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UNITED STATES v. GARCIA

February 6, 1986

UNITED STATES OF AMERICA,
v.
HILDA GARCIA, et al., sub nom., LOUIS RUPERT GARCIA, Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOWE, D. J.

 Defendant HIlda Garcia moves to exclude evidence which federal agents seized when they arrested her and searched her home on the morning of September 6, 1984. The defendant claims that (1) there was no probable cause for the issuance of the search warrant; and (2) the issuing judge was misled by recklessly false statements made in the supporting affidavit for the search warrant.

 BACKGROUND

 The government accuses defendant Hilda Garcia of receiving drugs as a member of a "wide-ranging" but "loosely structured" narcotics trafficking ring dealing primarily in heroin and cocaine and operating in Little Italy and the Lower East Side of Manhattan. (See Affidavit of Drug Enforcement Administration Special Agent Emilio Garcia dated December 5, 1984, hereinafter "Rider A," pp. 3-4). Count One of the indictment *fn1" charges Hilda Garcia, along with 13 others, with conspiracy to violate the federal narcotics laws under 21 U.S.C. §§ 812, 841 (a)(1) and 841(b)(1)(A). Counts Three through Five charge that all 14 defendants possessed, with intent to distribute, various amounts of cocaine and heroin seized from two Manhattan apartments occupied by Louis Rupert Garcia and Awilda Nieves, co-defendants in this case. Count Nine charges Hilda Garcia with possession with intent to distribute 20.1 grams of cocaine and dilutents. The remaining three counts of the indictment do not relate to this defendant.

 The indictment resulted from a lengthy investigation which included physical surveillance, undercover work, court-authorized wiretaps on telephones at three different locations over a three month period. *fn2" Additional evidence was recovered from searches conducted in 20 locations throughout the Southern District of New York.

 The searches performed in the Southern District were executed pursuant to warrants issued on September 5, 1984 by Judge Cannella of this Court. Judge Cannella found probable cause to authorize the searches on the basis of the facts contained in Rider A.

 The search of defendant Hilda Garcia's residence resulted in the recovery of "[t]wenty grams of cocaine and cut and assorted narcotics paraphernalia, including lactose and a triple-beam scale." (Government's Supplemental Memorandum Of Law In Opposition To Defendants' June 28 Motions, hereinafter "Government's Supplemental Memo #1," p.11).

 DISCUSSION

 The defendant's suppression motion presents this Court with two central questions:

 
1. Did the information presented in Rider A state sufficient probable cause to support the issuance of the warrant to search Hilda Garcia's home?; and
 
2. If probable cause did not exist at the time the warrant was authorized, is exclusion of the seized evidence the appropriate remedy? n[3]

 Because we find that the information presented to Judge Cannella provides probable cause to support the issuance of the search warrant, we need not reach the issue of good faith. *fn3"

 The warrant which empowered federal agents to search Hilda Garcia's residence was based upon the facts presented in Rider A, the sworn affidavit of Agent Emilia Garcia. Those facts consisted of (1) excerpts or paraphrased accounts of two taped, intercepted communications obtained pursuant to Court authorized electronic surveillance over Louis Rupert Garcia's telephone; (2) Agent Garcia's summary conclusion, based on other intercepted conversations, that "HILDA GARCIA . . . receive[s] narcotics from PAPO." (Emphasis in original).

 1. The July 27 call

 Paragraph 28 of Rider A states:

 
On July 26, 1984 n[4], at 5:43 p.m., HILDA GARCIA called PAPO and asked him, "How much are nine shirts?" PAPO said he had to talk to her in person.

 The defendant contends that the voice identified as Hilda Garcia's was not in fact her voice. (12/3 Tr., p. 48). *fn4"

 After listening repeatedly to the tape of the July 27 call (designated number 1389) and comparing it with five other tapes of Hilda Garcia's voice (calls 301, 401, 558, 1409, and 1859 on Louis Rupert Garcia's telephone), this Court finds that the voice on the July 27 call cannot be identified as Hilda Garcia's voice. (12/3 Tr., pp. 62-69; Transcript dated December 16, 1985, hereinafter "12/16 Tr., pp. 24-25; Transcript dated December 18, 1985, hereinafter "12/18 Tr., pp. 2-4). The entire taped conversation consisted of one short question asked in Spanish by the person alleged to be Hilda Garcia had seven additional words, uttered in fragments in both Spanish and English. The question, translated into English, reads "How much do the nine -- nine shirts cost?" The other words on the tape which are alleged to be spoken by this defendant are: "Hello. Papo. Yeah. Mira. Ah. Nueve, nueve." In addition, there is no dispute that the voice on the tape is masked, either by drugs or alcohol. *fn5"

 The defendant has made no showing that the attribution of the voice of the July 27 tape to Hilda Garcia was done with reckless disregard for the truth. See generally Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). For purposes of deciding this suppression motion we will assume that the July 27 conversation could not be properly included as a basis of probable cause to issue the warrant.

 2. The August 9 Call

 Paragraph 33 of Rider A ...


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