The opinion of the court was delivered by: MOTLEY
Memorandum Opinion on Motion to Suppress
Defendant Vincent John Soviero was indicted on February 26, 1965 and charged, along with four co-defendants, with three counts of violating the federal narcotics laws. Title 21, United States Code, Sections 173, 174; Title 26, United States Code, Sections 4705(a), 7237(b). A bench warrant was issued for Soviero's arrest on the same date. On July 12, 1971, more than six years later, he was arrested pursuant to the bench warrant and entered a plea of not guilty the following day.
He was next indicted on July 27, 1971 for possession of marihuana with intent to distribute in violation of Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(B). The defendant entered a plea of not guilty on July 28, 1971.
The third indictment was filed on July 27, 1971 and charges Soviero with offering a bribe to narcotics agents in violation of Title 18, United States Code, Section 201(b). The defendant entered a plea of not guilty on July 28, 1971.
The last indictment, filed on August 23, 1971, charges defendant in three counts with: 1) possession of chattels stolen from interstate commerce, Title 18, United States Code, Section 659; 2) possession of firearms by a convicted felon, Title 18, United States Code, Sections 922(h), 924(a), 921(a)(3); 3) possession of a firearm which had not been registered to him as required by Title 26, United States Code, Sections 5861(d), 5871, 5845(a). Defendant entered a plea of not guilty on September 7, 1971. Defendant is released on a total of $100,000 bail.
With respect to the second and fourth indictments, defendant moved to suppress the marihuana and the firearms on the grounds that: 1) there was no probable cause for the issuance of the search warrant which resulted in the seizure of the marihuana; 2) the first warrant being invalid, the second warrant which resulted in the seizure of the firearms was likewise invalid; and 3) there was an illegal entry into his apartment which resulted in the issuance of the first search warrant.
On March 17 and March 20, 1972, the court held a suppression hearing in this case to determine whether the two search warrants which issued on July 14, 1971 were invalid. The court finds that the warrants were the fruits of an illegal search and, hence, invalid.
As set forth above, defendant was arrested on July 12, 1971 pursuant to a bench warrant issued in February, 1965 on Indictment 65 Cr. 174. At the time of his arrest, defendant had upon his person a receipt for the payment of rent under the name of James Colde for an apartment at 80 Charles Street, New York, New York. After his arrest, Soviero was interviewed in the United States Attorney's office in the presence of Special Agent Thomas Devine and admitted he had used several aliases, including Colde, that he was last employed in 1965 and that his present address was 350 Bleeker Street, New York, New York.
Defendant was re-arrested on July 13 at about 8:15 P.M. on a charge of paying $5,000 to Devine and another narcotics agent. Defendant gave as one of the reasons for the payment his desire to avoid the pursuit of any investigative leads found on his person at the time of his arrest on July 12, 1971.
Incident to the arrest, Agent Devine testified that he searched defendant and obtained from him keys one of which he found fitted the door to the lobby of the 80 Charles Street building. Following the arrest Agent Devine and Agent Ronald J. Caffrey went to 80 Charles Street sometime before midnight. Devine testified that they entered the building, without using the keys, and attempted to speak to the tenants. He testified that they went to 350 Bleeker Street and back to Charles Street several times during the early morning of July 14. Devine testified and alleged in his affidavit for the first warrant that during the early morning daylight hours he could view from the sidewalk the ground floor apartment at 80 Charles Street. He alleged further that he observed a large stack of brown paper bags which, from his experience as a narcotics agent, were of the size and description "normally used in the packaging and selling of large quantities of narcotics." He also alleged to have observed what he believed to be boric acid "commonly used in [the] cutting and adulterating of narcotics."
Based primarily on these observations, Agent Devine proceeded to obtain a search warrant which was issued at approximately 10:40 A.M. on July 14, 1971 authorizing a search for narcotics, narcotics paraphernalia, packaging equipment, money and customer records. The return on the first warrant included approximately 1/2 kilograms of marihuana, plastic bags, aluminum foil, glassine bags, measuring spoons, brown paper bags and a protective face mask.
A second warrant was issued on July 14, 1971 at approximately 3:20 P.M. based on an affidavit citing observations made during the search pursuant to the first warrant. The return on the second warrant included three Smith and Wesson pistols, one Burgo derringer, one.45 caliber pistol and a pistol silencer.
The court finds that agents illegally entered defendant's apartment at 80 Charles Street. Agent Devine stated, in his affidavit and testimony, that he observed the suspicious items contained in the 80 Charles Street apartment ...