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UNITED STATES v. CALLAGHAN

February 22, 1978

UNITED STATES of America
v.
James T. CALLAGHAN



The opinion of the court was delivered by: BROTMAN

 Defendant James T. Callaghan is charged with the illegal manufacture and possession of a controlled substance in violation of 21 U.S.C. § 841(a). On October 2, 1977, evidence was seized at the home of the defendant pursuant to the execution of a search warrant issued by United States Magistrate Serena Perretti. Before the Court are defendant's motions to impeach the search warrant affidavit and suppress the evidence seized thereunder. A hearing was held on December 13 and 14, 1977. *fn1"

 The defendant makes several contentions in support of his motions. First, it is claimed that the affidavit used in obtaining the search warrant fails, on its face, to establish probable cause needed for the issuance of a warrant. Second, it is claimed that, notwithstanding the facial sufficiency of the warrant, the evidence must be suppressed because of certain critical misinformation which the affiant, in support of the warrant, presented to the magistrate. Finally, the defendant contends that he has a right to have the informants produced for cross-examination in order to give the defendant an opportunity to demonstrate the de facto absence of probable cause. *fn2"

 It is well established that a magistrate may rely on hearsay information which an affiant receives from confidential informants. Jones v. U.S., 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); U.S. v. Edmond, 548 F.2d 1256, 1258 (6th Cir. 1977). However, in order to guard against police abuses of the informant procedure, the Supreme Court has announced specific standards which must be satisfied for an informant's hearsay statements to meet the strictures of the Fourth Amendment. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1963); Spinelli v. U.S., 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); U.S. v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). Aguilar, as modified by Spinelli and Harris, established a flexible two-prong test which was recently explained by the Sixth Circuit in U.S. v. Jenkins, 525 F.2d 819, 822 (1975):

 
The first prong requires that the magistrate be informed of some of the underlying circumstances on which the informant's conclusion was based, and the second prong requires that the affidavit show some of the underlying circumstances from which the affiant concluded that the informant (who need not be identified) was credible or his information reliable. 378 U.S. at 114, 84 S. Ct. 1509. And the latter case, Spinelli, supra, teaches generally that when an informer's tip is found wanting under Aguilar, the other allegations in the affidavit which corroborate the hearsay report should be considered, and the affidavit is to be deemed sufficient if it can fairly be said that the tip ". . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." 393 U.S. at 415, 89 S. Ct. at 588.

 The warrant at issue in the case sub judice is based on the information of three confidential sources (CS # 1, CS # 2 and CS # 3) together with the observations and conclusions of Drug Enforcement Administration (DEA) agents assigned to the Newark District office. The affiant, Special Agent (SA) Adam Mangino, stated he received information from CS # 1, a reliable informant, that "one James T. Callaghan, a/k/a Beau T. [was] in the process of preparing to manufacture PCP [Phencycledine] at his residence, 31 Norwood Ave., Montclair, N.J." CS # 1 also stated to the affiant that Callaghan usually distributed the PCP through several couriers who picked up the drug immediately after its production was completed.

 Were this all the information in the affidavit, the Court would be compelled to reject it on the basis of Aguilar, Spinelli and Harris. While there is information indicating the reliability of CS # 1, *fn4" this informant does not indicate, in specific enough detail, how he reached his incriminating conclusions. Based solely on CS # 1, the magistrate could not conclude that "he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, supra, 393 U.S. at 416, 89 S. Ct. at 589. Moreover, the information of CS # 2 and CS # 3, *fn5" standing alone, would not constitute probable cause since there is no information, other than the conclusions of the affiant, which would allow the magistrate to deduce that these two sources were reliable.

 Despite the weaknesses in the confidential source information, the Court cannot end its inquiry without looking at the entire affidavit. There is independent information which corroborates the hearsay reports and supports probable cause. See U.S. v. Jenkins, supra at 822; Spinelli, supra at 415, 89 S. Ct. 584; Harris, supra, 403 U.S. at 580-581, 91 S. Ct. 2075; U.S. v. McNally, 473 F.2d 934 (3d Cir. 1973). The affidavit indicates that, after receiving CS # 1's information, DEA agents observed a dark colored van with out-of-state license plates stop at the Callaghan residence on October 2, 1977, at approximately 11:30 a.m., and then depart after a conversation with Callaghan. The magistrate was also informed that DEA agents detected a strong smell of ether in the vicinity of the Callaghan residence during this same period of observation on October 2. SA Mangino thereafter concluded, based on his experience in previous investigations, that the PCP manufacturing process, usually accompanied in its last stages by a strong smell of ether, was nearing completion.

 Based on the totality of information contained in the affidavit, the Court concludes that the precautionary requirements of Aguilar, Spinelli and Harris are present and that the affidavit, in its entirety, clearly demonstrates the necessary probable cause for the issuance of a warrant. While CS # 1 did not provide any detail indicating how he reached his incriminating conclusions, he was clearly a reliable informant since he had given similar information less than a month prior to this time which had resulted in the seizure of another PCP laboratory. Additionally, this lack of detail was offset by the independent corroboration of DEA agents together with the statements of CS # 2 and CS # 3. A possible drug courier with foreign license plates was observed at the Callaghan residence in Montclair on the morning of October 2, 1977. This corroborated the information supplied by CS # 1 and CS # 3. More importantly, DEA agents detected a strong smell of ether, known by SA Mangino to be indicative of the final phase of PCP preparation, in the vicinity of the Callaghan residence on the morning of October 2. Viewing these circumstances, the Court concludes that the information was equally as reliable and trustworthy as that which would pass constitutional muster without independent corroboration. Spinelli, supra, 393 U.S. at 415, 89 S. Ct. 584; U.S. v. Jenkins, supra at 822; U.S. v. Toral, 536 F.2d 893 (9th Cir. 1976); U.S. v. Scott, 555 F.2d 522, 527 (5th Cir. 1977); U.S. v. Swihart, 554 F.2d 264 (6th Cir. 1977); U.S. v. Singleton, 439 F.2d 381, 383-384 (3d Cir. 1971); U.S. v. Kemp, 421 F. Supp. 563 (W.D.Pa. 1976). The magistrate's decision to issue the warrant was entirely reasonable and consistent with the Fourth Amendment.

 II. MISINFORMATION IN THE AFFIDAVIT

 The government concedes that there is certain inaccurate information contained in the affidavit of SA Mangino. It also concedes that a hearing is necessary in order to resolve the issue of whether the inaccuracies are sufficient to negate the validity of the warrant and require the suppression of the seized evidence. See U.S. v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973); Petillo v. N.J., 400 F. Supp. 1152, vacated, 541 F.2d 275 (3d Cir.), on remand, 418 F. Supp. 686 (D.N.J. 1976); U.S. v. Baynes, 400 F. Supp. 285, 296 n. 20 (E.D.Pa. 1975). The question presented is whether the defendant has impeached the affidavit to the point at which the evidence must be suppressed.

 A. The Suppression Hearing

 The government produced three witnesses at the hearing held on December 13 and 14, 1977; Special Agent (SA) Robert J. Marsh, SA ...


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