United States v. Trott

• Decision Date: 22 October 1976
• Docket Number: Crim. A. No. 76-82.
• Citation: 421 F. Supp. 550
• Parties: UNITED STATES of America, Plaintiff, v. Donald TROTT a/k/a "Gypsy" and Antonio Martines a/k/a "Tiny", Defendants.
• Court: U.S. District Court — District of Delaware

421 F. Supp. 550

UNITED STATES of America, Plaintiff, v. Donald TROTT a/k/a "Gypsy" and Antonio Martines a/k/a "Tiny", Defendants.

Crim. A. No. 76-82.

United States District Court, D. Delaware.

October 22, 1976.

John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Joel D. Tenenbaum, of Woloshin & Tenenbaum, Wilmington, Del., for defendants.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

Before the Court is a motion by defendant Trott to suppress all the evidence seized in connection with a search of a residence at 1629 Willow Avenue, Pleasant Hills, Wilmington, Delaware, belonging to Trott and his wife, on or about July 23, 1976.¹ This search preceded the return of a three count indictment charging Trott and Martines with distribution, possession with intent to distribute, and conspiracy to manufacture a non-narcotic controlled substance ("methamphetamine") in violation of 21 U.S.C. § 841(a)(1) and § 846. Also before the Court is the defendant Martines' motion to sever for trial Count I of the indictment from Counts II and III; this issue will be considered in part III of the Court's opinion.

On July 23, 1976, Detective Adamowski of the Drug Control Unit of the New Castle County Police executed an affidavit for a search warrant for the premises at 1629 Willow Avenue, Pleasant Hills, Wilmington, Delaware. The affidavit was the result of a three year investigation into the activities of the Pagan Motorcycle Club ("PMC"). Based upon the affidavit, a magistrate issued the requested search warrant on July 23, 1976, and it was executed the same day.

The relevant facts from which the magistrate found probable cause to issue the warrant are summarized as follows: (1) the affiant witnessed a delivery of methamphetamine to a reliable, confidential informant and Trott was a participant in this delivery; (2) the affiant was informed of a meeting of PMC members at Trott's residence by the reliable informant on July 7, 1976; (3) the meeting was to discuss plans with a chemist from New Jersey for the establishment of a clandestine laboratory for the manufacture of methamphetamine; (4) Det. Adamowski corroborated the story of the reliable informant by surveilling the meeting; (5) recorded conversations between the informant and Martines implicated Trott as a participant in the plan to distribute sizeable quantities of methamphetamine; (6) a meeting between Trott and a second proven reliable informant on July 14, 1976, and witnessed by the affiant, revealed that Trott was the financier of a clandestine laboratory for the manufacture of phencyclidene (a controlled substance) which had earlier been seized in a raid conducted by the affiant; (7) previous arrests of major distributors of illicit drugs by Det. Adamowski and the other affiants resulted in the seizure of "ledgers" or records detailing the numerous drug transactions engaged in by a particular distributor; (8) on July 14, 1976 at 6:30 P.M. the affiant witnessed a meeting between Trott and a reliable informant in which Trott showed the informant a formula for the manufacture of methamphetamine.

The defendant has set forth basically two grounds in support of his motion to suppress. Each contention will be discussed seriatim.

I. The warrant, authorizing the search and seizure of defendant's private papers, violates the Fifth Amendment privilege against compelled self-incrimination.

This particular ground for defendant's motion appears to combine a claimed Fifth Amendment violation and a claim that the warrant is not particular in the items it names to be seized.² As to the latter objection, the defendant contends that Det. Adamowski's misconception of the meaning of the term "ledgers" makes the warrant a "general warrant" prohibited by the Fourth Amendment's requirement that "no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Court does not agree with either of defendant's objections to the warrant.

Det. Adamowski used the word "ledger" interchangeably with "records" in the affidavit and for this Court to adopt the narrow and hypertechnical definition of "ledger" proposed by the defendant would fly in the face of numerous cases that urge a common sense and realistic interpretation of affidavits and warrants. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Richard, 535 F.2d 246 (C.A.3, 1976); United States v. Rahn, 511 F.2d 290 (C.A.10, 1975). The Court reads "ledger" in the nontechnical sense of "record," the same as Det. Adamowski and the issuing magistrate undoubtedly did. The challenged term authorized only the search for and seizure of records pertaining to the distribution and sale of illicit drugs, and probable cause to believe that evidence in the form of records or ledgers relating to such crime were concealed in defendant's residence was clearly established in the supporting affidavit. Accordingly, the search was conducted within the ambit of lawful police activity and nothing was left to the discretion of the officers executing the warrant. Cf. Andresen v. Maryland, ___ U.S. ___, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971).

The Court also disagrees with defendant's contention that the search for and seizure of a person's private papers necessarily violates the Fifth Amendment privilege against self-incrimination. The Fifth Amendment privilege does not prevent the disclosure of private information; rather it protects a person "only against being incriminated by his own compelled testimonial communications." Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

The records seized in this case were "voluntarily committed to writing" by the defendant; the search and seizure was "conducted by law enforcement personnel;" and the defendant has neither been "required to aid in the discovery, production, or authentication of incriminating evidence" nor compelled to "say or do anything under penalty of sanction." Andresen v. Maryland, ___ U.S. ___, ___, 96 S.Ct. 2737, 2746, 49 L.Ed.2d 627 (1976). And since the privilege "adheres basically to the person, not to information that may incriminate him," Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973), the warrant authorizing the search and seizure of defendant's private papers fully comports with the Fifth Amendment. The motion to suppress, on this ground, is therefore denied.

II. The affidavit failed to give the magistrate probable cause to believe the ledgers or formulas were, in fact, located in defendant's residence.

At the outset the Court recognizes that "only a probability, not a prima facie case, of criminal conduct need be shown to support the issuance of a warrant." United States v. Richard, 535 F.2d at 249. The affidavit for the warrant in this case is not merely a montage of conclusory statements of probable cause by a faceless informant or police officer without setting forth any underlying facts and circumstances from which the conclusions were drawn. Defendant does not raise an Aguilar-Spinelli problem and none exists. Rather the question is whether a man of reasonable caution would be warranted, accepting as reliable the underlying facts in the affidavit, in believing that records or ledgers pertaining to the distribution of illicit drugs or a formula for the manufacture of methamphetamine would be found in the residence, or on the person, of Trott or his wife. Agnellino v. New Jersey, 493 F.2d 714, 727 (C.A.3, 1974); United States v. Neal, 500 F.2d 305 (C.A.10, 1974).

The Court cannot agree with the defendant's contention that no probable cause existed to believe that records or ledgers would be found at Trott's residence. The affidavit provides a reasonable basis for believing that Trott was a major distributor of drugs and that, on the basis of the affiant's personal experience, as well as that of other drug enforcement personnel, major drug dealers routinely keep ledgers or records of their transactions. Cf. United States v. LaVecchia, 513 F.2d 1210, 1216 (C.A.2, 1975); United States v. Capra, 501 F.2d 267, 280 (C.A.2, 1974). An example of the accuracy of this contention appears in the affidavit when Det. Adamowski states that "records" related to the sale of marijuana were seized in connection with the arrest of Antonio Martines and Frances Oliveri in the summer of 1974 for the possession of 15 pounds of marijuana.³ Furthermore, the affidavit provides a reasonable basis for believing, on the basis of information obtained from a proven reliable informant, that Trott was in possession of a formula for the manufacture of methamphetamine on July 14, 1976. In view of the relationship between Martines and Trott⁴ and their involvement, as revealed by proven reliable informants, with the distribution and manufacture of methamphetamine, it was reasonable to believe that records and ledgers or formulas would be found on the premises, owned by Trott, at 1629 Willow Avenue, Pleasant Hills.

That the affidavit in issue did not contain anyone's observation of the ledgers or formulas at Trott's residence is not fatal to a determination that probable cause existed to search the residence. United States v. Rahn, supra, 511 F.2d at 293; United States v. Mulligan, 488 F.2d 732 (C.A.9, 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974). Nor must the affidavit contain information providing a "certainty that the objects sought will be found as a result of the search." Porter v. United States, 335 F.2d 602 (C.A.9, 1964), cert. denied, 379 U.S. 983, 85 S.Ct. 695, 13 L.Ed.2d 574 (1965). The issue is whether the facts and...