United States v. Sultan
Decision Date | 05 July 1972 |
Docket Number | Docket 72-1114.,No. 645,645 |
Citation | 463 F.2d 1066 |
Parties | UNITED STATES of America, Appellant, v. Samual SULTAN, Appellee. |
Court | U.S. Court of Appeals — Second Circuit |
Ronald E. DePetris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., David G. Trager, Asst. U. S. Atty., on the brief), for appellant.
Stephen A. Russo, New York City (submitted), for appellee.
Before WATERMAN, HAYS and FEINBERG, Circuit Judges.
The Government appeals from an order of the United States District Court for the Eastern District of New York, granting Samuel Sultan's motion to suppress evidence seized from his residence pursuant to a search warrant. We reverse.
Sultan was indicted for knowingly and fraudulently concealing the assets of a bankrupt, in violation of 18 U.S.C. § 152 (1970). He is the principal officer of Sultan's Big Discount, Inc., which was adjudicated an involuntary bankrupt on June 8, 1970. On the basis of an affidavit sworn to on January 7, 1971, George M. Hand, a Special Agent of the FBI investigating the case, applied to a United States magistrate for a search warrant. The warrant was issued and was executed the same day. The search resulted in the discovery and seizure of assets of the bankrupt that were being concealed at Sultan's residence and garage. The district court granted Sultan's motion to suppress this evidence on the ground that the warrant was issued without probable cause.
Agent Hand's affidavit recited his belief that "general merchandise and assets of Sultan's Big Discount, Inc." were being concealed on Sultan's property, and it continued as follows:
The issue on this appeal is whether Hand's affidavit was sufficient to establish probable cause for believing that Samuel Sultan was committing a crime. In deciding this issue we are mindful that probable cause is more readily found to support a warrant than to validate a warrantless arrest or search. United States v. Ventresca, 380 U.S. 102, 106-107, 85 S.Ct. 741, 13 L. Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. at 1514 (footnote omitted).
The requirement of Aguilar, that the basis of the informant's belief be shown, is met here by the informant's statement that his information was based upon defendant's own admission. See Spinelli v. United States, 393 U.S. 410, 416 (1969), and id. at 425, 89 S.Ct. 584, 21 L.Ed.2d 637 (White, J. concurring); United States v. Ventresca, supra, 380 U.S. at 110, 85 S.Ct. 741; United States v. Alonzo, 447 F.2d 126 (2d Cir. 1971); United States v. Dunnings, 425 F.2d 836, 839 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970); United States v. Bozza, 365 F. 2d 206, 224-225 (2d Cir. 1966); United States v. Freeman, 358 F.2d 459 (2d Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966).
The district court held, however, that the affidavit did not meet the requirement of Aguilar that there be some showing of the trustworthiness of the informant himself. We disagree. A recitation that an unnamed informant has previously supplied accurate information is sufficient to justify reliance on the informant's story, United States v. Dunnings, supra, 425 F.2d at 839; United States v. Ramos, 380 F.2d 717 (2d Cir. 1967); United States v. Perry, 380 F.2d 356, 358 (2d Cir.), cert. denied 389 U.S. 943, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967); United States v. Freeman, supra, 358 F.2d at 462, but it is not necessary. "Such a recital . . . is only one way of validating hearsay . . . ." United States v. Bozza, supra, 365 F.2d at 225. See also United States v. Harris, 403 U.S. 573, 581-582, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion). An untested informant's story may be corroborated by other facts that become known to the affiant, even if they corroborate only innocent aspects of the story. See United States v. Dzialak, 441 F.2d 212 (2d Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971); United States v. Viggiano, 433 F.2d 716 (2d Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 934, 28 L.Ed.2d 219 (1971). Information from named and unnamed informants has been held sufficient by virtue of the status of the informants or their relationship to the crime or to the defendant. United States ex rel. Cardaio v. Casscles, 446 F.2d 632, 637 (2d Cir. 1971) ( ); United States v. Viggiano, supra ( ); United States v. Conti, 361 F.2d 153, 156 (2d Cir. 1966), vacated and remanded on other grounds sub nom. Stone v. United States, 390 U.S. 204, 88 S.Ct. 899, 19 L. Ed.2d 1035 (1968) (unnamed Special Agent of the Internal Revenue Service); McCreary v. Sigler, 406 F.2d 1264 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969) (unnamed eyewitness); United States v. Brown, 455 F.2d 1201 (9th Cir. 1972) (confessing co-criminal); Louie v. United States, 426 F.2d 1398, 1401 (9th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970) ( ); Ignacio v. Territory of Guam, 413 F.2d 513, 519 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L. Ed.2d 124 (1970) (neighbor); Parker v. United States, 407 F.2d 540, 542 (9th Cir. 1969) (defendant's small daughter).
The principle in all these cases, of course, is that the magistrate must have a "`substantial basis' for crediting the hearsay." United States v. Harris, supra, 403 U.S. at 581, 91 S.Ct. at 2080 (plurality opinion). See also Jones v. United States, supra, 362 U.S. at 269, 271, 80 S.Ct. 725; United States v. Bozza, supra, 365 F.2d at 225. This principle, and the cases cited above, lead to the conclusion that the affidavit offered to the magistrate in this case was sufficient for him to conclude that Charles Sultan was reliable. He was named in the affidavit, was related to the defendant, and was reporting an admission of criminal activity by the defendant.
Moreover, the Supreme Court has noted that when certain kinds of crimes are involved, informants are "much less likely" to lie than "in narcotics cases or other common garden varieties of crime . . . ." Jaben v. United States, 381 U.S. 214, 224, 85 S. Ct. 1365, 1370, 14 L.Ed.2d 345 (1965). Jaben was a tax evasion case. The principle would appear equally applicable to a case of bankruptcy fraud.
We conclude that the affidavit on its face fulfilled the constitutional requirement that it be issued only on a showing of probable cause.
United States v. Roth, 391 F.2d 507 (7th Cir. 1967), which is relied on heavily by Sultan here, does not lead to a contrary result; in that case the discrepancy, as revealed by the affiant's own testimony, was between what the informant told the affiant and the affiant's statement in his affidavit. We do not read the district court opinion as finding that Agent Hand knowingly misrepresented his knowledge to the magistrate. Nor did Charles Sultan ever deny saying to Hand what Hand said he had said....
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