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UNITED STATES v. MARTINSON

January 19, 1993

UNITED STATES OF AMERICA
v.
ERIC C. MARTINSON, a/k/a "Clement B. Potter," a/k/a "Lyle Louden," a/k/a "James F. Corbett," a/k/a "Kenneth E. Helton," a/k/a "Donald J. Monroe," a/k/a "Russell J. Harding," a/k/a "Joseph Steven Rafferty a/k/a "Derrick A. Walton," a/k/a "Scott Peter Ryan," a/k/a "Amos W. Frye," a/k/a "Howard M. Johnson," a/k/a "Thomas Lee," a/k/a "Lionel K. Lawson," a/k/a "Abe Golden," and CHRISTINE M. DICKSON, a/k/a "Cheryl K. Nielson," a/k/a "Carol Miller," a/k/a "Christine Martinson," a/k/a "Kristen Ann Lawson," a/k/a "Kristen Ann Corbett," a/k/a "Candice Ann Keiper"



The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 JANUARY 19, 1993

 Defendant Christine M. Dickson has filed two Motions to Suppress in which defendant Eric C. Martinson joined. *fn1" The motions rely principally on the extensive Affidavits to the Search Warrants in question, although the Court did, at defendants' request, hold a brief evidentiary hearing on Wednesday, January 6, 1993 to take testimony of three law enforcement officers. Defendant Eric C. Martinson is alleged to be a member of the Warlock Motorcycle Gang. Defendants were both charged with numerous drug and drug related offenses in a major 38-count indictment. On Thursday, January 7, 1993, defendant Christine M. Dickson plead guilty to Counts 1-6, 9, 10, 11, 12, 22, 23, 24, 29, 30, 33, and 35-38. Defendant Eric C. Martinson also entered a conditional plea under Fed. R. Crim. P. 11(a)(2) to Counts 1-6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 27, 28, 31, 32, 34, and 35-38. Defendant Martinson reserved the right to pursue the pretrial suppression motions. Before we deal with the motions in detail, we shall discuss the current state of the law of search and seizure.

 The well-known test to be applied in determining whether probable cause exists for the issuance of a search warrant is that of the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Massachusetts v. Upton, 466 U.S. 727, 732, 104 S. Ct. 2085, 2087, 80 L. Ed. 2d 721 (1986). Probable cause is defined as "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. at 238, 103 S. Ct. at 2332; United States v. Schecter, 717 F.2d 864, 869 (3d Cir. 1983). Moreover, in a landmark case United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Supreme Court stated

 
Because a Search Warrant "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime. . . .," we have expressed a strong preference for warrants and declared that "in a doubtful or marginal case, a search under a warrant may be sustainable where without one it would fail" . . . reasonable minds frequently may differ of the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according "great deference" to a magistrate's determination. 468 U.S. at 913-14, 104 S. Ct. at 3415-16 (citations omitted).

 The Supreme Court then held in Leon that when officers obtain and execute a search warrant in the "good faith" belief that the warrant is valid, then the fruits of the search should not be suppressed if the search warrant is later found invalid. Leon, 468 U.S. at 918-25, 104 S. Ct. at 3418-21. "Our good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23, 104 S. Ct. at 3420, n.23. The court in Leon went on to note four basic exceptions

 
It is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
 
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 60 L. Ed. 2d 920, 99 S. Ct. 2319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S., at 610-611 (POWELL, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (WHITE, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post, at 988-991.

 Leon, 468 U.S. at 923, 104 S. Ct. at 3420.

 In Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987), the Supreme Court reaffirmed the "good faith" doctrine and held that when officers searched the wrong apartment under a search warrant, the error would not require the suppression of the evidence seized in the search because the officers' actions were objectively reasonable under the facts available to the officers at the time they acted. 480 U.S. at 88.

 Leon has enjoyed wide application. In United States v. Sager, 743 F.2d 1261 (8th Cir. 1984), cert. denied, 469 U.S. 1217 (1985), the affidavit had certain defects, including stale information and a failure to establish an informant's credibility which made the existence of probable cause doubtful. Nevertheless, the court held that even though the Affidavit to the Search Warrant might be insufficient to establish probable cause, the evidence would not be suppressed. The court found that none of the Leon exceptions applied and that the officers "behaved themselves in an objectively reasonably fashion." 743 F.2d at 1267. See also United States v. Malin, 908 F.2d 163, 166 (7th Cir. 1990); United States v. Fama, 758 F.2d 834, 837 (2d Cir. 1985); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir.), cert. denied, 106 S. Ct. 67 (1985).

 I. ORIGINAL JUNE 5, 1992 MOTION TO SUPPRESS

 The original motion to suppress relates to the search of a certain storage locker #85 at the East Penn Self Storage facility in Emmaus, Pennsylvania. *fn2" The search warrant is based on the sworn Affidavit of Philadelphia Police Detective Matthew McDonald and, Exhibit C to the Affidavit, the sworn Affidavit of I.R.S. Special Agent Patrick T. Connelly and D.E.A. Deputized Agent Daniel O. Licklider, who is also with the Commonwealth of Pennsylvania. According to the Affidavits, which were presented to the Federal Magistrate on March 24, 1992, Detective McDonald had been investigating Eric Martinson and Christine Dickson since 1989 in regard to defendant Martinson's drug trafficking. (McDonald Affidavit, P 1). A very extensive synopsis of the drug investigation is set forth in Exhibit C, the Connelly-Licklider Affidavit. *fn3" The synopsis included actual drug transactions, use of false personal identification, a vast continuous pattern of money laundering, warlock motorcycle gang membership by defendant Martinson, and the fact that chemical tests and a drug sniffing dog recently reacted positively to cash money deposited in defendants' account. (Connelly-Licklider Affidavit, PP 23, 84, 144-147, 150).

 Beginning on March 18, 1992, Detective McDonald participated in the physical surveillance of Eric Martinson, along with Pennsylvania State Trooper Mark George who is also a Deputized D.E.A. Agent. Trooper George told Detective McDonald that on March 18, 1992, he saw Eric Martinson drive to a storage facility called the East Penn Self Storage facility. Trooper George and other agents reported to Detective McDonald that during a period of approximately one hour and twenty minutes, defendant Martinson drove from his home on Valley Road in Lehigh County, Pennsylvania, to the storage facility and made only two brief stops of less than three minutes each. Throughout the drive, defendant Martinson made irregular turns into side streets, stopped in parking lots, and extended the vehicle to observe traffic in his vicinity. Detective McDonald knew from training and experience that these tactics were utilized by defendant Martinson as counter surveillance to determine if he was being followed. (McDonald Affidavit, P 4).

 Upon entering the East Penn Self Storage facility, defendant Martinson drove his vehicle to storage locker #85. Trooper George observed defendant Martinson enter the locker with a key, remain approximately two minutes, and then drive to the exit of the facility. When he came upon another vehicle, he turned around, went back towards the locker, ...


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