42 F.R.D. 347 (S.D.N.Y. 1967), 67 Cr. 296, United States v. Gomez

• Docket Nº: 67 Cr. 296.
• Citation: 42 F.R.D. 347
• Opinion Judge: MANSFIELD, District Judge.
• Party Name: UNITED STATES of America, v. Calixto GOMEZ, Defendant.
• Attorney: Robert M. Morgenthau, U.S. Atty., for Southern District of New York, by Paul K. Rooney, Asst. U.S. Atty., New York City, for plaintiff. Abraham Solomon, New York City, for defendant.
• Case Date: June 21, 1967
• Court: United States District Courts, 2nd Circuit, Southern District of New York

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42 F.R.D. 347 (S.D.N.Y. 1967)

UNITED STATES of America,

v.

Calixto GOMEZ, Defendant.

No. 67 Cr. 296.

United States District Court, S.D. New York.

June 21, 1967

Proceeding on motion attacking search and seizure of narcotics under warrant. The District Court, Mansfield, J., held that search warrant describing premises as basement apartment at stated address was sufficient although there was more than one basement apartment in premises, where officers who obtained warrant had familiarized themselves with apartment through surveillance and could identify particular apartment to be searched.

Motion denied.

Robert M. Morgenthau, U.S. Atty., for Southern District of New York, by Paul K. Rooney, Asst. U.S. Atty., New York City, for plaintiff.

Abraham Solomon, New York City, for defendant.

MANSFIELD, District Judge.

This is a motion attacking a search and seizure of narcotics pursuant to a warrant issued by the United States Commissioner on the ground that the warrant ‘ fails to comply with Rule 41 of the Rules of Criminal Procedure for the United States District Court.’ Although the moving papers fail to specify the basis of attack, the reply affidavit of defendant's counsel contends that the warrant was void for failure to describe with sufficient particularity the premises to be searched. The premises are described in the warrant as ‘ 130 W. 74th St., Basement Apt., New York, N.Y.’ Defendant contends that this description is insufficient for the reason that the premises are a multi-unit apartment house in which there is located more than one basement apartment.

The standard for determining whether a search warrant complies with Constitutional requirements is one of practical accuracy rather than technical nicety. The test to be applied is whether the description in the warrant is sufficient to enable the officer armed with it to ascertain and identify with reasonable

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effort the place intended to be searched. Steele v. United States (No. 1), 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757, (1925); United States v. Klaia, 127 F.2d 529 (2d Cir. 1942); United States v. Santore, 290 F.2d 51 (2d Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961). In resolving the issue of identification of premises, the court may take into consideration the familiarity of the officers executing the warrant with the particular...