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UNITED STATES v. IPPAGUIRRE

February 19, 1986

UNITED STATES OF AMERICA,
v.
JAVIER IPPAGUIRRE, Defendant



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

 Defendant moves to suppress evidence seized from his apartment. He argues first that the government, in obtaining the warrant to search the premises, did not comply with the provisions of Fed. R. Crim. P. 41(c)(2)(D). He also contends that the warrant was overbroad and not supported by probable cause. For the reasons stated below, the motion is denied.

 Facts

 The facts are not in dispute. On September 23, 1985, defendants Robert Aponte, Felix Torres, and Juan Rivera were arrested by agents of the New York Drug Enforcement Task Force while attempting to sell a kilogram of cocaine to an undercover officer. This transaction had been arranged by a confidential informant acting as middleman. Defendant Aponte stated that the source of the cocaine was a man who he knew as "Chile" and who lived at 110th Street in Queens, New York. All three of the arrested defendants were able to identify the house. At about 9:25 p.m. Aponte, under the supervision of the agents, called the residence in Queens and arranged to return with the money from the kilogram sale and to pick up a second kilogram.

 Detective Kevin Schnupp of the Task Force then contacted the office of the United States Attorney in this District and spoke to Assistant United States Attorney ("AUSA") Gordon Mehler. AUSA Mehler telephoned United States Magistrate A. Simon Chrein to apply for a warrant to conduct a search of the second floor apartment at 107-73 110th Street in Queens. Magistrate Chrein granted the application. When Task Force detectives executed the warrant, they discovered quantities of cocaine, narcotics paraphernalia, records and weapons. Defendant Ipparaguirre was then arrested.

 Discussion

 Rule 41(c)(2)

 Fed. R. Crim. P. 41(c)(2) was enacted in 1977 "to establish a procedure for the issuance of a search warrant when it is not reasonably practicable for the person obtaining the warrant to present a written affidavit . . ." Advisory Committee Note to 1977 Amendment to Fed. R. Crim. p. 41. It provides that "[i]f the circumstances make it reasonable to dispense with a written affidavit, a Federal magistrate may issue a warrant based on sworn oral testimony communicated by telephone or other appropriate means." Fed. R. Crim. P. 41(c)(2)(A). The provision recognizes that under the fourth amendment and the Supreme Court cases interpreting it, "the preferred method of conducting a search is with a search warrant." Notes of Senate Committee on the Judiciary, Sen. Rep. No. 95-354. Accordingly, the rationale of the rule "is to encourage Federal law enforcement officers to seek search warrants in situations when they might otherwise conduct warrantless searches." Id. In other words, by enabling them to take advantage of technology not yet invented at the time the Bill of Rights was drafted, the provision makes it feasible for officers in the field to comply with the law under the fourth amendment that a warrant ordinarily must be obtained before a search is conducted.

 In the instant case, Detective Schnupp was in the field; in fact, at the time AUSA Mehler spoke to Magistrate Chrein, Detective Schnupp was standing with the defendant Aponte and the confidential informant in front of the residence for which the search warrant was sought. Because it was thus not practical to proceed by written affidavit, the agent contacted the United States Attorney's office to request that an AUSA obtain a search warrant by telephone. See Fed. R. Crim. P. 41(c)(2)(A). (C).

 Fed. R. Crim. P. 41(c)(2)(D) provides that when a caller contacts a magistrate to procure a warrant, the "magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant." The transcript of the September 23, 1985 application reveals that the only person to whom Magistrate Chrein spoke was AUSA Mehler, who was thus obviously the person applying for the warrant. AUSA Mehler identified himself as the affiant, and Magistrate Chrein swore him (Transcript of Oral Application for a Search Warrant September 23, 1985 ("Tr.") at 1). *fn1"

 Defendant raises two objections to this procedure. First, he argues that Detective Schnupp was in fact the affiant, and that he was never sworn. Second, he argues that even if Schnupp was not the affiant, he was the person whose testimony formed the basis of the application and should have been sworn in that capacity.

 Defendant bases his argument that Detective Schnupp was the affiant on an exchange between AUSA Mehler and Magistrate Chrein as they were filling out their respective copies of the warrant. *fn2" At that time, both stated that the name to be filled in as the affiant was Kevin Schnupp. If Detective Schnupp had in fact been the affiant, the warrant would be defective because Schnupp was never sworn.

 It is manifest, however, that Detective Schnupp was not the affiant. At the outset of the conversation, Magistrate Chrein swore AUSA Mehler as the affiant (Tr. 1). Moreover, the Magistrate could hardly have thought that anyone other than AUSA Mehler was the affiant or the applicant, because AUSA Mehler was the only one to whom he spoke. In fact, at the time he granted the warrant application, Magistrate Chrein was ...


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