the Court was surprised that counsel would press this argument to the extreme lengths he did at the hearings on this matter: the Law is not a game played to gain delays and debating points; it is a search after the truth.
3. The defendant contends that the above affidavit does not justify a finding that there was probable cause for the issuance of the search warrant, because it was based upon hearsay. On this point, the affidavit speaks for itself, and shows full compliance with the standard set forth in Jones v. United States, 362 U.S. 257, 269-72, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The defendant was known to the Narcotic Squad as a convicted narcotic violator and an admitted narcotic user; three of the four 'sources' were specifically described as 'reliable;' and the officers carried out personal observations which fully corroborated the information they had received. Thus, 'a substantial basis for crediting the hearsay' was presented. 362 U.S. at 269, 80 S. Ct. at 735.
4. The defendant contends that the warrant issued on the basis of the above affidavit was the 'fruit' of a warrant issued on May 8, 1962; that the earlier warrant was illegal; and that the evidence seized under the present warrant must therefore be suppressed. After hearing a motion to suppress specifically directed at the earlier warrant in Criminal Case Number 518-62, this Court has today filed a memorandum finding the earlier warrant completely legal and denying the motion to suppress in that case. In any event, the only item in the instant warrant related to the earlier warrant was the defendant's address. (Tr. IV, 5-6.) The connection between the two is, therefore, far too attenuated for this Court to consider the second the 'fruit' of the first. See Gregory v. United States, 97 U.S.App.D.C. 305, 231 F.2d 258 (1956), cert. denied 352 U.S. 850, 77 S. Ct. 69, 1 L. Ed. 2d 61 (1956).
5. The defendant contends that he warrant was illegally executed because the police failed to state their purpose and authority and failed to be refused entry before breaking into the premises. The Court finds, however, that the search warrant was executed in full compliance with 18 U.S.C. 3109.
The Court adopts the version of the facts as narrated by Detective Didone, who testified that he and Detective Paul approached the rear door of the premises, found it open, observed the defendant inside, announced in a loud voice that they were police and had a search warrant, and entered when the defendant failed to come toward the door. (Tr. II, 108-9.) There is not the slightest doubt that the defendant saw the officers, heard what they said, refused to admit them, and would have continued to refuse if the officers had not then entered through the open door. There is no credible testimony indicating that any door was broken.
6. The defendant contends that because $ 157 in cash was seized and because cash was not one of the items listed in the search warrant, all the evidence seized under the warrant must be suppressed. The Court knows of no case which has held that the seizure of some items in excess of those specified must result in the suppression of all items seized, whether permitted or not. Indeed, the language of Rule 41(e) is directly to the contrary. It provides that if ' the property seized is not that described in the warrant,' then ' the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.' Rule 41(e), Fed.R.Crim.P. (Emphasis added.) Such language requires an item-by-item consideration, and an illegal seizure of one item does not reflect upon the legal seizure of another. The defendant has already made an appropriate motion for the return of the cash, and that motion was granted on May 21, 1962. The evidence legally seized will not be suppressed because of the the seizure of the cash.
The motion to suppress will therefore be denied.