The opinion of the court was delivered by: BROTMAN
Defendant Juan Perez is charged with one count of conspiring to distribute heroin, in violation of 21 U.S.C. § 846 and six counts of distributing heroin, in violation of 21 U.S.C. § 841(a)(1). The case is now before the court on defendant's motion to suppress evidence seized under a search warrant issued May 26, 1982. Defendant has challenged the admissibility of the evidence on two grounds: (1), that the warrant did not satisfy the "particularity" requirement of the Fourth Amendment and (2), that admission into evidence of cocaine seized during the search would violate Rule 404(b) of the Federal Rules of Evidence. Although the court has been asked to reserve judgment on the Rule 404 issue until an appropriate point in the trial, this objection is apparently mooted by the court's disposition of the Fourth Amendment objection, which follows below.
The warrant in question was signed by a Superior Court judge upon review of two affidavits of Lieutenant Daniel Doherty, an investigator for the Hudson County Prosecutor's Office specializing in drug enforcement. In addition to his own affidavits, Doherty submitted to the judge three sworn statements of Lieutenant James Macomber, a supervisor in the Narcotics Strike Force of the Hudson County Prosecutor's Office. Macomber's affidavits were prepared in support of three court-ordered wiretaps which were authorized at preliminary stages in the government's investigation.
The warrant authorized the search of the second story of 4911 Bergenline Avenue in West New York, New Jersey for the discovery and seizure of:
controlled dangerous substances and adulterating and packaging material and equipment, storage containers, scales, measuring devices, telephone numbers, lists, books and records of drug transactions and contraband money from drug transactions.
The defendant does not contend that this warrant was not based upon probable cause. He spotlights the phrase "controlled dangerous substances" and argues that this phrase fails to specify with the requisite precision the nature of the substances to be seized. Defendant contends that the government's investigation centered upon the suspected distribution of cocaine and heroin, rather than illicit substances generally, and hence the warrant should have directed the seizure of "cocaine" and "heroin" rather than the much broader assortment of goods falling under the rubric "controlled dangerous substances."
In response, the government concedes that the investigation was mainly concerned with cocaine and heroin distribution, but argues that it was shadowing a diversified drug-trafficking ring such that describing the items sought as "controlled dangerous substances" was the only means of conveying the proper scope of the search. Alternatively, the government argues that given probable cause, a warrant authorizing the search and seizure of "controlled dangerous substances" is in per se compliance with the Fourth Amendment's particularity command.
The Fourth Amendment requires all warrants to contain a "particular description" of the things to be seized. "The particularity requirement 'makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'" United States v. Christine, 687 F.2d 749, 752 (3rd Cir. 1982), quoting Marron v. United States, 275 U.S. 192, 196, 72 L. Ed. 231, 48 S. Ct. 74 (1927). The warrant must be drawn to prevent a "general exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). The warrant must enable the executing officer to reasonably ascertain and identify the things which are authorized for seizure. United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981).
These standards are to be interpreted in a "commonsense and realistic fashion," Christine, supra, at 760, quoting United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). The court must engage in a pragmatic analysis which appraises the amount of detail needed in the light of the circumstances surrounding the seizure and the nature of the goods to be seized. United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir. 1976). Accordingly, when the precise identity of goods cannot be determined prior to a warrant's issuance, a more lenient standard of particularity should be applied than in the case of goods whose exact characteristics are known (e.g.: stolen property for which detailed descriptions are available from the owner).
Under these guidelines, generic descriptions of goods in search warrants have been held acceptable in certain instances. See, e.g.: United States v. Cortellesso, 601 F.2d 28 (1st Cir. 1979), cert. denied, 444 U.S. 1072, 62 L. Ed. 2d 753, 100 S. Ct. 1016 (1980); United States v. Scharfman, 448 F.2d 1352 (2nd Cir. 1971), cert. denied, 405 U.S. 919, 30 L. Ed. 2d 789, 92 S. Ct. 944 (1972); United States v. Giresi, 488 F. Supp. 445 (D. N.J. 1980), aff'd mem., 642 F.2d 444 (3rd Cir. 1981), cert. denied, 452 U.S. 939, 101 S. Ct. 3081, 69 L. Ed. 2d 953 (1981). However, a generic term or general classification in a warrant is not acceptable when a more specific description of the goods to be seized is available. Christine, supra, at 21; Cook, supra, at 733; Montilla Records of Puerto Rico v. Morales, 575 F.2d 324, 326 (1st Cir. 1978). "Failure to employ the specificity available will invalidate a general description of a warrant." Cook, supra, at 733.
Applying these standards to the instant facts, the court holds that the search warrant issued was constitutionally defective. The affidavits submitted to the judge who issued the warrant reveal that the government's primary suspicions of illicit activity centered on heroin and cocaine trafficking, at the time the application for the warrant was made. There are numerous references to both drugs in the texts of the affidavits. (See, e.g.: Macomber Affidavit of May 11, 1982, paras. 11 [describing a cocaine transaction], 12 [describing a heroin transaction]; Macomber Affidavit of April 30, 1982, paras. 4(e) [describing heroin transactions], 6 ["extraordinary quality of heroin"]; Macomber Affidavit of April 12, 1982, pp. 9-14 [focusing suspicion on both cocaine and heroin]. In fact, in its letter memorandum in opposition to suppression, the government flatly states: "it is apparent from the affidavits in the case that the investigation was directed at both heroin and cocaine trafficking."
In defense of the search warrant's draftsmanship, the government turns the court's attention to para. 19 of Macomber's April 12th Affidavit, which reads:
At this point in this investigation, the affiant has probable cause to believe that Gilberto Plasencia [an alleged confederate of the defendant] and those with whom he is associated are conducting an extensive and highly sophisticated drug distribution operation which imports and distributes virtually pure heroin and which also deals in other drugs such as cocaine.
On the basis of this record the government concludes that use of the phrase "controlled dangerous substances" was the best means of expressing the permissible scope of the search. In effect, the government argues that when more than one drug is the object of a search, the only available means of describing the goods to be discovered and seized is through the general ...