stated that the informant had personal knowledge that narcotics
were regularly stored at the S.B. Grocery, that the informant
had observed firearms in that location, and that the informant
had recently seen narcotics on the premises. Agent Delli-Pizzi
supplemented the informant's statement with background
information on Brown indicating a history of criminal activity,
Id., ¶¶ 10-11, and informed the Magistrate that, based on his
training and experience in two years as an INS special agent,
he knew that it was likely that narcotics and paraphernalia
associated with the narcotics trade would be found at this
location. Id., ¶ 13-14.
The Court finds that the Magistrate could have properly found
probable cause to issue the search warrant based on Agent
Delli-Pizzi's affidavit. Agent Delli-Pizzi stated the basis for
his reliance on the informant and the basis for his belief in
the veracity of the informant's information. The clear
implication from the affidavit is that the informant had had a
long relationship with law enforcement officials which had
proven very reliable in the past. This information alone goes
a long way to satisfying the totality of the circumstances test
outlined in Gates. Further, the Agent provided the Magistrate
with important information on Brown's criminal history which
further bolsters and corroborates the informant's statements.
Finally, Agent Delli-Pizzi states that his experience indicated
to him that the circumstances present at the S.B. Grocery
indicated a likelihood of criminal narcotics trafficking at
that location. The Second Circuit has long held that a
magistrate is entitled to credit the expert opinion of an agent
with experience in the area of criminal activity about which he
is testifying. United States v. Fama, 758 F.2d 834, 838 (2d
Cir. 1985); United States v. Young, supra, 745 F.2d at 758.
Thus, applying the totality of the circumstances test, the
Court upholds that the Magistrate's finding that probable cause
existed to issue a search warrant directed at S.B.
The Court further finds that a Franks hearing is unnecessary
in the instant action. A defendant seeking to have the Court
hold a Franks hearing bears a substantial burden. "Franks
provides that if a criminal defendant makes a substantial
preliminary showing that a false statement was knowingly,
intentionally or recklessly made in order to obtain a search
warrant and if the false statement was necessary to establish
probable cause, the defendant is entitled to an evidentiary
hearing to determine if the warrant was obtained improperly."
United States v. One Parcel of Property Located at 15 Black
Ledge Drive, 897 F.2d 97, 100 (2d Cir. 1990). "[A] hearing is
required only if the defendant `makes a substantial preliminary
showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause.'"
United States v. Barone, 787 F.2d 811, 814 (2d Cir. 1986)
(Friendly, J.) (quoting Franks, supra, 438 U.S. at 155-56, 98
S.Ct. at 2676). "Franks does not require that all statements in
an affidavit be true; it simply requires that the statements be
`believed or appropriately accepted by the affiant as true.'"
United States v. Campino, 890 F.2d 588, 592 (2d
Cir. 1989) (quoting Franks, supra, 438 U.S. at 165, 98 S.Ct. at
2681), cert. denied sub nom. Ruiz v. United States, ___ U.S.
___, 110 S.Ct. 1787, 108 L.Ed.2d 788 (1990).
Brown has not made the requisite showing to justify a
Franks hearing. Brown, through the affidavit of his attorney,
has asserted that the warrant was insufficient in large part
because it relies on Agent Delli-Pizzi's affidavit whose
information was gathered almost exclusively from an informant.
While Brown's attorney attacks the agent's reliance on the
confidential informant and other alleged investigatory
failures, he challenges only one paragraph of Agent
Delli-Pizzi's sixteen paragraph affidavit as incorrect. Brown's
attorney contends that Agent Delli-Pizzi's assertion in
paragraph 12 of his affidavit, that there was a pattern of
narcotics trafficking within and near the Grocery, was untrue.
Affidavit of Michael M. Maloney, Esq., sworn to on July 24,
1990 ("Maloney Aff."), ¶ 10. The remainder of defendant's
attack on the agent's affidavit attacks the veracity of the
confidential informant and the agent's reliance on that
informant, but fails to make the type of specific factual
objections to the affidavit required by Franks. Further, even
accepting Brown's assertion that the content of paragraph 12 of
the agent's affidavit is false, there is still more than
sufficient information in that affidavit to support a finding
of probable cause for the warrant. A motion for a Franks
hearing "must be denied . . . if, after setting aside the
alleged misleading statements or omissions, `there remains a
residue of independent and lawful information sufficient to
support probable cause.'" United States v. Levasseur,
816 F.2d 37, 43 (2d Cir. 1987) (quoting United States v. Ferguson,
758 F.2d 843, 849 (2d Cir.), cert. denied, 474 U.S. 841, 106 S.Ct.
124, 88 L.Ed.2d 102 (1985)).
D) Suppression of Statements
Defendant Brown moves for suppression of certain post-arrest
statements. Brown, in an affidavit attached to his moving
papers, asserts that at the time of his arrest he requested an
attorney. Brown contends that, despite this request, law
enforcement officers continued to question him. During that
questioning, Brown allegedly made incriminating statements that
he now moves to have suppressed.
"Once in the custody of law enforcement officials, an accused
must be informed of his constitutional rights to remain silent
and to counsel, and a waiver of those rights, to be effective,
must be voluntarily, knowingly and intelligently made."
Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989) (citing
Colorado v. Spring, 479 U.S. 564, 572-73, 107 S.Ct. 851,
856-57, 93 L.Ed.2d 954 (1987); Miranda v. Arizona,
384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). "In
[Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981)], the Supreme Court held that a preindictment
suspect who asserts his Fifth Amendment right to counsel during
interrogation may not be questioned again outside the presence
of counsel unless he initiates the meeting." United States v.
Roberts, 869 F.2d 70, 73 (2d Cir. 1989).
In the instant case, an arrest warrant for Brown was executed
on February 13, 1990. Brown was found and placed under arrest
near an exit on the New Jersey Turnpike. The government
contends that at the time of his arrest, Brown was advised of
his constitutional rights, as required by Miranda, failed to
invoke his right to silence or for the presence of counsel, and
subsequently made a potentially incriminating statement to
certain of the arresting officers.*fn6 Brown also apparently
provided the arresting agents with certain background
information which, while it is not clear from his motion
papers, the Court assumes Brown also moves to have suppressed.
Regardless of whether Brown invoked his right to counsel
prior to any
custodial questioning, it is without doubt that any background
information, including his name, address, nicknames, birthdate,
and other information essential to his processing as an
arrestee, is not protected by the constitutional requirements
of Miranda and Edwards. "[T]he solicitation of information
concerning a person's identity and background does not amount
to custodial interrogation prohibited by Miranda v. Arizona. .
. ." United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.
1988); see United States v. Gotchis, 803 F.2d 74, 78-79 (2d
Cir. 1986); United States ex rel. Hines v. La Vallee,
521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied sub nom. Hines v.
Bombard, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976). In
United States v. Carmona, 873 F.2d 569 (2d Cir. 1989), the
Second Circuit explicitly extended the rule expressed in
Adegbite to situations where a defendant invoked his right to
counsel, and was nonetheless subjected to pedigree questions.
The Court found that Edwards was not intended to prevent
question which sought only "pedigree information or basic
identifying data," but instead only provided protection to
defendants who had invoked their sixth amendment rights to
counsel from a full custodial interrogation. 873 F.2d at 573.
Thus, to the extent that Brown seeks to suppress background, or
pedigree, statements made by him to law enforcement officials
after his alleged invocation of his sixth amendment right to
counsel, Brown's motion must be denied.*fn7
The Court inquiry does not end here. Brown contends that the
arresting officers continued to question him after his
assertion of his sixth amendment rights about matters other
than his background and identification. This is a serious
claim. Edwards clearly states that when a suspect or defendant
invokes his or her right to counsel, any ongoing interrogation
about the substance of the alleged criminal events must cease,
and no interrogation cane resume outside the presence of an
attorney for the suspect, unless that questioning is
voluntarily initiated by the suspect. If, in fact, law
enforcement officials continued to question Brown about the
substance of his alleged criminal activity after an invocation
of sixth amendment rights, the Court must, under the law,
suppress any statements made by Brown after he invoked his
The Court is faced with an apparently unsworn affidavit from
Brown alleging an invocation of his right to counsel prior to
questioning, and an affidavit from government counsel asserting
that Brown's potentially incriminating statements were made
voluntarily, free from any physical or mental coercion. Where
the Court is faced with such inconclusive and conflicting
evidence, an evidentiary hearing is appropriate. Thus, the
Court will hear evidence from the parties at a previously
scheduled hearing in this matter, scheduled for August 23, 1990
at 9:30 a.m. The Court reserves final decision on Brown's
motion to suppress his non-pedigree post-arrest statements
until after that evidentiary hearing.
Defendant Wilson's severance motion is denied.
Defendant Brown's motion for the severance of Counts One from
the remainder of the indictment is denied.
Defendant Brown's motion for the severence of Count Five is
denied, unless Brown provides the appropriate notification to
the Court and the government that he will not raise any defense
that places his intent or knowledge in issue. Such a
notification must be filed by August 30, 1990 in order for the
Court to reconsider its decision to deny defendant's motion.
Defendants' motion to suppress physical evidence seized from
the S.B. Grocery on February 13, 1990 is denied.
Defendant Brown's motion to suppress any pedigree information
given to law enforcement officials is denied.
The Court reserves decision on defendant Brown's motion to
suppress potentially incriminating, non-pedigree statements
allegedly obtained in violation of Miranda v. Arizona and
Edwards v. Arizona. An evidentiary hearing will be held on
August 23, 1990 at 9:30 a.m. on this issue. The Court's
decision will be rendered following this hearing.