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UNITED STATES v. KAPRAL

January 13, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL KAPRAL, Defendant.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN District Judge

 BACKGROUND

 Defendant is charged with distributing and conspiring to distribute in excess of a kilogram of methamphetamine, in violation of 21 U.S.C. ยง 841(a)(1). Frederick Cress is an alleged co-conspirator. Some knowledge of the details of the investigation that led up to the arrest of Cress and Kapral and the search of the Blazer is necessary to evaluate the government's argument that the evidence from the Blazer should be admitted. The following facts are taken from affidavits sworn in support of applications for telephone surveillance and a search warrant of Kapral's premises, and from the oral testimony of the investigating officers. Their truth is accepted for the purposes of this motion only.

 Acting through an undercover investigator, the government had come in contact with Cress and was aware that he was a seller of illegal drugs. In order to acquire evidence against Cress and to determine his source for the drugs, the government placed a pen register on Cress's phone and initiated a series of drug transactions with him.

 One of these transactions took place on January 8, 1992. Cress and the investigator met at a bar. In the course of conversing with the investigator, Cress referred to someone named "Loop" as his source. The government was aware that Loop was an alias for Kapral. The investigator handed over the money, and Cress left the bar. The police surveillance team was unable to follow Cress, and several hours later he returned with the drugs. Cress again mentioned Loop as his source.

 At this time the government obtained a warrant to place a wiretap on Cress's phone. On February 19, another transaction was set up. On February 20, Cress went to Kapral's house in West Berlin, New Jersey and then returned to his own house in Atlantic City. Later that day, Cress again sold drugs to the investigator.

 On March 4, the investigator called Cress at his house and placed an order for one-half pound of methamphetamine. About an hour later, Cress left home and drove to Kapral's house. That afternoon, Cress delivered the requested amount of drugs to the investigator.

 On March 10, Cress admitted to the investigator that Kapral was his source for drugs. On March 23, a warrant was obtained to search Kapral's house. The government had previously determined that it would seize Kapral's Blazer pursuant to the civil forfeiture statute. *fn1" On the 24th, the investigator contacted Cress and arranged to buy a pound of methamphetamine. Cress was again observed going to Kapral's residence. Kapral was observed to arrive in the Blazer. Upon his entry into the house police entered and arrested both of them and began to execute the search warrant.

 When the search of the house failed to turn up any drugs, the investigators turned their attention to the Blazer. Upon searching it, they found approximately $ 20,000 in cash in two bags and a wallet. At the conclusion of the search of the premises, the investigators drove the vehicle to the prosecutor's office and, in the next day or so, it was delivered to the offices of the Drug Enforcement Agency.

 There the Blazer was subjected to an inventory search by federal agents Paccione and a colleague. Nothing further of evidentiary value was found.

 DISCUSSION

 The government does not dispute that there was no warrant to search the Blazer. The government claims that the search of the car was permissible because (1) they had probable cause to search the vehicle and so the search was within the auto exception to the warrant requirement, (2) the vehicle was subject to forfeiture and the warrant requirement does not extend to forfeited property, and (3) the evidence would inevitably have been discovered by the ...


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