The opinion of the court was delivered by: SHAPIRO
Defendants Lawrence W. Lavin and Kim Norimatsu moved
to suppress evidence obtained from electronic surveillance originally authorized pursuant to Title III of The Omnibus Crime Control Act for thirty (30) days on December 19, 1983 and extended on January 19, 1984 for an additional seven days through January 21, 1984. Their subsequent indictments for offenses involving distribution of and conspiracy to distribute controlled substances
were pending before Judge Louis Pollak but, in accordance with Local Rule of Criminal Procedure 16(c), these motions were referred to the judge who authorized the electronic surveillance. This court considered supporting and opposing memoranda, and heard argument in court on November 16, 1984, as well as testimony of Assistant United States Attorneys and FBI Special Agent Charles Reed in camera, and denied these motions on December 10, 1984. This Memorandum articulates the reasons for that decision.
The motions to suppress the electronic surveillance evidence were based on three grounds:
1. Anthony Venezia recanted information provided to federal agents and referred to in the affidavit supporting the wiretap application.
2. Tax return information of defendant Lavin included in this affidavit was provided by an IRS agent in violation of 26 U.S.C. § 6103.
3. The application and affidavit lacked probable cause for belief that particular communications concerning narcotics offenses would be obtained by intercepting the telephone at the home of Bruce Taylor and his wife Suzanne Norimatsu-Taylor.
For the reasons articulated herein, this court found:
1. There was insufficient evidence to find that Anthony Venezia did in fact recant; but even if he did, there was probable cause to authorize and continue the electronic surveillance without his information.
2. Even though the investigation was not related to tax administration and tax return information was made available in violation of 26 U.S.C. § 6103, there was probable cause to authorize and continue the electronic surveillance without this information.
3. There was probable cause for belief that interception of telephone communications to and from the Taylor residence would relate to narcotics offenses by Bruce Taylor and others without reference to information provided by Venezia or IRS agents.
On December 19, 1984, the United States applied for the interception of telephones located in the Valley Forge Shopping Center and the homes of Francis Joseph Burns and his wife, and Bruce Taylor and Suzanne Norimatsu-Taylor. The court found probable cause to believe that Dr. Lawrence William Lavin, Bruce Taylor and others known and unknown had committed and were committing offenses involving violation of 21 U.S.C. §§ 841(a) (1), 843(b), and 846 and that communications concerning these offenses (dates, time and places and manner of possessing, delivering and financing purchase of controlled substances) would be obtained. Interception was then authorized for an original thirty-day period and later extended as to six of the eight telephones for an additional seven days. The interception was terminated on January 21, 1984 but service of the inventory was postponed until October 11, 1984.
Periodic surveillance of Francis Burns and Bruce Taylor was also conducted by the affiant and other FBI agents during the five months prior to the intercept application. The reports of surveillance tended to substantiate numerous contacts of the suspected conspirators and their use of the telephones for which the application was made. Pen registers on four of these telephones and review of the logs of a radio beeper service used by the parties ...