12-4164-cr United States v. Rickard
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 27 thday of August, two thousand thirteen. 4 5 PRESENT: PIERRE N . LEVAL , 6 R ICHARD C. WESLEY , 7 PETER W . HALL , 8 Circuit Judges

. 9 10 11 12 UNITED STATES OF AMERICA, 13 14 Petitioner-Appellee , 15 16 -v.- 12-4164-cr 17 18 JOHN RICKARD, 19 20 Respondent-Appellant. 21 22 23 FOR APPELLEE: JEREMY D. SCHWARTZ, Buffalo, NY. 24 25 FOR APPELLANT: MELISSA M. MARANGOLA, Assistant United 26 States Attorney, for William J. Hochul 27 Jr., United States Attorney for the 28 Western District of New York, Buffalo, 29 NY. 30 31 Appeal from the United States District Court for the 32 Western District of New York (Skretny, J .). 33**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 1

**AND DECREED**that the judgment of the district court be 2

**REVERSED**

. 3 The government appeals the decision of the US District 4 Court for the Western District of New York suppressing 5 evidence seized during a search of Defendant John Rickard’s 6 home, 254 Laird Avenue, Buffalo, New York. We assume the 7 parties’ familiarity with the facts and procedural posture. 8 I. Background 9 On November 3, 2009, after receiving numerous anonymous 10 complaints of drug activity at 254 Laird, Detective Paul 11 Delano of the Buffalo Police Department directed a 12 confidential informant to attempt to purchase drugs at that 13 address. As the CI approached the home, a slight light14 skinned black male came down from the front porch, and sold 15 crack cocaine to the CI. 16 On November 4, 2009, the Buffalo Police Department 17 applied for a search warrant for 254 Laird. In support of 18 the application, the CI and Detective Delano testified in 19

camera . The CI testified that a man by the name of “A” sold 20 him twenty dollars’ worth of crack cocaine at 254 Laird St, 21 a white, two family dwelling. The CI further testified that 22

2he lived in the neighborhood but did not know whether A 1 lived or merely stayed at 254 Laird. It is undisputed that A 2 is not the defendant. 3 There were several confusing discrepancies in the 4 warrant application. During the CI’s testimony, Delano 5 corrected the CI’s statement that 254 Laird was a two family 6 residence. It is a single family residence. Adding to the 7 confusion, while correcting the CI, Delano mis-spoke and 8 said that the address was 257 Laird. Delano then corrected 9 himself and said that he meant 254. To confuse things still 10 further, 254 Laird is beige, not white as the CI testified. 11 Delano later averred that it is in fact beige, but appeared 12 white at night. 13 Following Delano and the CI’s testimony, a Buffalo City 14 Court Judge issued the warrant authorizing the search of 254 15 Laird. Detective Delano, accompanied by other officers, 16 executed the warrant on November 9, 2009. They seized five 17 ounces of crack cocaine, firearms, ammunition, and $58,000 18 in cash. 19 On June 23, 2011, based on the evidence seized, a 20 federal grand jury returned a true bill charging Rickard 21 with (1) possessing cocaine with intent to distribute, (2) 22

3maintaining a premises for the purpose of distributing 1 cocaine, (3) possessing firearms for drug trafficking; and 2 (4) possessing firearms as a felon. On February 1, 2012, 3 Rickard moved to suppress the evidence seized during the 4 search, arguing that there was insufficient evidence linking 5 him and 254 Laird to the drug transaction. The federal 6 magistrate judge to whom pretrial matters had been referred 7 issued a report and recommendation that agreed with Rickard 8 and concluded that the warrant was so lacking in probable 9 cause that no reasonable officer could have relied on it in 10 good faith. The district court adopted the magistrate 11 judge’s report without explanation and the United States 12 appeals. 13 II. Discussion 14 The decision whether to issue a warrant requires 15 answering the "commonsense, practical question whether there 16 is ‘probable cause’ to believe that contraband or evidence 17 is located in a particular place." Illinois v. Gates , 462 18 U.S. 213, 230 (1983). Regardless of whether there was in 19 fact probable cause, however, we do not apply the 20 exclusionary rule where an officer obtained evidence by 21 acting in reasonable reliance on a defective search warrant 22

4issued by a neutral magistrate. See United States v. Leon , 1 468 U.S. 897, 922-23 (1984). The exclusionary rule operates 2 to deter illegal searches by police, not as a personal 3 constitutional right of the aggrieved party. Id. at 906-07. 4 Therefore, "suppression is ‘our last resort, not our first 5 impulse.’" United States v. Clark , 638 F.3d 89, 99 (2d Cir. 6 2011)(quoting Herring v. United States , 555 U.S. 135, 140 7 (2009)). 8 It is the government’s burden to establish the good 9 faith of its officers. Clark , 638 F.3d at 100. 10 Nonetheless, the court need not inquire in depth as to the 11 reasonableness of searches conducted pursuant to a warrant. 12

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

In Leon , the Supreme Court identified a limited number of 14 circumstances where the good faith exception to the 15 exclusionary rule would not apply, none of which are present 16 here. Clark , 638 F.3d at 100. 17 In defending the district court’s ruling, Rickard 18 argues that there was no nexus between A and 254 Laird, that 19 Delano knowingly misled the issuing judge by withholding the 20 fact that the CI did not know A or where he lived, and that 21 the judge unreasonably failed to inquire into the basis of 22

5the CI’s knowledge of A. We disagree. There plainly was a 1 nexus between A and 254 Laird. As the CI approached No. 254 2 to buy drugs, he found A standing on the porch. A asked the 3 CI if he needed something and then sold drugs to the CI just 4 in front of the porch. A need not live at No. 254 to use it 5 for drug distribution and the CI need not know A to 6 ascertain that A was using the front porch of No. 254 as a 7 base from which to sell drugs. These facts, combined with 8 the complaints on the tip line, are enough to survive a Leon 9 good faith analysis. 10 The fact that Delano described the house as white 11 rather than beige in the warrant application does not 12 undermine this conclusion. The discrepancy was explained as 13 attributable to the white appearance of beige by nighttime 14 light. In any event, Delano executed the search and knew 15 which house was the target of the warrant. Similarly, 16 Delano’s misstatement of “257 Laird” does not establish that 17 the warrant was obtained in bad faith. We will not exclude 18 evidence every time an officer mis-speaks and corrects 19 himself while applying for a warrant. 20 Rickard’s argument that there was insufficient evidence 21 linking him to A’s sale is misconceived and beside the 22

6point. What was at issue in the ruling below was not the 1 sufficiency of evidence to support the indictment of 2 Rickard, but the propriety of the search on 254 Laird 3 conducted pursuant to the warrant. Our decision upholding 4 the search does not concern or address the propriety of the 5 indictment of Rickard. 6 For the foregoing reasons, the judgment of the 7 district court is hereby **REVERSED**

. 8 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13

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