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United States v. Marin-Buitrago

decided: May 8, 1984.

UNITED STATES OF AMERICA, APPELLEE,
v.
CIELO MARIN-BUITRAGO, TOMAS WILLIAM MORALES, DEFENDANTS-APPELLANTS



Appeal from judgments of the United States District Court for the Eastern District of New York, Weinstein, J., convicting appellants of narcotics violations. Court denied motion to suppress evidence seized pursuant to a warrant alleged to be invalid because the arresting officers failed to report material new information to the issuing magistrate before executing the warrant. Court held new evidence not to be material to the finding of probable cause.

Meskill, Pierce and Pratt, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

This is an appeal from judgments of the United States District Court for the Eastern District of New York, Weinstein, J., convicting Tomas William Morales (Morales), upon a conditional guilty plea, of one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982), and Cielo Marin-Buitrago (Cielo), after a bench trial, of conspiring to distribute cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982).

Appellants seek the suppression of evidence seized during a search of their apartment pursuant to a search warrant. They claim that the search warrant was invalid because the executing officers failed to report to the issuing magistrate material new information that the officers acquired between the warrant's issuance and its execution.

We hold that the evidence was properly admissible because the warrant was valid when it was executed. Consequently, we affirm appellants' convictions.

BACKGROUND

In early March 1983, Special Agent Andrew Wnukowski of the Drug Enforcement Administration (DEA) received unsolicited information from a tenant residing in a two family residence in Forest Hills, New York. The tenant alleged that his upstairs neighbors, three Latin Americans, kept irregular hours, had changed their apartment locks and refused to provide the landlord with a key for the new locks, claiming that they kept considerable money in the apartment, had flushed plastic bags down the toilet, and used "beepers" in the apartment instead of a telephone. The landlord subsequently confirmed most of these facts. The actual identities of the tenants, Morales, Cielo and an additional defendant, Jorge Marin-Buitrago (Marin), were unknown to the informant tenant and DEA agents.

Surveillance of the Forest Hills apartment revealed that the Latin American suspects used a brown Mustang automobile with Florida license plates. Through a computer search, the agents discovered that the Mustang was registered to Cesar Correa, a convicted narcotics trafficker who had been released on an appeal bond in the Southern District of Florida. As a condition of his release, Correa was restricted to the Southern District of Florida. A description of Correa coincided with the tenant informant's description of Marin, a suspect that the tenant saw driving the Mustang.*fn1 An arrest warrant for Correa was issued in the Southern District of Florida for bailjumping. New York City Police Officer Romanolo, watching the apartment, subsequently identified Marin, the driver of the Mustang, as Correa from 1980 photographs of Correa.

On March 18, 1983, Agent Wnukowski submitted an affidavit to Magistrate Chrein in the Eastern District of New York in support of an application for a search warrant for the Forest Hills apartment. The affidavit stated that the agent had reason to believe that the apartment contained evidence of narcotics trafficking and Correa's bailjumping. The agent articulated the following grounds for his belief:

1. [He was] advised by a private citizen, with no known criminal involvement . . . that three Latin American individuals reside in the subject premises, two males and one female.

2. That person advised [him] that these individuals keep irregular hours, usually arriving at the subject premises between 3:00 a.m. and 5:00 a.m. in the morning and then leaving for short periods of time during the day.

3. The landlord of the subject premises . . . advised [him] that the three aforementioned individuals moved into the subject premises . . . and a few days later had a locksmith install new locks on all the doors. These individuals advised the landlord that they required new locks because they kept "lots of money" in the apartment.

4. The landlord further advised [him] that these tenants told him that they did not have a telephone in the aforementioned ...


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