MEMORANDUM OF DECISION & ORDER Presently before the Court are several motions by defendant Tyrone Robinson (the “Defendant”): to suppress various pieces of evidence seized and recovered by the Suffolk County Police Department (“SCPD”) and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”); to reconsider an order denying suppression of information found on a cellphone taken from the Defendant’s residence by New York State (“NYS”) parole officers; and to dismiss alleged violations of 18 U.S.C. §924(c) for failure to state a claim.For the following reasons, the Court grants the Defendant’s motion for a suppression hearing regarding: the evidence seized from the 2016 Black Chrysler Van with New Jersey License M23GCW (the “Rental Van”) on March 26, 2016; the evidence seized from the cellphone with the number (718) 350-0346 (the “Roof Cellphone”) without a warrant; and evidence seized under the authority of the July 8, 2016 warrant to search the Roof Cellphone. The Court denies the Defendant’s remaining motions.I. BACKGROUNDA. FACTUAL BACKGROUNDAs not all facts are relevant to the instant motions, the Court will state the relevant facts when they are necessary to the determination of each specific motion. However, the Court will provide a brief overview of the relevant seizures and warrants underlying the motions.On March 26, 2016, SCPD seized, amongst other things, two cellphones and the Rental Van. The parties dispute the location of and circumstances under which SCPD found the seized items.On April 15, 2016, SCPD Detective Vincent Callahan (“Callahan”) obtained a search warrant for the Rental Van and the cellphone with the number (631) 383-4840 (the “Van Cellphone”). ECF 137-15.On June 10, 2016, NYS parole officers seized a cellphone (the “Parole Cellphone”) pursuant to the Defendant’s arrest in his residence.On July 8, 2016, ATF Special Agent Liscinsky (“Liscinsky”) submitted an Affidavit (the “Liscinsky Affidavit”) to United States Magistrate Judge Anne Y. Shields in support of an application for warrants to search the Defendant’s residence, the Second Floor Apartment of 1087 Martinstein Avenue, Bayshore, New York 11706 (the “Residence” or “Defendant’s Residence”); an e-mail account with the address “[email protected]” (the “Gmail Account”); and the Roof Cellphone. ECF 131-10. After reviewing the Liscinsky Affidavit, Judge Shields issued three federal warrants, authorizing searches of the Residence, including any locked or closed containers therein, the Roof Cellphone, and the Gmail Account. ECF 131-3; ECF 131-4; ECF 131-5.On July 21, 2016, after reviewing a June 11, 2018 affidavit, ECF 131-15 (the “Cassidy Affidavit”), United States Magistrate Judge Steven I. Locke issued a warrant to search the Parole Cellphone. ECF 131-16.B. PROCEDURAL BACKGROUNDOn October 9, 2016, the Government filed a complaint against the Defendant charging the Defendant with alleged violations of 18 U.S.C. §1951(a), Hobbs Act robbery, and 18 U.S.C. §924(c), use of a firearm in furtherance of a crime of violence. ECF 1.On January 11, 2017, the Government filed a 22-count indictment against the Defendant. ECF 16.On March 15, 2017, the Government filed a 32-count superseding indictment charging the Defendant with multiple counts of Hobbs Act robbery, Hobbs Act attempted robbery, and Hobbs Act robbery conspiracy, 18 U.S.C. §§1951(a), 2 and 3551 et seq.; brandishing one or more firearms during crimes of violence, 18 U.S.C. §§924(c)(1)(A)(i), 924(c)(1)(A)(ii), 2 and 3551 et seq.; possession of a firearm by a felon, 18 U.S.C. §§922(g)(1), 924(a)(2) and 3551 et seq.; discharging one or more firearms during crimes of violence, 18 U.S.C. §§924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 924(c)(1)(C)(i), 2 and 3551 et seq.; firearm-related murder, 18 U.S.C. §§924(j)(1), 2 and 3551 et seq.; and possession of ammunition by a felon, 18 U.S.C. §§922(g)(1), 924(A)(2) and 3551 et seq. ECF 40.On May 8, 2017, the Defendant filed motions, inter alia, to dismiss the alleged violations of 18 U.S.C. §924(c) for failure to state a claim; and to suppress evidence recovered from the Defendant’s Residence by NYS parole officers pursuant to a parole arrest warrant on June 10, 2016. ECF 61; ECF 62. The Defendant supplemented his motions on September 22, 2017, seeking to suppress evidence seized from his apartment pursuant to the July 8, 2016 federal search warrant, based upon a purported deliberate or reckless error under Franks v. Delaware, 438 U.S. 154, 155-56 (1978).On November 1, 2017, the Court issued a decision: (1) denying the Defendant’s motion to dismiss the 924(c) charges; (2) ordering the conduction of a limited hearing concerning “whether the seizure of the Defendant’s cellphone by New York State parole officers was rationally and reasonably related to the parole officers’ duties; and (3) denying the motion to suppress the evidence seized pursuant to the July 8, 2018 federal search warrant. ECF 84.On January 8, 2018, Judge Shields conducted a hearing, ECF 90, and issued a Report and Recommendation (“R&R”) regarding the cellphone on January 16, 2018. ECF 91. On January 29, 2018, then-counsel to the Defendant Kevin Keating filed objections to the R&R. ECF 96. The Government responded on February 6, 2018. ECF 98.On February 17, 2018, the Court issued a Memorandum of Decision and Order (the “Order”), denying the Defendant’s motion to suppress the evidence seized from the cellphone. ECF 101.On April 27, 2018, the Defendant’s current counsel orally argued for reconsideration of the Order, ECF 110, which the Court denied.On August 14, 2018, the Defendant brought the following motions, which are presently before the Court, seeking:Suppression of evidence seized from the Rental Van located on March 26, 2016 by the SCPD near the crime scene at 147 Smith Road, Lake Grove, New York (the “Lake Grove Residence”);Suppression of evidence seized by the SCPD pursuant to an April 15, 2016 New York State Supreme Court search warrant, issued as to the Rental Van and its contents;Suppression of evidence seized from the Roof Cellphone;Suppression of evidence seized pursuant to three federal search warrants issued on July 8, 2016 for the Defendant’s Residence, the Roof Cellphone, and the Gmail Account;Suppression of evidence seized pursuant to a fourth search warrant issued July 21, 2016 for the Parole Cellphone;Suppression of evidence seized pursuant to the three July 8, 2016 federal search warrants based upon claimed overbreadth and lack of particularity;Reopening of the hearing concerning the Parole Cellphone;Dismissal of all Section 924(c) firearms charges (Counts 3, 6, 9, 13, 16, 19, 22, 25 and 29);To adopt all prior motions filed on behalf of the Defendant’s prior attorneys. ECF 131.On September 12, 2018, the Government filed a response arguing that the Court should deny the Defendants’ motions without a hearing. ECF 137.II. DISCUSSIONA. THE MOTIONS TO SUPPRESSAn evidentiary hearing on a motion to suppress “ordinarily is required if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992) (citations and quotations omitted). A defendant seeking a hearing on a suppression motion bears the burden of showing the existence of disputed issues of material fact. See id. at 338. A district court is not required to hold an evidentiary hearing if the defendant’s “moving papers did not state sufficient facts which, if proven, would have required the granting of the relief requested[.]” United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir.1969). Further, a court need not hold an evidentiary hearing when the “ defendant’s statements are general, conclusory or based on conjecture.” United States v. Viscioso, 711 F.Supp. 740, 745 (S.D.N.Y.1989).For the following reasons, the Court grants the Defendant’s motion for a suppression hearing regarding the evidence seized from the Rental Van and the Roof Cellphone. The Court denies the Defendant’s remaining motions.1. As to the Suppression of Evidence Seized from the Rental Van.a. The Defendant’s PositionOn March 26, 2016, SCPD searched the Rental Van without a warrant. The Defendant argues that SCPD lacked sufficient probable cause, and that a hearing is necessary to determine all of the relevant facts surrounding the warrantless search of the vehicle. According to his version of the events, SCPD arrested him after he parked the Rental Van in a public area, after which SCPD searched the vehicle. ECF 132-1 3. The Defendant further contends that the facts set forth in Callahan’s affidavit reporting the events underlying the seizure fail to establish probable cause. ECF 131-1 5.b. The Government’s PositionThe Government contends that SCPD searched the Rental Van while looking for the Defendant after the reported burglary of the Lake Grove Residence. According to the Government, the search of the Rental Van occurred as follows:At approximately 7:45 p.m., a downstairs neighbor called 911 after hearing someone in John Doe No. 1′s 2nd-floor apartment while he was still hospitalized. Uniformed officers arrived and at approximately 7:58 p.m., they observed a black male wearing a black-and-white, hooded sweatshirt, jump down off an overhang from the 2nd floor, and flee into nearby woods…. Before the perpetrator fled, he dropped a cellphone on the roof with the number (718) 350-0346 (the “Roof Cellphone”), which was subsequently linked to ROBINSON. See GX F. He also dropped a hat that fell onto the ground when he fled (laboratory analysis later identified ROBINSON’s DNA in the hat). See GX G.At approximately 8:03 p.m., a neighbor reported that prior to the burglary attempt, a black male matching the same description had been acting suspiciously and driving a black van in the neighborhood with the license plate number “M23 GDW.”At approximately 8:23 p.m., SCPD Officer David Vlacich located a 2016 black Chrysler rental van with license plate number M23 GCW (i.e., only one letter off from the number given by the neighbor), which is the subject of the current motion (the “Rental Van” or the “Van”). The Van was parked in a Subway restaurant lot, less than 100 feet from the Lake Grove Residence. The Van had tinted windows that prevented Officer Vlacich from seeing inside. Officer Vlacich opened the unlocked rear hatch of the Van to see if anyone was hiding in the Van. Officer Vlacich observed a rental agreement (See GX H), which he retrieved in order to verify ownership of the unlocked Van. The keys for the unlocked Van were on top of the driver’s side front tire.ECF 137 at 5-6.Based on these facts, the Government contends that: the Defendant has not satisfied his initial burden of alleging facts sufficient to establish an expectation of privacy and thus standing, pursuant to Byrd v. United States, 138 S.Ct. 1518 (2018), as to the Rental Van; the SCPD’s good faith in following pre-Byrd Second Circuit precedent requires denial of suppression; there was clear probable cause and thus, pursuant to the automobile exception, a warrant was not required to search the Rental Van; exigent circumstances justified a search of the Rental Van because police were searching for a violent, dangerous fugitive; and the items in the Rental Van would have been inevitably discovered as public safety required that police inventory and safeguard the unlocked, overdue rental vehicle.c. DiscussionThe Court finds that resolution of this motion to suppress turns on a disputed factual matter, namely, the circumstances under which the SCPD discovered and searched the Rental Van, thus requiring a suppression hearing.In Byrd, the Supreme Court held that “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Byrd, 138 S.Ct. at 1531. Pursuant to this holding, the Defendant contends that he has standing because he drove the Rental Van with the lessor’s permission the night the Vehicle was searched. ECF 131-1 3. The Government responds that Byrd only applies to drivers of rental cars who retain possession and/or control the vehicle. Therefore, the Government argues that the Defendant lacked a reasonable expectation of privacy in the Rental Van because he was neither driving nor near the Rental Van when it was searched. The Government further argues that no Fourth Amendment standing exists because: (1) the Rental Van was overdue; (2) it was sitting unlocked with the keys on top of the front tire where anyone could access them; and (3) the Defendant did not have a valid driver’s license. ECF 137 at 13.The Court finds that Byrd is pertinent to, but not dispositive of, the standing determination. Although the proper construction of the decision is a matter of first impression in the Second Circuit, the Court agrees with other circuits which “read Byrd as indicating, at a minimum, that privacy expectations in rental vehicles are not subject to easily articulated bright-line rules.” United States v. Long, No. 16-1419, 2018 WL 4936379, at *2 (8th Cir. Oct. 12, 2018). The Court gleans no language from Byrd setting out the borders of unauthorized drivers’ privacy expectations, beyond establishing the requirement that any such expectation can only come from “lawful possession and control” of the vehicle. Byrd, 138 S. Ct. at 1528-29.With this in mind, the Court rejects the Government’s arguments to the extent that it claims that Byrd only applies to searches that occur while someone is driving the rental vehicle. Although the Government’s position is not very clear, it appears that it believes the phrase “a driver in lawful possession or control of a rental car” to exclude parked cars. ECF 137 at 13 (emphasis added). This is not a proper interpretation of Byrd. The Supreme Court centered its decision around the right of those who maintain lawful possession or control of property to exclude others, and the legitimate expectation of privacy that arises by virtue of the right to exclude. Byrd, 138 S. Ct. at 1527. The Supreme Court elaborated that it “sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it.” Id. at 1529. It stands to reason that the Supreme Court’s logic remains the same, regardless of whether the rental car is parked or on the road. Just as “an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker” while on the road, they retain that expectation when they park the car. Id. at 1529-30.Generally speaking, drivers do not lose their reasonable expectation of privacy in the parts of the car outside of the plain view of the public merely by parking the car. See, e.g., United States v. $277,000.00 U.S. Currency, 941 F.2d 898, 901 (9th Cir. 1991) (holding defendant maintained reasonable expectation of privacy in car parked in another’s driveway); United States v. Mulligan, 488 F.2d 732, 737 (9th Cir. 1973) (finding defendant maintained reasonable expectation in car parked on another’s property for two months); United States v. Cresta, 592 F. Supp. 889, 905 (D. Me. 1984) (explaining that rental car lessees “had a possessory interest which….entitled them to a reasonable expectation of privacy at the time the vehicles were seized, parked and empty, in the parking lot of [a motel].”). Nothing in Byrd hints at a departure from this principle in cases involving unauthorized rental car users. Therefore, the Government cannot defeat suppression simply because the Defendant was not physically in the vehicle at the time of the search.Further, the Court rejects the Government’s claim that the Defendant’s conduct terminated the rental agreement, so that he lacked a reasonable expectation of privacy in the Rental Van. Just as in Byrd, “the Government fails to explain what bearing [these] breach[es] of contract, standing alone, ha[ve] on expectations of privacy in the car.” 138 S. Ct. at 1529. The unauthorized driver provision and the unlicensed driver provision are exactly the sort that the Supreme Court explained “do not eliminate an expectation of privacy,” because they merely “concern[s] risk allocation between private parties.” Byrd, 138 S. Ct. at 1530. The provision regarding use for an illegal purpose, as the Government concedes, puts the cart before the horse because its trigger would first require the government to prove the commission of the crime before obtaining the admission of the evidence.The remaining explanations provided by the Government for the Defendant’s supposed lack of standing entail disputed factual issues, which require a hearing. The Government claims the Defendant was not in lawful possession of the Rental Van, because: (1) the Rental Van was overdue; (2) it was sitting unlocked with the keys on top of the front tire where anyone could access them; (3) the Defendant did not have a valid driver’s license; and (4) the Defendant was apprehended walking away from the crime scene location and the Rental Van, just over a mile from the Rental Van. As the Defendant’s reasonable expectation of privacy in the car did not evaporate by virtue of the mere fact that he parked and exited the vehicle, the Government can only defeat his standing to challenge the search by establishing that he relinquished lawful possession or control of the vehicle by way of abandonment, or some other means.These issues are questions of fact normally entitled to a suppression hearing, because they relate to the mental state of the Defendant and require credibility assessments regarding which side presented the most accurate accounting of events. See United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990) (explaining that abandonment is a “necessarily factual” inquiry “focus[ed] on the intent of the person who is purported to have abandoned the property”); United States v. Gruttadauria, 439 F. Supp. 2d 240, 249 (E.D.N.Y. 2006) (referring motion to suppress to a magistrate judge for a suppression hearing where “disputed issues of fact” existed based on defendants affidavit challenging facts underlying the government’s standing arguments); United States v. Gerena, 662 F. Supp. 1265, 1270 (D. Conn. 1987) (finding the defendants “entitled to a hearing” where they “alleged colorable standing claims”). The Defendant denies the Government’s allegations, which means that the Court cannot decide whether the Defendant abandoned the Rental Van, without first making a credibility determination regarding the circumstances underlying the search.Lastly, the Court disagrees with the Government that the good faith exception to the Exclusionary Rule requires denial of suppression without an evidentiary hearing. While it acknowledges the good faith exception provides for an objective analysis, Davis v. United States, 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the Court finds a hearing warranted here, because material factual disputes exist regarding the circumstances underlying the search. Of importance, this case also bears a crucial distinction from Byrd, where the officers discovered the driver was an unauthorized user of the rental car before the search. See United States v. Byrd, No. 16-1509, 2018 WL 3750932, at *1 (3d Cir. Aug. 8, 2018). Here, the SCPD officers allege they entered the Rental Van “to ascertain whether the suspect was present in the vehicle” and as a “safety precaution to check for occupants,” ECF 131-6 at 4; ECF 131-10 at 7, and did not discover the Defendant’s status as an unlisted driver of the vehicle until afterwards. The Court is unsure that the Government will establish that the SCPD officers acted based on an objectively reasonable reliance on United States v. Smith, 621 F.2d 483 (2d Cir. 1980) and United States v. Lyle, 856 F.3d 191 (2d Cir. May 9, 2017).Therefore, the Court grants the Defendant’s motion for a suppression hearing regarding the warrantless seizure of evidence from the Rental Van.2. As to the Suppression of Evidence Seized by the SCPD Pursuant to the April 15, 2016 New York State Supreme Court Search Warrant.The Defendant challenges the April 15, 2016 warrant issued by the Supreme Court of New York on the grounds that the warrant was (1) overbroad and failed to particularly describe the specific criminal offenses for which police established probable cause; and (2) based upon false and misleading information requiring suppression of the evidence seized. The Court denies these motions.a. As to the Overbreadth and Lack of Particularity Challenges.The Defendant argues that the warrant “lacks particularity because it fails to identify any crime, and, instead, mentions that Calla[h]an’s Affidavit provided proof that there is probable cause for believing that certain property…has been used to commit an offense against the laws of this State and another State.” ECF 131-1 12. According to the Defendant, such language is impermissibly broad because it described neither the precise items to be seized nor the possible crimes involved. Id. The Government responds that although the warrant itself did not identify the criminal statutes in relation to which evidence was sought, it was nevertheless clear from the warrant and the related affidavit, which was incorporated and attached thereto, for what crimes the search was being undertaken. ECF 137 at 26-27.The Warrants Clause protects against ‘a general, exploratory rummaging in a person’s belongings.’” United States v. Cioffi, 668 F.Supp.2d 385, 390 (E.D.N.Y.2009) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). “Its overarching purpose is to ensure that ‘those searches deemed necessary should be as limited as possible.’” Cioffi, 668 F.Supp.2d at 390 (quoting Coolidge, 403 U.S. at 467, 91 S.Ct. 2022). “To achieve its goal, the Warrants Clause requires particularity and forbids overbreadth.” Id.“Particularity is the requirement that the warrant must clearly state what is sought.” Cioffi, 668 F.Supp.2d at 390 (citation and quotation marks omitted). “Particularity” concerns arise when a warrant’s description of the place to be searched or the items to be seized “is so vague that is fails reasonably to alert executing officers to the limits of their search authority.” United States v. Clark, 638 F.3d 89, 94 (2d Cir.2011). The Second Circuit has specified three components of the particularity requirement: (1) the “warrant must identify the specific offense for which the police have established probable cause”; (2) the “warrant must describe the place to be searched”; and (3) the “warrant must specify the items to be seized by their relation to designated crimes.” United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (citation omitted). Thus, “a warrant satisfies the particularity requirement when it sufficiently identifies and describes the items to be searched and seized and links that evidence to the specific criminal activity being investigated.” United States v. Juarez, No. 12-CR-59, 2013 WL 357570, *3 (E.D.N.Y. Jan. 9, 2013).Additionally, a warrant need not describe the items to be seized in such detail as to eliminate the officer’s discretion completely. See United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) (Fourth Amendment “not violated because the officers executing the warrant must exercise some minimal judgment as to whether a particular document falls within” category described in warrant). To satisfy the “particularity” requirement, a warrant need only “be sufficiently specific to permit the rational exercise of judgment by the executing officers in selecting what items to seize.” United States v. Liu, 239 F.3d 138, 140 (2d Cir.2000) (quotation marks, citation, and alterations omitted). “The level of specificity required by the Fourth Amendment depends on many factors. The nature of the crime, for example, may require a broad search.” United States v. Dupree, 781 F. Supp. 2d 115, 149 (E.D.N.Y. 2011).Applying these principles, the Court finds that the warrant violates the particularity requirement by failing to list the specific offenses allegedly committed. The parties agree that the four corners of the warrant itself do not list the crimes for which SCPD identified probable cause. Indeed, the warrant only refers to “an offense against the laws of this State or another State” and “crime under investigation.” ECF 131-2. The absence of any language particularizing the relevant crimes makes the warrant facially invalid. See Galpin, 720 F.3d at 447 (finding warrant violated Fourth Amendment’s particularity requirement, “insofar as the warrant generally authorized officers to search [the defendant's] physical property and electronic equipment for evidence of violations of ‘NYS Penal Law and or Federal Statutes’”).The only remaining question then is whether the warrant sufficiently attached the Callahan Affidavit, so that the affidavit became incorporated by reference. “Resort to an affidavit to remedy a warrant’s lack of particularity is only available when it is incorporated by reference in the warrant itself and attached to it.” United States v. George, 975 F.2d 72, 76 (2d Cir. 1992); see also United States v. Rosa, 626 F.3d 56, 64 (2d Cir. 2010) (“[C]ourts may no longer rely on unincorporated, unattached supporting documents to cure an otherwise defective search warrant, the warrant fails for lack of particularity.”). In this regard, the Government points to language in the warrant stating, “Proof, by affidavit, having been this day made before me, by Detective Callahan, Shield No.1248,” as well as the fact that the affidavit was attached to the warrant. ECF 131-2.While the Court finds these facts do support the Government’s position, the cursory citation of the Callahan Affidavit is insufficient. The mere “recitation” that a warrant was “issued upon the basis of an application and affidavit…does not direct the executing officers to refer to the affidavit for guidance concerning the scope of the search and hence does not amount to incorporation by reference.” George, 975 F.2d at 76; United States v. Cohan, 628 F. Supp. 2d 355, 363 (E.D.N.Y. 2009) (“[T]he Government cannot rely on language in a warrant simply referencing the underlying affidavit to satisfy the particularity prong of the Fourth Amendment; rather, it must attach the affidavit to the warrant and incorporate it by reference using deliberate and unequivocal language.”). Therefore, the fact that the Callahan Affidavit may have adequately described the offenses committed cannot save the warrant. Cf. Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 1289, 157 L. Ed. 2d 1068 (2004) (“The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.”).As a result, the Court finds that the warrant violates the Fourth Amendment’s particularity requirement. However, this finding does not end the Court’s inquiry. The Court must address whether admission is nonetheless appropriate, as a violation of the Fourth Amendment does not necessarily result in the application of the exclusionary rule. Application of the exclusionary rule depends on the “efficacy of the rule in deterring Fourth Amendment violations in the future” as well as a determination that “the benefits of deterrence…outweigh the costs.” Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) Moreover, “[t]he extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct.” Id. at 143. Thus, in deciding to suppress evidence, courts look to whether “police conduct [is] sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. Accordingly, when a government agent acts with “an objectively reasonable good-faith belief that their conduct is lawful,” or when their conduct involves only “simple, isolated negligence,” exclusion simply “cannot pay its way.” Davis, 564 U.S. at 257.In light of this principle, courts have recognized that evidence obtained by government agents “in objectively reasonable reliance” on a warrant subsequently invalidated by a reviewing court is not generally subject to exclusion. See United States v. Falso, 544 F.3d 110, 125 (2d Cir.2008) (citation and quotation marks omitted). When a government agent genuinely believes that he or she has obtained a valid warrant from a magistrate and executes that warrant in good faith, there is no conscious violation of the Fourth Amendment, “and thus nothing to deter.” United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).Here, the good faith exception applies because “a reasonably well trained officer is not chargeable with knowledge that this search was illegal in the particular circumstances before us. While [the Court] may no longer rely on unincorporated, unattached supporting documents to cure a constitutionally defective warrant, those documents are still relevant to [the] determination of whether the officers acted in good faith, because they contribute to [the Court's] assessment of the officers’ conduct in a particular case.” Rosa, 626 F.3d at 64. Although not explicitly incorporated by reference in the warrant, the Callahan Affidavit was nonetheless attached to the warrant, and clearly elucidated that the crimes under investigation were Criminal Trespass and Burglary. ECF 137-15 at 6. Moreover, Callahan was both the affiant and executing officer, diminishing the risk of a general search, due to Callahan’s ability to rely on his own knowledge of the investigation in executing the warrant. Further, the warrant instructed that the items to-be-seized were limited to “evidence linking the use of this vehicle to the crime under investigation,” id. at 1, and the Defendant makes no allegations that the SCPD seized items unrelated to the crimes described in the Callahan Affidavit.Based on these facts, the Court finds suppression an inappropriate remedy for the Fourth Amendment violation at issue. See, e.g., United States v. Lustyik, 57 F. Supp. 3d 213, 226-27 (S.D.N.Y. 2014) (denying suppression of evidence seized pursuant to warrant that failed to list target offense where application provided enough detail to limit the search to the relevant crimes); United States v. Purcell, No. 18-CR-81, 2018 WL 4378453, at *5 (S.D.N.Y. Sept. 13, 2018) (same); United States v. Alston, No. 15-cr435, 2016 WL 2609521, at *5 (S.D.N.Y. Apr. 29, 2016) (same); United States v. Romain, No. 13-CR-724, 2014 WL 6765831, at *6-7 (S.D.N.Y. Dec. 1, 2014) (same); United States v. Nguyen, No. 13-CR-6044, 2014 WL 1512030, at *17-18 (W.D.N.Y. Apr. 7, 2014) (same), report and recommendation adopted, 2014 WL 1795045 (W.D.N.Y. May 6, 2014).The Defendant’s only objection to the application of the good faith exception is unpersuasive. The Defendant claims that the Government cannot rely on the doctrine, because the SCPD knowingly misled the issuing judge. ECF 144 27 (citing Falso, 544 F.3d at 125). As the Court will explain in the following section, it finds that this argument lacks merit. Therefore, the Court will not rely on it to suppress evidence due to the warrant’s lack of particularity.b. As to the Alleged Material Omissions in the Supporting Affidavit.The Defendant also challenges the warrant on the ground that the Callahan Affidavit deliberately misled the issuing judge by omitting information material to the probable cause determination. ECF 131-1 15. Specifically, the Defendant faults the affidavit for failing to disclose that SCPD already conducted a warrantless search of the Rental Van, and recovered many of the items sought by the affidavit. Id.
15-18.Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” 438 U.S. at 155-56. To be entitled to a Franks hearing, the defendant’s attack on material contained in the search warrant:must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactory explained. Allegations of negligence or innocent mistake are insufficient.Id. at 171. Therefore, “[t]o invoke the Franks rule, a defendant is required to show: (1) ‘that there were intentional and material misrepresentations or omissions’ in the warrant affidavit, and (2) that the ‘alleged falsehoods or omissions were necessary to the…probable cause finding.’” United States v. Mandell, 752 F.3d 544, 552 (2d Cir.2014) (quoting United States v. Awadallah, 349 F.3d 42, 64-65 (2d Cir.2003)).Notably, “[t]here is…a presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. The standard for entitlement to a Franks hearing is high, see Rivera v. United States, 928 F.2d 592, 604 (2d Cir.1991), and requires a “substantial preliminary showing” that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included in the affidavit for the search warrant. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v. Mandell, 710 F.Supp.2d 368, 372 (S.D.N.Y.2010) (“Hearings under Franks are not freely granted.”).First, and foremost, the Defendant’s motion fails with regards to the alleged omission of SCPD’s search of the glove compartment, because the warrant made sufficient disclosures to the issuing judge. In relevant part, the Callahan Affidavit states:The uniformed officer determined the vehicle was unlocked and opened the rear hatch of the van to ascertain whether the suspect was present in the vehicle….Located in plain view inside the vehicle was a cellular telephone a cloth, dark in color, and a car rental agreement for the vehicle. This rental agreement provided investigative leads which established a woman had rented the car for a friend of hers known to her only as “Tyrone” and that he had been using the vehicle.ECF 131-6 at 4-5. The Court finds that this language made clear to the issuing judge that the SCPD searched the interior of the vehicle and seized some of its contents.As for the remaining allegations, the Defendant puts forth no evidence regarding the intent underlying errors or omissions, beyond the mere fact that they occurred. While not dispositive, the absence of any such substantiation weighs against the Defendant’s claims that Callahan made these misstatements knowingly and intentionally, or with reckless disregard for the truth. See United States v. Gasperini, No. 16-CR-441, 2017 WL 3038227, at *6 (E.D.N.Y. July 17, 2017), aff’d, 894 F.3d 482 (2d Cir. 2018) (denying Franks hearing where defendant “offer[ed] no basis to conclude that this omission was designed to mislead, or made in reckless disregard of its potential to mislead, the magistrate”); United States v. Persico, No. 10-CR-147, 2012 WL 2017224, at *5 (E.D.N.Y. June 4, 2012) (denying Franks hearing where defendant did “not provide[] adequate substantiation for his claim” that affiant knew that statements were false). Viewing the contested statements in context, the Defendant has not made a substantial preliminary showing, as required by Franks, justifying a hearing.Regarding the DNA “swab,” the Callahan Affidavit provides that “the vehicle sought to be searched has been seized by the Suffolk County Police Department. Id. at 5. Given that the Callahan Affidavit disclosed that a search of the vehicle already occurred, and that the vehicle was in police custody, this is not the sort of omission that would entitle the Defendant to a hearing. See United States v. Vilar, No. 05-CR-621, 2007 WL 1075041, at *27 (S.D.N.Y. Apr. 4, 2007) (“All storytelling involves an element of selectivity, so it is not shocking that every affidavit will omit facts which, in retrospect, seem significant. Thus, courts have recognized that Franks claims based on omissions are less likely to justify suppression than claims of intentionally or recklessly false assertions.”).As for the errors in the return of the warrant, Detective Callahan affirmed that, on April 18, 2016, he obtained the Van Cellphone “by making search…designated in the said warrant for the (property)(person) therein described, and found of the said property the articles described in the following inventory” and that the Van Cellphone was “taken…by virtue of the within Search warrant.” ECF 137-16 at 1. The Court agrees with the Defendant that this statement is untrue, since the Government concedes that the SCPD seized and took inventory of the phone pursuant to a warrantless search on March 26, 2016. See, e.g., ECF 137 at 30 (“[T]he affidavit describes the discovery of the van on March 26, 2016,[and the] location of the personal property items in plain view inside the van (including the Van Cellphone)[.]“), 31 (“[T]he Rental Van was searched on March 26, 2016 and the Van Cellphone was recovered at that time[.]“), 38 (“[T]he Van Cellphone was recovered on March 26, 2016 as described above.”), 40 (“The Van Cellphone was properly inventoried on March 26, 2016 following its seizure.”).However, the Court disagrees with the Defendant that this untruth rises to the level of a deliberate falsehood or reckless disregard for the truth. See United States v. Waker, 534 F.3d 168, 171 (2d Cir. 2008) (“In general, minor errors in an affidavit are not cause for invalidating the warrant that it supports.”); United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005) (“[E]very statement in a warrant affidavit does not have to be true.”). As the Court explained, Callahan already disclosed to the issuing judge that a warrantless search of the Rental Van occurred, during which SCPD discovered the Van Cellphone. Given this disclosure, the statement on the return, at best, constitutes a clerical error stemming from filling out a standardized form.Therefore, the Court denies the motion to suppress evidence seized by the SCPD pursuant to the April 15, 2016 warrant in its entirety.c. As to the Final Disposition of the Motion.The Court observes some degree of overlap between the Defendant’s motion regarding the warrantless search of the Rental Van and his motion relating to the April 15, 2016 warrant. Although the Defendant does not appear to argue that the Callahan Affidavit contained deliberate falsehoods regarding the circumstances under which the SCPD discovered the Rental Van, the suppression hearing may touch on topics discussed in the Callahan Affidavit. As a result, the Court will reserve final judgment on this motion pending the outcome of the suppression hearing.However, the Court instructs the Defendant that this decision is not an invitation to turn the suppression hearing into a Franks hearing about the April 15, 2016 warrant. In this regard, the hearing should be strictly limited to the issues raised in the Defendant’s motion regarding the warrantless search of the Rental Van.3. As to the Suppression of Evidence Seized from the Roof Cellphone.The Defendant seeks suppression of all evidence obtained from the Roof Cellphone. According to the Defendant, he left the Roof Cellphone inside the Rental Van, and thus could not have abandoned it on the roof of the Lake Grove Residence. ECF 132 4. As a result, the warrantless seizure and search of the phone violated his Fourth Amendment rights, pursuant to Riley v. California, 134 S.Ct. 2473 (2014). ECF 131-1 53. The Government responds that the Defendant lacks standing to challenge the search of the Roof Cellphone, because: (1) he, in fact, abandoned it; and (2) he lacks standing to challenge searches of the Rental Van’s contents. ECF 137 at 35-36. The Government further contends that, even if the Defendant maintained a reasonable expectation of privacy in the Roof Cell Phone, its contents are nonetheless admissible pursuant to the independent source doctrine, because federal agents ultimately sought and obtained a search warrant. Id. at 36-37. Regarding the federal warrants, the Defendant claims that the federal authorities only secured the warrants after obtaining the results of the SCPD’s unlawful forensic examination of the Roof Cellphone, so that the evidence must be suppressed as “fruit of the poisonous tree.” ECF 131-1 53.The Court finds that a hearing is required, because a disputed material fact exists, namely, the location of the Roof Cellphone at the time of its recovery. The Court previously explained why the Government’s standing arguments regarding the search of the Rental Van require an evidentiary hearing. See supra II.A.1.c. The Government’s remaining justifications for searching the Roof Cellphone rely on its contention that SCPD recovered the phone at the roof of the Lake Grove Residence, ECF 137 at 36-37, a fact to which the Defendant makes a non-conclusory objection. ECF 132 4. Indeed, the only facts put forward in the application for the federal warrant as probable cause to search the Roof Cellphone relate to the location of the phone’s recovery. ECF 131-10
