        12-4164-cr
        United States v. Rickard

                                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.


 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 27th day of August, two thousand thirteen.
 5
 6      PRESENT: PIERRE N. LEVAL,
 7               RICHARD C. WESLEY,
 8               PETER W. HALL,
 9                          Circuit Judges.
10
11
12
13      UNITED STATES OF AMERICA,
14
15                                    Petitioner-Appellee,
16
17                     -v.-                                               12-4164-cr
18
19      JOHN RICKARD,
20
21                                    Respondent-Appellant.
22
23
24      FOR APPELLEE:                 JEREMY D. SCHWARTZ, Buffalo, NY.
25
26      FOR APPELLANT:                MELISSA M. MARANGOLA, Assistant United
27                                    States Attorney, for William J. Hochul
28                                    Jr., United States Attorney for the
29                                    Western District of New York, Buffalo,
30                                    NY.
31
32           Appeal from the United States District Court for the
33      Western District of New York (Skretny, J.).
1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the judgment of the district court be

3    REVERSED.

4        The government appeals the decision of the US District

5    Court for the Western District of New York suppressing

6    evidence seized during a search of Defendant John Rickard’s

7    home, 254 Laird Avenue, Buffalo, New York. We assume the

8    parties’ familiarity with the facts and procedural posture.

9    I. Background

10       On November 3, 2009, after receiving numerous anonymous

11   complaints of drug activity at 254 Laird, Detective Paul

12   Delano of the Buffalo Police Department directed a

13   confidential informant to attempt to purchase drugs at that

14   address. As the CI approached the home, a slight light-

15   skinned black male came down from the front porch, and sold

16   crack cocaine to the CI.

17       On November 4, 2009, the Buffalo Police Department

18   applied for a search warrant for 254 Laird. In support of

19   the application, the CI and Detective Delano testified in

20   camera. The CI testified that a man by the name of “A” sold

21   him twenty dollars’ worth of crack cocaine at 254 Laird St,

22   a white, two family dwelling. The CI further testified that


                                  2
1    he lived in the neighborhood but did not know whether A

2    lived or merely stayed at 254 Laird. It is undisputed that A

3    is not the defendant.

4        There were several confusing discrepancies in the

5    warrant application. During the CI’s testimony, Delano

6    corrected the CI’s statement that 254 Laird was a two family

7    residence. It is a single family residence. Adding to the

8    confusion, while correcting the CI, Delano mis-spoke and

9    said that the address was 257 Laird. Delano then corrected

10   himself and said that he meant 254. To confuse things still

11   further, 254 Laird is beige, not white as the CI testified.

12   Delano later averred that it is in fact beige, but appeared

13   white at night.

14       Following Delano and the CI’s testimony, a Buffalo City

15   Court Judge issued the warrant authorizing the search of 254

16   Laird. Detective Delano, accompanied by other officers,

17   executed the warrant on November 9, 2009. They seized five

18   ounces of crack cocaine, firearms, ammunition, and $58,000

19   in cash.

20       On June 23, 2011, based on the evidence seized, a

21   federal grand jury returned a true bill charging Rickard

22   with (1) possessing cocaine with intent to distribute, (2)



                                  3
1    maintaining a premises for the purpose of distributing

2    cocaine, (3) possessing firearms for drug trafficking; and

3    (4) possessing firearms as a felon. On February 1, 2012,

4    Rickard moved to suppress the evidence seized during the

5    search, arguing that there was insufficient evidence linking

6    him and 254 Laird to the drug transaction. The federal

7    magistrate judge to whom pretrial matters had been referred

8    issued a report and recommendation that agreed with Rickard

9    and concluded that the warrant was so lacking in probable

10   cause that no reasonable officer could have relied on it in

11   good faith. The district court adopted the magistrate

12   judge’s report without explanation and the United States

13   appeals.

14   II. Discussion

15       The decision whether to issue a warrant requires

16   answering the "commonsense, practical question whether there

17   is ‘probable cause’ to believe that contraband or evidence

18   is located in a particular place."   Illinois v. Gates, 462

19   U.S. 213, 230 (1983). Regardless of whether there was in

20   fact probable cause, however, we do not apply the

21   exclusionary rule where an officer obtained evidence by

22   acting in reasonable reliance on a defective search warrant


                                  4
1    issued by a neutral magistrate.     See United States v. Leon,

2    468 U.S. 897, 922-23 (1984).    The exclusionary rule operates

3    to deter illegal searches by police, not as a personal

4    constitutional right of the aggrieved party. Id. at 906-07.

5    Therefore, "suppression is ‘our last resort, not our first

6    impulse.’" United States v. Clark, 638 F.3d 89, 99 (2d Cir.

7    2011)(quoting Herring v. United States, 555 U.S. 135, 140

8    (2009)).

9        It is the government’s burden to establish the good

10   faith of its officers.   Clark, 638 F.3d at 100.

11   Nonetheless, the court need not inquire in depth as to the

12   reasonableness of searches conducted pursuant to a warrant.

13   Leon, 468 U.S. at 922. Most such searches will be upheld.

14   In Leon, the Supreme Court identified a limited number of

15   circumstances where the good faith exception to the

16   exclusionary rule would not apply, none of which are present

17   here. Clark, 638 F.3d at 100.

18       In defending the district court’s ruling, Rickard

19   argues that there was no nexus between A and 254 Laird, that

20   Delano knowingly misled the issuing judge by withholding the

21   fact that the CI did not know A or where he lived, and that

22   the judge unreasonably failed to inquire into the basis of


                                     5
1    the CI’s knowledge of A.   We disagree. There plainly was a

2    nexus between A and 254 Laird. As the CI approached No. 254

3    to buy drugs, he found A standing on the porch. A asked the

4    CI if he needed something and then sold drugs to the CI just

5    in front of the porch. A need not live at No. 254 to use it

6    for drug distribution and the CI need not know A to

7    ascertain that A was using the front porch of No. 254 as a

8    base from which to sell drugs. These facts, combined with

9    the complaints on the tip line, are enough to survive a Leon

10   good faith analysis.

11       The fact that Delano described the house as white

12   rather than beige in the warrant application does not

13   undermine this conclusion. The discrepancy was explained as

14   attributable to the white appearance of beige by nighttime

15   light. In any event, Delano executed the search and knew

16   which house was the target of the warrant. Similarly,

17   Delano’s misstatement of “257 Laird” does not establish that

18   the warrant was obtained in bad faith. We will not exclude

19   evidence every time an officer mis-speaks and corrects

20   himself while applying for a warrant.

21       Rickard’s argument that there was insufficient evidence

22   linking him to A’s sale is misconceived and beside the


                                   6
1    point. What was at issue in the ruling below was not the

2    sufficiency of evidence to support the indictment of

3    Rickard, but the propriety of the search on 254 Laird

4    conducted pursuant to the warrant. Our decision upholding

5    the search does not concern or address the propriety of the

6    indictment of Rickard.

7         For the foregoing reasons, the judgment of the

 8   district court is hereby REVERSED.
 9
10                              FOR THE COURT:
11                              Catherine O’Hagan Wolfe, Clerk
12
13




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