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UNITED STATES v. GARDNER

October 30, 1969

UNITED STATES of America,
v.
Norman GARDNER and Harvey Brown, Defendants



The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 Defendant Gardner moves for various forms of relief.

 He seeks to suppress, pursuant to Rule 41, F.R.Crim.P., a quantity of narcotics allegedly found in an apartment belonging to him. This search was conducted pursuant to a search warrant issued on August 1, 1969 by a United States Commissioner on the basis of an affidavit of a Special Agent of the Bureau of Narcotics. Defendant controverts the sufficiency of this affidavit to establish the requisite probable cause. This is an issue of law which may be determined from the face of the affidavit. *fn1"

 We set forth the affidavit of the Special Agent in full:

 
During June, 1969, a reliable informant told your deponent that Norman Gardener, [Gardner] 841 Longfellow Avenue, Bronx, New York was selling heroin in the vicinity of the Sunbright Bar, 163rd Street and Prospect Avenue. Gardener would receive a large supply of heroin and store it in Apartment 6G, 1815 Davidson Avenue, Bronx, New York. After Gardener received orders from addicts, he would go to his Davidson Avenue Apartment which he used as a "stash." He would obtain the amount of heroin he needed, and then return to the vicinity of the Sunbright Bar.
 
After pointing Gardener out, the informant stated that he had been in Apartment 6G, 1815 Davidson Avenue, Bronx, New York on several occasions and each time he observed heroin and various adulterating and packaging materials. The informant also stated that Gardener used a 1967 Blue Oldsmobile, license 3438JH to deliver his narcotics. A preliminary investigation by your depondent and other agents of the Bureau of Narcotics and Dangerous Drugs disclosed that Norman Gardener did live at 841 Longfellow Avenue, Bronx, New York and he was observed driving a 1967 Blue Oldsmobile, license 3438JH.
 
During July, 1969, on several occasions, your depondent observed Gardener drive up to the Sunbright Bar in the aforementioned 1967 Blue Oldsmobile where he was greeted by eight to ten persons who appeared to be drug addicts and were loitering in the vicinity. Gardener would have a conversation with these men, they would exchange something and then go into the Sunbright Bar. Your deponent has observed Gardener entering the building at 1815 Davidson Avenue, Bronx, New York. A check with Con Edison disclosed that the utilities for Apartment 6G were in the name of Lee N. Gardner. Thereafter your deponent spoke to other agents from the Bureau of Narcotics and Dangerous Drugs who informed me that they observed Norman Gardener leaving 1815 Davidson Avenue, Bronx, New York and drive to the Sunbright Bar where he was greeted by men who appeared to be drug addicts and were waiting for him. Gardener and the men exchanged something. These men thereafter departed and Gardener entered the Sunbright Bar.
 
The informant thereafter told your deponent that he was in Apartment 6G, 1815 Davidson Avenue, Bronx, New York on July 30, 1969 and observed approximately one quarter Kilogram of heroin, milk sugar, scotch tape, glassine envelopes and other adulterating and packaging materials.

 Standing alone the personal observations of the Special Agent do not suffice to establish probable cause. The reliability of this informant is therefore critical to upholding this search and seizure.

 In Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) the Supreme Court recently reversed a finding of probable cause because there was nothing in the affidavit to indicate where the informer had secured his information or to demonstrate that it was more than "a casual rumor circulating in the underworld." Here the informer told the Special Agent that he had on several occasions (including two days prior to the issuance of the search warrant) personally observed heroin and certain adulterating and packaging materials present in Gardner's Davidson Avenue apartment.

 Moreover, the informer's reliability was established by the nature and extent of the detail supplied by the informer and the independent corroboration thereof, which is far more significant and precise here then it was in Spinelli. There is not only corroboration that Gardner was using a specified apartment which was registered in his name and driving a specified automobile (similar to the entire extent of the independent corroboration present in Spinelli, which contained "no suggestion of criminal conduct when taken by themselves"), but also a relatively detailed description of a course of "abnormal activity" habitually engaged in by Gardner, which activity was verified by the federal agents in every respect. *fn2" See Spinelli v. United States, supra at 418, 89 S. Ct. 584; McCray v. Illinois, 386 U.S. 300, 302-304, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967).

 Accordingly, there being reason to believe that heroin was present in the apartment and, thus, probable cause for the warrant to issue, the motion to suppress is denied.

 Defendant next moves pursuant to Rule 6(e), F.R.Crim.P., for the disclosure of all the Grand Jury minutes herein. He has failed to show any particularized need in support of this blanket request for pre-trial inspection. Motion denied. See Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966); United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967); United States v. McCarthy, 292 F. Supp. 937, 942 (S.D.N.Y.1968); ...


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