18-1018-cr United States of America v. Oniel McKenzie

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________

August Term 2020

(Argued: April 7, 2021 | Decided: September 9, 2021)

Docket No. 18-1018

UNITED STATES OF AMERICA,

Appellee,

v.

ONIEL MCKENZIE, AKA DARRIN CLARK, AKA SHOWER

Defendant-Appellant. † ______________

Before: LIVINGSTON, Chief Judge, WESLEY, CARNEY, Circuit Judges.

In October 2017, a jury convicted Oniel McKenzie of knowingly and intentionally possessing with intent to distribute controlled substances in violation of

(a)(1). At trial, the Government introduced evidence showing that law enforcement officers recovered approximately 100 pounds of marijuana from a storage unit linked to McKenzie. McKenzie argues that the district court (D’Agostino, J.) should have suppressed this evidence because a warrantless dog sniff outside of the unit violated his Fourth Amendment rights. We hold that the dog sniff was not a search within the meaning of the Fourth Amendment.

† The Clerk of the Court is directed to amend the official caption as set forth above. McKenzie also contends that the district court should have held an evidentiary hearing to address his claim that police investigators knowingly misled a New York court in an application for a search warrant. We disagree and hold that the district court was not required to conduct such a hearing. We have considered McKenzie’s remaining arguments and find them to be without merit. We therefore AFFIRM the judgment of the district court. _________________

ONIEL MCKENZIE, pro se, FCI Fort Dix, Joint Base MDL, NJ.

RAJIT S. DOSANJH, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

BRIAN E. SPEARS (Janna D. Eastwood, on the brief), Spears Manning & Martini LLC, Southport, CT, for Defendant-Appellant. _________________

WESLEY, Circuit Judge:

Oniel McKenzie was convicted of possessing marijuana and cocaine with

intent to distribute in violation of

(a)(1) following a jury trial in the

United States District Court for the Northern District of New York. He was

sentenced to a below-Guidelines term of 188 months’ imprisonment and five years

of supervised release. In a counseled brief, he argues that the district court

wrongly denied his motion to suppress evidence, failed to hold a hearing under

Franks v. Delaware,

(1978), erroneously calculated his Guidelines

sentencing range, and entered a judgment of conviction despite insufficient

2 evidence. In a pro se brief, McKenzie additionally argues that the district court

erred by admitting testimony about uncharged drug offenses, relying at

sentencing upon drug quantities destroyed by the Government, violating his right

to a speedy trial, and exercising jurisdiction despite his crime not being a federal

offense. Having considered these arguments, we find no reversible error in the

decisions of the district court and affirm the judgment of conviction.

BACKGROUND

I. Facts 1

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

(a)(1). The

indictment capped a months-long investigation by the Albany, New York office of

the Drug Enforcement Administration (“DEA”) into McKenzie’s drug trafficking

operation. A confidential informant originally identified McKenzie as the leader

of an enterprise wherein two women (later identified as Deondra Forney and

1These 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. 3 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. 4 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

5 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. 6 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.

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.”

7 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.

8 II. Procedural History

McKenzie was charged with knowing and intentional possession of cocaine

and marijuana with an intent to distribute in violation of

(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

9 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. 10 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 below-

Guidelines 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,

(2d Cir. 2018). Factual determinations about use,

privacy, and the physical characteristics of a property are reviewed for clear error.

“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,

(2d Cir. 2000). A district court’s error in deciding a

motion to suppress is further reviewed for harmlessness. United States v. Cacace,

(2d Cir. 2015) (per curiam).

11 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,

(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.,

(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,

(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,

, 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

at 2061 (citing Mapp v. Ohio,

(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.”

(citing Segura v. United States,

(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,

(2009), or where evidence is obtained from a search conducted in “reasonable reliance” on binding precedent, see Davis v. United States,

(2011); see also Hudson v. Michigan,

, 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. 12 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,

.

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,

(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,

(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,

(2d Cir. 2018); United States v. Gori,

(2d Cir. 2000); United States

v. Levasseur,

(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

13 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

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,

(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,

(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.”

(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,

(1984). 14 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.

, 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,

(9th Cir. 1993) (criticizing Thomas); United States v. Colyer,

(D.C. Cir. 1989) (same); United States v. Reed,

, 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,

(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”).

15 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,

, 410–11

(2012); United States v. Rahman,

(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

16 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,

(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.

7McKenzie 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,

, *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,

; Cacace,

. 17 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,

(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.

, 708–10 (1984). The informant consented to the installation of a location-

sensing ‘beeper’ in one of the drums before delivering them to the defendants.

. 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.

. While traversing generally accessible parts of the

18 facility, the agents identified the smell of ether coming from a specific unit (they

did not use a dog).

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.”

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

8Similarly, 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. 19 incriminating evidence, a search within the meaning of the Fourth Amendment

has not occurred.” See 897 F.3d at 461 (quoting Reed,

) (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 non-

residential 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

20 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,

(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,

(2d Cir. 1980) (holding that officers’

21 warrantless use of a telescope to observe objects and activities within a home

violated the Fourth Amendment); Kyllo v. United States,

(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 non-

residential properties. See, e.g., United States v. Johnson,

(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,

(1983), or an automobile detained during a traffic stop,

see Illinois v. Caballes,

(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,

. 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,

(6th Cir. 1990) (unpublished); United States v. Mikelic, No.

10 Cr. 132 (CFD),

, *5 n.13 (D. Conn. Sept. 19, 2011) (declining to

extend Thomas to a canine sniff of a commercial storage unit).

22 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,

. 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.”

23 Franks,

. 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.

.

Probable cause requires a “fair probability that contraband or evidence of a

crime will be found in a particular place.” Illinois v. Gates,

(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,

(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.”

.

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.”

. “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

24 should find probable cause.”

. 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.

There is mixed authority regarding the standard of review for denial of a

Franks hearing in the Circuit. See United States v. Papadakos,

, 44 n.

2 (2d Cir. 2018) (summary order). There is also a circuit split on the question. See

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,

(2d Cir. 2013) (citing United States v. Moore,

, 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,

, 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,

(2d Cir. 1997)). Whether a false statement was

material to the probable cause determination is a mixed question of law and fact

25 reviewed de novo.

(citing United States v. Awadallah,

(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

26 the detection of narcotics and/or marijuana.”

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,

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.

. 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

27 were in plain sight inside the Jeep supports a finding of probable cause under these

circumstances. See, e.g., United States v. Clark,

(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,

(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.’”

(quoting Jones v.

United States,

(1960)); see also Wagner,

.

28 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,

, 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

29 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,

(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.”

(internal quotation marks

omitted). We remain mindful that “the government is entitled to prove its case

solely through circumstantial evidence.” United States v. Coplan,

(2d Cir. 2012) (internal quotation marks omitted).

9Indeed, 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,

(2d Cir. 2018); United States v. Howard,

(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,

(1996) (alterations omitted))). 30 McKenzie was convicted of violating

(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,

(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,

(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,

, 118 (2d Cir.

2019) (quoting United States v. Facen,

(2d Cir. 2016)). Dominion

and control “need not be exclusive.” Snow,

.

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

31 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,

(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).

32 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,

(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,

(2d Cir. 2012) (quoting United States v. Giraldo,

(2d Cir. 1996)).

“We review the District Court’s factual findings at sentencing for clear

error.” United States v. Stephens,

(2d Cir. 2004) (per curiam). We

review “de novo the application of the Guidelines to the facts.”

The clear error

33 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 long-

standing 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.

34 Under these facts, it is not “clearly improbable” that the weapon was

connected with McKenzie’s drug trafficking activities. See United States v.

Pellegrini,

(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.

CONCLUSION

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

35