"On January 5, 1989, Lyrissa Touby and Daniel Touby were arrested in Wanaque, New Jersey, on charges of uttering a forged instrument, theft by deception and possession of marijuana and possession of drug paraphenalia. The arrest resulted from a purchase of a television by the two suspects with a counterfeit cashiers check drawn on the City Federal Bank, Paramus, New Jersey. Defendants were arrested following the purchase of the TV in a motor vehicle. A search, incidental to the arrest, revealed Daniel Touby was in possession of marijuana and drug paraphenalia. Also located in the motor vehicle was a substance Cycocel liquid.
"A check with the FBI lab in Washington, D.C., indicated that Cycocel is a brand name plant stimulator manufactured by American Cyanimid. In checking with City Federal, it was learned that City Federal does not issue cashiers checks. Further, the account number listed on the check recovered does not match any account number with City Federal.
"Following the arrest of the defendants, Daniel Touby stated they were both in the business of printing T-shirts for rock concerts under the name In Flight Transfers, Inc. It should also be noted, that when arrested, Daniel Touby had what appeared to be blue ink on his hands. The color of the blue ink was similar to the blue ink color which appeared on the counterfeit check indicating City Federal dollar sign, then the numbers 2000 and 00 cents.
"A criminal history check revealed that Daniel Touby had been arrested for drug violations (11), forgery and counterfeiting (2), burglary (2), larceny (2) and stolen property (1).
"Detective Wilcox of Morristown P. D. indicated that Daniel Touby has been convicted of the charge of counterfeiting and forgery and numerous drug offenses and is presently awaiting sentencing in Morris County Superior Court. One of the charges in Morristown involved a large number of marijuana plants, according to Detective Wilcox.
"A criminal history check as to Lyrissa Touby shows arrests for drug violations (10), forgery and counterfeiting (2). Detective Wilcox noted Lyrissa Touby was also convicted for drug offenses and forgery and counterfeiting and is awaiting sentencing in Morris County Superior Court.
"The investigation revealed that Lyrissa Touby and Daniel Touby reside at 14-08 River Road, Fair Lawn, New Jersey. The own additional address for the business were two post office boxes in Denville, New Jersey, which have both been closed. The business itself, to the best of the affiant's knowledge, is being operated out of the home. The affiant believes that the house of Lyrissa Touby and Daniel Touby may contain items used in the crime of counterfeiting and forgery, and various controlled dangerous substances.
"As a result of the investigation conducted, I have reason to believe and do believe that the aforementioned items will be located on the premises."
Officers searched the defendants' residence for dangerous substances and items and equipment used in forging documents on January 6, 1989. Specifically, the warrant indicated that law enforcement officers were looking for "printing equipment, such as plates/stamps used to prepare checks, from City Federal Savings and Loan Association in Paramus, New Jersey, blue printers ink and controlled dangerous substances such as marijuana, marijuana plants and paraphenalia for use of the substances." In the January 6, 1989 search, the police observed more items which were not subsumed under the original search warrant. They swore out another warrant to seize those items on January 7, 1989. The warrant indicated that those items were chemicals, glassware, cookers and other items used in a laboratory.
The defendants argue that I should suppress the evidence seized in the January 6th and 7th searches because the original search warrant was defective, lacking probable cause. They argue that Detective Jordan's knowledge and information arising from the January 5th arrest "raised no more than a mere suspicion" that additional evidence existed and could be found at the Touby house. The defendants contend that the detective's investigation and his affidavit revealed no facts permitting an inference that evidence of accounting and/or drugs were present at the defendants' home. Defendants further assert that the evidence from the second search be suppressed as a "direct exploitation" of the initial, unlawful search conducted on January 6, 1989. Moreover, the defendants contend that the warrant is not within the good-faith exception to the warrant requirement because Detective Jordan's reliance on the warrant was not objectively reasonable.
I note that the defendants, in argument on March 10, 1989, expressly stated that no evidentiary hearing was necessary and that they would rest on their papers.
For its part, the government argues that one could easily draw an inference from the facts of Detective Jordan's affidavit that the defendants' T-shirt business was conducted in the defendants' home, in view of the only additional addresses being post office boxes in Denville, New Jersey. Hence, the government asserts that it was a "short step" in logic to infer that the residence was being used for counterfeiting purposes. The government therefore argues that probable cause for the search existed and, consequently, that I should not suppress the evidence garnered from the two searches.
The Fourth Amendment to the United States Constitution states that:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Emphasis added).
Probable cause is not susceptible of easy definition. It exists where the facts presented in the affidavit are such that a reasonable person would be lead to believe that the instrumentalities or evidence of the alleged crime will be found at the place to be searched. United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir. 1983), cert. denied, 466 U.S. 904, 80 L. Ed. 2d 154, 104 S. Ct. 1679 (1984) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 553-60, 56 L. Ed. 2d 525, 98 S. Ct. 1970 (1978); see also Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949).
In reviewing a judicial officer's determination of probable cause, the district judge must read and interpret the affidavit in a nontechnical, common sense and realistic manner. United States v. Ventresca, 380 U.S. 102, 108 & 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). A reviewing court should not undertake a de novo review; rather the court should pay great deference to the initial determination of probable cause by a neutral magistrate. Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1982) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)). "The duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . concluding' that probable cause existed." Gates, supra, 462 U.S. at 238-39; see United States v. Kepner, 843 F.2d 755, 762 (3d Cir. 1988); United States v. Vastola, 670 F. Supp. 1244, 1270 (D.N.J. 1987). However, reviewing courts should not simply rubber stamp magistrate's conclusions. See, e.g., Tehfe, supra, 722 F.2d at 1114.
Here, the magistrate had before him Detective Jordan's affidavit in assessing whether to grant the first search warrant. The affidavit revealed that the Toubys had a residence and two post office boxes for their business. Clearly, a nontechnical, common sense inference from these facts was that evidence of the counterfeiting and forgery charges and of the charges concerning the substances and their attendant paraphenalia would be found at the Touby residence; the only place, drawing a reasonable inference from the affidavit, where such materials could be stored. Accordingly, the affidavit provided the magistrate with a substantial basis for concluding that a reasonable person would believe that the instrumentalities or evidence of the Toubys' alleged crimes would be found at the Touby residence. I will, therefore, deny the defendants' motion to suppress the evidence from these searches since I find that the first warrant issued upon probable cause.
I note, in passing, that the defendants have not independently questioned the propriety of the second search, apart from its alleged taint by way of the initial search. I observe that there was probable cause for the second search based on Detective Jordan's January 7th affidavit that hazardous materials and paraphenalia were present at the Touby residence based on the observations made during the first search.
I note, further, that even if there was no probable cause to support the searches, I still would not grant the defendant's request to suppress the evidence from the two searches. Under United States v. Leon, 468 U.S. 897, 920, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), suppression is not required where "an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope."
Leon requires suppression:
(1) where the affiant intentionally or recklessly misleads the magistrate: or
(2) where the magistrate abandons his or her objective judicial role; or
(3) where the affidavit is so lacking in probable cause that an officer could not reasonably rely on the warrant; or
(4) where the warrant utterly fails to meet particularization standards.
Id. at 923; see Vastola, supra, 670 F. Supp. at 1270.
The defendants rely on prongs one and/or three in their argument against the good-faith exception. Neither one of these contentions are persuasive. The defendants have not shown that Detective Jordan intentionally or recklessly misled the magistrate nor that the affidavit lacked indicia of probable cause.
The information in the affidavit, indicating that defendants had only a home address and no other business address, with the exception of certain post office boxes plus prior similar offenses and the detective's observations linking him to the counterfeiting and forgery offenses, was sufficient indicia of probable cause, easily demonstrating that Detective Jordan was neither intentionally nor recklessly misleading the magistrate. Rather, Detective Jordan conducted his duties in a diligent and reasonable fashion; just the conduct which Leon was meant to protect. See 468 U.S. at 921 (stating that "Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." (Footnote omitted)).
I note that if the second search was independently, not derivatively, at issue, I would find that that search was under the good-faith exception as well, because the defendants have not shown intentional or reckless misleading of the magistrate as to the second search, nor that there was not indicia of probable cause for the second search.
Hence, even were I not to find that probable cause existed, I would not suppress the evidence garnered from the two searches because the searches fall, four-square, within the good-faith exception articulated in Leon, supra.
In sum, then I deny the defendants' motion to suppress the evidence of the search because the magistrate properly found probable cause to support the warrant. I further note that the search would fall within the Leon exception.
In conclusion, defendants' motions to dismiss the indictment and to suppress the evidence from the search are denied.
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