N.D.N.Y.: Even if def accused drug dealer’s alleged cover business was omitted from affidavit, there still was PC

The officers lack of complete detail to fully explain defendant’s version that he might have had a lawful explanation for what he was doing doesn’t rise to the high bar of a Franks violation. In addition, it’s not uncommon for drug suspects to have a legitimate cover business at the same time. One doesn’t easily get a Franks hearing. Here, even if what defendant claims was omitted was included, there still would be probable cause. United States v. Peralta, 2019 U.S. Dist. LEXIS 33381 (N.D. N.Y. Mar. 4, 2019).* With considering:

For instance, Agent Phelan knew that certain individuals with whom Peralta frequently interacted had been caught up in the Rosa—Sanchez cocaine bust. He knew that defendant’s interactions with those particular individuals came in a manner often associated with drug transactions. And he knew that many of those same individuals, engaged in that same conduct, had been involved in verified drug transactions in the recent past.

Peralta has offered no reason to conclude that he could not have been simultaneously involved in the lawful activity he describes and the unlawful activity alleged by Agent Phelan. United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (“The fact that an innocent explanation may be consistent with the facts alleged … does not negate probable cause.”); United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983) (requiring only “a fair probability that the premises will yield the objects specified in the search warrant”).

After all, it is not exactly unheard of for drug dealers in this country to conduct their unlawful enterprise in tandem with other, legitimate business ventures. See, e.g., United States v. Tiem Trinh, 665 F.3d 1, 5 (1st Cir. 2011) (affirming denial of suppression where defendant sold marijuana out of his convenience store); United States v. Whiddon, 146 F. App’x 352, 353 (11th Cir. 2005) (per curiam) (affirming denial of suppression where defendant sold methamphetamine out of his auto mechanic shop); United States v. Woosley, 361 F.3d 924 (6th Cir. 2004) (affirming denial of suppression where defendant sold drugs out of auto repair business).

Besides, even if the additional contextual information urged by Peralta were to have been included in the affidavit, the more “complete” picture he seeks to paint would nevertheless still present more than sufficient information to support a finding of probable cause under the circumstances of this case. Cf. Coderre v. City of Wallingford, 668 F. App’x 339 (2d Cir. 2016) (summary order) (rejecting Franks challenge where a corrected hypothetical warrant affidavit that deleted the “purported misstatements” and included the “challenged omissions” did not alter the probable cause determination).

In sum, Peralta has failed to make a “substantial preliminary showing” that any of the alleged misrepresentations or omissions were made deliberately or recklessly, and he has failed to show that any of the additional information or context would have been material to the probable cause determination. United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003) (“In order to invoke the Franks doctrine, [the defendant] must show that there were intentional and material misrepresentations or omissions in [the] warrant affidavit.” (emphases added)). Accordingly, defendant’s motion to suppress will be denied.