The opinion of the court was delivered by: CARTER
Defendants challenge the constitutional validity of the electronic surveillance of Apartment 21 F. 1700 Bedford Avenue and of 80 Midwood Avenue, Brooklyn, authorized in this case by order of Judge McLaughlin pursuant to 18 U.S.C.. § 2518. The order, initially issued on August 16, 1984, authorized the interception of electronic communications at the two locations and the installation and monitoring of hidden microphones at the Bedford Avenue address. The order was extended on August 24, 1984, September 14, 1984, and October 12, 1984.
The defendants contend that the affidavits supporting the original application, particularly that of FBI Special Agent David Mitchell, contained misstatements and misrepresentations. It is argued that the order authorizing two prior electronic surveillance authorizations, one state and one federal, on which probable cause for the instant application was partially predicated, were themselves defective. It is contended that what the government has proffered through Mitchell as evidence of probable cause is "prosecution by innuendo, and guilt by association; the association being the implied relationship of certain targeted 'black' political groups." (Affidavit of James Silver, par. 17). Reliance on the testimony of Peter Middleton as the basis for probable cause is castigated by defendants. Defendants claim that during the Brinks trial Middleton admitted to lying "on '15 or 20' occasions" to the FBI. Id., par 21. The government, it is contended, deliberately failed to inform the judge that the subjects of the wiretap were political community workers and that the true purpose of the electronic surveillance was to monitor the activities of a known political group and further to identify the group's membership.
The standard for a finding of probable cause to order electronic surveillance is the same as that for issuance of a search warrant. United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977). An affidavit supporting an order for electronic surveillance has a presumption of validity. Franks v. Delaware, 438 U.S. 154, 172, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). We have been admonished by the United States Supreme Court that "[i]n dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life in which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983) quoting from Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily or even usefully, reduced to a neat set of legal rules." Id. at 232. The affidavit is sufficient to support a finding of probable cause if its factual allegations enable the magistrate or judge issuing the order "to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process." Jaben v. United States, 381 U.S. 214, 224-25, 14 L. Ed. 2d 345, 85 S. Ct. 1365 (1965). "[O]nly the probability, and not a prima facie showing, of criminal activity" is needed to meet the probable cause yardstick. Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).
In reviewing the sufficiency of the basis for Judge McLaughlin's order, the court is required to make a totality of the circumstances analysis. Illinois v. Gates, supra at 233.
After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts[,]" Spinelli v. United States at 419, and "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechincal, rather than a commonsense, manner." United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965).
With the standard outlined and the limitations of our examination defined, we now turn to the affidavit of Special FBI Agent David Mitchell which provided the probable cause foundation on which Judge McLaughlin rested his order. Mitchell states that he had learned a great deal about the Brinks operations from government informers. Defendants dismiss one of the informers, Peter Middleton, as an admitted liar and the testimony of government informer Tyrone Rison for the reason that the information supplied by Rison to the government led to the prosecution of thirty-five people but only two were convicted. (Hinds Affidavit, par. 17). The validity of a law enforcement officer's conviction that criminal activity is under way is not measured by the beyond a reasonable doubt standard which is required for a jury finding of guilt. Indeed, that two of the thirty-five persons were convicted gives considerable credence to Rison's information.
Middleton advised Mitchell that in May, 1981 Mutulu Skakur, the head of the original Brinks military unit, discussed with defendant Chimurenga the need to form a "people's militia in New York City." Chimurenga was given responsibility for training on strategy and weapons, and following Sekou Odinga's incarceration, Chimurenga, according to Middleton, became the day-to-day military leader. Moreover, in an intercepted telephone conversation on March 8, 1982, Skakur was overheard speaking of "a militia that Chimurenga started." (Mitchell Affidavit, p. 42). During the same conversation Skakur said that while he was preparing to leave New York, he was helping to select people to continue the New York operation. Id. at 43. A gun traced to Chimurenga purchased some years earlier was found in a New Jersey location which the government believes was a safe house for Brinks conspirators. Chimurenga was seen with principals in the Brinks case. He is believed to have visited Odinga at the MCC using a false name. Observations of Chimurenga's activities indicated considerable interest in armored trucks and helicopters.
Rison had testified that extensive armored truck surveillance preceeded planned robberies. Id. 56. Chimurenga was observed in his car on February 27, 1984, watching two Brinks armored trucks servicing a Manufacturers Hanover Trust Co. (MHT) bank at Clinton and Pierrepont Streets, Brooklyn, id at 56; and later was seen watching one armored truck service another MHT bank at Ashland Place, and then return to the first observation point, id at 57; later, he was seen watching an armored truck servicing an A&P supermarket at East 64th Street and Second Avenue in Manhattan. Id. at 58.
That same day he was seen at the Pan Am Heliport at East 60th Street and F.D.R. Drive and later on went to the Heliport at 34th Street where he inquired about helicopter flight rates and schedules. Later on he and defendant Viola Plummer drove to the Brooklyn House of Detention where Odinga was incarcerated, and Chimurenga was seen directing Plummer's attention to the top of the building. Id. at 59. On March 4, Howard Bonds, an unindicted coconspirator took a helicopter cruise from 34th Street Heliport. During the flight he spoke to the pilot about taking lessons, inquired about various cockpit buttons, about the range of the helicopter and the feasibility of its use in a rescue operation. Id at 60. On March 23, defendant Roger Wareham came to the 34th Street Heliport and checked several pamphlets and a flyer, used a pay phone and left. Ibid. On March 27 Wareham was seen outside the Brooklyn House of Detention where he appeared to be pacing off distances and counting windows. Ibid.
On February 6, 1984, defendant Yvette Kelley filled out a rental application for an apartment at 37 Lynwood Place in New Haven, Connecticut. The name given on the application, Joy Bailey, was false. The applicant indicated employment at New York City Housing Preservation Department ("HPD") and that Viola Plummer was her immediate supervisor, giving Plummer's correct business telephone number. Kelley was employed in Newark, New Jersey. Kelley's New York telephone number was listed as that of her former landlord, and the application shows that Carmen Oliveras (now known to be Colette Pean) would be sharing the apartment. Id. at 67.
Kelley lives with defendant Ruth Carter and Pean at 1700 Bedford Avenue. Known visitors to that apartment include Chimurenga, Plummer, Bonds, William Clay. She visited Odinga many times at the MCC, Brooklyn House of Detention and Rikers Island. Id. at 14. Kelley accompanied a woman to the Brooklyn House of Dentention after Bonds' March, 1984 arrest and posted $1,500 bond for his release. Id. at 141. One of the figures (Dixon) in the Brinks case arrested for creating a disturbance had in his possession an address book with the name Yvette (adjacent to the number where Kelley worked). Id at 141.
Middleton identified Howard Bonds, id. 46, Roger Wareham and Robert Taylor, id. at 47, as members of the military unit.
Ruth Carter has visited 80 Midwood when Chimurenga, William Clay, Wareham and Plummer were known to be present. There are records of numerous calls between Carter/Kelley phone and Wareham/Clay residence phones and Plummer and Clay HPD phone. Id. at 144. On several occasions before the April 16, 1981 killing of one and the critical wounding of another police officer for which James Dixon York was convicted of attempted murder, he was seen on the 21st floor where Carter/Kelley apartment is located in the building on Bedford Avenue. After this incident, a number of calls from Carter to Michael Dennis Hill were intercepted in which she urgently requested a meeting with him. She refused to give Hill her telephone number or work address over the phone, although she was trying to meet him. Id. 148. Hill was observed entering the 1700 Beford Avenue apartment complex on July 2, 1981. Hill was seen circling the block at 1700 Bedford a number of times, then placing a call from a pay phone and then meeting with an unidentified black woman who entered the 1700 Bedford apartment after the meeting. Id. 149. Between March and June, 1981, there were three calls from Carter's phone to Hill's house on Long Island, and on August 5, 1981, Hill called Carter's residence from a pay phone on Long Island. Id. Carter's phone showed 5 calls to South Carolina between May and August, 1981. Id. at 150. During this same period, a call from Hill's phone to South Carolina was intercepted, and shortly thereafter York was ...