United States v. Clark

09-3462-cr
United States v. Clark

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: August 4, 2010 Decided: March 8, 2011)

Docket No. 09-3462-cr

UNITED STATES OF AMERICA,

Appellant,

v.

WILL NELSON CLARK,

Defendant-Appellee.

Before:
SACK, RAGGI, and LYNCH, Circuit Judges.

Appeal from an order of the United States District Court for the Western District of

New York (William M. Skretny, J.; Jeremiah J. McCarthy, M.J.) suppressing evidence on

the grounds that (1) probable cause did not support a search warrant for the whole of a multi-

family dwelling; (2) defendant’s post-arrest statement was tainted by the invalid warrant; and

(3) the “good faith exception” to the exclusionary rule announced in United States v. Leon,

468 U.S. 897, 922 (1984), did not apply to the facts of the case. Although the warrant was
defective, the good faith exception does apply so that no suppression of evidence was

warranted.

REVERSED and REMANDED.

JOSEPH J. KARASZEWSKI, Assistant United States Attorney, on behalf
of Kathleen M. Mehltretter, United States Attorney for the Western
District of New York, Buffalo, New York, for Appellant.

ANGELO MUSITANO, Niagara Falls, New York, for Defendant-Appellee.

REENA RAGGI, Circuit Judge:

In this case, in which defendant Will Nelson Clark stands indicted in the United States

District Court for the Western District of New York (William M. Skretny, Judge) on two

counts of unlawful possession of cocaine base, the United States appeals from a pre-trial

order entered on July 16, 2009, suppressing both physical evidence seized pursuant to a

search warrant and defendant’s post-arrest statement on the grounds that (1) the warrant to

search a multi-family dwelling was not supported by probable cause; (2) defendant’s

statements were tainted by the unlawful search; and (3) the “good faith exception” to the

exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922 (1984), does not

apply to the facts of this case. We agree that the search warrant was not adequately

supported by probable cause, but we conclude that the good faith exception to the

exclusionary rule applies in this case to defeat the motion to suppress. Accordingly, we

reverse the challenged suppression order and remand the case for further proceedings

2
consistent with this opinion.

I. Background

A. The Challenged Search Warrant

On June 10, 2008, detectives with the Niagara Falls Police Department sought and

obtained from a city court judge a warrant to search both “the person known as WILL N.

CLARK,” and the premises at “1015 Fairfield Ave, being a multi family dwelling” for

“[c]ocaine and any other controlled substances” as well as a range of physical items

indicative of drug dealing. Search Warrant at 1. Although nothing before the issuing judge

appears to have indicated the size of the building and whether “multi family” referenced two

or twenty distinct residential units, the warrant authorized a search of the entire premises,

including “any and all persons present at this location during execution of said search

warrant, all rooms, contents of those rooms, including any computers and hard drives of same

. . ., hallways, stairways, storage areas, basement, attic areas, closets, any and all locked and

secured areas, locked safes or containers and porches to said address.” Id.1

In support of this expansive warrant, two detectives swore to an affidavit disclosing

that an informant of “unknown reliability”2 had advised police that Clark was selling cocaine

1
While the scope of the warrant might raise concerns as to both persons and place,
because no evidence seized from third parties is here at issue, we need only consider whether
there was a substantial basis for finding probable cause to search the entire building.
2
The government reiterates on appeal a point made in the district court: that the
informant’s reliability was unknown at the time of his first meeting with police, but thereafter
was corroborated by the police surveillance and two controlled purchases of drugs discussed
in the warrant affidavit.

3
at 1015 Fairfield Avenue, a “multi family dwelling,” but only to persons previously known

to him. Aff. for Search Warrant (“Warrant Aff.”) at 2-3. The informant had also stated that

Clark had “full control over 1015 Fairfield Ave.” Id. at 2. In further support of the warrant,

the detectives swore that in the course of numerous surveillances of the subject premises,

police had observed defendant Clark “entering and remaining and exercising control at the

residence of 1015 Fairfield Ave.” Id. In addition, in May 2008, police supervised two

controlled purchases of cocaine by the confidential informant from Clark. On the first

occasion, after confirming that the informant had no drugs in his possession, police observed

him “going directly to the area of 1015 Fairfield Ave, staying for a short period of time, and

then retu[r]ning directly back to your deponents” whereupon the informant turned over an

“off white chunk substance” that tested as cocaine. Id. On the second occasion, after again

confirming that the informant had no drugs in his possession, police observed him “going

directly to the area of 1015 Fairfield Ave, entering the front porch area, staying for a short

period of time, and then returning directly back to your deponents,” where he turned over an

“off white chunk substance” that tested as cocaine. Id.

B. The Evidence and Statements Obtained During Execution of the Search
Warrant

Police executed the challenged search warrant on June 12, 2008, at which time Clark

was present in a downstairs apartment on the 1015 Fairfield Avenue premises. From that

apartment, police seized a quantity of drugs, which subsequently tested as cocaine base,

4
approximately $1703 in cash, and various items of drug paraphernalia.3 Clark was promptly

arrested and advised of his Miranda rights, whereupon he was shown the seized contraband

and asked if it was real. Clark nodded affirmatively and asked, “What am I looking at? 25

or what?” Appellee’s Br. at 5.

C. District Court Proceedings

On July 31, 2008, a federal grand jury in the Western District of New York indicted

Clark on two counts of drug possession: Count One charges that on June 12, 2008, Clark

possessed with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A); Count Two charges Clark with simple possession of more than 5

grams of cocaine base on the same date in violation of 21 U.S.C. § 844(a).

Clark filed a pre-trial motion to suppress the physical evidence seized on June 12,

2008, arguing that it derived from a warrant that was invalid for lack of probable cause,

overbreadth, and staleness. He moved to suppress his post-arrest query, arguing that it was

3
The fact that the identified items were seized from the downstairs apartment was
disclosed by the government at oral argument on the suppression motion. Although the
record lacks explicit evidence as to the number of residential units located at 1015 Fairfield
Avenue, at several points during the suppression proceedings the government made
statements that suggest there were only two apartments in the building. See Pretrial Motions
Hr’g 22:16-19 (Feb. 19, 2009) (“[T]hey found the defendant in the downstairs . . . they didn’t
get anything from the upstairs . . . .”); id. at 6:16-18 (“If there are two apartments, if he
exercises dominion and control over both apartments, I don’t know what we can say in terms
of he doesn’t have standing.”); id. at 8:21-23 (“And I have a feeling, again, that he basement
would be accessible from either apartment.”). Our focus, however, is on the information
provided to the judge who issued the warrant, not on the information provided to the judge
presented with a suppression motion.

5
tainted by the unlawful search.4

Pursuant to a general referral of all pre-trial matters, Magistrate Judge Jeremiah H.

McCarthy issued reports on April 14 and 27, 2009, recommending that the district court

suppress both the seized evidence and the post-arrest statement. See Report &

Recommendation, United States v. Clark, No. 08-CR-196(S)(M) (W.D.N.Y. Apr. 27, 2009);

Interim Report and Recommendation (“Interim R & R”) at 2, United States v. Clark, 08-CR-

196(S)(M) (W.D.N.Y. Apr. 14, 2009). The magistrate judge concluded that the warrant was

not supported by probable cause to search the whole of the subject multi-family dwelling and

that the unlawful search tainted Clark’s post-arrest statement. The magistrate judge further

concluded that the government could not claim the benefits of the good faith exception to the

exclusionary rule because (1) the issuing judge had failed to act as a neutral and detached

magistrate, (2) the warrant was facially defective, and (3) the lack of probable cause to search

the entire multi-family dwelling was so apparent that police could not reasonably rely on the

validity of the warrant. Accordingly, the magistrate judge recommended that the district

court suppress the seized physical evidence as the product of an unreasonable search and

Clark’s post-arrest statement because it was tainted by the search.

After unsuccessfully seeking reconsideration, the government filed objections to the

magistrate judge’s reports with the district court, which rejected them without discussion in

4
Although Clark initially moved to suppress his statement on the ground that he was
not given Miranda warnings, he subsequently withdrew that argument, making it unnecessary
for us to discuss it here.

6
a text order and granted defendant’s suppression motion. The government timely appealed,

invoking our jurisdiction pursuant to 18 U.S.C. § 3731.

II. Discussion

A. Standard of Review

The government submits that the district court erred in ordering suppression of seized

evidence and Clark’s statements because the challenged search warrant was supported by

probable cause and, in any event, Leon’s good faith exception to the exclusionary rule

applies to this case.5

In considering these arguments, we are mindful that a court reviewing a challenged

warrant – whether at the district or appellate level – “must accord considerable deference to

the probable cause determination of the issuing magistrate.” Walczyk v. Rio, 496 F.3d 139,

157 (2d Cir. 2007). 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, Illinois v. Gates, 462 U.S. 213,

232, 236 (1983), 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,” United States v. Ventresca, 380 U.S. 102, 108 (1965).

Thus, the task of a reviewing court is simply to ensure that the “totality of the circumstances”

5
Because the suppression of Clark’s statement derived entirely from his search
challenge, we discuss only the latter in explaining our decision to reverse the suppression
order in its entirety.

7
afforded the magistrate “a substantial basis” for making the requisite probable cause

determination. Illinois v. Gates, 462 U.S. at 238 (internal quotation marks omitted).

When, as in this case, we review a district court’s assessment of a search conducted

pursuant to a warrant, we apply the clear error standard to its findings of historical fact, but

we “analyze de novo the ultimate determination of such legal issues as probable cause and

the good faith of police officials in relying upon a warrant.” United States v. Smith, 9 F.3d

1007, 1011 (2d Cir. 1993); accord United States v. Gagnon, 373 F.3d 230, 235 (2d Cir.

2004).

Applying these principles to this case, we conclude that, even after deferential review,

we cannot identify a “substantial basis” for the issuing judge to have authorized a search of

the entire multi-family dwelling at 1015 Fairfield Avenue and all persons in it. At the same

time, however, we conclude that defendant’s suppression motion should have been denied

pursuant to the good faith exception to the exclusionary rule. The record does not support

the district court’s conclusions that the issuing judge abandoned his neutral and detached

role, that the warrant was invalid on its face, or that the lack of probable cause in the warrant

affidavit was so evident that executing officers could not reasonably have relied on the

validity of the issued warrant.

8
 A. The Lack of Probable Cause to Search the Subject Multi-Family Dwelling

1. Identifying Probable Cause to Search Multiple-Occupancy Premises

To protect against unreasonable searches and seizures, the Fourth Amendment states

that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. As has long been recognized, probable cause is “a fluid concept – turning

on the assessment of probabilities in particular factual contexts – not readily, or even

usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. at 232; accord

Walczyk v. Rio, 496 F.3d at 156-57. Nevertheless, it is generally understood that “probable

cause to search is demonstrated where the totality of circumstances indicates a ‘fair

probability that contraband or evidence of a crime will be found in a particular place.’”

Walczyk v. Rio, 496 F.3d at 156 (quoting Illinois v. Gates, 462 U.S. at 238). This required

nexus between the items sought and the “particular place” to be searched protects against the

issuance of general warrants, instruments reviled by the Founders who recalled their use by

Crown officials “to search where they pleased.” Stanford v. State of Texas, 379 U.S. 476,

481 (1965) (discussing how abusive use of general warrants contributed to Revolution and,

thereafter, to demand for Fourth Amendment); see also Boyd v. United States, 116 U.S. 616,

624-30 (1886) (same); 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment § 1.1, at 7 (4th ed. 2004).

Particularity concerns frequently arise in circumstances where the description in the

warrant of the place to be searched is so vague that it fails reasonably to alert executing

9
officers to the limits of their search authority, see generally Stanford v. Texas, 379 U.S. at

485-86; Steele v. United States, 267 U.S. 498, 503 (1925); Velardi v. Walsh, 40 F.3d 569,

576 (2d Cir. 1994), or where the place described in the warrant does not comport with the

place confronting officers when they attempt execution, see generally Maryland v. Garrison,

480 U.S. 79, 85 (1987); United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994). A different

particularity concern is presented in cases like this one, where a warrant particularly

describes the place to be searched – “1015 Fairfield Ave, being a multi family dwelling” –

but a question arises as to whether the breadth of that description outruns the probable cause

supporting the warrant. See 2 LaFave, supra, § 4.5(a), at 578. Such cases fall at the

confluence of the Fourth Amendment’s probable cause and particularity requirements, which

courts and commentators have construed to demand that a search warrant for a multiple-

occupancy building be supported by a showing of probable cause as to each unit. See id.

§ 4.5(c), at 591 & n.94 (collecting cases and concluding “it is constitutionally permissible

for a single warrant to authorize the search of more than one subunit in a multiple-occupancy

building when there has been a probable cause showing as to each subunit included”); id.

§ 4.5(b), at 580 (“[I]n the absence of a probable cause showing as to all the living units so

as to justify a search of them all, a search warrant directed at a multiple-occupancy structure

will ordinarily be held invalid if it describes the premises only by street number or

identification common to all the subunits located within the structure.” (footnotes omitted)).

This court effectively recognized this principle in United States v. Bermudez, 526 F.2d 89,

96-97 (2d Cir. 1975), when it concluded that the district court had properly held a warrant

10
to search an entire building invalid on overbreadth grounds where probable cause existed

only with respect to specific floors.6

2. “Control” as a Factor Relevant to Probable Cause

The government acknowledges this body of law, but submits that it is subject to an

exception: “Probable cause need not be shown for each particular unit [of a multiple-

occupancy building] when the application establishes that the suspect exercises control over

the entire premises.” Appellant’s Br. at 13 (emphasis added). We do not think the law

supports such an absolute pronouncement.

The New York Court of Appeals, whose rulings presumably controlled issuance of

the warrant here at issue, as well as several of our sister circuits, have referenced “control”

of a multiple-occupancy building as a fact that can support a warrant to search the whole

premises. See People v. Tambe, 71 N.Y.2d 492, 503, 527 N.Y.S.2d 372, 377 (1988) (holding

that where probable cause exists to believe that several individuals are involved in criminal

activity, and that evidence of crime is in possession of one of them, law permits magistrate

to find “probable cause to search the places in the control” of each); see also United States

v. Butler, 71 F.3d 243, 249 (7th Cir. 1995); United States v. Alexander, 761 F.2d 1294, 1301

(9th Cir. 1985); United States v. Gonzalez, 697 F.2d 155, 156 (6th Cir. 1983). Nevertheless,

we do not understand these cases to support an exception to the general requirement that the

search of a multiple-occupancy building must be supported by probable cause to believe that

6
Bermudez nevertheless held that the suppressed evidence could be used for purposes
of impeachment. See 526 F.2d at 97.

11
evidence of criminality will be found throughout the building. While control may be a fact

relevant to the identification of such probable cause, see generally United States v. Johnson,

26 F.3d 669, 694 (7th Cir. 1994) (observing that search of multiple-occupancy building is

not overbroad when “(1) the officer knows there are multiple units and believes there is

probable cause to search each unit, or (2) the targets of the investigation have access to the

entire structure”), like any relevant fact, control does not necessarily dictate the same

probable cause determination in every case. That depends on the totality of the

circumstances. See Illinois v. Gates, 462 U.S. at 231-32 (rejecting rules that make any single

fact determinative in probable cause analysis).

Control, after all, can be manifested in various ways – e.g., ownership, occupancy,

access, authority to exclude others – and exercised to varying degrees. Thus, even though

a person may own the multiple-occupancy building from which he deals drugs, probable

cause to search the whole is more likely to be identified if the building is a two-family

structure of which the suspect is the only occupant than if it is a twenty-family structure in

which the suspect occupies only a single residential unit with other units leased by families

unassociated with his criminality. We do not attempt to hypothesize all the contexts in which

various types or degrees of control might be evidenced in a multiple-occupancy building.

We note simply that they are sufficiently numerous to defeat the government’s argument that

a simple allegation of control – necessarily and by itself – provides a substantial basis for

authorizing the challenged search of a multiple-occupancy building.

Indeed, we observe that the single case cited by the government in support of its

12
control argument, United States v. Gusan, 549 F.2d 15 (7th Cir. 1977), does not recognize

such a rule. At the time the search there at issue was authorized, police were unaware that

the first and second floors of the subject premises contained separate apartments. In fact,

police observations of defendant’s movements, as reported in the warrant affidavit, supported

probable cause to believe that the defendant exercised control over both floors as a single

residence. See id. at 20 (Swygert, J., concurring).7 Thus, to the extent Gusan illustrates an

exception to the rule that the search of a multiple-occupancy building must be supported by

probable cause to search each unit, it is based not on the defendant’s “control” of multiple

units, but on reasonable law enforcement perceptions that the premises was being used as a

single unit.

This is consistent with an exception that has been summarized as follows:

[I]f the building in question from its outward appearance would be taken to be
a single-occupancy structure and neither the affiant nor other investigating
officers nor the executing officers knew or had reason to know of the
structure’s actual multiple-occupancy character until execution of the warrant
was under way, then the warrant is not defective for failure to specify a subunit
within the named building.

2 LaFave, supra, § 4.5(b), at 581-82 & n.64 (collecting cases recognizing exception (footnote

omitted)); see Maryland v. Garrison, 480 U.S. at 86-88 (identifying good faith reliance on

warrant to search third floor where police did not discover premises contained two

apartments until they began execution); United States v. Kyles, 40 F.3d at 524 (rejecting

7
A subsequent suppression hearing revealed that defendant had to pass through the
lower floor apartment – which was vacant at the time of the search – to reach the second
floor apartment. See United States v. Gusan, 549 F.2d at 17.

13
argument that warrant for apartment should not have authorized search of defendant’s

bedroom because agents “had no reason to believe” bedroom was separate residence); see

also National City Trading Corp. v. United States, 635 F.2d 1020, 1024 (2d Cir. 1980)

(rejecting overbreadth challenge to search of commercial suite shared by two entities where

there was “no demarcation . . . between the rooms occupied” by each). This exception is

plainly not applicable here because when police applied for the challenged warrant, they

specifically described 1015 Fairfield Avenue as a “multi family dwelling,” and in no way

indicated that they understood Clark to be using the premises as a single residence.

3. The Affidavit’s Allegations of Control Were Insufficient To Establish
Probable Cause To Search the Entire Subject Premises

When the allegations of “control” in this case are properly considered in the context

of the totality of circumstances, we conclude that the whole does not establish probable cause

to support the challenged search of all residences in the subject building. To be sure, an

informant reported that Clark exercised “full control” over the building, but the informant

was then untried and his assertion entirely conclusory. While no specific test determines

when informant information can be relied on in making a probable cause determination, the

Supreme Court has instructed that the “totality of circumstances” must present the magistrate

with “[s]ufficient information . . . to allow that official” to make the necessary

determinations; “his action cannot be a mere ratification of the bare conclusions of others.”

Illinois v. Gates, 462 U.S. at 239 (emphasis added).

14
 Here, such information was totally lacking on the issue of control.8 First, the issuing

judge was not advised as to the size of the building or the number of residential units it

contained, which would have provided an important, if not essential, context for evaluating

the probability of the “full control” allegation. Second, nothing in the warrant affidavit

advised the issuing judge what the informant meant by “full control.” Indeed, the affidavit

did not even disclose whether the informant’s allegation was based on personal observation,

a hearsay account, or mere rumor. Third, the affidavit did not provide any descriptive facts

consistent with the full control allegation. We do not suggest that any one of these facts was

necessary to establish probable cause, see id. at 230, but the Supreme Court has recognized

such facts as relevant to a consideration of the totality of circumstances, see id. at 233. We

thus conclude that the absence of any such information left the issuing judge with a record

from which he could not himself make a determination of control sufficient to support

probable cause to search the entire multi-family dwelling. See id. at 239 (reiterating that

wholly conclusory statement is inadequate to allow independent determination of probable

cause (citing Nathanson v. United States, 290 U.S. 41 (1933))).

In urging otherwise, the government submits that the informant’s control conclusion

must be considered together with two other allegations: (1) that surveillance officers

observed Clark “entering and remaining and exercising control at the residence of 1015

8
While control was only part of the probable cause presentation in this case, it was
the only part that supported a search of the entire multi-family dwelling, as opposed to a
residence specifically linked to the defendant.

15
Fairfield Ave,” Warrant Aff. at 2 (emphasis added), and (2) that the informant made two

controlled purchases of cocaine from Clark at the subject building. We are not persuaded

that the sum of these allegations provided a substantial basis to order the search of all parts

of and persons in the multi-family dwelling.

Focusing first on the controlled purchase allegations, the warrant affidavit states only

that the informant went to the “area” of 1015 Fairfield Avenue to make the first purchase and

to the building’s “front porch area” to make the second. Id. at 3. Thus, these allegations

failed to provide any information as to where within the multi-family dwelling Clark dealt

or stored drugs, much less did they establish his control over all units in and parts of the

premises.9 The government does not contend otherwise. Rather, it submits that the

controlled purchases corroborated the informant’s allegation that Clark was dealing drugs

at 1015 Fairfield Avenue and that the partial corroboration provided a basis for the issuing

judge to credit the informant’s further allegation that Clark exercised “full control” over the

building.

Partial corroboration of an informant is a circumstance that, on totality review, may

allow a judicial officer to credit the informant’s whole account. See Illinois v. Gates, 462

U.S. at 237-38; United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993). While we generally

defer to an issuing judge’s discretion in deciding when partial corroboration suffices to this

9
Notably absent from the warrant affidavit is any allegation as to where the informant
said the controlled purchases occurred, information about which he presumably had direct
knowledge.

16
purpose, there are outer limits, some grounded in law, others in common sense and

experience. Here, law and experience combine to require more than corroboration of

defendant’s criminal conduct somewhere in the subject building – conduct that does not

speak at all to the defendant’s control over the whole of the building – to transform the

informant’s conclusory assertion of full control into a substantial basis to authorize the search

of an undisclosed number of residential units.

The law to which we refer is, of course, the Fourth Amendment, which specifically

identifies the right of persons to be secure in their homes as a basis for conditioning the

issuance of warrants on a demonstration of probable cause and particularity. See generally

Georgia v. Randolph, 547 U.S. 103, 115 (2006) (acknowledging Fourth Amendment’s

recognition that “the home is entitled to special protection as the center of the private lives

of our people” (internal quotation marks omitted)). This, by itself, cautions against hastily

ascribing control over one person’s home to another. This lesson is reinforced by experience,

which teaches that “it is not typically the case that those involved in . . . criminality”

somewhere in a multiple-occupancy building “would have access to all of the separate living

units” contained therein. 2 LaFave, supra § 4.5(b), at 579. Where law and experience thus

effectively give rise to a presumption that one person’s home is not in the control of a third

party, a conclusory assertion of control by an informant who has been corroborated only in

some other respect does not provide a substantial basis for a judicial officer to find it

probable that evidence of the third party’s criminality will be found in residences other than

his own.

17
 This conclusion is consistent with the view of the New York Court of Appeals in

People v. Tambe, 71 N.Y.2d at 503, 527 N.Y.S.2d at 377, which, in upholding probable

cause to search multiple premises controlled by a number of confederates for criminal

evidence likely to be in the possession of one of them, emphasized that a different rule might

apply “where the fruits of the criminal enterprise are probably located in one of a few

locations but the nature of the information is such that a search of each of these locations

would intrude upon the rights of individuals in no way involved in the criminal activity under

investigation.” Id. That is this case. Because the warrant affidavit contained no information

as to either the number of residential units within 1015 Fairfield Avenue or where within the

building Clark dealt drugs, there was a real possibility that a search of the entire building and

all persons in it would intrude upon the rights of persons in no way linked to the suspected

criminal activity. In these circumstances, the law demanded more than a conclusory

allegation of control by a partially corroborated informant to permit the issuing judge to find

probable cause to support the challenged warrant.

Nor do we think that “more” was supplied by surveillance observations of Clark

“entering and remaining and exercising control at the residence at 1015 Fairfield Ave.”

Warrant Aff. at 2 (emphasis added). While the surveillance allegation derived from police

officers rather than an untested informant, and was based on personal observation, it was

nevertheless conclusory. The issuing judge was not told what the officers meant by

“exercising control,” a concept that could easily mean less than full control. A surveillance

officer who saw a suspect unlock the common entry door to a multiple-occupancy building

18
might reasonably think he was “exercising control” over the building, but that would hardly

provide a substantial basis for finding probable cause to search an unspecified number of

residential units not linked to the defendant or his criminal activities. We further note that

to the extent the affidavit reported that surveillance observed Clark exercising control “at the

residence,” the affidavit is devoid of information that would allow the issuing judge to

determine whether “residence” referred to the building as a whole or to a particular

residential unit.

In sum, while the totality of circumstances permitted the issuing judge to find it

probable that Clark was dealing drugs from somewhere within 1015 Fairfield Avenue, it did

not provide a substantial basis to conclude that Clark so controlled the various residential

units in that multi-family dwelling that there was probable cause to think evidence of his

criminal conduct could be found throughout the building.10

B. The Good Faith Exception Applies to this Case

A determination that the warrant at issue was not supported by probable cause to

search the entire multi-family dwelling does not automatically dictate the suppression of all

physical evidence seized or statements derived therefrom. As the Supreme Court recently

10
The government submits that any error in issuing so broad a search warrant was
necessarily harmless because incriminating evidence was seized only from the ground floor
apartment wherein Clark was found. To the extent this might be construed to suggest that
probable cause existed at least for that apartment, we are not persuaded. The government
was obliged to demonstrate probable cause to search a particular apartment before securing
the warrant, not after executing it. Moreover, we note that the government did not
specifically deny searching other residences in executing the warrant; it simply denied
making any seizures therefrom.

19
reminded courts, suppression is “‘our last resort, not our first impulse’” in dealing with

violations of the Fourth Amendment. Herring v. United States, 129 S. Ct. 695, 700 (2009)

(quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). The animating principle of the

exclusionary rule is deterrence of police misconduct, but the extent to which the rule is so

justified “varies with the culpability of the law enforcement conduct.” Id. at 701 (suggesting

that deterrent value of exclusionary rule is most effective in cases of “‘flagrant or deliberate

violation of rights’” (quoting Henry J. Friendly, The Bill of Rights as a Code of Criminal

Procedure, 53 Calif. L. Rev. 929, 953 (1965), and citing Brown v. Illinois, 422 U.S. 590,

610-11 (1975) (Powell, J., concurring in part))). Thus, in United States v. Leon, the Supreme

Court recognized an exception to the exclusionary rule for “evidence obtained in objectively

reasonable reliance on a subsequently invalidated search warrant.” 468 U.S. at 922. The

Court reasoned that, in those circumstances, “[p]enalizing the officer for the magistrate’s

error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment

violations.” Id. at 921.

“The burden is on the government to demonstrate the objective reasonableness of the

officers’ good faith reliance” on an invalidated warrant. United States v. George, 975 F.2d

72, 77 (2d Cir. 1992); accord United States v. Santa, 180 F.3d 20, 25 (2d Cir. 1999). In

assessing whether it has carried that burden, we are mindful that, in Leon, the Supreme Court

strongly signaled that most searches conducted pursuant to a warrant would likely fall within

its protection.

“[S]earches pursuant to a warrant will rarely require any deep inquiry into

20
 reasonableness,” Illinois v. Gates, 462 U.S. at 267 (White, J., concurring in
judgment), for “a warrant issued by a magistrate normally suffices to
establish” that a law enforcement officer has “acted in good faith in conducting
the search.” United States v. Ross, 456 U.S. 798, 823 n.32 (1982).

United States v. Leon, 468 U.S. at 922 (alteration in Leon). It was against this presumption

of reasonableness that the Supreme Court identified four circumstances where an exception

to the exclusionary rule would not apply:

(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; and (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).

Here, the district court concluded that the last three circumstances were all present in

this case, precluding application of the good faith exception. Reviewing this determination

de novo, we conclude to the contrary.

1. The Issuing Magistrate Did Not Abandon His Judicial Role

The district court concluded that the issuing judge had abandoned his judicial role by

relying solely on the affidavit’s conclusory allegations of control in finding probable cause

to search the whole of a multiple-occupancy building. This misconstrues the abandonment

concern identified in Leon.

There, the Supreme Court observed that in issuing warrants, a magistrate must

“perform his neutral and detached function” as a judicial officer “and not serve merely as a

rubber stamp for the police.” United States v. Leon, 468 U.S. at 914 (internal quotation

21
marks omitted). But, as the Court later explained, what this means is that officers cannot

reasonably rely on a warrant issued by a magistrate who “wholly abandoned his judicial role

in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).” Id. at 923.

The quoted language contains two important qualifiers. The abandonment must be (1)

wholesale rather than partial and (2) “in the manner condemned in Lo-Ji Sales.” That is not

this case.

In Lo-Ji Sales, a town justice issued a warrant for the seizure of obscene materials

from an adult bookstore. The justice then accompanied police officers and prosecutors to the

store and, in the course of a six-hour search, reviewed items for himself and decided which

could be seized. See Lo-Ji Sales, Inc. v. New York, 442 U.S. at 322. The Supreme Court

held the warrant invalid, reasoning that the judge had “allowed himself to become a member,

if not the leader, of the search party which was essentially a police operation.” Id. at 327.

He had ceased to act “as a judicial officer” and assumed the role of “an adjunct law

enforcement officer.” Id. In reaching this conclusion, Lo-Ji Sales relied on Coolidge v. New

Hampshire, 403 U.S. 443 (1971), a case in which the Supreme Court invalidated warrants

issued by a State Attorney General in his capacity as a justice of the peace although he was

the law enforcement officer “actively in charge of the investigation and later was to be chief

prosecutor at the trial,” id. at 450 (observing that “prosecutors and policemen simply cannot

be asked to maintain the requisite neutrality with regard to their own investigations”).

Animating these two decisions is a common precept: that “someone independent of

the police and prosecution must determine probable cause.” Shadwick v. City of Tampa, 407

22
U.S. 345, 348 (1972). Nevertheless, the law will not hastily assume a magistrate’s surrender

of his judicial independence to the police or prosecution. As the Supreme Court clarified in

Lo-Ji Sales, such an inference cannot be drawn from the mere fact that a magistrate has made

himself “readily available to law enforcement officers who may wish to seek the issuance of

warrants by him,” 442 U.S. at 328 n.6, a point this court emphasized in United States v.

Whitehorn, 829 F.2d 1225, 1232 (2d Cir. 1987) (upholding application of good faith

exception where magistrate did not abandon “neutral and detached” role by going to FBI

office to review and issue warrants because magistrate “did not assist in the drafting of the

warrant or in any aspect of the . . . investigation,” and nothing suggested he was in FBI office

“for any reason other than to facilitate the issuance of the warrant on a Saturday”). More to

the point for this case, abandonment of judicial neutrality and detachment properly cannot

be inferred from the fact that the magistrate committed legal error in his assessment of

probable cause. See 1 LaFave, supra, § 1.3(f), at 78 & n.84 (collecting cases concluding that

“rubber stamp” cannot be established “merely on the basis of the substantial inadequacy of

the probable cause showing in the affidavit”). Indeed, Leon separately addresses that

circumstance and instructs that it precludes good faith reliance only when the warrant

affidavit was “‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.’” United States v. Leon, 468 U.S. at 923 (quoting Brown

v. Illinois, 422 U.S. at 610-11 (Powell, J., concurring in part)). We address that concern

infra at [26-31]. Here, we simply clarify that legal error by the issuing judge in identifying

probable cause does not, by itself, indicate the sort of wholesale abandonment of the judicial

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role discussed in Leon. Because nothing else in the record indicates such abandonment in

this case, we conclude that this factor did not preclude the officers’ good faith reliance on the

challenged warrant.

2. The Challenged Warrant Is Not Facially Deficient

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.” Id. at 923. The district court

identified such a facial defect in the warrant’s description of the premises to be searched as

a “multi family dwelling,” which it concluded “should have raised a red flag as to the need

to show probable cause to search each unit of the premises.” Interim R & R at 7 (emphasis

in original). This conclusion conflates a facial defect in the warrant with a patent lack of

probable cause to support the warrant.

Massachusetts v. Sheppard, 468 U.S. 981 (1984), and Groh v. Ramirez, 540 U.S. 551

(2004), illustrate that a warrant is facially defective when it omits or misstates information

specifically required to be contained therein, i.e., “the place to be searched, and the persons

or things to be seized.” U.S. Const. amend. IV. In Sheppard, a form warrant for narcotics

searches was used to authorize a search for evidence of murder. Although the affidavit in

support of the warrant detailed the non-narcotics evidence sought, the Supreme Court upheld

a lower court determination that “the warrant was constitutionally defective because the

description [of items to be seized] in the warrant was completely inaccurate and the warrant

24
did not incorporate the description contained in the affidavit.” 468 U.S. at 988 n.5.11

In Groh v. Ramirez, agents submitted for approval a warrant that erroneously

described the suspect’s residence in the area reserved for identification of the items to be

seized. Although the warrant affidavit detailed the latter information, the Court concluded

that its complete absence from the warrant precluded reasonable reliance. See 540 U.S. at

564;12 see also United States v. George, 975 F.2d at 78 (holding that officers could not

reasonably rely on warrant that included authorization to seize unspecified evidence of

criminality not limited “either to a generic classification, . . . or, even more egregiously, to

a particular crime”).

The warrant here contains no similar defect. It specifically identified the place to be

11
Nevertheless, the Court concluded that the officer’s reliance on the warrant was
reasonable because the officer had brought the defect to the attention of the issuing judge,
who had represented that he would correct it, but then failed to do so unbeknownst to the
officer. See Massachusetts v. Sheppard, 468 U.S. at 986-87.
12
Groh was a civil action under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), and 42 U.S.C. § 1983. In addressing the objective reasonableness of
defendants’ reliance on the invalidated warrant for purposes of qualified immunity, the
Supreme Court observed that the standard tracked that applicable to determining good faith
reliance under Leon. See Groh v. Ramirez, 540 U.S. at 565 n.8. As this court recently
observed, however, the Supreme Court has since emphasized that “application of the
exclusionary rule requires the additional determination that the officers’ conduct was
‘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. Rosa, 626
F.3d 56, 66 (2d Cir. 2010) (quoting Herring v. United States, 129 S. Ct. at 702, in concluding
that warrant’s particularity failure to link items to be seized to suspected criminal activity did
not preclude good faith reliance under totality of circumstances). We have no occasion to
discuss Rosa further because, as we explain in the next paragraph of text, the warrant here
at issue is not facially defective.

25
searched – “1015 Fairfield Ave, being a multi family dwelling located on the south side of

Fairfield Ave and located on SBL# 144.31-3-26, in the City of Niagara Falls, New York.”

Warrant at 1. It specifically identified the items that could be seized:

Cocaine and any other controlled substances as defined in Article 220 and 221
of the Revised Penal Laws of the State of New York, as well as for any
implements used to administer same, or prepare same for packaging or sale or
other dispensation of aforementioned substances, as well as for any monies,
all written papers or articles, or keys, or any other papers that tend to show that
crimes relating to violation of Article 220 and 221 of the Revised Penal Laws
of the State of New York have been committed.

Id.

To be sure, the Constitution further requires that warrants be issued only “upon

probable cause,” but it does not require that probable cause be stated in the warrant itself.

See, e.g., United States v. Grubbs, 547 U.S. 90, 98 (2006). Thus, to the extent probable

cause was lacking to support a warrant to search the whole of the premises particularly

described, the defect lies not in the warrant but in the warrant affidavit. That defect is

properly addressed in considering a different Leon concern, whether the lack of probable

cause was so obvious as to preclude reasonable reliance. See 1 LaFave, supra § 1.3(f), at 87

(noting “[t]his kind of case . . . does not fit within the Leon third situation [but, rather,] is

analytically most similar to that in which it turns out the warrant is lacking in any probable

cause showing, and ought to be resolved in the same way” (internal citations omitted)). We

turn to that concern in the next subsection of this opinion.

3. The Warrant Affidavit Was Not So Lacking in Indicia of Probable
Cause as To Preclude Reasonable Reliance

26
 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.’” United States v. Leon, 468 U.S. at 923 (quoting Brown

v. Illinois, 422 U.S. at 610-11 (Powell, J., concurring in part)).

Such a concern most frequently arises when affidavits are bare bones, i.e., totally

devoid of factual circumstances to support conclusory allegations. Cf. United States v. Leon,

468 U.S. at 926 (rejecting reasonable reliance challenge where warrant was supported by

“much more than a ‘bare bones’ affidavit”); United States v. Moore, 968 F.2d at 222-23

(same); see also United States v. West, 520 F.3d 604, 610 (6th Cir. 2008) (holding that good

faith exception does not apply to bare bones affidavit based entirely on unsubstantiated

conclusions). The concern is particularly acute when facts indicate that the “bare-bones

description . . . was almost calculated to mislead.” United States v. Reilly, 76 F.3d 1271,

1280 (2d Cir.), aff’d on reh’g, 91 F.3d 331 (2d Cir. 1996). In such circumstances, one Leon

concern, i.e., that “a reasonably well trained officer would have known” that the challenged

warrant was not supported by probable cause, United States v. Leon, 468 U.S. at 922 n.23,

is reinforced by another, i.e., deception, or at least an apparent intent to deceive.

At the opposite end of the spectrum are cases in which a defective warrant issued based

on an affidavit providing detailed factual allegations in support of probable cause. Such cases

almost invariably demonstrate reasonable reliance. As the Supreme Court explained in Leon,

“[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish

probable cause . . . . In the ordinary case, an officer cannot be expected to question the

27
magistrate’s probable-cause determination . . . .” Id. at 921; accord United States v. Falso,

544 F.3d 110, 129 (2d Cir. 2008) (declining to hold that agents acted unreasonably in relying

on judge’s probable cause determination because “the error . . . was committed by the district

court in issuing the warrant, not by the officers who executed it”); United States v. Cancelmo,

64 F.3d 804, 807 (2d Cir. 1995) (holding that any error in issuance of warrant was

“attributable to the magistrate who determined that the facts as alleged by the agents

established probable cause”); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985)

(holding that, where magistrate, “whose duty it is to interpret the law,” determined that canine

sniff could form basis for probable cause, “it was reasonable for the officer to rely on this

determination”). The conclusion applies with particular force in circumstances where

“thoughtful and competent judges” might disagree as to whether the facts alleged established

probable cause. United States v. Leon, 468 U.S. at 926; accord United States v. Falso, 544

F.3d at 128 (collecting cases).

This case falls somewhere in between these two extremes. The warrant affidavit was

not completely bare bones. It provided sufficient details to permit the issuing judge to find

probable cause to believe that Clark was dealing drugs from somewhere within 1015 Fairfield

Avenue. In addition to reporting that an untested informant had ascribed such conduct to

Clark and that surveillance officers had witnessed Clark entering and remaining inside the

suspect premises on multiple occasions, the affidavit detailed two controlled buys made by

28
the informant directly from Clark at or very near the subject property.13 Further, in seeking

leave to search the property, the warrant affidavit candidly advised the issuing judge that

1015 Fairfield Avenue was a multi-family dwelling, cf. United States v. Reilly, 76 F.3d at

1280 (faulting officers for providing description of property “almost calculated to mislead”),

and strove to establish probable cause to search the whole of such premises by referencing a

circumstance that had found some support in precedent: defendant’s “control,” see generally

People v. Tambe, 71 N.Y.2d at 503, 527 N.Y.S.2d at 377.

A problem arises only when we consider the allegations of control in the warrant

application. Ascribed to an informant (“full control”) and surveillance officers (“exercising

control”), the allegations are entirely conclusory. Warrant Aff. at 2. We have already

explained why such conclusory assertions about a concept that can be manifested in different

ways and to different degrees depending on circumstances were insufficient to permit the

issuing judge to find probable cause to search the entirety of a building containing an

undisclosed number of residential units. See supra at [11-18]. Nevertheless, we are not

persuaded that law enforcement conduct here was so “flagrant” or “culpable” in violating

Fourth Amendment rights as to compel suppression. Herring v. United States, 129 S. Ct. at

13
While it might have been preferable for the affidavit to disclose not only
surveillance observations of the buys – which were less than detailed – but also the
informant’s account of where the buys actually occurred, the allegations were sufficient to
demonstrate probable cause to believe that evidence of Clark’s criminality would be found
somewhere in 1015 Fairfield Avenue. See Walczyk v. Rio, 496 F.3d at 157 (collecting cases
instructing that probable cause does not demand showing that “good-faith belief be correct
or more likely true than false,” but only “such facts as make wrongdoing or the discovery of
evidence thereof probable” (internal quotation marks omitted)).

29
702; see also United States v. Rosa, 626 F.3d at 64.

In reaching this conclusion, we note that, before the district court, Clark appears to

have challenged only the specificity of the government’s control allegations, not their bona

fides.14 At the time the warrant issued, however, the need to allege control with some factual

specificity appears not to have been the subject of discussion in prior precedent from this or

other courts. As we have already observed, in People v. Tambe, the New York Court of

Appeals cautioned that the rule it there recognized allowing for a search of all premises “in

the control of” various criminal associates to find evidence “likely to be in the possession of

one of them” might “be different” if such searches “would intrude upon the rights of

individuals in no way involved in the criminal activity under investigation.” 71 N.Y.2d at

503, 527 N.Y.S.2d at 377. Tambe, however, gave no indication that where control was

alleged in order to establish probable cause to search a multiple-occupancy building, it had

to be accompanied by descriptive facts. We locate legal support for such a conclusion in the

Supreme Court’s general admonition that a judge issuing a warrant must determine probable

cause for himself and not simply adopt the conclusions of law enforcement applicants. See

Illinois v. Gates, 462 U.S. at 239. We also locate practical support for the conclusion in the

variable nature of “control” and in the caution that is warranted when a search may intrude

on the privacy rights of a number of persons. But we cannot fault police officers for failing

14
Thus, we have no reason to remand for the district court to ascertain what facts
supported the allegation of control in order to determine whether a well-trained officer aware
of those facts could, in good faith, have alleged control.

30
to make these same connections in advance of the courts. Indeed, where the need for

specificity in a warrant or warrant affidavit on a particular point was not yet settled or was

otherwise ambiguous, we have declined to find that a well-trained officer could not reasonably

rely on a warrant issued in the absence of such specificity. See United States v. Buck, 813

F.2d 588, 592 (2d Cir. 1987) (holding that evidence obtained pursuant to warrant containing

only catch-all description of property to be seized should not have been suppressed because,

when warrant issued, law was ambiguous as to exact requirements of particularity clause).

Of course, once the requirement is established, police may not thereafter claim reasonable

reliance on warrants secured in the absence of compliance. See id. at 593 n.2; accord United

States v. George, 975 F.2d at 78.

In sum, because the warrant affidavit was not completely bare bones, because the

issuing judge was told the premises to be searched was a multi-family dwelling, because

control can be a factor relevant to assessing probable cause to search the whole of such

premises, and because the need to support an allegation of control with descriptive facts was

not previously established in precedent, we conclude that the application was not “so lacking

in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

United States v. Leon, 468 U.S. at 923 (internal quotation marks omitted). Accordingly, the

government is entitled to claim the benefit of the good faith exception to the exclusionary rule,

and defendant’s motion to suppress seized evidence should have been denied.

III. Conclusion

To summarize, we conclude as follows:

31
 1. Because “control” is a concept that can be manifested in various ways and to

different degrees, conclusory allegations that defendant “controlled” a multi-family dwelling

were insufficient to allow a judge to find probable cause to search each of the unspecified

number of residences in the building.

2. Defendant’s motion to suppress evidence derived from the invalid search should

have been denied pursuant to the good faith exception to the exclusionary rule recognized in

United States v. Leon, 468 U.S. at 922, because, contrary to the district court’s

determinations,

(a) the issuing judge did not abandon his neutral and detached judicial role in

mistakenly finding probable cause to support the challenged warrant,

(b) the warrant was not facially invalid, and

(c) the warrant affidavit was not completely bare bones and the need to support

a conclusory allegation of “control” with specific facts not so established in law as to

preclude the police from reasonably relying upon the validity of the challenged warrant

in this case.

Suppression order REVERSED and case REMANDED for further proceedings consistent

with this opinion.

32