manner to New York City. That same morning, Ruiz and
Rodriguez-Alonso left the warehouse in the red Dodge and rented
a U-Haul. Ruiz drove the Dodge and Rodriguez-Alonso drove the
U-Haul back to the warehouse. Moments later, Gomez arrived in
the Toyota. He was then observed removing several cardboard
boxes that appeared to be heavy from the Toyota and brought
them into the warehouse. Gomez was then seen removing twenty
cylindrical canisters from the warehouse and loaded them onto
the U-Haul truck which he drove to Falcon where the canisters
It was learned from Falcon that on October 5th Gomez paid
$2,659 in cash in payment of the shipping charges for the
twenty canisters. Shipping documents reflected that twenty
reels of wire were being shipped to Bogota.
During the evening of October 5th the twenty canisters were
inspected by agents of the United States Customs Service. Each
canister contained cable wire wrapped around the outside.
Inside each was a thick layer of plastic wrapped around a
cardboard cylinder. Inside each cylinder were large amounts of
United States currency which totaled $6,729,000.
Based upon the foregoing, Detective Martucci expressed the
belief, based upon his experience and the experience of other
investigating officers, that the money was the proceeds of
narcotics activity and requested search warrants for the Otis
Street warehouse, the Irma Avenue, Ann Place and Wilson Avenue
Chief Magistrate-Judge Simon Chrein granted the request and
issued the search warrants.
The propriety of issuing the search warrant for the Ann Place
house is challenged by the defendants Sierra-Garcia and Anna
Alvarez. The defendant Ruiz challenges the search of the Wilson
Avenue house and the defendant Cardona challenges the warrant
insofar as it pertains to the Irma Avenue house. Each argues
that the affidavit which has been reviewed in detail above does
not provide a factual basis for a finding of probable cause to
issue the warrant. Sierra-Garcia and Cardona also assert that
Detective Martucci acted "recklessly" in requesting the warrant
and desire a hearing on that issue. Although not previously
mentioned, there was, during the course of this investigation,
a warrantless search of an apartment on 38th Street in New York
City and the defendant Rodriguez-Alonso moved to suppress items
seized as a result. The government has advised the parties that
it does not intend to offer as evidence any item seized from
that apartment and that motion is, therefore, moot.
A brief restatement of well settled principles applicable to
motions to suppress evidence seized incident to a search
pursuant to a warrant may be useful. To begin with, the person
bringing the motion has the burden of proving that he had a
legitimate expectation of privacy in the premises searched.
Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561,
65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99
S.Ct. 421, 58 L.Ed.2d 387 (1978), reh'g denied, 439 U.S. 1122,
99 S.Ct. 1035, 59 L.Ed.2d 83 (1979). The movant seeking to
suppress evidence obtained under a regularly issued warrant has
the burden to show that the warrant was issued without probable
cause, United States v. De La Fuente, 548 F.2d 528, 534 (5th
Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d
249 (1977); United States v. Smith, 499 F.2d 251, 255 (7th Cir.
The Fourth Amendment imposes no constitutional prohibition
against a search and seizure pursuant to a warrant properly
issued by a neutral and detached magistrate. Once a magistrate
has determined that the facts set forth in the application
presented to him are adequate and reliable and that the
reasonable inferences to be drawn from them furnish probable
cause to issue the warrant, that determination is entitled to
substantial deference from the reviewing court. United States
v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d
684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509,
1512, 12 L.Ed.2d 723 (1964). The finding of probable cause by a
magistrate in and of
itself is a significant factor in declaring the validity of the
warrant. United States v. Follette, 379 F.2d 846, 848 (2d Cir.
1967). In reviewing the affidavit of Detective Martucci, giving
due deference to the magistrate's finding, the reviewing court
must keep clearly in mind the teaching of cases such as
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d
527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453
(1983) and Brinegar v. United States, 338 U.S. 160, 69 S.Ct.
1302, 93 L.Ed. 1879, reh'g denied, 338 U.S. 839, 70 S.Ct. 31,
94 L.Ed. 513 (1949) regarding the meaning of probable cause.
That teaching is that probable cause exists if the magistrate
had a substantial basis to conclude that a search of the
premises described might yield evidence of a crime; that it is
a practical and non-technical concept not readily reduced to a
precise legal formula; that in a particular factual context,
the existence of probable cause is to be viewed in a common
sense, non-technical way.
The motion to suppress the Ann Place house may properly be
determined by an application of those fundamental principles.
Neither Sierra-Garcia nor Alvarez has made any proffer by way
of sworn affidavit or otherwise tending to sustain their burden
of proving that they had a legitimate expectation of privacy in
those premises. On the contrary, the affidavit of Detective
Martucci reflects that the record owner of the Ann Place
property is Jackie DeLeon and that the only mail ever delivered
there is a monthly electric bill. To the extent that the other
defendants named in this indictment seek to join in the motions
of Sierra-Garcia, they clearly have not sustained their burden
of proof as to their standing to bring the motion. It is also
clear that the defendants have not sustained their burden of
proving that the warrant was issued without probable cause.
Assuming that the frequency with which Sierra-Garcia was seen
entering and leaving the Ann Place house would support the
inference that he either resided there or otherwise had a
legitimate expectation of privacy in those premises, a common
sense appraisal of Detective Martucci's affidavit could only
have led the magistrate to one conclusion, namely, that there
was a fair probability that the search of those premises would
yield evidence of a crime. See Illinois v. Gates, supra;
Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584,
590, 21 L.Ed.2d 637 (1969); Beck v. Ohio, 379 U.S. 89, 96, 85
S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). That conclusion was, in
addition, buttressed by Detective Martucci's asserted knowledge
that based upon his experience and training, drug traffickers
frequently have large amounts of money; that they frequently
conceal and maintain books and records, and keep and conceal
weapons and other "tools of the drug Trade" in a variety of
containers and stash houses. Detective Martucci also cited
Colombia, to which the huge sums of money were shipped, as a
source country (of which the magistrate could have taken
judicial notice); the clandestine way in which the money was
packed for shipment ($6,729,000 had already been seized four
days prior to the execution of Martucci's affidavit); the
surveillance-conscious way in which the parties were observed
to drive from time to time; the frequent use of pay phones, and
the payment of substantial freight charges to Falcon in cash.
The magistrate properly relied upon the significance of those
factors to Detective Martucci given his experience, training
and expertise in narcotics investigations, in finding probable
cause to issue the search warrant. See, e.g., United States v.
Fama, 758 F.2d 834 (2d Cir. 1985); United States v. Young,
745 F.2d 733 (2d Cir. 1984) cert. denied sub nom. Myers v. United
States, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985).
The Wilson Avenue House
The defendant Ruiz, in an affidavit in support of his motion,
swore that he moved into the Wilson Avenue house on August 1,
1990 and continued to reside there thereafter. Accepting his
affidavit as true, Ruiz had a legitimate expectation of privacy
in those premises. Insofar as his co-defendants joined in his
motion, they proffered nothing to satisfy their burden of
establishing their legitimate expectation of privacy in those
premises and their motions in this regard are denied.
Ruiz has not, however, carried his burden of showing that the
magistrate did not have probable cause to issue the warrant.
That conclusion is compelled by a common sense evaluation of
the facts recited in the affidavit. Ruiz was continuously
observed with the other defendants and participated with them
in the loading and unloading of boxes, canisters and other
items in or out of the Otis Street warehouse; the Wilson Avenue
house; the apartment complex on Palisades Avenue in New Jersey,
and was observed at the Ann Place house and the Irma Avenue
house. Boxes similar to those regularly moved in and out of the
Otis Street warehouse were moved into the Wilson Avenue house
on September 28, 1990 and on October 1, 1990. The particular
factual context in which these events occurred surely warranted
the conclusion that there was more than a fair probability that
these premises were used by the defendants in the pursuit of
their criminal activity and will yield the objects specified in
the search warrant.
The defendant Ruiz's attack upon probable cause is sought to
be supported by his contention that the boxes and other things
moved into his house were consistent with innocence — that is,
they may have been mundane household accoutrements. That
possibility does not preclude a finding of probable cause. In
United States v. Ivic, 700 F.2d 51 (2d Cir. 1983) the court
addressed that possibility explicitly and observed that the
fact that an innocent explanation may be consistent with the
facts alleged, however, does not vitiate probable cause. 700
F.2d at 57. See also United States v. Webb, 623 F.2d 758 (2d
Cir. 1980). The motion of defendant Ruiz is, therefore, denied.
The defendant Nestor-Cardona moves to suppress evidence
seized in the search of the house on Irma Avenue, Port
Washington, New York, also claiming that the affidavit of
Detective Martucci did not furnish the magistrate with probable
cause to issue the warrant. Cardona's motion is not supported
by any affidavit by him or anyone else having personal
knowledge stating any basis for the assertion by him of a
legitimate expectation of privacy in the Irma Avenue premises.
Having failed to meet this threshold burden as to his standing
to suppress the evidence seized pursuant to a search warrant,
his motion may be properly denied. See United States v.
Gillette, 383 F.2d 843, 848 (2d Cir. 1967); United States v.
Gregory, 611 F. Supp. 1033, 1044 (S.D.N.Y. 1985).
Even if Cardona had standing, his motion would be denied for
the additional reason that he has failed to meet his burden to
show the absence of probable cause for the issuance of the
warrant. Like the Ann Place and Wilson Avenue houses, the Irma
Avenue house constituted yet another piece in the puzzle
painstakingly assembled by the law enforcement team during the
investigation of these defendants conducted over a number of
weeks. On September 20, 1990, Sierra-Garcia was observed going
from the house on Ann Place to the house on Irma Avenue. The
following day, September 21, 1990, Ruiz and Cardona were
observed leaving the Irma Avenue house and proceeding from
there to the Otis Street warehouse. Cardona was carrying a
white plastic bag at the time. On October 4, 1990,
Sierra-Garcia left the Otis Street warehouse and drove the blue
Toyota at a high rate of speed to the Irma Avenue house, which
he entered. He was then observed leaving that house with a
cardboard box that appeared to be heavy. He placed that box
into the Toyota and drove off. The following day, October 5th,
Sierra-Garcia delivered twenty canisters to Falcon. Those
canisters, it was determined that day, contained nearly seven
million dollars in cash.
The vehicular peregrinations of these defendants from one
house to another, bringing in or carrying out from them similar
cardboard boxes, coupled with the inferences drawn therefrom by
Detective Martucci upon which the magistrate was justified in
relying, together with such inferences the magistrate himself
drew based upon his detached and neutral evaluation of the
facts, plainly provided the probable cause for the issuance of
the warrant. Discharging the responsibility of a reviewing
court in this matter and giving due deference to the
magistrate's findings, I am driven to conclude that there was
ample basis to believe that there was more than a fair
probability that the premises searched would yield the evidence
of criminal activity specified in the search warrant. For these
reasons, the motion of Cardona and of his co-defendants who
joined in it, are denied.
The defendants attack the validity of the search warrant on
the ground that it was obtained by an affidavit "recklessly"
sworn to by Detective Martucci. The exact nature of his
"recklessness" is not shared with the court and this aspect of
the defendants' motion need not detain us long.
Here, too, a restatement of basic principles points to the
rejection of the motion. The leading case of Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)
teaches that an affidavit supporting a search warrant is
presumed to be valid. It also teaches that an attack upon such
affidavit "must be more than conclusory" and should
specifically identify that portion of the affidavit charged to
be false accompanied by a statement of supporting reasons. The
attack here does neither and can not be seriously entertained.
See also United States v. Levasseur, 816 F.2d 37 (2d Cir.
Sierra-Garcia has also moved to suppress the evidence seized
without a warrant, following the search of the canisters on the
Falcon premises on October 5, 1990. That evidence was the
$6,729,000 found in the twenty canisters to which reference has
already been made.
I begin here too with the observation that the court has not
seen an affidavit from Sierra-Garcia or from any other
defendant or person having personal knowledge of the facts
asserting a legitimate expectation of privacy in the canisters
or in the premises of Falcon Forwarding. As has been heretofore
discussed, that deficiency would make appropriate the summary
denial of this motion for the reason that no defendant has
standing to make it. I will, in any event, address the merits
of this motion which is bottomed upon the claim that a
warrantless search is presumptively unreasonable and therefore
unlawful unless it can be rescued from that infirmity by a
recognized exception which, the defendants assert, is not
available in this case.
A brief restatement of well settled principles having
specific relevance to this search and seizure might be useful
at this juncture as well:
United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972,
1980, 52 L.Ed.2d 617 (1977) is oft cited for the principle
Border searches, . . . from before the adoption of
the Fourth Amendment, have been considered to be
"reasonable" by the single fact that the person or
item in question had entered into our country from
outside. There has never been any additional
requirement that the reasonableness of a border
search depended on the existence of probable
cause. This longstanding recognition that searches
at our borders without probable cause and without
a warrant are nonetheless "reasonable" has a
history as old as the Fourth Amendment itself.
Although Ramsey spoke of persons or things entering our
country, the sovereign power to search persons or things
leaving our country was recognized in California Bankers Ass'n
v. Shultz, 416 U.S. 21, 63, 94 S.Ct. 1494, 1518, 39 L.Ed.2d 812
(1974) in which the Court observed that:
those entering and leaving the country may be
examined as to their belongings and effects, all
without violating the Fourth Amendment. . . .
Several years later the Court of Appeals for this Circuit,
relying upon Shultz, explicitly held that the border search
exception applies to items leaving this country as well as
entering it. United States v. Swarovski, 592 F.2d 131, 133 (2d
Cir. 1979). That extension of the border search doctrine to
persons or things leaving the country is also reflected in at
least two statutes, namely, 22 U.S.C. § 401 and 31 U.S.C. § 5317.
The former provides in relevant part:
Whenever an attempt is made to export or ship from
or take out of the United States any arms or
munitions of war or other articles in violation of
law, or whenever it is known or there shall be
probable cause to believe that any . . . other
articles are intended to be or are being or have
been exported or removed from the United States in
violation of law, the Secretary of the Treasury, or
any person duly authorized for that purpose by the
President, may seize and detain such . . . other
articles. All . . . other articles . . . seized
pursuant to this subsection shall be forfeited.
Several things should be noted here. First, the statute has
been construed to authorize searches as well as seizures.
United States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980). Second,
the search and seizure of articles intended for export is not
limited to the border. Third, Ajlouny decided that "The statute
applies in terms to arms and munitions, but includes 'other
articles' and has been consistently applied to any items
destined for unlawful export." Id. at 835 (emphasis added).
31 U.S.C. § 5316(a)(1)(A) and 5322, as has been previously
discussed, make it unlawful to transport more than $10,000 out
of the United States without filing a prescribed report. In
addition, 19 C.F.R. § 162.21 provides:
Property may be seized, if available, by any
Customs Officer who has reasonable cause to
believe that any law or regulation enforced by the
Customs Service has been violated, by reason of
which the property has become subject to seizure
Annexed to the government's memorandum of law in opposition
to these motions is an affidavit by Richard Dallesandro, a
Special Agent with the United States Custom Service who states
that his assistance was requested by Detective Martucci, on
October 5, 1990, to inspect the canisters being shipped from
Falcon's warehouse to Bogota, Colombia. Upon arriving at the
Falcon premises, he was briefed by Detective Martucci and
members of the New York Drug Enforcement Task Force as to their
investigation and he examined the airway bill pertaining to the
canisters which indicated that they were to be shipped directly
to Bogota, Colombia, by air, through Challenge Air Cargo of
Miami. The record owner of the canisters was listed as Fiber &
Plastic Corp. (The airway bill is also attached to the
government's memorandum.) Special Agent Dallesandro concludes
by stating that after reviewing the airway bill, he and other
Customs Inspectors "performed an outbound or 'export' customs
examination of the twenty canisters. Inside the canisters we
discovered a quantity of U.S. currency totaling approximately
$6,729,000, concealed within cardboard cylinders underneath
wrappings of plastic and cable wire. The currency was then
seized." A plain reading of 22 U.S.C. § 401 authorized the
search and seizure of the canisters.