U.S. v. Fama

• Decision Date: 27 March 1985
• Docket Number: No. 626,D,626
• Citation: 758 F.2d 834
• Parties: UNITED STATES of America, Appellant, v. Barbara FAMA, Defendant-Appellee. ocket 84-1369.
• Court: U.S. Court of Appeals — Second Circuit

Page 834

758 F.2d 834

UNITED STATES of America, Appellant, v. Barbara FAMA, Defendant-Appellee.

No. 626, Docket 84-1369.

United States Court of Appeals, Second Circuit.

Argued Dec. 20, 1984.

Decided March 27, 1985.

Mary McGowan Davis, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellant.

Stanley M. Meyer, New York City (Frank A. Lopez, Brooklyn, N.Y., of counsel), for defendant-appellee.

Before MESKILL, KEARSE and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

In this expedited appeal, the United States challenges that part of an order of the United States District Court for the Eastern District of New York, Sifton, J., that suppressed evidence seized from appellee's home on September 6, 1984 pursuant to a search warrant. The district judge ruled that the warrant was invalid for lack of probable cause. Moreover, he found the accompanying affidavit too weak to support a reasonable, official belief in the existence of probable cause.

We disagree. While we acknowledge that a creditable probable cause question is raised, we do not reach it because we believe that, under the circumstances, we are compelled by United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), to reverse the suppression order.

BACKGROUND

In April 1984, pursuant to a warrant, the Fama home was searched. A truly astonishing quantity of evidence was seized from throughout the house, including approximately thirteen pounds of heroin; two and one-half pounds of cocaine; almost one hundred pounds of marijuana; over $3.4 million in cash; more than twenty-five firearms, at least seven of which were loaded, including semi-automatic pistols, revolvers and rifles, and large quantities of narcotics dilutents and other drug paraphernalia. As a result of the search, Barbara Fama, her husband and four children were all arrested. They are currently under indictment in the Eastern District of New York for a number of narcotics and firearms violations.

In June 1984, appellee and three of her children posted bail and were released on personal recognizance bonds. Their trial date was set for early September.

On September 6, 1984, appellee was arrested again. This arrest was based on charges arising from a narcotics investigation conducted by the United States Attorney for the Southern District and the Drug Enforcement Administration (DEA) and unrelated to the investigation that had led to appellee's first arrest. The target of the Southern District investigation, which had been ongoing since at least June 1984, was a large-scale narcotics trafficking ring operating in the lower East Side and Little Italy areas of Manhattan.

On or about September 5, 1984, DEA Special Agent Emilio Garcia went to an assistant United States Attorney (AUSA) in the Southern District and related to him the results of the investigation. The thirty-one page affidavit drafted by the AUSA and sworn to by Agent Garcia was filed with warrant applications on September 5 with the district court in the Southern District. The application sought arrest warrants for thirty individuals, including appellee Fama. Judge Cannella requested additional information on four of the named suspects. After hearing Agent Garcia's supplementary statements, Judge Cannella found probable cause as to all thirty suspects and issued the arrest warrants. He found probable cause as well to issue twenty search warrants, also on the strength of the thirty-one page affidavit, for premises within the Southern District.

The identical affidavit was presented to Judge Costantino in the Eastern District. He found probable cause to support the issuance of warrants for about thirteen premises located in the Eastern District, including appellee's home. This warrant and the subsequent search of the Fama home, which yielded $134,000 in cash and assorted items of drug paraphernalia, some coated with narcotics residue, is the subject of the instant appeal.

The affidavit that supported the arrest and search warrants contained the following information. Through intercepted phone conversations, investigating agents had learned that a narcotics transaction involving John DeLutro and Louis "Papo" At about 9:00 p.m., Papo entered 166 Mulberry Street, a multi-unit dwelling and home to both DeLutro and Palmieri. Fama and Palmieri entered the building a short time after Papo. At about 10:00 p.m., Papo left the building. Fama and Palmieri followed after a brief interval.

Garcia, two purportedly high level members of the drug trafficking organization, was to take place at "DeLutro's shop" at about 8:00 p.m. on July 31, 1984. Accordingly, surveillance was set up in the vicinity of Caffe Palermo, which was run by DeLutro, at 148 Mulberry Street in the Little Italy section of Manhattan. At about 7:30 p.m., appellee Fama was seen at the restaurant meeting with Albert Palmieri. Palmieri, Fama's uncle, was believed to be one of DeLutro's chief lieutenants in the narcotics ring.

At about 10:30 p.m., Papo and another suspect were seen in Papo's car near Mulberry and Grand Streets. Papo then drove to the lot where DeLutro was known to park his car and made a call on a public phone. Shortly thereafter, Papo and DeLutro had a meeting in the parking lot and DeLutro handed to Papo what detectives believed was a key.

Papo returned to 166 Mulberry Street, cradling an obvious bulge under his shirt, and let himself in with a key. Palmieri entered the building shortly after Papo. In a short time Papo left the building, the bulge having disappeared, and he returned to the parking lot where he again met with DeLutro. He handed DeLutro a key. DeLutro returned to Caffe Palermo and met with Palmieri.

The affidavit does not mention whether or when Fama left Caffe Palermo. According to the prosecution's version of the facts, Fama furnished the necessary cash for the July 31 transaction. The only other information in the affidavit that related specifically to appellee was a brief description of the amazing hoard of drugs, cash and firearms seized from the Fama home in April. The affidavit also noted that she was free on bail and awaiting trial in the Eastern District.

Appellee's motion to suppress the evidence seized in September was made in the course of the Eastern District pretrial proceedings which stemmed from her arrest in April. It was heard with a number of other motions, including motions brought by appellee, her husband and the four children, to suppress the evidence seized in the April search. The September seizure became an issue when the AUSA for the Eastern District announced her intention to introduce that evidence against appellee.

In a written memorandum decision and order dated September 24, 1984, Judge Sifton ruled that the evidence seized in September had to be suppressed. He posited that "the only plausible explanation for the issuance of the warrant appears to be some oversight resulting from the large number of warrants being applied for at the same time as part of a large scale narcotics investigation in another district." Gov't App. at 224-25. Because the affidavit contained such an abundance of details, he suggested, neither the law enforcement officials nor the issuing judge focused attention specifically on whether there was probable cause to search appellee's house. He further indicated that, in light of the contemporaneous involvement of the entire family in pretrial hearings, the information contained in the affidavit did not make probable the presence of additional contraband in the Fama home. Id. at 225. Indeed, Judge Sifton found the supporting affidavit "so lacking in information on the basis of which to conclude that contraband would again be found in the Fama residence that official belief in the existence of probable cause, even given the issuance of the warrant, would be wholly unreasonable." Id. at 224.

DISCUSSION

In United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court continued the retrenchment of the Fourth Amendment exclusionary rule by creating a good-faith exception. See also Massachusetts v. Sheppard, --- U.S. ----, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (exclusionary rule not applicable to search conducted pursuant to technically defective warrant where officers reasonably believed search was authorized by valid warrant); cf. Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The issue in Leon, as framed by the Court, was whether the "exclusionary rule should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." Leon, 104 S.Ct. at 3409.

The Court began its discussion by reiterating that the rule is not " 'a personal constitutional right of the person aggrieved' " but rather " 'a judicially created remedy designed to safeguard Fourth...