The opinion of the court was delivered by: VANARTSDALEN
Defendants are charged in a four count indictment with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801, et seq. Count 1 charges both defendants with conspiracy to manufacture and distribute PCP and methamphetamine, Schedule II controlled substances. The conspiracy is alleged to have existed from about November 24, 1976 until about April 17, 1980. Defendant Raymond A. Hossbach (Hossbach) is charged in Count 2 with possession with intent to distribute one kilogram of PCP on January 13, 1980 and in Count 3 with distribution of one kilogram of PCP on January 13, 1980. David M. McCally (McCally) is charged in Count 4 with possession with intent to distribute one kilogram of PCP on January 13, 1980. (Apparently Counts 2, 3 and 4 involve the same kilogram of PCP.)
Pretrial motions involving multiple issues were filed. Except for certain motions to suppress evidence, all other pretrial motions were resolved during the course of omnibus pretrial hearings, either by agreement of counsel or by rulings from the bench. The suppression motions present complex problems involving disputed facts as well as unclear rules of law. Counsel for both the government and the defendants have filed commendably thorough and helpful post-hearing briefs.
There are three major issues. In summary they involve (1) the right of the Drug Enforcement Agency (DEA) to obtain evidence in furtherance of a purely criminal investigation through the use of "administrative subpoenas" issued pursuant to 21 U.S.C. § 876; (2) the effect of both formal and informal immunity granted to Hossbach at a time when the charged conspiracy is alleged to have been "on-going"; and (3) the validity of three warrantless searches of premises alleged to have been abandoned by one or both defendants. Because the investigation developed through the accumulation of evidence built upon other evidence, the three problems become interrelated by reason of the well settled doctrine that the fruits of illegally obtained evidence must be suppressed along with the illegally obtained evidence itself. The issues are complicated not only by factual disputes but by the continuing problem of what used to be generally denominated as "standing," but was recently redefined in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); and Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
I. CHRONOLOGY OF THE INVESTIGATION
An outline of the chronology of the DEA investigation is helpful in understanding the problems. A summary of most of the investigation appears of record in the affidavit of DEA special agent Donn Jerre Miller (Miller), upon which the magistrate predicated his finding of probable cause and issued arrest warrants on April 16, 1980. From this affidavit and evidence presented at the suppression hearings, the investigation's progress may be capsulized as follows.
In January, 1979, a chemical company in Mt. Vernon, New York, Freeman Industries, reported to the New York DEA office that a large quantity of a specified chemical had been sold to a business located at Ford Road Industrial Park, in Bristol Township, Pennsylvania. The purchaser's name was Markex. Freeman Industries apparently supplied this information as a routine report. Whether the report was required by regulations or in some other manner compelled, or whether it was purely volunteered, is not clear from the record.
Agent Caputo of the New York office of DEA forwarded the information to the Philadelphia DEA office, which information included the telephone number of Markex as shown on Freeman Industries' records. The Philadelphia DEA office instituted a criminal investigation into possible illegal drug manufacturing, because the type and quantity of chemicals ordered by Markex from Freeman Industries were suspect.
Investigators also telephoned the number that Freeman Industries had for Markex and received a reply from Able Answering Service. Armed with a subpoena issued by DEA pursuant to 21 U.S.C. § 876, agents obtained all of the records of Able Answering Service concerning Markex. From these records, they ascertained that Markex subscribed to Able Answering Service through a man identified as John Mark Williams, who provided Able Answering Service with two telephone numbers, one of them his residence, where he might be reached. Again utilizing the subpoena power, agents obtained from the Bell Telephone Company subscriber information indicating that the one telephone was listed under the name of David M. McCally, Knights Terrace, Philadelphia, and the other telephone was listed under the name of John Mark Williams, at an apartment located on Ditman Street in Philadelphia.
A warrantless search of the Ditman Street apartment was later conducted. The basis for the search was the consent of the landlord, who informed the DEA agents that the apartment had been rented in the name of John Williams, but that Williams was in arrears in the rent and had apparently vacated the premises. The room indeed appeared to be vacant and unused, except for an operable telephone. The phone bore a number that the investigators had previously obtained from the Bell Telephone records secured under a subpoena. No other evidence was "seized" in the Ditman Street apartment search.
Again armed with a subpoena, investigators went to the rental agent or owner of the Ford Road Industrial Park and learned that Markex had rented unit 12, consisting of a large storage area with a loading dock and a front office space and sanitary facilities. Investigators learned from adjoining tenants that no one had been seen on the premises of unit 12 for some time, and that only one or two persons at most had ever been seen there during the period when unit 12 was under rent to Markex. Surveillance confirmed this information. However, an outside mail receptacle was observed sometimes full and other times empty. The landlord advised that although the lease term had not expired, the tenant was in arrears on the rental payments in some unspecified sum and for an unspecified period. The day following inquiry of the landlord by DEA agents, the landlord advised DEA agents that he was retaking possession for nonpayment of rent. The landlord provided DEA agents with a key and permission to enter unit 12 and seize any property they believed to be of assistance in the investigation.
The warrantless search of unit 12 at the Ford Road Industrial Park disclosed some office furniture, a file or filing cabinet with what appeared to be office and business records of Markex, certain personal belongings indicating the possibility of continuing utilization of the unit, in part, as living quarters, as well as quantities of chemicals and laboratory equipment and a considerable quantity of trash.
The office records were all seized. Also, apparently at a later date, again without a warrant, agents seized a typewriter (about which an expert will apparently testify as to fingerprints and/or the typing of other documents relevant to the evidence). The records included invoices and correspondence.
One additional important piece of evidence was seized during the warrantless search of unit 12. A letter, addressed to "Whom It May Concern," and bearing the signature of "Dr. Shock" was found, possibly in the trash within the building. This letter appeared to be a resume or curriculum vitae of a person purporting to be an experienced chemist who offered to manufacture methamphetamine, upon being supplied with the chemicals and laboratory equipment, at a price of $ 10,000 per kilogram. This letter constituted either the original lead or, at least, a strongly corroborative circumstantial lead, that Hossbach was involved as the chemist co-conspirator, based on the style of the writing, the facts set forth in the letter, the unusual use of the word "kilo" (most illegal drug dealers preferring to make sales in grams, ounces and pounds), and other unusual aspects of the letter.
Agent Miller was aware that Hossbach had been involved in an illegal drug operation in California some years prior to the present investigation, and that in connection with other drug cases, Hossbach had thereafter been given formal immunity and had testified under grant of immunity. Philadelphia DEA Agent Ellis Hershowitz was the DEA agent who actively conducted the investigation in which Hossbach testified under immunity. Agent Hershowitz also conducted 50 to 100 hours of "debriefing" of Hossbach in connection with other drug investigations in which Hossbach was cooperating under an informal grant of immunity. The formal and informal grants of immunity occurred subsequent to the California offenses but prior to the commencement of the investigation culminating in the present indictment.
Agent Miller acknowledges that he conferred with Agent Hershowitz about the "Dr. Shock" letter and that both agents agreed that this letter was probably composed by Hossbach. The names of Hossbach and Dr. Shock had also in some prior investigation been associated together in some manner, and Hossbach was known to have utilized the metric system of measurements in drug transactions in which he was involved hence the connection with the word "kilo." Neither agent was specific as to whether this information originated prior to or during the course of the proceedings as to which Hossbach was immunized, although Agent Miller's testimony is to the effect that all of this knowledge was acquired by him prior to any grant of immunity to Hossbach, and that his conferring with Agent Hershowitz was merely confirmatory of his independent conclusions.
Agent Miller also contends that Hossbach's association with the presently charged conspiracy was ascertained by another separate line of investigation. Through the use of "administrative subpoenas" issued to Bell Telephone Company, the toll records of calls from the Ditman Street apartment rented in the name of John Mark Williams revealed a substantial number of calls to a particular number which, again through use of "administrative subpoenas," was determined to be listed under the name of Jann Alexander of 662 Swamp Road, Furlong, Doylestown Township, Pennsylvania. Agent Miller thereupon made a routine telephone inquiry of the Doylestown Township Police and was advised that a man using the name of Supernovich was living with Jann Alexander at the Swamp Road address. Supernovich was then or later known or ascertained by Agent Miller to be Hossbach. A surveillance was then placed on the Swamp Road residence and on Hossbach, who drove a BMW registered in his own name at a Chalfont, Pennsylvania, address.
Subsequently, to assist in the surveillance of Hossbach, Agent Miller made a formal application and obtained written authorization from Magistrate Hall of this district to place an electronic tracking device, sometimes called a "bumper beeper," on the Hossbach car. Aided in part by this device, Agent Miller followed Hossbach to an establishment in Cherry Hill, New Jersey, engaged in the business of renting individual self-lock warehouse storage sheds (similar to a row of private car garages). Armed with another "administrative subpoena," Agent Miller obtained from the rental agent information that the locker space in question had been rented as unit 394 under the name of Jann Alexander. Agent Miller obtained permission to install a continuous operating TV camera in a location focused onto unit 394.
While a few days remained on the current rental of unit 394, the owner notified DEA that the unit had been left with the door ajar and apparently vacated. At the request of the DEA, the owner relocked the door and then afforded DEA agents access with the passkey when they arrived. A prior review of the video tape disclosed that several days earlier, two persons, tentatively identified as McCally and Hossbach had come to the locker with a rental truck. McCally used a key to unlock a separate padlock, in addition to the regular locker key, and the two men proceeded to remove a large quantity of cartons and equipment from the locker and place them in the truck. The door of the rental unit was left ajar when they left, and McCally removed and took the padlock with him. The agents seized a substantial quantity of evidence from the locker, including various pieces of apparently broken and discarded laboratory equipment and various quantities of chemicals. Several days after this warrantless search and seizure the locker keys were received by the owner in the mail, the keys having been mailed from Ohio.
There was a substantial amount of additional evidence obtained concerning Markex's dealings with other business enterprises, and long distance telephone calls to or from one or more of the McCally or Hossbach residences or telephone addresses, which evidence was obtained either directly or indirectly through the use of the "administrative subpoenas." From these leads, agents were able to identify and locate other persons whom the government will contend at trial were co-conspirators (though unindicted) with present defendants.
II. ADMINISTRATIVE SUBPOENAS
Substantial evidence and leads to other evidence were obtained by DEA investigating agents utilizing subpoenas, asserting authority under Title II, Section 506 of the Comprehensive Drug Abuse Prevention and Control Act of ...