The opinion of the court was delivered by: SWEET
Michael Kuntz is named in a three count indictment charging him with manufacturing and attempting to manufacture methylene dioxy amphetamine ("MDA") and amphetamine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b) (1)(B) and 846, and with possession with intent to distribute MDA in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). Kuntz now moves pursuant to Rule 41(e), Fed.R.Crim.P., to suppress certain physical evidence seized pursuant to a search warrant due to the insufficiency of the information provided and alleged material misstatements in the affidavit. The motion is denied.
The affidavit in support of the search warrant application was sworn to by Alfred Cavuto, a special agent of the Drug Enforcement Agency. A copy of the affidavit is annexed as Appendix A. Based on the affidavit, a federal Magistrate determined that there was probable cause to believe that chemicals and equipment used in the manufacture of amphetamines and methamphetamines were being concealed at Apartment 406, 83 Canal Street in Manhattan, and executed a search warrant for these premises. The search warrant permitted destruction of any lithium aluminum hydride found, due to the dangerous nature of this chemical. Cavuto searched the apartment, and recovered a large inventory of chemicals and equipment and documentary evidence of the purchase of these chemicals and equipment. Samples and photographs were taken of certain volatile or dangerous chemicals, and the remainder of these substances was destroyed.
The seizure of these items provided probable cause for the arrest of the defendant, Michael Kuntz, which was effected by DEA Agent Williams at 6:30 p.m. on November 27, 1979. A plastic bag and a metal can containing a powder, later determined to be MDA, were seized from Kuntz at the time of the arrest.
Kuntz claims first that the information set forth in the affidavit failed to establish probable cause, and second that Paragraph 10 of the affidavit contains a material misrepresentation which requires the voiding of the search warrant under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Kuntz's argument with respect to the absence of probable cause is rejected. In United States v. Jackstadt, 617 F.2d 12 (2d Cir. 1980), the Court of Appeals recently upheld the validity of a search warrant on facts strikingly similar to those presented in this case. The only averment in the Jackstadt affidavit of a material fact which was not present in Cavuto's affidavit was a statement that Jackstadt had previously been involved in a drug-related arrest. This absence is counterbalanced by several circumstances presented here which were not present in Jackstadt. In particular, Cavuto's affidavit detailed a prior purchase of lithium aluminum hydride by Kuntz under a different name, "Kaye," than that used on November 26 (P 8), the use of a false address when purchasing the hydrogen chloride at the chemical company (P 1), the provision of a different false address to a police officer in the Port Authority terminal (P 5), the chemical odors perceived by Cavuto on the fourth floor of 83 Canal Street (P 6), Cavuto's assistance in carrying the cannister to the doorstep of Number 406 (P 6), the painting over of the windows at that address (P 7), Kuntz's unusual behavior in extinguishing the light when Cavuto returned his umbrella (P 6), the detection by Williams of an ether smell outside the building (P 7) and the report by the rental agent that Kuntz rented two apartments under a third alias, "Michael Kay," and that the second apartment had been rented after tenants at the first apartment building had complained about intoxicated visitors, chemical odors and erection of a flue pipe by Kuntz (P 10).
Kuntz contends that several of these averments were improper and accordingly could not be considered by the Magistrate in assessing probable cause. First, Kuntz contends that the description of the prior purchase of lithium aluminum hydride (P 8) was "stale" and thus was improperly considered by the Magistrate. Under Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932), the facts presented in an affidavit must be sufficiently related to the time of issuance of the warrant to establish probable cause at that time. However, courts have held that when a continuing pattern of illegal activity is described in the affidavit, the issue of staleness must be evaluated liberally. United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978); United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). Here the averments of complaints about chemical odors and a flue pipe addressed to the rental agent by Kuntz's cotenants and Kuntz's rental of a new apartment (P 10) indicated continuing illegal manufacture of controlled substances. The report of Kuntz's prior purchase under a false name of a large quantity of lithium aluminum hydride, a substance used in the production of illegal drugs, supported the inference that the hydrogen chloride gas purchased on November 26 under a different alias was to be used in an ongoing drug manufacturing operation. Under these circumstances, the information concerning the prior purchase was not unduly stale.
Second, Kuntz argues that Cavuto's statement that he perceived "chemical odors" on the fourth floor of 83 Canal Street (P 6) is unacceptable since Cavuto did not state his qualifications to identify chemical scents and since the detection of merely general chemical smells, as opposed to the scent of a particular substance, cannot supply probable cause. The requirement that an affiant report his olfactory qualifications and designate a specific chemical odor has been applied only in situations in which odors are the sole factor establishing probable cause. United States v. Pond, 523 F.2d 210, 212-13 (2d Cir. 1975), cert. denied, 423 U.S. 1058, 96 S. Ct. 794, 46 L. Ed. 2d 649 (1976); United States v. Lewis, 392 F.2d 377, 379 (2d Cir.), cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968). In this case the detection of chemical scents was only one of the factors which supported probable cause. In view of the large variety of chemicals ultimately seized from Kuntz's apartment it would have been remarkable if Cavuto had been able to isolate distinctive aromas. Moreover, the Magistrate could reasonably infer that a DEA agent such as Agent Cavuto would be able to discern scents associated with the manufacture of controlled substances.
On the other hand, Kuntz correctly asserts that the alleged detection by Agent Williams of an ether odor on the outside of the building (P 7) is unacceptable. The affidavit failed to state any basis from which Agent Williams could have concluded that a smell perceived at street level from the exterior of the building emanated from a specific room located on the fourth floor. However, even purged of this speculative statement, the affidavit contained ample support for a finding of probable cause. United States v. Jackstadt, supra.
Kuntz contends that the recitals of statements made by the rental agent of the 83 Canal Street building to Agent Williams (P 10) are also not competent proof of probable cause, since the statements involve double and triple hearsay and since the affidavit fails to state a basis for the rental agent's reliability. The Court of Appeals has recognized that the requirement of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), that the affiant make a showing that an informant is reliable, is "addressed to the particular problem of professional informers." United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975). In Burke, the court upheld an affidavit which relied on information supplied by an observer, but which contained no recital of the observer's prior reliability. The court recognized that a contrary result would prevent the use of hearsay statements to support a warrant, as authorized by Rule 41(c)(1), Fed.R.Crim.P., whenever the statements are supplied by a witness, observer, or other disinterested source of information. In United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976), hearsay statements by "an identified bystander with no apparent motive to falsify" were held to support a search warrant, despite the absence of an allegation of prior reliability, where the informant "was not an anonymous paid informer." See also United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978).
In this case, as in the cited cases, the rental agent designated in the search warrant was not a paid informant, and had no apparent motive to lie. The rental agent could reasonably be expected to have been the recipient of complaints from Kuntz's cotenants and to have advised Kuntz of these complaints as part of his job duties. Under these circumstances, the affidavit was not defective for lack of a showing of reliability.
The fact that the averments concerning the rental agent constituted double and triple hearsay also does not render these averments incompetent. Multiple hearsay in an affidavit may be considered in establishing probable cause if, under all the circumstances, the hearsay statements can reasonably be said to be trustworthy. United States v. Agrusa, 541 F.2d 690, 694 (8th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S. Ct. 751, 50 L. Ed. 2d 759 (1977); United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972), cert. denied, 417 U.S. 917, 94 S. Ct. 2622, 41 L. Ed. 2d 222 (1974). The circumstances of this case support the reliability of the multiple hearsay. Cavuto received his information from DEA Agent Williams, the investigating officer, who in turn gained his knowledge from the rental agent, also a presumptively reliable source. The rental agent stated that he had received complaints from cotenants, that he had written a letter to Kuntz describing these complaints, and that, in response to the letter, Kuntz had rented a new room. The averments as to what the rental agent himself did, though they involved double hearsay, were sufficiently reliable to be considered by the Magistrate and supported a finding of probable cause under the circumstances of this case. See United States v. Fiorella, supra at 691-692. The averments concerning the complaints of cotenants constitute triple hearsay. However, it was not improper or unreasonable for the Magistrate to infer that tenants living near Kuntz would be likely to perceive unusual odors emanating from his apartment, a large number of visitors at all hours of the day, and the construction of a flue pipe to the roof of the building, and to complain to the rental agent about these offensive conditions. These reports were sufficiently reliable, under all the circumstances, to warrant consideration of them in assessing probable cause. The additional reports that Kuntz's visitors were intoxicated were unduly speculative, but were not material to a finding of probable cause.
The courts have emphasized that in determining whether probable cause was established, supporting affidavits should be read in a "commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745, 13 L. Ed. 2d 684 (1965), and that "in a close case any doubts should be resolved in favor of upholding the warrant." United States v. Jackstadt, supra at 14. "A magistrate's finding of probable cause is itself a substantial factor tending to uphold the validity of the warrant." Id.; see also United States v. Freeman, 358 F.2d 459, 462 (2d Cir.), cert. denied, 385 U.S. 882, 87 S. Ct. 168, 17 L. Ed. 2d 109 (1966). The competent evidence presented to the Magistrate in this case provided adequate support for a finding of probable cause to believe that criminal activity was being conducted in Room 406 at 83 Canal Street.
Kuntz's second line of attack on the search warrant is addressed to alleged material misrepresentations contained in paragraph 10 of the affidavit. Paragraph 10 incorrectly states that Kuntz first leased a room at 83 Canal Street and then, in response to the rental agent's warnings, leased the apartment at East 13th Street, while in fact the order was reversed. Kuntz also objects to the description of the Canal Street premises as an "apartment," since Room 406 is located in a commercial building. Kuntz claims that these errors constituted intentional or reckless misstatements which rendered issuance of the search warrant invalid under the test set forth in Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2685, 57 L. Ed. 2d 667 (1978). In Franks, the Supreme Court held that a search warrant issued on the basis of an affidavit must be voided if a defendant can demonstrate that the affidavit contains statements which are intentionally false, or were made with reckless disregard for the truth, and further, that purged of the false statements, the affidavit fails to support a finding of probable cause.
Kuntz has failed to satisfy the first branch of the Franks test. An examination of paragraph 10 of the affidavit demonstrates that the reversal of the order of leasing was neither intentional nor reckless. The true state of the facts-that the agents were seeking a warrant to search a room rented by Kuntz shortly after he had received complaints about chemical odors and frequent visitors at his 13th Street apartment-would have provided an equally strong foundation for a finding of probable cause as the circumstances described in the affidavit-that the agents wished to search a premises about which Kuntz had received complaints, following which he had leased a second room. As a result, Agent Cavuto had no reason to falsify the facts. See United States v. Kahan, 572 F.2d 923 (2d Cir. 1978), cert. denied, 439 U.S. 833, 99 S. Ct. 112, 58 L. Ed. 2d 128 (1979). In addition, Agent Cavuto may well have ...