CA2: Informant’s tale did not show PC to search all of a multiple family dwelling under Gates

The search warrant for all of a multiple residence building failed because the officers relied on an untested informant that defendant was “in control” of the entire building and then the officers failed to tell the magistrate that there were multiple residences within it. As to “in control,” the affidavit and informant were wholly conclusory under Gates. United States v. Clark, 638 F.3d 89 (2d Cir. 2011):

Here, such information was totally lacking on the issue of control. First, the issuing judge was not advised as to the size of the building or the number of residential units it contained, which would have provided an important, if not essential, context for evaluating the probability of the “full control” allegation. Second, nothing in the warrant affidavit advised the issuing judge what the informant meant by “full control.” Indeed, the affidavit did not even disclose whether the informant’s allegation was based on personal observation, a hearsay account, or mere rumor. Third, the affidavit did not provide any descriptive facts consistent with the full control allegation. We do not suggest that any one of these facts was necessary to establish probable cause, see [Gates] at 230, but the Supreme Court has recognized such facts as relevant to a consideration of the totality of circumstances, see id. at 233. We thus conclude that the absence of any such information left the issuing judge with a record from which he could not himself make a determination of control sufficient to support probable cause to search the entire multi-family dwelling. See id. at 239 (reiterating that wholly conclusory statement is inadequate to allow independent determination of probable cause (citing Nathanson v. United States, 290 U.S. 41 (1933))).

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… Where law and experience thus effectively give rise to a presumption that one person’s home is not in the control of a third party, a conclusory assertion of control by an informant who has been corroborated only in some other respect does not provide a substantial basis for a judicial officer to find it probable that evidence of the third party’s criminality will be found in residences other than his own.

This conclusion is consistent with the view of the New York Court of Appeals in People v. Tambe, 71 N.Y.2d at 503, 527 N.Y.S.2d at 377, which, in upholding probable cause to search multiple premises controlled by a number of confederates for criminal evidence likely to be in the possession of one of them, emphasized that a different rule might apply “where the fruits of the criminal enterprise are probably located in one of a few locations but the nature of the information is such that a search of each of these locations would intrude upon the rights of individuals in no way involved in the criminal activity under investigation.” Id. That is this case. Because the warrant affidavit contained no information as to either the number of residential units within 1015 Fairfield Avenue or where within the building Clark dealt drugs, there was a real possibility that a search of the entire building and all persons in it would intrude upon the rights of persons in no way linked to the suspected criminal activity. In these circumstances, the law demanded more than a conclusory allegation of control by a partially corroborated informant to permit the issuing judge to find probable cause to support the challenged warrant.