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November 5, 1982

JOSE MARTINEZ-TORRES, et al., Defendants

The opinion of the court was delivered by: MOTLEY

MOTLEY, Chief Judge.

 Indictment 82 Cr. 489 *fn1" charges thirteen defendants in twelve counts. Count One charges defendants Jose Martinez-Torres, Anthony Anzalone, Arturo Alamo, Ramon Santiago-Colon, Ramon Molina-Santiago, Nancy Medina, Jose Calvente, Nelson Soto, John Doe, *fn2" Pablo Rodriquez, Georgina Rodriques-Varga, Iris Norma Rodriquez, and Evelyn Soto with conspiracy to violate the Federal Narcotics Laws, in violation of 21 U.S.C. §§ 812, *fn3" 841(a), *fn4" and 841(b) (1) (A). *fn5" Count Two charges defendant Torres with managing a continuing criminal enterprise in narcotics in violation of 21 U.S.C. § 848. *fn6" Counts Three and Four charge various defendants with possession with intent to distribute cocaine and heroin. Count Five charges various defendants with conspiracy to violate the federal firearms law in violation of 18 U.S.C. §§ 924(c) (1) and 924(c) (2). *fn7" Counts Six, Seven, and Eight *fn8" charge Torres with use of firearms to commit felonies, including the use of various high caliber automatic pistols, a semi-automatic submachine gun and a submachine gun and silencer, in violation of 18 U.S.C. §§ 924(c) (1) and 924(c) (2). Counts Nine through Twelve charge Torres with failure to comply with the National Firearms Registration and Transfer Record as well as possession of a firearms not identified by serial number, all in violation of 26 U.S.C. §§ 5861(d) *fn9" and 5871. *fn10"

 Defendants Torres, Medina, and Soto have moved under Federal Rules of Criminal Procedure 41(f) and 12 to suppress all physical evidence obtained as a result of the searches of Apartment 5B at 2526 Bronx Park East and the third floor of premises known as 774 East 236th Street, both in Bronx County, New York. For the reasons discussed below, this motion is denied.

 A. Findings of Fact

 On the 4th and 5th of October 1982, an evidentiary hearing was held at which the following facts were established:

 For a period of approximately two months, Special Agents of the Drug Enforcement Administration (DEA) had been receiving information from a confidential informant, Luis Colagero Vizzini. Vizzini had been employed by Torres as a bodyguard. As part of his duties, Vizzini accompanied Torres at all times to watch for his safety. Based upon personal observation, Vizzini told Special Agent Marano that Torres headed an enterprise which "cut" *fn11" and distributed millions of dollars of drugs, principally heroin. Vizzini reported to the DEA Special Agents that he had recently seen in Apartment 5B at 2526 Bronx Park East (Apartment 5B), large quantities of heroin, dilutents, cutting materials, including scales and bags, ledger books, ammunition, handguns, and two machine guns. He identified individuals who cut heroin there and used the apartment as a base for the large-scale distribution of narcotics. He advised the Special Agents that the occupants of Apartment 5B used the apartment to traffic in narcotics and were always heavily armed.

 The information reported by Vizzini was corroborated by the Special Agents in two ways. First, Special Agent Federick Marano, who headed the investigation, personally observed people entering and leaving at the 2526 Bronx Park East address that matched descriptions given by Vizzini. Second, a DEA undercover agent was invited by Torres into Apartment 5B about a week before the arrests and searches occurred on July 2, 1982. The undercover agent in turn confirmed the descriptions given by Vizzini.

 At approximately 10 p.m. on July 1, 1982, Vizzini informed Marano by telephone that several individuals had just left Apartment 5B after cutting a quantity of heroin and that money, drugs and two machine guns were then in the apartment. Marano arrived at 2526 Bronx Park East (the building) at approximately 11 p.m. As he parked his car, Marano saw a yellow Ford, which Torres had been observed driving on several occasions, pull to the curb nearby on the same street. Marano then observed Torres and his wife Nancy Medina leave the car and enter the building. Shortly, Marano was joined in his car by Special Agent Tom Ward. *fn12" At approximately 11:30 p.m., Marano and Ward observed two men, defendants Colon and Santiago, leaving the building. One of the men was carrying a brown paper bag. *fn13" The two men entered a gray Mercury automobile and drove to the vicinity of Watson Avenue in the Bronx where the car stopped. Marano and Ward, who had followed the two men to Watson Avenue, then saw Colon and Santiago leave the car. At approximately 12:30 p.m., the two men again appeared on the street and entered their car at which point Marano and Ward placed them under arrest. Marano and Ward were then joined by another agent and all three agents proceeded to search Colon, Santiago, and the Mercury. The agents failed to recover the brown paper bag. *fn14"

 The agents then drove the two men to the parking lot of a McDonald's restaurant located one block from Apartment 5B. At that point, Marano received a transmission on the radio from other DEA agents who had arrived at 2526 Bronx Park East. The transmission described two men, Torres and Vizzini leaving the building and entering a yellow Ford automobile. Marano instructed the DEA surveillance team to follow Torres and that he and several DEA surveillance units would join in the pursuit of the Ford. The DEA agents followed the Ford for approximately five blocks before Torres, the driver of the Ford became aware that he was being followed. When he arrived at 213th Street in the Bronx, Torres engaged in a series of evasive turns, accelerating his vehicle to a speed of about 60 miles per hour in a 30-mile-an-hour zone. When Torres reached White Plains Road, he made a right turn. He then handed Vizzini his gun. Vizzini, at the direction of Torres, threw out both Torres's gun and his own gun. Ken Johnson, one of the DEA agents following the two men, saw objects leave the car window, but it was not determined until later when the objects were recovered that guns had been thrown out of the Ford. Torres continued along White Plains Road until he arrived at Gun Hill Road where he made a right turn and headed towards the Bronx River Parkway. Before Torres reached the entrance to the highway, he stopped at an intersection and waited approximately three to four minutes to allow a woman and her child to cross the street. While Torres was stopped, a Ford Granada driven by Ward pulled in front of the yellow Ford. As the other DEA vehicles arrived, Marano, armed with a shotgun, ordered Torres and Vizzini out of their car. Both men were searched, handcuffed, and arrested. Santiago, Colon, and Vizzini were all placed in the yellow Ford and Torres, with his wrists handcuffed behind him, was placed alone in the backseat of the Ford Granada driven by Ward. All of the DEA cars then drove to the McDonald's parking lot. In the parking lot, Marano left his car and entered the Ford Granada. Before Torres said anything to him, Marano, speaking in English, identified himself as a federal agent and then read Torres his Miranda rights. After each right was read, Marano asked Torres if he understood what he had just heard. Calmly and speaking in English, Torres, who is forty years old, and has been arrested three times previously and convicted twice, *fn15" answered "yes" to each question. *fn16" Marano and Torres then had a discussion in English lasting approximately ten minutes. At all times during this discussion, Marano's gun was holstered and out of sight. *fn17" No other agents were present.

 In this discussion, which occurred at approximately one a.m. on July 2, 1982, Marano told Torres that the DEA agents wished to enter Apartment 5B that night. He advised Torres that a DEA undercover agent had been inside Apartment 5B, had described the drug activities, the dangerous weapons and ammunition inside, and that the DEA intended to obtain a search warrant. Marano further said that although he could obtain a search warrant (because of his knowledge of the existence of weapons in that apartment), he would prefer to enter peaceably with Torres' consent and in his presence. Torres informed Marano that his wife and baby were in the apartment and that he was concerned for their safety. Marano replied that he was aware that there were women and children in the apartment and that injury to either the DEA agents or the occupants of the apartment could be avoided. Torres then stated that if he could be assured that no one would be harmed, then he would agree to have the agents enter the apartment. Marano assured Torres that if at all possible no one would be harmed. At that point Torres calmly stated in English that he would take Marano into Apartment 5B.

 Marano then led the team of DEA cars to the building located one block from the McDonald's parking lot. Marano, Torres, and several other agents exited their vehicles and entered the building. Led by Marano, the DEA team and Torres climbed the stairs to the fourth floor. There Marano assigned several agents to the roof of the building and instructed others to guard the fire escape, kitchen and bedroom windows once the team was inside the apartment. Once these final assignments were given, the DEA team and Torres ascended to the fifth floor. Once in front of Apartment 5B, Torres shouted through the closed door asking the inhabitants to open the door allowing the agents to enter with him. As soon as Torres stated that federal agents or police were with him, the agents heard scuffling, anxious voices, and rapid footsteps from inside the apartment. Then Marano asked Torres to let the agents into the apartment. Torres responded by motioning to a ring of keys attached to his belt by a key chain. Marano took the ring of keys and held up one key at a time to Torres who still had his wrists handcuffed behind him. Torres nodded when Marano held up the right key. Marano then placed the key in the lock and opened the door. Torres and Marano entered the apartment together followed by five or six agents who had their guns drawn. Once inside, Marano immediately ordered the inhabitants to remain stationary and to stop whatever they were doing while the other agents went from room to room searching for any inhabitants who were armed. Marano and Agent Nargi walked to the kitchen and saw two women seated around the kitchen table, Norma Rodriquez and Evelyn Soto. In the center of the table was an opened brown paper bag. Nagri approached the table and looked into the bag. In the brown bag was a package of white powder and a large number of dollar bills.

 Marano and Nagri then performed a field test *fn18" on the white powder and determined that the substance was heroin. Thereafter, Marano went from the kitchen into a bedroom where he saw a young boy asleep on a bed. Turning on a lamp, Marano saw several boxes of ammunition of various calibers and an Ohaus scale supported by shelves on one wall. On the opposite wall was a cabinet with glass panelled doors supplied with large glass jars filled with a white powder. Laboratory analysis later determined that the substance was quinine, a heroin dilutent. On the right of the doorway were several large cardboard boxes which were approximately 4 1/2 feet in height and 2 feet in width containing thousands of wax paper glassine envelopes with the name "La Tumba," the Spanish word for tomb, stamped on them. *fn19" At that point, Marano called Assistant United States Attorney Richard Martin and informed him of the entry into Apartment 5B. Martin and Marano then placed a conference telephone call to Magistrate Kent Sinclair in order to apply for a telephonic search warrant under Fed. R. Crim. P. 41(c) (2). *fn20" Based upon oral testimony, the transcription of which is set out in the margin, *fn21" Magistrate Sinclair issued the search warrant which was subsequently executed.

 B. Discussion

 Defendant Torres, Medina, and Soto, *fn22" have moved under Fed. R. Crim. P. 41(f) and 12 to suppress evidence seized at Apartment 5B, 2526 Bronx Park East. *fn23" Defendants contend that the search warrant was illegally obtained because it was based upon an affidavit which failed to provide probable cause. According to defendants, the affidavit is deficient for two reasons. First, that portion of the affidavit which reports the Special Agents' "plain view" observations *fn24" under the doctrine established by Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), was improperly considered by the magistrate because the agents did not have Torres's consent to enter Apartment 5B. Second, purged of these plain view observations, the remainder of the affidavit which relates the information provided by the confidential informant *fn25" and the corroboration of that information *fn26" does not provide probable cause since it fails the dual test of Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969). If the search was constitutionally impermissible, the tainted evidence is inadmissible at trial. Weeks v. United States, 232 U.S. 383, 393, 58 L. Ed. 652, 34 S. Ct. 341 (1914).

 The Government contends that the DEA agents did have Torres' consent. However, assuming the agents did not have consent, the remainder of the affidavit provided sufficient probable cause to justify the issuance of the warrant. United States v. Lace, 669 F.2d 46, 49 (2d Cir. 1982) (ultimate inquiry on motion to suppress is not whether underlying affidavit contained allegations based on illegally seized evidence, but whether, putting aside all tainted allegations, lawful information in affidavit suffices to show probable cause); United States v. Agapito, 620 F.2d 324, 338 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980); see United States v. Giordano, 416 U.S. 505, 554-56, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974) (Powell, J., concurring in part and dissenting in part); see e.g., James v. United States, 135 U.S. App. D.C. 314, 418 F.2d 1150, 1151 (D.C. Cir. 1969) ("when an affidavit in support of a search warrant contains information that is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the issuance of a warrant"); United States v. Epstein, 240 F. Supp. 80, 82 (S.D.N.Y. 1965) (Weinfeld, J.) ("When a warrant issues upon an affidavit containing both proper and improper grounds, and the proper ground -- considered alone -- are more than sufficient to support a finding of probable cause, inclusion of the improper grounds does not vitiate the entire affidavit and invalidate the warrant"). Since this court agrees with the Government's argument, the next step in the analysis is to determine whether the untainted portions of the affidavit supply probable cause.

 1. The Application of the Aguilar-Spinelli Test

 Purged of its purportedly tainted portions, the affidavit states:

During the past three (3) weeks I and other fellow agents have received information from a confidential informant whose reliability has been established previously and has been established by the investigation conducted in this case that the premises at 2526 Bronx Park East have been and currently are being used as a storage location for heroin, weapons and ammunition, narcotics cutting material, money and records. At approximately 10:00 p.m. on July 1, 1982 I received further information from this informant to the effect that a large number of people had just left the subject premises after cutting one (1) to two (2) pounds of heroin and that there was presently money, drugs and two (2) machine guns in the apartment. I proceeded to 2526 Bronx Park East, Apartment 5B, and placed the two individuals under arrest just after they had left Apartment 5B. As we approached the two individuals to question them, two (2) handguns were thrown out of the vehicle they had entered after they left Apartment 5B. . . . The confidential informant has told us that several other people are expected to arrive this morning and that they are armed.

 It is well settled that probable cause may be established by hearsay evidence. Fed. R. Crim. P. 41(c); Franks v. Delaware, 438 U.S. 154, 165, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960). However, the magistrate must have a substantial basis for crediting the hearsay. United States v. Harris, 403 U.S. 573, 581, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971); Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960); United States v. Morill, 490 F. Supp. 477, 478 (S.D.N.Y. 1980). It is beyond dispute that a substantial basis for crediting the hearsay is established if the affiant sets forth in the warrant application 1) "some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were" and 2) "some of the underlying circumstances from which the officer concluded that the informant was 'credible' or his information 'reliable.'" Spinelli v. United States, 393 U.S. 410, 413-414, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978); Mapp v. Warden, New York State Correctional Institution for Women, 531 F.2d 1167 (2d Cir.), cert. denied, 429 U.S. 982, 50 L. Ed. 2d 592, 97 S. Ct. 498 (1976); United States v. Karathanos, 531 F.2d 26 (2d Cir.), cert. ...

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