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April 7, 1993


The opinion of the court was delivered by: SONIA SOTOMAYOR


 The Fourth Amendment erects around each of us a barrier against governmental intrusion, shielding against "unreasonable searches and seizures" and mandating that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." To deter conduct violative of the Fourth Amendment, and thereby to secure and safeguard the precious rights that it guarantees, courts have developed the exclusionary rule. United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3412, 82 L. Ed. 2d 677 (1984), citing United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620, 38 L. Ed. 2d 561 (1974). The case at bar is not the familiar one where, as in Leon, the constable or magistrate merely blundered, thereby permitting admission of otherwise improperly seized evidence, but rather the not-rare-enough one where a law enforcement officer not only flouted the Constitution, but intentionally misled a magistrate into issuing a search warrant that she had initially refused to grant. This type of egregious conduct must be deterred if the Fourth Amendment is to have any meaning.

 Following a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), the Court concludes that false material facts were used to procure a warrant to search Apartment A2 at 200 West 109th Street in Manhattan ("Apt. A2"). The Court is also persuaded by the record that the magistrate would not have issued a warrant absent those deceptions, and therefore defers to the magistrate's own initial disposition of the probable cause inquiry. For these reasons, more fully set out below, the motion of defendant Nelson Castellanos to suppress the evidence seized in connection with the search of Apt. A2 is GRANTED.

 I. Background

 On July 1, 1992, defendant Nelson Castellanos was arrested in the vicinity of 200 West 109th Street and charged with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine. Complaint, Mag. Dkt. No. 92-1324. Late that evening, Detective Stephen Guglielmo, of the New York Drug Enforcement Task Force, went with Assistant United States Attorney ("AUSA") Maxine Pfeffer to the home of Magistrate Judge Barbara A. Lee to obtain a warrant to search Apt. A2. The magistrate initially did not issue the warrant, but only did so after additional facts were inserted into the affidavit signed by Detective Guglielmo. Challenging the veracity of statements contained in that affidavit, defendant moves to suppress the evidence seized as a result of the execution of the warrant.

 With the numerous disputed and inconsistent factual details set to one side, a straightforward outline of the relevant facts emerges. Detective Guglielmo was the case agent in charge of the investigation of the defendant. One of the primary goals of his investigation was to determine the "stash location" where defendant's narcotics were stored. He enlisted the assistance of a confidential informant, Jose "Tony" Vega, who began cooperating with the government in December 1991, several months after his own arrest that September. Detective Guglielmo learned from Vega that he had bought cocaine from the defendant inside Apt. A2 on numerous occasions prior to his cooperation with law enforcement authorities. Detective Guglielmo also spoke to the local precinct that had, at some unspecified previous time, received anonymous letters concerning the drug activities at the building at 200 West 109th Street (the "building").

 On February 27, 1992, Detective Guglielmo gave Vega $ 2,300 with which to purchase cocaine from the defendant. Vega and Castellanos met that day in front of 200 West 109th Street, and then entered the building for either a "short time" or "approximately five minutes." What actually happened while they were in the building is the subject of this hearing. There is no dispute among the witnesses, however, that defendant did not deliver any drugs to Vega inside the building, but instead directed Vega to go outside the building. After Vega left the building, he went to 108th Street and Broadway, a few blocks away, where co-defendant Hector Venicio Soto, also known as Venicio, gave him a Remy Martin box containing 250 grams of cocaine. During the debriefing that followed the transaction, Vega told Detective Guglielmo that he had paid $ 2,300 for 125 grams of the cocaine, obtaining the rest on credit.

 Detective Guglielmo prepared a Drug Enforcement Administration ("DEA") report concerning the events of February 27. The report does not include any information about where Vega and Castellanos had been when they were inside the building. It does not mention Apt. A2, the suspected stash location, in any way. It also does not mention that anyone other than defendant and Vega was inside the building, or that Hector Venicio Soto -- who allegedly gave the cocaine to Vega -- had been with the defendant inside the building.

 Yet, at the Franks hearing, Detective Guglielmo testified that he learned from Vega during the February 27 debriefing that Vega and Castellanos had gone up to the second floor of the building and had spoken in front of Apt. A2. They "were going to go into the apartment, but another individual . . . Venicio, stated that the block was hot." Detective Castellanos continued his testimony by explaining that in response to the warning that the block was "hot," defendant had directed Vega to pick up the cocaine around the corner. There, Vega met Hector Venicio Soto and obtained the cocaine from him. Out of all of this testimony, only the material in the last sentence was included in the DEA report.

 On March 10, 1992, Detective Guglielmo videotaped a second meeting between Vega and the defendant in front of the building. Again, the two entered the building. At the Franks hearing, Vega distinctly recalled that on March 10 he remained with the defendant on the staircase to the second floor, adamantly denying that on that day they had approached Apt. A2. Vega also testified that he had only been inside the building twice with the defendant after he began cooperating with the government -- February 27 and March 10. Although he insisted that on one of those two occasions, the defendant approached the door of Apt. A2, keys in hand, Vega would not agree that the approach to the door of Apt. A2 did occur, or had to have occurred, during their February 27 meeting.

 On July 1, 1992, Detective Guglielmo and several other agents arrested Castellanos pursuant to an arrest warrant. They searched a white shopping bag that the defendant was carrying and found it to contain approximately $ 10,000 in cash, which consisted mostly of $ 1 and $ 20 bills. They also took custody of defendant's keys, and then went into the building and inserted the keys into the locks on the door of Apt. A2, determining that the keys fit those locks. While they were testing the keys, they heard noise or music coming from within the apartment and entered it to conduct a security sweep.

 That evening, Detective Guglielmo and AUSA Pfeffer prepared a search warrant affidavit for Apt. A2 and brought it to Magistrate Judge Lee's home. AUSA Pfeffer has stipulated that she was not told about the security sweep and that the sweep was not disclosed in the affidavit or in conversation with the magistrate. Moreover, after the magistrate reviewed the affidavit, rather than issue a warrant, she asked that additional information be provided with respect to Apt. A2. In response to the magistrate's inquiry, Detective Guglielmo, without AUSA Pfeffer, went into the hallway outside of the magistrate's apartment and contacted Vega by cellular telephone. Detective Guglielmo claims that Vega reminded him of the February 27 approach to Apt. A2. During the Franks hearing, however, Vega only recalled telling Detective Guglielmo about the location of a safe inside Apt. A2 and could not recall anything else that he might have said during their telephone conversation.

 After he completed his call with Vega, Detective Guglielmo returned to the magistrate's apartment. AUSA Pfeffer inserted into the affidavit by hand the information that Detective Guglielmo represented he had just learned from Vega. This handwritten insert in Paragraph 6 of the affidavit ...

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