Rosencranz v. United States, 6594

• Decision Date: 07 February 1966
• Docket Number: 6611.,No. 6594,6594
• Parties: Samuel ROSENCRANZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Anthony DiPIETRO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

356 F.2d 310 (1966)

Samuel ROSENCRANZ, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Anthony DiPIETRO, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6594, 6611.

United States Court of Appeals First Circuit.

Heard December 6, 1965.

Decided February 7, 1966.

Joseph J. Balliro, Boston, Mass., for appellant Samuel Rosencranz.

Casper Tevanian, Portland, Me., for appellant Anthony DiPietro.

William E. McKinley, U. S. Atty., with whom David G. Roberts, Asst. U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These appeals arise from the joint trial and conviction of two alleged conspirators indicted for the operation of an illegal still in violation of federal internal revenue laws. The critical issue is whether there was probable cause to issue a search warrant.

I

On March 24, 1962, prior to 3 a. m., Richard K. Weller, Investigator-in-Charge of a branch office of the Alcohol Tax Division of the U. S. Treasury Department, presented and executed before a U. S. Commissioner an affidavit for a search warrant, alleging that he had reason to believe that on certain farm premises on Ash Swamp Road in Scarborough, Maine, were being concealed mash, distillation apparatus, and non-tax paid alcohol, in violation of 26 U.S.C. § 5601.¹ The warrant was issued and, at 5:45 a. m., the same day, Weller and other officers entered the barn on the premises, found a still, seized equipment and supplies used in the making of alcohol, and arrested two men (not appellants) found at the site.

The validity of the search warrant was attacked by appellants in motions to suppress the evidence resulting from the search. The government, in turn, challenged their right to attack on the dual grounds that neither the persons nor the property affected by the search fall within the protection of the Fourth Amendment. After evidence and argument, the district court denied the motions in an opinion dated May 19, 1965, D.Me., 241 F.Supp. 933.

As to standing, we hold that appellants can invoke the Fourth Amendment on the undisputed fact that appellant DiPietro was the legal owner of the premises. While he was as absentee, reluctant, unknowledgeable, and uninterested an owner as may be imagined,² he was still the only holder of legal title to the premises. He was also the owner of such distilling apparatus as, under the applicable law as to fixtures, had become part of the real estate. And we have seen no authority for the proposition that the owner of premises who has not given exclusive use to another does not have standing. See Jones v. United States, 1960, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697. If DiPietro has standing, then, under McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, appellant Rosencranz also shares in the shelter of the Fourth Amendment.

That such an absentee holder of legal title as appellant DiPietro should have standing to invoke the Fourth Amendment does not offend us as creating constitutional rights by "subtle distinctions developed in the law of real property", as government counsel argues. As this case demonstrates, the purchase and ownership of real property with very little more can be significant links involving the owner in the chain of an alleged conspiracy. It does not seem unfair to allow the fact of ownership, which is used by the government against a defendant, to be used by that defendant to invoke constitutional rights.

The government also contends that the premises searched — the barn — do not come within the protection of the Fourth Amendment. This amendment speaks of the "houses" of persons, which word has been enlarged by the courts to include the "curtilage" or ground and buildings immediately surrounding a dwelling, formerly usually enclosed. The reach of the curtilage depends on the facts of a case. In this case the government points out that appellants have not supplied us with more than the most meager facts (see footnote 1, supra). The only additional factual description is as follows. The Treasury agent who led the search said, "it was a small farm with dwelling house and barn to the left as you faced the premises". He also testified that tracks of vehicles and footprints were visible on the snow, leading to both house and barn; he decided to enter the barn first because the signs of traffic were somewhat heavier. Other witnesses said there was a driveway between the barn and the dwelling house. This suggests propinquity and absence of separating barriers. While the evidence before us is sparse, it is at least as persuasive as that in Walker v. United States, 5 Cir., 1955, 225 F.2d 447, where a barn was held within the curtilage, although it was seventy to eighty yards from a house, and was surrounded by a fence. See also Taylor v. United States, 1931, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; United States v. Mullin, 4 Cir., 1964, 329 F.2d 295. We hold that the premises searched were within the coverage of the Fourth Amendment.

The search warrant is attacked for the following alleged defects in the underlying affidavit: that anonymous information is not an adequate basis; that the affiant was not found qualified to know the odor of mash; that the affiant did not identify the odor of mash as emanating from the premises; and that the times of receipt by the affiant of information from his informant and of his detection of the odor were not stated in the affidavit.

We shall consider these arguments against the background of constitutional policy and guidelines to carry out that policy, which have evolved as the courts have wrestled with the problem of respecting both the constitutional rights of individuals and the reasonable needs of law enforcement. The policy is to encourage officers of the law to seek to the fullest extent feasible the objective judgment of a magistrate on the probability that a crime is being committed before permitting entry on the property of private citizens.

The device of this intervening step between clues and search is calculated to substitute the inferences of a neutral and detached magistrate for the inferences of a committed officer in the heat of ferreting out crime. Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436.

This policy, in the interests of the civil liberties of all the people protected by the Fourth Amendment, is bulwarked by rather precise supporting guidelines, which may bear heavily on individual defendants. These guidelines include the following: evidence need be only so much as to persuade a man of reasonable caution to believe a crime is being committed, Brinegar v. United States, 1949, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; the finding of "probable cause", while demanding more than mere suspicion, Draper v. United States, 1959, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327, requires less evidence than would justify conviction, Locke v. United States, 1813, 7 Cranch 339, 348, 3 L.Ed. 364, and less than would justify an officer in making a search without a warrant, Johnson v. United States, supra, 333 U.S. at 13, 68 S.Ct. 367; the evidence itself need not be legally competent in a criminal trial, Draper v. United States, supra, 358 U.S. at 311, 79 S.Ct. 329, and may in fact be hearsay, Jones v. United States, supra, 362 U.S. at 272, 80 S.Ct. 725, so long as the magistrate is informed of some underlying circumstances supporting the affiant's conclusion and his belief that any informant involved was credible or his information reliable, Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; the commissioner is entitled to draw reasonable inferences from the facts contained in the affidavit based on his experience in such matters, Irby v. United States, 1963, 114 U.S.App.D.C. 246, 314 F.2d 251, 253, cert. denied, 374 U.S. 842, 83 S. Ct. 1900, 10 L.Ed.2d 1064, while only the information in the affidavit is relevant in reviewing the magistrate's judicial action issuing a warrant, United States v. Casino, 2 Cir., 1923, 286 F. 976, such an affidavit must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, United States v. Ventresca, 1965, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d, 684; and, finally, the commissioner's finding "is itself a substantial factor", United States v. Ramirez, 1960, 2 Cir., 279 F.2d 712, 716, cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74, and in marginal cases, where there is doubt whether an affidavit demonstrates the existence of probable cause, the resolution should be "largely determined by the preference to be accorded to warrants", United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746.

Following this constitutional policy and these judicial guidelines, particularly as urged by Ventresca, we shall now consider the alleged defects in the affidavit.

We are not troubled by affiant's receipt of information from an anonymous informant. The case before us is, in this respect, stronger than both Aguilar and Jones, where the only basis for the warrant was hearsay information. In this case the hearsay evidence is buttressed by the personal observation of the affiant. It is analogous to Draper, where hearsay information which had no earmarks of credibility was confirmed by the observations of the officer.

Nor are we concerned by the state of the evidence before the magistrate as to the odor of mash outside the premises. The affiant in this case, while described in the affidavit as a "Criminal Investigator", was actually the Investigator-in-Charge of a local office of the Alcoholic Tax Division of the Treasury Department. In either event, such credentials and the distinctive odor of mash have passed the surveillance of many courts. See, e. g., Monnette v. United States, 5 Cir., 19...