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United States v. Fama

March 27, 1985

UNITED STATES OF AMERICA, APPELLANT,
v.
BARBARA FAMA, DEFENDANT-APPELLEE



Appeal from that part of an order of the United States District Court for the Eastern District of New York, Sifton, J., suppressing evidence seized pursuant to a warrant on September 6, 1984. The district court held that the warrant was invalid because it was not supported by probable cause. Appellant argues that even if probable cause was lacking, under United States v. Leon, 52 U.S.L.W. 5155, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (U.S. July 5, 1984), suppression was inappropriate. Reversed and remanded.

Author: Meskill

Before: MESKILL, KEARSE and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge :

In this expedited appeal, the United States challenges that part of an order of the United States District Court for the Eastern District of New York, Sifton, J., that suppressed evidence seized from appellee's home on September 6, 1984 pursuant to a search warrant. The district judge ruled that the warrant was invalid for lack of probable cause. Moreover, he found the accompanying affidavit too weak to support a reasonable, official belief in the existence of probable cause.

We disagree. While we acknowledge that a creditable probable cause question is raised, we do not reach it because we believe that, under the circumstances, we are compelled by United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, 52 U.S.L.W. 5155 (1984), to reverse the suppression order.

BACKGROUND

In April 1984, pursuant to a warrant, the Fama home was searched. A truly astonishing quantity of evidence was seized from throughout the house, including approximately thirteen pounds of heroin; two and one-half pounds of cocaine; almost one hundred pounds of marijuana; over $3.4 million in cash; more than twenty-five firearms, at least seven of which were loaded, including semi-automatic pistols, revolvers and rifles, and large quantities of narcotics dilutents and other drug paraphernalia. As a result of the search, Barbara Fama, her husband and four children were all arrested. They are currently under indictment in the Eastern District of New York for a number of narcotics and firearms violations.

In June 1984, appellee and three of her children posted bail and were released on personal recognizance bonds. Their trial date was set for early September.

On September 6, 1984, appellee was arrested again. This arrest was based on charges arising from a narcotics investigation conducted by the United States Attorney for the Southern District and the Drug Enforcement Administration (DEA) and unrelated to the investigation that had led to appellee's first arrest. The target of the Southern District and the Drug Enforcement Administration (DEA) and unrelated to the investigation that had led to appellee's first arrest. The target of the Southern District investigation, which had been ongoing since at least June 1984, was a large-scale narcotics trafficking ring operating in the lower East Side and Little Italy areas of Manhattan.

On or about September 5, DEA Special Agent Emilio Garcia went to an assistant United States Attorney (AUSA) in the Southern District and related to him the results of the investigation. The thirty-one page affidavit drafted by the AUSA and sworn to be Agent Garcia was filed with warrant applications on September 5 with the district court in the Southern District. The application sought arrest warrants for thirty individuals, including appellee Fama. Judge Cannella requested additional information on four of the named suspects. After hearing Agent Garcia's supplementary statements, Judge Cannella found probable cause as to all thirty suspects and issued the arrest warrants. He found probable cause as well to issue twenty search warrants, also on the strength of the thirty-one page affidavit, for premises within the Southern District.

The identical affidavit was presented Judge Costantino in the Eastern District. He found probable cause to support the issuance of warrants for about thirteen premises located in the Eastern District, including appellee's home. This warrant and the subsequent search of the Fama home, which yielded $134,000 in cash and assorted items of drug paraphernalia, some coated with narcotics residue, is the subject of the instant appeal.

The affidavit that supported the arrest and search warrants contained the following information. Through intercepted phone conversations, investigating agent had learned that a narcotics transaction involving John DeLutro and Louis "Papo" Garcia, two purportedly high level members of the drug trafficking organization, was to take place a "DeLutro's shop" at about 8:00 p.m. on July 31, 1984. Accordingly, surveillance was set up in the vicinity of Caffe Palermo, which was run by DeLutro, at 148 Mulberry Street in the Little Italy section of Manhattan. At about 7:30 p.m., appellee Fama was seen at the restaurant meeting with Albert Palmieri. Palmieri, Fama's uncle, was believed to be one of DeLutro's chief lieutenants in the narcotics ring.

At about 9:00 p.m., Papo entered 166 Mulberry street, a multi-unit dwelling and home to both DeLutro and Palmieri. Fama and Palmieri entered the building a short time after Papo. at about 10:00 a.m., Papo left the building. Fama and Palmieri followed after a brief interval.

At about 10:30 p.m., Papo and another suspect were seen in Papo's car near Mulberry and Grand Streets. Papo then drove to the lot where DeLutro was known to park his car and made a call on a public phone. Shortly thereafter, Papo and DeLutro had a meeting in the ...


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