178 F.Supp. 5 (E.D.N.Y. 1959), Misc. 2225, United States v. Di Bella

Docket Nº:Misc. 2225.
Citation:178 F.Supp. 5
Party Name:UNITED STATES of America v. Mario DI BELLA and Samuel Panzarella, Defendants.
Case Date:November 04, 1959
Court:United States District Courts, 2nd Circuit, Eastern District of New York
 
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178 F.Supp. 5 (E.D.N.Y. 1959)

UNITED STATES of America

v.

Mario DI BELLA and Samuel Panzarella, Defendants.

Misc. 2225.

United States District Court E.D. New York.

Nov. 4, 1959

Jerome Lewis, Brooklyn N.Y., Attorney for defendant Mario DiBella, for the motion.

Cornelius W. Wickersham, Jr., U.S. Atty., Brooklyn N.Y. by Charles L. Stewart, Asst. U.S. Atty., Brooklyn, N.Y., in opposition.

RAYFIEL, District Judge.

The defendant, Mario DiBella, moves under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress all evidence seized in his apartment at 35-15 80th Street, Jackson Heights, Queens County, New York, on March 9, 1959 by agents of the Federal Bureau of Narcotics, as well as any and all evidence gleaned therefrom, on the ground that the search and seizure was unlawful, being violative of the Fourth Amendment of the Constitution of the United States and of Rules 3 and 4 of said Rules.

The defendant bases his motion on the following three grounds:

1. that the warrant of arrest was invalid because the complaint on which it was based did not state facts sufficient to show probable cause;

2. that his arrest under said warrant was used as a pretext to make an exploratory search of the defendant's apartment; and

3. that the warrant was invalid because it bore the date October 6, 1958, while the complaint on which it was based was dated October 15, 1958.

As to the third ground, it is palpable that the error in date was inadvertent. Both the warrant and the complaint on which it was based, were originally dated October 6, 1958. The date on the complaint was changed in ink to October 15, when it was sworn to before Commissioner Epstein. The date on the warrant, however, was not changed and was thus signed by the Commissioner. This was clearly an oversight and should and does not affect the validity of the warrant, which obviously, was issued on October 15, 1958. As a matter of fact defendant's counsel, in the statement of

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undisputed facts contained in his brief, alleges '1. That on the 15th day of October, 1958 a warrant was issued * * *.' (Emphasis supplied.)

As to the failure of the complaint to state facts showing probable cause.

The complaint alleges on information and belief that 'the defendants, Mario DiBella and Samuel Panzarella, did on September 10, 1958, at Jackson Heights, Long Island, New York, within the Eastern District of New York, unlawfully sell, dispense and distribute a narcotic drug, to wit: approximately one ounce of heroin hydrochloride, a derivative of opium * * *.'

The following paragraph states 'That the source of your deponent's information and the grounds for his belief are your deponent's personal observations in this case, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics.' (Emphasis added.)

Doubtless the complaint was inexpertly drawn. It alleges, on information and belief, that the sale of the heroin took place on September 10, 1958, and then goes on to say that the source of the complainant's information and grounds for his belief are, among other things, his own observations. Obviously, if the sources of his information were his own observations, then he had personal knowledge of the facts.

I have read the statements of Agents Costa and Moynihan which are set forth in Appendix B and C, attached to the affidavit submitted in opposition to this motion by...

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