Showing nexus in a search warrant affidavit between defendant’s cell phone and the crime. How much of the officer’s opinion matters? United States v. Santos, 2024 U.S. Dist. LEXIS 133564 (E.D.N.Y. July 29, 2024):
At the outset, before turning to the value of law enforcement opinions, it is essential to state that precedent requires that at least some of “facts presented,” Singh, 390 F.3d at 182, in a search warrant affidavit be “particularized with respect to” the defendant in order to satisfy the nexus inquiry. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003); Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (“[A] search or seizure of a person must be supported by probable cause particularized with respect to that person.”) (emphasis added); Falso, 544 F.3d at 124 (requiring the government to gather “evidence particularized to the target of the search” before the warrant application is made) (emphasis added); cf. United States v. Coreas, 419 F.3d 151, 156 (2d Cir. 2005) (Noting that the “exercise of trying to stretch the remaining unparticularized allegations to uphold the search seems counterproductive” to a probable cause review). This is no less true in the cellphone search context. See, e.g., Lauria, 70 F.4th at 129 (reviewing the “‘facts’ relating specifically to [defendant] or to his [] cell phone” in the probable cause context); see, e.g., United States v. Arias-Casilla, No. 21-CR-218-1 (AT), 2022 U.S. Dist. LEXIS 118960, 2022 WL 2467781, at *4 (S.D.N.Y. July 6, 2022) (finding a substantial basis to uphold a magistrate judge’s probable cause determination where the “affidavit also sets forth ‘particularized evidence’ connecting the seized phones to Defendant’s alleged crimes, specifically noting that Defendant used a cellphone to communicate with [the Informant] to coordinate delivery of the sample to him[.]”) (cleaned up).
Turning to the issue of a law enforcement affiant’s professional or experience-based opinions, the Second Circuit has consistently “recognized” that an affiant law enforcement agent’s professional experience either with the subject herself or type of criminal conduct at issue is an “important factor” to be considered by the magistrate judge. United States v. Babilonia, 854 F.3d 163, 178 (2d Cir. 2017) (“[W]e have recognized that a law enforcement officer’s experience and training may permit the officer to discern probable cause from facts and circumstances where a layman might not.”) (internal quotations omitted); United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (noting that a “number of cases have ruled that an agent’s expert opinion is an important factor to be considered by the judge reviewing a warrant application” as to good faith); United States v. Ukhuebor, No. 20-MJ-1155 (LDH), 2021 U.S. Dist. LEXIS 52814, 2021 WL 1062535, at *3 (E.D.N.Y. Mar. 19, 2021) (quoting United States v. Benevento, 836 F.2d 60, 71 (2d Cir. 1987)) (“Special Agent Turczak’s expert opinion ‘is an important factor to be considered in making a probable cause determination.'”).
Nonetheless, the value of a law enforcement agent’s professional or experience-based opinion is subject to certain boundaries when applying for a search warrant. Namely, a law enforcement officer’s professional opinion, and any reasonable inferences that may be gleaned from it, must be considered in tandem with the actual, particularized facts sworn in the search affidavit regarding the place or item to be searched. The reason being that “[p]ermitting a search warrant based solely on the self-avowed expertise of a law-enforcement agent, without any other factual nexus to the subject property, would be an open invitation to vague warrants authorizing virtually automatic searches of any property used by a criminal suspect.” Ukhuebor, 2021 U.S. Dist. LEXIS 52814, 2021 WL 1062535, at *3 (quoting United States v. Guzman, No. 97-CR-786 (SAS), 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *4 (S.D.N.Y. Feb. 13, 1998)) (quotation mark omitted); accord United States v. Garcia, No. 3:20-CR-00058 (KAD), 2023 U.S. Dist. LEXIS 130756, 2023 WL 4850553, at *7 (D. Conn. July 28, 2023). Therefore, while experience-based proffers in a search affidavit are “important,” the Second Circuit has also caveated their effect, opining that “standing alone,” generally such averments are insufficient “to establish a link between the” defendant “and their prior criminal activity.” Benevento, 836 F.2d at 71; Ukhuebor, 2021 U.S. Dist. LEXIS 52814, 2021 WL 1062535, at *3 (A “government agent’s expert opinion, standing alone, might not be sufficient to establish a link between the item to be searched and the alleged criminal activity.”); Garcia, 2023 U.S. Dist. LEXIS 130756, 2023 WL 4850553, at *7 (An “officer’s opinion, standing alone, is generally not sufficient to establish a link between the item to be searched and the alleged criminal activity.”) (quotation marks omitted).
Putting these principles together, an agent’s relevant training and experience can be a powerful “supplement” to other sworn facts establishing probable cause. United States v. Garlick, No. 22-CR-540 (VEC), 2023 U.S. Dist. LEXIS 46855, 2023 WL 2575664, at *6 (S.D.N.Y. Mar. 20, 2023) (“Agent Ford properly invoked his training and experience investigating felons to supplement his account of the facts establishing probable cause to search Defendant’s online accounts for evidence of Defendant’s scooter acquisition.”). Still, there must be sufficient factual matter particularized to the defendant that “nudge[s]” the officer’s professional or experience-based opinion from a “hunch” or “mere suspicion” to “fair probability that contraband or evidence of a crime will be found[.]” Lauria, 70 F.4th at 128; Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007); United States v. Garlick, No. 22-CR-540 (VEC), 2023 U.S. Dist. LEXIS 46855, 2023 WL 2575664, at *6 (S.D.N.Y. Mar. 20, 2023). Put another way, there must be “just enough case-specific evidence to nudge his training and experience across the line from sheer speculation to probable cause.” Garlick, 2023 U.S. Dist. LEXIS 46855, 2023 WL 2575664, at *6; accord Bertini, 2023 U.S. Dist. LEXIS 212013, 2023 WL 8258334, at *9; Garcia, 2023 U.S. Dist. LEXIS 130756, 2023 WL 4850553, at *7. It is therefore incumbent on the Court to parse the factual allegations in the Cellphone Warrant from Inspector Vernon’s training and experience based assertions.