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September 11, 1990


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


Defendant William LaMorte moves this Court to suppress evidence seized at his home during a search executed on July 20, 1988, and for a bill of particulars. For reasons to be discussed, LaMorte's motion is denied in all respects.

I. Facts

Indictment 89 Cr. 742 charged defendant William LaMorte with conspiracy to import marijuana, conspiracy to import heroin, operating a continuing criminal enterprise, and forfeiture of properties owned by LaMorte. At approximately 12:20 p.m. on July 20, 1988, Magistrate Arthur H. Latimer of the United States District Court for the District of Connecticut (the "magistrate") issued a warrant to search William LaMorte's residence at 49 Vineyard Lane, Greenwich, Connecticut (the "premises"), for "books, records, passports, receipts, notes, ledgers, address and telephone books, letters and other correspondence, and other papers" relating to the importation and distribution of marijuana and hashish (the "warrant").

The magistrate issued the search warrant based on an affidavit sworn to by Special Agent Mark J. Nelson of the Drug Enforcement Administration (the "affidavit"). The affidavit was drafted by Assistant United States Attorney Peter Ball. The affidavit was compiled from multiple confidential informants, including LaMorte's brother, and other sources of information. LaMorte was also named in an indictment filed in the United States District Court for the Northern District of California (the "California indictment"), and a complaint filed in the United States District Court for the Eastern District of New York (the "Eastern District complaint") charging him with conspiracy to import marijuana and hashish between 1971 and 1984. The affidavit attached and incorporated by reference the California Indictment and the Eastern District complaint.

The July 20, 1988 search of LaMorte's premises uncovered books and records relating to drug importation activities. In addition, the agents discovered $68,000 in currency, four glassine envelopes of heroin, a scale, photograph albums, and other items (the "additional items"). These additional items were not seized during the search. Instead, an additional warrant covering these items was applied for and issued by the magistrate at approximately 6:15 p.m. on July 20, 1988 (the "second warrant"). LaMorte was arrested at approximately 6:45 p.m. on July 20, 1988.

The Court held a hearing on the instant motion on July 9, 1990 (the "hearing"). At the hearing the Court heard the testimony of Special Agent Michael Agrifolio of the Drug Enforcement Administration, the case agent for the instant investigation. Special Agent Agrifolio participated in the search. The Court found his testimony credible.

II. Discussion

LaMorte argues that the evidence uncovered during the search should be suppressed since there was no probable cause to issue the warrant. LaMorte next argues that the information in the affidavit did not sufficiently connect the premises to the evidence sought. LaMorte further argues that the additional items should be suppressed as outside the scope of the warrant. Finally, LaMorte contends that this search is not protected by the good faith exception set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1983). Each of these arguments is without merit and must be dismissed.

A. Probable Cause

LaMorte contends that there was no probable cause to issue the search warrant since the information contained in the affidavit was "stale." LaMorte argues that the affidavit of Special Agent Nelson was sworn to and submitted to the magistrate on July 20, 1988, but the last criminal act LaMorte was alleged to have participated in occurred in 1984. LaMorte concludes that the three and one-half year old information in the affidavit was an insufficient basis for the magistrate to make a determination of probable cause.

In this circuit, staleness is dependent upon (1) the age of the supplied facts, and (2) the nature of the criminal conduct. United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981), cert. denied 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). While it is true that the facts submitted in support of an application for a search warrant must be close in time to the criminal activity to warrant a finding of probable cause, such proximity is less important in ongoing criminal activities. See United States v. Beltempo, 675 F.2d 472, 477 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982); United States v. Martino, supra, 664 F.2d at 867. A Court should determine whether evidence is likely to be found at an identified location using "flexibility and common sense." United States v. Beltempo, supra, 675 F.2d at 478. This Court should consider the "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 477, quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

Taking a common sense view of the practical considerations that confront law enforcement officials in everyday life, the criteria of age of facts and nature of the criminal activity support a finding that the magistrate had probable cause to issue the warrant. First, the facts in the affidavit paint a picture of a massive, ongoing criminal enterprise involving millions of dollars. The affidavit alleged that LaMorte smuggled drugs into the United States from countries all over the world. The affidavit stated that LaMorte had participated in the importation of two multi-ton shipments of marijuana from Thailand in the early 1980's, and two multi-ton shipments of hashish in the late 1970's. The Eastern District complaint alleged that LaMorte had been engaged in multiple importations of large quantities of marijuana from Jamaica, Colombia, Morocco, and Lebanon over a period ranging from 1971 until at least 1984. A common sense view of these facts make it likely that LaMorte would retain some records of these activities long after the activity ceased.

Second, the affidavit identified the specific items which likely remained long after LaMorte's criminal activity may have ceased. Two informants present at a late 1983 meeting with LaMorte concerning the Thailand shipments told Special Agent Nelson that LaMorte showed them a detailed ledger charting his sales of marijuana by grade and price to calculate the amount LaMorte owed the informants. The affidavit alleged that LaMorte travelled extensively in connection with his drug smuggling activities, and that LaMorte was alleged to have replaced his passport in 1985. The affidavit revealed that LaMorte had received correspondence in the last six months from one Bruce Perlowin, an individual serving a sentence on a conviction for a continuing criminal enterprise involving marijuana importation. The affidavit then identified many ...

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