United States v. West

• Decision Date: 04 March 1981
• Docket Number: Crim. A. No. 80-62,80-1.
• Citation: 508 F. Supp. 1028
• Parties: UNITED STATES of America, Plaintiff, v. Otis L. WEST, Defendant. UNITED STATES of America, Plaintiff, v. Adolphus S. HALL, Jr., Defendant.
• Court: U.S. District Court — District of Delaware

508 F. Supp. 1028

UNITED STATES of America, Plaintiff, v. Otis L. WEST, Defendant.

UNITED STATES of America, Plaintiff, v. Adolphus S. HALL, Jr., Defendant.

Crim. A. Nos. 80-62, 80-1.

United States District Court, D. Delaware.

March 4, 1981.

COPYRIGHT MATERIAL OMITTED

James W. Garvin, Jr., U. S. Atty. and Theopalis K. Gregory, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

John Gandolfo, Jr., Wilmington, Del., for defendant Otis L. West.

Alene S. Berkowitz of Knecht, Greenstein, Schagrin & Berkowitz, Wilmington, Del., for defendant Adolphus S. Hall, Jr.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

Defendants, Otis L. West and Adolphus S. Hall, Jr., are charged in separate indictments with unlawful possession of a firearm which was not registered and not identified by serial number, in violation of 26 U.S.C. § 5861(d) and (i). In addition, defendant West is charged with possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and defendant Hall is charged with aiding and abetting the same. Packets of heroin, which are commonly referred to as "New York Quarters," and the gun were seized by officers of the Chester, Pennsylvania Police Department and special agents of the federal Drug Enforcement Administration ("DEA"), on December 11, 1980, during the course of a search of defendant Hall's apartment conducted pursuant to a search warrant issued by United States Magistrate N. Richard Powers on December 9, 1980. In addition, other heroin packets were seized from the person of defendant West after he was arrested without a warrant on December 11, 1980. Both defendants separately have moved to suppress the gun and the packets of heroin seized from Hall's apartment on the ground that the affidavit upon which the search warrant was granted was insufficient to support a finding of probable cause. In addition, defendant West argues that the search warrant was facially over-broad and thus illegal, and that the police lacked probable cause to arrest him. Accordingly, West further seeks to suppress all evidence seized from, and all statements made by, him in conjunction with the warrantless arrest.¹ An evidentiary hearing was held on defendant West's motion on January 30, 1981, West's counsel and the government both submitted briefs on the issues presented therein and oral argument was heard by the Court on February 20, 1981.²

I. The Search Warrant

A. Standing

As a preliminary matter, the Court must determine whether Otis West has standing to challenge the warrant issued to search Hall's apartment.³ Until recently, under the holding of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), a defendant charged with a crime of possession was vested with "automatic standing" to challenge the legality of the search which produced the evidence against him. In a case decided last term, however, the Supreme Court decided that the automatic standing principle had "outlived its usefulness" and abandoned the rule in favor of a more conventionally crafted rule of thumb which requires the defendant to establish that he had a legitimate expectation of privacy in the premises searched. See United States v. Salvucci, 448 U.S. 83, 95 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980). See also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, in order to challenge the propriety of the search warrant, West must demonstrate that he possessed the requisite legitimate expectation of privacy in Hall's apartment.

The evidence adduced by West on this issue in the suppression hearing was conflicting. It is undisputed that West had a key to Hall's apartment. The police officers and DEA agents testified at the suppression hearing that they took West's key from his person after he was arrested on December 11, 1980 outside of Hall's apartment and used this key to enter the apartment. Furthermore, West testified at the hearing that he had complete access to the apartment, that he slept there on occasion, and that he had made cash payments to Hall toward the rent. In addition, intermittent surveillance of the apartment by Agent Glanz and officers of the Chester Police Department, during the period from November 21 to December 11, 1980, revealed that one or more of three cars operated by West was normally parked outside of Hall's apartment, and on at least six occasions, one of West's cars was observed arriving at or leaving the apartment. In contrast, Hall's name alone appears on the rental application for the apartment and both at the time of his arrest and on cross-examination at the suppression hearing, West admitted that he actually resided in Chester, Pennsylvania at the home of his parents. Moreover, none of West's cars was registered to him at Hall's address.

Although the evidence is less than conclusive, the Court will assume for the purpose of the present motion, that West had a legitimate expectation of privacy in Hall's apartment. See United States v. Portillo, 633 F.2d 1313, 1317 (C.A.9, 1980); United States v. Ochs, 595 F.2d 1247, 1253 (C.A.2), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979).

B. Probable Cause

In general, the legality of a search warrant will be determined by reference to the information contained within the four corners of the underlying affidavit. United States v. Martinez, 588 F.2d 1227, 1234 (C.A.9, 1978); United States v. Damitz, 495 F.2d 50, 54 (C.A.9, 1974). An affidavit is sufficient to support the warrant if it adequately demonstrates probable cause, that is, "if the facts alleged therein would allow a person of reasonable caution to believe that the evidence sought will be found in the stated place." United States v. Martinez, supra, 588 F.2d at 1234. Despite the volumes of judicial prose devoted to clarifying this definition, the concept of probable cause has proved too elusive to quantify in exact terms. See United States v. Chester, 537 F.2d 173, 175 (C.A.5, 1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1120, 51 L.Ed.2d 548 (1977). Accordingly, in each case, the reviewing court must make an ad hoc determination of the propriety of issuing the warrant based on all the available facts contained in the affidavit.

Some presumptions have emerged, however, with which a reviewing court must approach a probable cause examination. United States v. McNally, 473 F.2d 934, 937 (C.A.3, 1973). First, only the probability, and not a prima facie showing, of criminal conduct is necessary to support the issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); United States v. McNally, supra, 473 F.2d at 937; United States v. Trott, 421 F.Supp. 550, 553 (D.Del.1976). Although the allegations of an affidavit must go beyond mere suspicion, they need not constitute clear evidence which would justify conviction. Brineger v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); United States v. Martinez, supra, 588 F.2d at 1234; United States v. Scott, 555 F.2d 522, 527 (C.A.5), cert. denied sub nom. Ogletree v. United States, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977); United States ex rel. Hurley v. State of Delaware, 365 F.Supp. 282, 285 (D.Del.1973). Second, affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590. Thus, for example, hearsay properly may form the factual basis for issuing a warrant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Third, the affidavit is to be interpreted in a common sense and realistic manner without recourse to hypertechnical limitations. United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684 (1965); United States v. Scott, supra, 555 F.2d at 527; United States v. Donlon, 334 F.Supp. 1272, 1275 (D.Del.1971). And finally, reviewing courts should pay great deference to a determination by a magistrate that probable cause did exist to issue the warrant. Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590; Jones v. United States, supra, 362 U.S. at 270-71, 80 S.Ct. at 735-36; United States v. Chester, supra, 537 F.2d at 175. In borderline cases, preference should be accorded to upholding the validity of the warrant. United States v. Martinez, supra, 588 F.2d at 1234.

With these principles in mind, the Court now turns to an examination of the search warrant issued in this case. The affidavit submitted in support of the search warrant was prepared by William Glanz, Special Agent of the DEA and a federal narcotics agent since 1969, and Sergeant Albert Chess, a 13 year veteran of the Chester Police Department and currently head of the Drug Unit. The relevant facts contained in the affidavit fall naturally into three distinct categories. The first six pages contain general information concerning the Chester Police Department investigation underlying the search warrant, the principals which were the subject of that investigation, and a description of the premises to be searched. The second group of pages details information provided to the Chester Police Department by three undisclosed informants, while the third and final section contains a log of observations recorded by Agent Glanz during intermittent surveillance of Hall's apartment conducted from November 21 to December 8, 1980. The information contained within these three sections may be summarized as follows: Sergeant Chess and other officers of the Drug Unit of the Chester Police Department have conducted an investigation of a purported heroin distribution organization headed by Otis West since at least 1978. The affidavit avers that this investigation has demonstrated that West controls most of the heroin sold in Chester, Pennsylvania, that his second in...