The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The case is now before the Court on defendants' motions to dismiss the indictment, Moore's motion for severance of counts 2, 3, 4 and 6 from the remaining counts in the indictment, Bright's oral motion for severance and for separate trial, Moore's motion to suppress evidence found at 514 Missouri Avenue, N.W. and evidence found in the pickup truck, and Bright's motion to suppress evidence found in the pickup truck. The Court held an evidentiary hearing on October 20, 1982 and heard arguments on November 1, 1982. For the reasons set forth below, the Court concludes that the defendants' motions must be denied.
Briefly, the relevant facts as found by the Court are as follows: In early June 1982, a person identified as Robin Smith, sometimes referred to as the "special employee", and hereinafter simply referred to as "SE", contacted officers of the Metropolitan Police Department, and advised them that she had met persons involved in the distribution of cocaine and other drugs. She offered her services in any police investigation. After police officers determined that she had worked with police departments in New Jersey and had furnished information leading to arrests and convictions in that state, they met with her and discussed information she had concerning Moore. She advised them that she had lived with Moore for two weeks and had observed marijuana and cocaine in his house located at 514 Missouri Avenue, N.W. in the District of Columbia.
Working with the police, SE arranged for an undercover officer to buy cocaine and marijuana from Bright and Moore. The transaction was to take place on June 8, 1982, at the Capital City Inn on New York Avenue, N.E., in the District of Columbia. On that date, SE and an undercover officer met with Moore and Bright in a motel room. Police officers were in an adjoining room and conversations in the room where the meeting took place were monitored by a body recorder secreted in the room. Moore and Bright arrived in a pickup truck and when they entered the room they had a conversation with SE and the undercover officer concerning the purchase of drugs, but after Bright carefully examined the money offered by the undercover officer, he apparently concluded that the money was marked and indicated that he was leaving. Both defendants left the room and returned to the pickup truck. They began to drive away. SE advised the police that she thought the drugs were in the truck and the officers radioed other officers on the street to stop the truck and arrest the defendants on a conspiracy charge.
The truck in which the defendants were riding was stopped, they were arrested, and the truck searched. A gun and a small amount of narcotics were found in the back of the truck in a separate compartment from where the defendants were seated. Although the police state that in searching the truck they were also searching for a gun, based upon comments made earlier by Moore that he might bring a gun, they concede that the search was not a protective search but was a search for contraband.
Thereafter, officers prepared affidavits in support of search warrants for Moore's residence at 514 Missouri Avenue, N.W., and Bright's residence at 5110 Seventh Street, N.W.; both addresses in the District of Columbia. They presented the affidavits and warrants to a Superior Court judge at 1:00 a.m. on June 9, 1982. In the presence of the judge, Officer Hickson added a sentence to the affidavit in support of the search warrant for 514 Missouri Avenue, N.W., by printing "the special employee, within the last seventy-two has been inside of 514 Missouri Ave NW and has observed both cocaine and marijuana within the premises." The reference to "seventy-two" is crossed out, and inserted above is "forty-eight hours". The initials "DPH", referring to Daniel Hickson, appear next to the handprinted sentence. Hickson was sworn to the affidavit by the judge, and the judge signed the search warrant authorizing the search "for the entire premises of 514 Missouri Avenue, Northwest, Washington, D.C. The premises are described as a two story, brick row house, single family dwelling." The warrant authorizes the officers to execute the warrant "at any time of the day or night" and also authorizes them to search "without giving notice of identity and purpose."
When the officers arrived at 514 Missouri Avenue, they knocked and Moore's parents opened the door. Moore's parents lived in a separate apartment on the second floor and Moore lived on the first floor and the basement. The house resembled a single family dwelling. There is one locked entrance to the house, and all mail is delivered through a common mail slot in that door. Inside, there are two separate apartments, one shared by Moore's parents, and one occupied by Moore. The parents have lived in their apartment since 1958 and Moore has lived in his apartment for three or four years. Prior to Moore moving in, the first floor apartment was occupied by different families over a period of years. Neither apartment is identified by an apartment number although the apartment occupied by Moore's parents, Mr. and Mrs. Henderson, has a name plate over the door marked "Henderson". Moore does not have a key for his parents apartment and they do not have a key for his apartment. When SE spent several nights with Moore in the house, she occupied the first floor apartment.
The officers also searched a garage in the back yard which is used for storage. The garage is not described in either the affidavit or the warrant. While Mr. Henderson accompanied the officers to the garage, neither he nor his wife actually consented to the search; rather, they simply did as they were told.
The police found cocaine and marijuana in Moore's apartment.
The first motion to be addressed is the motion to dismiss filed pursuant to the Speedy Trial Act (STA), 18 U.S.C. § 3161 et seq. The defendants were arrested on June 8, 1982. On July 7, 1982, the complaints as to both defendants were dismissed on the motion filed by the United States. The present indictment was filed on July 29, 1982. The defendants argue that the indictment should now be dismissed ...