Judge Ronnie Abrams
Burke and Motley were indicted on substantive and conspiracy charges of distributing and possessing with intent to distribute 100 or more marijuana plants. They allegedly operated a marijuana growing operation at a Bronx warehouse. The search warrant’s underlying affidavit asserted that Hidalgo, who rented the warehouse, also leased another also believed to have been used to grow marijuana. Lumber shipped to the first warehouse was of the same kind and quantity used at the second. Also, utility records showed increased gas usage consistent with indoor plant cultivation. The affidavit cited photos documenting delivery and removal of indoor plant cultivation equipment, and the strong smell of incense to mask the odor of marijuana. The court denied Burke’s motion—joined by Motley—to suppress all evidence from the warehouse on the ground that the search warrant was based on “stale” and “misleading information.” Burke’s professed work at the warehouse as a janitor did not establish a reasonable expectation of privacy sufficient to challenge the warrant. Moreover, the evidence underlying the warrant’s application supported a probable cause finding.