The opinion of the court was delivered by: CURTIN
By motion to suppress, the defendants seek an order invalidating a search by Secret Service agents which resulted in the discovery of a printing press and other paraphernalia which the government charges were used by the defendants in a counterfeiting scheme.
The indictment contains four counts. The first charges that between September 1, 1971 and January 28, 1972 the defendants conspired to possess and conceal counterfeit notes. The second charges the defendants with making the counterfeit notes, and the third with possessing and concealing them. The fourth charges only John Pelitieri with transferring counterfeit obligations on January 3, 1972.
On January 28, 1972 when the agents searched a small room located on the second floor of a warehouse building at 1738 Elmwood Avenue, Buffalo, New York, they discovered the aforementioned printing press and other paraphernalia. The government justifies the search on the ground that it had a search warrant for the premises and also had received a consent to search this room from the owner of the building and from the tenant who had control of the room by virtue of a written lease.
After a hearing at which Secret Service agents, the landlord and the tenant testified, the parties had an opportunity to file briefs. The following constitutes the court's findings of fact and conclusions of law.
The principal contentions of the defendants are: First, that under the circumstances neither the landlord nor the tenant had the ability to give consent to the agents to search this room and, second, that the Magistrate improperly granted the search warrant.
The defendants have standing to move for suppression in this case. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Sacco, 436 F.2d 780, 782 (2d Cir. 1971); Spinelli v. United States, 382 F.2d 871, 879 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); and United States v. White, 268 F. Supp. 998 (D.D.C. 1966).
In late August or early September, 1971, Michael Abbarno went to James DiChristopher, one of the owners of the warehouse at 1738 Elmwood Avenue, and asked him if he could store some vending machines on the premises. DiChristopher gave him permission to use the front part of the second floor at a rental of $100 a month, but told him that it was only a month-to-month arrangement and that, if a tenant wanted the area, he would have to move out. The room, marked "Ladies -- First Aid," in which the printing press was eventually found was not part of the area originally set aside for Abbarno's use. Abbarno paid the nominal rental of $100 a month for two months. Near the end of October, DiChristopher told Abbarno that he and Peletieri would have to move out because the entire second floor was being rented. Abbarno told him that they would move out in a few days. A few days later, one of the defendants called DiChristopher and told him that they had moved some of their equipment into the Ladies and First Aid room, but would move it in a couple of days. DiChristopher took no action to move them out. The defendants paid no further rent, but they did place a lock on the door. DiChristopher did not have a key to this lock.
In late September or early October, 1971, Mr. DiChristopher and his associates entered into an oral lease with ABC Warehouse of Buffalo, Inc., covering the entire second floor. In late December, 1971, the same parties entered into a written lease for the rental period January 1 to December 31, 1972. This company, managed by William Dell, took immediate possession but, because he had no need for the small room, Mr. Dell did nothing to take possession of it. DiChristopher told Dell that the former tenants had some material stored there and would move it out soon. Dell said that he had no objection. Like DiChristopher, Dell had no key to the lock placed on the door by Abbarno and Pelitieri.
On January 3, 1972, the Secret Service arrested Salvatore Cieri for possession of $40,000 worth of counterfeit $20 bills. A few days after his arrest, on January 10, 1972, Cieri told Secret Service Agent Douglas Callen that he saw a printing press and other printing paraphernalia on the second floor of a warehouse at 1738 Elmwood Avenue. He also told the agent that he had been told that the press was used for making counterfeit money.
This statement was orally made and on the record before the court was the only information given to the Secret Service by Cieri on January 10. Later in the month, on January 21, 1972, Cieri, with his attorney present, gave a detailed signed statement to Agent Callen. The statement was not sworn to, but was witnessed by the agent and the attorney. In the statement Cieri explained that in September or October, 1971 he loaned $3,000 to Abbarno and Pelitieri for a counterfeiting scheme. He described a visit to the warehouse at 1738 Elmwood Avenue which occurred some time in October or November, 1971 in the following way:
. . . At this time John [Pelitieri], Mike [Abbarno] and myself went in Mike's car to a warehouse at 1738 Elmwood Avenue, Buffalo, N.Y. We entered the building and went to the second floor and John showed me in one of the offices where there was a printing press and some paper. At this time I also noticed a draftsmans board with a magnifying glass attached in the same office. John explained that this was the office being used and that they had changed the operation so that they would now print twenty dollar ($20) bills instead of ten dollar ($10) bills that they first told me about.
Approximately two weeks later, after I had again contacted John and Mike about the money, they drove me to the press, previously mentioned, at the location on Elmwood Avenue and we entered the office. At this time John presented me with a sheet which contained three (3) backs representing a $20 counterfeit note. John told me at this time not to worry about my money and that I was not being hustled and that I now had proof of what they were doing. Approximately two (2) weeks later, after a telephone conversation with John, I met with John and Mike at Tom's Texas Hots, 803 Tonawanda St., Buffalo, N.Y. At this time I was told by John and Mike that the money was almost ready and they told me that instead of the original plan they promised that they would give me $30,000 counterfeit plus $1,000 genuine as return on my investment.
About 2 days later on a Sunday, I called John and Mike and they told me the money was ready and to meet them at the warehouse. I drove to the warehouse and went in and met John and Mike. At this time they gave me $30,000 in counterfeit $20 FRN's from a chest in the printing office. At this time I observed a great deal more counterfeit money in this chest and John had explained to me that they had ...