pursuant to a Search Warrant Affidavit signed by Magistrate Dolinger on March 26, 1993. (A copy of the Search Warrant Affidavit is attached as Exhibit 4 to the Government's Memorandum.) Specifically, Santos contends that insufficient probable cause existed to support the Search Warrant Affidavit to search his evidence. We cannot agree. For the reasons set forth below, the Court finds that the Government had probable cause to search Santos' residence on March 30, 1993.
The standard for probable cause has been clearly articulated in this Circuit. "'Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" United States v. Bakhtiari, 913 F.2d 1053, 1062 (2d Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)), cert. denied, 111 S. Ct. 1319 (1991); United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). The determination of whether the Government made such a showing prior to issuance of a search warrant must be reviewed in a practical light, see Illinois v. Gates, 462 U.S. at 241, because "probable cause is a flexible, common-sense standard," Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983).
The Government proffers several bases of probable cause for the March 30, 1993 search. Gov't Mem. at 7-8. First, the government contends that Complaint Affidavit, attached to the Search Warrant Affidavit in Gov't Exhibit 4, established probable cause that defendant Santos was involved in a large scale heroin distribution conspiracy.
Second, the Government points out that CW was in the apartment several times, Search Warrant Aff. P 12, and saw more than once, two firearms-- a Derringer and a .380 caliber gun-- in the apartment. Id. Third, defendant Santos was living in the apartment prior to execution of the search warrant on March 30, 1993. Id. Finally, the Government argues that ATF Special Agent Reid's allegations about his experience with additional tools of the drug trade besides firearms id, at P 13, enhanced the probable cause and the permissible scope of the search.
Defendant Santos does not contest the factual underpinnings of the foregoing Government allegations. Rather, he argues that probable cause did not exist because:
(1) He did not live in the apartment on March 12, 1993, but rather moved into the apartment in late March.
Santos affidavit, P 2.
(2) Nowhere does the Search Warrant Affidavit state that "Mr. Santos engaged in the distribution of narcotics from his residence." Def. Santos Memorandum at 7.
(3) The Search Warrant Affidavit does not allege that the seized gun belonged to Santos or that he possessed it. Id, at 6-8.
(4) The information relied upon by the Government in the Search Warrant was twelve days old and therefore stale. Id, at 10-11. Each of these arguments is meritless, and they are addressed in turn below.
In this Circuit, "if an informant's declaration is corroborated in material respects, the entire account may be credited, including parts without corroboration." United States v. Wagner, 989 F.2d 69, 73 (2d Cir.). The Complaint Affidavit, P 4, in which Special Agent Delano sets forth the instances in which information supplied by the CW in the past has been corroborated, establishes the reliability of the CW. Given the reliability of the CW, we find the Government's uncontroverted allegations, supra at 4, to establish probable cause to search the apartment for firearms. Zurcher v. Stanford Daily, 436 U.S. 547, 556, 56 L. Ed. 2d 525, 98 S. Ct. 1970 (1978) ("The critical element in a reasonable search is . . . reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought"). We find, moreover, that the scope of the search was permissibly expanded in light of Special Agent Delano's allegations regarding his experience with additional tools of the drug trade which are often found in the vicinity of firearms. Search Warrant Affidavit, P 13; see United States v. Young, 745 F.2d 733, 758 (2d Cir. 1984) (in issuing search warrant, magistrate is entitled to consider and credit specialized knowledge of expert affiant regarding common tools used by narcotics traffickers), cert. denied, 470 U.S. 1084 (1985).
The foregoing discussion also reveals the inadequacy of defendant Santos' contention that the Search Warrant Affidavit is defective because it fails to mention that Mr. Santos was engaged in the distribution of narcotics from the apartment. Def. Mem. at 7. The Search Warrant Affidavit was not based on defendant Santos' distribution of narcotics from his residence, but was instead based upon the fact the CW identified him as a member of a large heroin distribution organization who was keeping weapons at the apartment. Search Warrant Aff., P 12. We found supra at 5-6 that probable cause existed to search for such weapons, and that Special Agent Reid's expert opinion regarding other tools of the drug trade warranted expansion of the search to include drugs and cash. Thus, defendant Santos' argument regarding the failure of the Search Warrant Affidavit to mention distribution of narcotics from the apartment is unconvincing.
Defendant Santos' assertion that the Search Warrant Affidavit is defective because Santos (allegedly) did not move into the apartment until late March, Santos Aff., P 2, proves similarly meritless. As a threshold matter, evidence in the record persuades us that Santos' contention that he did not exercise control over the apartment on March 12 is not credible. See, Gov't Exhibit 5, p. 4, telephone call dated February 27, 1993 (draft transcript of consensual recording made between the CW and defendant Santos reveals that by February 27, 1993 Santos had obtained keys to the apartment and was beginning to move in). We find, moreover, that even if we were to assume Santos' allegation to be true, it is irrelevant to the Search Warrant Affidavit because that document states only that the CW observed guns in the apartment "on or around March 12" and informed the Government that Santos lived there on or about that date-- it is irrelevant, therefore, whether defendant Santos was living in the apartment exactly on March 12, or whether it was actually March 12, 1993 when the CW saw the guns. The critical point is that the CW was in the apartment several times, Santos was (by his own admission) living in the apartment prior to March 30, 1993, and that the CW observed guns in the apartment more than once. These facts fail to negate, and in fact affirm, our finding of probable cause.
Finally, we cannot agree with defendant Santos that the information relied upon by the Government was stale by the March 30, 1993, the date of the search. Def. Memorandum at 10-11. Prior to execution of the search, the Government had a reasonable basis to believe that Santos was an integral member of a large scale heroin distribution organization Search Warrant Aff., P 4-6, and had been informed by the CW that s/he had seen guns in the Santos residence on more than one occasion. Id, at P 12. Thus, both defendant's involvement in the narcotics conspiracy and his storage of firearms at the apartment were ongoing in nature. There was no indication, moreover, that circumstances had changed between about March 12, 1993 (the last time the CW saw the guns) and March 26, 1993. In light of the foregoing, we find that the information contained in the Search Warrant Affidavit was not so stale as to extinguish probable cause. See, United States v. Beltempo, 675 F.2d 472 (2d Cir. 1982) (rejecting rigid counting of days or weeks in evaluating probable cause determinations, and adopting a more flexible and common-sense approach to issues such as staleness), and cases cited therein.
III. Defendant Andino's Motion to Suppress
Defendant Andino argues that no probable cause existed for his arrest; therefore, evidence seized from him pursuant to his arrest, namely various documents and telephone numbers, should be suppressed. We disagree.
On or about April 13, 1993, a Grand Jury sitting in this District indicted defendant Andino. Indictment for 93 Cr. 291, attached as Exhibit 1 to Gov't Memorandum. In doing so, the Grand Jury found probable cause to charge defendant Andino. Based upon this Indictment, Magistrate Judge Bernikow issued a warrant for defendant Andino's arrest. Arrest Warrant for Louis Andino, 93 Cr. 291, attached as Exhibit 3 to Gov't Memorandum. Pursuant to this arrest warrant, defendant Andino was arrested on or about July 21, 1993.
Given the above chain of events, defendant Andino's motion to suppress is in substance a motion alleging a failure of the Indictment. Defendant Andino, however, has identified no specific infirmities with the Indictment or the Grand Jury. In this Circuit, an indictment returned by a legally constituted Grand Jury, if facially valid, is sufficient to require a trial on the merits. See United States v. Calandra, 414 U.S. 338, 343, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); United States v. Diaz, 675 F. Supp. 1382, 1389 (E.D.N.Y. 1987), aff'd, 878 F.2d 608 (2d Cir.), cert. denied, 493 U.S. 993, 110 S. Ct. 543, 107 L. Ed. 2d 540 (1989). Further, "an indictment, if valid on its face, may not be challenged on the ground that it is based on inadequate evidence." United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990). Accordingly, we deny defendant Andino's argument that the Government lacked probable cause to arrest him.
IV. Defendant Andino's Motion to Compel Disclosure of Information Concerning the Confidential Informant
Defendant Andino moves to compel disclosure of information concerning the confidential informant in this case. Def. Andino Memorandum at 5-7. Judge Conboy addressed at length the public and private concerns which militate against disclosure of such information. November 10, 1993 Amended Opinion and Order, pp. 26-29. For the reasons set forth there, we find that defendant Andino is not entitled to this information at this time.
Accordingly, the motion of defendant Santos to join in the motions of all other defendants insofar as they inure to his benefit is granted. The remaining motions of defendants Santos and Andino are denied.
Dated: New York, New York
March 21, 1994
ALLEN G. SCHWARTZ, U.S.D.J.