U.S. v. Tehfe

Decision Date06 December 1983
Docket NumberNo. 83-5596,83-5596
Citation722 F.2d 1114
PartiesUNITED STATES of America, Appellant, v. John TEHFE, a/k/a Ali Tehfe, Samir Tehfe, Ali Bazzi, Issa Bassam, Nabil Nehmi, Adolfo Sanchez, a/k/a "Fifu", Andres Gueche, Benny Rodriguez, Luis Herrera, Samira Tehfe, Jose Luis Perez, a/k/a "Junior", Luz Rodriguez-Perez, Roberto Martinez, a/k/a "Papito", Appellees.
CourtU.S. Court of Appeals — Third Circuit

W. Hunt Dumont, U.S. Atty., Samuel Rosenthal (argued), Chief Appeals Div., Newark, N.J.

Alexander Booth, Jr., Jersey City, N.J., Paul Casteleire (argued), Hoboken, N.J., for appellees.

Before ALDISERT, HUNTER and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

This is an appeal by the United States from an order suppressing evidence secured from a wiretap. The district court found that at the time the application for a wiretap was filed there was insufficient current information on a defendant's criminal activity on which to authorize the tap. We conclude, however, that the state judge who approved the wiretap properly found probable cause to believe that the telephone in question was being used in a continuing criminal enterprise. Accordingly, the suppression order will be vacated and the case remanded.

Defendants Sanchez and Herrera were indicted for conspiracy and various violations of the federal narcotics laws. The district court granted their motion to suppress because information in the warrant affidavit about Sanchez was stale. No discussion as to Herrera's connection with Sanchez on the target telephone appears in the application for the wiretap or in the district court opinion. However, the Government represents that the issues raised here will have a substantial effect in its case against Herrera.

During 1982, federal and state authorities in New Jersey cooperated in the investigation of a large scale drug distribution ring that included John Tehfe as one of its principals. According to confidential informants, Tehfe smuggled heroin and cocaine through Miami, had a distribution network in Dearborn, Michigan, and made frequent trips to South America in connection with his cocaine business. Based on this information federal agents secured a wiretap order from a federal district judge to conduct electronic surveillance on Tehfe's telephone in Guttenberg, New Jersey.

The wiretap authorization under review in this appeal was sought by state officers on January 21, 1983. They applied to a judge of the Superior Court of New Jersey for permission to tap the phone registered to "R. Sanchez" at 22nd Street, Union City, New Jersey. The lengthy affidavit attached to the application for the warrant described Tehfe's and his associates' large scale drug smuggling and distribution operation in the period beginning in 1978 and allegedly still continuing. These activities were international in scope and included contacts with sources in Lebanon and Colombia.

According to the affidavit presented to the state court, an automobile registered to a known drug distributor was seen in the driveway of Tehfe's Guttenberg home in October 1982. On January 10 and 13 of 1983, only a few days before the application for the state wiretap was filed, another drug distributor's car was seen parked at Tehfe's residence. Pen register records also revealed that calls, including one on January 10, 1983, were made from a telephone at his home to other drug dealers in the months before the request for a wiretap was granted.

Tehfe, who also had a residence in Flushing, New York, had an interest in a New Jersey business known as Betty Fashions. He had given one confidential informant the telephone number of Betty Fashions to use if he wished to contact Tehfe about his drug business. Law-enforcement agents raided Betty Fashions in May 1982 and seized automatic weapons, over $14,000 in cash, and a quantity of marijuana. Moreover, an individual arrested for involvement in a heroin distribution conspiracy listed his occupation as a salesman for Betty Fashions.

The application sought permission to tap the 22nd Street Telephone in the belief that it was being used by the conspirators in "an extensive narcotics distribution enterprise of international dimension." A confidential informant was quoted as having personal knowledge that Adolfo Sanchez and Andres Gueche were distributing heroin from residences located at 22nd Street and 48th Street in Union City. 1 They told the informant that their source of supply was "somewhere in the Mid-West."

Telephone company records disclosed that the phone at 22nd Street was registered in the name of "R. Sanchez," and the phone on 48th Street was registered to "A. Sanchez." Each subscriber listed the other as a reference. Criminal records disclosed that Adolpho Sanchez had been arrested and convicted for narcotics offenses. 2

An analysis of data supplied by pen registers revealed telephone communications between 22nd Street and Betty Fashions. In addition, calls were placed from both locations to telephones of two "documented drug violators." Another common number, called from both 22nd Street and Tehfe's residence, was that of a cafe in New York City frequented by known drug traffickers. The study of common phone numbers did not disclose when the various calls were made. The most recent events recited about the phone at 22nd Street consisted of calls placed to it from Tehfe's New York residence on January 16, 1983 and from Tehfe's New Jersey residence on January 17 and 19, 1983.

The affidavit also disclosed that Adolpho Sanchez was seen entering Tehfe's residence on one occasion. In December 1982, a month before the filing of the application a major narcotics violator was seen entering the 22nd Street location.

In ruling on the suppression motions, the district judge found that the application for the tap on Tehfe's phone had satisfied the requirements of probable cause and had recited "facts sufficiently indicating relevant, protracted and continuous activity on Tehfe's part so as to cure or eliminate the arguable staleness of certain information in the affidavit." Tehfe's motion to suppress the evidence obtained from his telephone was denied, and he later entered a guilty plea.

Even though the state application contained much of the same information about the enterprise that was in the federal application for the Tehfe wiretap, the district court reached a different conclusion on the suppression motion with respect to the tap at 22nd Street. The district judge noted that the report by the confidential informant that Sanchez was distributing heroin from that address did not state when the events actually occurred. As the court read the affidavit, it "[a]t ... best ... establishes that, in or before October 1982, [the informant] supplied information concerning conversations with Sanchez." (Emphasis in the original.) Similarly, Sanchez's visit to the Tehfe residence was thought to be in October 1982.

The more recent visit of the drug trafficker in December 1982 to 22nd Street was considered to have little probative value because the affidavit did not establish that Sanchez lived there. In the same vein, the failure to provide information linking Sanchez to Tehfe and Betty Fashions diminished the significance of the associational factor suggested by the undated phone records. The district judge viewed the three calls from the Tehfe residences during the week preceding the wiretap application as indicating mere association, not probable cause.

The court acknowledged that the "affidavit does recite drug-related activities of other individuals that arguably appear 'continuous and protracted.' But it does not give any detail or facts showing Sanchez to be a part of these ongoing activities...." In conclusion, the court stated, "The affidavit does not sufficiently link Sanchez to the target premises and communication facility to satisfy the particular nuances of probable cause .... But even assuming the adequacy of the affidavit on that score, the court holds that the information ... was fatally stale."

After argument on the government's motion for reconsideration, the district court declined to reverse its suppression order. On appeal, the government argues essentially that the district court erred in focusing on Sanchez's possible culpability rather than on the probability that the telephone at the 22nd Street address was being used for criminal purposes.

In its most recent pronouncement on the interpretation of affidavits for search warrants, the Supreme Court cautioned that

"after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.'

* * *

* * *

[S]o long as a magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more."

Illinois v. Gates, --- U.S. ----, ----, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (citations omitted). This does not mean that reviewing courts should simply rubber stamp a magistrate's conclusions; it does require the application of a common sense standard. United States v. Ventresca, 380 U.S. 102, 108, 109, 85 S.Ct. 741, 745, 746, 13 L.Ed.2d 684 (1965); see also Gates, --- U.S. at ----, ----, 103 S.Ct. at 2331, 2333.

When reviewing an application, courts must also bear in mind that search warrants are directed, not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of crime will be found. Zurcher v. Stanford Daily, 436 U.S. 547, 553-560, 98 S.Ct. 1970, 1975-1978, 56 L.Ed.2d 525 (1978). The affidavit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property. Nor is it required that the owner be suspected of having committed a crime. ...

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