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UNITED STATES v. SANTARSIERO

June 1, 1983

UNITED STATES of America
v.
Rocco SANTARSIERO, Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

 HAIGHT, District Judge:

 Defendant Rocco Santarsiero was indicted on charges of violating the federal laws with regard to the production and use of counterfeit credit cards. This opinion addresses defendant's motions, in advance of trial and pursuant to Rule 12, F.R.Cr.P., for an order suppressing from use in evidence certain items removed by the police from his residences in Arizona and New York. Defendant also seeks the return of certain of the items removed from his New York apartment pursuant to Rule 41(e), F.R.Cr.P. For the reasons stated, defendant's motions are denied.

 The Arizona Search

 Defendant moves to suppress the items seized during the search of his Arizona residence, contending that the supporting affidavit does not provide the requisite probable cause to believe that the items sought would be found in the localities to be searched. He argues that "the affidavit of Det. Hill supplies not one iota of hard evidence that contraband or instrumentalities of a crime were located in the defendant's house or vehicle." (Brief at 4-5). Defendant concludes that "to uphold the instant search warrant would be tantamount to finding that probable cause to arrest an individual creates probable cause to search the person's house, car, or office." (Brief at 5).

 Probable cause to arrest an individual does not, in and of itself, provide probable cause to search that person's home or car. Thus, an arresting officer is not authorized to search beyond the limits of a search incident to that arrest. See Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1968). A search beyond those limits must be authorized by a warrant based on a separate showing of probable cause. Here, the Arizona police obtained a warrant before they searched defendant's home and car. The dispositive question is whether the affidavit in support of that warrant provided the issuing judge with sufficient facts to permit a finding of probable cause that the evidence sought would be found in defendant's home or car.

 Certain established standards guide this Court's review of the issuing judicial officer's finding of probable cause. First, it is by now almost axiomatic that the affidavit offered in support of a warrant should be construed "in a common-sense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965); see also United States v. Kahan, 572 F.2d 923, 929 (2d Cir.), cert. denied, 439 U.S. 833, 99 S. Ct. 112, 58 L. Ed. 2d 128 (1978), rather than assessed in a piecemeal or technical manner. United States v. Abrams, 539 F. Supp. 378, 386 (S.D.N.Y.1982). Further, an issuing judge's finding of probable cause is itself a substantial factor tending to confirm the warrant's validity on review. United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.), cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); United States v. Perry, 643 F.2d 38, 50 (2d Cir.), cert. denied, 454 U.S. 835, 102 S. Ct. 138, 70 L. Ed. 2d 115 (1981), and, in a close case, "any doubts should be resolved in favor of upholding the warrant." Jackstadt, supra, 617 F.2d at 14. In brief, the issuing judge's determination is to be viewed flexibly, deferentially, and with an eye to encouraging rather than discouraging the use of warrants by law enforcement officers. Ventresca, supra, 380 U.S. at 109, 85 S. Ct. at 746 (1965). With these standards in mind, I turn to the sufficiency of the warrant now before the Court.

 The warrant challenged by defendant was issued by a state court judge in Arizona on March 9, 1983. The warrant authorized a search of the premises at 5017 N. 78th St. in Scottsdale, Arizona, and of a white 1983 Cadillac No. BFJ-235, for evidence of "fraud scheme/artifice" committed by Jeffrey Steven Steele. *fn1" The evidence sought, as set forth in the warrant, consisted of:

 
"1) Any receipts related to credit card usage on American Express Card # 3710-117264-31008
 
"2) Any American Express Cards under any other names and/or numbers, or blank cards
 
"3) Any embossing equipment
 
"4) Any credit card subscriber lists."

 The affidavit in support of this warrant, submitted by Detective R. M. Hill, discloses the following facts. Earlier that day, March 9, 1983, a man had entered the Ello Caine Travel Agency in Scottsdale, Arizona and attempted to purchase airline tickets for a flight to New York using an American Express Card No. 3710-117264-31008 in the name Roy Raymond. (para. 1). Ms. Ello Caine, the travel agent, became suspicious because the customer had a "raspy voice" as did the person who two months earlier had purchased airline tickets using a credit card which proved to be counterfeit. Id. Ms. Caine immediately telephoned American Express, and an American Express employee contacted Roy Raymond, the cardholder, in New York. Mr. Raymond stated that he was in possession of his credit card. (para. 2). American Express then advised Ms. Caine that a fraud was in progress and that she should retain the credit card and obtain whatever information from the customer that she could. (para. 3).

 At this point, the customer became nervous, attempted unsuccessfully to regain his credit card, ran out of the store to his car, and drove south nearly running down two pedestrians. (para. 4). Ms. Caine had followed the customer out of the travel agency and she observed that his car was a new, white, four-door Cadillac with Arizona license number BFJ-235. Id. The police then traced this license number and learned that it was issued for a Cadillac sedan to Jeff Steele, 5017 N. 78th St. (para. 5). Proceeding to that address approximately ten minutes after the events in the travel agency, the police found the car in a carport, unoccupied with the engine still warm. (para. 6). The police then questioned a neighbor and the local postal carrier and learned that the resident at that address was from New York and matched the description of the customer at the travel agency provided by Ms. Caine. (paras. 7-8). The police rang the door bell and knocked on the door of the residence, and while they heard noises from within, no one opened the door. (para. 9).

 Probable cause, as its name suggests, deals in probabilities, not in certainties. Probable cause to believe that certain items will be found in a specific location need not be based on direct, first-hand or, as defendant describes, "hard" evidence. Anthony v. United States, 667 F.2d 870, 874 (10th Cir.1981), cert. denied, 457 U.S. 1133, 102 S. Ct. 2959, 73 L. Ed. 2d 1350 (1982); United States v. Lockett, 674 F.2d 843, 846 (11th Cir.1982); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977); United States v. Pheaster, 544 F.2d 353, 373 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S. Ct. 1118, 51 L. Ed. 2d 546 (1977). The issuing judge is entitled to consider all the facts presented to him and to draw reasonable inferences from those facts based upon his common sense and experience. United States v. Jackstadt, supra, 617 F.2d at 14. Thus, the issuing judge can properly conclude that probable cause exists where:

 
"the nexus between the items to be seized and the place to be searched rest[s] not on direct observation . . . but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [incriminating evidence],"

 United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970) (citations omitted).

 Numerous cases have applied the principle that probable cause to search a suspect's residence may be based on reasonable inferences and need not rest on direct evidence that the items sought will be found. In United States v. Bagaric, 706 F.2d 42 (2d Cir.1983) the Court of Appeals for this Circuit recently upheld a search of the suspect's home where the affidavit supporting the warrant placed the suspect at the scene of a bombing shortly before and after it ...


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