L.Ed.2d 677 (1987) only allows the suppression of evidence in
four limited circumstances: (1) if the magistrate was misled by
information the affiant knew was false; (2) if the magistrate
wholly abandoned his judicial role; (3) if the supporting
affidavit lacked any indicia of probable cause; and (4) if the
warrant was insufficiently specific. Id. at 923, 104 S.Ct. at
The alleged factual omissions implicate none of these four
Leon factors. First, the fact that Thomas LaMorte, William's
brother, did not see any books or records in his visits to
William's home is not a material omission. It is unlikely that
as a guest Thomas LaMorte would see detailed records regarding
William's drug smuggling. The testimony of Special Agent
Agrifolio established that the records were primarily seized
from the basement, a closet safe, and an upstairs office. It is
doubtful such records would be in a guest's plain view next to
the family photo albums on a coffee table. LaMorte cannot
credibly argue that the officials in this case misled the
magistrate by omitting this fact.
Second, the fact that the affidavit did not disclose that
LaMorte maintained an office in Manhattan similarly fails to
trigger any Leon protection. Implicit in any search warrant for
documentary evidence is the fact that the records might
possibly be maintained in any number of other places such as a
safe-deposit box or be in some other person's possession. The
magistrate could hardly have been misled by this self-evident
Finally, the failure to disclose that LaMorte owned several
properties in addition to the premises is of no moment
whatsoever. The record indicates that the agents believed that
the premises was LaMorte's principle residence as a result of
utility bills and the school enrollment of LaMorte's children.
In this instance, the agents presented all the relevant facts
in their knowledge to a detached and neutral magistrate. The
affidavit even emphasized the three and one half year lapse of
time between the last alleged criminal act and the date of
application for the warrant. The magistrate then considered all
of these relevant facts and issued a facially valid warrant.
The agents relied on this warrant in good faith and should
not have questioned its facial validity. The testimony of
Special Agent Agrifolio established that AUSA Ball believed
there was probable cause to issue the warrant, and that after
obtaining the warrant from the magistrate, the agents proceeded
to the premises believing they possessed a valid warrant.
Courts in this circuit should not suppress evidence in such
circumstances. United States v. Buck, 813 F.2d 588, 593 (2d
Cir.), cert. denied 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121
(1987); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir.),
cert. denied 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985).
In sum, LaMorte has not offered a persuasive rationale that the
evidence should be suppressed under the good faith exception.
C. Bill of Particulars
LaMorte moves this Court to order the Government to produce
a detailed bill of particulars disclosing the dates, times,
places, and names regarding the acts he is charged with. In
order to obtain a bill of particulars, the defendants must
establish that the Indictment did not "set forth the essential
elements and facts needed to inform [him] of the charges."
United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The
important question is whether the information sought is
necessary, not whether it is helpful. United States v.
Guerrerio, 670 F. Supp. 1215, 1224 (S.D.N.Y. 1987); United
States v. Payden, 613 F. Supp. 800, 816-18 (S.D.N.Y. 1985). It
is improper to use a bill of particulars to compel the
Government to disclose the manner in which it will prove the
charges or preview its evidence or legal theory. United States
v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).
The Indictment 89 Cr. 742 specifically lists the dates,
times, amounts of drugs, and locations of the overt acts
charged for the conspiracy and continuing criminal enterprise
counts. The forfeiture counts specifically lists each property
by address, and location. Further, the record indicates that
the Government has provided LaMorte with extensive pre-trial
discovery. This Indictment adequately informs LaMorte of the
charges against him, and comports with the specificity
requirements of Rule 7(c) of the Federal Rules of Criminal
Procedure and applicable law. Accordingly the defendant's
request for a bill of particulars is denied.
It is hereby ordered that the motion to suppress evidence is
hereby denied in all respects. It is further ordered that
defendant's motion for a bill of particulars is denied.
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