USA v. Bongiovanni, et al.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cr-00227-LJV-MJR Document 496 Filed 05/30/23. Page 1 of 20

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 19-CR-227 (JLS) (MJR)

JOSEPH BONGIOVANNI,
PETER GERACE, JR.,

Defendants.

UNITED STATES OF AMERICA,

v. 23-CR-37 (JLS) (MJR)

PETER GERACE, JR.,

Defendant.

DECISION AND ORDER

Defendant Peter Gerace, Jr. moves to suppress all evidence seized during the
November 2019 searches of his home and his business, Pharaoh’s Gentlemen’s Club,
based on purported violations of Franks v. Delaware, 438 U.S. 154 (1978). Dkt.
432.1 The Government responded in opposition (Dkt. 440), and Gerace replied in
further support (Dkt. 448). For the reasons below, the Court DENIES Gerace’s

motion in its entirety.

' All docket references are to the 19-CR-227 docket. And all page references to
docket entries refer to the numbering automatically generated by CM/ECF, which
appears in the header of each page.

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DISCUSSION

I, Timeliness

Gerace’s motion is timely. Federal Rule of Criminal Procedure 12 provides
that a defendant must move to suppress before trial by “pretrial motion if the basis
for the motion is then reasonably available[,] and the motion can be determined
without a trial on the merits.” Fed. R. Crim. P. 12(b)(8)(C). If a defendant makes
an untimely motion, the court may consider it if he or she “shows good cause.” Fed.
R. Crim. P. 12(c)(8).

Gerace filed the motion on April 12, 2023—a little over two months before the
original trial date and four months before the current trial date.2. His motion is
based on the search warrant application for his home and Pharaoh's, which counsel
received in redacted form on or after February 14, 2023.3 While counsel perhaps
could have filed this motion a couple of weeks sooner, the Court cannot conclude
that the motion is untimely under Rule 12(b)(3).

Indeed, the Court contemplated that Gerace may move to suppress after
recelving this search warrant application. On November 5, 2021—after several

rounds of litigation over unsealing this and other search warrant applications—

2 On May 17, 2023, the Court granted co-defendant Joseph Bongiovanni’s motion for
a continuance of the trial date—after granting the motion by Bongiovanni’s counsel
to withdraw, and after assigning Bongiovanni two new attorneys—and re-set the
trial date for August 14, 2023. Dkt. 484.

3 On February 14, 2023, the Court issued a text order authorizing the Government's
proposed redactions to this search warrant application (Case No. 19-M-53038), and
directed the Government to disclose the redacted application to Gerace and
Bongiovanni pursuant to the governing protective order. Dkt. 372.

2

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Gerace asked the Court to adopt a procedure that would allow him to file any
suppression motions after receiving the applications. See Dkt. 210. On January 7,
2022, the Court held that motion in abeyance and instructed the parties that it
would revisit the issue after setting a trial date. See Dkt. 238. At a November 30,
2022 status conference, the Court set trial to commence on June 21, 2023, and
discussed with the parties disclosure of 3500 materials—specifically. early
disclosure—among other things. See Dkt. 324. The Government moved for a
protective order on December 21, 2022. Dkt. 331; Dkt. 332. At a January 6, 2023
status conference, the Court discussed the proposed protective order: it then issued
the protective order on January 9, 2023. Dkt. 346; Dkt. 347. Thereafter, the
Government provided the Court, on a rolling basis, with proposed redactions to
certain search warrant applications—including the one underlying Gerace’s motion
here.

Because Gerace filed this instant motion before trial, a reasonable amount of
time after receiving the underlying search warrant application, and consistent with
the procedure crafted by the Court, his motion is timely.

JI. Merits of Franks Motion

Gerace argues that material misrepresentations and omissions in the search
warrant application for his home and Pharaoh’s require a Franks hearing and
suppression of all evidence seized pursuant to the warrant because the good-faith
exception to the exclusionary rule does not apply. The Court denies Gerace’s

motion, in full, because (1) Gerace did not make the substantial preliminary

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showing required for a Franks hearing, (2) probable cause exists to support issuance
of the warrant regardless of the claimed misstatement and omissions, and (3) in any
event, the good-faith exception to the exclusionary rule applies. making suppression
inappropriate.
A. Franks Hearing
1. Legal Standards

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV (emphasis added). The Supreme Court “has interpreted the
warrant clause as containing an implicit guarantee that the information in a
warrant application is truthful in the sense that the information put forth is
believed or appropriately accepted by the affiant as true.” United States v.
McKenzie, 18 F.4th 223, 236 (2d Cir. 2021) (quoting Franks v. Delaware, 438 U.S.
154, 165 (1978)) Gnternal quotation marks omitted).

Along those lines, “where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit,” and
“the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s

request.” Franks, 438 U.S. at 155-56. To invoke Franks, a defendant must

4

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demonstrate that: (1) “there were intentional and material misrepresentations or
omissions’ in the warrant affidavit”; and (2) “the ‘alleged falsehoods or omissions
were necessary to the... probable cause finding.” United States v. Fernandes, 50
F. Supp. 3d 398, 403 (W.D.N.Y. 2014) (quoting United States v. Mandell, 752 F.3d
544, 552 (2d Cir. 2014)).

As to the first prong, a defendant must present “credible and probative
evidence that a misstatement or omission in a warrant application was designed to
mislead or was made in reckless disregard of whether it would mislead.” United
States v. Nejad, 436 F. Supp. 3d 707, 719 (S.D.N.Y. 2020) (quoting United States v.
Rajaratnam, 719 F.3d 139, 154 (2d Cir. 2013)) (internal quotation marks and
alterations omitted). Misstatements or omissions “caused by ‘negligence or innocent
mistakes’ do not warrant suppression.” Rajaratnam, 719 F.3d at 153 (quoting
Franks, 438 U.S. at 171) (alterations omitted).4

A reviewing court may infer recklessness “where the omitted information was
‘clearly critical’ to the probable cause determination.” Rivera v. United States, 928

F.2d 592, 604 (2d Cir. 1991) (citations omitted). But courts should not

' Gerace suggests that reliance on Franks-related caselaw that predates Davis v.
United States, 564 U.S. 229 (2011), is improper. See Dkt. 448, at 4-5. Davis dealt
with the exclusionary rule, and the good-faith exception to that rule, and did not
address Franks or the standard set by that case and its progeny. See Davis, 564
U.S. at 232 (“Because suppression would do nothing to deter police misconduct in
these circumstances, and because it would come at a high cost to both the truth and
the public safety, we hold that searches conducted in objectively reasonable
reliance on binding appellate precedent are not subject to the exclusionary rule.”).
The Court has applied Davis to its analysis of the good-faith exception to the
exclusionary rule. See infra Section JJ.B. But the Court does not read Davis to alter
the Franks analysis.

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“automatically draw[]” such an inference “simply because a reasonable person
would have included the omitted information.” Rajaratnam, 719 F.3d at 154.
Indeed, “the mere intent to exclude information is insufficient” because “[a]n affiant
cannot be expected to include in an affidavit every piece of information gathered in
the course of an investigation.” United States v. Awadallah, 349 F.8d 42, 67-68 (2d
Cir. 2003) (quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)).

As to the second prong, “courts ‘gauge materiality by a process of subtraction’
or addition depending on whether misstatements or omissions are at issue.” Nejad.
436 F. Supp. 3d at 719 (quoting Awadallah, 349 F.3d at 65). Courts “should
disregard the allegedly false statements. .. . insert the omitted truths, ... and
determine whether there remains a residue of independent and lawful information
sufficient to support probable cause.” 7d. Gnternal quotation marks «nd citations
omitted). In this context, the reviewing court analyzes probable cause de novo.
United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000).

If a court determines that a warrant application “contains both lawful and
tainted allegations,” the application is valid so long as “the lawful information,
considered independently, supports probable cause.” United States v. Ferguson. 758
F.2d 848, 849 (2d Cir. 1985). This is because the “ultimate inquiry on a motion to
suppress is not... whether the affidavit contains false allegations or material
omissions, but whether after putting such aside, there remains a residue of

independent and lawful information sufficient to support probable cause.” Id.: see

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also United States v. Trzaska, 111 F.3d 1019, 1027 (2d Cir. 1997) “Every statement
in a warrant affidavit does not have to be true.’).

A court “need order a hearing only if the defendant makes an offer of proof
suggesting knowing falsity or reckless disregard (as opposed to negligence), and if,
setting the suspect information aside, there is no longer probable cause to support
the search.” United States v. Singh, 390 F.3d 168, 181 (2d Cir. 2004). On the other
hand, “fi]f, after setting aside the allegedly misleading statements or omissions, the
affidavit, nonetheless, presents sufficient information to support a finding of
probable cause, the district court need not conduct a Franks hearing.” United
States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998).

To make the substantial preliminary showing required for a hearing, the
person challenging the warrant must offer “specific allegations accompanied by an
offer of proof’ because “[u]nsupported conclusory allegations of falsehood or
material omission cannot support a Franks challenge.” Nejad, 436 F. Supp. 3d at
719 (quoting Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)). He or she “must
show by a preponderance of the evidence” that each prong is satisfied. Ferguson,
758 F.2d at 848.

2. Analysis

Gerace does not make the substantial preliminary showing on either prong
required to establish a Franks violation.

Gerace argues that the affidavit omitted: (1) information about a law

enforcement agency’s unwillingness to pursue a specific investigative technique

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regarding Pharaoh's after a particular date, rendering the search warrant
application stale; (2) information about the sentence each source woulil receive
without credit for assisting authorities; (3) information about the reliability of
certain unspecified sources; (4) firsthand information about connections to certain
groups/organizations specified in the affidavit; (5) the full circumstances
surrounding a criminal charge against a source; (6) corroborating facts regarding
specified allegations in paragraphs 48 through 47, 49 through 53, and 58 of the
affidavit, instead relying on the affiant’s training and experience; and
(7) information regarding a purported Pharaoh's policy, in effect during the relevant
period, to fire any employee involved with drug use or distribution. Gerace also
argues that a slight difference in word choice between the affiant’s statement in the
affidavit and in grand jury testimony constituted a misstatement.5
i. Knowing Falsity or Reckless Disregard

As to the first prong, Gerace presents no “credible and probative evidence”
that any omission or misstatement “was designed to mislead or was made in
reckless disregard of whether it would mislead.’ See Nejad, 436 F. Supp. 3d at 719

(internal quotation marks, citations, and alterations omitted). The only reference in

5 In addition, Gerace cites several favorable facts included in the affidavit, which he
claims should have prompted the magistrate judge not to issue the search warrant.
Such facts—which Gerace concedes the affidavit contains, and which Gerace does
not appear to claim are false—constitute neither omissions nor misstatements.

The Court cites these examples to summarize Gerace’s claimed omissions and
misstatements, mindful that the specific details exist in documents sealed pursuant
to a protective order. But the Court has considered each specific purported omission
and misstatement raised by Gerace in reaching its decision here.

8

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Gerace’s motion to the affiant’s intent is the claim that the affiant’s use of “she” in
his affidavit to describe an encounter involving an attempt to obtain drugs at
Pharaoh’s, but the use of “we” to describe the same encounter in the affiant’s grand
jury testimony, demonstrate that the affiant “is inherently untrustworthy.” See
Dkt. 432, at 4 9{] 12, 13. This slight semantic difference does not equate to inherent
untrustworthiness. And Gerace’s conclusory claim does not constitute the required
credible and probative evidence.

Nor does the statement that Gerace’s counsel “understands that throughout
the indictment period, Pharaoh’s had a strict policy that any employee involved
with drug use or distribution inside of the club would be fired” demonstrate the
required intent to mislead. See id. at 9 { 33. For example, Gerace’s motion does not
state how counsel “understands” the policy. Gerace falls short of presenting
credible and probative circumstances that the affiant intentionally or recklessly
omitted such information from his affidavit.

Under certain circumstances, a reviewing court may infer recklessness. But
such an inference is not appropriate here. Gerace does not cite any omitted
information “clearly critical” to the probable cause determination to trigger the
inference. See Rivera, 928 F.2d at 604 (internal quotation marks and citations
omitted). Indeed, Gerace concedes the affidavit “contains a number of factual
assertions which are favorable to [him].” Dkt. 432, at 8 { 31; see also id. at 9
{| 32(a)-(c). The affiant’s inclusion of such favorable information makes an

inference of recklessness inappropriate.

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In sum, Gerace did not make the substantial preliminary showing of the
affiant’s intent to mislead or reckless disregard of misleading the magistrate judge
that is necessary to establish a Franks violation. Regardless, in the interest of
completeness, the Court will consider whether the omissions and misstatement
Gerace claims were material to the probable cause determination.

ii. Materiality and Probable Cause

Even if the omissions and misstatements Gerace cites were as he claims,
sufficient information exists—adding in the purported omissions and subtracting
the purported misstatement—to support probable cause as to Gerace’s home and
Pharaoh’s.

Probable cause “requires a ‘fair probability that contraband or evidence of a
crime will be found in a particular place.” McKenzie, 13 F.4th at 236 (quoting
Illinois v. Gates, 462 U.S. 218, 238 (1983)). Probable cause to conduct a search
exists where “the available facts would ‘warrant a person of reasonable caution’ to
believe that contraband or evidence of a crime is present.” Id. (quoting Florida v.
Harris, 568 U.S. 237, 243 (2013)). Courts assessing probable cause should “consider
the ‘totality of the circumstances.” Jd. (quoting Harris, 568 U.S. at 244). They
should read the affidavit in support of the search warrant “as a whole” and should
“construe[] [the affidavit] realistically.” Salameh, 152 F.3d at 118. Along those
lines, courts “have repeatedly been warned not to ‘interpret the affidavit in a
hypertechnical, rather than a commonsense, manner.” Canfield, 212 F.3d at 719

(quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)) (alterations omitted).

10

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The Court has conducted a de novo review of the search warrant application
for Gerace’s home and Pharaoh’s, adding in the purported omissions and correcting
the purported misstatement. Upon that review, the Court is confident that the
application establishes probable cause to search both locations.®

The application to search Gerace’s home and Pharaoh’s consists of a forty-
one-page affidavit, which contains information from eleven sources with specific
information about Gerace, his home, or Pharaoh's, as well as information from two
law enforcement sources. The application also attaches three authorized search
warrant applications related to this case, see Dkt. 370, at Attachments C, D, E—
which themselves contain source information, including information about Gerace—
as well as the original indictment in this case, see id. at Attachment F.

As to Gerace’s home, Source 1’ provided firsthand information regarding the
presence of drugs at Gerace’s home less than two months before the search warrant
issued. See Dkt. 370, at 11 | 24 n.8; id. at 138 7 24(u). Source 1 also referenced

recurring events at Gerace’s home where drugs were available. See id. at 13

6 In the ensuing analysis, the Court provides examples of details from the affidavit
that establish probable cause as to each premises. This discussion summarizes
information in the application related to probable cause: the Court's probable cause
determination was not limited to these examples. Rather, as the law instructs, the
Court considered the totality of the circumstances and read the affidavit as a whole
to determine that probable cause exists as to each premises.

7 Source 1 1s identified by name in the affidavit and provides details about how
he/she knows Gerace and is familiar with Gerace’s home and Pharaohs. See Dkt.
370, at 11 {| 24. Law enforcement has corroborated certain information provided by
Source 1 through independent investigation. See id. at 12 § 24(q) & n.5. The
information contained in Gerace’s pending motion to re-open his detention hearing
(Dkt. 491) does not change the Court’s analysis here.

11

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{| 24(v). In addition, Source 58 identified Gerace’s source of drugs. See id at 20
14 29(k), (n).

As to Pharaoh’s, Source 1 stated that a particular person has distributed
drugs to Source 1 at Pharaoh’s, see id. at 12 § 24G), and that Source 1 observed
drugs at Pharaoh’s during a particular event, see id. § 24(t). Sources 2. 4, 7, 8, and
9° stated that they have used drugs at Pharaoh's. See id. at 15 © 26(b), 17 § 28(h),
23 { 31(e), 23 { 32(c), 26 | 35(). Source 7 also purchased drugs from Pharaoh's on
one occasion. See id. at 23 § 314). Source 31° has sold drugs at Pharaoh's on
several occasions and witnessed a Pharaoh’s employee, who Source 8 identified by
name, sell drugs at Pharaoh’s. See id. at 16 § 27(b), 17 { 27(h). Source 6!! has
witnessed people use drugs at Pharaoh’s and identified people who sold drugs there.
See id. at 21 4 30(h), G). Sources 3 and 6 stated that others, including Pharaoh’s
employees, know drugs were available or sold at Pharaoh’s. See id. at 16 4 27(b)—
(d), 22 { 30@). In addition, the affidavit states that law enforcement had
investigations into drug trafficking at Pharaoh’s at two separate times. See id. at

26 { 37(a), 27 | 37(b); see also id. at 27 4] 37(), G).

8 Source 5 is identified by name in the affidavit and provides details about how
he/she knows Gerace and is familiar with Pharaoh’s. See id. at 19 4) 29.

® Sources 2, 4, 7, 8, and 9 are identified by name in the affidavit, and each provides
details about how he/she is familiar with Pharaoh’s. See id. at 15 © 26 (Source 2),
18 { 28 (Source 4), 23 { 31 (Source 7), 23 § 32 (Source 8), 25 35 (Source 9).

10 Source 3 is identified by name in the affidavit and provides details about how
he/she is familiar with Pharaoh’s. See id. at 16 § 27.

11 Source 6 is identified by name in the affidavit and provides details about how
he/she is familiar with Pharaoh’s. See id. at 21 { 30.

12

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The absence from the affidavit of one law enforcement agency's decision not
to use a particular investigative technique at Pharaoh's in the future does not
constitute a material omission. See United States v. Smith, 9 F.3d 1007, 1014 2d
Cir. 1993) (An “otherwise sufficient application for a search warrant need not relate
unproductive or unsuccessful efforts in the court of the investigation.”). Here, the
affidavit disclosed certain unsuccessful investigative steps at Pharaoh’s—and also
explained why those steps likely failed. See Dkt. 370, at 29 § 40(f) & n.23. Under
these circumstances, and in light of the totality of circumstances set forth in the
affidavit, the fact that one agency elected not to take certain further steps does not
defeat probable cause.

Nor does that omission render stale all information preceding the date one
agency declined to further pursue a particular investigative technique. There is “no
bright line rule for staleness”—although the facts contained in a supporting
affidavit “must be sufficiently close in time to the issuance of the warrant and the
subsequent search conducted so that probable cause can be said to exist as of the
time of the search and not simply as of some time in the past.” United States v.
Wagner, 989 F.2d 69, 75 (2d Cir. 1993). Passage of time is relevant to determining
probable cause but “is not controlling”: rather, it is “but one factor to be considered,
along with the kind of property sought and the nature of the criminal activity.”
Singh, 390 F.3d at 181-82.

Courts also consider the duration of the alleged criminal activity. See id. at

182. Along those lines, “[flacts of past criminal activity that by themselves are too

18

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stale can be sufficient if the affidavit also establishes a pattern of continuing
criminal activity so there is reason to believe that the cited activity was probably
not a one-time occurrence.” Wagner, 989 F.2d at 75. In a situation involving “a
pattern of continuing criminal activity, ... the passage of time between the last
alleged event and the warrant application is less significant.” United States v.
Raymonda, 780 F.3d 105, 114 (2d Cir. 2015) (internal quotation marks and citation
omitted); see also Singh, 390 F.3d at 182 (where information in affidavit “indicated
an activity of an ongoing and long-term nature, ... the passage of time between the
furnishing of the information and the execution of the warrant was not significant
under the circumstances”).

A modest time lag between a fact or facts offered in support of probable cause
“generally [will] not affect probable cause” where the warrant “was sought at the
culmination of a major investigation into ongoing, long-term criminal activity.”
United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985): see also Rivera, 928 F.2d at
603 (“In investigations of ongoing narcotics operations. ... intervals of weeks or
months between the last described act and the application for a warrant [does] not
necessarily make the information stale.”) (citing cases). Cf. Wagner, 989 F.2d at 74—
75 (fact that confidential informant purchased small amount of marijuana from a
woman almost seven weeks prior to the search was stale, but if the woman “were in
any way linked to the ongoing conspiracy, the warrant would not have been stale”).

Here, the affidavit contains numerous examples that demonstrate long-term

and recurring alleged criminal activity involving Gerace and Pharaoh's. First, the

14

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affiant stated that he sought the warrant in connection with an ongoing criminal
investigation of federal criminal offenses, including, among other things, conspiracy
to distribute controlled substances. See Dkt. 370, at 44] 4. The information from
numerous sources, discussed above, indicated long-term and recurring drug use and
transactions at Pharaoh’s. Law enforcement initiated investigations into drug
trafficking at Pharaoh’s multiple times, several years apart. More than one source
stated that drug use and sales at Pharaoh's were common knowledge among
employees.!2 As to Gerace’s home, Source 1 recounted drug use at Gerace’s home
less than two months before the search warrant issued. See id. at 11 | 24n.3,13§
24(u). Source 1 also referenced recurring events at Gerace’s home where drugs
were available. See id. § 24(v). Under these circumstances, the affidavit was not
stale.

Moreover, the affidavit contains sufficient information for the Court to
ascertain the eleven sources’ reliability. When “assessing the existence of probable
cause based on an informant’s information, ‘the core question . . . is whether the
information is reliable.” McKenzie, 13 F.4th at 237-88 (quoting Wagner, 989 F.2d
at 72). Information may be sufficiently reliable to support probable cause if: (1) the

“person providing the information has a track record of providing reliable

12 And the search warrant application does not focus solely on drugs, drug evidence,
or the current presence of drugs at Pharaoh’s or Gerace’s home. Rather, the
affidavit cites an investigation for other potential crimes—separate from drug
trafficking—and lists items other than drugs for which probable cause exists as to
Pharaoh’s and Gerace’s home.

15

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information”; or (2) the information “is corroborated in material respects by
independent evidence.” Wagner, 989 F.2d at 72-738.

Courts may assess reliability by inquiring into an informant’s veracity—
although “it is improper to discount an informant’s information simply because he
[or she] has no proven record of truthfulness or accuracy.” Id. at 73. Courts also
may assess reliability by considering the quality of an informant’s sources of
information—for example, “the degree to which his [or her] information is based on
reliable means, such as first-hand observations or second-hand information from
reliable sources, rather than on unreliable means such as rumor or innuendo.” Id.
A court should determine whether such information is reliable “by examining the
‘totality of the circumstances’ bearing on its reliability.” Smith, 9 F.3d at 1012
(quoting Gates, 462 U.S. at 230-81).

As stated above, the Court conducted a de novo review of the search warrant
application for probable cause. The affidavit details how each source was familiar
with the people or premises they provided various types of information about.
Information from different sources was largely consistent, and the sources
corroborated aspects of each other’s information. Law enforcement investigation
corroborated certain source information as well. Where a source was facing
criminal charges and cooperating with the hope of receiving a favorable disposition
of his or her case, the affiant disclosed that fact. See Dkt. 370, at 16 § 27, 18 § 28,
19 { 29, 21 § 30, 22 § 31, 26 § 36 & n.20. Under these circumstances, the specific

benefit a source might receive has a negligible cffect—if any—on probable cause.

16

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To the extent that information related to certain groups/organizations
mentioned in the affidavit bears on probable cause,!3 the affidavit contains specific
information, provided by sources, as to the relevance or role of those
groups/organizations here. See id. at 12 § 24(0), 17 9] 27k), (1); see also id. at 11
{| 24(h) & n.4, 12 9 24g), ck), 138 74 24(w), (x). Cy), (ee), 15 J 26(d), 16 1% 26(g), G).

{ 27(e), 18 | 28(d), 22 4 30(k), (1), (m).

Finally, the affiant does not improperly rely on his training and experience.
A “government agent’s expert opinion . . . ‘is an important factor to be considered by
the judge’ when making a probable cause determination.” United States v.
Benevento, 836 F.2d 60, 71 (2d Cir. 1987) (quoting Fama, 758 F.2d at 838),
abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir.
1989). While an agent’s opinion, “standing alone, might not be sufficient” to
establish probable cause, “when viewed together with . .. other evidence in the
government’s affidavits,” an agent’s opinion can establish probable cause. Id. Here,
the affiant does not rely on his training and experience alone but, as discussed
above, cites specific, firsthand information from numerous sources. .And he connects
his training and experience to the facts in the affidavit. The affiant’s training and
experience—together with the specific facts contained in the affidavit—establish

probable cause as to each premises.

kK *

13 In this Court’s view, probable cause as to each premises does not depend on the
references to these groups/organizations.

17

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Gerace is not entitled to a Franks hearing here because he has not made a
substantial preliminary showing of knowing falsity or reckless disregard. and—even
if he had—probable cause to support the search of each premises remains.

B. Good-faith Exception

Nevertheless, in the interest of completeness, the Court will consider whether
the good-faith exception to the exclusionary rule would apply, had the search
warrant application failed to establish probable cause.

If, after undertaking the Franks analysis, a court concludes that the

supporting affidavits lack probable cause, it:

may admit seized evidence unless: (1) the issuing magistrate relied
on an affidavit that the affiant knew was false or would have known
was false had he or she not acted in “reckless disregard of the truth’;
(2) the “magistrate wholly abandoned his judicial role’; (3) the
“affidavit [1s] so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable”; or (-t) the
warrant is “so facially deficient ... that the executing officers cannot
reasonably presume it to be valid.”

Singh, 390 F.3d at 181 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). In
other words, the “good faith’ exception to the exclusionary rule allows the
admission of evidence, despite the absence of probable cause, ‘when an officer acting
with objective good faith has obtained a search warrant from a judge or magistrate
and acted within its scope.” Smith, 9 F.3d at 1015 (quoting Leon, 468 U.S. at 920);
see also United States v. Reilly, 76 F.3d 1271, 1273 (2d Cir. 1996) (‘Under Leon,
evidence is admitted when the police act with objective good faith pursuant to a

search warrant, even if the magistrate erred in issuing the warrant.’).

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The good-faith exception will not apply “if the magistrate or judge in issuing
a warrant was misled by information in an affidavit that the affiant knew was false
or would have known was false except for his [or her] reckless disregard of the
truth.” Leon, 468 U.S. at 923. This is because “[w]hen the police exhibit
‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights.
the deterrent value of exclusion is strong and tends to outweigh the resulting costs.”
Davis, 564 U.S. at 238 (citation omitted). Where such police conduct is not at issue,
the analysis is different—as in Leon, which “held that the exclusionary rule does not
apply when the police conduct a search in ‘objectively reasonable reliance’ on a
warrant later held invalid.” Davis, 564 U.S. at 238-39 (quoting Leon, 468 U.S. at
922).

Had the search warrant application failed to establish probable cause, the
good-faith exception to the exclusionary rule would apply here. The affiant, acting
in good faith, sought the warrant from the magistrate judge. Gerace does not claim
that members of law enforcement exceeded the scope of the warrant when executing
it. After examining the search warrant application and Gerace’s arguments, the
Court cannot conclude that the affiant exhibited deliberate, reckless. or grossly
negligent disregard for Gerace’s Fourth Amendment rights. See Davis, 564 U.S. at

238; see also supra Section II.A.2. None of the exceptions applies.

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Case 1:19-cr-00227-LJV-MJR Document 496 Filed 05/30/23. Page 20 of 20

CONCLUSION

For the reasons above,!4 the Court DENIES Gerace’s motion for a Franks
hearing and to suppress (Dkt. 482) in its entirety.
SO ORDERED.

Dated: May 30, 2023
Buffalo, New York

U {TED STATES DISTRICT JUDGE

'4 The Court has considered all arguments raised by Gerace, including any not
specifically referenced here, in reaching its decision. See Dkt. 432: Dkt. 448. In
particular, the Court considered Gerace’s argument that he needs the unredacted
version of this search warrant application, see Dkt. 448, at 3, and rejects it for the
reasons stated in its February 14, 2023 text order, see Dkt. 372.

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