The opinion of the court was delivered by: Mishler, District Judge.
MEMORANDUM OF DECISION AND ORDER
The court's memorandum of decision of October 4, 1989, directed
an evidentiary hearing on the defendants' motion (a) to
suppress physical evidence seized on March 31, 1988;*fn1 (2)
suppression of statements made by defendants Steven Pesce,
Robert Cavaliere and Stuart Podolsky; and (3) dismissal of the
indictment on the ground that the government intentionally
and/or recklessly submitted false testimony to the grand jury.
Motion to Suppress the Seized Evidence
As previously noted (in our October 4, 1989, opinion), the
defendants' challenge to the validity of the search warrants
issued on March 2, 1988, and March 30, 1988, based on the claim
of lack of probable cause, was rejected in a memorandum of
decision by Judge Raggi dated November 22, 1988.
Defendants claim that the evidence seized on March 3, 1988, and
March 31, 1988, should be suppressed because the search
warrants failed to particularize the premises to be searched.
The warrants described the premises to be searched as "Premises
Known and Described as Main Street Distributors, Inc., 40-06
Oser Avenue, Hauppauge, New York." The affidavit, by Special
Agent Anthony Giattino, in support of the warrant issued on
March 30, 1988, stated:
The Premises occupy a single-floor at 40-06 Oser Avenue in an
industrial park in Hauppauge. The greater part of the space at
that address consists of a warehouse area containing rows of
free-standing metal shelving; also occupying space at that
location is an office area at front of the building.
Defendants argue that 40-06 Oser Avenue is not occupied by Main
Street Distributors, Inc. ("Main St."), alone but is a
multi-unit building which is also occupied by OMT Distributors
("OMT") and other businesses.
Defendants urge that the evidence seized on March 31, 1988, be
suppressed because of the conduct of the law enforcement
officers in executing the warrant on that day.
The hearing established the following facts:
In January 1988, a Customs Inspector stationed in Port Newark,
New Jersey, advised Import Specialist John Barry that a
shipment believed to be glass crack pipes known as "stems" had
arrived at the Railhead Terminal in Port Newark. Barry advised
Special Agent Anthony Giattino of this conversation. Barry and
Giattino examined the shipping documents at the terminal and
learned that the shipment consisted of 500,000 four-inch glass
stems consigned to Freedom Imports, 872 Broadway, New York.
Barry interviewed Alain Elkaim, the president of Freedom
Imports, and learned that part of the shipment was destined for
In April 1987, Barry had visited Main Street to investigate a
complaint of the Mini-Grip Corporation, the owner of patents
and trademarks for "ziplock" plastic bags which were the
subject of a patent exclusion order. When he entered the
premises at 40-06 Oser Avenue he noticed a sign with the names
Main Street Distributors, Butco, Strike-A-Light, and OMT
Distributors on the entrance door.
Giattino had a basis for believing that Main Street was in the
business of distributing drug paraphernalia from the premises
at 40-06 Oser Avenue. In February 1988, he assigned Special
Agent Gary Kiernan to conduct a surveillance of the premises.
Kiernan noticed a roof sign on the building which read "40-06
Main Street." No sign described the premises as 40-06 Oser
Avenue. The building is located in an industrial park. 40-06
Oser Avenue is the address of a building with party walls on
both sides, indicating the use or potential use by firms
unrelated to Main Street. In the rear of 40-06 Oser Avenue is a
parking area, also a loading dock for Main Street's warehouse
portion of the premises. Giattino learned from the utility
companies that Main Street paid the bill for all utilities to
Execution of the March 2, 1988, Search Warrant
Special Agent Ray Barrett was the lead agent in the execution
of the warrant on March 3, 1988. Barrett entered the premises
with other law enforcement officers at about 1:00 p.m. and
exhibited the warrant to the receptionist. He was advised that
the owner (previously identified through a Dun and Bradstreet
report as Steven Pesce) was not present. About 15 minutes after
entering, while agents were conducting a security sweep, Stuart
Podolsky pointed to an area in the warehouse consisting of a
room which had an open front gate and stated that the area was
used by his company, which was engaged in printing emblems on
shirts. Pesce arrived at about 2:30 p.m. and told Barrett that
some office space was leased to Mark Benowitz and Podolsky. No
signs were displayed nor was there any indication, other than
Pesce's and Podolsky's statements, that any space in the
premises was occupied by any individual or entity other than
Main Street. In one of the offices (either A or B), there was a
desk with a sign which stated "Steven Pesce, President."
After consulting by telephone with an Assistant United States
Attorney for the Southern District of New York, offices D and E
were not searched; items in the warehouse area which Podolsky
claimed to be his were not seized since they were not the
subject of the search.
The agents seized the contraband they found in the warehouse.
They also seized Main Street records. Among the records seized
was a letter addressed to "Mr. Stuart Podolsky, Main Street
Distributors" (Ex. S-11) and a letter addressed to "Mark
Benowitz, Import Director, Main Street Dist., Inc." (Ex. S-12).
Execution of the March 30, 1988, Search Warrant
Giattino led a team of law enforcement officers in executing
the search warrant on March 31, 1988. He exhibited the search
warrant to Ferraro. In answer to Giattino's question as to who
was in charge, she stated that she had five bosses: Pesce,
Benowitz, Cavaliere, Podolsky and Eisenman — all partners.
Giattino asked Cavaliere, Podolsky and Benowitz what interest
they had in Main Street. Cavaliere said he had nothing to do
with Main Street; he said he operated a jewelry business under
the trade name Golden Opportunities.*fn2 Podolsky denied any
relationship with Main Street; he stated he operated OMT
Distributors, which occupied office space in the premises.
Benowitz stated that he occupied an office in the premises
separate and apart from the premises occupied by Main Street.
The agents seized a Main Street record entitled "Corporate
Books File Sign Out Corp. Book Sheet" with the following
IF ANYONE (PARTNERS OR OTHER) TAKE A CORP. BK. PLS SIGN ENCLSD.
During the security sweep agents saw drug paraphernalia and
catalogs pertaining to drug paraphernalia in the office
Benowitz and Podolsky claimed they used for the separate
business conducted under the name OMT Distributors, Inc.
(Office D). After discussing the claim made by Benowitz and
Podolsky with an Assistant United States Attorney for the
Eastern District of New York, and the assistant having
authorized a search of that office (Office D), the agents
conducted the search.
DISCUSSION RE SUPPRESSION
The Fourth Amendment, in prohibiting general searches, directs
that "no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing
the place to be searched . . . ."
A warrant complies with the particularization requirement of
the Fourth Amendment if the officers executing the warrant can
"with reasonable effort ascertain and identify the place
intended." Steele v. United States, 267 U.S. 498, 503, 45
S.Ct. 414, 416, 69 L.Ed. 757 (1925). See United States v.
Ofshe, 817 F.2d 1508, 1514 (11th Cir.), cert. denied,
484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987) (Search of
multiunit building upheld where warrant authorized search of a
single business. Officers had no reason to know that the
premises were subdivided into separate offices.); Marvin v.
United States, 732 F.2d 669, 673 (8th Cir. 1984) (Search of
private apartments upheld where the warrant authorized the
search of a clinic because the officers did not know or could
not reasonably have been expected to know the ...