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July 11, 1990


The opinion of the court was delivered by: Munson, District Judge.


On February 10, 1990 Judge Thomas J. McAvoy signed an Order granting defendant Joseph Donahue's request for a hearing to test the veracity of a search warrant application as permitted by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Pursuant to Judge McAvoy's Order the matter was transferred to this court for a hearing. The court conducted a Franks / suppression hearing on February 21, 1990 in Utica, New York and on February 27, 1990 in Albany, New York. After the government filed a letter brief addressing the issues raised at the suppression hearing, defendant Donahue requested that transcripts of the proceedings be prepared. The court acceded to the defendant's request. Transcripts of the proceedings were prepared. Defendant Donahue has submitted his letter brief which the court received on June 11, 1990.


The three defendants in this case are presently named in a superceding indictment (89-CR-186) which contains four counts. The first count alleges that between November 1, 1987 and June 30, 1989 all three defendants conspired to possess and to distribute in excess of 100 kilograms of marijuana. In the second count defendant James Carrington is charged with possessing marijuana on June 8, 1989 with the intent to distribute it. The third count levels the same charge against defendant Donahue. The fourth and final count asserts that Carrington possessed marijuana with the intent to distribute it on June 13, 1989.

During the hearing before this court the government and the defendant elicited testimony in order to explain a search and subsequent seizure by police officers which occurred at defendant Donahue's residence on June 8, 1989. There is little dispute as to the relevant facts which culminated in the search and seizure at Donahue's residence.

In the early evening of June 7, 1989 Sergeant Robert Kroll of the East Greenbush Police Department ("East Greenbush PD") received a phone call from a police officer in El Paso, Texas. The El Paso police officer, Paul Irwin, informed Kroll that one of their narcotics dogs had "hit on" two packages*fn1 which were being sent via United Parcel Service ("UPS") to Rensselaer, New York, which is located within the Town of East Greenbush. The addressee on the boxes was defendant Donahue and the address for delivery was his: 100 Orchard St., Apt. C1, Rensselaer, New York.

Soon after Kroll spoke with Irwin, Detective Timothy Murphy arrived at the East Greenbush Police Department to attend a Common Council meeting upstairs. Although he resides in East Greenbush, Murphy is a member of the Albany Police Department ("Albany PD"). In that police department Murphy is assigned to the Special Investigations Unit, a unit which investigates narcotics trafficking. He has been employed in that capacity for 12 years.

Before proceeding upstairs Murphy happened upon Kroll who recounted for Murphy the substance of the phone conversation he had with Irwin. Apparently Murphy did not attend the meeting upstairs. Instead he conferred with Kroll regarding obtaining a search warrant to seize the two packages. Based upon the information Kroll had conveyed regarding his discussion with the El Paso officer, Murphy on a yellow legal pad drafted his suggestion for a search warrant application. Kroll eventually typed out Murphy's suggestion into a search warrant application.

In addition to his suggestion for a search warrant application, Murphy arranged for two Albany PD narcotics dogs and their handlers to meet Kroll the next morning at the UPS faculty in Latham, New York. Present in Latham at 8:00 a.m. on the 8th of June were Murphy, Detective Sergeant Carcione of the Albany PD, Detective Rena Epting of the Albany PD, Detective Thomas Blair of the Albany PD, Sergeant Kroll, Officer Michael Davidson of the East Greenbush PD and two narcotics dogs. At the Latham facility the narcotics dogs "hit on" both of the suspect packages. With this information in hand, Epting obtained from Albany City Judge E. David Duncan a search warrant to open the packages.*fn2

Both suspicious packages had similar appearances from the outside. They were secured with metal banding. Pursuant to the warrant obtained from Judge Duncan, the officers opened one of the two packages. Inside that package the police officers found two igloo coolers. The lids on the coolers had been sealed shut with a heavy epoxy resin. The officers opened one cooler. Within that cooler they found a heavy plastic bag filled with a talcum-like powder. In the talcum powder the officers located tar-coated, cellophane-wrapped bricks. Kroll, Blair and Murphy testified that these were brick-form marijuana.

The package which was opened was resealed complete with new metal bands. Upon resealing the package the officers formulated a plan, the object of which was to arrest defendant Donahue once he accepted delivery of the packages. They decided to make a controlled delivery of the packages. The plan was that Blair would don a UPS uniform and along with a UPS security guard would make the delivery to Donahue's apartment at 100 Orchard Street. At the UPS facility, Murphy penned a handwritten addendum to the warrant application.

Kroll and Davidson then drove to the Empire State Plaza, the place of employment of Charles Assini, Town Justice for the Town of East Greenbush. Kroll apparently signed the application in the car*fn3 and then waited in the car while Davidson presented the search warrant application to Judge Assini. In brief, the application sought to search the person of the defendant, his apartment, as well as any storage areas over which the defendant maintained either custody or control. The warrant application described the objects of the search to be the two boxes from El Paso as well as "any and all records or documents related to this scheme." Exhibit ("Exh.") 2. As factual support for the warrant, the application set forth the conversation with the officer from El Paso, Irwin. It described the packages*fn4 and further stated that the packages were to arrive at the UPS Latham facility at 8:00 a.m. on June 8, 1989. The application additionally set forth that Kroll knew the defendant "professionally" for better than 15 years, that Kroll had seen Donahue arriving and leaving from 100 Orchard Street and that the telephone company indicated that Donahue had purchased phone service for 100 Orchard Street. Finally, the warrant application contained a handwritten supplement, penned by Murphy. This supplement was the focus of much of the hearing testimony. The court will set forth the supplement in its entirety:

  On 8 June 1989 Det. Epting of the Albany Police
  dept S.I.U. along with his/her K-9 partner (Boa or
  ["Rufus" crossed out)) conducted a certified
  inspection resulting in a positive affirmation. A
  search warrant was obtained and the contents of
  the packages were inspected.

Contents Listed As Follows:

    Blue Thermos Brand Cooler Containing a Number of
    Full & 1/2 Bricks of marijuana. See attached
    Polaroid Photo
  Packages subsequently resealed; while in police
  custody, and shipped to Jos. Donahue (this
  application) who accepted same. Packages from time
  of inspection to acceptance by Donahue were
  continuously and constantly in Police Custody.

Exh. 2. Kroll, Davidson and Judge Assini all agree that the last paragraph of the handwritten supplement, insofar as it indicated that the packages had been delivered to and accepted by Donahue, was untrue. Murphy was harder to pin down. He did acknowledge that, previous to the application submitted to Judge Assini, he had never drafted an anticipatory warrant application.

Davidson located Judge Assini in his office. Judge Assini had been told by Kroll in a telephone conversation that the progress of the packages had been monitored by law enforcement officials ever since the packages had come under police scrutiny in El Paso, Texas. Davidson presented the application to Judge Assini who reviewed it and posed some questions to Davidson. In response to the questions Davidson informed Judge Assini that the delivery was about to be made and that the officers wished to obtain the warrant as soon as possible so that they could serve the warrant as soon as the packages were delivered.

Judge Assini signed the warrant which permitted the police to search Donahue's apartment and storage areas for the packages and records or documents related to "this scheme." Davidson and Kroll returned to Rensselaer with the signed warrant. Soon after their return, Blair, who was wearing a UPS uniform, and the UPS employee drove a UPS vehicle to 100 Orchard Street. The two men attempted to deliver the packages to Donahue's apartment. No one responded to the knock on the apartment door. The landlord offered to accept the packages, but Blair declined his offer. Before leaving, Blair and the UPS employee left a UPS sticker on ...

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