 U.S. at 238.
Defendant relies on United States v. Wagner, 989 F.2d 69, 74 (2d Cir. 1993), where the Second Circuit suppressed the evidence of a search from a warrant issued six weeks after a sale of narcotics. However, the Second Circuit also specifically noted that the warrant in Wagner was stale because the affidavit referenced solely a one-time purchase of narcotics, and that "[f]acts of past criminal activity that by themselves are too stale can be sufficient if the affidavit also establishes a pattern of continuing criminal activity so there is reason to believe that the cited activity was probably not a one-time occurrence." Id. at 75.
Melissas goes on, however, to argue that the account of the December 2 meeting between the informant and Melissas was set forth in a misleading way in the affidavit, and that if the full account of that meeting had been provided, the magistrate judge might well have reached a different conclusion. Accordingly, he seeks a factual hearing under Franks v. Delaware, 438 U.S. 154 (1978), at which the Court could decide whether the alleged omissions from the affidavit were made intentionally or recklessly. There is no basis for such a hearing. Melissas's sole evidence for his claim that material information was omitted from the affidavit is the internal agency report of the conversation prepared by the agents. As might be expected, the report is more extensive than the account of the meeting contained in the affidavit. Nevertheless, the details omitted from the affidavit do not materially alter the conclusions set forth above. In the report, the agent states that Melissas told the informant that he needed 48 hours notice to obtain the drugs requested by the informant, and complained of problems with his supplier, but nothing in the report suggests that Melissas had ceased doing business, or planned to cease doing business, or believed that he would not be able to obtain or sell drugs in the future. To the contrary, the full report evidences Melissas's acknowledged profession as a seller of methamphetamine. There is no reasonable likelihood that the magistrate judge would have, or should have, reached a different conclusion had the entire report been provided, or that any additional information exists outside of the report that would derogate from the conclusion that probable cause existed. Additionally, there is no reason to believe that the agents would have any illicit reason to omit details that undermine the magistrate's probable cause determination.
Accordingly, for the reasons stated above, the motion to suppress evidence is denied.
SO ORDERED.