Ventresca v. United States, 6157.

• Decision Date: 26 November 1963
• Docket Number: No. 6157.,6157.
• Parties: Giacomo VENTRESCA, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

324 F.2d 864 (1963)

Giacomo VENTRESCA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6157.

United States Court of Appeals First Circuit.

November 26, 1963.

Matthew R. McCann, Worcester, Mass., with whom Maher, McCann & Talcott, Worcester, Mass., was on the brief, for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

The defendant, Giacomo Ventresca, appeals from a judgment of conviction of the United States District Court for the District of Massachusetts for possessing and operating an unlawful still in violation of the Internal Revenue Code and for conspiracy to do so.¹

The defendant was arrested in his home on September 1, 1961 by Investigators attached to the Alcohol and Tobacco Tax Division of the Internal Revenue Service who were executing a warrant to search for an illicit still. The Investigators found and seized a still, along with other apparatus used in the distilling process and a large quantity of nontax paid liquors. Some of the seized objects were introduced in evidence against the defendant at the trial.

Prior to trial the defendant filed a motion for the return of seized property and the suppression of evidence obtained through the execution of the search warrant. After receiving evidence on the motion, the district court ruled that the affidavit was sufficient under the test promulgated by the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Further, the court ruled that the facts in the affidavit constituted probable cause and the warrant described the things to be seized with sufficient particularity. Ordered suppressed as evidence, however, were a telephone book, desk directory and various papers taken from a box on Ventresca's bedroom bureau and from his trouser pocket on the ground that they were mere evidence and, therefore, not within the provision of Rule 41(b) (2) of the Fed.R. of Crim.P.

The principal question raised by the defendant is the sufficiency of an affidavit signed by one Walter A. Mazaka, an Investigator attached to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which affidavit was the sole evidence upon which the search warrant was issued.

The affidavit is set out in the margin.² It alleged in substance that Mazaka had "reason to believe" that an illicit still and other material used in the manufacture of non-tax paid liquors were being concealed on the premises of a dwelling house located at 148½ Coburn Avenue, Worcester. On an attached sheet signed by Mazaka were recited the "facts tending to establish the foregoing ground for issuance of a Search Warrant."

The first paragraph of the attached sheet contained the following:

"Based upon observations made by me, and based upon information received officially from other Investigators attached to the Alcohol and Tobacco Tax Division assigned to this investigation, and reports orally made to me describing the results of their observations and investigation, this request for the issuance of a search warrant is made."

There followed eleven paragraphs of stated facts, nine of which detailed the activities of two men alleged to have been seen riding around in a 1961 Pontiac automobile and making seven individual deliveries of sugar and five-gallon cans to the dwelling house at 148½ Coburn Avenue, Worcester. Two of the paragraphs recited that on three separate occasions "Investigators" smelled an odor of fermenting mash in the immediate vicinity of the suspected dwelling.

The final paragraph of the attached sheet comprised this statement:

"The foregoing information is based upon personal knowledge and information which has been obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation."

The affidavit failed to clearly indicate which of the facts alleged therein were hearsay or which were within the affiant's own knowledge. Although the affiant claims part of the information to be based upon "personal knowledge and information," it is stated that such "personal knowledge and information" was obtained from other Investigators.

The finding of probable cause as the basis for issuance of a search warrant is made by the Commissioner from the facts stated in the affidavit when that is the only evidence presented. Siden v. United States, 9 F.2d 241 (8th Cir. 1925). Such a duty cannot be delegated to the accuser. United States v. Harnich, 289 F. 256 (D.Conn.1922). Limited to the four corners of the affidavit, there was no way for the Commissioner to determine how much of the factual recitation was based on hearsay and how much was based on personal knowledge of the affiant. It could well be that none of the essential facts set forth in the affidavit were actually witnessed or established by the affiant. The Commissioner could only conclude that the entire affidavit was based on hearsay.

That is not to say that an affidavit dependent upon hearsay could not support issuance of a search warrant. The Supreme Court in Jones v. United States, supra, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d 697, has succinctly stated the law in this respect:

"The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant\'s observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented."

In Jones, the source of the hearsay, the informant, had direct knowledge himself of the possession of contraband articles by the suspect. He was deemed worthy of credence because he had previously given accurate information, his story was corroborated by other sources of information, and the suspect was known to the police as a narcotics user. The Court said 362 U.S. at 271, 80 S.Ct. at 736, 4 L.Ed. 2d 697:

"Thus we may assume that the affiant Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant\'s story." (Emphasis supplied).

The Court then went on to recite the further elements listed above, the sum total of which added up to substantial basis for crediting the hearsay.

Where the hearsay evidence has been personally observed by federal officers and communicated directly to the affiant, courts have found a substantial basis for crediting the hearsay. In United States v. McCormick, 309 F.2d 367 (7th Cir. 1962), cert. den., 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963) — a case the government contends "appears to be on all fours" with the instant case — the affiant had no personal knowledge of the averments in the affidavit, but each factual statement was prefaced by the declaration that the F.B.I. agents from whom the information was received were "present" and "observed" each described event as it occurred. In Giacona v. United States, 257 F.2d 450 (5th Cir.), cert. den., 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958), the affiant was without personal knowledge but identified his informant as one W. T. Finley of the Federal Bureau of Narcotics who had personally observed the narcotics hidden under the building to be searched.

But the holdings in the aforementioned cases are inapplicable to the facts of this case. With the exception of two paragraphs in the factual recitation alleging that unidentified "Investigators" smelled the odor of fermenting mash in the vicinity of the suspected dwelling, all we learn from Mazaka's affidavit is that the investigators received their information through "investigation."

Thus, the affidavit leaves as a complete mystery the manner in which the Investigators discovered their information. There is no indication whatsoever that any of the evidence gathered through the investigation was based upon the personal knowledge or observation of the Investigators. As a consequence there arises doubt that such information was first-hand to the Investigators. The type of fact-finding activities that can qualify under the term "investigation" are numberless. Investigations can, and frequently do, include the interrogation of witnesses, the receipt of information from informants, the receipt of telephone tips, the checking of files and records, etc. We would have in such a case, not a hearsay affidavit alone, but the distinct possibility of hearsay-upon-hearsay.

Hearsay information received from an informant may be used in an affidavit to secure a search or arrest warrant only when the informant is shown to be "trustworthy," Monnette v. United States, 299 F.2d 847 (5th Cir. 1962), or "reliable," Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In United States v. Pearce, 275 F.2d 318 (7th Cir. 1960), it was held that an affidavit based on hearsay relayed from one federal agent to another was insufficient. The affiant, an F.B.I. agent, had received his information from his superior, who in turn had received it from an F.B.I. agent in Seattle, who in turn had received it from a reliable informer. The court pointed out, therefore, that the statement in the affidavit that the affiant obtained the information from "a source which in the past has proved reliable" was obviously false. Similarly here, the affiant, Mazaka, could not truthfully vouch for the reliability or trustworthiness of the sources of information that might have been used by the Investigators. The substantial basis for crediting the hearsay found in Jones is nowhere apparent in this case.

Because we are unable to determine from Mazaka's affidavit which of the...