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UNITED STATES v. ALLEN

May 21, 1984

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN ALLEN AND RONALD ZILBERBRAND, DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

John Allen ("Allen") and Ronald Zilberbrand ("Zilberbrand") and four other defendants*fn1 have been indicted in a multi-count indictment, including charges of:

    1. conspiracy to distribute cocaine (Count
  One); and
    2. possession with intent to distribute cocaine
  (Count Four).

Zilberbrand has also been charged with distributing cocaine (Count Three).

Shortly after Allen and Zilberbrand were arrested, law enforcement officials obtained a search warrant that authorized a search of three connecting rooms in Chicago's Blackstone Hotel. Allen and Zilberbrand have moved to quash the search warrant*fn2 and to suppress the evidence found in the search, asserting the government's failure to comply with Fed.R.Crim.P. ("Rule") 41(c)(2).*fn3

This Court's March 15, 1984 oral ruling rejected the Allen-Zilberbrand contention the government should not be given the opportunity to reconstruct the basis of the search warrant: oral testimony given over the telephone to Magistrate Joan Lefkow. This Court's rejection was predicated on the numerous cases (including United States v. Mendel, 578 F.2d 668, 673-74 (7th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 450, 58 L.Ed.2d 422 (1978) in this Circuit) holding violations of Rule 41(c) should not result in exclusion of evidence unless a defendant can show:

1. the search violated the Fourth Amendment; or

    2. there was either prejudice to the defendant
  or intentional and deliberate disregard of the
  Rule by the government.

Accord, such cases as United States v. Stefanson, 648 F.2d 1231, 1235-36 (9th Cir. 1981) (perhaps the closest case to this one on the facts); United States v. Vasser, 648 F.2d 507, 509-11 (9th Cir. 1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 360 (1981); but cf. United States v. Hittle, 575 F.2d 799, 801-02 (10th Cir. 1978).

Allen and Zilberbrand do not assert the officers violated the Fourth Amendment, nor is there any predicate for saying the government intentionally disregarded Rule 41(c)(2). Instead the Allen-Zilberbrand position rests on the "prejudice" alternative: Assertedly the government's failure (albeit inadvertent) to record the oral testimony impeded the ability of Allen and Zilberbrand to test whether the facts constituting probable cause were in fact communicated to Magistrate Lefkow by sworn testimony.

For the reasons set forth in this memorandum opinion and order, this Court finds and concludes:

    1. Magistrate Lefkow rightly determined
  probable cause existed for the issuance of the
  search warrant.
    2. Allen and Zilberbrand have shown no actual
  prejudice occasioned by the government's failure
  to record the oral testimony.

Accordingly the Allen-Zilberbrand motions to quash the search warrant and to suppress the seized evidence are denied.

Facts*fn4

Before the weekend of September 17-18, 1983 Sullivan had been alerted, in connection with an ongoing narcotics investigation, to the potential need for a search warrant on short notice during the course of the weekend. In turn Sullivan had apprised Magistrate Lefkow of that possibility.

Then on Sunday night September 18 Tomeik and Griffin called Sullivan and told him they did need a search warrant for some rooms at the Blackstone Hotel. Sullivan drove down to his office, met with the agents and reviewed the facts with them, taking notes as the agents talked.

It was late, and Sullivan hoped to get Magistrate Lefkow to act on the warrant application before the 10 p.m. watershed made relevant by Rules 41(c)(1) and 41(h).*fn5 Because of the extensive factual background that needed the Magistrate's detailed review for a probable cause determination, Sullivan decided the time needed to draft and write out an affidavit and then deliver it to Magistrate Lefkow's home for her review would certainly push matters beyond the 10 p.m. deadline. That led to Sullivan's decision to resort to the sworn-oral-testimony alternative of Rule 41(c)(2).

Accordingly, at about 9 p.m. Sullivan telephoned Magistrate Lefkow at her house and discussed the requirements for an oral affidavit. Magistrate Lefkow had neither a tape recorder nor blank search warrant forms, so she agreed to let Griffin bring those items to her house.

Once Griffin arrived at Magistrate Lefkow's house, he connected the recorder to the phone with the suction cup recording device, inserted the tape and tested the recorder to make sure it was working. It was. Griffin then called Sullivan and told him everything was ready. Sullivan then set up a four-way phone conversation with Dailey at the Blackstone, Magistrate Lefkow at her house, and Tomcik and Sullivan at the federal building.*fn6 Magistrate Lefkow placed Tomcik and Dailey under oath. Sullivan then narrated the facts, periodically asking Tomcik and Dailey to confirm what he was telling Magistrate Lefkow was true. Sullivan's narration comprised all the relevant facts set forth in the complaint he prepared the next day (Ex. A to this opinion).*fn7 Tomcik and Dailey did verify those facts under oath.

Sullivan, Dailey and Magistrate Lefkow all testified the Magistrate asked questions about why the rooms at the Blackstone Hotel should be searched. Magistrate Lefkow remembered being told the agents believed more drugs were likely to be in the room because the first transaction had been set up on the understanding that if the buyers found the first buy was of good quality, more cocaine was available nearby and could be supplied quickly. Dailey testified, based on his substantial experience, that if the sellers were operating out of a hotel room and that was the understanding between the sellers and buyers, it was likely more drugs were in the hotel room. Magistrate Lefkow also testified the agents thought records of some sort could be found in the room.

At the end of the conversation Magistrate Lefkow (1) said she would authorize the warrant, (2) told Tomcik to sign her name to the copy of the warrant in front of him and (3) signed her copy. All the procedures already described had carried the parties past 10 p.m. (it was then 10:28). Consequently Magistrate Lefkow authorized the search in the form required by the portion of Rule 41(c)(1) quoted in n. 5. Sullivan kept the copy of the warrant Tomcik had signed. Griffin left Magistrate Lefkow's house, leaving the tape and the other copy of the search warrant with the Magistrate. Next day Magistrate Lefkow gave the tape and search warrant to her assistant Williams, who in turn put those items under lock and key in her office, accessible only to Williams.

In late November Sullivan wanted a copy of the tape and learned a transcript still had not been made. Sullivan borrowed the tape from Williams, made copies*fn8 and returned the original to Williams that same day. Sullivan gave copies of the tape to the court reporter (for transcription) and to defense counsel. To everyone's consternation the original tape and all the copies were blank. No one knows why, but the consequence has been a literal noncompliance with Rule 41(c)(2)(D) and an obvious inability to determine exactly what was said during the key telephone call.

Probable Cause

There is no mystery as to the controlling standard ...


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