United States v. Domenico Sandalo
U.S. Court of Appeals for the Second Circuit
United States v. Domenico Sandalo, 70 F.4th 77 (2d Cir. 2023)
United States v. Domenico Sandalo
Opinion
21-708-cr
United States v. Domenico Sandalo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2021
(Argued: March 15, 2022 | Decided: June 8, 2023)
Docket No. 21-708-cr
UNITED STATES OF AMERICA,
Appellee,
v.
DOMENICO SANDALO,
Defendant-Appellant.
______________
Before:
JACOBS, WESLEY, MENASHI, Circuit Judges.
Defendant-Appellant Domenico Sandalo was indicted for possession with
intent to distribute controlled substances after a search warrant was executed
against his residence. The district court (Bryant, J.) denied his motion to suppress
the evidence law enforcement seized from the search. Sandalo entered a
conditional guilty plea preserving his right to appeal the district court’s decision.
Sandalo now challenges the search warrant’s validity. He argues that the
district court should have given him a Franks hearing because the warrant relies
on knowingly false statements in the supporting affidavit. A majority of this panel
holds that Sandalo was not entitled to a Franks hearing.
For the reasons stated herein and in the accompanying summary order
which disposes of Sandalo’s additional challenge, we AFFIRM the judgment of
the district court.
Judge Jacobs dissents in a separate opinion.
_________________
MATTHEW BRISSENDEN, Matthew W. Brissenden, P.C., Garden City,
NY (Brian Edward King, Smith & King, LLC, Garden City, NY,
on the brief), for Defendant-Appellant.
MARC H. SILVERMAN, Assistant United States Attorney (Maria Del
Pilar Gonzalez, Assistant United States Attorney, on the brief),
for Leonard C. Boyle, Acting United States Attorney for the
District of Connecticut, New Haven, CT, for Appellee.
_________________
WESLEY, Circuit Judge:
Defendant-Appellant Domenico Sandalo was indicted for possession with
intent to distribute controlled substances after law enforcement executed a search
warrant at his residence. The United States District Court for the District of
Connecticut (Bryant, J.) denied his motion to suppress the evidence seized during
the search. Sandalo entered a conditional guilty plea preserving his right to appeal
the district court’s decision and was sentenced to 10 years imprisonment.
Sandalo now exercises that right. He challenges the validity of the search
warrant on several grounds, including that the district court should have given
2
him a Franks hearing because the warrant relies on knowingly false statements in
the supporting affidavit of the warrant application.
Sandalo raises additional challenges. This opinion focuses primarily on the
issues related to Sandalo’s request for a Franks hearing and probable cause; his
remaining arguments are resolved in a simultaneously issued summary order. We
hold that (i) Sandalo was not entitled to a Franks hearing and (ii) the warrant did
not lack probable cause.
As a result, for the reasons set forth here and in the accompanying summary
order, we AFFIRM the district court’s denial of Sandalo’s motions to suppress and
to dismiss.
BACKGROUND
I. FACTS 1
A. Search Warrant Affidavit and Application 2
On June 6, 2019, local law enforcement officers submitted an application
with a supporting affidavit to the Connecticut Superior Court in Norwalk,
1 The following facts are taken from the district court’s opinion and the
Appendices. Citations to “App.” refer to the Appendix, citations to “S.A.” refer to the
Special Appendix, and citations to “Conf. App.” refer to the Confidential Appendix.
2 The search warrant and the search warrant affidavit and application are attached
as an appendix to this opinion.
3
Connecticut, requesting a search warrant for Sandalo and his residence. The
warrant application listed possession of narcotics and possession of a controlled
substance as Sandalo’s suspected crimes.
The affidavit was signed by both Officer Michael Connelly of the Stamford
Police Department’s Narcotics and Organized Crime Unit and Officer Mark Suda
of the Norwalk Police Department (together, the “Officers” or the “Affiants”). It
described Sandalo’s home as a “two[-]occupancy, two-story, colonial[-]style
residence with tan[-]colored siding, white[-]colored trim[,] and red shutters.”
App. 91 ¶ 10.
In the affidavit, the Officers attested that, from January 2019 through June
2019, a confidential informant (the “CI”) provided Officer Connelly with
information that Sandalo was trafficking large amounts of marijuana, powdered
cocaine, and oxycodone pills in Norwalk, Connecticut. The CI described Sandalo’s
appearance and vehicle and provided his address. The Officers attested that the
CI had previously provided reliable and accurate information to Officer Connelly
and other members of the Stamford Police Department, which “ha[d] been
corroborated through an independent investigation” and resulted in several
4
arrests and seizures of narcotics. Id. 90 ¶ 4. The CI positively identified Sandalo
after the Officers presented several photographs to the CI.
The affidavit also provided information concerning Sandalo’s criminal
history. It represented that, from October 2009 through January 2010, Sandalo was
the target of a joint investigation run by the Drug Enforcement Administration
(“DEA”) and the Norwalk Police Department during which officers made several
undercover purchases of OxyContin pills from him. That investigation concluded
in Sandalo’s arrest and a search of his home—the same residence identified in the
search warrant before us—where officers seized large amounts of cash, marijuana,
Percocet pills, OxyContin pills, and hydrocodone pills. As a result, Sandalo was
convicted and sentenced to 70 months in federal prison and 3 years of supervised
release.
The affidavit further revealed a parallel investigation ongoing at the time of
the warrant application. In particular, the Officers attested that from September
2016 to December 2016, Sandalo was the target of another joint investigation
conducted by the DEA and the Norwalk Police Department, during which officers
5
used “a [c]onfidential [s]ource ([the “CS”]) to conduct several controlled purchases
of [o]xy[c]odone pills from Sandalo [at] his residence . . . .” 3 Id. 91 ¶ 7.
The affidavit also described controlled phone communications that officers
oversaw between the CI and Sandalo. The Officers attested that in January 2019,
Officer Connelly and Officer C. Pennoyer of the Stamford Police Department met
with the CI “at a pre-arranged meet location for the purpose of conducting a
controlled phone contact with Domenico Sandalo.” Id. 91 ¶ 11. The Officers
attested that the CI and Sandalo “made contact via both SMS / text and phone calls
utilizing []2[] of Sandalo’s phone numbers,” during which Connelly “observed . . .
Sandalo advise[] the [CI] that he (Sandalo) was currently waiting to receive a large
shipment of [o]xycodone pills, which he was then planning to sell.” Id.
The Officers stated that they “and [o]fficers of the Stamford Police Narcotics
Division contacted members of the Bridgeport DEA Resident Office as well as
members of the Norwalk Police Special Services [D]ivision and began a multi-
jurisdictional investigation.” Id. 91 ¶ 12. The Officers noted that “all above
information [in the affidavit] was corroborated with both the DEA and members
3The Confidential Source, or CS, is not to be confused with the Confidential
Informant, or CI, used in the Officers’ investigation.
6
of the Norwalk Police Special Services Division.” Id. “Through this
corroboration[,] it was confirmed that Norwalk Special Services Officers were
aware through physical observation and [CI] information that Sandalo does in fact
currently reside at” the address associated with his residence. Id.
Notably, the affidavit additionally alleged that the CI knew and/or believed
that drugs were located in Sandalo’s residence and that the CI saw narcotics there
mere hours before the Officers requested the search warrant on June 6, 2019. The
Officers attested that on that day, the CI “contacted [Officer] Connelly and stated
that Sandalo [wa]s currently in possession of a large amount of powder[ed]
cocaine (approximately 1 kilo), hundreds of oxycodone pills (described as
approximately 600 pills, light blue in color)[,] and multiple pounds of marijuana”
and claimed that “the above[-]stated narcotics [we]re being stored within
Sandalo’s residence and that the [CI] observed the narcotics within Sandalo’s
residence . . . within the last 24 hours.” Id. 92 ¶ 13. The CI, according to the
affidavit, also informed Officer Connelly that “Sandalo utilize[d] the residence as
the storage area for his . . . narcotics and that Sandalo w[ould] package, weigh[,]
and distribute the narcotics from his residence” and that “he/she ha[d] observed
7
in the past that Sandalo occasionally conceal[ed] amounts of narcotics around the
curtilage of the residence.” Id.
B. Search Warrant Issued
On June 6, 2019, the Connecticut Superior Court granted the application and
issued a search warrant permitting law enforcement to search Sandalo and to enter
his residence to conduct a search therein. The warrant listed numerous items that
could be seized from Sandalo and his residence.
C. Search and Seizure
The day the warrant was issued, Affiant Suda led a team to execute the
warrant utilizing members of the DEA, Norwalk Police Department, Stamford
Narcotics Unit, and Detective Bureau of Wilton, Connecticut. When law
enforcement arrived at Sandalo’s residence, they observed Sandalo in the
driveway performing what the officers described as a hand-to-hand narcotics
transaction with two other individuals; the officers detained Sandalo and the
individuals before entering the residence to commence the search. A substantial
8
amount of cash and illegal substances were recovered along with other items
related to drug activity. 4
II. PROCEDURAL HISTORY
A. Grand Jury Indictment
Sandalo was indicted by a federal grand jury for possession with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (“Count One”), and possession with intent to distribute fentanyl, marijuana, and oxycodone, in violation of21 U.S.C. §§ 841
(a)(1) and 841(b)(1)(C)
(“Count Two”). The indictment further alleged that Sandalo faced enhanced
statutory penalties based on his previous federal conviction for possession with
intent to distribute oxycodone.
According to the Norwalk Police Department’s reports detailing the search, law
4
enforcement seized the following items from Sandalo’s residence: roughly $50,000 in
cash; a digital scale; “14.8 pounds of marijuana”; over 600 grams of powdered cocaine; 77
prescription oxycodone pills; 46 prescription fentanyl pills; over 600 vape cartridges; 1.2
grams of anabolic steroids and 19 tablets of anastrozole steroids; “[n]umerous
hypodermic needles commonly used to ingest narcotics”; and “[n]umerous financial
documents and bank cards.” App. 99–101.
9
B. Sandalo’s Motions to Compel, Suppress, Dismiss, and
Unseal
Sandalo brought four motions challenging the search warrant and his
indictment. First, Sandalo moved to compel the Government to identify the CI
referenced in the affidavit. The district court denied this motion.
Sandalo then moved to suppress the evidence seized from his home during
the search, to dismiss the case, and to unseal certain documents in the record to
support his motions. He argued, inter alia, that the affidavit supporting the
warrant and the issuing court’s finding of probable cause contained statements
that the Officers knew were false. Accordingly, Sandalo requested a separate
hearing pursuant to Franks v. Delaware, 438 U.S. 154(1978), to challenge the truth of three sets of statements: (1) that Officer Connelly “observed” Sandalo say he was awaiting “a large shipment of [o]xycodone pills” for sale during “a controlled phone contact” between the CI and Sandalo, App. 91 ¶ 11; (2) that most of the information in the affidavit “was corroborated with both the DEA and . . . the Norwalk Police [Department],”id.
91–92 ¶ 12; and (3) that the CI “observed . . . narcotics within Sandalo’s residence . . . within the last 24 hours” preceding the search warrant application,id.
92 ¶ 13.
10
C. Sandalo’s Supporting Affidavits
To support his challenges, Sandalo submitted affidavits from himself, his
wife, his father, and his lawyer. Notably, Sandalo and his family attested that on
the night the CI claimed to see narcotics in Sandalo’s home, the person they
suspected to be the CI never entered Sandalo’s residence and neither the suspected
CI nor any other visitor observed any drugs in or around the residence.
Sandalo’s affidavit contended that Officer Connelly falsely claimed he had
“observed” Sandalo inform the CI that Sandalo was awaiting a large shipment of
drugs for sale during a controlled phone contact between the CI and Sandalo in
January 2019. He further argued that the individual he believes to be the CI suffers
from ailments and poor health that made it very difficult to traverse his two-story
home, especially the stairs. Sandalo claimed that because officers found the
narcotics hidden throughout his residence during the search, the statements in the
warrant affidavit that the CI saw narcotics in Sandalo’s residence must have been
false; Sandalo attested that the CI’s poor mobility would have prevented him from
going through the home noting the location of the drugs. Lastly, Sandalo stated
that because the drugs were kept in containers, the CI could not have readily
identified or quantified the narcotics.
11
Defense counsel’s affidavit made much of the fact “that there were never
any audio or visual recordings, copies, notes, memos, or reports of the alleged
phone calls or texts between Mr. Sandalo and the confidential informant in
January 2019 that are referenced in . . . the search warrant affidavit.” App. 85 ¶
12. 5
The district court scheduled a hearing concerning Sandalo’s pending
motions and received additional briefing from the parties on the relevant issues.
D. Evidentiary Hearing
Prior to the hearing, the DEA and an Assistant United States Attorney
representing the Government interviewed Officer Connelly on August 18, 2020,
and September 11, 2020, and the CI on September 14, 2020; the DEA prepared
reports summarizing the interviews. In response to Sandalo’s motion to suppress,
the Government disclosed the reports to Sandalo, who later submitted them into
the record under seal after the hearing. Before the hearing, Sandalo subpoenaed
5In Sandalo’s brief, he suggests that this lack of physical evidence “lead[s] to the .
. . conclusion” that Officer Connelly “knowingly and intentionally lied about th[e] texts
and calls taking place.” Appellant Br. at 50–51.
12
the person he believed to be the CI. In response, the Government moved to quash
the subpoena.
At the hearing, the parties presented arguments regarding Sandalo’s
subpoena, his motions to unseal, and his related request to hold a Franks hearing.
The parties argued at considerable length about whether testimony from the
person Sandalo suspected was the CI was necessary. To support his argument,
Sandalo relied on, inter alia, the reports prepared by the Government of the CI and
Officer Connelly’s pre-hearing interviews, which occurred over fourteen months
after the search. The Government informed the district court that the reports were
not part of the record. The district court then asked the Government to produce
the CI’s witness interview report and recessed to review it.
After reviewing the CI’s interview report, the district court ultimately ruled
that Sandalo was not entitled to a Franks hearing or to call the CI as a witness. The
district court held that Sandalo failed to establish that he correctly identified the
CI and that even if that person were the CI, he failed to present facts showing that
the CI “would cast any doubt on the veracity or the belief of the police officers at
the time they signed the warrant.” App. 262, 51:13–15.
13
E. Decision Below
In a written opinion, the district court denied Sandalo’s motion to suppress,
motion to dismiss, request for a Franks hearing, and request to subpoena the
witness he thought to be the CI. 6 Notably, the district court held that Sandalo was
not entitled to a Franks hearing because he failed to make a substantial preliminary
showing that any of the three statements Sandalo scrutinized were false material
statements that the Officers knowingly or recklessly included in the search
warrant affidavit. With respect to the two sets of statements in the affidavit that
Connelly “observed” Sandalo say during a controlled call with the CI that Sandalo
was awaiting a large shipment of narcotics for sale, and that the information
provided in the affidavit was corroborated with two other law enforcement
agencies, the district court concluded that Sandalo failed to establish that these
statements were necessary to a finding of probable cause. The district court
explained that probable cause for the warrant still existed without these
statements because of the CI’s reliability, Sandalo’s previous conviction for similar
conduct, statements in the affidavit that a CS made controlled purchases of
6As a result, the district court also denied as moot the Government’s motion to
quash Sandalo’s subpoena.
14
narcotics from Sandalo in 2016 during another joint investigation, and the
statements in the affidavit that the CI saw drugs in Sandalo’s residence within 24
hours before the search warrant application.
As for the statements in the affidavit that the CI observed narcotics in
Sandalo’s home, the district court found that Sandalo did not make “a substantial
preliminary showing that the statements [we]re false and that they were made by
[the A]ffiants knowing[ly] or recklessly disregarding their falsity.” S.A. 37.
The district court discredited the affidavits Sandalo submitted in support of
his motion to suppress. It noted that Sandalo’s own affidavit was “a self-serving
statement offered with no corroborati[ng] evidence” that “did not carry the burden
of proof by a preponderance of the evidence,” the affidavits of Sandalo’s wife and
father did not account for “the entire 24-hour period prior to the” warrant affidavit
and did not “unequivocally state there were no drugs in the house,” and all the
affidavits together did not preclude every way in which the CI may have “entered
the home without someone inside the home knowing it.” Id. 37–38. The district
court also determined that none of Sandalo’s affidavits “provide[d] an offer of
proof that the Affiants knew or recklessly disregarded the truth of” the statements
in the warrant affidavit that the CI saw drugs in Sandalo’s residence. Id. at 38. The
15
CI’s health issues discussed in these affidavits, the court reasoned, were not
enough to prevent the CI from observing narcotics inside Sandalo’s residence
because the affidavits did not state “the CI could not walk or could not use stairs,”
just that the CI “could not do it well.” Id.
F. Sandalo’s Guilty Plea and Conviction
Sandalo entered a conditional plea of guilty to Count One of the indictment
for possession with intent to distribute 500 grams or more of cocaine but preserved
his right to appeal the district court’s decision denying his suppression motion and
related requests. The district court sentenced Sandalo to 10 years of imprisonment,
followed by 8 years of supervised release. He filed a timely notice of appeal.
Sandalo appeals the district court’s judgment denying his motions to
suppress and dismiss.
DISCUSSION
This case presents a complicated record, a complex set of facts, an intricate
procedural history, and a number of meritless arguments. Sandalo contends that
the Officers knowingly included false information in the affidavit supporting the
search warrant, thus entitling him to a Franks hearing to challenge the veracity of
16
that information. This opinion focuses on the issues related to Sandalo’s request
for a Franks hearing and whether the warrant was supported by probable cause.
Unsatisfied by the district court’s conclusion that the Officers established
probable cause for the search warrant, Sandalo argues that they did so by
knowingly including three false, material statements in the warrant affidavit: (1)
that Officer Connelly witnessed phone calls and text conversations between the CI
and Sandalo in which Sandalo represented that he was “currently waiting to
receive a large shipment of [o]xycodone pills, which he (Sandalo) was then
planning to sell,” App. 91 ¶ 11; (2) that the information in the affidavit “was
corroborated with” the DEA and Norwalk Police Department, and around that
time, law enforcement began a “multi-jurisdictional investigation,” id. 91–92 ¶ 12;
and (3) that the CI “observed . . . narcotics within Sandalo’s residence . . . within
. . . 24 hours” of the search warrant application, id. 92 ¶ 13. He also attempts to
define the showing necessary to obtain a Franks hearing and argues he has met
that requirement.
The Officers’ conduct in obtaining a warrant to search Sandalo’s residence
did not necessitate a Franks hearing. Accordingly, the judgment entered by the
district court is affirmed.
17
I. Governing Law
To be entitled to a Franks hearing, a defendant must make “a substantial
preliminary showing” of (1) falsity, “that a false statement . . . was included by the
affiant in the warrant affidavit,” (2) knowledge, that the affiant made the allegedly
false statement “knowingly and intentionally, or with reckless disregard for the
truth,” and (3) materiality, that “the allegedly false statement is necessary to the
finding of probable cause.” Franks, 438 U.S. at 155–56; see United States v. McKenzie,
13 F.4th 223, 236(2d Cir. 2021). A defendant’s obligation to prove these elements is well established in this Circuit. See McKenzie,13 F.4th at 236
.
With respect to knowledge, “[a]llegations of negligence or innocent mistake
are insufficient.” Franks, 438 U.S. at 171. As for materiality, the alleged falsehood or omission should be set aside and “the remaining portions of the affidavit should be reviewed . . . to determine if probable cause still exists.” United States v. Canfield,212 F.3d 713, 718
(2d Cir. 2000); Franks, 438 U.S. at 171–72. If after doing so “there
remains sufficient content in the warrant affidavit to support a finding of probable
cause, no hearing is required.” Franks, 438 U.S. at 171–72. But “if the remaining
content is insufficient, the defendant is entitled . . . to [a] hearing.” Id. at 172.
18
The Franks Court warned that a defendant’s challenge of a warrant “must
be more than conclusory and must be supported by more than a mere desire to
cross-examine.” Id. at 171. A defendant is required to make “allegations of
deliberate falsehood or of reckless disregard for the truth . . . accompanied by an
offer of proof” with the defendant’s allegations “point[ing] out specifically the
portion of the warrant affidavit that is claimed to be false” and “be[ing]
accompanied by a statement of supporting reasons.” Id. But the Court did not
further define what threshold the defendant must meet in securing a Franks
hearing.
If a defendant makes a substantial preliminary showing, Franks noted that
the defendant is entitled to a hearing where he must establish falsity, knowledge,
and materiality “by a preponderance of the evidence.” Id. at 156. If a defendant
prevails at the Franks hearing, “the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause was lacking on the
face of the affidavit.” Id.; see Canfield, 212 F.3d at 717–18.
Franks also reflects the Supreme Court’s concern that permitting a hearing
that impugns the veracity of statements included in a search warrant affidavit
without a “sensible threshold showing” could lead to a “new large-scale
19
commitment of judicial resources” and the “misuse of [] veracity hearing[s] for
purposes of discovery or obstruction.” Franks, 438 U.S. at 170. We have recognized that Franks “adopted the substantial preliminary showing requirement and stressed the need for a ‘sensible threshold’ before a hearing would be required” to alleviate concerns that “frivolous challenges” could result in “unnecessary pretrial delays.” United States v. Figueroa,750 F.2d 232, 237
(2d Cir. 1984) (quoting Franks,438 U.S. at 170
).
Reflecting this purpose, courts have construed the burden imposed by the
“substantial preliminary showing” standard as a heavy one that requires more
than a mere conclusory showing. This includes our Circuit, 7 several of our sister
7See, e.g., Golino v. City of New Haven, 950 F.2d 864, 870(2d Cir. 1991) (noting that a defendant challenging a warrant’s probable cause faces a “heavy burden” that can be met by making a “substantial preliminary showing” and prevailing at a Franks hearing); Rivera v. United States,928 F.2d 592, 604
(2d Cir. 1991) (stating that the substantial
preliminary showing “standard is a high one”).
20
circuits, 8 and the district courts within our Circuit. 9 As such, the substantial
preliminary showing standard imposes a “high” burden on Sandalo. Rivera, 928
F.2d at 604.
II. Standard of Review
While there is a circuit split on the appropriate standard of review for the
denial of a Franks hearing, see United States v. Rajaratnam, 719 F.3d 139, 156 n.19 (2d Cir. 2013), and there appears to be some confusion on the matter within our own circuit, see McKenzie,13 F.4th at 236
(stating that “[t]here is mixed authority
regarding the standard of review for denial of a Franks hearing in the Circuit”), we
have held that we review a district court’s conclusions of law de novo, its
See, e.g., United States v. Lopez, 769 F. Appx. 288, 288 (6th Cir. 2019) (per curiam)
8
(characterizing the substantial preliminary showing standard as a “heavy burden”);
United States v. Tate, 524 F.3d 449, 454(4th Cir. 2008) (stating that the burden of making a substantial preliminary showing is “a heavy one to bear”); United States v. Swanson,210 F.3d 788, 790
(7th Cir. 2000) (“These elements are hard to prove, and thus Franks hearings are rarely held.”); United States v. Tibolt,72 F.3d 965
, 973 n.7 (1st Cir. 1995) (recognizing that “the ‘substantial preliminary showing’ requirement needed to obtain a Franks hearing is not lightly met”) (citing United States v. Hively,61 F.3d 1358, 1360
(8th Cir.
1995)).
See, e.g., United States v. Thompson, No. 1:18-00126 (EAW), 2019 WL 4509028, at *6
9
(W.D.N.Y. Sep. 19, 2019) (describing the “substantial preliminary showing” standard as
a “high burden”); United States v. Melendez, No. 16-33 (LTS), 2016 WL 4098556, at *7
(S.D.N.Y. July 28, 2016) (“The burden to obtain such a hearing is a heavy one, and such
hearings are exceedingly rare.”); Turner v. Boyle, 116 F. Supp.3d 58, 87 (D. Conn. 2015)
(calling the standard a “heavy burden”) (citation omitted).
21
conclusions of fact for clear error, and its “denial of a Franks hearing for clear error
to the extent that it rests on factual findings,” id.Accordingly, we review the district court’s factual findings of falsity and knowledge for clear error and its determinations of materiality de novo. Seeid. at 237
.
We hold that the district court properly denied Sandalo’s request for a
Franks hearing “even under the more exacting de novo review.” Id. at 236.
III. Analysis
1. The Officers’ Statements Regarding the January 2019
Controlled Phone Communications Between the CI and
Sandalo
Sandalo challenges the Officers’ statements in the warrant affidavit that in
January 2019, Officer Connelly was present when the CI made “a controlled phone
contact with” Sandalo “via both SMS / text and phone calls,” during which Officer
Connelly “observed . . . Sandalo advise[] the [CI] that he . . . was currently waiting
to receive a large shipment of [o]xycodone pills, which he was then planning to
sell.” App. 91 ¶ 11. Sandalo contends these statements were false and the Officers,
knowing they were false, intentionally included them in the affidavit.
Sandalo relies on an assortment of evidence to establish that Officer
Connelly knew them to be false. That evidence includes Sandalo’s own affidavit
22
in which he denies ever making similar statements over the phone to anyone in
January 2019; a report of Officer Connelly’s September 2020 interview with the
Government in which Connelly recounted the CI’s then lack of recall of the
January 2019 controlled phone communications; the warrant affidavit’s failure to
specify the date, time, or contents of the controlled phone communications; the
lack of any audio or visual depictions or recordings of the controlled phone
communications; and the “fact” that the Officers did not arrest Sandalo at the time
of the phone communications or gather other proof of his drug dealing at that
time. Sandalo also argues that the statements in the warrant affidavit regarding
the controlled phone communications are material because without them, the only
remaining examples of Sandalo’s criminality in the affidavit are the statements
that law enforcement utilized the CS to make purchases of controlled substances
from Sandalo in 2016 and the statements that the CI saw narcotics in Sandalo’s
residence within 24 hours of the June 2019 warrant application. 10
10Sandalo contends the statements that led to the 2016 arrest are insufficient as the
circumstances alleged in those statements occurred over two and a half years prior to the
conduct in question here.
23
But even assuming that the statements about the January 2019 controlled
phone communications were false and were included by the Officers with
knowledge of their falsity, Sandalo has failed to make a substantial preliminary
showing that they are material to a determination of probable cause. If we
removed these statements from the affidavit, as the district court rightly
recognized, “there is still probable cause due to [] Sandalo’s prior conviction for
similar conduct out of the same property, the 2016 controlled [substance] buys, the
CI’s June 2019 observations [of narcotics in Sandalo’s residence], and the
statement[s] relating to the CI’s reliability.” S.A. 36. Ultimately, the remaining
totality of the circumstances set forth in the affidavit establishes a “fair probability
that contraband or evidence of a crime w[ould] be found” at Sandalo’s residence.
Illinois v. Gates, 462 U.S. 213, 239 (1983).
2. The Officers’ Statements that the Information in the
Affidavit “Was Corroborated” With Other Law
Enforcement Agencies
Sandalo also challenges the statements that (1) the Affiants and the Stamford
Police Department contacted the DEA and Norwalk Police Department and began
a “multi-jurisdictional investigation,” and (2) information in the affidavit “was
24
corroborated” 11 with the DEA and Norwalk Police Department. App. 91 ¶ 12. In
particular, he takes these statements to mean that the Affiants, the DEA, the
Stamford Police Department, and the Norwalk Police Department jointly
conducted an investigation to “directly confirm and corroborate” the statements
regarding the January 2019 controlled phone communications—an inquiry he calls
the “confirmatory investigation.” Appellant Br. at 53–54. Sandalo, however, fails
to make a substantial preliminary showing of falsity, knowledge, and materiality
as to these statements.
Sandalo claims that these statements were knowingly false because there is
nothing reflecting what was done by the various law enforcement agencies to
confirm or corroborate the claim that during the January 2019 controlled phone
communications, Sandalo informed the CI that he was awaiting a shipment of
oxycodone for sale. The lack of information in the record or the affidavit
concerning the Officers’ statement that the information in the affidavit “was
11 The affidavit is not clear how the information included therein “was
corroborated” with the DEA and Norwalk Police Department or even what
“corroborated” means as used in the affidavit. App. 91 ¶ 12. We take “corroborated” to
mean, at a minimum, that the Affiants and the Stamford Police Department both
confirmed, if not learned of, Sandalo’s address and the 2016 controlled substance buys
upon contacting the two law enforcement agencies.
25
corroborated” with the DEA and Norwalk Police Department does little for
Sandalo. It does not show that Officer Connelly’s professed observations were
false or that they were included in the affidavit with knowledge of their falsity or
in reckless disregard for their truthfulness.
To be clear, Sandalo plainly misconstrues this portion of the affidavit by
conflating the two sets of statements he challenges. The affidavit alleges both that
(1) a “multi-jurisdictional investigation” began once the Officers and the Stamford
Police Department contacted the DEA and Norwalk Police Department, and
(2) “all above” information in the affidavit was corroborated with those agencies.
App. 91 ¶ 12. However, the affidavit does not suggest the “multi-jurisdictional
investigation” that then commenced was directed at corroborating the January
2019 controlled phone communications or other information in the affidavit. Nor
does the fact that these statements are both included in the same paragraph in the
affidavit suggest otherwise. Besides, it is obvious how the Norwalk Police
Department would have corroborated the January 2019 controlled phone
communications and every other statement in the affidavit: one of its officers was
an Affiant. And there is little doubt that a “multi-jurisdictional investigation”
commenced at some time before the Officers requested the warrant; officers from
26
the DEA, Wilton Police Department, and Stamford Police Department all assisted
the search team in executing the warrant.
In any event, even if the statements in the affidavit said that the DEA
corroborated the January 2019 controlled phone communications and even if the
statements were false and included with knowledge of their falsity, these
statements—as the district court determined—are not material to a finding of
probable cause for the warrant. If we were to remove them, “there is still probable
cause due to [] Sandalo’s prior conviction for similar conduct [at] the same
property, the 2016 controlled [substance] buys, the CI’s June 2019 observations [of
drugs in Sandalo’s home], and the statement relating to the CI’s reliability.” S.A.
36. As a result, Sandalo fails to meet his burden with respect to these statements.
3. The Officers’ Statements Concerning the CI’s June 2019
Observations
Next, Sandalo takes issue with the Officers’ statement in the affidavit that
the CI saw narcotics within Sandalo’s residence in June 2019. Sandalo offers, as
proof, the affidavits submitted on his behalf, and the CI and Officer Connelly’s
witness interview reports. He argues this evidence shows law enforcement never
established a basis for the CI’s statement and, thus, the Officers lied when they
stated that the CI observed narcotics in Sandalo’s home. Relying on the Seventh
27
Circuit’s decision in United States v. McMurtrey, 704 F.3d 502 (7th Cir. 2013),
Sandalo insists that this circumstantial evidence is sufficient to establish the
Officers’ knowledge as to the falsity of the statement.
We are not convinced that this purported lack of support in the record for
the Officers’ statement that the CI observed narcotics in Sandalo’s residence
suggests that the statement was false. But even if the statement was false, we are
not persuaded that this suggests the Officers knew the statement was false. While
circumstantial evidence may be sufficient to establish knowledge of falsity, lack of
affirmative support in the record falls short of “contradictions and discrepancies”
that “are ‘sufficient to support a reasonable inference of deliberate or reckless
deception of the issuing judge.’” Appellant Reply Br. 13–14 (quoting McMurtrey,
704 F.3d at 510 n.4).
Sandalo also contends that there is a conflict between the statements the CI
and Officer Connelly made during their witness interviews as to where in the
residence the CI said the drugs would be found and that this perceived conflict
proves the Officers lied in their affidavit. Identifying an inconsistency between
the CI and Officer Connelly’s statements is Sandalo’s best argument. But the CI
and Officer Connelly made these statements to interviewing officers over fourteen
28
months after the warrant application. 12 The later statements in the interview
reports only show what the CI and Connelly could recall concerning the CI’s
earlier statements. Moreover, the inconsistent witness interview statements do not
cast doubt on the CI’s earlier statement, reported in the warrant affidavit, that the
CI saw drugs in Sandalo’s home. At best the inconsistent statements cast doubt as
to where in Sandalo’s home the CI said the drugs were located. But even if the
CI’s statement about seeing drugs in Sandalo’s home were false, that does not
indicate the Officers knew the statements were false when they included them in
the warrant affidavit. That said, during the CI’s interview, the CI explained that
Sandalo would “show the CI drugs whenever the CI stopped by Sandalo’s house,”
and “whenever [the CI] would see narcotics at Sandalo’s residence[,] [the CI]
would call [] Connelly, either on the same day or whenever [the CI] could get in
contact with him.” Conf. App. 82 ¶ 8. This is entirely consistent with the warrant
12 We find it unsurprising that the CI, who assisted in numerous other
investigations leading to multiple arrests and drug seizures on “several occasions,” App.
90 ¶ 4, and Officer Connelly, a seventeen-year veteran of the Stamford Police Department
and member of the Narcotics and Organized Crime Unit, would have inconsistent
memories regarding exact stash spots from a specific search that occurred over a year
before their respective interviews, id. 90 ¶ 1.
29
affidavit’s statement that the CI told Connelly that the CI saw drugs “within
Sandalo’s residence” within 24 hours of June 6, 2019. App. 92 ¶ 13.
Again, even if the statement were false and included in the affidavit with
the Officers’ requisite knowledge, Sandalo still fails to make a substantial
preliminary showing of materiality with respect to the specific portion of the
statement that the CI observed narcotics within the residence.
Paragraph 13 of the warrant affidavit contains the CI’s relevant statements
connecting the residence to Sandalo’s drug-trafficking activity. The first sentence
of that paragraph states that “[o]n this date 06/06/19, the above[-]stated [CI]
contacted Affiant Connelly and stated that Sandalo is currently in possession of a
large amount of powder[ed] cocaine (approximately 1 kilo), hundreds of
oxycodone pills (described as approximately 600 pills, light blue in color)[,] and
multiple pounds of marijuana.” Id.This sentence reflects the CI’s knowledge and/or belief that narcotics were present at Sandalo’s residence on June 6, 2019. The second sentence provides that “[t]he [CI] stated that the above[-]stated narcotics are being stored within Sandalo’s residence and that the [CI] observed the narcotics within Sandalo’s residence . . . within the last 24 hours.”Id.
It reflects
the CI’s observation of drugs “within” Sandalo’s residence mere hours before the
30
warrant application. Id.The third sentence reads that “[t]he [CI] stated that Sandalo utilizes the residence as the storage area for his (Sandalo’s) narcotics and that Sandalo will[] package, weigh[,] and distribute the narcotics from his residence.”Id.
This sentence reflects the CI’s knowledge and/or belief that
Sandalo utilized his residence for drug-trafficking purposes at that time, including
as a place to store his narcotics.
Sandalo, however, only disputes whether the CI observed the narcotics in the
residence—the second sentence of paragraph 13—not the CI’s separate knowledge
and/or belief that drugs were there or that Sandalo used the residence for his illicit
operation—the first and third sentences. By removing the second sentence, the
relevant portion of the affidavit would simply provide:
On this date 06/06/19, the above[-]stated [CI] contacted
Affiant Connelly and stated that Sandalo is currently in
possession of a large amount of powder[ed] cocaine
(approximately 1 kilo), hundreds of oxycodone pills
(described as approximately 600 pills, light blue in
color)[,] and multiple pounds of marijuana. . . . The [CI]
stated that Sandalo utilizes the residence as the storage
area for his (Sandalo’s) narcotics and that Sandalo will[]
package, weigh[,] and distribute the narcotics from his
residence.
31
Id.With this revision and setting aside the statements regarding the January 2019 controlled phone communications or that the information in the affidavit was “corroborated,” there still is probable cause based on (1) the CI’s knowledge and/or belief that Sandalo was in possession of drugs on June 6, 2019, (2) the CI’s knowledge and/or belief that Sandalo stored his drugs at the residence at that time, (3) the CI’s reliability, (4) the 2016 controlled substances buys, and (5) Sandalo’s prior conviction for similar drug-trafficking conduct. Thus, even if the Officers “[i]ntentionally misstate[d]” the fact that the CI observed the narcotics within the residence, “it is clear that no remedy is required as a constitutional matter” under Franks and its progeny because that fact is “[i]mmaterial to a finding of probable cause.” United States v. Barnes,604 F.2d 121
, 153 n.17 (2d Cir. 1979), cert. denied,446 U.S. 907
(1980).
Sandalo has not made a substantial preliminary showing that any of the
three statements Sandalo scrutinized were false material statements that the
Officers knowingly or recklessly included in the search warrant affidavit. He
succeeds only at identifying inconsistent statements—and discrete details within
them—that are immaterial to a finding of probable cause. Worse yet, Sandalo
32
impugns only the CI’s veracity, not the Officers’. He is not entitled to a Franks
hearing. 13
* * *
Finally, a few words regarding our colleague’s dissenting view. The
dissenter agrees with the Court on two significant points: (1) Sandalo did not make
a sufficient showing that the affidavit’s reference to corroboration by other law
enforcement agencies was false, and (2) the statement about the January 2019
13 In rejecting Sandalo’s argument for a Franks hearing, it is apparent to us that
there was probable cause for the search warrant. Sandalo’s arguments to the contrary
lack merit. We also reject Sandalo’s argument that the district court committed an error
in its rulings and procedures for the hearing where it considered Sandalo’s arguments
for a Franks hearing. Sandalo argues that the district court did in fact grant him a Franks
hearing, relying on statements made by the district court during the hearing and, in the
alternative, representations made by the court deputy prior to the hearing that parties
would be “free to present witness testimony and evidentiary exhibits.” App. 294. He
insists that after supposedly granting him a Franks hearing, the court changed its mind
once the Government made “an oral motion to reargue its opposition to Sandalo’s motion
to suppress and dismiss” by objecting to producing the CI at the hearing. App. 318.
While we review the sufficiency of an evidentiary hearing for an abuse of discretion, see
Puglisi v. United States, 586 F.3d 209, 215(2d Cir. 2009); cf. Gen. Elec. Co. v. Joiner,522 U.S. 136, 141
(1997) (stating that all a district court’s “evidentiary decisions are reviewed under
an abuse-of-discretion standard”), there is no discretionary act here to review; the court
did not exercise discretion in that it never granted Sandalo a Franks hearing. As the
district court held, “there was no motion to reargue” because the court had not yet
decided whether Sandalo was entitled to a Franks hearing, he should have sought
clarification if he was unsure, the court deputy did not “speak for the [c]ourt,” and the
deputy was right in telling Sandalo that he could present evidence at the hearing. S.A.
41–42. Sandalo’s arguments to the contrary lack merit.
33
controlled calls was “likely immaterial” to the probable cause finding. See Dissent
at 6 n.4; 14. Despite conceding immateriality of that second statement, the
dissenter sees fit to dissect the issue of that statement’s falsity and concludes that
if both that statement and the CI’s statement about seeing drugs inside the house
were false, “the warrant application falls short.” Id. at 14. But in reaching that
conclusion, the dissenter employs generous inferences, misinterprets portions of
the affidavit as inseverable, and downplays a critical missing link in the facts
presented: that Sandalo makes no showing that the Officers—rather than the CI—
knowingly or recklessly made false statements.
Take, for example, the dissenter’s analysis of the January 2019 calls, in which
Sandalo told the CI that Sandalo was waiting to receive a large shipment of drugs
to sell. Although we reach no conclusion as to this statement’s falsity (because it
is immaterial), the dissenter simply makes too much of Sandalo’s self-serving
affidavit, and too much of the notes from the pre-hearing interviews of Officer
Connelly and the CI, which took place in August and September 2020—over
nineteen months after the controlled calls. The dissenter theorizes that the CI’s
unimpressive memory suggests falsity. See Dissent at 7–8. But failing to remember
34
is not an admission of lying. 14 Sandalo must show more than poor recall; he must
show the statements were false and that the Officers knowingly or recklessly
disregarded their falsity. Moreover, the dissenter’s inference of what the CI
“likely” could have told interviewers “if” certain questions had been asked is
guesswork at best. See Dissent at 7.
The dissenter also points to Officer’s Connelly’s “prodigious” inclusion of
“two ten-digit phone numbers . . . used to contact Sandalo” in the warrant affidavit
as evidence of some type of impropriety. Id. at 8. This is not the Perry-Mason
revelation Sandalo and the dissenter wish it to be. That the Government has no
phone records of the January calls or texts hardly forecloses other ways Officer
Connelly could have acquired Sandalo’s phone numbers when he produced his
warrant affidavit. Tellingly, in Sandalo’s affidavit, he does not dispute that the
two phone numbers belong to him.
14It is also unclear how Officer Connelly’s own statement in his interview that the
CI “does not remember making a controlled phone call to [Sandalo]” shows that Connelly
knowingly or recklessly lied in the warrant affidavit over a year earlier. Conf. App. 76 ¶
2. The dissenter would have us believe that Officer Connelly was feckless enough to lie
under oath in his warrant application about the existence of phone calls between Sandalo
and the CI, but honest enough to admit that the CI had no memory of those calls during
Connelly’s out-of-court interview. This is a stretch, and it relies on hearsay.
35
The dissenter’s observations regarding the third statement—that the CI
observed drugs in Sandalo’s home within 24 hours of making the tip—fare no
better. See Dissent at 8–9. Unlike the dissent, we cannot credit Sandalo’s
self-serving statement that showing his drugs to the CI would not have “ma[de]
any sense” at the time. App. 70 ¶ 11; Dissent at 10. We also fail to see a meaningful
difference between Officer Connelly’s interview statement that the CI told him
that the CI “just left [Sandalo’s] house,” Conf. App. 78 ¶ 4, and the warrant
affidavit’s statement that the CI saw drugs “within” Sandalo’s house, App. 92 ¶
13. Nor do we discern any meaningful “daylight,” Dissent at 11, between the latter
statement and the CI’s interview notes recounting where the police “would” find
narcotics, Conf. App. 83 ¶ 11. These statements are not mutually exclusive; they
do not contradict each other. A statement that one “left” a house does not mean
he never entered it, and a statement that one “would find narcotics” in a specific
location does not mean he never saw them there himself. Even the most generous
reading of these statements would possibly raise questions about the CI’s accuracy
– but, again, Sandalo must show that it was the Officers who made false statements
knowingly or recklessly, not the CI.
36
Finally, we cannot agree with the dissenter’s objections to our materiality
analysis. Even if Sandalo made an adequate showing of falsity as to the CI’s
observations of drugs in Sandalo’s house within 24 hours of June 6, 2019—which
he has not—the dissenter would have us discard close to all of the statements the
CI made to Officer Connelly on June 6, 2019. See Dissent at 14–15. That does not
follow. Sandalo’s allegations of falsity are not pertinent to all of those statements;
they do nothing to undermine that the CI generally knew Sandalo was in
“possession of” drugs, or that Sandalo “utilizes [his] residence as the [drug]
storage area” and would “package, weigh, and distribute” the narcotics there.
App. 92 ¶ 13. After all, in the very same interview notes to which Sandalo and the
dissenter direct us, the CI recounted seeing drugs inside Sandalo’s house on 15 to
20 separate occasions. Conf. App. 82 ¶ 9. Thus, our review of the warrant affidavit
does not, as the dissenter characterizes it, “depend[] on the particular sentence
breaks in a passage that . . . could as easily be rendered without periods.” Dissent
at 15. It depends on Sandalo’s own evidence or, more accurately, lack thereof.
CONCLUSION
We have examined Sandalo’s remaining arguments and conclude that they
are without merit. For the foregoing reasons and the reasons stated in the
37
accompanying summary order filed simultaneously with this opinion, we
AFFIRM the judgment of the district court denying Sandalo’s motion to suppress
and motion to dismiss.
38
Appendix
United States v. Sandalo, No. 21-708, Search Warrant, Application, and Affidavit, ECF
No. 24, App'x at 74–79.
SEARCHANDSBZUREWARRANT STATE OF CONNECTICUT SEARCH AND SEIZURE WARRANT
SUPERIOR COURT
The foregoing Affidavit and Application for se·aroh and Seizure Warrant having been presented to and been considered by 1he under�
signed, a Judge cf the Supenor Court or a Judge Trial Referee, and the foregoing Affidavit having been subscribed and sworn to by the
affiant[s) before ma at the time it was presented, the undersigned (a) is satisfied .therefrom that grounds exist for said application, and
(b) finds that said affidavit established grounds and probable cause for the undersigned to issue this Search and Se[zura Warrant, such
probable cause being the following: Frorn said affidavit, the undersigned finds that there is probable cause for the undersigned to believe
that the property described in the foregoing affidavit and application is within or upon the person, if any, named or descnbed in the
foregoing affidavit and application, or the place or thing, if any, described in the foregoing affidavit and application, under the conditions
and circumstances set forth in the foregoing affidavit and application, and that, therefore, a Search and Seizure warrant should issue for
said property.
NOW THEREFORE, by Authority of the state of Connecticut, I hereby command any"Police Officer of a regularly organized police
department, any State Police Officer, any inspector in the Division of Criminal Justice, or any conservation officer, special conseNation
officer or patrol officer acting pursuant to C.G.S. § 26-6 to whom these presents shall come within ten days after the date of this warrant
to enter into or upon and search the place or thing described in the foregoing affidavit and application, or search the person descnced
in the foregoing affidavit and application or both, to wit
The zcsidcnce, property a.:od co.rtilage of. S Mobackemo Drive, Norwalk. CT described as a two-story, colo.w.al style rcside111:e with tau colored siding,
white colored trim and red shutters. The n�ber 5 is affixed to the front ofth;, residenc.:. The residence is located on the southern side ofMohackemo
Drive.
for the property described in the foregoing affidavit and application, to wit:
Prescription narcotics and medications, controlled substances, opium and feutanyl derivatives, powder cocaine, cannabis.drugs, cutting
agents, instruments used to package, weigh. dilute, ingest, inject, or smoke drugs, scales, measuring devices, mollies, and written
records pertaining to the sales ofnarcotics, telephone records, bank records, and/or safes, safe deposit keys, electronic devices, suc!t as
cellular phones/pagers used for communication of drug operatives and the data recovery from the cell-phones 1hat would include but
would not be limited to; all text messages, including multi.media messaging.service and short message serviC1:s, video, audio, and
photograph recqrding, call logs, call history, contacts, address books, global positioning system, cache, calendar, and e-mails.,
computers used for record keeping practices, and cameras commonly used for the protection of drug trafficking operations. AIJ..y and all
items reasonably believed to be proceeds from the crime(s).
ri submit the properfy described in the foregoing affidavit and application to laboratory analysis and examination:
and upon 1inding said property to seize the same, take and keep it ln custody until the further order of the court, and
with reasonable promptness make due return of this warrant accompanied by a written inventory of all property seized.
frhe foregoing request that the judge or judge trial referee dispense with the requirement of C.G.S. § 54-33c that a copy of the
[SJ' warrant application and affidaVit(s} in support cf the warrant ce given to the owner; occupant or person named therein and that the
affidavit in support of such ll'lquest arso be included in such nondelivery is hereby:
NOTTOEXCEE 2WcEl<SBEYONDDATEWARRANTlSEXEGUTS:D
�/
0° GRANTED for a period of / '--�+-u...:=�=-------------1
This order, or any extension thereof, dispensing th said requirement shall not limit disclosure of such application and affidavits to
the attorney for a person arrested in connection with or subsequent to the execution of the search warrant unless, upon motion of
the prosecuting authority within two we·eks of such arraignment the court finds that the state's interest in continuing nondisclosure
substantiafly outweighs the defendant's rig ht to disclosure.
0 DENIED ..
D SefVlce of thls Search Warrant upori the customer whose financial records are being sought is hereby waived. pursuant to C.G.S.
§ 36a-43 (a).
(NOTE: AFFIANrs OATH MUST BE TAKEN PRIOR TO JUDGE/ JUDGE TRIAL REFEREE SIGNING BELOW)
(This is page 7 of a 8 page Affidavit and Application.)
At(TimeJ a.m.
{:::._ , Connecticut, on: 1·�z1 p.m.
39
AFFIDAVIT AND APPLICATION STATE OF CONNECTICUT
SEARCH AND SEIZURE WARRANT SUPERIOR COURT
JO.CR-61 Rev. 3-10 www.jtJd.ct.gov
C.G.S. §§ S4-33a, 54-33c, 54--33j
Ferm JD-CR-52 must also be c:omp/eted
Instructions To Applicant Instructions To GA Cletk
Fife the application forthe warrant and all affldavfts upon which Upon execution and retum of the warrant, affidavits which are
the W<inant Is based wilh the clerk of the COIJ!t for the geographical th,: subject ct an order di(;f)ensing with the requiroment of giving
area within which any per.son IWIO may be arrested fu txllll?eefion a ,;;opy to the owner; occupant or person within forty-eight hours
wilh or subsequent to the execution of the search wammt would shall remain In the cu$lody oflhe c/etk's office in a secure
be presented, together with the retllm of the wami/ll location apart from the remainder of lhe cau,t file.
Police Case number
TO: A Judge of the Superior Court or a Judge Trial Referee
The undersigned, being duly sworn, complains on oath that the µndeJSigned has probable cause to believe that certain
property, to wit:
Prescription narcotics and medications, controlled substances, opium aad fentanyl derivatives, powder cocaine, cannabis drugs, cutting
agents, instruments used to package, weigh, dilute, ingest, inject, or smoke drugs, scales, measuring devices, monies, and written
records pertaining to the sales of narcotics, telephone records, bank records, and/or safes, safe deposit keys, electronic devices, suc]:i. as
cellular phones/pagers used for commnnicatioa of drug operatives and the data recovery from the cell-phones that would include but
would not be limited to; all text messages, including multimedia messaging service and short message services, video, audio, and
photograph. recording, call logs, call history, contacts, address books, global positioning system, cache, calendar, and e-mails.,
computers used for record keeping practices, and cameras co=only used for the protection of drug traffi.gking operations. Any and all
items reasonably believed to be proceeds from the crime(s).
� is pos��ssed, co�tr<;>Ued, designe� or intended for use or which is or has been or may be used as the means of
commlttmg the criminal offense ot Poss of Narcotics 21a-279{a), Poss of Controlled Substanc 1
e 2 a-279{c)
D was stolen or embezzled from: -------------------------------
� constitutes evidence of the following offense or that a particular person participated in the commission of the offense of:
Poss of Narcotics 21a-279(a}, Poss of Controlled Substance 21a-279(c)
D is in the possession, custody or control of a journalist or news organization, to wit:
D and such person or organization has committed or is committing the following offense which is related to such
property:
D and such property constitutes contraband or an instrumentality of the criminal offense of:
And is within or upon a certain person, place, or thing, to wit
The residence, property and curtil.age of; S Mohackcmo Drive, Norwalk, CT described as a two-sro:y, colonial style residence with·ta.n colo�d siding,
white colored trim and red shutters. The number 5 is affixed 10 the fumtofthc residence. The residence is located on the southern side ofMohackemo
Drive.
(This is page 1 of a B page Affidavit and Application.)
40
And the facts establishing the grounds for issuing a Search and Seizure Warrant are the following:
1. That Affiant Officer Michael Connelly is a regular member of the Stamford Police Department with over 17
years of Police experience and training respectively. Affiant Connelly is currently assigned to the Stamford
l'olice Narcotics & Organized Crime Unit. Affiant Connelly has participated in numerous narcotics
investigations, which have resulted in the seizure of narcotics and the arrest and convictions of the accused. At all
times mentioned herein, A.ffiant Connelly was acting in his official capacity as a member of the Stamford l'olice
Department. Affiant Connelly has knowledge of the facts contained herein from bis personal knowledge and
efforts, as well as, the efforts of other Officers of the Stamford Police Narcotics & Organized Crime Unit who
were all acting in their official duties.
That Affiant Mark Suda is a swom member of the Norwalk Police Department with over twenty four years of law
enforcement experience. Affiant Suda is currently assigned to the Special Services Division, and has .over fifteen
years of experience in the field of narcotics investigations and other related criminal activities. A:ffiant Suda has
participated in nwnerous investigations resulting in the issuance of arrest warrant$ and search and seizure
warrants for the crimes of Sale ofNarcotics, Possession ofNarcotics and other drug related offenses. Affiant
Suda has attended various schools and training° seminars pertaining to criminal investigations and search and
seizure. Affiant Suda has regularly utilized the services of confidential infonnants to further such investigations.
As a result of Affiant Suda's experience in the field of narcotics enforcement, Affiant Suda ,has become familiar
with the methods, practic.es and tenninology of narcotics violators and the deceptions and codes used by them to
avoid detection by Law Enforcement Authorities. The information contained within this investigation has been
provided by fellow Law Enforcement Officers and through personal investigation by Affiant Suda.
2. Starting within tp,e month of January 2019 and continuing through June 2019, a credible and reliable
Confidential Informant or (C/I) cont.acted Affiant Coooelly and stated that he/she had knowledge that a large
amount of Oxycodone pills, powder cocaine and marijuana were currently being .dealt by a male whom the C/I
identified as Domenico Sandalo D.O.B. - of 5 Mohackemo Drive Norwalk, CT. The C/I st.ated that he/
she has knowleq.ge that Sandalo transports, delivers and sells a large amount of Oxycodone Pills, powder cocaine
and marijuana \Vithin the City ofNorwalk, CT.
3. The C/I described Sandalo as a white male, approximately 44 years old, approximately 5'11, stocky build,
approximately 190 lbs, with a bald head. The C/I stated that Sandalo operates a newer model, silver colored,
Nissan Rogue.
4. The C/I providing this infonnation has given Affiant Connelly as well as other members of the Stamford
Police Narcotics and Organized Crime Unit reliable and accurate information in the past, which has been
corroborated through an independent investigation. The C/I providing this infotmation has given Affiant
Connelly and other members of the Stamford Police Narcotics and Organized Crim� Unit reliable and accurate
information in the past which has resulted in nwnerous arrests and seizures narcotics on several occasions.
5. During the A:ffiant's independent investigation the Affiants positively identified Domenico Sandalo D.O.B.
-of5 Mohackemo Drive Norwalk, CT as the target of this investigation. The Affi�ts were able to
retrieve several photographs of Sandalo via numerous independent sources. The Affiants $bowed the pictures of
Sandalo to the C/I who confirmed that the person in the photograph is the person he/she knows a_s Domenico
Sandalo.
(This is page 2 of a 8 page Affidavit and Application.)
City/Town
'\
Jurat
JD-CR-61 Rev. 3"1 o
41
6. Through the Affiant's independent investigation, they discovered that between the months of October 2009
through January 2010, the Drug Enforcement Administration (DEA) and the Norwalk, CT Police Depar1ment
conducted a joint investigation into Sandalo. Through this investigation, the DEA and the Norwalk Police
Department �onducted several undercover purchases of OxyContin pills from Sandalo. The investigation
concluded on January 27th 2010, which resulted in Sandalo's arrest and a search of his residence of 5
Mobackemo Drive Norwalk, CT, which resulted in the seizure of: 731 bxyContin Pills, 683 PercocetPills; 190
B:ydrocodone pills, approximately (6) kilograms ofmarijuap.a and $103,028.00 in U.S. Currency. As a result of
this investigation, Sandalo was convicted and sentenced to 70 months in_Federal prison followed by three years
of supervised rel�e.
7. It was also discovered that between the months of September 2016 and December 2016, the DEA and Norwalk
Police Department conducted ari additional investigation into Sandalo. During this time frame, The DEA and
Norwalk Police Department utilized a Confidential Source (CS) to conduct several controlled purchases of
OxyCodone pills from Sandalo and his residence located at 5 Mohackemo Dr., Norwalk, CT. The status of the
2016 investigation is still currently open.
8. A DMV/NCIC search revealed that a 2017, Nissan Rogue, color silver, VIN: 5N1AT2MVXHC892941,
bearing CT Registration AM-23151, is registered to Domenico Sandalo's mother: (11.1aria Sandalo D.O.B.
of 5 Mohackemo Drive Notwalk, CT.
9. The Affiants were able to confirm through several Law Enforcement databases that Domenico Sandalo is listed
as residing at 5 Mohackemo Drive Norwalk, CT.
10. The residence of5 Mohackemo Di;ive, Notwalk, CT is described as a two occupancy, two-story, colonial
style residence with tan colored siding, white colored trim and red shutters. That the number 5 is affixed to the
front of the residence. The residence is located on the southern side of Mohackemo Drive. That there is an
apartment within the residence located on the first floor (left side) of the residence, which is independently rented
and encased with closed walls and doors. The apartment is owned by Sandalo but due to the fact thatit may be
rented to an independent person the Affiants are respectfully requesting to exclude the apartment from the scope
of this warrant.
11. During the month of January 2019, A.ffiant Connelly and Stamford police Narcotics Officer C.Pennoyer met
with the previously stated C/I at a pre-arranged meet location for the prn:pose of conducting_ a controlled phone
contact with Domenico Sandalo. The C/I and Sandalo made contact via both SMS / text and phone calls utilizing
(2) of Sandalo's phone numbers of 585-635�5962 and 203-253-6224. During the conversations, Affiant Connelly
observed that Sandalo advised the ·c11 that he (Sandalo) was currently waiting to receive a large shipment of
Oxycodone pills, which he was then planning to sell. Therefore Affiant Connelly was able to directly confirm and
corroborate the above stated information.
12. The Affiants and Officers of the Stamford Police Narcotics Division contacted members of the Bridgeport
DEA Resident Office as well as members of the Notwaik Police Special Services division and began a multi.
jurisdictional investigation. Note that all above information was corroborated with both the DEA and members of
(This ;s page 3 of a 8 page Affidavit and Application.)
Jarat
JIU:R-61 Re\l, 3--10
42
the Norwalk Police Special Services Division. Through this corroboration it was confirmed th.at Norwalk Special
Services Officers were aware through physical observation and C/I information th.at Sandalo does in fact
currently reside at 5 Mohackemo Drive Norwalk, CT.
13. On this date 06/06/19, the above stated C/I contacted Affiant Connelly and stated that Sandalo is currently in
possessiqn of a large amount of powder cocaine (approxiately I kilo), hundreds of oxycodone pills (descnoed as
• approximately 600 pills, light blue in color) and multiple pounds of marijuana. The C/I stated that the above
stated �otics are being stored within Sandalo's residence and that ):he C/I observed the narcotics within
Sandalo's residence (5 Mohackemo Drive Norwalk, Cl) within the last 24 hours. The C/I stated th.at Sandalo
utilizes the residence as the storage area for his (Sandalo's) narcotics and that Sandalo will, package, weigh and
distribute the narcotics from his residence. The C/I stated that he/she has observed in the past that Sandalo
occasionally conceals amounts of narcotics around the curtilage of the residence.
14. That based on the aforementioned facts and circumstances, the Affiants believe that probable cause exists and
requests thata search warrant be issued for the residence of5 Mohackemo Drive, Norwalk, CT (excluding the
separate apartment located on the first floor, left side).
(fhis is page 4 of a 8 page Affidavit and Application.)
CityfTown
Jurat
JD-CR-61 Re\1.3-10
43
The undersigned ('Xn one) 'X1 has not presented this application in any other court or to any other judge or
� judge trial referee.
has presented th_is appl[cafion in another court or to another judge or
D judge trial referee (specify):
Wherefore the undersigned requests that a warrant may issue commanding a proper officer to search said person
✓
or to enter into or 1.Jpon said place or thing, search the same, and take into custody all such property.
,.nd to submit the property described in the foregoing affidavit and application to laboratory analysis and examination:
(This is page 5 of a 8 page Affidavit and Application.)
Cityffown
Jurat
JD.CR-61 Rev. 3-10
44
AFF1DAVil REQUESTING DISPENSATlON WITH
REQUIREMENT OF DELIVERY
pursuant to § 54-33c, Connecticut General Statutes
TO: A Judge of the Superior Court or a Judge Trial Referee
For the reasons set forth below, the undersigned, being duly sworn, requests that the judge/ judge trial referee dispense
with the requirement of C.G.S. § 54-33cthat a copy of the application for the warrant and a copy of any affidavit(s) in
support of the warrant be given to the owner, occupant or person named therein with forty-e1ght hours of the search:
!RI �he personal safety of a cor:ifidential informant would be jeopardized by the giving of a copy of the affidavits at such
time;
D The search is part of a continuing investigatlon which would be adversely affected by the giving of a copy of the
affidavits at such time;
D The givlng of such affidavits at such time would require disclosure of information or material prohibited from belng
discfosed by chapter 959a of the general statutes;
D ·Inrecords
addition, lt ls requested that the requirement of advance service of this warrant upon the customer whose financial
are being sough� be waived pursuant to C.G.S. § 36a-43 (a);
and the specific details with regard to such reasons are as follows:
So the confidential and reliable informant can continue to work In an undercover capacity on·future investigations.
. .
The undersigned further requests that this affidavit also be included in such nondelivery.
{[his is page 6 .of a 8 page Affidavit and Application.)
Citytrown
45
DENNIS JACOBS, Circuit Judge, dissenting:
Domenico Sandalo entered a conditional plea to drug offenses. The only
evidence substantiating the charges was collected pursuant to a single search
warrant. The application for that search warrant premised probable cause
principally on two averments: (1) Sandalo incriminated himself in January 2019
via phone calls and text messages with a confidential informant, contacts which
were observed by law enforcement; and (2) the informant personally observed
drugs inside Sandalo’s home on June 5, 2019, the night before the warrant
application was submitted.
In anticipation of a hearing on whether the affiants intentionally or
recklessly misled the magistrate with these two allegations, the prosecution sat
down both with the principal affiant, Officer Connelly, and with his informant.
But the notes from the informant’s interview unaccountably fail to mention
either Sandalo’s January self-incrimination or the informant’s personal
observation of drugs on the night in question. And the notes from Connelly’s
interview provide little insight into what, specifically, the informant told him on
the night of June 5 after leaving Sandalo’s house.
These omissions, together with Sandalo’s affidavits plausibly discrediting
the informant’s story, constitute a substantial (and therefore sufficient)
preliminary showing that the affiants intentionally or recklessly presented false
information to the magistrate. Franks v. Delaware thus mandates an evidentiary
hearing at which a factfinder may determine whether the search warrant was
premised on falsehood.
The majority concludes that (1) Sandalo failed to make a preliminary
showing that the contested allegations were knowingly false and (2) that the
allegations were immaterial to the finding of probable cause. I disagree on both
scores. The majority lays too heavy a burden on a defendant seeking a Franks
hearing, and then dismisses too lightly Sandalo’s evidence suggesting that the
core factual representations underpinning the warrant were false. And if we
excise the allegedly false statements, what remains of the application would fall
well short of probable cause. I respectfully dissent.
I
The warrant requirement is “[t]he bulwark of Fourth Amendment
protection,” and the issuance of a warrant presumptively authorizes the
subsequent search. Franks v. Delaware, 438 U.S. 154, 164 (1978). But “[w]hen the
2
Fourth Amendment demands a factual showing sufficient to comprise ‘probable
cause,’ the obvious assumption is that there will be a truthful showing.” Id.at 164–65 (citation omitted; emphasis in original). Accordingly, Franks v. Delaware provides for suppression of evidence seized pursuant to a search warrant that was procured by an intentionally or recklessly false warrant affidavit. Without the threat of suppression when an affiant fabricates the basis for a warrant, the probable cause requirement “would be reduced to a nullity.”Id. at 168
.
Under Franks, a defendant who believes that a warrant authorizing search
and seizure of his property was procured through perjury may request an
evidentiary hearing. To obtain such a hearing, the defendant must make a
“substantial preliminary showing” that the affiant intentionally or recklessly
misled the magistrate regarding facts material to probable cause. Id. at 156, 170. For the “preliminary showing” to be “substantial,” “the challenger’s attack must be more than conclusory”; it must include “allegations of deliberate falsehood or of reckless disregard for the truth . . . accompanied by an offer of proof,” such as “[a]ffidavits or sworn or otherwise reliable statements of witnesses”; and it must “specifically” identify which “portion of the warrant affidavit . . . is claimed to be false.”Id. at 171
.
3
The majority argues that a defendant bears a “high” and “heavy” burden
to obtain a Franks hearing. Maj. Op. at 20–21. It is no useful clarification for the
majority to then add that the burden is “more than a mere conclusory showing.”
Id. at 20. Every burden in law is greater than conclusory; and a “heavy” or
“high” burden can be read to approach or even exceed the burden the defendant
bears at the hearing itself: to prove by a preponderance of the evidence that the
affidavit was tainted by intentional or reckless falsehoods. Franks, 438 U.S. at
156. If no more than a preponderance is needed to succeed at the hearing, it
follows that no “heavy” burden must be sustained to obtain a hearing in the first
place. If the majority had simply explained, as Franks itself does, that the
defendant’s showing “must be more than conclusory” and stopped there, then its
opinion would be correct on the law, and Sandalo would get his hearing.
The cases on which the majority relies for its “high” and “heavy” burden
merely note how difficult it is to obtain a Franks hearing in practice. Those
practical impediments 1 do not raise the burden of proof. Applying the proper
1 A defendant must do more than claim that, because he is innocent, the affiant must
have lied. He must produce an offer of proof regarding behind-the-scenes conduct ordinarily
unknown to the defendant given the ex parte and pre-arrest nature of the warrant application.
He must then furnish evidence of the affiant’s state of mind, and when, as here, the affidavit
rests on a confidential informant, the defendant must show not simply that the information was
bad but that the tip never happened or that the officer knew the tip was rotten. And he must do
all this without the benefit of cross-examination. For these reasons, I do not share the majority’s
4
standard, district courts should grant a Franks hearing when a defendant has
produced evidence beyond conclusory allegations, such as sworn affidavits from
relevant witnesses, raising a legitimate question whether the warrant application
relied on specific intentional or reckless material falsehoods. Sandalo is the rare
defendant who has overcome these obstacles and made the kind of showing
required by Franks.
In its response to this dissent, the majority manifests its erroneous premise:
that a defendant cannot get a Franks hearing without all but establishing that he
will prevail. It is no answer to a motion for a Franks hearing to say, as the
majority does, that the prosecution could refute what the defendant will try to
show at the hearing, or that the defendant’s affidavit is self-serving (it always
will be), or that the court “cannot credit” something it is not called upon to
decide or weigh. 2
For the same reason, it is no answer that my dissent “downplays” this, or
“hardly forecloses” that, or “employs generous inferences.” 3 Sandalo’s burden at
concern that faithfully applying Franks’s more-than-conclusory standard will result in a “new
large-scale commitment of judicial resources” or in “frivolous challenges” creating
“unnecessary pretrial delays.” Maj. Op. at 20–21 (citations omitted).
2 Maj. Op. at 36.
3 Maj. Op. at 34, 35.
5
a Franks hearing is to make his case by a preponderance; his burden in seeking the
hearing is to make a non-conclusory showing that he might eventually succeed.
He need not show that the government will have no response or will lie supine at
the hearing. His right to a Franks hearing easily withstands the majority’s
labored demonstration that the government might refute Sandalo’s presentation
in ways the majority can conceive and would credit.
II
I express no opinion on the likely or proper outcome of a Franks hearing in
this case; but I am convinced that Sandalo is entitled to one.
Sandalo has made a substantial preliminary showing that two statements
in the warrant affidavit were either knowingly false or made with reckless
disregard for the truth:
1. “During the month of January 2019 . . . [t]he [confidential
informant] and Sandalo made contact via both SMS/text and
phone calls utilizing (2) of Sandalo’s phone numbers . . . . During
the conversations, Affiant Connelly observed that Sandalo advised
the [confidential informant] that he (Sandalo) was currently
waiting to receive a large shipment of Oxycodone pills, which he
was then planning to sell[.]” App. 91.
2. “On this date 06/06/19, the above stated [confidential informant]
contacted Affiant Connelly and stated that Sandalo is currently in
possession of a large amount of [various illegal drugs,] . . . . The
[confidential informant] stated that the above narcotics are being
stored within Sandalo’s residence and that the [confidential
6
informant] observed the narcotics within Sandalo’s residence . . .
within the last 24 hours.” App. 92.
I will address each in turn. 4
First, the phone contacts. Sandalo has four grounds for challenging to the
application’s claim that he incriminated himself in January 2019:
• Sandalo submitted a sworn affidavit that the alleged phone conversations
never happened. App. at 68. Though this statement is self-serving, Sandalo is
the only possible witness to the alleged conversations other than Connelly
and the informant. One of the requisites to obtain a Franks hearing is the
defendant’s specific denial of the critical facts: that is what Sandalo has done.
• Prosecutors interviewed Officer Connelly twice in anticipation of a Franks
hearing (which ultimately never occurred) and memorialized the
conversations in notes subsequently turned over to the defense (the “Connelly
Notes”). Yet in those interviews, Connelly provided only a perfunctory
summary of the phone calls. He also reported the informant’s eye-opening
statement that the informant “does not remember making a controlled phone
call to [Sandalo].” Conf. App. at 76.
• Notes made of a similar interview with the informant (the “Informant Notes”)
omit any mention of the phone contacts at all. If prosecutors asked about the
informant’s recollection, it is likely that the informant told them what he or
she told Connelly: that he or she did not remember calling or texting Sandalo
under Officer Connelly’s supervision.
• Connelly’s warrant application, prepared in June, contained the two ten-digit
phone numbers that he and the informant had used to contact Sandalo in
January, five months prior. This was a feat of memory: the government
4I do not disagree with the majority’s analysis of the warrant affidavit’s reference to
corroboration by other law enforcement agencies. Maj. Op. at 24–27.
7
represents that no one kept any notes, phone records, screenshots, or other
documentation of either the existence or content of the calls and text
messages. See App. at 85.
So, we have a sworn (if self-serving) denial that the conversations ever
happened, and statements by the informant that he or she does not remember
them. There is no evidence of the text messages referenced in the warrant
application, and Connelly’s prodigious recall of the phone numbers raises doubt
as to his truthfulness. This is the requisite nonconclusory showing that the
portion of the warrant affidavit regarding Sandalo’s alleged self-incrimination in
January 2019 was knowingly, or at least recklessly, false; and it exposes factual
issues which would benefit from resolution at an evidentiary hearing.
Next, the warrant application’s central claim is the informant’s alleged
personal observation of drugs in Sandalo’s home on June 5. But as with the
January phone contacts, the warrant application itself contains the only
statement that the informant actually entered Sandalo’s house on the night of
June 5, let alone that the informant toured Sandalo’s various stash spots. Sandalo
averred that on the night of June 5, he and his wife hosted another couple for
dinner; the informant (whom Sandalo has identified) arrived fashionably late
around ten; after socializing in the driveway for about an hour, the guests left
8
without going inside. Sandalo’s wife swore to the same facts. Sandalo’s father,
who lives in an apartment in the same house, swore that he was home the entire
evening of June 5 and saw neither drugs in the house nor anyone else who could
have seen drugs. 5
These witnesses have their interests. But neither Connelly nor the
informant contradicted this account in their interviews. The informant, the only
other individual who could directly state that he went into Sandalo’s house on
June 5, did not do so. Indeed, the informant said nothing about what he or she
did or did not do on June 5. Nor did the informant tell Connelly that he or she
had entered the house: instead, per Connelly, the informant said only that he or
she had “just left [Sandalo’s] house.” Conf. App. at 78.
Moreover, the warrant affidavit (premised on the informant’s tip) specified
the quantity and color of the drugs—notwithstanding that these drugs were
tucked away in hiding places throughout Sandalo’s house. In order to have
collected this information, the informant would have needed a realtor’s tour of
the house, including Sandalo’s stashes. Yet as Sandalo explains in his affidavit,
5 The district court discounted Sandalo’s offer of proof because it did not account for the
possibility that the informant returned on June 6 and observed the drugs house when no one
was home to see him. But the Connelly Notes record that the informant’s tip came “late on the
night of the 5th.” Conf. App. 78.
9
taking the informant on such a tour would not “make[] any sense as there was no
reason for [Sandalo] to have shown those drugs to [the informant].” App. at 70.
There is thus ample room to doubt that the personal observation at the
heart of the warrant application ever occurred. The government argues that the
informant may have sneaked in, evading the notice of the three residents for long
enough to spy out the drugs hidden about the premises. This is particularly
doubtful considering that the informant “had undergone multiple amputations
to his feet due to diabetes,” Reply Br. at 3, requiring “a break” every 40 to 50 feet
and causing “difficulty” in climbing stairs, such as those needed to enter
Sandalo’s home without detection. Conf. App. at 80, 82. Given this, a multi-
story, clandestine snooping mission seems out of the question.
Of course, “Franks does not require that all statements in an affidavit be
true,” United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989)—suppression is
required only when the affiant knew that his submission was false or was
reckless with regard to its truth. If Connelly unknowingly repeated a lie to the
magistrate, Franks would not require suppression.
But was Connelly ever told that that the informant had actually seen the
drugs? Neither the Connelly Notes nor the Informant Notes say so, even though
10
the interviews occurred in anticipation of a hearing on that very question. The
Connelly Notes conspicuously fail to say that the informant told Connelly that
the informant went inside the house. What Connelly recalled instead is that the
informant told him “I . . . just left [Sandalo’s] house . . . [and] drugs (narcotics)
were located” at various places inside. Conf. App. at 78. The informant,
meanwhile, “remembers telling [] Connelly the locations of where the police
would find narcotics.” Conf. App. at 83. Note the daylight between saying
where drugs could be found (which could have been based on months-old
information) and saying that the informant had personally seen them there that
night. Sandalo should be able to question the relevant witnesses to determine
why the government attorneys either asked no questions about the night on
which this case hinges or, if they did ask, what answers the witnesses gave that
the prosecutors omitted to record.
Perhaps more telling is the contradictory recollections of where the
informant said the drugs would be located. Per Connelly, the informant told him
that “drugs . . . were located on the first floor and to check the refrigerator, trunk
of the car in the garage, and the vase in the dining room.” Conf. App. 78. The
informant, meanwhile, recalled saying that Sandalo “would keep pills in the
11
boiler room, cocaine in a partially finished area of the basement,” marijuana in “a
crawl space,” and “marijuana vape cartridges in the refrigerator.” Conf. App. 83.
With the exception of the refrigerator (a seemingly universal stash spot), these
very specific lists of hiding places are so different as to call into question whether
the conversation occurred at all.
The majority, which deems these contradictions “Sandalo’s best
argument,” dismisses them as having been made “fourteen months after the
warrant application.” Maj. Op. at 28–29. But there was no failure to remember:
both recalled specific lists of hiding places. The government’s explanation at oral
argument—that the informant was merely talking generally about Sandalo’s
practices—is no help. Rather, it highlights the unaccountable omission of any
discussion of the informant’s conduct or conversations on June 5 in an interview
nominally about what happened that night.
In sum, Sandalo checked every box that Franks requires. He identified
specific provisions of the warrant affidavit as false: the self-incriminating phone
call and the personal observation of drugs inside the house. He provided an
explanation backed by an offer of proof for why he believed those statements
were false and why he believed the affiants knew or were reckless with respect to
12
their falsity. He attested that the self-incriminating phone contacts never
occurred, and provided evidence that (a) the informant had no recollection of
them and (b) that the police have no record of them. And Sandalo undermined
the government’s account of the June 5 events: despite opportunities to do so in
their witness interviews, neither Connelly nor the informant contradicted
Sandalo’s denial that the informant ever entered his home or observed any
narcotics. More importantly, neither interviewee said that the informant told
Connelly that he or she had done so. Nothing more is required for a “substantial
preliminary showing.”
III
Rather than confront Sandalo’s evidence of false statements in the warrant
application, the majority labors to show that the statements were not material,
i.e., “necessary to the finding of probable cause.” Franks, 438 U.S. at 156; United States v. McKenzie,13 F.4th 223, 236
(2d Cir. 2021). To determine materiality, a
court “set[s]” the challenged factual assertions “to one side” and determines if
“there remains sufficient content in the warrant affidavit to support a finding of
probable cause.” Franks, 438 U.S. at 171–72.
13
There were four bases for probable cause in the warrant application:
Sandalo’s ten-year-old conviction for dealing drugs; a three-year-old controlled
buy; the January 2019 phone conversations in which Sandalo allegedly
incriminated himself; and the informant’s alleged personal observation of drugs
in Sandalo’s home in June 2019. I agree with the majority that the January phone
contacts, considered in isolation, were likely immaterial to the probable cause
finding. 6 See Maj. Op. at 24–25. But the informant’s alleged personal
observation of drugs inside Sandalo’s house was critical to probable cause, and if
we set aside both the personal observation and the phone contacts, the warrant
application falls short.
Paragraph 13 is the critical paragraph in the affidavit:
On [June 6, 2019], the above stated C/I contacted Affiant Connelly and
stated that Sandalo is currently in possession of a large amount of
[drugs]. The C/I stated that the above stated narcotics are being
stored within Sandalo's residence and that the C/I observed the
narcotics within Sandalo’s residence . . . within the last 24 hours.
The C/I stated that Sandalo utilizes the residence as the storage area
for his (Sandalo's) narcotics and that Sandalo will[] package, weigh
and distribute the narcotics from his residence.
6 Nonetheless, if the district court did hypothetically conclude at an evidentiary hearing
that Connelly had fabricated the January phone contacts, that act of deception would speak
forcefully to his state of mind regarding other allegedly false aspects of the affidavit.
14
App. at 92 (emphasis added). The majority’s analysis excises only the sentence
that specifically mentions the observation of the drugs (in bold above) and deems
the remainder sufficient for probable cause. See Maj. Op. at 31–32. But in my
view, paragraph 13 is not divisible and must stand or fall as a whole. The
majority’s analysis depends on the particular sentence breaks in a passage that
(with a small grammatical change) could as easily be rendered without periods.
The alleged personal observation in the second sentence accounts for and is thus
inextricable from the informant’s assertions in the first and third sentences that
Sandalo had drugs in his home.
Once we set aside the entirety of paragraph 13 (along with the January
phone contacts), the affidavit thus corrected fails to state probable cause: the only
basis for such a finding would have been Sandalo’s distribution activity ten and
three years earlier. Although prior similar conduct can be relevant to probable
cause, there must be some indication that criminal activity is ongoing at the time
the warrant is to be executed. 7 See United States v. Falso, 544 F.3d 110, 122–23
7I am far from convinced that the affidavit even as “corrected” by the majority would
support probable cause. In the majority’s truncated paragraph 13, see Maj. Op. at 31, the
informant’s assertions regarding Sandalo’s possession of drugs in his home are presented
without any basis of knowledge or corroboration, leaving probable cause to lean solely on the
informant’s credibility. Although it is not necessary for a warrant affidavit to include
corroboration or explain an informant’s basis of knowledge, e.g., Illinois v. Gates, 462 U.S. 213,
15(2d Cir. 2008); United States v. Ortiz,143 F.3d 728, 732
(2d Cir. 1998). That is
conspicuously missing.
* * *
Sandalo has made a substantial preliminary showing that the two core
factual assertions critical to the magistrate’s determination of probable cause
were intentionally or recklessly false. Accordingly, Sandalo was entitled to a
Franks hearing.
232–34 (1983), those considerations are unquestionably important to the probable cause inquiry,
see McColley v. Cnty. of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014).
16
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