The opinion of the court was delivered by: LASKER
Defendants are charged with conspiring to distribute and distributing heroin. They move for suppression of evidence obtained pursuant to warrants authorizing electronic eavesdropping and of evidence obtained pursuant to various physical searches authorized by warrant. In addition, Harold Hillard moves to suppress evidence obtained from a warrantless search of a postal locker used by him in his employment at the United States Postal Service.
On September 28, 1981, Judge John C. Demos of the Superior Court of New Jersey, Union County, signed a warrant authorizing the Union County Prosecutor's Office and the Drug Enforcement Administration of the Department of Justice (the "DEA") to intercept telephonic conversations of James Hillard, Harold Hillard and others over a telephone listed in the name of James Hillard at his New Jersey residence. The warrant was based on the affidavit of Captain Richard J. Mason of the Union County Prosecutor's Office ("the New Jersey affidavit"). This wiretap was voluntarily discontinued on October 2, 1981. On December 7, 1981, Judge Lee P. Gagliardi of this court signed another warrant authorizing Special Agents of DEA to intercept telephone communications of James Hillard, Harold Hillard and others over a telephone at Apartment 20-J, 1020 Grand Concourse, Bronx, New York, leased to James Hillard. This warrant was based on the affidavit of Special Agent Robert Stia of the DEA ("the federal affidavit") which repeated much of the same information as had been contained in the New Jersey affidavit, with the notable addition of transcripts of conversations intercepted pursuant to the earlier wiretap. On January 6, 1982, Judge Henry F. Werker of this court authorized an extension of the wiretap order and additionally authorized interception of oral communications within the apartment (a "bug"). On February 3, 1982, Judge Werker authorized a thirty day extension of the eavesdropping authorization. On February 11, 1982, several of the defendants in this case were arrested. On February 11 and 16, 1982, pursuant to search warrants issued by Magistrate Ruth V. Washington of this court, various residences of the defendants and other locations were searched. The search warrants were based on essentially the same information as was presented in the applications for the wiretaps, with the addition of transcripts of conversations intercepted pursuant to the wiretap warrants. In addition, a warrantless search of Harold Hillard's postal locker was conducted on February 11, 1982, following Harold Hillard's arrest.
The defendants contend that the state affidavit was insufficient to establish the requisite probable cause to support the issuance of the New Jersey wiretap warrant and that the excerpts from the New Jersey wiretap therefore are tainted and cannot be relied on to support the federal wiretap application. Since except for the excerpts from the New Jersey wiretap the federal application contains essentially the same information, defendants contend that the federal affidavit was also insufficient. The government has stated that it does not intend to introduce any state interceptions in its direct case (Government's Brief in Opposition to Omnibus Pretrial Motions, p. 6) but contends that, in any event, both the state application and the federal application, with or without the state excerpts, support a determination that probable cause existed to authorize the various intrusions.
The New Jersey affidavit describes the results of investigations conducted by the White Plains (New York Police Department, the DEA and the New York City) Police Department into the activities of James Hillard and others they suspected of participating in heroin trafficking. The investigations consisted primarily of physical surveillance, interviews with confidential informants, interviews with landlords and building managers, and a pen register and toll analysis of James Hillard's telephone at a former residence.
The salient information contained in the New Jersey application can be summarized as follows. First, several confidential informants told the investigators that James Hillard was the head of a major heroin distribution network. For example, informants A and B stated in February, 1980 that James Hillard was then the head of a multimillion dollar heroin distribution operation centered in the 143rd and 144th Street areas of Harlem in which he distributed one kilogram weekly through 50 to 100 distributors. According to A and B, the operation was known as "Black Sunday" because the street dealers bragged that it would be a black Sunday when they don't have heroin for sale. Informant C gave similar information in February and March, 1981, adding that James Hillard received the heroin from Leon and David Richmond, that Hillard supplied "Fox" with heroin at a store at West 143rd Street and Seventh Avenue, and that James Hillard's brother controlled heroin distribution in the area of West 127th Street and Eighth Avenue. In August, 1981, informant F told investigators that Hillard was then distributing one and one-half to two kilograms of heroin weekly, that "Fox" was a top agent for James Hillard, distributing about twenty bundles a day from a store at West 143rd Street and Seventh Avenue, that the heroin was known as "Black Sunday", and that Victor Berry, James King and Sterling Currie were customers of Hillard. Another confidential informant, Informant E, identified as an employee at Executive Towers at 1020 Grand Concourse, told investigators that there was no Ann Waters, in whose name the telephone at 1020 Grand Concourse, Apt. 20-J was listed, living in the apartment. Informant E also told investigators that he had seen James Hillard operating a number of vehicles, had on one occasion observed James Hillard leave his car parked in the garage with the door ajar and a pile of currency on the floor of the car, that for months (since Hillard moved to White Plains) the apartment had been empty of furniture, although still used by Hillard and others, that Victor Berry and Harold Hillard often visited the apartment and that the apartment was equipped with three pick-proof locks in addition to the two locks already on the door.
In addition, on February 28, 1980, investigators arranged for A and B to attempt to make a controlled purchase from James Hillard and, after giving the informants money, the investigators observed them meet with one Paul Zigler, who then left the area and met with James Hillard, and returned to A and B. A and B then returned shortly thereafter with a bundle of envelopes containing heroin. On February 21, 1981, Informant D contacted the investigators and stated that he or she had just purchased heroin from James Hillard, which the informant turned over to the investigators. Informant F told investigators on March 24, 1981, that earlier that day James Hillard had been distributing heroin. Informant F agreed to approach Victor Berry and offer "cut," the material mixed with heroin before street sale to increase volume, for sale under the surveillance of the investigators, who planned to put tracers in the material. F approached Berry and Mike King, who the informant stated declined the offer stating that they had all the cut they needed and were getting a package together. The affidavit states that Informants A, B, and C in the past gave information leading to the arrest and conviction of various persons, and that Informants D, E, and F had earlier given information which was independently corroborated.
In addition to the informant information, the investigators conducted extensive physical surveillance and investigation into rentals, apartment leases and the like. These investigations revealed that James Hillard often met with known drug violators, that he on occasion went into a building or a meeting empty-handed but emerged carrying a gym bag or package, that he did not apparently have legitimate employment and falsified applications for apartments as to his employment and his income, that he and those around him made unusually large cash expenditures, including the purchase in cash of a car for $ 10,000, that James Hillard drove several luxury cars registered in the names of his brothers, and appeared on the leasing agreements for several other cars, that James Hillard paid rent on three different apartments, often in cash, and that those in contact with James Hillard were also financially extravagant with either no apparent source of legitimate income or beyond their legitimate source of income. The affidavit also states that on occasion Hillard and others in contact with him apparently became aware of the surveillance of them and took evasive actions.
Finally, a pen register and toll analysis of James Hillard's telephone at his White Plains apartment revealed that various calls were made to and received from persons suspected of dealing in heroin or who had in the past been convicted of dealing in heroin. In addition, it was discovered that numerous collect calls from pay phones located within the area which investigators believed was covered by the Black Sunday operation were accepted at Hillard's telephone.
Defendants contend that the affidavit is insufficient to establish probable cause for believing that James Hillard or the other targets of the wiretap warrant were engaged in the distribution of heroin or that Hillard's telephone was used for that purpose. First, the defendants argue that much of the affidavit establishes merely that Hillard talked with known or suspected dealers in heroin, an insufficient basis upon which to find probable cause that Hillard himself was engaged in heroin trafficking. Second, defendants press the point that almost all of the informant information in the affidavit is of no value because it consists of conclusory statements that Hillard is the head of a major heroin distribution ring in a particular area and others aid him. According to defendants, relying on 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), the informant information lacks the requisite factual basis upon which the informants' information was based, and therefore is the equivalent of generalized rumor or gossip about Hillard and his associates. Third, defendants contend that Informant D's assertion that he bought heroin from Hillard in February, 1981, should not have been accorded weight because the informant's reliability was based on the statement that he had given information in the past that had been corroborated, rather than on his having given information leading to arrests and convictions, and because there were no corroborative details provided as to the informant's statement that he had just made a purchase of heroin from James Hillard. Finally, defendants argue that the "controlled buy" by Informants A and B in February, 1980, purportedly involving Hillard should not have been granted weight because the information was stale and therefore provided no basis for concluding that Hillard's telephone was being used for narcotics trafficking at the time of the warrant, the surveillance of the meeting between Hillard and Zigler did not reveal any package passing between them, there was no statement of the time elapsed between Zigler's contact with Hillard and his return to the informants with the heroin, and no factual basis was presented for the informants' assertion that Zigler obtained the heroin from Hillard.
The government responds that a wiretap application affidavit must be judged as a whole and that, while separate items taken in isolation may not support an inference of criminal activity, those facts, when viewed in relation to the rest of the information in the affidavit, do support the determination of probable cause. With respect to the information obtained from confidential informants, the government argues that the informants' reliability is demonstrated by the statements that they had given information leading to arrests or convictions in the past or that they had given information which was independently corroborated. The government further contends that the factual basis of the informants' information need not have been provided because the warrant here did not depend solely upon the informants' tips and that, in any event, the informants' personal knowledge is confirmed within the affidavit by statements that the informants' observed various meetings, or had earlier told the investigators of their plans. In addition, the government maintains that each of the informants' tips is corroborated by reports of other informants or by surveillance and inquiry by the investigators. The government offers by way of example the fact that three different informants named Victor Berry as a member of the "Black Sunday" distribution operation, the investigators saw James Hillard meet with Berry, and the investigators learned from an employee at 1020 Grand Concourse that Berry was a frequent visitor to the apartment leased by James Hillard. Moreover, the government emphasizes that the actual purchases of heroin from James Hillard and the negotiation over the sale of a cutting agent with Victor Berry corroborate the more general assertions by the informants. The government takes the position that the evidence of purchases from Hillard does not suffer from staleness because more recent information confirms the protracted and continuing nature of the heroin operation. The government also notes that, besides the informant information, the affidavit contains the results of surveillance, telephone pen registers and a toll analysis, ...