United States v. Silva

24-2180 (L) United States v. Silva

In the United States Court of Appeals for the Second Circuit

August Term 2024 Argued: February 11, 2025 Decided: July 24, 2025

Nos. 24-2180 (L), 24-2182 (Con)

UNITED STATES OF AMERICA, Appellant, v. BRUCE SILVA, Defendant-Appellee. *

Appeal from the United States District Court for the Southern District of New York

Before: JACOBS, MENASHI, AND PÉREZ, Circuit Judges.

On appeal from a judgment of the United States District Court for the Southern District of New York (Gardephe, J.).

The government appeals a decision of the district court suppressing evidence obtained from Defendant-Appellee Bruce Silva’s cell phone pursuant to a search warrant. Silva is detained pending his criminal trial, with the proceedings below stayed until we decide this appeal. New York City Police Department detective Joseph Boyer’s affidavit (“Boyer Affidavit” or “Affidavit”) in support of the warrant application set forth

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. probable cause to search Silva’s cell phone. In granting Silva’s motion to suppress, the district court misapprehended the probable-cause standard in two respects. First, a warrant may issue where there is probable cause to believe that the place to be searched contains evidence of a crime, regardless of whether there is probable cause indicating that the target of the investigation used the property in furtherance of the criminal conduct. Second, while a law-enforcement affiant’s claim to expertise with a particular category of crime may not, standing alone, support the requisite linkage between the alleged crime and the place to be searched, the Boyer Affidavit supplied other independent factual allegations tending to corroborate probable cause to search Silva’s cell phone. The Affidavit included a confidential informant’s statement that Silva committed financial and other crimes as a member of the Dub City street gang, which might reasonably suggest his electronic devices would contain relevant communications and information. In addition, the Boyer Affidavit averred that the cell phone was the only device found on Silva’s person upon his arrest. These factual statements and Boyer’s claim of expertise with gang-related crimes together established the requisite nexus between Silva’s alleged crimes and his cell phone. Finally, the warrant application was not so bare bones that the law enforcement officers who conducted the search could not in good faith rely upon the magistrate judge’s decision to issue the warrant. For all these reasons, we vacate and remand the district court’s suppression order.

JACOB R. FIDDELMAN (Michael R. Herman, Matthew J. King, Danielle R. Sassoon, on the briefs), Assistant United States Attorneys, of Counsel, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellant.

FLORIAN MIEDEL, Miedel & Mysliwiec LLP, New York, NY, for Defendant-Appellee.

Douglas R. Jensen, Claire Blumenthal Buck, Sher Tremonte LLP, New York, NY, for Amicus Curiae New

2  York Council of Defense Lawyers, in support of Defendant- Appellee.

Richard D. Willstatter, National Association for Criminal Defense Lawyers, White Plains, NY, Adeel Bashir, National Association for Criminal Defense Lawyers, Tampa, FL, Stephen N. Preziosi, New York State Association of Criminal Defense Lawyers, New York, NY, for Amici Curiae National Association for Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers, in support of Defendant-Appellee.

MYRNA PÉREZ, Circuit Judge:

This interlocutory appeal concerns the district court’s decision to grant

Defendant-Appellee Bruce Silva’s motion to suppress evidence from his Apple

iPhone (“cell phone”) obtained pursuant to a warrant. Silva awaits trial on various

firearms, racketeering-conspiracy, and wire-fraud charges in connection with his

alleged participation in the Dub City street gang (“Dub City”). The parties ask us

chiefly to decide under what circumstances, in a warrant application, an affiant’s

claim of expertise regarding the type of crimes the target of the investigation

allegedly committed can support the requisite linkage between the purported

crimes and the place to be searched.

We vacate and remand the decision below. Given probable cause to believe

that Silva committed the crimes the warrant application described, a search

3 warrant for his cell phone could properly issue in this instance. The warrant

application identified particular attributes of the alleged criminal conduct that, in

combination with the affiant’s asserted expertise with similar activities, supported

a reasonable inference that Silva’s cell phone would contain relevant evidence. In

addition, in executing the search in this case, law enforcement officers relied on

the issued warrant in good faith.

BACKGROUND

The government filed a sealed criminal complaint in October 2021 charging

Silva with possession of ammunition following a felony conviction for violating

18 U.S.C. § 922(g)(1), in connection with an alleged shooting in August 2019. See

Indictment, ECF No. 10, United States v. Silva, No. 22-CR-347 (S.D.N.Y. June 21,

2022) (the “2022 Indictment”) (subsequent federal grand-jury indictment on the

same charge). In December 2021, Silva purportedly failed to appear for a case-

status conference in a state-court proceeding for the commission of that same

shooting, at which time the government intended to arrest him for the federal

charge. Approximately four months later, members of the U.S. Marshals Service

successfully apprehended him, at which point the government seized from his

4 person a cell phone, along with a forged driver’s license and a debit card, both in

the name of “Carlos Silva.”

The government applied for a warrant to search Silva’s cell phone. In

support, it submitted an affidavit from New York City Police Department

detective Joseph Boyer (the “Boyer Affidavit” or “Affidavit”). Boyer averred

based on his “conversations with a confidential informant” that Silva was a

member of Dub City, which allegedly operates in the Bronx. App’x 56 (Boyer Aff.

¶¶ 7–12). Boyer set forth the facts recounted above, along with the government’s

case for probable cause to believe that Silva had committed various firearms,

racketeering-conspiracy, and wire-fraud offenses.

The Affidavit then identified the purported link between the alleged crimes

and the cell phone. Boyer stated that he “ha[s] participated in numerous gang and

homicide investigations that have involved, amongst other things, executing

search warrants, including warrants involving electronic evidence[,]

conversations and drug records, and the retrieval and analysis of cellphone and

social media data.” Id. at 54 (Boyer Aff. ¶ 1). He averred that “[t]hrough [his]

training, education, and experience, [he] ha[s] become familiar with the manner in

which violent crimes are planned and executed,” “the way gangs operate,” and

5 “the manner in which gang members and individuals engaged in violent crime

use” cell phones “in connection with such activity.” Id. He asserted that

individuals such as Silva “often use” their cell phones to “arrange and coordinate

their illicit activities”; “often have” inculpatory “photographs and videos” of “the

tools and proceeds of their criminal activities (such as firearms and cash

proceeds)” on such devices; and “frequently use cellular devices to coordinate

their flight and evade law enforcement.” Id. at 58–59 (Boyer Aff. ¶ 13). The

Affidavit concluded that “there is probable cause to believe that” Silva’s cell phone

“contains evidence of [his] participation [in] Dub City,” his commission of the

offenses described, “his flight from justice” following his failure to appear at the

state-court proceeding, and “his consciousness of guilt for the August 2019

shooting.” Id. at 59 (Boyer Aff. ¶¶ 13–14).

A magistrate judge approved the requested warrant. The warrant

authorized a search for certain categories of information related to the alleged

crimes stored in specific places on Silva’s cell phone. Law enforcement officers

subsequently executed the search.

In April 2023, a federal grand jury returned an additional indictment against

Silva, along with nine co-defendants. See Indictment, ECF No. 1, United States v.

6 Silva, No. 23-CR-204 (S.D.N.Y. Apr. 18, 2023) (the “2023 Indictment”). The 2023

Indictment charged Silva with nine total counts, including for racketeering

conspiracy; assault with a dangerous weapon and attempted murder in aid of

racketeering in connection with three shootings (including the August 2019

shooting); the use, brandishing, and discharge of a firearm in furtherance of crimes

of violence; conspiracy to distribute and possess with intent to distribute fentanyl,

heroin, oxycodone, cocaine base, and marijuana; and possession of a firearm in

furtherance of a drug-trafficking crime.

I. Procedural History

The district court granted the government’s motion to join the proceedings

associated with the 2022 and 2023 Indictments. Silva then moved, ahead of his

criminal trial, to suppress evidence obtained from his cell phone on the grounds

that the warrant authorizing its search was not supported by probable cause.

The district court agreed. It concluded that the warrant application set forth

sufficient probable cause to believe that Silva is a member of Dub City and

participated in three gang-related shootings, though not that he had participated

in the financial scams alleged. United States v. Silva, No. 22-CR.-347, 2024 WL

3488305, at *6–7 (S.D.N.Y. July 19, 2024). But the district court determined that the

7 government had failed to supply sufficient “allegations demonstrating that Silva

used the seized cellphone in connection with his criminal activities.” Id. at *6. In

addition, the district court ruled that law enforcement had not executed the search

in good-faith reliance on the warrant.

The government timely appealed the district court’s suppression order.

Silva is detained pending trial, with the proceedings below stayed while we

consider this appeal.

STANDARD OF REVIEW

On appeal from a suppression decision, “we review the [district] court’s

factual findings for clear error” and its “legal determinations, including the

existence of probable cause and the good faith of officers relying on a search

warrant, de novo.” United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015). “[I]n

the context of a warrant-based search, we accord substantial deference to the

finding of an issuing judicial officer that probable cause exists, limiting our inquiry

to whether the officer had a substantial basis for [the] determination.” United

States v. Jones, 43 F.4th 94, 109 (2d Cir. 2022) (alteration adopted) (internal

quotation marks and citation omitted).

8  DISCUSSION

In this case, the Boyer Affidavit established a sufficient nexus between the

criminal activities alleged and Silva’s cell phone for a magistrate judge to conclude

there was probable cause that the cell phone contained evidence of those activities.

In any case, law enforcement officers executed the search in good-faith reliance on

the warrant.

I. The Exclusionary Rule and the Good-Faith Exception

The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV. In accordance with this constitutional right, “[c]ourts have . . . developed the

‘exclusionary rule’—which requires trial courts to exclude unlawfully seized

evidence from criminal trials—as the ‘principal judicial remedy to deter Fourth

Amendment violations.’” United States v. McKenzie, 13 F.4th 223, 231 n.5 (2d Cir.

2021) (quoting Utah v. Strieff, 579 U.S. 232, 237 (2016)).

However, “[a] determination that the warrant at issue was not supported by

probable cause to search . . . does not automatically dictate the suppression of all

physical evidence seized or statements derived therefrom,” because “suppression

is ‘our last resort, not our first impulse.’” United States v. Clark, 638 F.3d 89, 99 (2d 9 Cir. 2011) (quoting Herring v. United States, 555 U.S. 135, 140 (2009)); see also

Herring, 555 U.S. at 141 (explaining that “the exclusionary rule is not an individual

right and applies only where it ‘results in appreciable deterrence’” (alteration

adopted) (quoting United States v. Leon, 468 U.S. 897, 909 (1984))). Where the

government obtained the evidence “in objectively reasonable,” good-faith

“reliance on a subsequently invalidated search warrant,” we do not require its

exclusion. See Leon, 468 U.S. at 922.

II. Probable Cause Supported the Issuance of the Warrant

A. The Boyer Affidavit Set Forth Probable Cause That Silva Engaged in Criminal Conduct

We begin with a preliminary issue. The district court largely agreed that the

warrant application set forth probable cause that Silva committed certain crimes

that the Affidavit identified—with the exception of the financial scams alleged. See

Silva, 2024 WL 3488305, at *6–7. We disagree that the Affidavit did not set forth

probable cause for the commission of the financial crimes.

Boyer asserted, based on his conversations with a confidential informant,

that Silva “engage[d] in a variety of financial scams to make money for the gang[,]

including using credit cards linked to fake identities.” App’x 56–57. In addition,

10 the Affidavit stated that at the time of Silva’s arrest, he carried both a driver’s

license and a debit card bearing a name other than his own. Id. at 56–58.

We “require[] only,” at this stage, “a probability or substantial chance of

criminal activity, not an actual showing of such activity.” District of Columbia v.

Wesby, 583 U.S. 48, 57 (2018) (citation omitted); see also Walczyk v. Rio, 496 F.3d 139,

157 (2d Cir. 2007) (explaining that probable cause “requires only such facts as

make wrongdoing . . . probable”). The Affidavit, in relying on information from a

confidential informant and evidence found on Silva’s person at the time of his

arrest, established the requisite probability that Silva engaged in financial crimes.

B. The Boyer Affidavit Set Forth Probable Cause That Silva’s Cell Phone Contained Evidence of the Alleged Crimes

An officer’s affidavit in support of a warrant must “establish[] a sufficient

nexus between the criminal activities alleged and [the place to be searched].”

United States v. Singh, 390 F.3d 168, 182 (2d Cir. 2004). Importantly, “[a] showing

of nexus does not require direct evidence and may be based on [a] reasonable

inference from the facts presented based on common sense and experience.” Id.

(internal quotation marks and citation omitted).

Probable cause thus poses no “high bar.” Wesby, 583 U.S. at 57 (citation

omitted). At the warrant-application stage, the government need not prove its

11 case. See Illinois v. Gates, 462 U.S. 213, 235 (1983) (“Finely tuned standards such as

proof beyond a reasonable doubt or by a preponderance of the evidence, useful in

formal trials, have no place” in a probable-cause determination.); accord United

States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). A judicial officer need “simply . . .

make a practical, commonsense decision whether, given all the circumstances set

forth in the affidavit . . . there is a fair probability that contraband or evidence of a

crime will be found in a particular place” under a “totality-of-the-circumstances

analysis.” Gates, 462 U.S. at 238; see also Walczyk, 496 F.3d at 156 (“In assessing

probabilities, a judicial officer must look to the factual and practical considerations

of everyday life on which reasonable and prudent men, not legal technicians, act.”

(internal quotation marks and citation omitted)); accord Florida v. Harris, 568 U.S.

237, 244 (2013).

Two clarifications of law are in order. First, contrary to the district court’s

analysis, a search warrant does not require probable cause of the use of the

property in furtherance of criminal conduct, so long as there is probable cause that

the location to be searched contains relevant evidence of the criminal conduct.

Second, a law-enforcement affiant’s claim to expertise may support a probable-

cause determination where it is combined with enough other specific, factual

12 allegations that tend to link the alleged criminal conduct to the place to be

searched. We discuss each issue in turn.

1. Use of a Cell Phone to Be Searched in Furtherance of Criminal Conduct Is Sufficient, But Not Necessary, to Establish the Requisite Nexus

The district court faulted the Boyer Affidavit for failing to establish probable

cause that Silva “used” the cell phone in connection with his alleged criminal

conduct. See, e.g., Silva, 2024 WL 3488305, at *6 (referring to a lack of “factual

allegations” or “witness accounts” “showing that Silva has used his phone” in the

commission of the crimes or “used his phone to post gang-related material on

social media”). Allegations tending to show that the target used his cell phone in

furtherance of criminal conduct suffice to establish probable cause. They are not,

however, necessary. We require only a “fair probability that contraband or

evidence of a crime will be found” in the place to be searched. United States v. Lauria,

70 F.4th 106, 128 (2d Cir. 2023) (emphasis added) (citation omitted); see also

Walczyk, 496 F.3d at 157 (requiring “only such facts as make . . . the discovery of

evidence . . . probable”).

In Silva’s case, the government was only required to establish probable

cause that his cell phone contained relevant evidence of the alleged crimes. Silva

argues that the district court simply employed imprecise phrasing to describe the 13 government’s burden before a magistrate judge. The district court’s opinion,

however, is so replete with the erroneous “use” formulation that we cannot

confirm that it held the government to the proper standard. 1

2. Law Enforcement’s Expertise, Combined with Case-Specific Factual Allegations, Established the Requisite Nexus in Silva’s Case

The district court also improperly analyzed the role that a supporting

affiant’s expertise might play in establishing probable cause for a search. A

warrant application may establish the requisite nexus between the alleged crimes

and the place to be searched based upon a “reasonable inference from the facts

presented.” See Singh, 390 F.3d at 182 (internal quotation marks and citation

omitted). In several contexts, we have acknowledged the role that an officer’s

“experience” plays, along with “common sense,” in the Fourth Amendment

inquiry. Id.

In United States v. Riley, for example, law enforcement officers found in the

defendant drug trafficker’s home a storage locker rental agreement—and, between

1 See, e.g., Silva, 2024 WL 3488305, at *6 (“But allegations demonstrating that it is likely that Silva communicated frequently with other alleged members of Dub City do not demonstrate that he used his cellphone to communicate with gang members.” (emphasis added)); id. at *7 (indicating that a “one- sentence allegation does not provide a basis for this Court to make a probable cause finding that he engaged in fraud, much less that he used his phone to engage in fraud” (emphasis added)); id. at *8 (“Moreover, the Boyer Affidavit cites no evidence suggesting that Silva used his phone in connection with or to facilitate his flight.” (emphasis added)).

14 his home and car, over 100 pounds of marijuana. See 906 F.2d 841, 845 (2d Cir.

1990). In that case, we held that a magistrate judge justifiably issued a warrant to

search the storage locker described in the rental agreement for additional

evidence. Id. In fact, we observed that, “[a]rmed with these facts and knowing from

experience that dealers use such lockers to store drugs pending distribution, the

[investigating] agents would have been remiss in their duties had they not sought

a warrant to search the storage locker.” Id. (emphasis added); see also id. at 843

(crediting as “unsurprising” “the agent’s . . . knowledge,” stated within the

affidavit supporting the warrant application, “that drug traffickers often maintain

records of their transactions . . . and secrete drugs, drug proceeds, drug records,

and firearms at their . . . stash houses”). Further, and apropos of our discussion

above, pp. 13–14, “[t]he agents were under no obligation to establish that [the

defendant] had used the locker during the pendency of the marijuana transaction

that resulted in his arrest.” Id. at 845.

Similarly, in United States v. Benevento, the government executed search

warrants for the defendants’ homes. Its affidavits in support of the warrant

applications alleged facts concerning the Beneventos’ involvement in an

international drug-trafficking conspiracy. United States v. Benevento, 836 F.2d 60,

15 70 (2d Cir. 1987), abrogated on other grounds by, United States v. Indelicato, 865 F.2d

1370 (2d Cir. 1989) (en banc). “Included in the applications was the testimony of

[a] DEA [a]gent . . . , who stated that, based upon his extensive experience in drug

enforcement investigations, it was his opinion that drug traffickers, as the

Beneventos were alleged to be, were likely to keep various items of evidence of

drug-related activity including transactions records, large sums of currency, etc.,

in their personal homes.” Id. Though we cautioned that the agent’s “testimony,

standing alone, might not be sufficient to establish a link between the Beneventos’

current homes and their prior criminal activity,” we held such statements

sufficient to establish probable cause “when viewed together with the other

evidence in the government’s affidavits” linking the Beneventos’ criminal activity

to their homes. Id. at 71.

Finally, in Singh, law enforcement officers applied for a warrant to search

the defendant’s residence for evidence of a healthcare-fraud scheme. The affidavit

attached to the warrant application relayed statements of an employee of Singh’s

medical practice indicating that the employee knew certain paperwork would be

found in the defendant’s residence, because the defendant’s wife “worked on the

business payables and payroll of the Practice at the . . . residence.” Singh, 390 F.3d

16 at 180. In that case, “[a]fter identifying the documents to be searched for and

seized, [the] [s]pecial [a]gent [affiant] noted that, in her nine years of experience in

working on health care fraud and drug-distribution cases,” she “found that people

frequently maintained financial and bank records at their homes or businesses and

kept such records for a number of years.” Id. at 181. We held that the information

the employee-informant supplied, combined with the special agent’s expert

observations, properly established a nexus between the crime and the residence.

Id. at 183. 2

In each of the precedential cases above, the law-enforcement affiant pointed

not only to personal expertise tending to bolster a claim of knowledge that

evidence might be found in a particular location, but also to other particular,

corroborating factual allegations linking the alleged crimes to the place to be

searched. So too here. Along with Boyer’s assertion of “familiar[ity] with the

2 In another appeal raising an ineffective assistance of counsel claim, we considered counsel’s failure to move to suppress certain evidence seized at the defendant’s second apartment. See United States v. Cruz, 785 F.2d 399, 405–06 (2d Cir. 1986). In that case, an agent’s affidavit both explained that the defendant was paying rent on and concealing evidence of his association with that apartment and alleged other facts supporting the inference that the defendant ran a drug-trafficking scheme. The agent also attested that based on his experience, narcotic dealers “customarily” maintain apartments and other locations apart from their residence to store “drugs, paraphernalia, . . . money, or all three.” Id. at 405. We explained that “a magistrate judge is entitled to credit such an expert opinion,” notwithstanding the fact that the defendant “assert[ed] . . . [an] absence of any evidence that [he] or any of his associates ever utilized” the apartment. Id. at 405–06. Counsel therefore did not render ineffective assistance in neglecting to object to the admission of evidence ultimately obtained in the course of that search. Id.

17 manner in which gang members and individuals engaged in violent crime use

cell[]phones in connection with such activity,” App’x 54 (Boyer Aff. ¶ 1), Boyer

attested to Silva’s alleged membership in Dub City’s criminal enterprises, which

crucially, included an alleged racketeering conspiracy, id. at 56 (Boyer Aff. ¶ 8).

Indeed, even the district court acknowledged that the “alleged pattern of

racketeering activity makes it likely that Silva would have communicated on

countless occasions with other alleged members of the Dub City gang.” Silva, 2024

WL 3488305, at *6. That Silva likely communicated with multiple other members

of Dub City in the course of alleged conspiratorial conduct tends to support the

inference that his cell phone contained evidence of that conduct. Boyer also noted

that the schemes Silva purportedly ran involved “credit cards linked to fake

identities,” id. at 57 (Boyer Aff. ¶ 8), which might reasonably implicate the only

electronic device found on his person at the time of his arrest.

We stress, however, the limitations of our holding. Silva argues that

approving the search of his phone in this instance would “permit the

indiscriminate search of cell phones in virtually any case where there is probable

cause to believe a crime was committed.” Appellee’s Br. 1–2. However, Riley v.

California requires a valid warrant before law enforcement may search a cell phone

18 that is seized incident to arrest, precisely because probable cause to arrest a suspect

does not necessarily amount to probable cause to search his cell phone. 3 See 573

U.S. 373, 401–03 (2014).

The warrant here specified the information that law enforcement could

access on Silva’s cell phone. See App’x 49–51. The search parameters included

addresses, logs and messages, social media contents, files with text, photos and

videos, location, browser entries, and “any system, data or configuration

information.” See id. And these enumerated parameters were accompanied by the

proviso that “law enforcement personnel may need to conduct a complete review

of all [electronically stored information]” on the phone “[d]epending on the

circumstances.” Id. at 51.

In a different case, a defendant may argue that “the breadth of th[e]

description” in a warrant of the places to be searched “outruns the probable cause

supporting the warrant.” Clark, 638 F.3d at 94. But Silva did not challenge the

3Nothing in this opinion contradicts Supreme Court precedent regarding when law enforcement must first obtain a warrant to conduct a search. See, e.g., Carpenter v. United States, 585 U.S. 296, 320 (2018) (holding that the government must obtain a warrant before accessing seven days’ worth of cell-site location information); Riley, 573 U.S. at 401 (explaining that “a warrant is generally required before . . . a search [of a cell phone], even when a cell phone is seized incident to arrest”). These cases describe the role cell phones play in modern life—and the commensurate need for the government to obtain a warrant in some instances prior to their search. But the focus of our inquiry is the probable-cause standard supporting a warrant application, not whether officers must obtain a warrant at all.

19 scope of the warrant; he argued only that the warrant failed to establish probable

cause to search the cell phone altogether. And it matters that the alleged offenses

here—gang violence, financial crimes, and flight from justice—can be evidenced

and manifested electronically in many ways. The scope of the search (particularly

as to Silva’s social interactions) is therefore hard to cabin.

All told, “common sense and [Boyer’s] experience” combine in this case to

support a “reasonable inference,” Singh, 390 F.3d at 182 (internal quotation marks

and citation omitted), given the totality of the circumstances, that a search of

Silva’s cell phone might have with a “fair probability” yielded evidence of his

participation in the alleged criminal conduct, Gates, 462 U.S. at 238. The Boyer

Affidavit identified specific attributes of the alleged criminal conduct that tended

to show the cell phone would contain evidence of that conduct. The magistrate

judge possessed a “substantial basis” for her probable-cause determination. Jones,

43 F.4th at 109 (citation omitted).

III. The Government Relied on the Warrant in Good Faith

The animating principle behind the good-faith exception is that the

exclusionary rule aims to “deter police misconduct rather than to punish the errors

of judges and magistrates.” Leon, 468 U.S. at 916. A decision to suppress evidence

thus always entails the careful weighing of the “benefits of deter[ring]” law- 20 enforcement misconduct against the “substantial social costs” that attend

suppressing evidence, including the detrimental impact on the criminal-justice

system’s “truth-seeking” function. Herring, 555 U.S. at 141 (internal quotation

marks and citation omitted). “Penalizing [an] officer for [a] magistrate’s error,

rather than his own, cannot logically contribute to the deterrence of Fourth

Amendment violations.” Clark, 638 F.3d at 99–100 (alteration omitted) (quoting

Leon, 468 U.S. at 921). Consequently, “searches pursuant to a warrant will rarely

require any deep inquiry into reasonableness” when assessing the officer’s good

faith. Id. at 100 (alteration omitted) (quoting Illinois v. Gates, 462 U.S. at 267 (White,

J., concurring in the judgment)). Before the district court, the government bore the

burden of demonstrating its good faith. See United States v. George, 975 F.2d 72, 77

(2d Cir. 1992).

The Supreme Court has identified four circumstances in which we do not

accept that the government acted in good faith: “(1) where the issuing magistrate

has been knowingly misled; (2) where the issuing magistrate wholly abandoned

his or her judicial role; (3) where the application is so lacking in indicia of probable

cause as to render reliance upon it unreasonable; and (4) where the warrant is so

facially deficient that reliance upon it is unreasonable.” See Clark, 638 F.3d at 100

21 (citation omitted); see also Leon, 468 U.S. at 923. On appeal, Silva asserts that the

third circumstance applies here. He contends that the Boyer Affidavit is so “bare

bones” that the officers should have known that any warrant issued pursuant to it

would not withstand Fourth Amendment scrutiny.

A bare-bones affidavit is “totally devoid of factual circumstances to support

conclusory allegations.” Clark, 638 F.3d at 103. Showing that a reasonably well-

trained officer should have known that a warrant premised on a particular

affidavit was illegally issued is “a very difficult threshold to meet.” Jones, 43 F.4th

at 112 (quoting United States v. Falso, 544 F.3d 110, 128 n.24 (2d Cir. 2008)

(Sotomayor, J.)). “The concern” associated with bare-bones warrant applications

“is particularly acute when facts indicate that the ‘bare-bones description . . . was

almost calculated to mislead.’” Clark, 638 F.3d at 103 (alteration in original)

(quoting United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)).

An affidavit is bare bones where, for example, the affiant states only that

“he has cause to suspect and does believe that liquor illegally brought into the

United States is located on certain premises”; or when the affiants assert only that

they “have received reliable information from a credible person and believe that

heroin is stored in a home.” See Gates, 462 U.S. at 239 (internal quotation marks

22 omitted) (first quoting Nathanson v. United States, 290 U.S. 41, 44 (1933); then

quoting Aguilar v. Texas, 378 U.S. 108, 109 (1964)). Where the affidavit contains

more details, such as specific information from a confidential informant tending

to show that the location to be searched is implicated in criminal activities, it is

ordinarily not bare bones. See, e.g., Leon, 468 U.S. at 925; Clark, 638 F.3d at 104;

United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992).

The Boyer Affidavit set forth specific factual allegations concerning Silva’s

participation in Dub City based on information from a confidential informant. It

discussed Boyer’s review of court documents and his conversations with members

of the U.S. Marshals Service regarding Silva’s alleged commission of the August

2019 shooting and his subsequent failure to appear in state court on charges related

to that crime. As noted extensively above, the Affidavit also properly linked

Silva’s cell phone to these activities. Finally, Silva does not suggest that the

Affidavit’s descriptions were in any way “calculated to mislead.” Clark, 638 F.3d

at 103 (quoting Reilly, 76 F.3d at 1280).

No aspect of the warrant application before us suggests that “‘a reasonably

well trained officer would have known that the search was illegal’ in light of ‘all

of the circumstances.’” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23);

23 accord Clark, 638 F.3d at 100. Without affirmative indicia of law-enforcement

misconduct, we decline in this case to resort to “the extraordinary remedy of

suppression.” See United States v. Ganias, 824 F.3d 199, 221 (2d Cir. 2016) (en banc).

The district court erred in failing to credit the searching officers’ good-faith

reliance on the warrant the magistrate judge issued.

CONCLUSION

For the reasons described above, we VACATE the order of the district court

and REMAND for further proceedings consistent with this opinion.

24