the evidentiary value of many of the items sought. Shea Aff. at
9, n. 4.
Defendants' motion to suppress and for an evidentiary hearing
is based on two affidavits, one dated September 14, 1990 by
Ivan S. Fisher, attorney for defendant Miguel Munoz, and one
dated September 13, 1990 by Ramona Munoz, also known as
defendant Marilyn Montalvo (the "Munoz/Montalvo affidavit").
Defendant Munoz/Montalvo's affidavit states she was told that
the FBI agents entered the House where she lived on December
26, 1990; that she was not at the House at the time they
entered the House and that she did not return to the House
until December 28, at which time she found the door locked and
had to use her keys. Defendant Munoz/Montalvo then states that
to the best of her knowledge, nobody other than the FBI agents
had been in the House since the arrest on December 26, 1989,
and that there was no indication of a robbery as nothing of
value had been taken. She states, however, that her dresser
drawers were open and clothes removed and thrown on the bed.
Laundry bags full of clothes were also emptied on the bed; mail
left in the kitchen and den had been placed on the living room
table; and flowers had been removed from vases and strewn on
the furniture. In the attic, shoes, sheets and curtains, which
had been neatly put away, were lying in disarray on the floor.
Munoz/Montalvo Aff. at 2. She then concludes that the FBI
agents had searched her House on December 26. Id. at 3.
Attorney Fisher's affidavit utilizes the Munoz/Montalvo
affidavit and inadmissible hearsay information to offer the
conclusion that an illegal search of the House had been
conducted by the agents on December 26, and not a security
sweep; that the search was not justified by exigent
circumstances; and that the February 2, 1990 search warrant
application by Agent Shea contained information derived from
the December 26, 1990 "search" and was therefore tainted.
Fisher Aff. at 2.
In reply, the government submits a second affidavit by Agent
Shea stating that he made the application for a search warrant
without knowledge of any item seen by the agents who entered
the House on December 26, 1989 other than a photograph of a
woman on the wall of the living room (upon which he placed no
reliance); that the delay in the application for a search
warrant was due to Gonzalez' need for counsel and the time
required for Gonzalez to reach an agreement with the
Government; that his application was based wholly on his
debriefing of Gonzalez and his own experience in similar cases;
and that in that debriefing no one inquired about any items
that were seen by the agents on December 26, 1989. Shea Aff. of
November 5, 1990 ("second Shea affidavit"). The Government also
submits affidavits of Special Agents Thomas Neer and Joseph
Sconzo, two of the three FBI agents who entered the House on
December 26, 1989, stating that they took part in a security
sweep, "looking only in places where persons might have been
hiding," and that a "search" of the premises was not conducted
on that occasion. Aff. of Thomas Neer, November 5, 1990; Aff.
of Joseph Sconzo, November 5, 1990. Defendants submit in reply
an affidavit of Charles Kelly, an investigator employed by the
defense, which infers, based on hearsay information, that the
actions of the FBI agents on December 26, 1989 constituted an
illegal search. Kelly Aff., November 13, 1990.
Defendants' motion to suppress is based on two contentions:
(1) the warrant was invalidly issued because it is the fruit of
an earlier impermissible search and illegal eavesdropping, and
(2) the warrant was invalidly issued because information on
which it was based was too stale and misleading for a warrant
A review of Agent Shea's affidavit of February 2, 1990 offers
no support for defendants' contention that it was based to any
degree whatsoever on the warrantless entry of the House
conducted by the FBI following Gil's arrest. Rather, the
application for a search warrant is stated to have been based
on the debriefings of
Gonzalez and Agent Shea's conclusions as an experienced
investigator that evidence which would corroborate Gonzalez's
account of occurrences between December 21, 1989 and December
26, 1989 was likely to be on the premises. Shea Aff. at 2, n.
1, and at 9-15, Paragraphs 10-12. Accordingly, there is no
indication that the Magistrate's decision to issue the warrant
was based on observations made during the warrantless entry on
December 26, 1989. The second Shea affidavit confirms that the
determination to seek a search warrant was in no way prompted
by anything the agents might have seen during the warrantless
entry of the House on December 26, 1990. Nothing in defendant
Munoz/Montalvo's or Mr. Fisher's supporting affidavits contains
an explicit contradiction of the facts stated by Agent Shea or
provides evidence of a causal link between the warrantless
entry of the House and the February 6, 1990 discovery of the
challenged evidence pursuant to the search warrant. The
Munoz/Montalvo affidavit represents only a conclusion from
observations on December 28, 1989 that an illegal search had
occurred during the warrantless entry.*fn4
Because the application for a search warrant shows no causal
link between the December 26 warrantless entry and the
application for a search warrant, and defendants' affidavits
make no showing of such a causal link, the motion to suppress
and request for an evidentiary hearing are denied. Murray v.
U.S., 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).
Defendants have not made the substantial showing that Agent
Shea's affidavits were knowingly and intentionally false or
demonstrated a reckless disregard for the truth, or that the
facts claimed to be false were necessary to the Magistrate's
finding of probable cause required in Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In fact,
defendants have made no showing relevant to the probable cause
allegations supporting the search on February 6, 1990. Whether
defendant Gil was arrested inside or outside the House on
December 26, 1989 and whether a legal security sweep or an
illegal search occurred on that date are irrelevant to whether
there was probable cause for issuance of a warrant for the
search on February 6, 1990.
Secondly, the Court does not find the defendants have made
the requisite showing that an illegal search by law enforcement
agents occurred on December 26, 1990. Defendant Gil's arrest
outside the House as admitted by the government does not mean
the agents conducted an illegal search. A security sweep in
order to arrest other conspirators does not necessarily
constitute an illegal search. See, e.g., United States v.
Jackson, 778 F.2d at 937. Evidence of clothes and flowers in
disarray does not mean that the agents were responsible for the
disorder or that they illegally searched the House.*fn5
Defendant Munoz/Montalvo's affidavit does not state when she
had last been in the House. Defendant Gil, Raoul (LNU) and
others had been in the House after she left it. According to
Gonzalez and Gil, other persons used the House on a regular
basis. Under these circumstances, defendants have not offered
specific detailed and non-conjectural facts sufficient for this
Court to conclude a substantial claim is present that, in
contradiction of the agents' affidavits, the agents were
responsible for the conditions described by Ms. Munoz/Montalvo.
United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983);
United States v. Migely, 596 F.2d 511, 513 (1st Cir. 1979),
cert. denied, 442 U.S. 943, 99 S.Ct. 2887, 61 L.Ed.2d 313
(1979). Lastly, the Kelly affidavit is not based on personal
the circumstances of the December 26 entry or sweep of the
House and is unsupported by any affidavit of any other person
who does have such knowledge. In view of the affidavits
submitted by the agents who took part in the sweep and do have
firsthand knowledge thereof, the Kelly affidavit does not raise
a factual issue sufficient to entitle defendants to a
suppression hearing. United States v. Gregory, 611 F. Supp. 1033,
1044 (S.D.N.Y. 1985).
The claim that the information upon which the search warrant
was based was too stale and misleading to support the valid
issuance of a search warrant is ill-founded. The second Shea
affidavit sets forth adequate reasons for the delay in the
application and the alleged "misleading" portions of the
affidavit of February 2, 1990 were not necessary to support the
issuance of the warrant by the Magistrate.
The motion is denied.
IT IS SO ORDERED.
ON MOTION FOR SEVERANCE
Defendant Cristo-Rey Ramirez-Pena ("Ramirez-Pena") moves for
severance pursuant to Fed.R.Crim.P. 14. In support of his
motion, he submits an affirmation of counsel which refers the
Court to the memorandum of law submitted by defendant Enrique
Houellemont in support of his own motion for severance.
Ramirez-Pena has raised no new issues of law or fact sufficient
to justify severance. Accordingly, for the same reasons that
this Court denied the motions for severance of defendant
Houellemont and other defendants, in its Opinion dated July 20,
1990 and other opinions in this case, the motion for severance
IT IS SO ORDERED.