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August 3, 1983


The opinion of the court was delivered by: WEINSTEIN



 Defendants were charged with violation of the federal narcotics laws. One pleaded guilty unconditionally, one entered a guilty plea preserving his right of appeal, one was convicted and one was acquitted following a bench trial. All but the defendant pleading unconditionally moved to suppress certain evidence. Their principal argument was that a search warrant was rendered defective by the failure of law enforcement officers to apprise the issuing magistrate of material information that came to their attention after the warrant was issued. An evidentiary hearing was held on the suppression motions and for the reasons stated below they were denied.


 In early March 1983, Special Agent Andrew Wnukowski of the Drug Enforcement Agency (DEA) received information concerning three tenants -- two men and a woman -- residing in a second floor apartment in Forest Hills, Queens. The first floor tenant, as well as the landlord, indicated that three Hispanics had moved into the apartment in January 1983, and thereafter kept irregular hours; changed the locks on their apartment, telling the landlord it was because they kept "lots of money" in the premises; threw plastic bags down the toilet; and used a "beeper" but had no telephone.

 Soon thereafter, Agent Wnukowski observed a brown Mustang bearing Florida license plates parked in front of the Forest Hills apartment. The car was one of those used by the suspect tenants. A computer check through the Florida Motor Vehicles Department revealed that the Mustang was registered to a Caesar Correa and had not been reported stolen. DEA computer records and telephone conversation with DEA agents in Florida revealed that Correa had been convicted in Miami of cocaine trafficking and was currently free on bail limited to the Miami area pending appeal.

 Defendant Jorge Marin Buitrago bears a remote, but not implausible, resemblance to the picture of Correa. One of the agents assigned to the case made a positive identification based on his visual observations of Buitrago and a photograph of Correa. On the basis of information from New York that Correa was violating bail conditions, Florida agents obtained an arrest warrant for Correa and transmitted it to New York.

 Reciting these facts (but not that the arrest warrant had been obtained on the basis of information supplied by the New York agents) and stating his belief that Correa was engaging in narcotic trafficking on the premises, Agent Wnukowsky sought a search warrant for the Forest Hills apartment. It was granted but not immediately acted on.

 Several days later the occupants of the Forest Hills apartment were followed to an address on Nicolls Avenue in Queens. Both the Forest Hills and Nicools Avenue residences were kept under surveillance that day. Subsequently, the defendant Jorge Marin Buitrago was observed leaving the Nicolls Avenue residence driving the brown Mustang in the company of two women.

 Agents of the task force followed the car. They stopped it when the driver appeared to be taking evasive action. Upon being ordered out of the car and arrested, Buitrago denied that he was Correa and produced documents attesting to his identity.

 Some of the agents on the scene returned to the Nicolls Avenue residence with the two women and on their consent searched the premises. Present in that apartment were defendants Morales and Cielo Marin Buitrago. The latter's baggage contained some $50,000 in cash. While the agents were at the Nicolls Avenue residence defendant Calle appeared carrying a gym bag smelling of cocaine. He was apprehended after attempting to flee. A warrant search of the bag confirmed that it contained several pounds of high quality cocaine.

 Meanwhile, other agents returned with Jorge Marin Buitrago to the Forest Hills apartment and executed the search warrant. The agents found substantial amounts of cocaine, narcotic paraphernalia and ledgers indicative of large narcotics transactions.

 Late that evening a copy of Buitrago's fingerprints were sent to Washington for identification. The following morning the agents were informed of the results of the fingerprint analysis -- Buitrago was not Correa. The agents conveyed this information to their Florida counterparts, who then had the arrest warrant for Correa vacated.

 Defendants contend that the agents must have doubted that Buitrago was Correa after seeing his identifying documents and viewing him at close range. The DEA's description of Correa listed scars on his left hand and, according to the defendants, the agents should have ascertained at the time of arrest that Buitrago had no such scars. Defendants maintain that the agents ...

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