U.S. v. Besase

• Decision Date: 09 September 1975
• Docket Number: No. 75-1054,75-1054
• Citation: 521 F.2d 1306
• Parties: 75-2 USTC P 16,199 UNITED STATES of America, Plaintiff-Appellant, v. John BESASE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1306

521 F.2d 1306

75-2 USTC P 16,199

UNITED STATES of America, Plaintiff-Appellant, v. John BESASE et al., Defendants-Appellees.

No. 75-1054.

United States Court of Appeals, Sixth Circuit.

Sept. 9, 1975.

Frederick M. Coleman, U. S. Atty., Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, Scott P. Crampton, Gilbert E. Andrews, Chief, App. Section, Robert E. Lindsay, Carleton D. Powell, Attys., Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

David G. Wise, Toledo, Ohio, John Kennedy Lynch, Cleveland, Ohio, Lawrence E. Duffey, Norman E. Bischoff, Cline, Bischoff & Cook, Toledo, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

PECK, Circuit Judge.

This appeal is from a judgment entered against the government in its suit to reduce certain tax assessments against the defendant taxpayers to judgment. The district court found the search warrant pursuant to which evidence upon which the tax assessments were based was seized had not issued upon probable cause, and that, therefore, such evidence was inadmissible. The evidence excluded was essential to the government's case, which the district court therefore dismissed. Appellant argues that the search warrant in question was supported by affidavits providing probable cause and moreover, should this court find the search warrant invalid, the district court erred in applying the exclusionary rule.

The search warrant in question issued in October, 1963. The supporting affidavits alleged that Sam Besase, George Besase, John Besase, Angelo Perna, Ted Maison, and Sam Rappaport, appellees herein, and Norman Blackman, Emmanuel Licata, Gary Licata, John Spencer, John Doe known as "Little Paul", Silas Means and others were engaged in gambling activities within Sections 4411 and 4412 of the Internal Revenue Code of 1954 (26 U.S.C.); that gambling paraphernalia was being concealed on the premises known as 2031 West Alexis Road, Toledo, Ohio; and that except for Sam Besase, George Besase, John Besase, Angelo Perna, Ted Maison, and Sam Rappaport, none of the above-listed persons had registered or paid federal occupational taxes as required by law.

Pursuant to the warrant, gambling paraphernalia was seized; John Besase, Sam Besase, George Besase, Angelo Perna, Ted Maison and Sam Rappaport were indicted and convicted of filing fraudulent tax returns for a six-member partnership; which convictions were vacated by this court (United States v. Besase, 373 F.2d 120 (6th Cir. 1967)) on the ground that the government failed to prove that the alleged six-member partnership had not filed wagering tax returns. The issue of the validity of the search warrant was raised but not determined on appeal. The present civil suit was filed by the government in 1970.

The district court's decision finding the search warrant invalid and the evidence seized inadmissible, was apparently predicated upon two grounds: first, because the affidavits fail to supply facts to support allegations of defendants' failure to comply with the provisions of the occupational tax on wagering (although there are facts tending to show others named had failed to comply with the tax laws), there is no showing of probable cause as to the defendants and the warrant must fail as to them; secondly, the district court also indicated, in a post-suppression hearing, that as a result of this court's reversal of the criminal conviction, the "whole valid reason for the search warrant disappeared." We reject both of these conclusions.

The Fourth Amendment to the United States Constitution requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." The probable cause requirement of the Fourth Amendment is satisfied if the facts and circumstances are such that a reasonably prudent person would be warranted in believing that an offense had been committed and that evidence thereof would be found on the premises to be searched. United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032 (1925); United States v. One 1965 Buick, 392 F.2d 672, 677 (6th Cir. 1968), vacated on other grounds, 402 U.S. 937, 91 S.Ct. 1602, 29 L.Ed.2d 105 (1970). The supporting affidavits in question recite, as the district court found, "in exhaustive detail, facts which would lead to the conclusion that defendants were engaged in a numbers lottery." Record at 92. The affidavits recite facts showing, inter alia, that wagers were placed on many separate occasions with five persons, Allen, Blackman, the two Licatas, and Spencer, none of whom had paid the special tax or were registered; that these five were also observed on many occasions, turning in the daily play to a group of "pick-up" men, who then proceeded to 2031 West Alexis Road carrying the brown paper bags or wrapped bundles of numbers slips. These affidavits clearly set out probable cause to justify a belief that the West Alexis Road property was the location of a gambling operation in which at least some of the principals...