13-4603-c r

United States v. Rissew UNI TED STATES COURT OF A PPEAL S FOR THE SECOND CI RCUI T SUMMAR

Y ORDER Ruli ngs by s um ma ry o rde r do not have pre ced ent ial ef f ect . Cit ati on t o a s um ma ry o rde r f il ed on or af te r Janua ry 1, 2007 , is per mi tt ed and is gove rne d by F ede ral Rule of Appel lat e P roc edur e 32.1 and thi s cour t’ s Loca l Rule 32.1 .1. Whe n ci ti ng a sum ma ry orde r in a docu me n t f i l e d w i t h thi s cour t, a part y must ci te ei the r t he F ede ral Append ix or a n el ect roni c da tab ase (w it h the notat ion “sum ma ry orde r”) . A part y ci ti ng a sum ma ry orde r mu st ser ve a copy of it on any p a r t y not rep res ent ed by coun sel . At a stated Te rm of the United States Court of A ppeals for the Second Circuit, held at the For dham Univer sity

School of L aw, at 150 West 62nd S tree t, in the Cit y of Ne w York, on the 10 day of Oc tober, two thousand f ourtee n. t h Present: ROBERT A. K ATZ MANN, Chief Judge , DENNYCHI

N, Circuit Judge , L ORETTA A. PRESKA,

Chief Distri ct Judge
. *

________________________________________________ UNI TED STATES OF AMERI CA, Appellant , v. No. 13-4603-c r ADAM P. RI SSEW , Defendant- Appellee
.

________________________________________________ For Appellant: J O S E P H J
. K AR A S Z E W S K

I , Assistant United States Attorney , for Wil liam J . Hochul, Jr., United States Attorney for the Wester

n District of Ne w York, B uffa lo, NY. For Def endant- Appellee : M AR Y B E TH C O V E R

T , Attorney

for F eder al Public Defe nder’ s
The Honor able L oretta A . Preska, Chief Judge of the United States District Court for the * Southern District of Ne w York, sitting by desig nation.Offic e, Western District of New Y ork, B uffa lo, NY. Appea l from the United States District Court for the Western District of N ew Yor k (Skretny , C.J. ). ON CONSIDERATION WHE REOF, IT IS HEREB Y ORDERED, ADJUD GED, and DECREED that the dec ision of the district court g rantingDef endant- Appellee Adam Rissew’s motion to suppress be and he reby is REVERSED , and the c ase REMAND ED for further proce eding s. The United States a

ppeals fr om an orde r ente red on N ovember 8, 2013, by

the United States District Court for the Western D istrict of NewYork (Skre tny , C.J. ) g rantingDefendantAppellee Adam Rissew’s motion to suppress evidenc e discove red during a police sea

rch of his home. The district c ourt held that althoug h the sea rch at issue was conduc ted pursuant to a
war rant, that wa

rra nt was invalid bec ause it wa s not supported by probable cause . It further held that the g ood faith exception to the exclusionary rule did not apply , beca

use the wa

rra nt application wa s so lackingin indicia of proba ble ca use that a r easona

ble offic er c ould not rely

on the re sulting wa

rra nt. We assume the par

ties’ familiarity

with the underly

ing f acts, proc edura l history , and issues on appe al. Where, a s here , the re levant fa cts are undisputed, we re view de novo the leg al issues of whether a wa rra nt was supported by

probable cause and whe ther the g ood faith exception applies. United States v. Clark, 638 F.3d 89, 93 ( 2d Cir. 2011). Probable c ause f or a se arc h
war rant re quires “a

fair pr obability

that contra

band or e vidence of a c rime will be found” in the place to be sea

rche d. Illinois v. Gates , 462 U.S. 213, 238 (1983). Where a mag istrate finds probable cause and issues a se arc h war rant, “ the task of a

revie wing court is simply to ensure that the ‘totality

of the c ircumstance s’ af

forde d the mag istrate ‘a

substantial basis’ for making the
2requisite proba ble ca use dete rmination.” Clark , 638 F.3d at 93 (quoting Gates , 462 U.S. at 238). Moreove r, “[w]hen police ac t under a war rant that is invalid for lac k of proba ble ca use, the exclusionary

rule doe s not apply

if the police a cted ‘ in objectively rea sonable re liance’ on the subsequently

invalidated sea

rch w arr ant.” Herring v. United States , 555 U.S. 135, 142 (2009) (quoting United States v. Leon , 468 U.S. 897, 922 (1984)). The burden r ests on the g overnme nt to prove that police relianc e on a w arr ant was obje ctively rea sonable. Clark , 638 F.3d at 100. Police relianc e on a w arr ant is not objectively rea sonable if, inter

alia, the wa

rra nt application is “so lac king in indicia of

probable cause as to rende r re liance upon it unre asonable .” Id. (quoting United States v. Moore , 968 F.2d 216, 222 ( 2d Cir. 1992)). That, however , “is a ve ry difficult threshold to meet.” United States v. Falso , 544 F.3d 110, 128 n.24 ( 2d Cir. 2008). I t most often applies “when af

fidavits are bare bones, i.e. , totally devoid of fa ctual cir cumstance s to support conclusory

alleg ations.” Clark , 638 F.3d at 103. By contra st, where “‘thoughtful and compe tent judge s’ might disagree as to whethe r the fa cts alleg ed esta blished probable c ause,” the g ood faith exception should apply

to preve nt suppression. Id. at 104 (quoting Leon , 468 U.S. at 926). We ag ree with the g overnme nt that the district court er red in holdingthat the g ood faith exception did not apply . The wa rra nt application in this case a lleg ed (a mong othe r thing s) that a confide ntial informant had told the police e ight months ea rlier that Rissew wa s g rowing marijuana in his house; that Ri ssew’s young son had told a conf idential source eleve n day s
ear lier that his fathe r wa s g rowing“bamboo” in his house and had identifie d a picture of marijuana as looking like his father ’s “bamboo”; and that re cords f rom Rissew’s elec tric company showed that for

the past four

teen months, his house had used on a vera g e four

to five times the elec tricity

of compa rable houses, which is indicative of a mar ijuana growingopera tion.

3We are convince d that “thoug htful and compe tent judge s” mig ht believe these alleg ations were

sufficie nt to demonstrate proba ble ca use. Clark , 638 F.3d a

t 104 (quoting Leon , 468 U.S. at 926); see U nited States v. Thomas , 605 F.3d 300, 308 ( 6th Cir. 2010); United States v. Kattaria , 553 F.3d 1171, 1176 ( 8th Cir. 2009) (per curiam); United States v. Huggins , 299 F.3d 1039, 1045 (9th Cir. 2002). I t was there fore objectively rea sonable for

the executing office rs to rely on the mag istrate’s de cision to issue a war rant, a nd the g ood faith exception applies to pre vent suppression of the r esulting e vidence
. 1 In his suppression motion, R issew also soug ht suppression of ce rtain comments he ma de to the police af

ter he was a

rre sted, claimingthat those comments wer e elicited in violation of his rig hts under Miranda v. Arizona , 384 U.S. 436 (1966). The district court did not rea ch Rissew’s Miranda argument; instead, it held that his comments should be suppresse d as the fr uit of the poisonous tree, since (in its opinion) they stemmed from the se arc h of Rissew’s home. B eca use we hold that the g ood faith exception applies, we reve rse that pa rt of the district cour

t’s decision
as we ll. But as the district cour t has not y et consider ed Rissew’s Miranda argument, we e x press no opinion on its merits, and we do not forec lose Rissew from ra ising it ag ain on re mand. For the re asons g iven above , we REVERSE the dec ision of the district court granting Rissew’s motion to suppress, and REMAND for f urther pr ocee dings.
FOR THE COURT: CATHERI

NE O’H AGAN WOLFE, CL ERK

Be cause the g ood faith exception will prevent suppre ssion in any case , we ne ed not 1 decide (and do not de cide) whether the war rant wa s in fact supporte d by probable cause . 4