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IN RE 2029 HERING ST.

January 3, 1979

In the Matter of A Motion for the Return of Property Seized Pursuant to Warrant at 2029 HERING STREET, BRONX, NEW YORK


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

I

 Introduction

 Vincent Liberti and Barbara Liberti, his wife ("applicants"), seek an order directing that certain property, purportedly seized pursuant to a search warrant, be suppressed as evidence and directing that said property be returned to applicants. See Rules 12(b)(3), 41(e), 41(f), Fed.R.Cr.P. An evidentiary hearing on applicants' motion was held on August 7, 1978.

 Rudy King, who, like Mr. Liberti, was an employee of Saks Fifth Avenue ("Saks"), informed Postal Inspector James J. Boyle that King had mailed packages to the Liberti home for approximately one year. Except for two packages, the contents and dates of mailing of such packages were unknown. It was known that one such package was mailed on June 23, 1978, but the contents of that package were unknown. A second package, mailed on June 29, 1978, was known to consist of a single brown box containing Estee Lauder cosmetic gift boxes. Inspector Boyle was advised by an Assistant United States Attorney that probable cause existed only as to that single box. Accordingly, a search warrant was sought by Inspector Boyle and issued by the magistrate with respect to only that one brown box.

 II

 The Search Warrant

 On July 10, 1978 Magistrate Leonard Bernikow issued a search warrant for the residence of Vincent and Barbara Liberti at 2029 Hering Street, Bronx, New York, on the basis of an affidavit by Inspector Boyle that he had reason to believe that "there is now being concealed certain property, namely one (1) brown cardboard box addressed to Mrs. Barbara Liberti, containing Estee Lauder cosmetic gift boxes, which are believed to constitute evidence of violations of Title 18, United States Code, Section 1341." *fn1"

 The affidavit of Inspector Boyle set forth that he had, for several weeks, been investigating possible mail fraud violations by Saks employees; that he had been informed by a Saks corporate security employee that the addressees of brown cardboard boxes prepared for mailing in Saks' delivery department and lacking invoices or other documentation were frequently the wives of Saks supply room or delivery room employees; and that several of such boxes, examined before delivery, were found to contain clothes, cosmetics, and other Saks property and merchandise. The affidavit stated that postal authorities had informed Boyle that a brown cardboard box addressed to Mrs. Liberti had been delivered to her at 2029 Hering Street, Bronx, on June 29, 1978, and that the Saks corporate security employee had told him that the box contained Estee Lauder gift boxes belonging to Saks. The affidavit identified Vincent Liberti as an employee of Saks who lived at 2029 Hering Avenue.

 III

 Execution of the Search Warrant

 Prior to the execution of the warrant, Inspector Boyle had a conversation with Postal Inspector O'Brien, who was an attorney and was in charge of the execution of the search warrant. Boyle told O'Brien that items other than the single box listed in the warrant could be seized if such other property was not properly in the Liberti residence. However, Boyle also told O'Brien that when the matter listed in the search warrant was found, the search was to cease.

 Four persons executed the search warrant: Inspector O'Brien, Postal Inspector Neil Schorr, Postal Inspector Carole Cassidy, and James Burger, the security operations manager for Saks. Burger participated in the execution of the warrant for the purpose of identifying any Saks merchandise found in the Liberti home.

 On July 10, 1978, at about 3:20 to 3:30 p.m., the three postal inspectors and Mr. Burger approached the Liberti residence. O'Brien rang the doorbell. The Liberti's son, 12 or 13 years old, responded, stated that his parents were not at home, and summoned his grandmother, Mrs. Lonacchio, who lived upstairs in a separate residence. Inspector O'Brien introduced the group to Mrs. Lonacchio and informed her that their purpose was to execute a search warrant. She became upset and refused them entry. Inspector O'Brien explained that they had a court order and had a right to be there, but that they would appreciate it if Mrs. Lonacchio would be there as a witness while the warrant was executed.

 Mrs. Liberti then returned home and was presented with the warrant. She too initially refused entry and was very upset. But she allowed admittance when Inspector O'Brien informed her that the search warrant was a court order and that he did not need her consent.

 Mrs. Lonacchio was present throughout the entire search. Mrs. Liberti consistently denied having any of the items listed on the warrant, and in fact those items were never found.

 During the search of the living area of the house Mrs. Liberti walked to a hallway closet, opened the closet door, and stated, "This is all I have." Numerous boxes were on the top shelf of the closet. Certain of the boxes were unmarked, while others were clearly marked as cosmetics. Burger identified the boxes as containing merchandise sold by Saks. The boxes were seized.

 After having searched the living area, the inspectors asked if there was a basement, and Mrs. Liberti pointed to a door. The basement was an area used in common by the Libertis and the Lonacchios.

 The inspectors also asked if they could search the unattached garage. Mrs. Liberti told him that she and her family had no access to the unattached garage and that the garage belonged exclusively to her mother and father. *fn2" Inspector O'Brien then asked Mrs. Lonacchio if she would permit a search of the garage. She agreed to the search.

 Inspectors O'Brien, Schorr, and Cassidy then proceeded to search the remainder of the Liberti's apartment, the basement, and the garage. Numerous boxes, tote bags, and cartons were discovered and seized.

 IV

 Applicants argue that the search and seizure exceeded the scope of the search warrant and that, therefore, the search and seizure were unconstitutional under the Fourth Amendment.

 The Government contends that the search and seizure were lawful. In support of its contention, the Government relies in part on the "plain view" exception to the Fourth Amendment warrant requirement and in part on the doctrine of consent. The Government argues that the "plain view" doctrine validates the seizure of all the items that were found in applicants' apartment and in the basement. The Government argues that the seizure of the items that were found in the unattached garage was validated by a consent to ...


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