US v. Savides, 87 CR 17.

• Decision Date: 20 April 1987
• Docket Number: No. 87 CR 17.,87 CR 17.
• Parties: UNITED STATES of America, Plaintiff, v. Christ SAVIDES, Defendant.
• Court: U.S. District Court — Northern District of Illinois

658 F. Supp. 1399

UNITED STATES of America, Plaintiff, v. Christ SAVIDES, Defendant.

No. 87 CR 17.

United States District Court, N.D. Illinois, E.D.

April 20, 1987.

COPYRIGHT MATERIAL OMITTED

Anton R. Valukas, U.S. Atty. by William J. Cook and Thomas Knight, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

Edward M. Genson, Terence P. Gillespie, Genson, Steinback & Gillespie, Chicago, Ill., for defendant.

ORDER

BUA, District Judge.

This order concerns defendant's motions to suppress evidence and motion to revoke a pretrial detention order. For the reasons stated herein, defendant's motions are denied.

I. FACTS

In February 1987, a grand jury returned a two-count indictment charging defendant Christ Savides with possession and intent to distribute over 10 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). The indictment stemmed from the execution of two search warrants pursuant to which quantities of substances containing cocaine were recovered from an apartment and office maintained by Savides.¹ The first search warrant was issued by a Cook County Circuit Court Judge on March 8, 1986 based on the finding that probable cause existed to believe a gambling "wire room" operation was being conducted out of Savides' apartment in Park Ridge, Illinois. Executing the search warrant, Chicago police officers seized gambling paraphernalia, six firearms, 10 kilograms of cocaine, and $65,000 in cash from Savides' residence. Savides along with three other individuals present in the apartment at the time of the search were arrested and charged with violations of state narcotics laws. Subsequently, Savides was released on $70,000 bond pending trial on the state charges.

On January 8, 1987, Assistant United States Attorney Thomas Knight presented a search warrant affidavit prepared by Drug Enforcement Administration (DEA) Agent William Morley to Magistrate Weisberg. In the affidavit, Morley alleged that Savides maintained an office in a building located at 1400 Renaissance Drive in Park Ridge, Illinois for the purpose of storing and distributing narcotics. According to the affidavit, Chicago police officers conducting surveillance on Savides after his March 1986 arrest observed Savides driving almost daily in an evasive fashion to the 1400 Renaissance Drive Building. A light in Room 102 of that building would go on shortly after Savides' arrival and go out shortly before Savides' departure. On one occasion, surveillance agents observed Savides using a key to enter the room in question. A check with various telephone companies revealed no telephone subscriber for Room 102.

The surveillance agents reported that Savides would frequently use a public telephone outside the 1400 Renaissance Drive Building prior to entering or after leaving Room 102. After leaving the building, Savides routinely made a number of stops at various places in the Chicago area such as restaurants, bars, motels, hot dog stands, business buildings, and currency exchanges. Though sometimes stopping long enough to eat or drink, Savides usually remained in the places for a brief period of time or simply met with a person in a parking lot. The surveillance officers then go on to describe in detail certain occurrences they witnessed while observing Savides. These included meetings with several individuals believed by the DEA to be major traffickers of narcotics.

The affidavit then indicates that unidentified informants told DEA agents that a certain Robert Wilson supplied Savides with cocaine. Robert Wilson was observed on April 3, 1986, less than a month after Savides' arrest, leaving the parking garage of Savides' apartment building in Savides' car. Wilson met with a Donald Smith at a nearby restaurant and received a brief case from Smith. Wilson was stopped by police officers when he returned to Savides' building and a search ensued. In the trunk of Savides' car, police retrieved the brief case which was later shown to contain 10 kilograms of cocaine. An analysis of Savides' phone records showed calls had been placed prior to Savides' arrest to a phone associated with Smith in the Florida Keys. Finally, the affidavit recites statements by Paul Meegan, a former associate of Savides. Meegan told DEA agents that Savides and his partner regularly supplied him with cocaine. Specifically, Meegan informed DEA agents that Savides and his partner sold Meegan as much as a million dollars of cocaine during a one-year period. Meegan disclosed that it was his impression that Savides was the one who had the connections to maintain a supply of cocaine.

Upon being presented with an affidavit for a search warrant containing the above-mentioned information, Magistrate Weisberg studied it and expressed doubt as to whether probable cause existed to search the office at 1400 Renaissance Drive. Assistant U.S. Attorney Knight told the magistrate he believed case law supported issuance of a warrant and informed the magistrate time was of the essence for the government. Magistrate Weisberg and Knight then separated two times while the magistrate and his law clerk researched and discussed the probable cause issue. Magistrate Weisberg then informed Knight that he believed the affidavit of DEA Agent Morley did not establish probable cause and denied the application for a warrant having a minute order entered to that effect. At that point, either the magistrate or Knight raised the issue of whether the same affidavit could be presented to another judge. Magistrate Weisberg expressed the belief that denial of the application for the search warrant did not preclude the government from resubmitting the very same affidavit to another judge, although no new grounds were being offered for resubmission.

After leaving Magistrate Weisberg, Knight proceeded to the offices of Chief Magistrate James T. Balog. Knight advised Chief Magistrate Balog that Magistrate Weisberg said he had no objection to another magistrate reviewing the affidavit. Chief Magistrate Balog stated that since Magistrate Weisberg did not object to the review, he would examine the affidavit. After reviewing the affidavit, Chief Magistrate Balog authorized the execution of the search warrant for Room 102 of 1400 Renaissance Drive, Park Ridge, Illinois.

Executing the search warrant of Room 102, DEA agents recovered 200 grams of cocaine, small and large plastic bags, small envelopes, a razor, a small cocaine "testing" spoon, a balance beam scale and several empty kilogram boxes. DEA agents also assert that Savides' fingerprints were found in 18 locations in the office.

II. DISCUSSION

Savides presents this court with three motions. First, Savides moves to quash the search warrant issued on March 8, 1986 by a state court judge and suppress the 10 kilograms of cocaine recovered from his apartment on the grounds that the facts stated in the supporting search warrant affidavit were fabricated by the affiant police officer. Second, Savides motions to quash the search warrant issued on January 8, 1987 by Chief Magistrate Balog and suppress the 200 grams of cocaine recovered from Room 102 on the grounds that the initial denial of the search warrant by Magistrate Weisberg equitably estopped the government from submitting the same application to a second judicial officer. Finally, Savides motions this court for an order revoking the pretrial detention order issued by Magistrate Weisberg on January 16, 1987. These motions will be addressed in turn.

On February 17, 1987, this court held a hearing to determine whether an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), was required. According to Franks, an evidentiary hearing is required when a defendant makes a substantial preliminary showing that a false statement was knowingly and intentionally or with reckless disregard for the truth included by an affiant in a search warrant affidavit, and the alleged false statement is necessary to the finding of probable cause. Id. at 155-56, 98 S.Ct. at 2676. To mandate a Franks hearing, the defendant's attack must be more than conclusory and must be supported by more than a sincere desire to cross examine. Id. at 171, 98 S.Ct. at 2684. Essentially, the allegations of deliberate falsehood or of reckless disregard for the truth must be supported by a substantial offer of proof before the requirement to hold the hearing arises. Id.

In the present case, Savides attacks the search warrant issued by the state court judge on the grounds that the affiant police officer completely fabricated the facts contained in the search warrant affidavit. A review of the affidavit submitted to the state court judge shows that the affiant police officer and his partner were sitting in an undisclosed place when they witnessed a man walk up to a pay telephone, pull out a betting form, dial a phone number and begin to place wagers on basketball games. The police officers then approached the man, who is not named in the affidavit, identified themselves and asked the man what had transpired on the phone. The unidentified man told the officers he had placed a bet with his bookmaker. The police officers asked the man if he would call again and place another wager. The man, after receiving assurance he would not be arrested if he cooperated, agreed to allow the officers to observe him dial two different numbers, identify himself, and place wagers. One of the two phone numbers the man dialed was subsequently traced through phone company records to Christ Savides at his Park Ridge apartment.

To substantiate Savides' claim that the occurrence described in the search warrant affidavit was fabricated, Savides submitted copies of several search warrant affidavits previously prepared by the two police officers in which similar encounters with unnamed men placing phone calls to bookmakers are described. After hearing the parties' oral arguments and reviewing the materials presented by Savides, this...