United States v. Alonzo

• Decision Date: 18 June 1971
• Docket Number: No. 887,Docket 71-1063.,887
• Citation: 447 F.2d 126
• Parties: UNITED STATES of America, Appellant, v. Marcia ALONZO and Oscar Wager, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

447 F.2d 126 (1971)

UNITED STATES of America, Appellant, v. Marcia ALONZO and Oscar Wager, Defendants-Appellees.

No. 887, Docket 71-1063.

United States Court of Appeals, Second Circuit.

Argued June 15, 1971.

Decided June 18, 1971.

Jack Kaplan, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., and David A. Luttinger, Asst. U. S. Atty., New York City, of counsel), for appellant.

Albert J. Krieger, New York City (Ivan S. Fisher, New York City, of counsel), for defendant-appellee Oscar Wager.

Before MOORE and KAUFMAN, Circuit Judges, and TIMBERS,^* District Judge.

PER CURIAM:

The United States of America appeals from an order suppressing evidence seized pursuant to a search warrant issued by a United States Commissioner upon the application by affidavit of a Special Agent of the Federal Bureau of Narcotics and Dangerous Drugs. The items suppressed included articles containing narcotic drugs or which appeared to contain such drugs. The Court held that the affidavit was insufficient to establish probable cause for the issuance of the warrant.

The affidavit presents a series of reports from informants from May 1970 to August 13, 1970. In May an informant revealed sales of marihuana by defendant Oscar Wager personally witnessed in Apartment 35 of 599 West 190th Street, New York. The informant also observed cocaine in the apartment. In June 1970 Wager was arrested and charged with conspiracy to violate federal narcotic laws. The apartment was listed in the name of the defendant Alonzo, who was said to be a girlfriend of Wager.

Late in June another informant advised the Special Agent that he (the informant) had been present at a Bar while Wager and Alonzo were making arrangements to sell cocaine to various customers; that Alonzo said she was going to her apartment to pick up the cocaine and would deliver it later. On August 10th this informant heard Alonzo state that her supply of cocaine had been depleted but that she expected delivery of a large quantity later in the week. Daily contacts between informant and Special Agent kept the Agent advised of Alonzo's statements to customers that the supply had not arrived. On August 13th the informant told the Agent that on the previous night he had observed Alonzo making arrangements to deliver cocaine; that a customer had had a telephone conversation with "Marcia" Alonzo; that he had to go to "Marcia's" apartment to pick up the cocaine and that, upon his return to the Bar, he had shown him a quantity of cocaine. Two Agents of the Bureau, including the Special Agent upon whose affidavit the warrant was issued, had observed Alonzo and Wager during the preceding four weeks entering the Alonzo apartment and remaining there and had also seen them in the vicinity of the Bar mentioned by the informant.

The affidavit of the Special Agent was based upon the information furnished over a three month period. It was submitted for review to an independent magistrate the Commissioner. If tested "in a commonsense and realistic fashion," the affidavit was more than sufficient for the issuance of a search warrant. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). This affidavit was not vague or conclusory but, rather, highly specific and filled with first-hand information from...