and Mr. Swisher left the area in the van after several attempts to rouse the occupants proved fruitless. Mr. Beitz testified that he returned to the premises between 2:00 and 2:30 p.m. in his wife's car in order to paint a bedroom on the second floor of the Callaghan residence. He first became aware of the police presence when he heard the sound of breaking glass and gunshots around 7:30 p.m. on the evening of October 2.
Harold Swisher testified that he and Mr. Beitz drove to the Callaghan residence in order to pay the defendant a friendly visit. He corroborated the testimony of Kenneth Beitz with respect to the time of the visit and the unsuccessful attempts to gain the attention of the occupants.
James Callaghan, Jr., fourteen year old son of the defendant, testified that he was home all day at his house on Norwood Avenue watching television. While on the second floor watching television at approximately 7:30 p.m., he became frightened when he heard the sound of breaking glass and gunshots. He also stated that he had seen his father and Mr. Beitz being treated roughly by the police.
On December 14 the Court requested further testimony from the government witnesses in order to clarify further the reasons for the inaccuracy in the affidavit. SA Marsh stated that, when the van arrived at approximately 11:00 a.m., he was the only DEA agent on the scene. He was communicating by radio with SA Mangino and other agents. SA Marsh was apprehensive about the possibility of singlehandedly confronting two or three people who were allegedly engaged in drug smuggling activities. In addition to relaying information about the location of the van and its occupants, he communicated the urgent need for support units. SA Mangino testified that he could have been mistaken in his recollection of the transmission from SA Marsh indicating that a conversation between the van occupant (Mr. Beitz) and Mr. Callaghan took place.
After considering all the evidence adduced at the hearing held December 13 and 14, 1977, the Court is persuaded that the government witnesses were more credible and persuasive. The Court is, therefore, inclined to disregard the testimony of Kenneth Beitz, Harold Swisher, Donna De Pasquale, and James Callaghan, Jr. The Court bases this conclusion essentially upon the demeanor of the witnesses, omissions and inconsistencies in their testimony, and upon the obvious biases of the witnesses toward defendant James T. Callaghan.
B. Legal Conclusions
Before proceeding to the central issue in this case, it is important to touch upon several contentions of the defendant which are not worthy of detailed discussion. First of all, accepting the government witnesses' testimony as credible, it is frivolous to argue that the manner of the warrant's execution was in violation of 18 U.S.C. § 3109.
The credible evidence indicates that the officers did, in fact, comply with this section. Furthermore, the Court is not in the least persuaded that the use of the word "vicinity" in paragraph 7 of the search warrant affidavit is ambiguous. It is evident that the smell of ether could not, standing alone, give probable cause for the search of any residence on Norwood Avenue, let alone number 31. However, the smell did not stand by itself but was one of many indicia pointing to the criminal involvement of defendant Callaghan at his Norwood Avenue residence. Together with the informant reports and the observations of DEA agents, the smell of ether in the vicinity of 31 Norwood Avenue is highly probative and corroborative of the presence of PCP at that location.
The Court now confronts the legal significance of the inaccuracies in the search warrant. The Third Circuit has had occasion to discuss the analogous subject of wiretap applications
but has never determined what particular standards govern the suppression of evidence seized as a result of a materially inaccurate warrant. Two recent district court decisions in this circuit have thoroughly discussed the approaches of other circuits. In U.S. v. Chadwell, 427 F. Supp. 692, 694-695 (D.Del. 1977), a warrant had been issued based upon what later proved to be partly inaccurate information. The police affidavit stated that the confidential informant saw purportedly stolen mag wheels in the home of the defendant. Later testimony at the suppression hearing indicated that the wheels were located in the garage rather than in the residence. The defendant's contention in Chadwell was similar to the argument raised here:
On the basis of this impeaching testimony, defendant contends that paragraph 27 of the affidavit filed in support of the search warrant misrepresented the location of the mag wheels, that this misrepresentation was material to the magistrate's finding of probable cause to search defendant's residence, and that because of the misrepresentation of that material fact, the evidence seized in the residence under the search warrant must be suppressed. In support of this contention, defendant relies upon the law of the Seventh and Eighth Circuits that suppression is required if it is found that governmental authorities have intentionally or recklessly misrepresented a material fact in a probable cause affidavit, United States v. Carmichael, 489 F.2d 983, 988-989 (C.A.7, 1973); United States v. Marihart, 492 F.2d 897, 900 (C.A.8, 1974), cert. denied 419 U.S. 827, 95 S. Ct. 46, 42 L. Ed. 2d 51 (1974), or the law of the Fifth Circuit which holds that contraband seized pursuant to a search warrant must be suppressed if the probable cause affidavit contains a misrepresentation (1) made with intent to deceive the magistrate regardless of whether the error was material to showing probable cause or (2) made unintentionally but the erroneous statement is material to establishing probable cause for the search. United States v. Thomas, 489 F.2d 664, 669 (C.A.5, 1973).