United States v. Sandalo

70 F.4th 77

UNITED STATES of America, Appellee, v. Domenico SANDALO, Defendant-Appellant.

Docket No. 21-708-cr

August Term 2021

United States Court of Appeals, Second Circuit

Argued: March 15, 2022

Decided: June 8, 2023

Appeal from the United States District Court for the District of Connecticut (Bryant, J.)

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.

Before: Jacobs, Wesley, Menashi, Circuit Judges.

Judge Jacobs dissents in a separate opinion.

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 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. FACTS¹

A. Search Warrant Affidavit

and Application²

On June 6, 2019, local law enforcement officers submitted an application with a supporting affidavit to the Connecticut Superior Court in Norwalk, 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 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 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 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 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 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 of 21 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.

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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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...