Petition — Sanchez v. United States

Supreme Court of the United States

Ocroser Term, 1983

ADOLFO SANCHEZ and LUIS HERRERA,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Pavut CASTELEIRO

Attorney for Petitioner, Adolfo

Sanchez

86 Hudson Street

Hoboken, New Jersey 07030

(201) 656-1000

ALEXANDER Booru, JR.

Attorney for Petitioner, ws Herrera

2 Highland Avenue

Jersey City, New Jersey 07306

(201) 333-8747

Adams Press Corp., 50 Park Place, Newark, New Jersey 07102—(201) 623-8611

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioners petition for a writ of

certiorari to review the judgment of the

Court of Appeals for the Third Circuit

in this case.

QUESTIONS PRESENTED

1. Whether this Court's decision in

Illinois v. Gates, U.S. __, 76 L.Ed.2d

527, 547 (1983) in which it was stated

that "after-the-fact scrutiny by the

courts of the sufficiency of an affidavit

should not take the form of de novo re-

view. A magistrate's determination of

probable cause should be paid great de-

ference by reviewing courts," means that:

A district court which permissably

concludes, after a careful and intelli-

gent review of a warrant affidavit, that

the warrant was invalid must nevertheless

defer to the issuing magistrate's deter-

mination of probable cause?

ale

2. Whether this Court's decision

in Zurcher v. Stanford Daily, 436 U.S.

547, 556 (1978) that the critical element

in a reasonable search is not that the

owner of the property is suspected of a

crime but that there is reasonable cause

to believe that the specific "things" to

be searched for and seized are located

on the property to which entry is sought,

means that:

The failure in a supporting affida-

vit to connect the individual whose tele-

phone conversations are to be seized and

the failure to establish the individual's

connection to the communication facility

and/or residence wherein the facility is

located is not determinative of the issue

of probable cause whenever there is an

allegation of a conspiracy if it can be

shown that a member of the conspiracy

communicated over the facility to be

wiretapped?

LIST OF ALL PARTIES

Petitioners:

Adolfo Sanchez

Luis Herrera

Respondent:

United States of America

TABLE OF CONTENTS

Questions Presented ......eeeeeees

mae GE BAk PEE coccecccsccece

TEBLe GE BBEROFICLOS cccccccsccses

Opinions Below ......ceeeeesccsees

DORSGEESERGR ccccccscccesocccocece

Constitutional Provisions ........

Statement of the Case .......eee6-

Reasons for Granting the Writ ....

GOURAGREOR. 060d cecceserseesesrneces

WwWoOouUU S & Wwe

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TABLE OF AUTHORITIES

Cases:

Illinois v. Gates, U.S. _,

76 L.Ed.2d 527,547 (1983 .....1,18,19

U.S. v. Tehfe, et als., Indictment

No. 83-37, Memorandum Opinion,

(D.C.N.J.),decided 6/15/83..4,et passim

U.S. v. Tehfe, et als., No. 83-5596"

Slip Opinion (3rd Circuit)

decided 12/6/83 .......... 4,18,19,22

@3-

Zurcher v. Stanford Daily, 436 U.S.

547,556 (1978) .....2+-. 2,20,21,22,23

Constitution and Statutes:

United States Constitution:

Fourth Amendment ---- 5, et passim

26 U.S.C. 6 LISE(L) ccccccccscccceses 5

OPINIONS BELOW

The opinion of the Court of Appeals

dated December 6, 1983, from which this

petition is filed, is not yet reported.

(See Slip Opinion, Appendix A, infra,

la et seq.) The opinion and order of

the district court dated June 15, 1983

(Appendix B, infra, 14a et seq.) are not

reported. The opinion of the district

court on the Government's motion for

reconsideration dated July 15, 1983

(Appendix C, infra, 7la et seq.) is not

reported.

JURISDICTION

The judgment of the Court of

Appeals was rendered on December 6, 1983.

@4-

The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United

States Constitution provides:

"The right of the people to be

secure in their persons, houses,

papers and effects, against un-

reasonable 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."

STATEMENT OF THE CASE

Petitioners Sanchez and Herrera were

indicted on February 18, 1983, in the

District of New Jersey, for conspiracy

and various violations of the federal

narcotics laws. On June 15, 1983 the

district court filed an opinion and order

(infra, 14a-70a) granting the petitioner

Sanchez's motion to suppress the evidence

derived from the interception of tele-

phone conversations on telephone number

aS

201-865-8677 located at 5.7 22nd Street,

Union City, New Jersey.

The respondent United States appealed

the decision of the district court and on

December 6, 1983 the Court of Appeals

vacated the suvopression order holding 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.

(infra, 2a)

On January 21, 1983 an order was

issued authorizing the interception of

wire communications to and from telephone

number 201-865-8677 registered to R. San-

chez at 517 22nd Street. The affidavit

of Hudson County Prosecutor's Investigator

Pamela Resch was submitted in support of

the application for a search warrant.

The supporting affidavit consisted

of 29 pages in the form of 67 separate

paragraphs. The first 37 paragraphs

-6-

described the narcotics related activities

of a John Tehfe and other named individuals

and makes no mention of the petitioners.

(infra, 30a-31la)

In paragraph 8 of the affidavit it

was stated that the "investigation which

is the subject of [the] Application

commenced in October 1982" and in para-

graph 38 it was asserted that a confiden-

tial informant, denoted "CI-3," provided

information concerning the subjects of the

instant application "[p]rior to the full

blossoming of the present investigation."

CI-3's information contained in paragraphs

39 and 40 is the only facially incrimin-

ating information in the entire affidavit

concerning the petitioner Sanchez. The

information was, as follows:

"39. CI-3 stated to members of this

office that he had personal knowledge

of individuals who were distributing

heroin from 151-48th Street, Union

City, New Jersey and 517-22nd Street,

Union City, New Jersey. These indi-

viduals were known to CI-3 only as

aFu

"Fifu and "Andres. "> CI-3 was told

by these people that he could contact

them at telephone number (201) 867-

3§21.

"40. CI-3 has acquired this infor-

mation as a result of personal con-

tact and association with these

individuals. CI-3 has had conversa-

tions with "Fifu" and "Andres" con-

cerning the purchase of heroin from

them. During the course of these

negotiations, CI-3 was told that the

heroin supply for these individuals

was somewhere in the Mid-West. CI-3

knows other individuals who have

conducted drug transactions with

these two men."

(infra, 3la-32a)

The district court analyzed the infor-

mation provided by CI-3 in the context of

the entire affidavit and concluded:

"The affidavit ... provides

no information as to the date or

dates upon which CI-3 conversed with

Sanchez about the purchase of heroin

from Sanchez and Andres. Similarly,

the affidavit is silent as to when

CI-3 gained his ‘personal knowledge'

that Sanchez was distributing heroin

from the premises at 517-22nd Street.

The affidavit does state that CI-3

1. CI-3 identified "Fifu" as the petitioner

Sanchez and "Andres" as Andres Gueche from

photos.

aie

made his report ‘prior to the full

blossoming of the present investiga-

tion.' The affidavit, however, pre-

sents no clear, unambiguous indica-

tion of when the investigation fully

blossomed. Paragraph 8 of the

affidavit suggests that the present

investigation commenced in October

3 1982. Many of the activities des-

cribed in the affidavit, including

investigative acts by various state

or federal officials, transpired in

the months before October 1982. In

light of the entire affidavit, one

cannot reasonably conclude that the

"blossoming' of the investigation

occurred after October 1982. If

there is any inference available,

it is that the ‘full blossoming’

of the investigation, prior to

which CI-3 made his report, occurred

in or before October, 1982. Thus,

the affidavit ultimately informs

us that CI-3 made his report on

Sanchez in or before October 1982.

Perhaps more important, this some-

what tortured analysis does not

indicate when the events related

by CI-3 actually occurred. At

its best, then, the affidavit merely

establishes that, in or before

October, 1982, CI-3 supplied infor-

mation concerning conversations

with Sanchez. But the affidavit

does not establish when the

incriminating conversation or

conversations with Sanchez took

place.

(infra, 32a to 34a)

In paragraph 51, it was stated that

in investigator for the Hudson County

-9-

Prosector's Office observed Sanchez

entering John Tehfe's house, on an un-

specified date, "following an interview

with Samira Tehfe concerning the death

of Havi Dbouk." Paragraph 8 of the

affidavit suggests that the interview

with Samira Tehfe occurred in or about

October, 1982. The investigator who made

the undated observation of a male enter-

ing Tehfe's home identified that indivi-

dual as the petitioner Sachez from a

photograph. The date of the investi-

gator's identification was not provided

in the affidavit.

On December 10, 1982, Libio Carcasses

who had previously been convicted for the

unlawful possession of 175 pounds of mari-

juana was seen entering 517 22nd Street,

Union City, New Jersey. The affidavit

never alleged or established that the

petitioner Sanchez lived at 517-22nd

-10-

Street, Union City, New Jersey.”

The district court in analyzing the

significance of the citing of Carcasses

at 517 22nd Street, stated as follows:

“However, the affidavit nowhere

established that Sanchez lived at

517 22nd Street, so the probative

value of Carcasses' presence there

is diminished. Only the cryptically

described report of CI-3 places

Sanchez at that address. The in-

formant, according to the affidavit's

paragraph 39, had ‘personal knowledge'

that Sanchez was distributing heroin

from those premises. But the affi-

davit does not explain the source

of CI-3's personal knowledge, except

arguably for mention of the conver-

2. In paragraph 41 of the affidavit, it

was stated that telephone number 201-865-

8677 registered to a R. Sanchez at 517

22nd Street, Union City, New Jersey, and

that telephone number 201-867-3521 was

registered to A. Sanchez at 151-48th

Street, Union City, New Jersey. The only

connection of A. Sanchez, as opposed to

Adolfo Sanchez, shown in the affidavit

to 517 22nd Street, Union City, New Jer-

sey, was that R. Sanchez used A. Sanchez

as a reference with the phone company.

The affidavit never established Adolfo

Sanchez to be the "A. Sanchez" residing

at 151 48th Street.

(infra, fn 4,

35a-36a)

-11l-

sations on an unspecified date with

Sanchez ‘concerning the purchase of

heroin' from Sanchez and Andre. As

noted above, not only are those con-

versations undated, but, as the

affidavit recounts it, the conver-

sations do not inc.iude information

placing Sanchez at 517 22nd Street.

"One can argue ... that conversa-

tion with Sanchez was the source

of the informant's ‘personal know-

ledge' that Sanchez was distributing

drugs from 517 22nd Street. But

that is at best a plausible infer-

ence, belied by the affidavit itself.

Had that been the case, one reason-

ably would think that, with such

» crucial, site-related intelligence,

the affiant would clearly have

stated it. Moreover, the paragraphs

in question also provide a suggestion

that some of CI-3's information came

through unidentified contacts in the

community: 'CI-3 also knows other

individuals who have conducted drug

transactions with ... (Sanchez and

Andre).' Resch Affidavit, Par. 40.

The reader must speculate whether

such hearsay, -- which could be the

casual rumor that does not establish

probable cause, see U.S. v. Karantha-

nos, 531 F.2d 26,31 (2d Cir. 1976),

cert.denied, 428 U.S. 910, -- was

the source of the information placing

Sanchez's drug dealings at the sub-

ject address.

"Thus the information of December

10, 1982, placing Carcasses at 517

22nd Street, says very little about

Sanchez; at best, by a generous

=} 2=

reading of the affidavit, it shows

that Carcasses visited a building

from which Sanchez was said to have

dealt in narcotics at some un-

specified time."

(infra, 35a-38a)

The affidavit goes on to outline that

a check of the telephone toll records of

201-865-8677 located at 517 22nd Street,

Union City, New Jersey and 201-865-1964,

Betty Fashions' telephone number, which

number the affidavit alleges John Tehfe

used, indicates that calls were placed

on both telephones to common telephone

numbers belonging to drug violators.

Furthermore, the affidavit asserted that

the toll records of 201-865-8677 and 201-

865-1375, the latter number being regis-

tered to John Tehfe, contained the common

number of 212-568-7714, a telephone num-

ber registered to Victor's Cafe of, 236

52nd Street, New York, New York, an

establishment which the affiant asserts

is "frequented by known drug violators."

-13- \

The affidavit failed to date the

telephone calls cited in the analysis of

toll records, a failure which was commented

upon by the district court judge:

"The [telephone] records do

suggest some associational ties

between John Tehfe, the business

Betty Fashions, and someone who

used the telephone at 517 22nd

Street. But without specific

dates, even the relevance of

associational information is

diminished. Also, without infor-

mation linking the calls from

517 22nd Street to a particular

individual (Sanchez) then

significance in an assessment

of probable cause declines."

(infra, 39a)

Lastly, the affidavit states that

a pen register revealed that three (3)

telephone calls were placed from Tehfe's

home to 201-865-8677 the week prior to

submission of the warrant application.

The district court in rejecting the

Government's argument that the affidavit

contained information which updated CI-3's

undated information and demonstrated on-

-14-

going criminal activity stated:

"As noted above, the crucial in-

formation supplied by CI-3 is un-

dated but inferentially appears to

have been supplied no less than

100 days before the application.

Evidence of association between

Sanchez and certain known drug

violators, or Sanchez and Tehfe

-- at best corrobative information

insufficient to establish probable

cause -- is either undated or of

similar vintage, except for the

January telephone call.

"But even the comparatively

recent evidence of association

between Tehfe and Sanchez or

Carcasses and Sanchez is weak.

For the affidavit fails to establish

either that Sanchez resided at, or

was in January 1983 using for drug

transactions, the premises at 517

22nd Street. CI-3's report claims

‘personal knowledge’ that Sanchez

was selling drugs from that

address. The only arguable basis

for that personal knowledge were

the 'conversations' mentioned in

paragraph 40 between Sanchez and

CI-3. Those conversations, as

discussed above, occurred at the

latest 3 to 4 months before the

warrant was issued. Those con-

versations do not show that Sanchez

lived at 517 22nd Street; had they

shown residence, one might infer

that residence and therefore San-

chez's use of the premises con-

tinued into the time period sig-

nificant for probable cause pur-

poses. The report of the conver-

-15-

sations merely indicates that at

some unspecified time months be-

fore the warrant application,

Sanchez may have used the premises

for drug transactions. CI-3's

report gives no grounds for belief

that Sanchez's use of the premises

continued into a time zone mean-

ingful to a determination of

probable cause in January of 1983.

"Thus the affidavit gives little

or no reason to assume that Sanchez,

or any other identifiable and

legitimate suspect, was using the

target telephone to make or re-

ceive the telephone calls upon

which the Government relies to

update or corroborate the confid-

ential informant's report.

"If the Resch affidavit established

probable cause, it is only through

the report of CI-3. But defendant's

argument that CI-3's report is stale

is compelling."

(infra, 44a to 46a)

The Court of Appeals concluded that

"the district judge's construction of the

affidavit was a careful and intelligent

one - it was, however, not the only

permissible one. The state judge's

reading of the affidavit to establish

probable cause is also defensible."

(infra, 12a)

-16-

The crux of the Court of Appeals'

reversal of the district judge's order

was its conclusion that:

"The application contains

sufficient facts from which the

state judge could find probable

cause to believe that Tehfe and

a number of his associates had

been operating a well-organized

drug smuggling and distribution

ring for years. The affidavit

clearly implicated Tehfe in a far-

reaching operation. Pen registers,

as well as surveillance reports,

revealed significant contact be-

tween Tehfe and a number of in-

dividuals who were known drug

dealers. More than mere associa-

tion was established by the

affidavit. It revealed the

existence of an extensive criminal

enterprise that relied on the

telephone as an important means

of communication. There was

ample justification to find that

crimes were being committed and

that evidence could be developed

through wiretaps.

"Having established that Tehfe

had a criminal scheme in being,

the state did not then have to

provide evidence that Sanchez was

part of the organization. What

was required was sufficient infor-

mation so that the state judge

could find probable cause to be-

lieve that the 22nd Street phone

was being used in the Tehfe

operation."

(infra, 8a-9a)

oi Je

The fact that the affidavit

established that Tehfe was engaged in a

conspiracy of some length was held to

cure any question concerning the stale-

ness of the information provided about

the petitioner, the telephone at 517

22nd Street or the residence.

REASONS FOR GRANTING THE WRIT

1. In Illinois v. Gates, supra, at

page 549, this Court cautioned reviewing

courts that they must continue to con-

scientiously review the sufficiency of

search warrant affidavits.

The Court of Appeals' decision in

this case appears to take a contrary

position in holding that a district

court which carefully and intelligently

reviews the sufficiency of an affidavit

leading to a permissible construction

of the affidavit invalidating the

issuance of the warrant must neverthe-

less defer to the issuing magistrate's

-19-

determination. Petitioner submits that

this Court did not intend in Illinois v.

Gates, supra, to sanction such an

illogical result.

It is logically impossible for a

court to hold that a reviewing court made

a permissible construction of a warrant

affidavit in determining it to we in-

sufficient and simultaneously to hold

that the issuing magistrate's determin-

ation of probable cause was equally

defensible. (infra,12a)

Petitioner believes the confusion

inherent in the Court of Appeals decision

results from its failure to consider the

long established “due deference" re-

quirement in conjunction with the long

established duty of reviewing courts to

conscientiously review the sufficiency

of warrant affidavits.

2. The Court of Appeals' reason-

ing that once it was established that

~39~

Tehfe had a criminal scheme in being that

the state then did not have to provide

evidence that the petitioner Sanchez was

part of that organization or that he was

presently connected to the 22nd Street

residence wherein the telephone was

located represents a dangerous and

expansive reading of this Court's decision

in Zurcher v. Stanford Daily, supra.

The fact that Tehfe had a criminal

scheme in being and had called someone

at the targeted telephone did not pro-

vide probable cause to believe criminal

acts were occurring during the telephone

calls.

The information in the warrant was

not that the 22nd Street address was

being used by Tehfe but that it was

being used by the petitioner Sanchez for

illegal activity. The failure in the

warrant to establish either that Sanchez

was part of the Tehfe organization

-20-

or that he resided at or used the 22nd

Street address left the warrant devoid

of any information indicating that the

phone calls made from the Tehfe phone

to the 22nd Street phone were criminally

related. No one other than the petitioner

Sanchez was alleged to have used 22nd

Street for illegal purposes and the

failure to timely place him at the resi-

dence rendered the warrant illegal.

While Zurcher v. Stanford Daily,

supra, gtands for the proposition that

there must be reasonable cause to believe

that the specific things to be seized

are present that principle has no appli-

cation to the instant case absent a

showing that Sanchez was presently

using the residence - since he was the

only one alleged to be committing illegal

acts at that address, the specific things

to be seized could only come through

petitioner's illegal activity. His

=2ie

illegal activity had to take place either

from his participation in the conspiracy

which concededly was not demonstrated,

or through CI-3's information, which is

undated. ?

The Court of Appeals' decision now

means that a warrant to wiretap a tele-

phone may be obtained simply upon the

basis that a criminal, e.g. Tehfe, is

currently calling someone at the location

of the telephone. Surely, Zurcher v.

Stanford Daily, supra, did not intend

such a result.

4. The district court commented on the

failure of the affidavit to link the

petitioner to the targeted telephone.

The district court stated:

"(The affidavit] neither shows

current suspicions or criminal

behavior by Sanchez (or anyone

else linked to the target pre-

mises), nor does it depict in

any detail on going criminal

activity by Sanchez or any

other person shown to reside at

or utilize the 517 22nd Street

premises or telephone."

(infra,54a-55a)

~22<

Zurcher v. Stanford Daily, supra,

involved a question whether evidence

of a crime could be seized from a

newspaper not alleged to be a suspect

in the crime being investigated. To

extend the principle of Zurcher to the

instant case is to open the door to the

widespread wiretapping of all individuals

or residenced which maintain communica-

tion with a suspected criminal absent the

establishment that the telephone calls

between the criminal and the residence

are of a criminal nature.

CONCLUSION

For the reasons stated above, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

PAUL CASTELEIRO

86 Hudson Street

Hoboken, N.J. 07030

Attorney for Petitioner

ADOLFO SANCHEZ

a33<

ALEXANDER BOOTH, JR.

2 Highland Avenue

Jersey City, N.J. 07306

Attorney for Petitioner

LUIS HERRERA

Dated: January 25, 1984

=24-

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-5596

UNITED STATES OF AMERICA,

Appellant

v.

JOHN TEHFE, a/k/a Ali Tehfe;

SAMIR TEHFE; ALI BAZZI;

ISSA BASSAM; NABIL NEHMI;

ADOLFO SANCHEZ, a/k/a “Fifu”;

ANDRES GUECHE; BENNY RODRIGUEZ;

LUIS HERRERA; SAMIRA TEHFE:;:

JOSE LUIS PEREZ, a/k/a “Junior”;

LUZ RODRIGUEZ-PEREZ; ROBERTO MARTINEZ,

a/k/a “Papito”,

Appellees

APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 83-37)

Argued November 1, 1983

Before: ALDISERT, HUNTER and WEIS, Circuit Judges.

Opinion filed December 6, 1983

W. Hunt Dumont, Esq.

United States Attorney

la

ill

Paul Casteleiro, Esq. (ARGUED)

86 Hudson Street

Hoboken, N. J. 07030

Attorney for Appellee,

Adolfo Sanchez

Samuel Rosenthal, Esq. (ARGUED)

Chief, Appeals Division

Federal Building

Newark, N. J. 07102

Attorneys for Appellant

Alexander Booth, Jr., Esq.

2 Highland Avenue

Jersey City, N.J. 07306

Attorney for Appellee,

Luts Herrera

OPINION OF THE COURT

WEIS, Circuit Judge.

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

2a

3

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

3a

4

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.' 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. ?

1. Permission was also given to wiretap the telephone at the

residence on 48th Street. However, state officials never followed

through on that order.

2. In the district court, Sanchez contended that the affidavit's

mischaracterization of his criminal record required suppression of

the evidence. The court agreed that the “allidavit badly

4a

5

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 violator was seen

entering the 22nd Street location.

in ruling on the suppression motions, the district

judge found that the application for the tap on Tehfe's

phone had satisfied the requirements of probable cause

and had recited “facts sufficiently indicating relevant,

protracted and continuous activity on Tehfe's part so as

to cure or eliminate the arguable staleness of certain

information in the affidavit.” Tehfe’s motion to

suppress the evidence obtained from his telephone was

denied, and he later entered a guilty plea.

Even though the state application contained much

of the same information about the enterprise that was

in the federal application for the Tehfe wiretap, the

district court reached a different conclusion on the

mischaracterized Sanchez'’s record.” but concluded that

suppression was not warranted. “Mischaracterizing the extent of his

record and his conviction does not change the fact that Sanchez had

been arrested and convicted for narcotics offenses.” Appellees have

not contested this aspect of the district court s opinion.

5a

6

suppression motion with respect to the tap at 22nd

Street. The district judge noted that the report by the

confidential informant that Sanchez was distributing

heroin from that address did not state when the events

actually occurred. As the court read the affidavit, it “laJt

... best... establishes that, in or before October 1982,

{the informant] supplied information concerning

conversations with Sanchez.” (Emphasis in the

original.) Similarly, Sanchez's visit to the Tehfe

residence was thought to be in October 1982.

The more recent visit of the drug trafficker in

December 1982 to 22nd Street was considered to have

little probative value because the affidavit did not

establish that Sanchez lived there. In the same vein, the

failure to provide information linking Sanchez to Tehfe

and Betty Fashions diminished the significance of the

associational factor suggested by the undated phone

records. The district judge viewed the three calls from

the Tehfe residences during the week preceding the

wiretap application as indicating mere association, not

probable cause.

The court acknowledged that the “affidavit does

recite drug-related activities of other individuals that

arguably appear ‘continuous and protracted. But it

does not give any detail or facts showing Sanchez to bea

part of these ongoing activities. .. .” In conclusion, the

court stated, “The affidavit does not sufficiently link

Sanchez to the target premises and communication

facility to satisfy the particular nuances of probable

cause... . But even assuming the adequacy of the

affidavit on that score, the court holds that the

information . . . was fatally stale.”

After argument on the govermment’s motion for

reconsideration, the district court ceclined to reverse its

suppression order. On appeal, the government argues

essentially that the district court erred in focusing on

Sanchez's possible culpability rather than on the

6a

7

probability that the telephone at the 22nd Street

address was being used for criminal purposes.

In its most recent pronouncement on the

interpretation of affidavits for search warrants, the

Supreme Court cautioned that

“after-the-fact scrutiny by courts of the sufficiency

of an affidavit should not take the form of de novo

review. A magistrate’s ‘determination of probable

cause should be paid great deference by reviewing

courts.’

[Sjo long as a magistrate had a ‘substantial basis for

. . concludlfing]’ that a search would uncover

evidence of wrongdoing, the Fourth Amendment

requires no more.”

Illinois v. Gates, 51 U.S.L.W. 4709, 4715 (June 8, 1983)

(citations omitted). This does not mean that reviewing

courts should simply rubber stamp a magistrate’s

conclusions; it does require the application of a

common sense standard. United States v. Ventresca,

380 U.S. 102, 108, 109 (1965); see also Gates, 51

U.S.L.W. at 4715, 4716.

When reviewing an application, courts must also

bear in mind that search warrants are directed, not at

persons, but at property where there is probable cause

to believe that instrumentalities or evidence of crime

will be found. Zurcher v. Stanford Daily, 436 U.S. 547,

553-560 (1978). The affidavit in support of a warrant

need not present information that would justify the

arrest of the individual in possession of or in control of

the property. Nor is it required that the owner be

suspected of having committed a crime. Property owned

by a person absolutely innocent of any wrongdoing may

nevertheless be searched under a valid warrant. See /d.

These fourth amendment principles are the same in

7a

8

an authorization for a wiretap as in a property search.

That the subscriber of the telephone service be

suspected of unlawful activity is not a prerequisite to a

wiretap authorization. As expressed in the statutory

language, what is necessary is probable cause to believe

that “an individual . . . has committed or is about to

commita particular offense” and that “communications

concerning that offense” may be intercepted from a

designated facility. 18 U.S.C. § 2518(3) (1982); see also

N.J. REV. STAT. 2A:156-10 (Supp. 1983-84)?

There are additional statutory restrictions, such as

intercept minimization of “innocent” conversations,

specific limitations on the duration of the tap, and

demonstration by the applicant that other means of

securing the evidence are not available or practicable.

18 U.S.C. § 2518(3),(5) (1982); N.J. REV. STAT.

2A:156A-10(c), 2A:156A-12 (Supp. 1983-84). These

latter considerations are not at issue on this appeal,

however.

The application contains sufficient facts from

which the state judge could find probable cause to

believe that Tehfe and a number of his associates had

been operating a well-organized drug smuggling and

distribution ring for some years. The affidavit clearly

implicated Tehfe in a far-reaching operation. Pen

3. According to the district court, “[ulnder the New Jersey

wiretap statute .... a warrant application must satisfy the

traditional requirements of probable cause, codified in the state and

the almost identical federal statute.” The parties do not disagree

with this assessment of the statutory provisions and rely exclusively

on federal case law to support their positions. We cannot quarrel

with the approach taken by the district court or the parties, and

discern no difference in the federal or state statute that implicates

the issues raised on appeal. See United States v. Vazquez 604 F.2d

1269, 1280 n.26 (2d Cir.), cert. denied. 444 U.S. 981, 1019 (1979):

see also State v. Sanchez. 149 N.J. Super. 381, 394-97. 373 A.2d

1028. 1034-36 (Law Div. 1977) (suggesting differences between

federal and New Jersey wiretap statute in other areas).

8a

9

registers, as well as surveillance reports, revealed

significant contact between Tehfe and a number of

individuals who were known drug dealers. More than

mere association was established by the affidavit. It

revealed the existence of an extensive criminal

enterprise that relied on the telephone as an important

means of communication. There was ample

justification to find that crimes were being committed

and that evidence could be developed through wiretaps.

Having established that Tehfe had a criminal

scheme in being, the state did not then have to provide

evidence that Sanchez was part of the organization.

What was required was sufficient information so that

the state judge could find probable cause to believe that

the 22nd Street phone was being used in the Tehfe

operation.

An analogous issue was presented in United States

v. Hyde, 574 F.2d 856, 862 (5th Cir. 1978), where some

defendants contended that their connection with the

conspiracy was insufficiently set forth in the application

for a wiretap. The court rejected the argument stating,

“{Wle have never required that a defendant be named in

a wiretap application or accused of using the suspected

telephone before evidence obtained by the wiretap can

be used against him. One of the objects of wiretapping is

to ascertain the full extent of participation in criminal

activity, and we need not limit retrospectively the pool of

potential defendants." See also United States v.

Martin, 599 F.2d 880, 884-85 (9th Cir.), cert. dented,

441 U.S. 962 (1979) (rebuffing contention that wiretap

statute requires probable cause of criminal activity for

each person named in application).

In determining whether a link existed between the

target phone and the Tehfe operation, Sanchez's

drug-related activities would be relevant as would those

of other visitors to the 22nd Street location. The

affidavit discloses that at some time Sanchez

9a

10

distributed heroin from that address, and that a

convicted drug trafficker came to that location on

December 10, 1982. In January 1983 this individual

had been observed driving another person to Betty

Fashions and then dropping him off at 48th Street.*

Included in the affidavit was an analysis of phone

calls between 22nd Street and other locations

associated with the Tehfe operation. The time period

covered by that study was not supplied; nevertheless,

the phone history does furnish additional evidence of a

connection between 22nd Street and the criminal

enterprise at some time during its operation.

Taking a common sense approach to evaluating

these facts, see Gates, 51 U.S.L.VW’ at 4716, the state

judge could conclude that the 22nd Street phone was

being used to further the aims of the Tehfe

organization. The district judge's hesitancy to accept

that view stems from his concern that much of the

pertinent evidence was stale, and therefore should not

be considered.

The concept of staleness is important in

determining probable cause for a search but is not

generally applicable to the showing required to issue an

arrest warrant. In the arrest situation, the magistrate

must find probable cause to believe that a crime has

been committed and the person to be arrested is the

culpable party. In that instance, the issuing officer is

concerned with historical facts and probable cause will

exist for an indefinite time. Passage of time will not

usually alter the significance of the underlying facts.

An application for a search warrant differs in that it

4. The affidavit states that thts event occurred in 1982. In the

context of the order of events described in the affidavit, we believe

that the 1982 date was a typographical error and that the event

probably occurred in 1983. In any event, ifthe 1982 date isin fact the

correct one. that circumstance would not affect our disposition of

this case.

10a

11

is necessary to establish that certain items are probably

located at the present time in a certain place. It is not

enough that the items may have been at the specified

location at some time in the past -- there must be

probable cause to believe that they are there when the

warrant issues. See generally 1 W. LAFAVE, SEARCH

AND SEIZURE 8 3.7(a) (1978).

The likelihood that the evidence sought is still in

place depends on a number of vaiiables, such as the

nature of the crime, of the criminal, of the thing to be

seized, and of the place to be searched. See ld. In United

States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973),

the defendant, who was allegedly trafficking in drugs,

contended that information in an application for a

search warrant was stale. In rejecting that argument, we

quoted approvingly from United States v. Johnson, 461

F.2d 285, 287 (10th Cir. 1972), that when an activity is

of a protracted and continuous nature “the passage of

time becomes less significant.” See also United States

v. Forsythe, 560 F.2d 1127, 1132 (3d Cir. 1977). We

further observed that “protracted and continuous

activity is inherent in a large scale narcotics operation.”

The factors affecting staleness are more easily

applied in cases of tangible property, rather than

wiretaps. However, the rationale is still valid.

In United States v. Hyde, staleness was raised as a

reason for suppression of wiretap evidence. There, the

affidavit alleged a conspiracy that had continued for two

years, contained information about events “less than 2

months old as well as the most recent telephone records

available.” 574 F.2d at 865. In finding the information

in the affidavit was not stale, the court concluded that

the state justice properly inferred that telephone

communications that had been occurring for two years

“had not mysteriously stopped within the past month.”

Id. The court also stated that the liberal examination

given staleness in a protracted criminal conduct case “is

lla

12

even more defensible in wiretap cases than in ordinary

warrant cases, since no tangible objects which can be

quickly carried off are sought.” Id.; see also United

States v. Martino, 664 F.2d 860, 866-67 (2d Cir. 1981),

cert. denied, 458 U.S. 1110 (1982); United States v.

Webster, 639 F.2d 174, 178-79 (4th Cir.), cert. denied,

454 U.S. 857 (1981), modified on other grounds, 669

F.2d 185 (4th Cir.), cert. denied, 456 U.S. 935 (1982);

United States v. Weinrich, 586 F.2d 481, 491 (5th Cir.

1978).

In this case, ample information in the affidavit

shows that the Tehfe operation was one of several years

standing. The staleness issue, therefore, should be

construed liberally. The district judge, however, limited

the inquiry to an “enterprise involving Sanchez and his

targeted telephone.” Viewing the circumstances from

that vantage point, he found no “current suspicious or

criminal behavior by Sanchez (or anyone else linked to

the target premises).”

But there was recent information that would permit

a finding that the Tehfe enterprise was connected with

the 22nd Street phone. Indeed, in the week just before

the application was presented, the pen register recorded

calls from Tehfe to the targeted phone. Moreover, once

the state judge was presented with sufficient facts to

find that the Tehfe enterprise was a prolonged one that

included a series of contacts with 22nd Street, the

informant's allegations of drug dealing by Sanchez were

no longer stale. They lent themselves to a reasonable

belief that while the enterprise was continuing so was

Sanchez's connection with it.

The district judge's construction of the affidavit was

a careful and intelligent one -- it was, however, not the

only permissible one. The state judge's reading of the

affidavit to establish probable cause is also defensible,

and the determination of probable cause was entrusted

to him in the first instance. We cannot say he erred in

l2a

13

viewing the affidavit as establishing probable cause that

the 22nd Street phone played a part in a long-standing

criminal enterprise.

In summary, we conclude that the state judge did

not err in finding probable cause to issue the wiretap

authorization. Accordingly, the order of the district

court directing suppression of the evidence secured as a

result of that wiretap will be vacated and the case

remanded for further proceedings consistent with this

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

Plaintiff, Criminal Action

: No. 83-37

Vv.

JOHN TEHFE, et al, : OPINION

Defendants

APPEARANCES:

Thomas G. Roth, Esa.

Cathy Fleming, Esq.

Assistant U.S. Attorneys

970 Broad Street

Newark, New Jersey 07102

Attorneys for Plaintiff

Charles Sommers, Esa.

15 Main Street

Hackensack, New Jersey 07601

Attorney for Defendant John Tehfe

Robert Eisenberg, Esq.

26 Journal Square

Jersey City, New Jersey 07306

Attorney for Defendant Samir Tehfe

Paul Casteleiro, Esq.

86 Hudson Street

Hoboken, New Jersey 07030

Attorney for Defendant Adolfo Sanchez

GERRY, District Judge

l4a

In connection with the law enforcement

investigation that produced the instant

indictment, federal and state judicial

officers authorized televhone wiretaps on

several telephones:

1. Telephone number: (201) 868-1375

Subscriber: John Ali Tehfe

Address: 6908 Polk St.

Guttenberg, NJ

(hereinafter, the "Tehfe" wiretap)

2. Telephone Number: (201) 867-3521?

Subscriber: A. Sanchez

Address: 151 48th St.

Union City, NJ

Telephone Number: (201) 865-8677

Subscriber: R. Sanchez

Address: 517 22nd St.

Union City, NJ

(the "Sanchez" wiretaps).

lithe Government never wiretapped this

telephone at 151 48th Street.

15a

ee

3. Telephone Number: (201) 864-5636

Subscriber: Juan Perez”

Address: 4911 Bergenline Ave.

West New York, NJ

A number of the defendants have

attacked the warrants that permitted the

wiretaps on the Tehfe and Sanchez telephones

as not supported by a showing of vrobable

cause. Defendants also contend that the

avpvlications for the Tehfe and Sanchez wire-

taps failed to demonstrate the requisite

necessity for resort to telephone eaves-

dropping. Finally, one or more defendants

assert that the investigating authorities

failed appropriately to minimize the inter-

ception of non-pertinent, innocent conversa-

tions over the target telephones.

Lastly, defendant Sanchez asserts that

the affidavit supporting the state's appli-

cation for an order allowing a wiretap on his

2suan Perez, as distinaquished from Jose

Luis Perez, is not a defendant in the instant

case.

l6a

telephone contained a knowing and deliberate

lie about Sanchez's criminal record or, at

minimum, a misrepresentation of defendant's

record that evinced a reckless disregard for

the truth.

Section 2518 of Title 18, United States

Code, delineates requirements for approval of

interception of wire or oral communications.

Section 2518(3) incorporates or codifies the

traditional, constitutional requirement that

the Government demonstrate to a judicial

officer, "probable cause for belief that an

individual is committing, has committed, or

is about to commit a particular offense..."

18 U.S.C. §2518(3) (a). The statute establishes

two other criteria that logically attend the

context of wire communications:

1. that “there is probable cause

for belief that particular

communications concerning that

offense will be obtained through

such interception ... "

2. that "there is probable cause for

belief that the facilities from

which, or the place where, the

wire or oral communications are

17a

to be intercevted are being used,

or are about to be used, in

connection with the commission of

such offense, or are leased to,

listed in the name of, or commonly

used by such person."

18 U.S.C. 2518 (3) (b) (c)

The statute provides two additional

safeguards for privacy interests so patently

involved in electronic interception. First,

the application must show that normal investi-

gative procedures have failed or entail too

much danger to merit attempt; second, the

monitoring authorities must attemot, in

accordance with an appropriate judicial order,

to minimize the interception of non-pertinent

conversations.

I. The "Tehfe" Wiretap - Probable Cause

and Necessity.

A. Probable Cause Regarding

Telephone Number (201) 868-1375

Subscriber: John Tehfe, 6908 Polk St.

Guttenberg, N.J.

Several defendants, including John Tehfe

and Samir Tehfe, challenge the sufficiency of

the affidavit by which the Government sought

to establish probable cause for the institution

18a

of a telephone tap on John Tehfe's telephone.

According to defendant, the affidavit's pur-

ported showing of probable cause rests upon

information supplied by three unidentified in-

formants. Defendants urge that for each infor-

mant the affidavit fails to establish a founda-

tion in the informant's personal knowledge for

the information he supplied; defendants also

urge that the supporting affidavit fails to

set forth for the informants the requisite

indicia of reliability.

Specifically, as to Confidential Informant

#1 (CI #1), defendants urge that the affidavit

(by Special Agent John Nolan) failed to

establish CI 4l's reliability or credibility.

According to defendant Samir Tehfe, the

affidavit vourportedly "verifies" CI #l's in-

formation by noting that: (1) CI #1 arranged a

controlled buy of drugs with a person named

Beudoun sometime in October 1982; (2) someone

at the John Tehfe residence telephones the

Beudoun residence 11 times from July 13 to

19a

August 16, 1982; (3) someone at the Tehfe

residence televhoned persons suspected. by the

police of criminal conduct; and (4) people

suspected of criminal conduct, including

Beudoun, had their cars parked in front of

the Tehfe residence. Defendants arque that

this “corroboration” verifies nothing but

innocent conduct and is therefore defective.

Defendants rely on the general rule of

Aguilar v. Texas, 378 U.S. 108 (1964) and

Spinelli v. U.S., 393 U.S. 410 (1969) that

affidavits for search warrants based on the

reports of an unidentified informant must set

forth some of the underlying circumstances

from which the officer concluded that the

informant was credible or his information

reliable. But the Government points to another

line of cases that specifically involve the

reliability of previously untested informants

in the context of wiretap affidavits. See

U.S. v. Weinrich, 586 F.2d 481 (5th Cir.1978)

and U.S. v. Hyde, 574 F.2d 856 (5th Cir.1978).

20a

Those cases set forth the following factors

for evaluating an unidentified informant's

report: the detail in which the informant

information was presented, Hyde, 574 F.2d at

863; Weinrich, 586 F.2d at 490; the fact that

some of the informant statements constituted

declarations against penal interest under

Fed. R. Evid. 804 (b) (3), Hyde, 574 F.2d at

863; the fact that crucial incriminating facts

contained in the affidavit were cross-verified

by other independent confidential sources,

Weinrich, 586 F.2d at 490; Hyde, 574 F.2d at

863; and that to the fullest extent possible,

details of the informants' stories were

verified by independent law enforcement in-

vestigation, Weinrich, 586 F.2d at 490.

As a threshhold matter, the Government

argues that when an untested informant actually

witnesses or participates in the crime, his

reliability need not be shown. See U.S. v.

Miley, 513 F.2d 1191 (2d Cir.), cert. denied,

423 U.S. 842 (1975) (in probable cause for

2la

arrest situation).

We think the affidavit, taken as a whole,

see U.S. v. Edwards, 577 F.2d 883, 895 (5th Cir.

1978) (en banc), quoting Smith v. U.S., 358

F.2d 833, 837 (5th Cir. 1966), cert.denied,

386 U.S. 1008 (1967), demonstrates the relia-

bility of the informants to a satisfactory

degree.

First, Agent Nolan affirmed that (1) an

individual named Beudoun, with a history of

drug trafficking, told CI #1 in John Tehfe's

presence that Beudoun and Tehfe worked to-

gether in the cocaine and heroin trade; and

(2) Tehfe stated, in CI #l's presence, that

he - Thefe - smuggled heroin and cocaine

through Miami and had a distribution network

in Dearborn, Michigan. The affidavit stated

that CI #l's statements regarding Beudoun's

heroin involvement (not involvement with

Tehfe per se) were corroborated by an

indevendent Drug Enforcement Administration

(DEA) investigation, including an aborted

22a

DEA-arranged controlled purchase from Beudoun

by a DEA agent in October 1982.

The statement in the affidavit that CI #1

had given reliable and accurate information

regarding previous narcotics' transactions

involving Beudoun equals or exceeds the reci-

tation commonly held sufficient to prove an

informant's reliability: that the informant

has in the past given accurate information

leading to convictions. See U.S. v. Sultan,

463 F.2d 1066 (2d Cir. 1972).

Likewise, the affidavit clearly states

that CI #1's knowledge of defendant John Tehfe's

activities arose from CI #l's personal conver-

sations with John Tehfe, or admissions made by

Tehfe in the informant's oresence. The affir-

mation that CI #3 learned directly from Tehfe

himself of Tehfe's dealings sufficiently sets

forth the underlying basis of CI #l1's knowledge

to allow a magistrate to determine trustworthi-

ness of the report. See Id. at 1068.

Moreover, the affidavit provided a*great

23a

deal of highly circumstantial evidence which,

standing alone, would not amount to probable

cause -- but in combination with the confiden-

tial source reports, does help to meet the

standard. For example, CI #2, according to

the affidavit, had heard Tehfe say that he made

frequent trips to South America in connection

with his cocaine business. The affidavit also

recites that United States Customs records

show Tehfe making numerous trips to Columbia

between 1978 and 1982, and that on a number

of occasions he re-entered the country with

large sums of money.

In another somewhat complicated but

telling dimension of the affidavit, the

affidavit recounts in minute detail the course

of a narcotics purchase-negotiation and bust

involving "Betty Fashions," a clothing outlet

whose telephone number Tehfe gave to CI #1 as

a number to call if CI #1 wanted to contact

Tehfe in relation to Tehfe's "drug business."

In brief, one G. Plasencia sold drugs to

24a

Undercover Agent Veronica Baker on several

occasions. On May 26, 1982, Plasencia told

Baker he would have to contact his source in

order to obtain heroin for Baker. Agents

observed Plasencia meeting Perez, and then

Perez proceeding to Betty Fashions; Perez

drove to Betty Fashions in a car registered

to (John) Ali Tehfe; when Perez left and

returned to his own residence, agents

observed him carrying a paper bag. Nolan

Affidavit q 30-32.

Overlaid against these significant

portions of the affidavit were the recita-

tion of phone calls made to and from the Tehfe

residence -- among others:

(a) 11 calls from Tehfe to Beudoun

between July 13, 1982 to Aucust

16, 1982;

(b) numerous televhone calls from Tehfe

to Betty Fashions, Inc., in January,

1983.

The record of calls, standing alone,

merely shows association, but no criminal

activity; nonetheless, in light of the other

25a

affirmations in the affidavit, the record of

calls add to the scale in favor of probable

cause.

One might argue that some of the most

probative parts of the Nolan affidavit concern

information about Tehfe's narcotic's activities

many months before the submission of the appli-

cation for the warrant. But when an affidavit

recites facts indica. nq activity of "a pro-

tracted and continuous nature," the passage

of time between the occurrence of events

essential to a finding of probable cause, on

one hand, and the date of the warrant, on the

other, diminishes in imvoortance. See U.S. v.

Harris, 482 F.2d 1115, 1119 (3d Cir. 1973).

The court finds that the Nolan affidavit

recites facts sufficiently indicating relevant

Drotracted and continuous activity on Tehfe's

part so as to cure or eliminate the araquable

Staleness of certain information in the

affidavit.

In short, the court finds that the Nolan

26a

affidavit satisfied the requirements of

probable cause.? The affidavit depicted

3counsel for John Tehfe makes two

additional arguments in attacking the

affidavit. First, John Tehfe araues that

Nolan in bad faith misrepresented to Judge

Biunno that John Tehfe resided at 6908 Polk

Street, the address at which the phone was

tapped, when Nolan knew that John Tehfe in

fact resided in Queens. It is difficult to

accept defendant's protestations of bad

faith or cries of foul when the telephone at

the Polk Street residence was listed, accor-

ding to the affidavit, in John Tehfe's name.

To say he did not reside at Polk Street and

that the agents knew it was not his residence

makes little or no sense when John Tehfe was

the telephone subscriber for the phone that

was tapped. Second, the defendant urges that

Nolan misrepresented that Tehfe lived in

New Jersey and associated with known narcotics’

violators. A number of Tehfe's contacts as

described in the Nolan affidavit had criminal

records for narcotics' violations -- and hence

were indeed known violators. Whether John

Tehfe lived in New Jersey seems immaterial;

and in any event, it seems quite plausible

that a man of his alleged wealth would have

and maintain or use two residences. Defen-

dant's arguments addressed to alleged mis-

representations in the Nolan affidavit are

without merit. Under the standards enunci-

ated in Franks v. Delaware, 438 U.S. 154

(1978), they do not constitute misrepresen-

tations material to a showing of probable

cause.

27a

admissions by Tehfe to CI #1 of extensive

illegal narcotics’ dealing. The affidavit

corroborated such reported admissions and,

through analysis of telephone records and

surveillance, linked the admissions to the

Polk Street, Guttenbera, New Jersey, residence.

B. Necessity

Defendants also challence the Nolan

affidavit for an alleged failure to show

that the wiretaps were a necessary recourse.

Section 2518(3)(c) of Title 18, United

States Code, vorovides that the judge deciding

an electronic surveillance application must

make a finding that normal investigative pro-

cedures have been tried and reasonably appear

unlikely to succeed. To comply with the

statutorily-required demonstration of neces-

sity, the affidavit must contain a factual

predicate to support the finding. U.S. v.

Armocida, 515 F.2d 38 (3d Cir. 1975).

The issuing judge made such a finding,

and the affidavit evinces a factual predicate

28a

for that finding: affiant Nolan affirmed that

none of his reporting confidential sources

were in a position to make a purchase from

Tehfe. ¢ 59, Nolan Affidavit. Nolan also

described in some detail how efforts at sur-

veillance had proven ineffective. The loca-

tion of Tehfe's residence on a seldom traveled

street, for example, had rendered discreet

surveillance impossible.

Moreover, a number of investigative

techniaues had been employed and exploited to

a considerable degree, but had evinced short-

comings. For example, pen registers and

physical surveillance revealed relationships

between suspected conspirators but did not

yield the content or nature of those relation-

Siiivs.

The affidavit's clear recitation of the

methods employed by the investigating author-

ities prior to the application, and the short-

comings of those methods, constitutes, in

this court's view, an adequate showing of

29a

necessity.

II. The "Sanchez" Wiretap.

On January 22, 1983, officials of the

Hudson County Prosecutor's Office avplied

to Judge Arthur Simpson, A.J.S.C., for a

warrant to permit the electronic inter-

ception of telephone conversations on tele-

phone number (201) 865-8677, located at

517 22nd Street, Union City, New Jersey.

Investigator Pamela Resch of the Hudson

County Prosecutor's Office supplied the

affidavit in support of the state's appli-

cation for a warrant.

Defendant Sanchez, joined by other

defendants, moves to suppress evidence

gathered by the 517 22nd Street wiretav. He

asserts that the supporting affidavit by Ms.

Resch did not establish probable cause as

required constitutionally and under the

New Jersey wiretap statute, N.J.S.A.

2A:156A-1, et seg.

The "Resch affidavit" contains 67

30a

paragraphs and spans 29 double-spaced type-

written vages. The first 37 paragraphs

describe allegedly criminal, narcotics-

related activities of John Tehfe, Jihad

Beudoun, Gilberto Plasencia, Juan Perez,

Benny Rodriguez and several other individuals.

That first portion of the affidavit makes no

mention of Adolfo Sanchez.

Paragraphs 39 and 40 contain the

only facially incriminating information

concerning defendant Sanchez. That infor-

mation comes from the report of a confiden-

tial source, named in the affidavit as

"CI #3." Those paragraphs state the

following:

39. CI-3 stated to members of this

Office that he had personal knowledge

of individuals who were distributing

heroin from 151-48th Street, Union

City, New Jersey and 517-22nd Street,

Union City, New Jersey. These

individuals were known to CI-3 only

as "Fifu" and "Andres." CI-3 was

told by these veople that he could

contact them at telephone number

(201) 867-3521.

3la

40. CI-3 has acquired this information

as a result of personal contact and

association with these individuals.

CI-3 has had conversations with "Fifu"

and "Andres" concerning the vourchase

of heroin from them. During the course

of these negotiations, CI-3 was told

that the heroin supply for these in-

dividuals was somewhere in the Mid-

West. CI-3 also knows other indi-

viduals who have conducted drug trans-

actions with these two men.

Subsequent statements in the affidavit

satisfactorily identify "Fifu" as Adolfo

Sanchez. See Resch Affidavit q 42. The

affidavit, however, provides no information

as to the date or dates upon which CI-3

conversed with Sanchez about the purchase

of heroin from Sanchez and “Andre." Sim-

ilarly, the affidavit is silent as to when

CI-3 gained his "personal knowledge" that

Sanchez was distributing heroin from the

premises at 517-22nd Street. The affidavit

does state that CI-3 made his revort "prior

to the full blossoming of the present

investigation." The affidavit, however,

presents no clear, unambiguous indication

of when the investigation fully blossomed.

32a

Paraograph 8 of the affidavit suggests that

the present investigation commenced in

October 1982. Many of the activities des-

cribed in the affidavit, including investi-

gative acts by various state or federal

officials, transpired in the months before

October 1982. In light of the entire

affidavit, one cannot reasonably conclude

that the "blossoming" of the investigation

occurred after October, 1982. If there is

any inference. available, it is that the

"full blossoming" of the investigation,

prior to which CI-3 made his revort,

occurred in or before October 1982. Thus

the affidavit ultimately informs us that

CI-3 made his revort on Sanchez in or be-

fore October 1982. Perhaps more important,

this somewhat tortured analysis does not

indicate when the events related by CI-3

actually occurred. At its best, then, the

affidavit does not establish when the

incriminating conversation or conversations

33a

with Sanchez took place.

The affidavit presents certain other

information concerning, or possibly con-

cerning, Sanchez or the premises at 517

22nd Street, Union City. None of that

information is by itself incriminating;

rather, it suggests associational ties

between Sanchez, or the premises at 517

22nd Street, and other individuals who

are, according to the affidavit, active

in the narcotics market.

First, the affidavit recites that

surveillance agents observed Sanchez

entering John Tehfe's house on an un-

specified date. Once again, as with CI-3's

information, other portions of the affida-

vit suggest that the agents made the

observation no later than October 1982.

That is, the affidavit places Sanchez

at the Tehfe residence at a time "following

the interview with Samira Tehfe concerning

the death of Havi Dbouk." The affidavit

34a

does not provide a precise date upon which

the Samira Tehfe interview transpired.

However, the wording of paragraph 8 again

usggests that the interview occurred in or

about October 1982. Thus, Sanchez was seen

entering Tehfe's house at some unspecified

and indeterminate time in or after October

1982.

Second, the affidavit indicates that

on December 10, 1982, one Libio Carcasses,

a convicted narcotics' violator, parked a

vehicle outside the premises at 517 22nd

Street and entered the house.

However, the affidavit nowhere estab-

lishes that Sanchez lived at 517 22nd Street

so the probative value of Carcasses' pre-

sence there is diminished. Only the cryp-

tically described report of CI-3 places

Sanchez at that address.“ The informant,

‘he affidavit elsewhere states that

the telephone number 201-865-8677 is

registered to a R. Sanchez at 517 22nd

35a

according to the affidavit's paragraph

39, had "personal knowledge" that Sanchez

was distributing heroin from those premises.

But the affidavit does not explain the

source of CI-3's personal knowledge,

except arguable for mention of the con-

versations on an unspecified date with

Sanchez “concerning the purchase of heroin"

from Sanchez and Andre. As noted above,

not only are those conversations undated,

but, as the affidavit recounts it, the

conversations do not include information

placing Sanchez at 517 22nd Street.

One can argue, as the Government must

Street, Union City, New Jersey, and that

telephone number 201-867-3521 is register-

ed to A. Sanchez at 151 48th Street, Union

City, New Jersey. The only connection of

A. Sanchez, as opposed to Adolfo Sanchez,

shown in the affidavit to 517 22nd Street,

Union City, New Jersey, is that R. Sanchez

used A. Sanchez as a reference with the

phone company. The affidavit never

established. Adolfo Sanchez to be the

"A. Sanchez" residing at 151 48th Street.

36a

that conversation with Sanchez was the

source of the informant's "versonal know-

ledge" that Sanchez was distributing drugs

from 517 22nd Street. But that is at best

a plausible inference, belied by the affi-

davit itself. Had that been the case,

one reasonable would think that, with such

crucial, site-related intelligence, the

affiant would clearly have stated it.

Moreover, the paragraphs in question also

provide a suggestion that some of CI-3's

information came through unidentified

contacts in the community: "CI-3 also

knows other individuals who have conducted

drug transactions with ... (Sanchez and

Andre)." Resch Affidavit, q 40. The

reader must speculate whether,such hear-

say, -- which could be the casual rumor

that does not establish vrobable cause,

see U.S. v. Karanthanos, 531 F.2d 26, 3l,

(2d Cir. 1976), cert.denied, 428 U.S. 910,

-- was the source of the information

37a

placing Sanchez's drug dealings at the sub-

ject address.

Thus, the information of December 10,

1982, placing Carcasses at 517 22nd Street,

says very little about Sanchez; at best,

by a generous reading of the affidavit,

it shows that Carcasses visited a building

from which Sanchez was said to have dealt

in narcotics at some unspecified time.

The affidavit also describes the re-

sults of an analysis of records of tele-

phone calls: (1) between the 517 22nd

Street premises and Betty Fashions; (2)

to common numbers belonging to convicted

narcotics’ violators from the Betty Fashions

telephone and the telephone at 517 22nd

Street; and (3) to a common number in

New York City, Victor's Cafe, an alleged

hangout for known narcotics' violators,

from the telephones at 517 22nd Street,

Betty Fashions and John Tehfe's home.

The affidavit does not date those

calls.

38a

The records do suggest some associa-

tional ties between John Tehfe, the

business Betty Fashions, and someone who

used the televhone at 517 22nd Street.

But without specific dates, even the

relevance of associational information is

diminished. Also, without information

linking the calls from 517 22nd Street to

a particular individual (Sanchez), their

significance in an assessment of vrobable

cause declines.

Finally, the affidavit recounts tele-

phone records that show 3 telephone calls

between John Tehfe's residence and 517 22nd

Street in the week vrior to the wiretap

warrant application. Those calls suggest

some association between the two house-

holds, but, like all evidence of mere

association, they do not establish probable

cause. See U.S. v. Jackson, 549 F.2d 517,

536 (8th Cir. 1977), cert. denied, 97 S.Ct.

1682 (1977); U.S. v. Johnson, 539 F.2d 181,

39a

192 n.40 (D.C. Cir. 1976).

In sum, the affidavit presents one

confidential informant's report concerning

an admission of culpability by Sanchez,

but that report and the admission itself

are undated. A reasonable reading of the

affidavit makes that revort by the informant

in the vicinity of 100 days old by the time

the state applied for a warrant.

The affidavit also presents some

evidence showing or suggesting some associ-

ation between Sanchez and known or suspected

drug violators. Some of the evidence is

undated. One surveillance observation (of

Libio Carcasses) was 42 days old; certain

telephone calls occurred immediately before

the wiretap application.

Defendant argues that the affidavit

does not show probable cause. Alternately,

defendant asserts that the information

from which probable cause arises was stale

and therefore inadequate to justify the

40a

warrant's issuance.

When the information provided by a

confidential informant supplies the

foundation for a finding of probable cause,

the affidavit setting forth that information

must satisfy two criteria. First, the

affidavit must show the underlying

circumstances from which the informant's

conclusions or "tip" arises. Second, the

affiant must set forth a basis for his

belief that the informant is credible and

his information reliable. See U.S. v.

Spinelli, supra.

The Resch affidavit asserts that

CI-3 had in the past provided information

which led to arrests and convictions for

violations of Title 24 of the New Jersey

Statutes (treating with controlled dan-

gerous substances) and seizures of large

amounts of such contraband. Affidavit of

Resch q 38. That affirmation suffices to

establish the credibility of the informant

4la

and the reliability of his information.

U.S. v. Sultan, 463 F.2d 1066 (2d Cir.

1972).

In her affidavit, Resch affirms that

CI-3 reported that Sanchez had personally

conversed with CI-3 concerning the purchase

of heroin from him, Sanchez. That is, CI-3

reported the defendant Sanchez's admission

in CI-3's presence, that Sanchez sold heroin.

Defendant argues that the affidavit

fails to set forth the "underlying circum-

stances” upon which CI-3's conclusions are

based.

But defendant ignores the obvious

significance of the affidavit's recitation

that the informant learned of Sanchez's

criminal activities by Sanchez's own ad-

mission. At least one court has held that

"the requirement ... that the basis of the

informant's belief be shown, is met ... by

the informant's statement that his informa-

tion was based upon defendant's own ad-

42a

mission. " U.S. v. Sultan, 463 F.2d at

1068.

In a technical sense, then, CI-3's

report arguably satisfies the two-pronged

test by which courts assess the significance

of an unidentified informant's report. We

can only observe, however, that it is a

very thin showing of probable cause.

Unlike many confidential informant reports

upon which magistrates find probable cause

CI-3's report recites almost no detail

about Sanchez's criminal activities or

operation, nor does it relate eye-witness

accounts of the target's involvement in

drug transactions. See, e.g., U.S. v.

Weinrich, 586 F.2d 481, 488 (5th Cir.

1978).

Nonetheless, the affidavit arguably

thus satisfies the relevant criteria for

accrediting a confidential informant's

report. Defendant correctly observes,

however, that CI-3's information suffers

from staleness.

43a

Resch applied for the warrant on Jan-

uary 21, 1983.

As noted above, the crucial informa-

tion supplied by CI-3 is undated, but

inferentially appears to have been supplied

no less than 100 days before the application.

Evidence of association between Sanchez and

certain known drug violators, or Sanchez and

Tehfe -- at best corrobative information

insufficient to establish probable cause --

is either undated or of similar vintage,

except for the January telephone calls.

But even the comparatively recent

evidence of association between Tehfe and

Sanchez or Carcasses and Sanchez is weak.

For the affidavit fails to establish either

that Sanchez resided at, or ‘as in January

1983 using for drug transactions, the pre-

mises at 517 22nd Street. CI-3's report

Claims "personal knowledge" that Sanchez

was selling drugs from that address. The

only arguable basis for that personal know-

44a

ledge were the "conversations" mentioned

in paragraph 40 between Sanchez and CI-3.

Those conversations, as discussed above,

occurred at the latest 3 to 4 months be-

fore the warrant was issued. Those conver-

sations do not show that Sanchez lived at

517 22nd Street; had they shown residence,

one might infer that residence and there-

fore Sanchez's use of the premises contin-

ued into the time period significant for

probable cause purposes. The report of the

conversations merely indicates that at some

unspecified time months’ before the warrant

application, Sanchez may have used the

premises for drug transactions. CI-3's

report gives no grounds for belief that

Sanchez's use of the premises continued in-

to a time zone meaningful to a determination

of probable cause in January of 1983.

Thus the affidavit gives little or

no reason to assume that Sanchez, or any

other identifiable and legitimate suspect,

45a

was using the target telephone to make or

receive the telephone calls upon which the

Government relies to update or corroborate

the confidential informant's report.

If the Resch affidavit establishes

probable cause, it is only through the re-

port of CI-3. But defendant's argument

that CI-3's report is stale is compelling.

As a general rule, probable cause to

justify a search or wiretap must exist at

the time the warrant is issued. Indeed,

in Sgro v. U.S., 287 U.S. 206 (1932), the

court held that proof of probable cause

"must be of facts so closely related to

the time of the issue of the warrant as

to justify a finding of probable cause at

that time." 287 U.S. at 210. Yet the

question of the staleness of probable

cause "depends more on the nature of the

unlawful activity alleged in the affidavit

than the dates and times specified there-

in," U.S. v. Harris, 482 F.2d 1115, 1119

46a

(3d Cir. 1973). Our own Court of Appeals

embraces the view of the Court of Appeals

for the Tenth Circuit:

U.S.

The vitality of probable cause

cannot be quantified by simply count-

ing the number of days between the

occurrence of the facts relied upon

and the issuance of the affidavit...

Where the affidavit properly recites

facts indicating activity of a pro-

tracted and continuous nature, a

course of conduct, the passage of

time becomes less significant.

v. Johnson, 461 F.2d 285, 287 (10th

Cif.

1972). See also U.S. v. Hyde, 574

F.2d 856,865 (5th Cir. 1978) (staleness

"must be examined more liberally when a

continuing pattern of criminal activity

is alleged").

To argue that the Resch affidavit

does not suffer from staleness, the

Government relies principally upon two

decisions from the Court of Appeals for

the Fifth Circuit: U.S. v. Weinrich, 586

oe

2a 481 (5th Cir. 1978) and U.S. v. Hyde,

574 F.2d 856 (5th Cir. 1978). Close

reading of these decisions and related

47a

authorities descerns in them little support

for the Government's position.

Whether the affidavit in support of a

warrant application suffers from staleness

depends on the facts of the particular case.

See Sgro v. U.S., 287 U.S. at 210-11 (1932).

This court cannot quarrel with the fundam-

ental proposition that when the affidavit

“clearly shows a long-standing, ongoing

pattern of criminal activity," then the

passage of time between essential events

and the search warrant's issuance dimin-

ishes in importance. See U.S. v. Hyde,

supra, at 865; U.S. v. Harris, 482 F.2d

1115, 1119 (3d Cir. 1973). But in the

relevant cases, that showing of protracted

and continuous activity is clear and de-

tailed; moreover, it depicts or implicates

in its details the target of the search

Warrant. See U.S. v. Weinrich, 586 F. 2d

at 488-489; U.S. v. Hyde, 574 F.2d at 864;

U.S. v. Harris, 482 F.2d at 1118-1119.

48a

In the instant case, in contrast, the

affidavit says very little about the sup-

posed targeted telephone and its supposed

owner, Adolfo Sanchez. The kind and dimen-

sion of information presented about Sanchez

and about his use of the targeted televhone

falls far short of the clear and detailed

account of the target's activity in a case

such as Weinrich. Where as in Weinrich the

court justifiably found a clear showing of

continuous and protracted activity suffi-

cient to cure staleness, no such predicate

exists in the instant affidavit upon which

a court might downplay the staleness of

information central to a finding of pro-

bable cause.

In Weinrich, a drug conspiracy case,

the authorities obtained a warrant on

February 18, 1977, to wiretap the telephone

of one Neil Ryder. The supporting affidavit

presented the report of two confidential

informants. The affidavit stated that

49a

the first source met with the agent-

affiant on November 10, 1976, and at sev-

eral succeeding meetings. The source

identified Ryder as a large-scale drug

dealer in the Tallahassee area and pro-

vided Ryder's address, telephone number and

description of two of his vehicles.

The informant described in detail

Ryder's operation, explaining that Ryder

obtained Columbian marijuana from Tom Strang

of Fort Lauderdale by traveling to Fort

Lauderdale once or twice a week to pur-

chase the marijuana in 75-100 pound quan-

tities. Then, reported the informant,

Ryder had the drugs taken to one Chuck

Mitchell's house for packaging in 5 to

30 pound lots. The informant gave a phy-

sical description of Mitchell and his

address and telephone number. He also

provided detailed background information

on Strang, Ryder's supplier, and named and

described a West Coast cocaine dealer with

50a

whom Ryder dealt. Moreover, the informant

identified and described Strang's source.

The informant further described a telephone

code these individuals, including Ryder,

employed. Finally, the source named a

series of individuals who had purchased

marijuana from Ryder -- among them one

Jerry Jennings. In an attempt at corrobor-

ating the source's report, the affidavit

recited that Jennings had been arrested

for possession of 25 pounds of marijuana

Ryder's name and telephone number were found

in Jennings' address book. Moreover, Ryder

posted, according to the affidavit, a cash

cond for Jennings’ release.

Finally, the affidavit reported that

subpoenaed telephone records revealed fre-

quent telephone calls among Ryder and his

cohorts, both suppliers and partners.

A second confidential informant had

reported, on January 18, 1977, that he had

been associated with Ryder and Strang and

S5la

purchased substantial quantities of mari-

juana from Strang. Along with confirming

much of CI-1l's report, CI-2 also related

that he frequently stayed at the Strang

residence and on one occasion had observed

Ryder purchasing marijuana from Strang.

The first confidential informant's

report was, at most, 100 days old. The

second's was 30 days old. The Court of

Appeals had no trouble dismissing defen-

dants' charge of staleness; the second in-

formant's tip was but one month old; the

detailed informant's reports coupled with

telephone records justified the conclu-

sion that the affidavit presented an

extensive and continuing criminal enter-

prise, involving Ryder and his taraeted

telephone.

In comparison with the affidavit under

attack in Weinrich, the Resch affidavit

makes a poor showing, if any showing at

all, of a continuing enterprise involving

52a

Sanchez and his targeted telephone. All

that the Resch affidavit tells the reader

is that an informant supplied information

in or before October 1982 that Sanchez and

the informant had discussed a drug trans-

action at some unspecified earlier time.

The affidavit does recite drug-related

activities of other individuals that ar-

guably appear “continuous and protracted."

But it does not give any detail of facts

showing Sanchez to be a part of these

ongoing activities, unlike the affidavit

in Weinrich.

Similarly, in U.S. v. Harris, supra,

the supporting affidavit depicted many

and various activities of Harris over a

period of time not specified in the court's

opinion. While the court did not clearly

identify the time periods asserted by

defendant to show staleness, it answered

the staleness argument with the following

<

description of the affidavit:

53a

The affidavit contained information

concerning the scope of appellant's

illicit activities, the identity and

location of the primary source of the

narcotics, and the name and address

of the financial backer. The magis-

trate was also furnished in the

affidavit the information to the

effect that the confidential infor-

mants had personally observed unlaw-

ful activities on the part of Harris,

had overheard telephone conversations

concerning the purchase and trans-

portation of the drugs, and that one

of the informants was actively in-

volved in the Harris narcotics organ-

ization.

482 F.2d at 1118-1119.

Moreover, the affidavit in Harris

described in detail a series of evasive

actions by defendant in the time period

immediately prior to his arrest. See Harris,

supra, 482 F.2d at 1116-1117, 1119. Timely

information showing attempts to evade

arrest and evidencing narcotics' possession

coupled with assertedly stale but detailed

information as to the target's narcotics’

operation, does demonstrate the protracted

and continuing activity that cures stale-

ness. The Resch affidavit neither shows

54a

current suspicious or criminal behavior

by Sanchez (or anyone else linked to the

target premises), nor does it depict in

any detail ongoing criminal activity by

Sanchez or any other person shown to re-

side at or utilize the 517 22nd Street

premises or telephone.

A comparison of the case at bar with

U.S. v. Hyde, 574 F.2d 856 (5th Cir. 1978),

similarly demonstrates the paucity and

staleness of the information in the Resch

affidavit. In Hyde, the information con-

tained in the affidavit against the target

of the wiretap came from four separate

and independent informants. The court esti-

mated that the information was between 36

and 48 days old. The affidavit in Hyde

contained information plausibly showing

that Hyde was part of a conspiracy to two

years' duration. Once again, the Resch

affidavit provides no facts sufficient to

portray Sanchez as a participant in what-

55a

ever asserted ongoing criminal enterprise

the affidavit attemots to denict.

Under the New Jersey wiretap statute,

N.J.S.A. 2A:156A-1,> a warrant application

>2A:156A-9. Application for order;

contents

Each application for an order of

authorization to intercept a wire or oral

communication shall be made in writing

upon oath or affirmation and shall state:

c. A particular statement of the facts

relied upon by the applicant, including:

(1) The identity of the particular person,

if known, committing the offense and whose

communications are to be intercepted; (2)

The details as to the particular offense

that has been, is being, or is about to

be committed; (3) The particular type of

communication to be intercepted; and a

showing that there is probable cause to

believe that such communication will be

communicated on the wire communication

facility involved or at the particular

place where the oral communication is to

be intercepted; (4) The character and

location of the particular wire communi-

cation facilities involved or the parti-

cular place where the oral communication

is to be intercepted; (5) A statement of

the period of time for which the inter-

ception is required to be maintained; if

the character of the investigation is

such that the authorization for inter-

ception should not automatically termin-

ate when the described type of communi-

cation has been first obtained, a parti-

cular statement of facts establishing

56a

must satisfy the traditional requirements

of probable cause, codified both in the

state and the almost identical federal

statute, 18 U.S.C. §2518.

A very generous reading of the Resch

affidavit descerns a barely sufficient

showing of probable cause to believe that

defendant Sanchez was, at some unspecified

time more than four months before the

application, involved in drug transactions.

The affidavit does not sufficiently

link Sanchez to the target premises and

communication facility to satisfy the

particular nuances of probable cause

spelled out in the federal and state

statutes. But even assuming the adequacy

probable cause to believe that additional

communications of same type will occur

thereafter; (6) A particular statement

of facts showing that other normal inves-

tigative procedures with respect to the

offense have been tried and have failed

or reasonably appear to be unlikely to

succeed if tried or to be too dangerous

to employ.

57a

of the affidavit on that score, the court

holds that the information essential to a

finding of probable cause -- CI-3's re-

port -- was fatally stale. The Resch

affidavit fials to establish the requisite

probable cause to intercept communications

at 517 22nd Street, and therefore the

evidence gathered from that intercept

must be suppressed.

III. Franks Hearing.

Defendant Sanchez charges that the

Resch affidavit contains a willful material

misrepresentation as to Sanchez's criminal

record, and that such a misrepresentation

ultimately compels suppression of the

evidence.

The Resch affidavit states that

A criminal record check conducted

on Adolfo Sanchez has (sic) an exten-

sive record of arrests for various

violations of the drug laws of this

state. The most notable of these

occurred on October 21, 1971, when

he was arrested for the possession

of two (2) kilograms of heroin, a

charge for which he ultimately was

convicted. >

58a

In briefs submitted to the court,

Sanchez asserted that his arrest record

shows only two arrests -- hardly an "ex-

tensive" record of arrests. Moreover, his

one conviction was for conspiracy to

possess cocaine, not for possession of

heroin.

The court held a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978),

to aid in détermining whether affiant

Resch knowingly misrepresented Sanchez's

record, or described that record with

reckless disregard for the truth.

The hearing testimony suggests that

the affiant paid little heed to distinc-

tions between a short and long arrest

record. The record also suggests, how-

ever, that Resch had some reasonable basis

for affirming that Sanchez had been con-

victed for possession of heroin.

The court concludes that the affi-

davit badly mischaracterized Sanchez's

59a

record, but that mischaracterization does

not, or would not, alter any reasonable

assessment of the affidavit's capacity

for establishing probable cause. The

significant germ of information is Sanchez's

prior involvement in narcotics dealing.

Mischaracterizing the extent of his

record and his conviction does not change

the fact that Sanchez had been arrested

and convicted for narcotics' offenses.

Thus, the court finds that no

Franks problem affects this affidavit.

A. Did Government Make Necessary

"Necessity" Showing Under 18 U.S.C.

§ 2158(3)(c) and N.J.S.A. 2A:156A-10.

Defendant argues that evidence from

the wiretap on his phone should be sup-

pressed because the affidavit of Pamela

Resch supporting the application failed

to establish the need to wiretap.

As required by 18 U.S.C. $ 2518(3){({c),

the issuing judge found on the basis of

the application before him that “normal

60a

investigative procedures have been tried

and reasonably appear unlikely to succeed,

if continued."

In the Armocida decision, the Court

of Appeals for the Third Circuit held that

the statutory burden of establishing com-

pliance with § 2518(3)(c) is not great,

515 F.2d at 38; see also United States v.

Sean, 545 F.Supp. 799 (D. Del. 1982), and

requires "only ... that there exists a

factual [as opposed to conclusory] pre-

dicate in the affidavit to support the

s

finding. 515 F.2d at 38; United States v.

Vento, 533 F.2d 838, 849 (3d Cir. 1976).

Here, the Government made an adequate

showing that other methods were unlikely

to succeed. The Resch affidavit cites a

complete history by the DEA and the Hud-

son County Pksdniunin*e office of physical

surveillance, utilization of numerous

informants, undercover agents, telephone

toll and pen register analyses, among

6la

other investigative techniques. The court

is satisfied that the affidavit established

the required factual predicate for a finding

of necessity.

IV. Minimization.

Under the statute, 18 U.S.C. $2518

(5), every intercept order must contain a

minimization provision [to minimize inter-

ception of “innocent” conversations].

U.S. v. Giordano, 416 U.S. 505 (1974)

me

requires suppression when “there is fail-

ure to satisfy any of those statutory

requirements that directly and substan-

tially implement the congressional inten-

tion to limit the use of intercept pro-

cedures." See U.S. v. Scully, 546 F.2d

255, 262 (9th Cir. 1976), vacated on

other grounds, 430 U.S. 902 on remand,

554 F.2d 363, cert. denied, 434 U.S.

870, quoting U.S. v. Giordano, 416

U.S. at 527. (Emphasis added.)

When the record shows hundreds of

62a

interceptions, and the court has the

tapes, transcripts of the tapes, and logs

of the interceptions, for review, and the

court holds a hearing in which the super-

vising agent or supervising attorney is

subject to examination on compliance with

the minimization requirement, then the

court need not examine each and every

interception. Nor must the court include

in the hearing all of the translators or

officers who monitored conversations.

U.S. v. Scully, 546 F.2d at 263.

When a complete disregard of the

statute's requirements is not claimed, ©

compliance with the minimization require-

ment is to be ascertained by determining

whether a good faith effort to minimize

was attempted. It does not appear that

defendant(s) allege complete disregard.

U.S. v. Armocida, 515 F.2d 29,43 (3d Cir.

1975). When the conspiracy is large

scale, it may be necessary for the

63a

Government to intercept a correspondingly

higher number of conversations, Id. at 44,

particularly where, as here, the wiretap

is designed to identify other participants

and to determine the conspiracy's scope.

Id. Somewhat greater latitude is allowed

when conspirators converse in a colloquial

code, thereby creating superficially

innocent conversations. Id.

Finally, brief interceptions -- e.g.,

less than two minutes -- do not violate

minimization requirements, when it may

take that amount of time to discern the

quality of a conversation. Id.

Defendants do not appear to allege

that the Government wholly ignored or

flouted the requirement to minimize. Nor

could defendants plausibly make such an

assertion, given the testimony and sta-

tistics the Government presented at an

evidentiary hearing on the minimization

issue. Rather, defendants allege that the

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Government failed to make a good faith

and substantial effort to minimize inter-

ception of innocent conversations.

According to defendant Tehfe, be-

tween January 28, 1983 and February l,

1983, 72% of the conversations were non-

pertinent, and 66% of these were not "“min-

imized." From February 1, 1983 to Feb-

ruary 5, 1983, 53% of the total inter-

ceptions were non-pertinent, and 62% of

those were not minimized.

The Government's statistical summary

shows the following:

SANCHEZ TEHFE

Total Number of

Interceptions 656 467

Total Number of

Interceptions Involving

Actual Conversations

(excluding items such as

wrong numbers, busy signals,

no answers, phone off the

hook, etc. ...) 480 328

Total Number of Conver-

sations Involving

Narcotics 95 122

65a

SANCHEZ TEHFE

Total Number of

Conversations Not

Involving Narcotics 385 206

Total Number of Non-

Pertinent Conversations

Minimized 179 58

Total Number of Non-

Pertinent, Non-Minimized

Conversations Under Two

Minute Duration 176 lll

Total Number of Non-

Pertinent, Non-Minimized

Conversations Over Two

Minute Duration 30 37

Government Exhibit G-l

The Government adduced credible tes-

timony at the hearing that the alleged

co-conspirators utilized a code to disguise

the narcotics terms used in intercepted

conversations. T. 38-40, May 9, 1983.

Specifically as to the Tehfe wire-

tap, the record also reveals that the

taped conversations transpired principally

in Lebanese and Spanish. For the Lebanese

(Arabic) conversation, the Government had

to utilize State Department contractors

66a

fluent in Arabic but unschooled in the

ways of law enforcement. T. 24, May 9,

1983. Thus such personnel cannot reason-

ably be expected to have differentiated

easily between innocent conversations and

drug-related conversations.

Finally, the record shows that the

authorities suspected that all occupants

of the Tehfe house either participated

in or knew about John Tehfe's alleged

drug business. T. 40-41, May 9, 1983.

Therefore, no conversation would appear

automatically innocent simply because

it involved an "innocent" family member.

As to both the Sanchez and Tehfe

tapes, Special Agent Nolan, the DEA

"case agent” in the subject investiga-

tion, provided credible testimony re-

garding the briefings given to the

wiretap monitors and the rules by which

those monitors were instructed to oper-

ate. T. 26-29, May 9, 1983.

67a

On the basis of that testimony, and

with due regard for the small number of

intercepted, non-pertinent conversations

of over two minutes’ duration, the court

holds that the Government made a svu)-

stantial, good faith effort at minimiza-

tion with a satisfactory degree of success,

both on the "Sanchez" and "Tehfe" wiretaps.

V. Conclusion.

In sum, the court holds that the

affidavit supporting the application for

a warrant for the "Tehfe" wiretap satisfied

the probable cause requirements set forth

in 18 U.S.C. § 2518. Furthermore, that

affidavit demonstrated the requisite

necessity for resort to electronic inter-

ception; finally, the Government appropri-

ately and satisfactorily minimized the

interception of non-pertinent conversations.

As for the "Sanchez" wiretap, the

supporting affidavit fails to establish

the requisite probable cause, and the

68a

issuing magistrate erred in finding in

that affidavit such a showing. That

supporting affidavit, however, did

establish the necessity for recourse

to wire interceptions; in addition, the

responsible Government officials

appropriately and satisfactorily

minimized the interception of non-

pertinent conversations.

Accordingly, the motion to suppress

the intercepted conversations from the

"Sanchez" wiretap will be granted. The

motion to suppress the interceptions

from the "Tehfe" wiretap will be denied.

The accompanying order will be

entered.

/s/JOHN F. GERRY, U.S.D.J.

DATED: June 14, 1983

69a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA :

Vv. : Criminal No.

83-37

JOHN TEHFE, et al. :

ORDER

This matter having been opened to

the Court upon application of W. Hunt

Dumont, United States Attorney for the

District or New Jersey (Thomas G. Roth,

Assistant U.S. Attorney appearing), and

defendant Adolfo Sanchez having appeared

through counsel Paul Casteleiro, Esq.,

IT IS on this 20th day of July, 1983,

ORDERED that the Government's motion

for reargument and reconsideration of that

portion of the Court's order filed June 15,

1983 granting defendant's motion to sup~

press telephone conversations over the

Sanchez Wiretap be, and is, hereby denied.

/s/ Honorable John F. Gerry

United States District Judge

70a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRANSCRIPT OF

PROCEEDINGS

UNITED STATES OF AMERICA

vs.

CRIMINAL NO.

JOHN TEHFE, SAMIR TEHFE, 83-37

ALI BAZZI, BASSAM ISSA,

NABIL NEHMI, ADOLFO SAN- [Government's

CHEZ, BENNY RODRIGUEZ, Motion for Re-

LUIS HERRERA, SAMIRA consideration of

TEHFE, JOSE LUIS PEREZ, Order Suppressing

LUZ RODRIGUEZ-PEREZ, Evidence. ]

Defendants.

THE COURT: Well, I must say that

I'm impressed with the Government's

diagram. I don't mean to be cavalier

about it because I know it's designed to

assist and accomodate the Court, but I

can't resist commenting upon its sinister

appearance apart from its substantive

assistance. It looks like some kind of

a bug proceeding from right to left, and

an evil looking devil it is. If one

concentrates on 517 22nd Street, which

Jla

the Government would not have us do

to the extent that we have done so, the

premises look very sinister. It looks

like some kind of spider with hairy legs

going out in all directions.

So, it may well be that the time

spent cn that diagram will not have ul-

timately proven wasted, but I will give

you the opportunity to ulilize it again

perhaps at some other level. I appre-

ciate it, and I understand its purpose.

It does help to illustrate the Govern-

ment's position more graphically.

The Government moves for reconsid-

eration of the Court's order suppressing

the product of a telephone wiretap at

the premises at 517 22nd Street, Union

City, New Jersey, (Telephone number

Area Code 201 865-8677). The United

States attorney argues first that the

court improperly reviewed the application

for the Sanchez wiretap de novo rather

72a

than according due deference to the deter-

mination of the issuing judge.

Second, the Government urges that

the Court erroneously analyzed the Sanchez

wiretap application portion-by-vortion

rather than as an assertedly coherent

whole. The Government argues that the

common sense approach found in the Supreme

Court's recent decision in Gates v. Illi-

nois, decided by the High Court, June 8,

1983, compels a result contrary to the

Court's conclusion in its opinion and

order on the defendant's suppression

motion.

Finally, the Government invites

the Court to recognize and fashion, for

the first time in this circuit, a good-

faith exception to the exclusionary rule.

In this Court's view, a reason-

able and rational appraisal of the

affidavit supporting the warrant at

issue must fail to discern probable cause

73a

at the time of the issuance of the

warrant. Nothing in the affidavit

demonstrates a substantial or fair

probability that Sanchez or any other

named individual was, at the time of the

application, utilizing the subject pre-

mises and communications facility for

the purpose of conducting narcotics

transactions.

The cryptic account of CI-3's (the

unnamed informant) report on Sanchez's

activities might well, in the same

hyper-technical manner eschewed by the

Gates court, satisfy a formalistic no-

tion of probable cause to believe that

at some unidentifiable time, months

before the application, Sanchez and

Gueche dealt in narcotics at the sub-

ject premises. However, it does not

appear "arbitrary" to conclude, on the

basis of recent but sketchy evidence of

mere association between Sanchez or the

74a

premises, on the one hand, and known

narcotics violators, on the other, that

a four-month-old non-detailed anonymous

report ripens into a timely showing of

probable cause. See U.S. v_ Leon, 82-1093,

The Ninth Circuit Court of Avpeals, de-

cided January the 19th of this year, per

curiam opinion, cert granted, No. 82-

1771, June 28, 1983.

The Gates opinion does recommend

the employment of "Common Sense,” but

a common-sense approach neither requires

nor invites a wholesale relaxation of

those powers of analysis that discern the

presence or absence of substantially

probable connections between disparate

events.

The Government appears to suggest

that the use of the "Present Perfect

Tense" in the affidavit's description of

CI-3's report might justify a magistrate's

conclusion that the affidavit timely

75a

showed probable cause. Indeed, the use

of a particular tense, in the absence of

other indications, might give rise to an

inference of ongoing activity or intelli-

gence. But in the presence of statements

suggesting that CI-3 made his report be-

fore October, 1982 the inference the

Government recommends becomes arbitrary

and unreasonable.

The several authorities the Govern-

ment cites on the staleness issue do not

pursuade the Court ot change its view.

In U.S. v. Minis, 666 F.2d 134,

decision of the Fifth Circuit Court of

Appeals 1982, a conspirator's admission

in July that he was growing marijuana

established probable cause in October;

but according to the admission, the

plants were 18 inches high in July and

would reach four to five feet in height

at maturity, that is, in early autumn.

The biological process entailed a

76a

continuity and duration that firmly

established probable cause in October.

In U.S. v. Perry, 643 F.2d 38, the

Second Circuit in 1981, three-year-old

information showing probable cause to

search a house was revivified by very

recent police observation of attempts to

frustrate surveillance. The defendant's

installation of telephone cameras that

would survey activities outside his house,

rapid flight by visiting automobiles upon

the sighting of police officers and so

on. Moreover, the defendant's mother,

who resided in the target premises, made

a veiled but arguable -- and very recent--

admission that the defendant did illicit

business in the house.

See also U.S. v. Dennis, 625 F.2d

732, at page 792 for appropriate discussion

out of the Eighth Circuit 1980, in which

year-old information on defendant's loan-

sharking was updated by a six-day-old

77a

surveillance of defendant making

collections -- from which a fairly

substantial enference of criminal act-

ivity could be drawn.

The Government relies on cases

in which recent information either

describes or strongly suggests the per-

formance of criminal acts: in the in-

stant affidavit, the recent information

at best suggests association.

According to the Government, six

of the seven individuals named in the

warrant had some demonstrated link to the

subject premises; e.g. they once stopped

by there or they telephoned there. But

with the exception of the report of CI-3

regarding Sanchez, none of the reported

links describe any criminal activity.

The affidavit, in short, contains

no substantial basis for a conclusion

that probable cause existed at the time

of the application. A conclusion to the

78a

contrary is arbitrary and unreasonable,

and thus the court declines to alter its

conclusions.

Finally, the Government invites the

Court to hold the exclusionary rule in-

applicable to law enforcement action taken

in good faith pursuant to a warrant -- an

invitation I respectfully decline. But

even were the court favorably disposed to

the Government's request, the instant

case presents a less-than-compelling record

for arguing the presence of good faith.

The affiant, Pamela Resch, starkly

mischaracterized defendant Sanchez' prior

arrest record -- which included a mere two

arrests -- as "extensive." Faced with

the defendant's allegation of a deliberate

misrepresentation by Resch, the Court held

a hearing pursuant to Franks v. Delaware.

After hearing Ms. Resch's testimony,

the Court stopped short of concluding that

she had deliberately lied about Sanchez'

record.

79a

But in describing Sanchez' rather

brief record of arrests for New Jersey

drug offenses as "extensive," Ms. Resch

took alarming liberties with the English

language. Her plain overstatement relied

upon by the Government now to argue the

sufficiency of the instant affidavit

might raise some not insubstantial doubts

about the ability of the Government to

establish "good-faith" in the instant

case, (quite apart and independent of the

suggestions by defense counsel during the

course of their arguments this morning).

Justice White, concurring in Gates,

suggests that the question of good faith

in a search pursuant to a warrant might

resemble the inquiry under Franks v.

Delaware.

Simply because this Court found

no violation of Franks, however, it

does not follow that the mischaracter-

ization by Resch would be innocuous for

80a

> the purposes of discerning the presence

or absence of governmental good faith in

the matter of the instant wiretap.

In sum, the Court will deny the

Government's motion for reconsideration.

The Government will submit an appropriate

order consistent with this opinion.

Thank you, counsel.

8la