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UNITED STATES v. CURCIO

December 30, 1988

UNITED STATES OF AMERICA
v.
ANTHONY J. CURCIO and CARMEN J. D'AMATO



The opinion of the court was delivered by: DITTER

 DITTER, UNITED STATES DISTRICT JUDGE

 Defendant Carmen D'Amato moves to suppress physical evidence seized during a warrantless search of a hidden room on the second floor of a Philadelphia warehouse. For the reasons set forth below, his motion is denied.

 FACTS

 Most of the facts relevant to this motion are undisputed. In February of 1984, D'Amato entered into a lease for property on Richmond Street, Philadelphia, with David Mermelstein, a partner and co-owner of the Active Realty Company ("Active Realty"), which was an agent for the Active Realty Company Profit Sharing Trust ("Active Trust"), the record owner of the property. The lease was to run from March 1 through June 30, 1984. The lease contemplated a sale of the property from Active Trust to D'Amato. Paragraph 2 of an addendum states:

 
This is a month to month lease to end in four months -- in the event they [the leasor and leasee] complete settlement beforehand lease will terminate, otherwise it will continue month to month. Thirty days notice will be given by either party prior to ending occupancy.

 The parties orally agreed that if any other tenants could be found to occupy parts of the property, the rental payments from these tenants would be set off against D'Amato's rent.

 By October of 1984, the sale of the Richmond Street property had not taken place, although the parties continued to abide by the other terms of the lease. On October 3, 1984, D'Amato's co-defendant, Anthony Curcio, gave Mermelstein a deposit to be credited towards the purchase of the property. Two days later, a sales agreement was drafted, though not signed, between Active Trust and Uptight Siding Company, a business owned by D'Amato and members of his family.

 The sale of the Richmond Street property never took place. In early 1985, Hummel Engineering Company began to rent and exclusively to occupy the first floor of 3320 Richmond Street. In March of 1985, Mermelstein refunded all money deposited towards the sale of the property. By May of 1985, the parties agreed that the sale had "fallen through" and that D'Amato no longer intended to buy the property. D'Amato gave a set of keys to the second floor of the property to Mermelstein and retained a set for himself. D'Amato understood that Mermelstein would be showing the second floor to prospective tenants. Mermelstein told D'Amato that he could continue to store boxes of equipment on the first floor until Mermelstein found new tenants for the second floor. As of November 12, 1986, no new tenants had been found.

 On November 7, 1986, pursuant to information from an informant regarding the alleged unlawful production of methamphetamine on the second floor of 3320 Richmond Street, Drug Enforcement Administration Agent Fred Butler sought the consent of Active Realty to search the property. That day, Iris Freidfeild, the office manager of Active Realty, signed a consent to search form authorizing DEA agents to search the property at 3318-3322 Richmond Street. On November 12, 1986, before the search took place, Agent Butler also obtained Mermelstein's verbal consent to search the property.

 The search was conducted the afternoon of November 12. During the course of the search, the DEA agents noticed that there were some personal effects belonging to D'Amato on the first floor, but they did not search or seize these items. The second floor appeared to have been vacated. Although the space had been divided into small offices, none seemed to be in use. While searching the second floor, Agent Butler discovered a "hidden room" behind a temporary wall that had been built adjacent to the bathroom. By removing a panel, the agents were able to enter the hidden room. Like the rest of the second floor, this room appeared to be unoccupied. With the exception of a water heater, piping, a sink, and some shelving, the room contained no fixtures and very few personal items. Before the DEA agents executed a full search of the hidden room, but after the room was discovered and observed, Agent Butler obtained the written consent of Mermelstein, who had since arrived at the property, to search the entire second floor of 3320 Richmond Street.

 The DEA agents collected scrapings and residue from the walls, ceilings, sink, and insulation of the hidden room, as well as pieces of insulation material, rug padding, fiberglass panels, and bottle stoppers discovered in plain view. Upon laboratory analysis, some of these materials tested positive to the presence of methamphetamine. These materials are now the subject of D'Amato's motion to suppress.

 DISCUSSION ...


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