United States v. Hossbach

• Decision Date: 15 July 1980
• Docket Number: Crim. No. 80-148.
• Citation: 518 F. Supp. 759
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: UNITED STATES of America v. Raymond A. HOSSBACH, David M. McCally.

518 F. Supp. 759

UNITED STATES of America v. Raymond A. HOSSBACH, David M. McCally.

Crim. No. 80-148.

United States District Court, E. D. Pennsylvania.

July 15, 1980.

COPYRIGHT MATERIAL OMITTED

Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Thomas Colas Carroll, Philadelphia, Pa., for Hossbach.

Richard P. Hunter, Jr., Philadelphia, Pa., for defendants.

OPINION AND ORDER

VanARTSDALEN, District Judge.

Defendants are charged in a four count indictment with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801, et seq. Count 1 charges both defendants with conspiracy to manufacture and distribute PCP and methamphetamine, Schedule II controlled substances. The conspiracy is alleged to have existed from about November 24, 1976 until about April 17, 1980. Defendant Raymond A. Hossbach (Hossbach) is charged in Count 2 with possession with intent to distribute one kilogram of PCP on January 13, 1980 and in Count 3 with distribution of one kilogram of PCP on January 13, 1980. David M. McCally (McCally) is charged in Count 4 with possession with intent to distribute one kilogram of PCP on January 13, 1980. (Apparently Counts 2, 3 and 4 involve the same kilogram of PCP.)

Pretrial motions involving multiple issues were filed. Except for certain motions to suppress evidence, all other pretrial motions were resolved during the course of omnibus pretrial hearings, either by agreement of counsel or by rulings from the bench. The suppression motions present complex problems involving disputed facts as well as unclear rules of law. Counsel for both the government and the defendants have filed commendably thorough and helpful post-hearing briefs.

There are three major issues. In summary they involve (1) the right of the Drug Enforcement Agency (DEA) to obtain evidence in furtherance of a purely criminal investigation through the use of "administrative subpoenas" issued pursuant to 21 U.S.C. § 876; (2) the effect of both formal and informal immunity granted to Hossbach at a time when the charged conspiracy is alleged to have been "on-going"; and (3) the validity of three warrantless searches of premises alleged to have been abandoned by one or both defendants. Because the investigation developed through the accumulation of evidence built upon other evidence, the three problems become interrelated by reason of the well settled doctrine that the fruits of illegally obtained evidence must be suppressed along with the illegally obtained evidence itself. The issues are complicated not only by factual disputes but by the continuing problem of what used to be generally denominated as "standing," but was recently redefined in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

I. CHRONOLOGY OF THE INVESTIGATION

An outline of the chronology of the DEA investigation is helpful in understanding the problems. A summary of most of the investigation appears of record in the affidavit of DEA special agent Donn Jerre Miller (Miller), upon which the magistrate predicated his finding of probable cause and issued arrest warrants on April 16, 1980. From this affidavit and evidence presented at the suppression hearings, the investigation's progress may be capsulized as follows.

In January, 1979, a chemical company in Mt. Vernon, New York, Freeman Industries, reported to the New York DEA office that a large quantity of a specified chemical had been sold to a business located at Ford Road Industrial Park, in Bristol Township, Pennsylvania. The purchaser's name was Markex. Freeman Industries apparently supplied this information as a routine report. Whether the report was required by regulations or in some other manner compelled, or whether it was purely volunteered, is not clear from the record.

Agent Caputo of the New York office of DEA forwarded the information to the Philadelphia DEA office, which information included the telephone number of Markex as shown on Freeman Industries' records. The Philadelphia DEA office instituted a criminal investigation into possible illegal drug manufacturing, because the type and quantity of chemicals ordered by Markex from Freeman Industries were suspect.

Agent Miller of the Philadelphia DEA office inquired of local chemical and laboratory equipment distributors as to any orders or purchases by Markex of Ford Road Industrial Park. He learned that Markex had placed an order with Arthur H. Thomas Company. Thereafter, DEA agents observed a person who identified himself to Arthur H. Thomas Company as John Mark Williams, later identified as the defendant McCally, pick up an order on behalf of Markex. They also ascertained that the car in which the pick-up was made bore a license plate later determined to be registered in the name of McCally at an address in Knights Terrace, Philadelphia, Pennsylvania.

Investigators also telephoned the number that Freeman Industries had for Markex and received a reply from Able Answering Service. Armed with a subpoena issued by DEA pursuant to 21 U.S.C. § 876, agents obtained all of the records of Able Answering Service concerning Markex. From these records, they ascertained that Markex subscribed to Able Answering Service through a man identified as John Mark Williams, who provided Able Answering Service with two telephone numbers, one of them his residence, where he might be reached. Again utilizing the subpoena power, agents obtained from the Bell Telephone Company subscriber information indicating that the one telephone was listed under the name of David M. McCally, Knights Terrace, Philadelphia, and the other telephone was listed under the name of John Mark Williams, at an apartment located on Ditman Street in Philadelphia.

A warrantless search of the Ditman Street apartment was later conducted. The basis for the search was the consent of the landlord, who informed the DEA agents that the apartment had been rented in the name of John Williams, but that Williams was in arrears in the rent and had apparently vacated the premises. The room indeed appeared to be vacant and unused, except for an operable telephone. The phone bore a number that the investigators had previously obtained from the Bell Telephone records secured under a subpoena. No other evidence was "seized" in the Ditman Street apartment search.

Again armed with a subpoena, investigators went to the rental agent or owner of the Ford Road Industrial Park and learned that Markex had rented unit 12, consisting of a large storage area with a loading dock and a front office space and sanitary facilities. Investigators learned from adjoining tenants that no one had been seen on the premises of unit 12 for some time, and that only one or two persons at most had ever been seen there during the period when unit 12 was under rent to Markex. Surveillance confirmed this information. However, an outside mail receptacle was observed sometimes full and other times empty. The landlord advised that although the lease term had not expired, the tenant was in arrears on the rental payments in some unspecified sum and for an unspecified period. The day following inquiry of the landlord by DEA agents, the landlord advised DEA agents that he was retaking possession for nonpayment of rent. The landlord provided DEA agents with a key and permission to enter unit 12 and seize any property they believed to be of assistance in the investigation.

The warrantless search of unit 12 at the Ford Road Industrial Park disclosed some office furniture, a file or filing cabinet with what appeared to be office and business records of Markex, certain personal belongings indicating the possibility of continuing utilization of the unit, in part, as living quarters, as well as quantities of chemicals and laboratory equipment and a considerable quantity of trash.

The office records were all seized. Also, apparently at a later date, again without a warrant, agents seized a typewriter (about which an expert will apparently testify as to fingerprints and/or the typing of other documents relevant to the evidence). The records included invoices and correspondence.

One additional important piece of evidence was seized during the warrantless search of unit 12. A letter, addressed to "Whom It May Concern," and bearing the signature of "Dr. Shock" was found, possibly in the trash within the building. This letter appeared to be a resume or curriculum vitae of a person purporting to be an experienced chemist who offered to manufacture methamphetamine, upon being supplied with the chemicals and laboratory equipment, at a price of $10,000 per kilogram. This letter constituted either the original lead or, at least, a strongly corroborative circumstantial lead, that Hossbach was involved as the chemist co-conspirator, based on the style of the writing, the facts set forth in the letter, the unusual use of the word "kilo" (most illegal drug dealers preferring to make sales in grams, ounces and pounds), and other unusual aspects of the letter.

Agent Miller was aware that Hossbach had been involved in an illegal drug operation in California some years prior to the present investigation, and that in connection with other drug cases, Hossbach had thereafter been given formal immunity and had testified under grant of immunity. Philadelphia DEA Agent Ellis Hershowitz was the DEA agent who actively conducted the investigation in which Hossbach testified under immunity. Agent Hershowitz also conducted 50 to 100 hours of "debriefing" of Hossbach in connection with other drug investigations in which Hossbach was cooperating under an informal grant of immunity. The formal and informal grants of immunity occurred subsequent to the California offenses but prior to the commencement of the investigation culminating in the present...