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Date: 09-18-2021

Case Style:

United States of America v. ONIEL MCKENZIE, AKA DARRIN CLARK, AKA SHOWER

Case Number: 18-1018

Judge: Richard C. Wesley

Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Plaintiff's Attorney: RAJIT S. DOSANJH, Assistant United States Attorney, for Antoinette
T. Bacon, Acting United States Attorney for the Northern
District of New York

Defendant's Attorney:


New York, NY - Criminal defense Lawyer Directory


Description:

New York, New York - Criminal defense lawyer represented defendant with a knowingly and intentionally possessing with intent to distribute controlled substances charge.



I. Facts1

On April 30, 2014, a federal grand jury indicted Oniel McKenzie on one
count of possessing with an intent to distribute five or more kilograms of cocaine
and 100 or more kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). The
indictment capped a months-lon (later identified as Deondra Forney and
1 These facts are drawn from the Memorandum Decision and Order entered by U.S.
District Court Judge Mae A. D’Agostino on November 4, 2015, the appendix filed by
McKenzie with his counseled brief (hereinafter “A”), the pre-sentencing report (“PSR”),
and relevant district court docket entries.
4
Latrina Riggins) picked up packages of cocaine and marijuana from UPS
mailboxes and transported them to storage units controlled by McKenzie in the
Albany area.
The First Search
DEA agents were able to confirm many of the confidential informant’s
allegations through first-hand observation. In late September 2013, they began
conducting surveillance on Riggins. On October 3, an agent observed her pick up
eleven boxes from a UPS store in Troy, New York, and transport them to Mabey’s
Self Storage (“Mabey’s”) in Rensselaer, New York. Agents interviewed the Site
Manager for Mabey’s and reviewed surveillance footage showing Riggins
accessing storage units throughout the facility.
The storage units at Mabey’s are enclosed by a fence and a security gate in
an open air area. When Riggins arrived at Mabey’s, the agent continued his
surveillance within the enclosed area.2 Riggins opened unit 296 (“Unit 296”),
placed several boxes inside, locked the door, and left at approximately 5:35 p.m.
When she departed, the agents called in a canine unit. The dog—certified in
2 The record is not clear as to how the agent gained access to the enclosed area.
5
narcotics detection—examined the outside of several storage units and alerted on
Unit 296. In an interview with the Site Manager the next day, agents learned that
Unit 296 was rented by “Darrin Clark.”
New York State Police Investigator Christopher T. Gilroy prepared and
signed an application for a warrant to search Unit 296. His affidavit accompanying
the application described the informant’s tips, the surveillance operation, and the
canine alert. The Hon. Thomas A. Breslin of the Albany County Supreme Court
signed the warrant that afternoon; law enforcement officers commenced a search
of Unit 296 and ultimately seized approximately 100 pounds of marijuana. The
marijuana was packaged in cardboard boxes, white construction buckets, and
trash bags.
The Second Search
Later that afternoon, Investigator Gilroy applied for a second warrant. He
indicated in his affidavit that officers were surveilling Unit 296 at approximately
12:10 p.m. when a Jeep entered Mabey’s, its driver opened Unit 296, paid rent at
the front office, and then drove away. The officers followed the Jeep to 27
Thornton Street, where it parked and the driver exited and began talking with a
man on the sidewalk. At the request of a DEA agent, the officers approached the
6
driver and asked for identification. The driver, later identified in court as
McKenzie, presented a California driver’s license in the name of Darrin Clark—
the name registered to Unit 296. Following this brief interaction with the officers,
McKenzie dropped the Jeep’s keys into the open engine block compartment of a
nearby truck and walked away. He left the scene in a different vehicle.
The police then called a canine unit which alerted for drugs within the Jeep.
Investigator Gilroy stated in his affidavit that six cardboard boxes similar to the
ones Riggins placed in Unit 296 were plainly visible in the Jeep. He also referenced
the marijuana recovered from Unit 296. Justice Breslin signed the warrant to
search the Jeep at 3:54 p.m. An initial search revealed approximately fifty-six
kilograms of marijuana. A handgun, ammunition, and $68,780 in cash were later
discovered in a “sophisticated trap” in the back of the vehicle. PSR ¶ 17.
McKenzie contends that the officers searched the Jeep before Justice Breslin
issued the warrant. He relies upon the affidavit of Paul Breslin, a mechanic who
claimed to have witnessed the search.3 In Breslin’s account, “[t]he police . . . stated
the vehicle was unlocked and opened the doors to the jeep at approximately 11:00
3 Paul Breslin is the nephew of Justice Thomas Breslin, who issued the warrants.
7
a.m.” A 72. He claimed the Jeep was parked on Thornton Street from
“approximately 10:00 a.m.,” contradicting Investigator Gilroy’s account of the
officers seeing it at Mabey’s that afternoon. Id. Breslin stated he was “certain the
police searched the vehicle before the warrant arrived” because he “watched them
do so” and “heard when they stated they had the warrant which was much later
then [sic] when they first opened the doors.” A 72–73.
The Government responded with two sworn affidavits. Investigator Gilroy
acknowledged in his affidavit that he was not present on the scene, but asserted
that he had “spoken to members of the Drug Enforcement Administration who
were present, and learned that there was no search [of the Jeep] prior to the time
of the issuance of the warrant.” A 121. DEA Special Agent Ronald Arp stated in
his affidavit that he was “personally present and maintaining surveillance of the
Jeep from the time it was parked by an individual later identified as Oniel
McKenzie until the time that the search was conducted pursuant to a warrant
issued by Justice Breslin at 3:54 pm . . . .” A 129. He asserted that “[a]t no point
during this interval was the Jeep opened or searched.” Id.
8
The Third Search
Later that day, Investigator Gilroy applied for a search warrant for an
apartment located at 6707 Oak Hill Circle (the “Oak Hill Residence”) in nearby
North Greenbush, New York. According to the application,records obtained from
the landlord showed that the Oak Hill Residence was rented in the names of
Chantell Chambers and Darrin Clark. A Jeep of the same model and year as the
one from which the marijuana had been recovered on Thornton Street was
registered to the apartment. The application also noted the marijuana recovered
from Unit 296 as a predicate for probable cause. Justice Breslin issued the warrant.
Upon execution of that search warrant, law enforcement officers seized
approximately 60 kilograms of cocaine from the Oak Hill Residence. The cocaine
was packaged in a manner similar to the marijuana recovered from Unit 296—
cardboard boxes, white construction buckets, garbage bags, and packing peanuts.
DEA Special Agent James Cryan testified that the agents also found a booklet
containing names, quantities, and dollar amounts—i.e., what appeared to be a
drug ledger—in the Oak Hill Residence. Fingerprints recovered from the scene
matched McKenzie’s, according to expert testimony introduced at trial.
9
II. Procedural History
McKenzie was charged with knowing and intentional possession of cocaine
and marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(a). McKenzie’s counsel moved to suppress the evidence acquired during
the searches and requested a hearing to challenge the warrant applications under
Franks. The district court denied the motion, ruling that the dog sniff outside of
Unit 296 was not a search within the meaning of the Fourth Amendment. It made
two alternative holdings on the search of the Jeep: (1) that McKenzie lacked
standing to challenge the search of the Jeep because he abandoned any expectation
of privacy by discarding the keys, and (2) even assuming the Jeep was searched
prior to the issuance of the warrant, the inevitable discovery rule made the
evidence recovered from it admissible. Based upon the validity of the warrants to
search Unit 296 and the Jeep, the district court found that the Oak Hill Residence
warrant was “undoubtedly supported by probable cause.” A 154. It also rejected
McKenzie’s request for a Franks hearing.
In a motion in limine, the Government sought to admit evidence of
McKenzie’s prior drug trafficking activity under Federal Rule of Evidence 404(b),
arguing that it would establish his connection to accomplices and knowledge of
10
wrongdoing. McKenzie objected, contending that the evidence would
impermissibly connect him to uncharged offenses. The district court denied the
Government’s request without prejudice to renew at trial and ultimately admitted
some of the testimony.
Forney testified that she opened a post office box for McKenzie in January
2013, picked up packages for him, and that McKenzie once showed her a package
containing marijuana. Chambers testified that she knew McKenzie for a year prior
to his arrest, knew that he was a drug dealer, and rented an apartment for him.
Riggins testified that in September and October 2013 she picked up packages and
delivered them to the storage facility. The district court instructed the jury not to
consider this testimony as proof that McKenzie had committed the acts charged in
the indictment, but rather only as proof that he had acted knowingly.4
The jury found McKenzie guilty of possessing the controlled substances
with an intent to distribute. It further found that the offenses involved at least five
kilograms of cocaine and at least 100 kilograms of marijuana. The PSR calculated
a base offense level of thirty-four under the Guidelines and recommended a term
4 In July 2017, the district court granted McKenzie’s request to proceed pro se. He
represented himself from that point forward, including through the trial.
11
of imprisonment of 292 to 365 months. McKenzie objected, arguing that fifty of
the sixty kilograms had been destroyed. The district court rejected this argument,
noting that the Government had presented evidence regarding the total amount
of drugs recovered and followed its usual practice of destroying excess quantities.
The district court adopted the PSR’s Guidelines calculation but imposed a belowGuidelines sentence of 188 months’ imprisonment.
DISCUSSION
I. The District Court Did Not Err in Denying McKenzie’s Motion to
Suppress
On appeal from a motion to suppress, we review a district court’s
conclusions of law de novo and its conclusions of fact for clear error. United States
v. Alexander, 888 F.3d 628, 631 (2d Cir. 2018). Factual determinations about use,
privacy, and the physical characteristics of a property are reviewed for clear error.
Id. “Whether the untainted portions [of a warrant application] suffice to support
a probable cause finding is a legal question” that is reviewed de novo. United States
v. Canfield, 212 F.3d 713, 717 (2d Cir. 2000). A district court’s error in deciding a
motion to suppress is further reviewed for harmlessness. United States v. Cacace,
796 F.3d 176, 188 (2d Cir. 2015) (per curiam).
12
A. Applicable Law
The Supreme Court has articulated two tests to determine when a search
occurs within the meaning of the Fourth Amendment. 5 The first, the ‘property
rights baseline’ test, recognizes a search when the Government obtains
information by physically intruding on persons, houses, papers, or effects. Florida
v. Jardines, 569 U.S. 1, 5 (2013). This language tracks the categories listed in the
5 The Fourth Amendment does two things: (1) it prohibits unreasonable searches and
seizures and (2) it specifies the conditions under which a warrant can be issued. See U.S.
CONST. amend. IV; Mendez v. Cty. of L.A., 897 F.3d 1067, 1075 (9th Cir. 2018). It does not,
however, proscribe the use of unconstitutionally obtained evidence against a criminal
defendant at trial. See United States v. Hightower, 950 F.3d 33, 36 (2d Cir. 2020) (per
curiam). Until the 20th century, unconstitutional searches and seizures were remedied
through civil suits against the trespassing officers. See Utah v. Strieff, 136 S. Ct. 2056, 2060–
61 (2016).
Courts have since developed the ‘exclusionary rule’—which requires trial courts to
exclude unlawfully seized evidence from criminal trials—as the “principal judicial
remedy to deter Fourth Amendment violations.” See id. at 2061 (citing Mapp v. Ohio, 367
U. S. 643, 655 (1961)). The rule encompasses both the “primary evidence obtained as a
direct result of an illegal search or seizure” and secondary “evidence later discovered and
found to be derivative of an illegality.” Id. (citing Segura v. United States, 468 U. S. 796,
804 (1984) (internal quotation marks omitted)).
“To be sure, the Supreme Court has declined to apply the exclusionary rule where
evidence is obtained as a result of simply negligent, as opposed to “deliberate, reckless,
or grossly negligent conduct,” Herring v. United States, 555 U.S. 135, 144 (2009), or where
evidence is obtained from a search conducted in “reasonable reliance” on binding
precedent, see Davis v. United States, 564 U.S. 229, 241 (2011); see also Hudson v. Michigan,
547 U.S. 586, 591–96 (2006) (recognizing the exclusionary rule as a “last resort” means of
upholding the Fourth Amendment and holding it inapplicable in knock-and-announce
cases). Here, the parties do not dispute that if a Fourth Amendment violation occurred
here, suppression would have been appropriate.
13
Fourth Amendment. See U.S. CONST. amend. IV. One advantage of this test is that
it “keeps easy cases easy” through a bright-line rule of general application.
Jardines, 569 U.S. at 11.
The second test protects a more nuanced realm of interests. It forbids
warrantless searches that violate a person’s reasonable expectation of privacy. See
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Courts
employ a two-part inquiry to assess the legitimacy of a privacy expectation: “first,
has the individual manifested a subjective expectation of privacy in the object of
the challenged search? Second, is society willing to recognize that expectation as
reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). Searches conducted
pursuant to a defendant’s consent, observations of items in plain view (or plain
hearing, smell, or feel), and recoveries of abandoned property are not protected by
the Fourth Amendment under this test. See United States v. Iverson, 897 F.3d 450,
458 (2d Cir. 2018); United States v. Gori, 230 F.3d 44, 50 (2d Cir. 2000); United States
v. Levasseur, 816 F.2d 37, 44 (2d Cir. 1987).
A canine sniff outside a residence can be considered a search within the
meaning of the Fourth Amendment under both tests. For example, in Jardines the
Court found that the canine sniff performed on the curtilage of the defendant’s
14
freestanding home was a physical intrusion on a protected property interest under
the baseline test.6 569 U.S. at 4–6. The location of the dog was determinative, not
the particular method (the dog’s sensitivity to a substance’s odor) of the search.
See id. But Unit 296 is not a home. While the Fourth Amendment applies to
businesses and offices (and storage units), see See v. City of Seattle, 387 U.S. 541, 543
(1967), the Court has not extended the concept of curtilage and its Fourth
Amendment protections to commercial property. See Dow Chemical Company v.
United States, 476 U.S. 227, 236, 239 (1986) (finding that open areas of a large
industrial plant complex were not analogous to the curtilage of a dwelling for
purposes of aerial surveillance). In United States v. Dunn, the Court identified the
“centrally relevant consideration” for “extent-of-curtilage questions” as “whether
the area in question is so intimately tied to the home itself that it should be placed
under the home’s ‘umbrella’ of Fourth Amendment protection.” 480 U.S. 294, 301
(1987). When one rents a storage unit, no curtilage comes with it.
6 Curtilage is the area “immediately surrounding and associated with home” and is
considered “part of [the] home itself for Fourth Amendment purposes.” Oliver v. United
States, 466 U.S. 170, 180 (1984).
15
We have held that a canine sniff can also be a search under the reasonable
expectation of privacy test. In United States v. Thomas we determined that a dog
sniff outside a closed apartment door violated the defendant’s reasonable
expectation of privacy. 757 F.2d 1359, 1367 (2d Cir. 1985). Our analysis in Thomas
turned on the heightened expectation of privacy in the home as opposed to other
settings. Id. at 1366–67. We found that “the defendant had a legitimate expectation
that the contents of his closed apartment would remain private, that they could
not be ‘sensed’ from outside his door” and concluded that the “[u]se of the trained
dog impermissibly intruded on that legitimate expectation.” Id. In the thirty-six
years since Thomas, our expectation of privacy analysis in this context has fallen
out of favor with our sister circuit courts. See, e.g., United States v. Lingenfelter, 997
F.2d 632, 638 (9th Cir. 1993) (criticizing Thomas); United States v. Colyer, 878 F.2d
469, 475 (D.C. Cir. 1989) (same); United States v. Reed, 141 F.3d 644, 649–50 (6th Cir.
1998) (same). Despite unfavorable reviews, Thomas has never been overruled and
remains binding on this panel. See United States v. Hayes, 551 F.3d 138, 142 (2d Cir.
2008) (affirming the validity of Thomas but declining to extend it to an area “65 feet
behind the back door of the home”).
16
B. Unit 296
Whether the area outside a commercial storage unit enjoys the protections
of the Fourth Amendment is an issue of first impression in this Circuit.
Nevertheless, a clear answer emerges upon consideration of applicable Supreme
Court precedent: the canine sniff outside the closed door of Unit 296 did not violate
McKenzie’s constitutional rights because it was not a search within the meaning
of the Fourth Amendment.
McKenzie argues that the canine alert outside Unit 296 constituted a search
under both the property rights baseline and reasonable expectation of privacy
tests. He avoids a curtilage argument by correctly noting that the baseline analysis
is not limited to houses but also extends to “effects” and commercial property.
Appellant’s Counseled Br. at 25 (citing United States v. Jones, 565 U.S. 400, 410–11
(2012); United States v. Rahman, 805 F.3d 822, 831 (7th Cir. 2015)). His argument
focuses on the officers’ entry into the enclosed area of Mabey’s, since there was no
pre-warrant incursion into Unit 296 itself. He insists that “[a]bsent any
justification for how the officers accessed the gate,” the District Court erred in its
17
determination that his property interests were confined solely to Unit 296.7
Appellant’s Counseled Br. at 24.
McKenzie’s argument has two problems. First, he has not shown that the
officers violated anyone’s property rights when they entered the Mabey’s facility.
The record indicates that Mabey’s management cooperated with the investigation:
Investigator Gilroy stated that officers interviewed Mabey’s Site Manager,
reviewed its surveillance footage, and accessed its rental records. A 45–46. The
district court could have inferred, without approaching clear error, that Mabey’s
management provided the officers access to the front gate. The burden to show a
Fourth Amendment violation rests with the defendant. See, e.g., United States v.
Quashie, 162 F. Supp. 3d 135, 139 (E.D.N.Y. 2016). McKenzie offers no evidence
suggesting that the officers trespassed onto the property.
Second, even if McKenzie had offered such evidence, the objection belongs
to Mabey’s. McKenzie had no authority to exclude people from Mabey’s grounds.
7 McKenzie points out that the district court erroneously described the storage facility as
“unenclosed” and “generally open to the public.” See United States v. McKenzie, No. 1:14-
CR-169, 2015 WL 13840885, *6, *8 (N.D.N.Y. 2015). The Government acknowledges that
a “security gate key pad” regulates access to the area where the units are located.
Appellee’s Br. at 15. While these descriptions constitute clear error on the part of the
district court, the error was harmless. See Alexander, 888 F.3d at 631; Cacace, 796 F.3d at
188.
18
He only rented storage units within the facility. Because the officers did not
infringe on McKenzie’s interests by entering Mabey’s, and did not physically
intrude on Unit 296 prior to obtaining a warrant, McKenzie‘s objection under the
baseline property rights test comes up short. See United States v. Boden, 854 F.2d
983, 990 (7th Cir. 1988) (law enforcement agents’ initial warrantless entry into the
commercial storage facility did not implicate the Fourth Amendment rights of the
defendant, who had rented a unit in the facility); Rakas, 439 U.S. at 138 (“[T]he
rights assured by the Fourth Amendment are personal rights”).
McKenzie’s objection fares no better under the reasonable expectation of
privacy test. It is true that defendants generally enjoy a reasonable expectation of
privacy in the internal spaces of storage units and commercial lockers. In United
States v. Karo, for example, the Supreme Court considered the case of several
defendants who had purchased drums of ether from a government informant. 468
U.S. 705, 708–10 (1984). The informant consented to the installation of a locationsensing ‘beeper’ in one of the drums before delivering them to the defendants. Id.
at 709. The DEA used the beeper to locate the ether in a commercial storage
facility, but its signal was not precise enough to reveal which storage unit
contained the ether. Id. at 720. While traversing generally accessible parts of the
19
facility, the agents identified the smell of ether coming from a specific unit (they
did not use a dog). Id. at 720–21. The Court held that this did not constitute a
search within the meaning of the Fourth Amendment, but noted that “[h]ad the
monitoring disclosed the presence of the container within a particular locker the
result would be otherwise, for surely [the defendants] had a reasonable
expectation of privacy in their own storage locker.” Id. at 720 n. 6.
Even accepting that McKenzie had a reasonable expectation of privacy in
the internal area of Unit 296, he did not have a reasonable expectation of privacy
in the air outside of Unit 296. United States v. Karo is again instructive: the Court
indicated that the police had not transgressed the defendants’ “reasonable
expectation of privacy in their own storage locker” by using their sense of smell to
identify an odor present outside the unit and thus to identify which unit contained
the contraband. 468 U.S. at 720–21.8
The officers’ use of a canine in McKenzie’s case is no different. In Iverson we
noted that “as long as the observing person or the sniffing canine are legally present
at their vantage [points] when their respective senses are aroused by obviously
8 Similarly, a person smoking marijuana in their apartment could not reasonably expect
that activity to be private if the odor carries through an open window onto the street.
20
incriminating evidence, a search within the meaning of the Fourth Amendment
has not occurred.” See 897 F.3d at 461 (quoting Reed, 141 F.3d at 649) (emphasis
added). This standard, taken at face value, could be seen as conflicting with our
holding in Thomas that a canine unit’s alert while legally positioned outside a
closed apartment door constitutes a search under the Fourth Amendment. See 757
F.2d at 1367. However, it is consistent with our own precedent where a defendant
has granted the officers consent to be at their vantage point near or within a home
(as was the case in Iverson).
We also find the Iverson standard well-adapted to canine sniffs of nonresidential properties, as in McKenzie’s case. The canine here was legally
positioned outside Unit 296, in an area accessible to Mabey’s employees and
anyone renting one of the hundreds of units in the facility. Under these
circumstances, the canine sniff outside Unit 296 did not violate McKenzie’s
reasonable expectation of privacy.
We are confident that this is the correct result under Supreme Court
precedent, even despite our holding in Thomas. We acknowledge that today’s
decision and Thomas may be in tension. Both concern a space in which the
defendant enjoyed a reasonable expectation of privacy (Unit 296 here, the
21
apartment in Thomas). Both involve a canine alert for drugs outside the closed
door of that space in an area open to others. Yet, the two cases reach divergent
outcomes on whether the sniff violated the defendant’s reasonable expectation of
privacy.
The crucial difference between the two cases is in the nature of the space.
Our holding in Thomas rested upon the “heightened privacy interest that an
individual has in his dwelling place.” See 757 F.2d at 1366. We repeatedly
emphasized that “a practice that is not intrusive in a public [setting] may be
intrusive when employed at a person’s home.” Id. That different degrees of
privacy interests attach to different settings is well-established in Fourth
Amendment jurisprudence. See, e.g., New York v. Burger, 482 U.S. 691, 700 (1987)
(“An expectation of privacy in commercial premises, however, is different from,
and indeed less than, a similar expectation in an individual's home.”). The
expectation of privacy reaches its zenith in the home. Observing officers’
“significant enhancement” of their natural senses “accomplished by a different,
and far superior, sensory instrument” cannot overcome the unique protections of
the home in Fourth Amendment jurisprudence. Thomas, 757 F.2d at 1367; see also
United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980) (holding that officers’
22
warrantless use of a telescope to observe objects and activities within a home
violated the Fourth Amendment); Kyllo v. United States, 533 U.S. 27, 40 (2001)
(finding that use of a thermal-imaging device aimed a private home constituted a
search within the meaning of the Fourth Amendment). But courts have declined
to extend those same protections against enhanced sensory instruments to nonresidential properties. See, e.g., United States v. Johnson, 42 F. App’x 959, 962 (9th
Cir. 2002) (mem.) (holding that a warrantless thermal imaging search of a barn was
not an illegal warrantless search because “Kyllo applies only to a home”).
Commercial storage units are closer to luggage in an airport, see United States
v. Place, 462 U.S. 696, 697 (1983), or an automobile detained during a traffic stop,
see Illinois v. Caballes, 543 U.S. 405, 409 (2005), than a dwelling. They do not present
the privacy interests associated with the “intimate details” of one’s life which are
inherently associated with the home. See Kyllo, 533 U.S. at 37. We agree with our
sister circuits and district courts in this Circuit that dog sniffs outside of storage
units do not violate the renter’s reasonable expectation of privacy. See, e.g., United
States v. Cook, 904 F.2d 37 (6th Cir. 1990) (unpublished); United States v. Mikelic, No.
10 Cr. 132 (CFD), 2011 WL 4368565, *5 n.13 (D. Conn. Sept. 19, 2011) (declining to
extend Thomas to a canine sniff of a commercial storage unit).
23
C. The Jeep and Oak Hill Residence
McKenzie argues that the warrants approving the searches of the Jeep and
the Oak Hill Residence were predicated on an unconstitutional canine sniff of Unit
296. Consequently, he insists, the evidence seized pursuant to those warrants
should have been suppressed. However, since the canine sniff of Unit 296 was
constitutional, the district court’s decision to admit the evidence seized from the
Jeep and the Oak Hill Residence was not in error.
II. The District Court Did Not Err in Denying McKenzie’s Request for
a Suppression Hearing
A. Applicable Law
A Franks hearing permits a criminal defendant to challenge the veracity of a
warrant affidavit under certain circumstances. To trigger the hearing, a defendant
must make a “substantial preliminary showing” that (1) the warrant application
contains a false statement, (2) the false statement was included intentionally or
recklessly, and (3) the false statement was necessary to the finding of probable
cause. Franks, 438 U.S. at 155–56; see also Levasseur, 816 F.2d at 43. 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.”
24
Franks, 438 U.S. at 165. The fruits of the search must be excluded if the allegation
of perjury or recklessness is established by a preponderance of the evidence and
the affidavit’s remaining content with the falsehoods set aside is insufficient to
establish probable cause. Id. at 156.
Probable cause requires a “fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
When the available facts would “warrant a person of reasonable caution” to
believe that contraband or evidence of a crime is present, an officer has probable
cause to conduct a search. Florida v. Harris, 568 U.S. 237, 243 (2013). The Supreme
Court instructs us to consider the “totality of the circumstances” in making
probable cause assessments, and has rejected “rigid rules, bright-line tests, and
mechanistic inquiries in favor of a more flexible, all-things-considered approach.”
Id. at 244.
In Florida v. Harris, the Court held that a canine alert may be sufficient to
establish probable cause when a court is presented with “evidence of a dog’s
satisfactory performance in a certification or training program.” Id. at 246. “If the
State has produced proof from controlled settings that a dog performs reliably in
detecting drugs, and the defendant has not contested that showing, then the court
25
should find probable cause.” Id. at 248. However, if the defendant challenges the
State’s case, for example by disputing the reliability of the dog or the alert, then
the court should weigh the competing evidence to determine whether a reasonably
prudent person would have believed that contraband or evidence of a crime was
present based upon the alert. Id.
There is mixed authority regarding the standard of review for denial of a
Franks hearing in the Circuit. See United States v. Papadakos, 729 F. App’x 41, 44 n.
2 (2d Cir. 2018) (summary order). There is also a circuit split on the question. See
id. However, a district court’s conclusions of law are reviewed de novo and its
conclusions of fact for clear error. See United States v. Rajaratnam, 719 F.3d 139, 153
(2d Cir. 2013) (citing United States v. Moore, 968 F.2d 216, 220–21 (2d Cir. 1992)).
We review denial of a Franks hearing for clear error to the extent that it rests on
factual findings. United States v. One Parcel of Property Located at 15 Black Ledge, 897
F.2d 97, 100 (2d Cir. 1990).
Whether an affiant acted with intent or recklessness is a factual question
subject to the clearly erroneous standard. Rajaratnam, 717 F.3d at 153 (citing United
States v. Trzaska, 111 F.3d 1019, 1028 (2d Cir. 1997)). Whether a false statement was
material to the probable cause determination is a mixed question of law and fact
26
reviewed de novo. Id. (citing United States v. Awadallah, 349 F.3d 42, 65 (2d Cir.
2003)). That mixed standard is workable in this case, and we need not reconcile
the conflicting authorities on this subject, since we find that denial was proper
even under the more exacting de novo review.
B. Analysis
McKenzie focuses his argument in support of a Franks hearing on the
conflicting evidence surrounding the search of the Jeep. The affidavit from Paul
Breslin contradicts Investigator Gilroy’s warrant affidavit in two ways. First,
Breslin claims to have seen the officers search the vehicle before they received the
warrant. Second, his affidavit states that the Jeep was parked on Thornton Street
from 10:00 a.m. to 4:00 p.m., contrary to the officers’ account of observing the Jeep
at Mabey’s within that timeframe.
The district court correctly denied McKenzie’s request for a Franks hearing
because McKenzie failed to call into question the facts material to the legitimacy
of the warrant. See Franks, 438 U.S. at 155–56. Breslin’s affidavit fails to contradict
the warrant application’s assertion that the canine “gave a positive alert for the
presence of a narcotic and/or marijuana.” A 59. In his affidavit supporting the
warrant application, Investigator Gilroy attested that the canine was “trained in
27
the detection of narcotics and/or marijuana.” Id. The description of the dog’s
training is not detailed, but McKenzie has not challenged the reliability of the dog
or the alert as to the Jeep. McKenzie did raise the issue of the dog’s training with
respect to the sniff of Unit 296, but “failed to submit any evidence that would call
into question the reliability of the hits in this case.” McKenzie, 2015 WL 13840885
at *13. The uncontested canine alert on the Jeep is sufficient to support a finding
of probable cause.
Nor does McKenzie dispute the warrant application’s assertion that officers
observed six cardboard boxes “similar to the boxes that Latrina Riggins placed into
Unit 296” the previous day in plain view inside the Jeep. Id. at *11. Considering
the totality of the circumstances, a reasonably prudent person would understand
the presence of these boxes to imply that they contained contraband. The police
were acting on a tip from a confidential informant regarding a drug smuggling
ring involving McKenzie. They observed Riggins pick up packages from a UPS
store and deliver them to Unit 296, as anticipated by the informant. McKenzie
then visited Unit 296, driving the Jeep, and was placed under surveillance. After
he left, the police searched Unit 296 and recovered approximately 100 pounds of
marijuana. The fact that boxes similar to the ones Riggins delivered to Unit 296
28
were in plain sight inside the Jeep supports a finding of probable cause under these
circumstances. See, e.g., United States v. Clark, 559 F.2d 420, 426 (5th Cir. 1977)
(holding that probable cause existed to search a station wagon because police
officers previously observed defendants loading similar burlap bags containing
marijuana into another vehicle).
The Government’s corroboration of the informant’s allegations further
supports a finding of probable cause and is not contradicted by the Breslin
affidavit. When assessing the existence of probable cause based on an informant’s
information, “the core question . . . is whether the information is reliable.” United
States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). In Gates, the Supreme Court found
that police surveillance corroborating an informant’s tip that a suspect would
drive to Florida, that another suspect would fly into the state, and that the second
suspect would drive the first suspect’s vehicle back towards Illinois established
probable cause to search the car. 462 U.S. at 244–45. “It is enough, for purposes of
assessing probable cause, that ‘[corroboration] through other sources of
information reduced the chances of a reckless or prevaricating tale,’ thus
providing ‘a substantial basis for crediting the hearsay.’” Id. (quoting Jones v.
United States, 362 U.S. 257, 271 (1960)); see also Wagner, 989 F.2d at 73.
29
The record here indicates that the informant’s tip was reliable enough to
establish probable cause to search the Jeep. Investigator Gilroy’s warrant affidavit
stated that the informant’s information was “derived from their [sic] personal
interaction with members of this criminal organization.” A 56; see Caldarola v.
Calabrese, 298 F.3d 156, 162–63 (2d Cir. 2002) (listing the “basis for the informant’s
knowledge” as one among several factors to consider in assessing the reliability of
a tip). As discussed above, many of the informant’s allegations were corroborated
via the first-hand observations of law enforcement officers. The informant
accurately predicted the participation of female couriers, the use of the storage
unit, and the packaging of the narcotics. The corroboration here is even stronger
than in Gates, given that the officers recovered contraband consistent with the
informant’s tip before searching the Jeep. See Gates, 462 U.S. at 244–45.
These three elements of the warrant application—the canine alert, the boxes
in plain view, and the corroboration of the informant’s allegations—
independently support a finding of probable cause. Since these elements are
uncontested, McKenzie cannot show that the warrant application would have
30
been denied but for the allegations contradicted by Breslin’s affidavit.9 McKenzie
has not shown that the alleged misinformation was material. See Franks, 438 U.S.
at 155–56. The district court did not err by denying his request for a Franks hearing.
III. The Government Presented Sufficient Evidence to Establish
McKenzie’s Knowing Possession of the Cocaine Found at the Oak
Hill Residence Beyond a Reasonable Doubt.
A. Applicable Law
We review de novo challenges to the sufficiency of the evidence on appeal.
United States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008). We analyze the evidence
in the light most favorable to the Government, “crediting every inference that the
jury may have drawn in the government’s favor.” Id. (internal quotation marks
omitted). We remain mindful that “the government is entitled to prove its case
solely through circumstantial evidence.” United States v. Coplan, 703 F.3d 46, 69
(2d Cir. 2012) (internal quotation marks omitted).
9 Indeed, because the officers had probable cause based on the undisputed facts, and because
the discrepancies raised in Breslin’s affidavit did not contradict these facts, a warrant was not
actually required. See United States v. Jones, 893 F.3d 66, 71 (2d Cir. 2018); United States v.
Howard, 489 F.3d 484, 494 (2d Cir. 2007) (“If a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth Amendment . . . permits police to search the
vehicle without more.” (citing Pennsylvania v. Labron, 518 U.S. 938 (1996) (alterations
omitted))).
31
McKenzie was convicted of violating 21 U.S.C. § 841(a)(1) for unlawfully
possessing cocaine and marijuana with an intent to distribute. To secure
McKenzie’s conviction with respect to the cocaine, the Government had to prove
beyond a reasonable doubt that (1) he possessed the sixty kilograms of cocaine
found in the Oak Hill Residence; (2) he possessed the cocaine with the intent to
distribute; and (3) he did so knowingly. See United States v. Gore, 154 F.3d 34, 45
(2d Cir. 1998). “Possession with intent to distribute narcotics may be established
by proof of the defendant’s actual or constructive possession of the narcotics.”
United States v. Snow, 462 F.3d 55, 69 (2d Cir. 2006) (internal quotation marks
omitted). Constructive possession requires that the defendant have the “power
and intention” to exercise “dominion and control” over the narcotics, “either
directly or through others.” United States v. Albarran, 943 F.3d 106, 118 (2d Cir.
2019) (quoting United States v. Facen, 812 F.3d 280, 287 (2d Cir. 2016)). Dominion
and control “need not be exclusive.” Snow, 462 F.3d at 69.
B. Analysis
The Government presented sufficient evidence for the jury to conclude
beyond a reasonable doubt that McKenzie was guilty of possessing the cocaine
seized at the Oak Hill Residence with an intent to distribute. The evidence showed
32
that McKenzie controlled the Oak Hill Residence and the items within it. His
former girlfriend, Chambers, testified that she rented the apartment at his
direction for his use. She rented it in the name of Darrin Clark, the same alias
McKenzie provided to police officers on Thornton Avenue and used to rent Unit
296. She further testified that McKenzie apologized for having ensnared her in his
troubles and admitted to storing cocaine in the Oak Hill Residence. The
similarities between the shipping and packaging of the contraband recovered from
the Oak Hill Residence, the Jeep, and Unit 296 further indicate McKenzie’s control
over the cocaine in the apartment. In each case, the drugs were contained in white
construction buckets, packaged inside cardboard boxes, and wrapped in white
garbage bags. This evidence is sufficient to show beyond a reasonable doubt that
McKenzie knowingly possessed the cocaine in the Oak Hill Residence. See, e.g.,
United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996) (holding that evidence showing
a defendant possessed and sold several bags of cocaine outside a building less
than a week before identically packaged cocaine was recovered from within the
building was sufficient to establish knowing possession).
33
IV. The District Court Did Not Err in Calculating McKenzie’s
Guidelines Sentencing Range
A. Applicable Law
The Sentencing Guidelines require district courts to apply a two-level
increase to the base offense level for drug trafficking crimes “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. §
2D1.1(b)(1), Application Note 11(A) (emphasis added). The burden to make the
“clearly improbable” showing rests with the defendant. United States v. Smith, 215
F.3d 237, 241 (2d Cir. 2000) (per curiam). “In order for a defendant’s projected
Guidelines sentence to be enhanced under § 2D1.1(b)(1), ‘[t]he defendant need not
have had personal possession, or even actual knowledge of the weapon’s presence;
the enhancement is required so long as the possession of the firearm was
reasonably foreseeable to the defendant.’” United States v. Batista, 684 F.3d 333, 343
(2d Cir. 2012) (quoting United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996)).
“We review the District Court’s factual findings at sentencing for clear
error.” United States v. Stephens, 369 F.3d 25, 27 (2d Cir. 2004) (per curiam). We
review “de novo the application of the Guidelines to the facts.” Id. The clear error
34
standard applies to McKenzie’s claim that the district court erred by applying the
two-level enhancement for possession of a firearm under Section 2D1.1(b)(1) of the
Sentencing Guidelines.
B. Analysis
McKenzie has not shown that the district court clearly erred by applying the
two-level enhancement under Guidelines Section 2D1.1(B)(1). The firearm,
ammunition, and $68,000 in cash were found in a “sophisticated trap” in the trunk
area of the Jeep that McKenzie was operating. PSR ¶¶ 10, 17. McKenzie had longstanding control over the Jeep: he told police that he owned the Jeep, Chambers
testified that she registered the car in her name at McKenzie’s request and never
drove it herself, and a confidential informant (whose other allegations were
corroborated) claimed to have purchased and insured the Jeep for McKenzie. The
Jeep was kept under constant surveillance by officers between the time that
McKenzie drove it from Unit 296 and when the officers conducted their search—
no one accessed the vehicle in the meantime to add the marijuana or the firearm.
Fifty-six kilograms of marijuana were recovered from the Jeep, meaning that the
gun was present in the vehicle while it was being used to transport narcotics.
35
Under these facts, it is not “clearly improbable” that the weapon was
connected with McKenzie’s drug trafficking activities. See United States v.
Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991) (per curiam). The Sentencing Guidelines
provide an example of such an “improbable” circumstance: a defendant arrested
in his residence with “an unloaded hunting rifle in the closet.” U.S.S.G. §
2D1.1(b)(1), Application Note 11(A). McKenzie’s case is a far cry from that
example. To the contrary, it is probable that the gun was linked to McKenzie’s drug
trafficking activity, considering that it was recovered from the same compartment
as approximately $68,000 in cash and from a vehicle transporting narcotics.
McKenzie has not met his burden to overturn the sentencing enhancement.
* * * * *
We have considered McKenzie’s other arguments raised in his pro se brief
and find no error in the district court’s decisions on those issues.

Outcome: We AFFIRM the district court’s judgment of McKenzie’s conviction.

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