10-249-cr
United States v. Brown
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 14th day of March, two thousand eleven.
PRESENT: PIERRE N. LEVAL,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-249-cr
SEAN BROWN,
Defendant-Appellant.
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APPEARING FOR APPELLANT: SCOTT M. GREEN, Esq., Rochester, New York.
APPEARING FOR APPELLEE: ROBERT A. MARANGOLA, Assistant United
States Attorney, of Counsel, for William J.
Hochul, Jr., United States Attorney for the
Western District of New York, Rochester,
New York.
Appeal from the United States District Court for the Western District of New York
(Charles J. Siragusa, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on January 19, 2010, is AFFIRMED.
Sean Brown, who stands convicted on a conditional plea of possession with intent to
distribute 50 grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), appeals
the district court’s denial of his motion to suppress evidence seized during a search of 59
Chili Terrace, Rochester, New York, conducted pursuant to a state court warrant. Brown
contends that the warrant was not supported by probable cause and that executing officers
could not claim the benefit of the good faith exception to the exclusionary rule recognized
in United States v. Leon, 468 U.S. 897, 920-24 (1984). Because we identify no basis for an
exception to the rule of Leon, we need not address whether the affidavit presented to the state
judicial officer sufficiently established probable cause. We assume the parties’ familiarity
with the facts and record of prior proceedings, which we reference only as necessary to
explain our decision to affirm.
Brown asserts that the warrant application was “so lacking in indicia of probable
cause” as to render reliance upon it unreasonable. United States v. Leon, 468 U.S. at 899.
In support, he contends, first, that the applying officer wrote his affidavit “in a broad,
conclusory manner to give the impression of an on-going criminal enterprise, despite failing
to link his targets to the searched premises,” and second, that the affidavit was “so wanting
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of a fair probability that criminal activity or evidence of criminal activity could be found at
59 Chili Terrace, in July, 2008, [that] no reasonable officer . . . could believe that reliance
on the warrant was reasonable.” Appellant’s Br. at 16. The lack of a fair probability of
criminal activity is attributed largely to the affiant’s failure to clarify whether confidential
informants who spoke to police in 2008 were recounting current or stale observations of drug
trafficking at the subject premises. The court’s “‘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.’” Herring v. United
States, 555 U.S. 135, 129 S. Ct. 695, 703 (2009) (quoting United States v. Leon, 468 U.S.
at 922 n.23).
As to the first point, there is no requirement that an officer applying for a search
warrant “link his targets to the searched premises”; probable cause need attach only to the
location to be searched, not to any individual target of the investigation. See United States
v. Martin, 426 F.3d 83, 86 (2d Cir. 2005) (“‘[O]nce it is established that probable cause exists
to believe a federal crime has been committed a warrant may issue for the search of any
property which the magistrate has probable cause to believe may be the place of concealment
of evidence of the crime.’” (emphasis in original; quoting Zurcher v. Stanford Daily, 436
U.S. 547, 558 (1978))). As to the second point, Brown has identified no reason to question
the affiant’s good faith in characterizing the 2008 informant disclosures as “fresh” evidence.
Nothing in the record indicates that either the affiant or the other executing officers would
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have had any reason to question the issuing judge’s probable cause determination. See
United States v. Leon, 468 U.S. at 921 (“It 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 magistrate’s probable-cause determination . . . .”).
Therefore, because “[t]here is nothing more the officer could have or should have done under
these circumstances to be sure his search would be legal[,] . . . the [good faith] exception
applies to this case.” United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985).
We have considered Brown’s other arguments on appeal and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of conviction.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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