MEMORANDUM AND ORDER In this action charging him with, inter alia, two counts of possessing a firearm after conviction of a felony under 18 U.S.C. §922(g)(1) and one count of conspiracy to commit bank larceny in violation of 18 U.S.C. §371, defendant Luis Cerda moves to suppress certain evidence, including a firearm supporting one of the two §922(g)(1) counts, attendant DNA testing and one or more electronic devices seized from his home in Fresh Meadows, New York. Cerda contends that the evidence, seized pursuant to a search warrant issued by a state judge, was obtained in violation of his rights under the Fourth Amendment of the U.S. Constitution. The chief probable cause supporting the search consists of a sworn statement that the affiant had reviewed a pole camera video of a codefendant carrying an object into the premises. The affiant declared that, based on his training and experience, he recognized — without qualification — the object to be a long rifle. Review of the video reveals that the codefendant was carrying something as seen in this screenshot: Def.’s Ex. 6. Defendant persuasively argues that the video depicts the codefendant holding a bouquet of flowers. Indeed, its appearance, and the way in which the codefendant handles the object in the video, suggest that this is so. More importantly, though, these factors, taken together with the affiant’s testimony about his review of the video and subsequent engagement with other experts, make it clear that the video does not, without qualification, depict the codefendant smuggling a rifle, contrary to the sworn representations made to the state court judge. The Court held a Franks hearing, enabling consideration of the motion on a full record. This opinion follows. BACKGROUND Beginning in mid-2020, New York City Police Sergeant Christopher Colon faced a problem. As part of an ongoing investigation into a burglary ring, he was in receipt of a growing body of information from an informant and various social media posts about an individual named Alberto Santiago, also known as “Dot Com.”1 The information suggested that Santiago, recently released from prison for burglary and wanted for parole violations, was engaging in a series of serious crimes and brazenly brandishing and firing firearms, assault weapons and body armor in images and videos appearing on social media. None of this information could be tied to the Fresh Meadows residence. Tr. 131. After months of investigation, Colon became increasingly eager to locate and apprehend Santiago. At some point, the informant reported — possibly inaccurately — that Santiago was “staying” with a girlfriend at a location in Fresh Meadows, New York. Tr. 110. Colon conducted surveillance at the location, and had other officers do the same, in an effort to find Santiago, with negative results. Tr. 123-24. By October, Colon was aware that Santiago had a parole violation warrant. Tr. 122. Via text, the confidential informant urged Colon to get a search warrant for the house; Colon responded that he had “nothing on the house” which could support a search warrant. Tr. 114. In mid-November 2020, Colon arranged for a pole camera to be installed near the Fresh Meadows residence. By December 2, Colon expressed concern that he might get a warrant but that Santiago would not be in the house. Tr. 115. On December 6, 2020, Colon urged the informant to find a social media post that could justify a search warrant application for the residence. Tr. 114-117 (Colon texting informant “I want to get that warrant ASAP so hopefully we can get one with something he post[s]“). Two days later, a fellow officer advised Colon that in reviewing the pole camera footage, that officer had observed Santiago take “what appeared to be a long gun” into the Fresh Meadows residence. Tr. 80. Reviewing the footage frame-by-frame, Colon formed a belief that the object in question was a firearm, yet he was not “100 percent sure.” Tr. 82. He sent a copy of the video to another officer with firearms expertise, indicating that he saw “what appears to me to possibly be a rifle,” and asked for a second opinion. Tr. 83. That officer responded that the object “[l]ooks like a possible long gun with a wood attachment.” Tr. 83. During an oral conversation with a yet another officer asked for an opinion, that officer told Colon that “[b]asically, that’s a firearm.” Tr. 85. Colon tried to obtain a higher quality version of the video, which was provided to the police department, but because he could not open the link provided, he abandoned his effort to view the higher-quality footage.2 Tr. 88-89. Instead, Colon sent the video to an Assistant District Attorney, with an email from Colon noting that the object “[a]ppears to be a firearm,” and emailed a second ADA indicating that the object might “possibly be a rifle.” Tr. 80, 142. The ADA drafted an affidavit in support of a search warrant.3 The three-page affidavit, eventually signed by Colon, set forth evidence of Santiago’s involvement in certain criminal activity, including firearms possession and a burglary. Only two factual paragraphs of the affidavit purport to offer facts directly about the residence: 11. I further state that I viewed video surveillance from the above mentioned camera from outside the subject location from December 8, 2020 at approximately 3:53 PM which depicts the target exiting a vehicle, which is parked in the driveway at the subject location, and holding between the target’s legs, what I recognize to be, based on my training and experience as a police officer, a long rifle. Said video then depicts the target zip up the target’s jacket so as to conceal said rifle, then the target walks into the subject location. 12. I further state that I have viewed approximately five (5) to ten (10) videos from the above mentioned camera from outside the subject location from the past three (3) to four (4) weeks which depicts the target entering and exiting the subject location. DE 178-1
