APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Aldisert, Hunter and Weis, Circuit Judges.
This is an appeal by the United States from an order suppressing evidence secured from a wiretap. The district court found that at the time the application for a wiretap was filed there was insufficient current information on a defendant's criminal activity on which to authorize the tap. We conclude, however, that the state judge who approved the wiretap properly found probable cause to believe that the telephone in question was being used in a continuing criminal enterprise. Accordingly, the suppression order will be vacated and the case remanded.
Defendants Sanchez and Herrera were indicted for conspiracy and various violations of the federal narcotics laws. The district court granted their motion to suppress because information in the warrant affidavit about Sanchez was stale. No discussion as to Herrera's connection with Sanchez on the target telephone appears in the application for the wiretap or in the district court opinion. However, the Government represents that the issues raised here will have a substantial effect in its case against Herrera.
During 1982, federal and state authorities in New Jersey cooperated in the investigation of a large scale drug distribution ring that included John Tehfe as one of its principals. According to confidential informants, Tehfe smuggled heroin and cocaine through Miami, had a distribution network in Dearborn, Michigan, and made frequent trips to South America in connection with his cocaine business. Based on this information, federal agents secured a wiretap order from a federal district judge to conduct electronic surveillance on Tehfe's telephone in Guttenberg, New Jersey.
The wiretap authorization under review in this appeal was sought by state officers on January 21, 1983. They applied to a judge of the Superior Court of New Jersey for permission to tap the phone registered to "R. Sanchez" at 22nd Street, Union City, New Jersey. The lengthy affidavit attached to the application for the warrant described Tehfe's and his associates' large scale drug smuggling and distribution operation in the period beginning in 1978 and allegedly still continuing. These activities were international in scope and included contacts with sources in Lebanon and Colombia.
According to the affidavit presented to the state court, an automobile registered to a known drug distributor was seen in the driveway of Tehfe's Guttenberg home in October 1982. On January 10 and 13 of 1983, only a few days before the application for the state wiretap was filed, another drug distributor's car was seen parked at Tehfe's residence. Pen register records also revealed that calls, including one on January 10, 1983, were made from a telephone at his home to other drug dealers in the months before the request for a wiretap was granted.
Tehfe, who also had a residence in Flushing, New York, had an interest in a New Jersey business known as Betty Fashions. He had given one confidential informant the telephone number of Betty Fashions to use if he wished to contact Tehfe about his drug business. Law-enforcement agents raided Betty Fashions in May 1982 and seized automatic weapons, over $14,000 in cash, and a quantity of marijuana. Moreover, an individual arrested for involvement in a heroin distribution conspiracy listed his occupation as a salesman for Betty Fashions.
The application sought permission to tap the 22nd Street telephone in the belief that it was being used by the conspirators in "an extensive narcotics distribution enterprise of international dimension." A confidential informant was quoted as having personal knowledge that Adolfo Sanchez and Andres Gueche were distributing heroin from residences located at 22nd Street and 48th Street in Union City.*fn1 They told the informant that their source of supply was "somewhere in the Mid-West."
Telephone company records disclosed that the phone at 22nd Street was registered in the name of "R. Sanchez," and the phone on 48th Street was registered to "A. Sanchez." Each subscriber listed the other as a reference. Criminal records disclosed that Adolpho Sanchez had been arrested and convicted for narcotics offenses.*fn2
An analysis of data supplied by pen registers revealed telephone communications between 22nd Street and Betty Fashions. In addition, calls were placed from both locations to telephones of two "documented drug violators." Another common number, called from both 22nd Street and Tehfe's residence, was that of a cafe in New York City frequented by known drug traffickers. The study of common phone numbers did not disclose when the various calls were made. The most recent events recited about the phone at 22nd Street consisted of calls placed to it from Tehfe's New York residence on January 16, 1983 and from Tehfe's New Jersey residence on January 17 and 19, 1983.
The affidavit also disclosed that Adolpho Sanchez was seen entering Tehfe's residence on one occasion. In December 1982, a month before the filing of the application, a major narcotics ...