*1 finding entirely the district court’s es government failed to meet its initial bur- America, Appellant, UNITED STATES of showing probable cause. Our conclu- den of similarly contrary forecloses this
sion to the argument. of her EAJA arm Stanford SMITH Willie Ellis Cf. a/k/a Corvette, One Chevrolet Eveleigh, Defendant-Appellee. (6th Cir.1990) (finding that No. Docket 92-1665. government established “when proceeding, posi- its the forfeiture Appeals, United States Court of justified” substantially tion was EAJA Second Circuit. purposes). Argued Feb. 1993. seeks at- To the extent Claire Soule torneys’ government’s liti- fees based Decided Nov. 1993. gatiоn position, specifically the district court persistence in government’s found that
seeking fully justified. forfeiture was (“[T]he Broadway, F.Supp. at 1237 points intervening
claimant to no evidence might given government pause have
over whether to continue onward with the information, newly
case. No unearthed
instance, substantiated Claire Soule’s con-
flicting money accounts of the source disproved money’s apparent connec- drug activity
tion to the wealth took house.”).
place finding fully This
supported by Accordingly, the record.
decline to overturn the district court’s denial attorneys’ fees under the EAJA.
Finally, government we note does result, cross-appeal this case. As a it pursuit
is foreclosed frоm further of its for- claim, despite ruling
feiture our that it met demonstrating probable initial
its burden of proceeding
cause to institute a forfeiture
against money question.
III.
CONCLUSION reasons, foregoing
For the the order of the denying attorneys’
district court costs and
fees Claire Soule
Affirmed. No costs. *2 Rossetti, Atty.,
Michael G. Asst. U.S. (Dennis W.D.N.Y., Vaceo, Buffalo, NY C. Atty., counsel), appellant. Buffalo, NY, Harrington, P. James for de- fendant-appellee. ALTIMARI, OAKES,
Before MAHONEY, Judges. Circuit MAHONEY, Judge: Circuit appeals from an The United States order in the entered November District for the Western Dis- Court Arcara, Judge, York, trict of New Richard J. adopted report recommendation of Foschio, Magistrate Judge. years experience Niagara Leslie G. cer with five defendant-appellee granted County Department. Stanford Specifically, Sheriffs motion in limine suppress Smith’s the Cl asserted least two individuals introduction into evidence at trial of narcotics whom the Cl believed were Jamaicans from *3 handgun apartment pursu- and a seized at an engaged “out of town” were in the sale of government ant to a warrant. The (the search apartment narcotics at “Apartment”) that the district court in contends erred de- Street, small, of 413 13th run-down residen- (1) termining cause did not apartment tial building Niagara Falls. (2) apartment, to exist search the the The weapons, Cl also advised Evans that as justified search wаs not under the drugs, well possibly being were sold at the exclusionary to the rule. Apartment. previously Evans had not em- ployed Bather, the assistance of this CL agree, and reverse of the order Cl had contacted local authorities to district court. offer in apprehending persons assistance sell- ing exchange leniency narcotics in Background re- garding unrelated narcotics offenses then appeal pretrial This arises from a motion pending against pro- him. The information in limine following April Smith’s vided the Cl was corroborated Evans’ April arrest indictment. The supervisor; Evans did not know the source Smith, charged alleged five-count indictment supervisor’s of intelligence. subject Guyana, to be a native and of with: (1) possession with intent to distribute co- On March Evans met the Cl at a caine base violation of U.S.C. Apartment building. location near the After 841(a)(1) (1988); using § carrying informing recently Evans he had trans- during drug firearm relation to a ported persons Apartment budding to trafficking offense in violation of 18 U.S.C. narcotics, purchase agreed attempt the Cl to 924(c) (1988 1990); § Supp. making & II purchase drugs Apartment of at thе under false, fictitious and fraudulent statements re- supervision. Evans then searched garding jurisdiction a matter within the the Cl for supplied contraband and him with Immigration and Naturalization Service “buy money” provided Niagara $40 (1988); § in violation of 18 U.S.C. (“NCDTF”). County Drug Task Force Ev- possessing a false identification document parked ans observed from a car as the Cl with intent to defraud the United States in Apartment building. Approxi- entered the 1028(a)(4) (1988); § violation of 18 U.S.C. mately later, four or five minutes the Cl (5) unlawfully entering the United States emerged plastic bag containing with a small previously having deрorted, after been positive chunk of material which field tested (1988 § violation Supp. of U.S.C. & II presence cocaine. The Cl in- indictment, Following the Smith purchased formed Evans that he had suppress moved to the introduction into evi- cocaine from a man named “John” quantity dence of a of cocaine base Apartment, and described “John” as a black handgun by police 9mm seized officials tall, approximately Jamaican male 5'5" the execution of a search warrant. build, slight to medium with a beard and Arcara referred the mоtion to moustache. The Cl further stated that an- Magistrate Judge report Foschio for and rec- other black male was also pursuant ommendation to 28 U.S.C. Apartment, and that he did not know 636(b)(1)(B) (1988). first or last name of that man. giving appeal The facts to rise are as follows, date, significantly disputed by apart- and are not At a later Evans entered the parties. building apartment Prior to March a confi- ment to confirm that an (the “Cl”) did, fact, addition, dential informant who claimed to exist. two concerning have information April the sale of nar- occasions between March 1 and Falls, City Niagara unsuccessfully cotics in attempted pur- New York 1991 the Cl approached Evans, Apartment William a narcotics offi- chase narcotics at pur- supervision, of Ev- the circumstances the two successful and under the
prompting, cocaine, chases of the latter ans. only occurred about two hours earlier. 19, 1991, however, being after April On provided to him the Based on information “John” had returned by the Cl that informed Evans also described Falls, supplied the Cl with Niagara (a layout one-room buy money, searched him for con- NCDTF studio). the circumstances of The Cl related traband, outside the Cl en- and waited Violante, purchases narcotics Apartment building. The Cl tered the stating male that “John” and another black shortly a small emerged thereafter with purchase, present at the were March positive field packet whose contents tested *4 were the same “John” and a black female this occa- presence
for the of cocaine. On Judge present April purchase. at the sion, “John” was the Cl stated that speaking written notеs while Violante took female, Apartment with a black and the Cl, and the he did not utilize with Evans but height as described “John’s” 5'10". Evans stenographer tape or record recorder to observe, directly electronically nor did not the discussion. surveill, procuring act of the Cl the the asking Apartment hearing “John” in the After these and cocaine from statements add, Judge to purchased. anything cocaine was Evans if he had either occasion when warrant, Ev- Violante authorized the Immediately following April pur- the to approximately ans and fifteen seventeen narcotics, prepared chase an Evans affida- immediately officers executed. Smith application vit for a search warrant Apartment, was at the and a search arrested prepared “fill in” form utilized the alia, premises yielded, nar- of the inter the expedi- required when a NCDTF warrant handgun currently at cotics and issue. arranged tiously. He then to meet that eve- light immigration weapons and the ning p.m., accompa- approximately 11:00 indictment, charges detailed the the Unit- Cl, Niagara City nied the Court Attorney ed the Western District Judge police headquar- A. Mark Violante prosecution. of New York took Smith’s over ters to search in order obtain warrant application hearing Magis- Apartment. suppression the The warrant At the before Foschio, Apartment by specified Judge Judge the and ad- trate testified number Violante dress, requested although prior Evans and authorization to search that he swore to dis- Apartment cussing surrounding investiga- and the entire for cocaine other the details the substances, Apartment, as well tion of Cl controlled as documеnts the the was never however, testified, currency tending show the source and sworn. Evans that when Violante, narcotics, buyers scope Judge the the he was sworn the Cl also enterprise, identity the hand also narcotics the raised his and therefore was persons Apartment. ap- controlling Judge The sworn. further Violante stated plication proceedings using described the two individuals he considered the before him to Apartment as “John name have been conducted in accordance with [last LNU 690.40(1) Doe,” (McKinney per- § unknown]” “John unknown N.Y.Crim.Proc.Law (1) 1984) it, particular son. It stated that: had as he and in Evans received understood applying information the Cl two Jamaican Evans’ affidavit the search occupied periodically requirement warrant satisfied the 690.- males (2) 40(1) there; cocaine ... either and sold March and “examination April had the Cl informed Evans that he had recorded or summarized on the record individuals; purchased narcotics from court.” these (3) purchased the substances on those testified that the Cl was Violante positive cocaine. occasions tested stenogrаpher sworn no “because I had
During
meeting
police headquarters,
going
rely
I
on him
I had
and wasn’t
tape
no
further
Evans reiterated to
sub-
recorder.”
Violante
testified
while he
into
stance of
information contained
took
consideration
no
application
regarding
the statements made
he made
affidavit
—
(2d Cir.),
regarding
credibility,
U.S.—,
determination
the Cl’s
and would have issued the warrant based
(1992),
magis
solely upon Evans’ affidavit and sworn testi-
trate
original
adhered to his
determi
mony
accompanied
if
had not
the Cl
nations that
lacking
cause was
proceeding.
did not
Cl
that the
to the exclu
testify
suppression hearing.
at the
sionary
apply. Further,
rule did not
in deny
ing
reconsider,
the first
Magistrate
motion to
Magistrate Judge Foschio ruled that
Judge Foschio
held that
ap
executing
evidence seized in
propriate for the additional reasons that the
suppressed
must be
because
issuing judge was never informed of the two
had not been established for issuance of the
attempts by
failed
pur
Cl and Evans to
Specifically,
magistrate judge
warrant.
chase narcotics at the
and that
opined that because
Evans had not inde-
lapse
of almost seven weeks between the
pendently corroborated the Cl’s statements
purchases
two successful
“raised a serious
regarding
Apartment by
the use of the
Ja-
question of
ruling
staleness.” In
in Smith’s
males;
maican
there was no evidence of
reconsider,
favor on the
motion to
second
reliability;
previous
prior
the Cl’s
magistrate judge distinguished Moore on a
purchases
merely
two cocaine
the Cl had
*5
bases,
including
number
the fact that “the
transported persons
to the
build-
failure to swear the informant in the instant
ing
personally purchased
and had not
narcot-
case
oversight.”
was intentional and not an
(4)
there;
personally
ics
and
Evans did not
purchases
witness either of the cocaine
at the
In an order entered November
Apartment,
taking
into account
adopted
report
Arcara
and recom-
failure to
Violante’s
swear the Cl or record
Magistrate Judge
mendation of
sup-
Foschio
testimony, probable
his
was not
cause
estab-
pressing
handgun
the narcotics and
seized
“totality
lished
of the circumstances”
Apartment.
government ap-
The
Gates,
test
in
articulated
Illinois v.
462 U.S.
peals
pursuant
from that order
to 18 U.S.C.
213,
(1983).
2317,
103 S.Ct.
information,
probability that
there is a fair
A. Probable Cause.
of a
contraband or evidence
crime will
particular place.
duty
found in a
And the
Fourth Amendment to the Con
reviewing
simply
ensure
shall
provides
“no Warrants
stitution
magistrate
had a
ba-
“substantial
issue,
cause, supported by
upon probable
but
conclud[ing]”
...
sis
affirmation,
particularly describ
Oath or
States,
cause
v.
existed. Jones United
searched,
persons
and the
ing
place to be
U.S.,
at
85 S.Ct.
L.Ed.2d
Rivera,
cocaine),
(quoting
denied,
F.2d at
possessing
also
Ven
cert.
498 U.S.
tresca,
746). 1101,
380 U.S.
86 S.Ct.
(1991);
S.Ct.
possession surveillance, cocaine. In both ed provided reasonable sus allegations Cl corroborated his picion investigative stop).
Apartment
used
as a retail location for
As has been observed in a similar case:
by describing in
narcotics sales
detail the
purchase
occupants,
its
[T]he fact that much of the information
Elliott,
transactions.
United States
contained
affidavit
[an]
[is] not based on
(9th Cir.) (“A
eye
detailed
not,
...
knowledge
first hand
in and of
report
witness
of a crime is self-cоrroborat
itself,
viability
material to the
of that affi-
ing;
supplies
reliability.”)
it
its own indicia of
Furthermore,
davit and the warrant.
it is
(citations omitted), modified,
Judge Violante testimony, unpro need not relate both for a search warrant er, affidavit that Evans’ oath, fur- or unsuccessful efforts the course provided under ductive of which Evans investigation. probable cause deter- See United States for his the basis nished (9th Cir.), Watts, 137 cert. the facts and the F.2d review of mination. Our denied, Ac- sustains that conclusion. applicable law (1988); any Sugar, States v. deprecating in sense L.Ed.2d United cordingly, while (S.D.N.Y.1985). required F.Supp. 1150-51 oath that is importance of the “staleness,” pro- rules of as we stated Rivera:
by As federal Constitution law, supрort investigations ongoing opera narcotics cedure, “In as state well that, tions, warrant, held intervals of not believe we have weeks of a do the issuance undermines or months the last described act and to swear Cl between that the failure application this for a warrant did not neces validity issued in case. of the warrant sarily the information stale.” 928 F.2d make also contends that Smith cases). (collecting In instant at 602 in a number other York law violated New Judge Violante issued warrant within unavailing, arguments are respects. These delay hardly a рurchase, hours of the second however, the touchstone of federal because finding of conducive to a staleness. Unit Cf. search warrant se court’s review of state Allen, F.2d ed States v. employed police officials and cured local (no (D.C.Cir.) curiam) (per staleness when prosecution the Fourth in a federal seventy-two within hours issued requirements, no its Amendment and — purchase), controlled Pforzheimer, States v. more. United —, (2d Cir.1987), explic apply to ... itly that “federal law should held Finally, unpersuaded we are though proseeution[s], even criminal federal Smith’s contentions that cause is prose leading to underlying investigation the Cl described undermined because Smith solely by state offi cution was conducted purchase, tall as 5'5" after first 5'10" the search at ruled that because cials.” We purchase, or because the Cl after second requirements of federal satisfied issue (based upon as a Jamaican described Smith law, no need to determine whether there was accent) his when he is fact native constitution. the Vermont the search violated Guayana. rule in this circuit is that as Id.; v. United see also Preston long applicant for the warrant accu 11 L.Ed.2d 84 S.Ct. represents provided rately the information (1964) (“The question evidence whether informant, probable by an not de against officers used obtained state erred, feated because the informant even in a federal trial was obtained defendant lied, description his events. *8 and seizure is to be unreasonable search Inc., Group, States v. Merchant Diamond had judged as if search and seizure been the (2d curiam) Cir.1977) 252, (per 253 565 officers.”); Elkins v. United made federal cases); (cоllecting also United see 80 364 U.S. S.Ct. (2d Barnes, Cir.1979), 604 F.2d (“The is one of 4 1669 test L.Ed.2d 1833, 100 64 446 S.Ct. law, enlarged by what neither one federal claim There is no countenanced, may nor diminished state have matters, deliberately lied about these the Cl colorably sup may have what another plausibly and it cannot be contended pressed.”). these minor errors or inconsistencies under probable cause. Judge as addi- mine the existence of Magistrate Foschio cited (“False Moore, at 222 grounds 968 F.2d information tional only if the information Judge that the Cl voids warrant was failure to inform cause.”) successfully necessary probable finding the of pur- failed on two occasions Delaware, cocaine, (citing Franks v. 438 U.S. the “staleness” result- chase 155-56, lapse 98 ing from the of seven weeks between (1978)). purchases. disagree. two cocaine We
the
1015 sum, was testimony In warrant issued this case affidavit and sworn the did suffice not probable cause, upon probable based valid determination of to establish we would not reversal, accept cause. This conclusion suffices the assessment that this was so clear completenеss, interest of also brought but the we that Evans must have the Cl before applicability “good of the address the faith” Judge understanding. Violante on that Cf. exclusionary the rule. exception Fama, (2d 758 F.2d Cir.1985) (officer rely upon could warrant “ Exception. B. Faith” “Good ‘provided when affidavit evidence sufficient disagreement among thoughtful to create Leon, As articulated the competent judges as to the existence of exception exclusionary ”) probable Leon, (quoting cause’ evidence, U.S. at despite the of rule allows admission 3422). cаuse, 104 S.Ct. at accept of Nor can the absence “when acting objective good with determination that Evans officer faith has must have known more judge requirements search warrant from a about obtained a 690.40(1) § magistrate scope.” testimony acted within its to sworn did than (footnote Violante, implicit assumption U.S. at S.Ct. at 3419 omit and the Moore, (“The ted); F.2d at 222 adequate see also that Evans should had confi- have objective good superior test of faith is knowledge “whether dence in his to instruct reasonably subject. well officer have trained would Violante on the illegal despite known that search was recording We next consider the re ”) Leon, magistrate’s (quoting authorization.’ 690.40(1), quirement § only aspect of 23). 23,104 at at n. 3420 n. by Taylor. Taylor the statute considered when, however, exception, apply not will considerably addressed weaker case alia, application so inter “is prosecution presented than Tay here. In lacking in indicia of cause as to lor, issuing magistrate had lost his notes upon it render reliance unreasonable.” hearing, nothing and remembered Moоre, Leon, (citing F.2d at 222 until prompted about it *9 resulting and with the conclusion that requirements aware of the of Crim.Proe.Law objec- not Evans did execute warrant in 690.40(1), especially in view “recent dec- good faith. tive Evans had verified the exis- strictly highest larations of state’s court tence of the and on occa- two construing requirements.” mag- The [these] sions, only sought one hours before he regard People istrate cited in this warrant, provided him searched Taylor, 73 N.Y.2d 543 N.Y.S.2d buy money, dispatched him the N.E.2d 386 emerged Apartment building, he disagree. if acceptеd Even we later with cocaine and a detailed moments magistrate judge’s Thus, description purchase. conclusion that of its even the warrant was assumption that the tenuous cause, Evans was by probable supported upon Judge Violante’s
justified relying Leon therefore issue it.
determination seized of the evidence
precludes suppression was executed.
when
Conclusion order of district
is reversed. concurring:
OAKES, Judge, Circuit Senior opinion portion of the
I in that concur exception to the “good faith”
dealing with the
exclusionary rule. America, Appellee,
UNITED STATES ROSENTHAL, E. Defendant-
Alan
Appellant. 1244, Docket 92-1738.
No. Appeals, Court of
United States Circuit.
Second
Argued March 1993. 16, 1993. Nov.
Decided notes at 104 S.Ct. at sought officer who the affidavit. See magistrate judge instant N.Y.2d 543 N.Y.S.2d at concluded that “Evans knew that the affida- facts, N.E.2d 387. Even these presented judge vit lacking 4-3, Appeals only Court of ruled over a therefore, and, brought he (73 vigorous 691-96, dissent N.Y.2d at in so informant that the informant could 361-63, 390-92), N.Y.S.2d 541 N.E.2d at testify persоnal knowledge to his § requirement that the recordation 690.- Magis- facts within contained the affidavit.” 40(1) been satisfied. We do not see trate Foschio also discredited Evans’ Evans, anyone, how or for matter could thought testimony that Evans the Cl had charged knowledge be with that in view Evans, simultaneously been sworn Taylor, requirements the recordation opined years expe- “[a]n five officer with 690.40(1) had not met in case. been rience such as Evans have must been aware accordingly disagree par- both with the any judge statements relied grounds magistrate ticular which the sworn,” issuing a must and simi- rejected the Leon in this larly concluded that Evans must have been