W.D.N.Y.: Prior illegal entry didn’t void search were the independent source was two later controlled deliveries

Police conducted an illegal warrantless entry two weeks before seeking a search warrant, but then they made two more controlled buys from defendant before getting a search warrant. The warrant had an independent source and would not be suppressed. United States v. Brooks, 2016 U.S. Dist. LEXIS 58866 (W.D.N.Y. May 2, 2016):

“The primary evil that the motivational inquiry seeks to root out is the so-called ‘confirmatory search,’” which occurs “when officers conduct a search to get assurance that evidence is present before taking the time and effort to obtain a warrant.” United States v. Hanhardt, 155 F. Supp. 2d 840, 847-48 (N.D. Ill. 2001). In this case, the complaint indicates that RPD members were conducting surveillance of 24 Fern Street on October 1, 2015 as part of an ongoing narcotics investigation based upon information that “had been developed from several sources that the residence at 24 Fern Street was being used as a drug house to sell quantities of heroin.” (Docket # 1 at ¶ 3). That ongoing investigation had included an earlier controlled purchase near the porch area of 24 Fern Street on August 14, 2015. (Docket # 63 at 9 n.2). The information gathered by law enforcement also apparently included a tip from a “concerned citizen” who provided the police “with information regarding drug activity at 24 Fern Street.” (Docket # 49 at ¶ 30).

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No information suggests that Wengert seized any evidence during his warrantless entry on October 1. Moreover, nothing in the record suggests that the officers immediately attempted to obtain a warrant for the premises. Instead, the officers continued their investigation for another two weeks and conducted two more controlled purchases prior to securing a search warrant for the premises. On this record, I find that the investigating officers would have applied for a search warrant even absent Wengert’s warrantless entry. United States v. Swope, 542 F.3d 609, 616 (8th Cir. 2008) (district court properly concluded that information known to officers and not the observations made during an illegal entry prompted law enforcement to seek warrant), cert. denied, 555 U.S. 1145, 129 S. Ct. 1018, 173 L. Ed. 2d 307 (2009); United States v. Madrigal, 103 F. App’x 9, 12 (7th Cir. 2004) (district court properly concluded that observations during illegal search did not prompt officers to seek search warrant because it was reasonable to conclude that officers would have sought a warrant based upon their independent knowledge); Johnson, 994 F.2d at 987 (“[c]learly, the agents would have and could have applied for and been issued a warrant” where there was probable cause to issue a warrant and where “the only reason the agents failed to apply for a warrant prior to [unlawful search] … was their mistaken belief that they were entitled to do so”); United States v. Lyons, 2015 U.S. Dist. LEXIS 27841, 2015 WL 999922, *8 (D. Minn. 2015) (concluding that officers would have applied for search warrants even had they not conducted impermissible canine sniff where information known to officers made “clear to th[e] [c]ourt” that the “officers would have sought the warrants even if there had been no positive indication for narcotics by [the canine]“); United States v. Medina, 2014 U.S. Dist. LEXIS 115575, 2014 WL 4101531, *6 (S.D. Fla. 2014) (concluding that officer would have applied for a warrant based upon information known to him even if he had not unlawfully entered defendant’s room), aff’d, 631 F. App’x 682 (11th Cir. 2015), cert. denied, 136 S. Ct. 1397, 194 L. Ed. 2d 375 (2016); United States v. Stabile, 2009 U.S. Dist. LEXIS 20275, 2009 WL 8641714, *4 (D.N.J. 2009) (“[i]t is inconceivable that, informed [of patently incriminating file names on a computer hard drive], [the agent] would not have sought a warrant to search the hard drives for child pornography”), aff’d, 633 F.3d 219 (3d Cir.), cert. denied, 132 S. Ct. 399, 181 L. Ed. 2d 256 (2011); United States v. Terry, 41 F. Supp. 2d 859, 866 (C.D. Ill. 1999) (“[a]lthough [the officers] did not testify as to whether they would have sought the federal search warrant absent the seizure …, the evidence shows that … [t]he police officers conducting the investigation had ample information to show that an additional search … was warranted”), aff’d, 214 F.3d 900 (7th Cir.), cert. denied, 531 U.S. 891, 121 S. Ct. 216, 148 L. Ed. 2d 152 (2000); United States v. David, 943 F. Supp. at 1418 (“the search warrant was not sought in order to sterilize the fruits of the prior tainted search[;] … the court finds that the agents would have continued to investigate [defendant] and would have applied for the search warrant even had they not [conducted the unlawful search]“). Accordingly, I find that suppression of the tangible evidence seized from 24 Fern Street is not required under the independent source doctrine.

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