I. THE MOTION TO SUPPRESS IS DENIED.
The defendant, Bert Gigli, in his motion to suppress has challenged the search warrant on two grounds. First, the defendant alleged that the search warrant is constitutionally overbroad in that it is not limited to the sub-unit wherein the concealed equipment and machinery was alleged to have been stored, but permits a search of the entire Brookside Mini-storage facility. To this end, the defendant argued that the search warrant violates his Fourth Amendment rights because it does not particularly describe the place to be searched or the things to be seized. Secondly, the defendant argued that the affidavit for the search warrant was based upon either false information or information supplied with a reckless disregard for the truth and should therefore be suppressed.
a. THE SEARCH WARRANT WAS NOT OVERBROAD BECAUSE PROBABLE CAUSE EXISTED TO JUSTIFY A SEARCH OF THE ENTIRE BROOKSIDE MINI-STORAGE FACILITY.
In this case the government had sufficient information to reasonably believe that assets of Union Forge, Inc. had been removed from its facility in Noblestown, Pennsylvania while under the jurisdiction of the Bankruptcy Court. Investigators had observed several tractor-trailer loads of heavy machinery spirited away in the still of night from the Noblestown facility of Union Forge. A list of the equipment believed to have been removed was compiled by the investigating agents. The same items were subsequently offered for sale by the defendant to undercover agents. Two months later, the defendants escorted undercover agents posing as potential purchasers to the Brookside Mini-storage facility in Kingsport, Tennessee. The identity and serial numbers of the equipment and machinery stored at Brookside corresponded to that which had been earlier removed from Union Forge. In fact, the defendant stated to undercover agents that the equipment stored at the Brookside Mini-storage facility was the same equipment which had been used to forge roof bolts at Union Forge in Noblestown, Pennsylvania.
Under the foregoing facts, a probability existed that a crime had been committed and that the equipment stored at the mini-storage facility was evidence of that crime. To justify the issuance of a search warrant the standard of probable cause is a probability, not a prima facie showing of criminal activity. See Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969). Under Spinelli "probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense . . . and their determinations of probable cause should be paid great deference by reviewing courts." Id. (citations omitted).
Here, the search warrant sufficiently and specifically described the storage area and the lot where the equipment was concealed and where the search warrant was to be executed. The exhibit attached to the search warrant described the specific items to be seized. To the extent that the defendant argues that the entire storage facility was improperly subject to search under the search warrant, the law is clear that when agents executing search warrants are aware that contraband evidence exist in a specifically described location, they are permitted to review the entire contents to ascertain if it is the evidence which is sought pursuant to the search warrant. See Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). Neither the affiant nor the issuing magistrate could portend the extent to which equipment may have been unlawfully stored in other parts of the storage area rented by the defendant. The possibility existed that equipment may have been stored in other storage units. In this regard, the agents and the issuing magistrates are not to be limitied by hypertechnical niceties, but may exercise their common sense judgment in the issuance and execution of the search warrant.
Federal courts generally hold that when a building under suspicion is divided into more than one occupancy unit, probable cause must exist for each unit to be searched. See United States v. Hinton, 219 F.2d 324 (7th Cir. 1956). The Fourth Amendment requirement that a place be particularly described, when applied to dwellings, refers to living units or a residence. In this case, the cases voiding a warrant which fails to specify the particular sub-unit to be searched within a multiple occupancy structure are inapplicable. This is because the search warrant herein challenged involves a rented storage area, not a multiple-family dwelling which typically falls within the highly protected zone of privacy recognized by the Fourth Amendment as securing the individual a private inner sanctum.
In addition, this Court holds that under the facts of this case probable cause existed to search the entire mini-storage facility, therefore we are not constrained by the rationale of the multi-unit cases. See United States v. Gill, 623 F.2d 540 (8th Cir.), cert. denied, 449 U.S. 873, 66 L. Ed. 2d 94, 101 S. Ct. 214 (1980). This Court interprets the search warrant as properly permitting a search and seizure of evidence relevant to the crime of conspiracy and concealment of property with the intent to defeat the bankruptcy law, namely, the items listed in the exhibit attached thereto. In any event, in this circuit, a warrant which is overbroad in its description is valid when the only sub-unit searched in a multi-unit structure was that for which probable cause was clearly established at the time of the issuance of the warrant. See United States v. Bedford, 519 F.2d 650 (3d Cir. 1975), cert. denied, 424 U.S. 917, 47 L. Ed. 2d 323, 96 S. Ct. 1120 (1976). At the evidentiary suppression hearing there was no showing that the agents searched any storage area other than those areas rented by the Giglis. Absent such a showing, there are no grounds for suppression of the warrant.
Also, the defendant's argument that the warrant lacked particularity because it does not specifically name the defendant as belonging on or possessing the premises to be searched is without merit. The particularity standard merely requires that the warrant be sufficient to enable the officer armed with it to ascertain and identify with reasonable efforts the place to be searched and the things to be seized. See Steele v. United States, 267 U.S. 498, 69 L. Ed. 757, 45 S. Ct. 414 (1925). See also Stanford v. Texas, 379 U.S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965); United States v. Bedford, 519 F.2d 650 (3d Cir. 1975), cert. denied, 424 U.S. 917, 47 L. Ed. 2d 323, 96 S. Ct. 1120 (1976). In these regards the warrant is adequate. This Court holds that the search warrant was properly based upon probable cause to search the Brookside Mini-storage facility for specific equipment listed as an exhibit attached to the warrant.
b. THE AVERMENTS CONTAINED IN THE SEARCH WARRANT AFFIDAVIT ARE NOT DELIBERATE FALSITIES NOR WERE THEY MADE WITH A RECKLESS DISREGARD FOR THE TRUTH
The defendant Bert Gigli also seeks to suppress the search warrant affidavit on the ground that information contained in the affidavit was false or was made with a reckless disregard for the truth. The defendant's false swearing argument primarily focuses on paragraph ten of the indictment, which states that:
Special Agent Smith informed [the affiant] that she personally reviewed the papers and pleadings of the Bankruptcy Court and that on October 1, 1981 the judge of the Bankruptcy Court entered an order (attached hereto as Exhibit "A") directing that any property removed from Union Forge on Flatbed trucks be returned to the trustee of Union Forge.