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UNITED STATES v. SIERRA

May 7, 1984

UNITED STATES OF AMERICA
v.
JAVIER SIERRA and REYNALDO OJITO



The opinion of the court was delivered by: BROTMAN

 This case once again raises a troublesome issue regarding the Fourth Amendment's particularity requirement for search warrants. In United States v. Perez, 562 F. Supp. 574 (D.N.J. 1982), this court found that a search warrant which authorized the seizure of "controlled dangerous substances" was not sufficiently particularized in that the supporting affidavits indicated that "in order of probability, the drugs most likely to be found on the defendant's premises were: (1) heroin; (2) cocaine and (3) miscellaneous unknown substances." Id. at 577. In so deciding, this court relied on the Third Circuit's statement in United States v. Christine, 687 F.2d 749, 760 (3rd Cir. 1982) that "the use of generic classifications in a warrant is acceptable when a more precise description is not feasible." This court suggested several alternative, more precise formulations for the description of items to be seized which would have given "far greater direction to the search": for example, "heroin, cocaine or other controlled dangerous substances" or "controlled dangerous substances, particularly heroin and cocaine." Perez, supra at 577. "Such descriptions would have . . . markedly reduced the likelihood of an indiscriminate rummaging through defendant's personal effects." Id.

 The court has reviewed the case law in this area and, upon reflection, believes that its holding in Perez was overly technical, and produced a harsh result which does not advance the purposes behind the Fourth Amendment. Accordingly, the court will no longer follow its holding in Perez. It concludes that in the instant case, the clause in the warrant, "controlled dangerous substances," gave sufficient direction to the executing officers, did not allow a general exploratory search and is not constitutionally defective. The motion by defendants Javier Sierra and Reynaldo Ojito to suppress the evidence seized pursuant to that clause will be denied.

 I. Statement of the Facts

 On August 8, 1983, Roy L. Clagg, Special Agent of the Drug Enforcement Agency (DEA) applied to the Honorable John W. Bissell, United States District Judge, for an authorization to intercept wire communications. In his supporting affidavit, Clagg detailed an investigation which focused on individuals suspected to be involved in the importation and distribution of cocaine. On August 8, 1983, Judge Bissell authorized the wiretap of certain telephone numbers and on September 7, 1983, the Honorable Dickinson R. Debevoise, United States District Judge, extended this authorization. On August 30, 1983, the Honorable Arthur J. Simpson, Jr., Judge of the Superior Court of New Jersey, Law Division, authorized interception of wire communications from certain telephone numbers, based on an affidavit submitted by Michael Gelchion, Investigator of the Hudson County Prosecutor's Office Strike Force.

 On September 6, 1983, Gelchion submitted an affidavit detailing an outgoing call made by "Javier" from one of the wiretapped telephone numbers to a male identified as "Marica" at a telephone located at 1263 Valley Road, Apartment A, Wayne, New Jersey. Gelchion described the conversation as follows:

 
Javier informed Marica that he was presently in possession of three little ones (meaning three ounces of controlled dangerous substances) and that there were babies left "there" (meaning at 1263 Valley Road). There were two (meaning two kilograms of controlled dangerous substances) at Valley Road. Javier stated that he left the controlled dangerous substances at Valley Road for Marica to inspect. Javier told Marica that he gave a male, identified as Juan, ten cents (meaning $10,000) for the controlled dangerous substances. The Affiant's opinion is that the $10,000 is a down payment on the two kilograms of controlled dangerous substances.
 
Further in the conversation, Marica told Javier he is nervous about having the stuff (meaning controlled dangerous substances) at his house. Javier told Marica to put the stuff in his (Marica's) car.
 
Javier and Marica then discuss seeing the "Old Man" about the price of the controlled dangerous substances. They want to talk to the "Old Man" about paying 30 instead of 26. The Affiant's opinion is that the 30 is $30,000 and the 26 is $26,000 for the purchase price of one kilogram of cocaine.
 
Towards the end of the conversation, Marica told Javier that he (Marica) wanted Javier to remove the cocaine from his apartment and Javier agreed that he would make arrangements to do so.

 Based on this affidavit the Honorable Joseph Hanrahan, Judge of the Superior Court of New Jersey, Law Division, issued a warrant on September 6, 1983 which authorized the seizure of the following items at the Valley Road apartment:

 
Controlled dangerous substances and adulterating and packaging material and equipment, storage containers, scales, measuring devices, telephone numbers, lists, books and records of drug stransactions [sic] and contraband money from drug transactions.

 At approximately 12:00 noon, on September 6, 1983, police officers arrested Reynaldo Ojito on Route 46 in Northern New Jersey. They then drove him to his Valley Road apartment, which took about fifteen minutes, where they proceeded to execute the search warrant. In the apartment, they found three kilograms of cocaine. Other officers soon thereafter arrested Javier Sierra in Clifton, New Jersey.

 On October 8, 1983, a federal grand jury returned a five-count indictment against Sierra, Ojito and three other individuals for possession with intent to distribute cocaine, conspiracy to distribute cocaine and use of a communication facility, a telephone, to facilitate this conspiracy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), 846, and 18 U.S.C. § 2. The three other defendants agreed to plead guilty and entered plea agreements in January, 1984.

 Defendants Ojito and Sierra made the following motions to suppress certain evidence which the government might seek to introduce against them:

 (1) to suppress evidence obtained from the wiretap authorization issued by Judge Bissell, and extended by Judge Debevoise, because the supporting affidavits failed to establish that the agents had exhausted normal investigative techniques;

 (2) to suppress evidence obtained from the wiretap authorization issued by Judge Simpson, because it was not supported by probable cause;

 (3) to suppress Ojito's post-arrest statements since he was allegedly not given his Miranda warnings; and

 (4) to suppress evidence obtained pursuant to the search warrant issued by Judge Hanrahan because first, no probable cause existed, second, probable cause existed only to search Ojito's car and not the Valley Road apartment, and third, no probable cause existed for the items of drug paraphernalia listed in the warrant.

 The government moved to challenge defendant Sierra's standing to challenge the search of the Valley Road apartment.

 On March 19, 1984, the court read into the record its opinion denying defendants' motion to suppress evidence obtained pursuant to the wiretap authorizations. After the court heard testimony by an officer who testified he read Ojito his Miranda rights, Ojito withdrew his motion to suppress his post-arrest statements. The court also held that probable cause existed that drugs and drug paraphernalia would be found in the Valley Road apartment and that Sierra had standing to challenge the search of that apartment.

 II. Search of the Valley Road Apartment

 A. Probable Cause

 As the court found on March 19, 1984, the affidavits clearly revealed probable cause for both cocaine and controlled dangerous substances at the Valley Road apartment. See Gelchion affidavit of September 1, 1983 para. 4. Since defendants in this case often used code words and the agents had never seen the drugs -- in contrast to United States v. Morisse, 660 F.2d 132 (5th Cir. 1981), for example -- the agents had probable cause to believe that drugs were in the apartment, but could not be certain that it was cocaine.

 B. The "Particularity Requirement" of the Fourth Amendment

 In deciding whether the warrant's clause, "controlled dangerous substances," meets the Fourth Amendment's particularity requirement, the court must ...


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