U.S. v. Marin-Buitrago, MARIN-BUITRAG

• Decision Date: 08 May 1984
• Docket Number: Nos. 783,D,784,T,MARIN-BUITRAG,s. 783
• Citation: 734 F.2d 889
• Parties: UNITED STATES of America, Appellee, v. Cieloomas William Morales, Defendants-Appellants. ockets 83-1339, 83-1354.
• Court: U.S. Court of Appeals — Second Circuit

Page 889

734 F.2d 889

UNITED STATES of America, Appellee, v. Cielo MARIN-BUITRAGO, Tomas William Morales, Defendants-Appellants.

Nos. 783, 784, Dockets 83-1339, 83-1354.

United States Court of Appeals, Second Circuit.

Argued Feb. 14, 1984.

Decided May 8, 1984.

Richard A. Greenberg, New York City (David S. Zapp, New York City, of counsel), for defendant-appellant Morales.

Frank A. Lopez, Brooklyn, N.Y. (London & Lopez, Brooklyn, N.Y., of counsel), for defendant-appellant Marin-Buitrago.

Kenneth I. Wirfel, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Gregory J. Wallance, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before MESKILL, PIERCE and PRATT, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from judgments of the United States District Court for the Eastern District of New York, Weinstein, J., convicting Tomas William Morales (Morales), upon a conditional guilty plea, of one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982), and Cielo Marin-Buitrago (Cielo), after a bench trial, of conspiring to distribute cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982).

Appellants seek the suppression of evidence seized during a search of their apartment pursuant to a search warrant. They claim that the search warrant was invalid because the executing officers failed to report to the issuing magistrate material new information that the officers acquired between the warrant's issuance and its execution.

We hold that the evidence was properly admissible because the warrant was valid when it was executed. Consequently, we affirm appellants' convictions.

BACKGROUND

In early March 1983, Special Agent Andrew Wnukowski of the Drug Enforcement Administration (DEA) received unsolicited information from a tenant residing in a two family residence in Forest Hills, New York. The tenant alleged that his upstairs neighbors, three Latin Americans, kept irregular hours, had changed their apartment locks and refused to provide the landlord with a key for the new locks, claiming that they kept considerable money in the apartment, had flushed plastic bags down the toilet, and used "beepers" in the apartment instead of a telephone. The landlord subsequently confirmed most of these facts. The actual identities of the tenants, Morales, Cielo and an additional defendant, Jorge Marin-Buitrago (Marin), were unknown to the informant tenant and DEA agents.

Surveillance of the Forest Hills apartment revealed that the Latin American suspects used a brown Mustang automobile with Florida license plates. Through a computer search, the agents discovered that the Mustang was registered to Cesar Correa, a convicted narcotics trafficker who had been released on an appeal bond in the Southern District of Florida. As a condition of his release, Correa was restricted to the Southern District of Florida. A description of Correa coincided with the tenant informant's description of Marin, a suspect that the tenant saw driving the Mustang. ¹ An arrest warrant for Correa was issued in the Southern District of Florida for bailjumping. New York City Police Officer Romanolo, watching the apartment, subsequently identified Marin, the driver of the Mustang, as Correa from 1980 photographs of Correa.

On March 18, 1983, Agent Wnukowski submitted an affidavit to Magistrate Chrein in the Eastern District of New York in support of an application for a search warrant for the Forest Hills apartment. The affidavit stated that the agent had reason to believe that the apartment contained evidence of narcotics trafficking and Correa's bailjumping. The agent articulated the following grounds for his belief:

1. [He was] advised by a private citizen, with no known criminal involvement ... that three Latin American individuals reside in the subject premises, two males and one female.

2. That person advised [him] that these individuals keep irregular hours, usually arriving at the subject premises between 3:00 a.m. and 5:00 a.m. in the morning and then leaving for short periods of time during the day.

3. The landlord of the subject premises ... advised [him] that the three aforementioned individuals moved into the subject premises ... and a few days later had a locksmith install new locks on all the doors. These individuals advised the landlord that they required new locks because they kept "lots of money" in the apartment.

4. The landlord further advised [him] that these tenants told him that they did not have a telephone in the aforementioned premises but did have a beeper.

5. [A] search of the garbage of the subject premises [revealed] a receipt ... for new locks.... This receipt was in the name "Morales."

6. In [his] twelve years' experience as a Drug Enforcement Administration agent, he has found it a common practice among drug dealers to install locks and otherwise secure those locations where they stash drugs and/or monies which constitute the proceeds of drug trafficking. Moreover, drug traffickers are increasingly using beeper systems for communications 7. The landlord also advised [him] that ... the subject premises required the services of a plumber for a clogged sewer line. The plumber in repairing the line found the problem to be that the line was clogged with medium-sized clear plastic bags, which apparently had been flushed down the toilet of the subject premises.

in order to minimize the likelihood of government interception of their conversations.

8. In [his] experience, it is a common practice among drug dealers to use clear plastic bags to package narcotics and to flush down toilets items which might evidence their illicit drug trafficking.

9. [The tenant advised him] that two automobiles ha[d] been observed being used by the individuals who live in the subject premises, which vehicles are parked in the driveway of the subject premises.

10. ... [A motor vehicle check revealed] that one automobile with the Florida license plates YMG-554 is registered to one Ceasar [sic] Correa, 965 N.W. 106 th Avenue, Miami, Florida, with a birthdate of March 10, 1945.

11. [He was informed] that Ceasar [sic] Correa ... is presently convicted in the Southern District of Florida for the possession and distribution of twenty (20) pounds of cocaine. Correa is currently released on $250,000 bail pending appeal. Correa's bail conditions require that he remain within the geographical limits of the Southern District of Florida. [He has] received an arrest warrant from [Florida] charging Ceasar [sic] Correa with violating his conditions of release, specifically leaving the Southern District of Florida without authorization.

12. [He has] received a photograph of Ceasar [sic] Correa.... After reviewing the photograph of Ceasar [sic] Correa, Officer Romanolo advised [him] that the male be [sic] observed [on the subject premises] was Ceasar [sic] Correa.

13. [He] believed that Correa is a major drug trafficker whose actions with respect to the subject premises suggest ongoing illicit trafficking.

On March 18, 1983, Magistrate Chrein issued a warrant authorizing a search of the Forest Hills apartment within ten days.

The agents did not immediately execute the warrant, but continued to observe the suspects' activities. On March 23, the agents observed Morales and Marin, whom they believed to be Correa, leaving the apartment carrying large plastic garbage bags which appeared to be heavy. The two men then proceeded to and entered an apartment building on Nicholls Avenue in Corona, New York.

On the evening of March 24, 1983, the agents followed Morales, Cielo and Marin from the Forest Hills apartment to the Nicholls Avenue apartment. At approximately 8:00 p.m., Marin, accompanied by two women, left the Nicholls Avenue apartment. ² When they drove away in the Mustang, the agents followed. After driving several blocks, the agents forced the Mustang to stop when they determined that Marin detected their surveillance and was trying to escape. Still believing that Marin was Correa, the agents removed him from the Mustang. When the agents addressed him as Correa, Marin insisted that he was "Marin." The suspect then produced a Colombian driver's license and a Colombian military identification card issued in the name of "Marin-Buitrago." The two women accompanying Marin also insisted that he was not Correa. After arresting Marin, several of the agents proceeded to the Forest Hills apartment and executed the search warrant. They discovered approximately one pound of cocaine, narcotics paraphernalia and records of narcotics trafficking.

Other agents, accompanied by the two women, returned to the Nicholls Avenue The following day, March 25, 1983, a fingerprint check confirmed that Marin was not Correa.

apartment. The agents discovered Morales and Cielo sitting in the living room of the apartment. There, Cielo identified as hers several pieces of luggage and a plastic bag containing a shoe box wrapped with magnetic tape and explained that she was departing for Colombia the following day. The agents received notice by radio that the search of the Forest Hills apartment had uncovered narcotics and arrested Morales and Cielo. A subsequent search of the shoe box revealed approximately $50,000 in cash. ³

Prior to trial, appellants moved to suppress the evidence seized during the search of the Forest Hills apartment. ⁴ Appellants claimed that the failure of the agents to apprise the issuing magistrate of the uncertainty of Marin's identity rendered the warrant defective.

After an evidentiary hearing, the court denied the suppression motion. United States v. Morales, 568 F.Supp. 646 (E.D.N.Y.1983). Judge Weinstein held that officers, after a warrant is issued but before it is executed, have an obligation to bring to the attention of the issuing magistrate any new or corrective information that...