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UNITED STATES v. KARATHANOS

August 1, 1975

UNITED STATES of America
v.
Steve KARATHANOS and John Karathanos, Defendants



The opinion of the court was delivered by: WATSON

MEMORANDUM AND ORDER

 WATSON, District Judge.

 Defendants are charged with concealing, harboring or shielding from detection aliens not lawfully entitled to enter or reside within the United States in violation of 8 U.S.C. § 1324.

 Pursuant to Rule 41(f) of the Federal Rules of Criminal Procedure they move to suppress the evidence obtained as a result of a search of the premises of Steve's Pier I Restaurant (hereafter referred to as the premises), a search conducted by agents of the Immigration and Naturalization Service pursuant to a warrant issued by the federal magistrate on May 16, 1975. The search resulted in the arrest of seven individuals found on the premises. It is the suppression of evidence of their presence in the restaurant and any testimony which they might give as a result of their arrest which is the object of defendants' motion.

 Defendants argue that the issuance of the search warrant was not supported by probable cause that a federal crime had been or was being committed. Specifically, they contend the affidavit of an investigator of the Immigration and Naturalization Service (The Jacobs Affidavit), did not provide the magistrate with sufficient basis to believe that a crime had probably been committed.

 The text of the Jacobs affidavit reads as follows:

 
NEIL JACOBS, being duly sworn, deposes and says that he is a criminal investigator, employed by the Immigration and Naturalization Service of the Department of Justice, duly appointed according to law and acting as such.
 
Upon information and belief, there are a number of aliens who are not lawfully entitled to enter or reside within the United States, employed at and present within the premises known and operated as STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, within the Eastern District of New York. The presence of said aliens is a violation of Title 8, United States Code, Section 1325. Moreover, such aliens are subject to arrest pursuant to Title 8, United States Code, Section 1325, for having unlawfully entered the United States.
 
The source of your deponent's information and the grounds for his belief are:
 
1. During the past five years at least eleven illegal aliens have been apprehended on the premises known as STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, including but not limited to the following individuals: MICHAEL KATSIGIORGIS, DIMITRIOUS STROUPAS, EMANUEL ARETINES, VELIRIS KOSTAS, VICTOR LLANOS, KOASTANTINOS VOULGARIDIS, ROBERTO BARRENCHEA-CAMACHO, VICTOR ALEXANDRO LLANOS-ATUNEA, LADIGLAO VENEGAS-FLORES, HUGO LAGOS, and NIKOLOS TISSANOS.
 
2. On May 15, 1975, one ANTHANASIOS ATHANASIOU an admitted illegal alien, holding Greek citizenship, surrendered himself to agents of the Immigration and Naturalization Service at 20 West Broadway, New York, New York. After being advised of his rights, Mr. Athanasiou advised that he had been employed at STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, from October of 1973 till Sunday, May 11, 1975; that as of May 11, 1975 at least eight other persons known to him to be illegal aliens were employed at STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK. That during the last year and a half he has resided in the basement of said restaurant with eleven other individuals in six (6) foot by six (6) foot cubicles. That at least six of the eleven individuals residing in the basement at 33 Bayville Avenue, Bayville, New York are known to him to be illegal aliens.
 
WHEREFORE, your deponent respectfully requests that a warrant issue to your deponent or any other criminal investigator employed by the Immigration and Naturalization Service of the Department of Justice, authorizing him or them to enter with proper assistance the premises known as STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK and there to search for the above described aliens.

 It is my opinion the information supplied in this affidavit is less than that which could provide a substantial basis to believe that "illegal" aliens were probably to be found on the premises proposed to be searched. Without a substantial basis to believe the object of the search will probably be found on the premises proposed to be searched, the search warrant should not issue. Jones v. U.S., 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).

 There has been an initial dispute as to precisely what crime or "illegality" the Jacobs affidavit had to indicate. Defendants have argued that probable cause had to exist to believe a violation of 8 U.S.C. § 1325 had occurred. Such a violation would be limited to entering the United States at a place other than a designated entry point or by eluding immigration inspection or by obtaining entry by making false representation. The government argues that probable cause to believe that any "illegality" existed in an alien's status would justify the issuance of a search warrant. Such an "illegality" might arise from staying on beyond the term of legal visa such as would be held by a tourist or student. The government bases its position either on the tenuous theory that any "illegality" in an alien's status gives reason to believe a ...


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