The opinion of the court was delivered by: RAYFIEL
The defendant, Mario DiBella, moves under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress all evidence seized in his apartment at 35-15 80th Street, Jackson Heights, Queens County, New York, on March 9, 1959 by agents of the Federal Bureau of Narcotics, as well as any and all evidence gleaned therefrom, on the ground that the search and seizure was unlawful, being violative of the Fourth Amendment of the Constitution of the United States and of Rules 3 and 4 of said Rules.
The defendant bases his motion on the following three grounds:
1. that the warrant of arrest was invalid because the complaint on which it was based did not state facts sufficient to show probable cause;
2. that his arrest under said warrant was used as a pretext to make an exploratory search of the defendant's apartment; and
3. that the warrant was invalid because it bore the date October 6, 1958, while the complaint on which it was based was dated October 15, 1958.
As to the third ground, it is palpable that the error in date was inadvertent. Both the warrant and the complaint on which it was based, were originally dated October 6, 1958. The date on the complaint was changed in ink to October 15, when it was sworn to before Commissioner Epstein. The date on the warrant, however, was not changed and was thus signed by the Commissioner. This was clearly an oversight and should and does not affect the validity of the warrant, which obviously, was issued on October 15, 1958. As a matter of fact defendant's counsel, in the statement of undisputed facts contained in his brief, alleges '1. That on the 15th day of October, 1958 a warrant was issued * * *.' (Emphasis supplied.)
As to the failure of the complaint to state facts showing probable cause.
The complaint alleges on information and belief that 'the defendants, Mario DiBella and Samuel Panzarella, did on September 10, 1958, at Jackson Heights, Long Island, New York, within the Eastern District of New York, unlawfully sell, dispense and distribute a narcotic drug, to wit: approximately one ounce of heroin hydrochloride, a derivative of opium * * *.'
The following paragraph states 'That the source of your deponent's information and the grounds for his belief are your deponent's personal observations in this case, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics.'(Emphasis added.)
Doubtless the complaint was inexpertly drawn. It alleges, on information and belief, that the sale of the heroin took place on September 10, 1958, and then goes on to say that the source of the complainant's information and grounds for his belief are, among other things, his own observations. Obviously, if the sources of his information were his own observations, then he had personal knowledge of the facts.
I have read the statements of Agents Costa and Moynihan which are set forth in Appendix B and C, attached to the affidavit submitted in opposition to this motion by Assistant United States Attorney Charles L. Stewart. Those statements were originally attached to an application for a search warrant made before Commissioner Abruzzo, who denied the same. I have considered them as having been submitted in opposition to this motion.
Agent Moynihan's statement alleges that he had met on Samuel Panzarella, a codefendant of DiBella, who offered to sell him heroin, the sale to take place at 8:00 a.m. on August 26, 1958; that he met Panzarella in Manhattan at 6:00 a.m. on that day and was told by him that he wanted to call his source of supply, whereupon Panzarella made a telephone call, after which he and the agent drove to 79th Street, north of Roosevelt Avenue, in Jackson Heights, Queens, New York, where they parked; that Panzarella then left the vehicle, walked to 79th Street and 37th Avenue, and entered a green Chrysler automobile bearing New York license number 6971 NE; that he observed Panzarella leave that vehicle several minutes later at 79th Street and Roosevelt Avenue and return to the car in which he, the agent, was waiting, after which Panzarella handed him a glassine envelope containing a white powder, which subsequent tests proved to be an ounce of heroin hydrochloride. That on September 10, 1958 a similar series of events occurred: at 9:30 p.m. on that day he met Panzarella in Manhattan, was told by him that he would have to go to Jackson Heights to meet his source of supply, and after Panzarella made a telephone call they both went to 74th Street and Roosevelt Avenue; Panzarella then left the agent, met the defendant Mario DiBella, walked with him from 74th Street to 37th Road and then returned to the agent; they both drove back to Manhattan, and enroute Panzarella handed him a glassine envelope containing heroin hydrochloride, and stated to him that DiBella was his source of supply and had supplied the heroin which had been sold to the agent on August 26, 1958 and September 10, 1958.
Agent Costa's affidavit alleges that on August 26, 1958, at 7:30 a.m. he saw the defendant Mario DiBella leave the premises at 35-15 80th Street, Jackson Heights, enter his Chrysler automobile, license number 6971 NE, drive to 37th Avenue and 79th Street where he met Panzarella, who entered the car, and DiBella then drove to Roosevelt Avenue and 79th Street, where Panzarella left the car and walked to 78th Street, where he met Agent Moynihan, to whom he handed a small envelope the contents of which later tests showed to be heroin hydrochloride; that at 11:00 p.m. on September 10, 1958 he observed DiBella leave Apartment 42 at 35-15 80th Street, Jackson Heights, walk to Roosevelt Avenue and 74th Street, where he met Panzarella, and then walked with him to 76th Street near Roosevelt Avenue, where they separated, after which Panzarella met Agent Moynihan and sold him an ounce of heroin hydrochloride, which he stated he had obtained from DiBella.
It is evident from these statements that Agent Costa had personal knowledge of the events which led to DiBella's arrest. He so stated in the affidavit which he submitted in support of the application for the warrant which was issued by ...