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September 30, 1974

Steve POND and David G. Fanelli

Pierce, District Judge.

The opinion of the court was delivered by: PIERCE


PIERCE, District Judge.

 The defendants herein have been charged in a two count indictment with conspiracy to violate federal narcotics laws and with illegal possession of approximately 77 pounds of marijuana. Pursuant to Rule 41 of the Fed.R.Crim.P. both defendants have moved to suppress the evidence on the ground that it was seized under a defective search warrant. Defendant Pond has also moved to suppress post-arrest statements on various alternative grounds. An evidentiary hearing was held relating to these matters.

 A. Motion to Suppress the Evidence

 It appears that a search warrant was issued by a Magistrate on December 6, 1973 based upon the affidavit of George Sweickert, a Special Agent for the Drug Enforcement Administration (DEA). The affidavit alleged that the affiant had received his information from another agent in California. The California agent had reported that he in turn had received information from an unnamed source to the effect that one Bill Pond had checked for transportation aboard a train at the San Diego Amtrak station a blue-gray suitcase and a footlocker containing a large quantity of marijuana. The informant claimed to have been certain that he had detected the odor of marijuana emanating from the baggage. In addition, the affidavit recited that based on his "past experience, skills and the indicators developed such as the disproportionate ratio of baggage weight to size" the informant had concluded that a large quantity of marijuana was being transported on the train. The informant also relayed a description of defendant Pond, the clothes he was wearing, the numbers of the baggage claims tickets he had received, and the estimated time of arrival of the train in New York City. All this information was contained in the affidavit. In addition, paragraph six of the affidavit set forth allegations tending to establish the grounds for belief in the sources' reliability. See copy of affidavit below. *fn1"

 On the next day, armed with this search warrant, several DEA agents proceeded to Penn Station where the train was scheduled to arrive. A warrant for Pond's arrest had also been obtained.

 Two of the agents stationed themselves in the baggage claim area at Penn Station in New York City where they posed as baggage claim employees. One of these agents executed the warrant by opening the footlocker. The blue-gray suitcase was not opened. Other agents observed Pond as he alighted from the train from San Diego. Pond was met at the station by co-defendant Fanelli and both were followed as they walked together to the baggage claim counter. Pond was carrying a maroon suitcase with white trim not mentioned in the search warrant. Apparently when Pond reached the baggage claim counter he presented his claim stubs and collected the blue-gray suitcase and the footlocker. Pond and Fanelli then left the train station with Pond carrying the footlocker and Fanelli the two suitcases. Shortly thereafter, they were both arrested. All three items of luggage were then taken to the DEA offices where they were opened. The footlocker proved to contain 19 bricks of marijuana and the maroon and blue-gray suitcases, 12 and 13 bricks of the same substance, respectively. The bricks had each been wrapped in red and brown paper and were also enclosed in plastic material.

 Shortly after the hearing commenced the Court ruled that the affidavit in support of the search warrant was legally sufficient on its face to support a finding of probable cause for the issuance of the search warrant. The standards employed in making this ruling were those enunciated by the Supreme Court in the so-called "two-prong" test in Aguilar v. United States, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under this test an affidavit based solely on the hearsay report of an unindentified informant must disclose the facts on which the informant relied to base his conclusions that the drugs were where he claimed them to be and the circumstances from which it was concluded that the informant was reliable. Id. at 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723.

 The Sweickert affidavit revealed that the informant had smelled the marijuana and had also used another "indicator", i.e., the disproportionate ratio of baggage weight to size to buttress his conclusion that the baggage contained marijuana. This particular informant was not unknown to the authorities and he had proven his reliability on a number of other occasions in the past. It was averred that the informant had an acute sense of smell which had "been invariably accurate in the past detection of marijuana in similar circumstances" to those in this case. Two specific examples were cited to reaffirm the informant's reliability.

 Having read this affidavit "in a commonsense and realistic fashion" United States v. Harris, 403 U.S. 573, 577, 91 S. Ct. 2075, 2079, 29 L. Ed. 2d 723 (1971) citing United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965) this Court concluded that the Aguilar requirements had been met.

 Faced with this ruling, the defendants' attack necessarily centered on the accuracy of the statements contained in the affidavit. In this regard, this Court was more than liberal in proceeding to a hearing on this issue without requiring the defendants to make an initial showing of the existence of falsehood in the affidavit or other imposition on the Magistrate. United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S. Ct. 1149, 25 L. Ed. 2d 412 (1970). Be that as it may, it soon appeared early at the hearing that there was at least some minimal basis for the defendants' position. Thus Special Agent McCravy (the California agent) testified that contrary to what the affidavit indicated he had not been told that the informant had partially based his conclusion that there was marijuana in the baggage on the disproportionate ratio of baggage weight to size. Subsequent efforts by the government to offset this testimony were, in this Court's opinion, unsuccessful. A reading of the transcript of the hearing discloses that the discrepancy between this testimony and the allegations in the affidavit was not resolved. Accordingly, I find that there was indeed a misrepresentation in the affidavit and, in the absence of contrary testimony, that the defendants have shown that the informant had not in fact based his report on the disproportionate ratio of baggage weight to size as alleged in the affidavit. However, there has been no evidence that the misrepresentation was intentional. On the contrary, I find that at the most it was negligently made. The other allegations of misrepresentation -- concerning the agents' basis for giving credence to the informant's report -- the Court finds without merit as not supported by the evidence adduced during the hearing.

 Having found a misrepresentation, the issue presented is whether the misrepresentation is of such a character that the search warrant must be invalidated.

 In its recent decision in United States v. Gonzalez, 488 F.2d 833, 837-838 (2 Cir. 1973) the Second Circuit discussed the standards to be applied when a discrepancy in a supporting affidavit to a search warrant has been established. The Court noted that three other circuits have held that "when the truthfulness of the facts underlying a warrant has become suspect, the warrant will be set aside and the evidence derived from it suppressed where there is a showing that the affiant has made a material and knowing misstatement in the affidavit." Id. at 837. The Court also took note of other variations on the standard. Thus, under a stricter view, the warrant should be set aside if a material misrepresentation is negligently made. In Gonzalez the Court was not constrained to adopt one particular test since it found the misrepresentation to have been non-material and negligently made. Nevertheless, this Court feels that the Gonzalez decision points the way to a proper resolution of the question presented here.

 The pivotal issue in this case is whether the misrepresentation or the misstatement in the affidavit was "material", that is, whether it was of such a nature that were it not found in the affidavit, no finding of probable cause ...

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