US v. Main Street Distributing Inc.

• Decision Date: 23 November 1988
• Docket Number: No. CR 88-261(RR).,CR 88-261(RR).
• Citation: 700 F. Supp. 655
• Parties: UNITED STATES of America v. MAIN STREET DISTRIBUTING INC., d/b/a "Main Street Distributors", Stephen Pesce, Mark Benowitz, Arthur Eisenman, Robert Cavaliere, and Stuart Podolsky, Defendants.
• Court: U.S. District Court — Eastern District of New York

700 F. Supp. 655

UNITED STATES of America v. MAIN STREET DISTRIBUTING INC., d/b/a "Main Street Distributors", Stephen Pesce, Mark Benowitz, Arthur Eisenman, Robert Cavaliere, and Stuart Podolsky, Defendants.

No. CR 88-261(RR).

United States District Court, E.D. New York.

November 23, 1988.

Andrew J. Maloney, U.S. Atty., E.D. N.Y., Brooklyn, N.Y. by Thomas P. Milton, Asst. U.S. Atty., for plaintiff.

Gerald B. Lefcourt, P.C., New York City by Gerald B. Lefcourt, Richard W. Levitt, for defendant Stephen Pesce.

MEMORANDUM and ORDER

RAGGI, District Judge:

Defendant Stephen Pesce was initially charged in a one-count indictment with having knowingly and willfully offered for sale in interstate commerce various articles of drug paraphernalia, specifically, five hundred vials with small spoons attached, primarily intended and designed for use in inhaling, ingesting and otherwise introducing cocaine into the body, in violation of 21 U.S.C. § 857, the Mail Order Drug Paraphernalia Act.¹ He has since been named, together with his business, Main Street Distributing Inc. (hereinafter "Main Street Distributors"), and four individuals, Mark Benowitz, Arthur Eisenman, Robert Cavaliere and Stuart Podolsky, in a twenty-five count indictment charging further violations of § 857, specifically: (1) the unlawful importation of drug paraphernalia, including 84,000 pocket scales, 12,000 strainers, fine gauge metal mesh, and 20,000,000 polyethylene bags; (2) the unlawful exportation of drug paraphernalia, including, inter alia, cocaine test kits, cocaine use kits, and butane torches; (3) the unlawful offering of drug paraphernalia for sale and transportation in interstate commerce, including, inter alia, cocaine use kits, cocaine inhalers, cocaine vials, crack pipes, roach clips, metal mesh screens, and such common narcotic diluents as inositol and mannitol; and (4) the unlawful use of the United Parcel Service as part of a scheme to sell drug paraphernalia.

The items referred to in the two indictments were seized pursuant to warrants executed by United States Customs Agents on March 3, and 31, 1988, at the Hauppauge, Long Island Office of Main Street Distributors.

Subsequent to the filing of the first indictment, Pesce moved to suppress evidence obtained during these two searches on the grounds: (1) that the warrant permitting the first search was unsupported by probable cause; and (2) that the probable cause supporting the second warrant was the illegal fruit of the first search. He further moved to dismiss the first indictment on the grounds that the Mail Order Drug Paraphernalia Act is unconstitutional. Presumably, his arguments pertain equally to the superseding charges.

The court denies both motions.

I. Factual Background

A. The March 2, 1988 Warrant

On March 2, 1988, Chief Magistrate A. Simon Chrein signed a warrant authorizing federal agents to search Main Street Distributors for:

Evidence of shipments of glass tubes imported by Freedom Imports, Inc., ...;

Evidence of the final disposition, sale, transfer and distribution of the glass tubes and 1½ inch by 1¾ inch polyethylene bags that Freedom Imports either imported or trafficked in ...;

Drug paraphernalia including glass tubes with or without screens, and 1½ inch by 1¾ inch polyethylene bags.

.1 millmeter (sic) stainless steel mesh screens and ¾ inch by 2 inch polyethylene bags.

In support of the warrant, the United States had submitted to Magistrate Chrein the affidavit of Customs Special Agent Anthony Giattino. The affidavit also supported applications for warrants to search three other locations: Freedom Imports, Inc., located in New York, New York; Funky Enterprises, located in Richmond, New York; and Berndie, Inc., d/b/a Dee's Headway, located in Newark, New Jersey.

Agent Giattino relayed his own or fellow agents' observations of the exterior physical layout of each of the businesses in question, stating, in conclusory fashion, that each "is in the wholesale drug paraphernalia business."

More particularly, the agent noted that Customs records showed that on July 7, 1987, Freedom Imports had imported into the United States from Taiwan 200,000 4-inch glass tubes, described on Customs documents as "stirrers." Relying on the expertise of agents in the Intelligence Division of the Drug Enforcement Administration, Agent Giattino reported that 4-inch glass tubes are the basic element of pipes used to smoke the cocaine derivative "crack." Only heat sink screens need be inserted in the glass pipes for street use.

Customs records further indicated that on December 30, 1987, Freedom Imports had imported another 500,000 4-inch glass tubes, which tubes were seized as possible drug paraphernalia.

In February, 1988, a Customs agent successfully obtained, over the telephone, from Freedom Imports price quotations for "stems," the common expression for glass crack pipes, and the screens to be used in them. When, however, an agent went in person to Freedom Imports, he was told that three references were necessary before he could purchase any stems or screens.

Customs had obtained, and Agent Giattino attached to his affidavit, a letter dated February 3, 1988 from Pesce to Freedom Imports confirming Main Street Distributors' purchase of an unspecified number of 4-inch glass tubes and its knowledge that the items were imported from Taiwan. Customs records further demonstrated that on December 10, 1987, Main Street Distributors had imported into the United States from Japan .1 millimeter gauge stainless steel mesh screens. Customs records also showed that on September 20, 1987, Main Street had imported from Taiwan 500,000 ¾ inch by 2 inch polyethylene bags and, on October 18, 1987, imported 15 million such bags. Agent Giattino reported that, in his experience, which for the last two and one-half years had focused on import violations, such bags were used to store small quantities of heroin.

B. The March 3, 1988 Search

The first warrant for the search of Main Street Distributors was executed on March 3, 1988. In the course thereof, agents seized approximately 38 boxes of metal mesh screens together with two rolls of metal mesh, 175 boxes of ¾ inch by 2 inch polyethylene bags, and various sales invoices and computer diskettes. Apparently, no glass tubes were seized.

The sales records, which reflected annual gross sales by Main Street of $3.7 million, included invoices for items such as "QHS w/vial," and "QHL w/vial," which Agent Giattino knew, based on his experience, to refer to a "quick hit — small, with vial," or a "quick hit — large, with vial," kits used to store user quantities of cocaine with a spoon attached to the top; "Snap kit gold," which refers to a kit with a razor, small spoon, vial, mirror and tube, providing a package to store, transport and ultimately ingest cocaine; "Glass H/P," which refers to a glass hashish pipe; hemostats, plier-like tools sometimes referred to as "roach clips," used both by marijuana smokers to hold cigarettes and by intravenous drug users as part of a tourniquet; and inositol, a common cutting agent for cocaine and heroin.

Agent Giattino also reported that agents executing the first search warrant observed boxes in Main Street's warehouse containing: (1) metal, wooden and glass pipes with or without screens and hashish heads; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips; (6) miniature spoons with capacities of one-tenth centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) cocaine freebase kits; and (15) other drug paraphernalia, including crack pipes, crack vials, and drug cutting agents such as inositol, mannite, mannitol and caffeine anhydrous oxide.

C. The March 30, 1988 Warrant

Based on the items seized and observations made in the course of the March 3, 1988 search, Agent Giattino applied for a warrant to conduct a further search of Main Street Distributors. On March 30, 1988, Magistrate Chrein authorized a search for the fifteen items enumerated above, as well as for books and records of the business reflecting the purchase and sale of drug paraphernalia.

D. The March 31, 1988 Search

The twenty-one page inventory for the second search of Main Street Distributors reveals the seizure of, among other things, various glass, ceramic and plastic pipes, crack pipes, hashish pipe bowls, cocaine puffers, cocaine snuff kits, cigarette rolling paper, cocaine cutting slates, cocaine scale kits, cocaine cutting blades, triple beam balance scales, cocaine vials with spoons, cocaine drying kits, roach clips, cocaine grinders and spatulas, glassine envelopes, plastic bags, butane lighters, strainers, screens and carburetors.

II. Discussion

A. The Legality of the Searches

Defendant recognizes that evidence obtained by officers "acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate" will not be suppressed, even if a reviewing court subsequently determines that the warrant was unsupported by probable cause. United States v. Leon, 468 U.S. 897, 900, 104 S.Ct. 3405, 3409, 82 L.Ed.2d 677 (1984). He argues that in this case there was no reasonable reliance on the first warrant because: (1) the affidavit in support of the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," id. at 923, 104 S.Ct. at 3420 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975)); and (2) the affidavit contained information the falsity of which was either known to the affiant, or would have been known but for his reckless disregard of the truth. Id. Neither argument has merit. Because this court upholds the validity of the first search, defendant's argument that the second search is defective because it is premised on probable cause derived from...