Tirado v. Comm'r of Internal Revenue

• Citation: 74 T.C. 14
• Decision Date: 10 April 1980
• Docket Number: Docket No. 3868-74.
• Parties: JACQUE TIRADO, A.K.A. JACQUE DANTE, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: United States Tax Court

74 T.C. 14

JACQUE TIRADO, A.K.A. JACQUE DANTE, PETITIONER

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 3868-74.

United States Tax Court

Filed April 10, 1980.

Federal and State officers conducted a search pursuant to a State warrant “for narcotics—-the means of committing a crime or offense and the means of preventing a crime or offense from being discovered.” Evidence obtained from the search was given to respondent. Petitioner moved to suppress such evidence and its fruits alleging it was obtained in violation of the Fourth Amendment and, therefore, was subject to the exclusionary rule. Held, the evidence in question was legally seized. Stuart E. Abrams, for the petitioner.

Larry Kars and Elizabeth D. DePriest, for the respondent.

TANNENWALD, Judge:

This case is before us on petitioner's motion to suppress evidence on the ground that his Fourth Amendment rights were violated during the search in which the evidence was obtained.

FINDINGS OF FACT

Some of the facts have been stipulated for the purposes of this motion and are found accordingly. The stipulations of facts and the stipulated exhibits are incorporated herein by this reference.

At the time the petition herein was filed, petitioner was incarcerated at the Clinton Correctional Facility, Dannemora, N.Y.

On July 28, 1972, a warrant authorizing the search of apartment 8B at 446 East 86th Street, New York, N.Y., was issued by the Supreme Court of the State of New York, New York County, on the basis of an affidavit executed by Patrolman John DeRosa of the New York Joint Task Force (hereinafter task force).¹ That affidavit stated in relevant part:

2. I have received information from a reliable informant who has given information in the past resulting in 2 indictments in narcotic cases, wherein narcotics were bought, and whose identity and record of reliability is being revealed to the Court which determines whether or not to grant this application, that one, “Joaquin” Tirado———described by my informant as a male, N, approx. 30, 5'10 , 180 lbs,———occupying an apartment described as 8B———in premises 446 E. 86th Street,———New York County, is in possession of narcotic drugs———thereat. My informant further stated that on July 28, 1972, my informant was in the aforementioned apartment with “Joaquin” Tirado present and did see a quantity of narcotic drugs thereat. My informant further states that “Joaquin” Tirado trafficks in narcotic drugs principally during the nighttime.

3. In view of the above, there is probable cause to believe that the warrant cannot be successfully executed in the daytime.

4. Based upon the foregoing reliable information, I believe that “Joaquin” Tirado, occupying an apartment described as 8B———in premises———446 E. 86th St., New York City, is in possession of narcotic drugs thereat.

WHEREFORE, I respectfully request that the Court issue a warrant and order of seizure in the form annexed, authorizing the search of an apartment described as 8B———in premises 446 E 86th St.,———New York County, occupied by “Joaquin” Tirado, and of the person of “Joaquin” Tirado, and of any other person who may be found therein to have such property in his possession or under his control or to whom such property may have been delivered, for narcotics———and directing that if such property or evidence or any part thereof be found that it be seized and brought before the Court; together with such other and further relief that the Court may deem proper.

In view of the fact that the property sought to be seized is narcotics and therefore can be easily and quickly disposed of, it is respectfully requested that the officer executing the warrant be permitted to enter without prior notice of authority and purpose pursuant to Section 690.35 of the Criminal Procedure Law.

The warrant provided:

IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO ANY PEACE OFFICER IN THE CITY OF NEW YORK.

YOU ARE THEREFORE COMMANDED, during the day or night time, without prior notice of authority and purpose, pursuant to Section 690.35 of the Criminal Procedure Law, to make an immediate search of an apartment described as 8B———in premises 446 E. 86th St.,———New York County, occupied by “Joaquin” Tirado and of the person of “Joaquin” Tirado and of any other person who may be found therein to have such property in his possession or under his control or to whom such property may have been delivered, for narcotics——— the means of committing a crime or offense, and the means of preventing a crime or offense from being discovered, and if you find any such property, or any part thereof to bring it before me at the Criminal Courts building in New York County.

THIS WARRANT MUST BE EXECUTED WITHIN TEN (10) DAYS OF

DATE ISSUANCE AND RETURNED WITHOUT UNNECESSARY DELAY.

The warrant was executed on August 3, 1972, at approximately 11:15 p.m., in a search conducted by five members of the task force—-Special Agents Alexander Smith and Frank Panessa of the Federal Bureau of Narcotics, Detectives Patrick Campbell and Arthur Dolan of the New York City Police Department, and Patrolman DeRosa. Present in the apartment were petitioner, his brother, and three females. Within 5 minutes after the apartment was entered, two clear plastic bags containing a white powder, which was later determined to be cocaine, were found in a bathrobe on the bathroom floor of the apartment, at the feet of petitioner's brother. The brother was immediately placed under arrest and taken into the living room, where petitioner and the women were also arrested. Petitioner was arrested for possessing and trafficking in drugs. Petitioner was placed in handcuffs. Special Agent Panessa then read the arrested persons their Miranda rights.²

The search of the apartment continued, and $23,000 was found in an attache case in the bedroom, another $15,100 was found in a shoebox in the bedroom, and approximately $765 was found on petitioner's person. During the course of the search, the items seized included the following in addition to the items previously specified:

a. A bar of a substance known as “mannite.”

b. A clear plastic bag containing a white powder which was later determined to be quinine hydrochloride.

c. A strainer and a white plastic bowl.

d. Rent receipts and notices for the apartment.

e. A lease between Jacque Tirado and Parew Realty Corporation.

f. A notice from Chemical Bank with respect to the rental of a safe-deposit box.

g. Bank statements relating to a Chemical Bank account.

h. A savings account passbook at Chase Manhattan Bank, St. Thomas, Virgin Islands.

i. Parking tickets concerning two Rolls Royce automobiles.

j. Four safe-deposit keys.

k. A social security card.

l. A brown and white striped robe.

m. A .22 caliber Winchester rifle. The items seized were considered by the officers as evidence of possession of, and trafficking in, drugs.

One or two days after the search, Panessa met with Eugene Moran, an agent of respondent, to discuss the results of the search. Between August 3, 1972, and August 24, 1972, Smith met with Moran and disclosed to him the materials seized.

After the search, Smith conducted an interview with an official of the branch of the Chemical Bank located at 453 East 86th Street, New York, N.Y. The official disclosed that one of the safe-deposit keys was for box number 1335 at that branch, which was registered to Jacque Tirado. In addition, he stated that the petitioner had previously asked him to notarize a bill of sale for a Rolls Royce automobile. As a result of this information, and based on the safe-deposit box rental notice and statements from Chemical Bank, and the safe-deposit box keys, Smith obtained a search warrant for “currency, securities, deeds, and other papers evidencing ownership of property,” in safe-deposit box number 1335 at the Chemical Bank. Upon execution of the warrant, he seized $10,000 in U.S. currency and numerous articles of jewelry.

Based upon the savings account passbook at Chase Manhattan Bank, St. Thomas, Virgin Islands, and the safe-deposit keys, Smith obtained a search warrant for “currency, securities, deeds and other papers evidencing ownership of property, jewelry and other valuables,” in a safe-deposit box at said bank. Upon execution of the warrant, he seized $15,000 in U.S. currency. Smith used the parking tickets concerning two Rolls Royce automobiles to learn the registration numbers of the two Rolls Royce automobiles registered in the name of Jacque Tirado.

On August 30, 1972, an indictment was returned charging petitioner with two counts, each in the second degree, under New York law: (a) Criminal possession of a dangerous drug; (b) criminal use of drug paraphernalia. Following a hearing on petitioner's motion to controvert the search warrant and suppress certain evidence seized under the warrant, the State court found the affidavit of Patrolman DeRosa sufficient to establish probable cause for the warrant issued July 28, 1972. The court suppressed the rent receipts and notices, the lease between petitioner and Parew Realty Corp., and the Chemical Bank notice with respect to the safe-deposit box rental. The court did not consider the Chemical Bank bank statements, the savings account passbook for the Virgin Islands bank, the safe-deposit keys, and the social security card. The cocaine, mannite, strainer and plastic bowl, cash,³ robe, and rifle were not suppressed.⁴ On December 12, 1972, the jury found the petitioner guilty on both counts. He was sentenced to an indeterminate period of imprisonment for the maximum term of 25 years. The court imposed the minimum period of 8 years. His conviction was affirmed by the Appellate Division of the Supreme Court of the State of New York, First Department, on April 3, 1975 ( 47 App. Div. 2d 193, 366 N.Y.S.2d 140), and by the New York Court of Appeals on March 23, 1976 ( 38 N.Y. 955, 384 N.Y.S.2d 151).

OPINION

Petitioner has moved to suppress the evidence seized by the task force, consisting...