U.S. v. Karathanos

• Decision Date: 06 July 1976
• Docket Number: No. 550,D,550
• Citation: 531 F.2d 26
• Parties: UNITED STATES of America, Appellant, v. Steve KARATHANOS and John Karathanos, Appellees. ocket 75--1322.
• Court: U.S. Court of Appeals — Second Circuit

Page 26

531 F.2d 26

UNITED STATES of America, Appellant, v. Steve KARATHANOS and John Karathanos, Appellees.

No. 550, Docket 75--1322.

United States Court of Appeals Second Circuit.

Argued Dec. 16, 1975.

Decided Feb. 2, 1976.

Certiorari Denied July 6, 1976.

See 96 S.Ct. 3221.

Edward R. Korman, Chief Asst. U.S. Atty. (David G. Trager, U.S. Atty. for the Eastern District of New York, Brooklyn, N.Y., of counsel), for appellant.

Stanley H. Wallenstein, New York City (Schiano & Wallenstein, New York City, of counsel), for appellees.

Before MANSFIELD, OAKES and VAN GRAAFEILAND, Circuit Judges.

MANSFIELD, Circuit Judge:

On this appeal from a decision of the United States District Court for the Eastern District of New York ordering the suppression of certain evidence and testimony as obtained in violation of appellees' Fourth Amendment rights, the government asks us to reverse a decision by Judge James L. Watson that there was no probable cause to issue to search warrant in question or, alternatively, to restrict the operation of the exclusionary rule in this case. Since we find that the warrant was improperly issued, and are unpersuaded by the government's arguments regarding the exclusionary rule, we affirm the decision below.

The case involves a search of Steve's Pier One Restaurant in Bayville, N.Y.; appellee Steve Karathanos is the president and sole shareholder of the corporation which owns the restaurant, while appellee John Karathanos, his brother, works there as a chef. The search was conducted under authority of a search warrant issued by a United States Magistrate after Neil Jacobs, an investigator for the Immigration and Naturalization Service ('INS') swore in an affidavit that he had reason to believe illegal aliens were on the restaurant's premises. The affidavit reads, in pertinent part, as follows:

'Upon information and belief, there are a number of aliens who are not lawfully entitled to enter or reside within the United States, employed at and present within the premises known and operated as STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, within the Eastern District of New York. The presence of said aliens is a violation of Title 8, United States Code, Section 1325. ¹ Moreover, such aliens are subject to arrest pursuant to Title 8, United States Code, Section 1325, for having unlawfully entered the United States.

'The source of your deponent's information and the grounds for his belief are:

'1. During the past five years at least eleven illegal aliens have been apprehended on the premises known as STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, including but not limited to the following individuals: MICHAEL KATSIGIORGIS, DIMITRIOUS STROUPAS, EMANUEL ARETINES, VELIRIS KOSTAS, VICTOR LLANOS, KOASTANTINOS VOULGARIDIS, ROBERTO BARRENCHEA-CAMACHO, VICTOR ALEXANDRO LLANOS-ATUNEA, LADIGLAO VENEGAS-FLORES, HUGO LAGOS, and KIKOLOS TISSANOS.

'2. On May 15, 1975, one ATHANASIOS ATHANASIOU, an admitted illegal alien, holding Greek citizenship, surrendered himself to agents of the Immigration and Naturalization Service at 20 West Broadway, New York, New York. After being advised of his rights, Mr. Athanasiou advised that he had been employed at STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK from October of 1973 till Sunday, May 11, 1975; that as of May 11, 1975 at least eight other persons known to him to be illegal aliens were employed at STEVE'S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK. That during the last year and a half he has resided in the basement of said restaurant with eleven other individuals in six (6) foot by six (6) foot cubicles. That at least six of the eleven individuals residing in the basement at 33 Bayville Avenue, Bayville, New York are known to him to be illegal aliens.'

Having obtained the warrant, INS agents searched the restaurant and arrested seven illegal aliens on the premises. The Karathanos brothers were then indicted for harboring and concealing these aliens in violation of 8 U.S.C. § 1324. ² The appellees moved to exclude from their trial any evidence of the presence of the aliens obtained during the search, and the testimony of the aliens themselves, on the ground that the affidavit for the search warrant failed to state probable cause to search. After a hearing, Judge Watson granted the motion, and the government, deeming the excluded evidence essential to its prosecution of the Karathanos brothers, appealed pursuant to 18 U.S.C. § 3731.

DISCUSSION

Though fine judgments are often required to determine whether an affidavit states facts sufficient to show probable cause for issuance of a search warrant, the basic standard for the decision is well-settled. When an affidavit relies on an informant's time to establish probable cause, the affidavit must, first, set forth 'some of the underlying circumstances' forming the basis of the informant's conclusion that there is illegal activity or evidence there of on the premises, and, second it must state facts which give some assurance that the informant is a credible person. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The purpose of the 'two-pronged' thus enunciated in Aguilar and Spinelli is, of course, to assure that the magistrate will not function merely as a rubber stamp but will issue search warrants only when the facts are sufficient to satisfy a reasonably prudent detached and neutral person that a crime is being committed or evidence of it kept on the premises to be searched and that the informant's information has been obtained by him in a reasonably reliable way rather than through neighborhood gossip, conjecture, or mere suspicion. See Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584, 21 L.Ed.2d 637. Then only is a limited invasion of a person's privacy sanctioned by the Fourth Amendment.

With this basic framework in mind, we turn our attention to whether the requirements of the first phase of the Aguilar-Spinelli test have been met. The only information presented in the Jacobs affidavit ³ to indicate how the informant Athanasiou reached his conclusion that there were illegal aliens at the restaurant is the statement that he had lived on the premises with these aliens. The government, recognizing that the mere presence of aliens (assuming that Athanasiou had a basis for concluding they were aliens) would not provide a basis for concluding that they had entered the United States illegally or otherwise violated immigration laws, strenuously argues that his statement gives rise to a reasonable inference that the other aliens must have admitted to him their illegal status, and thus provides sufficient assurance that he reached his conclusion in a reliable way.

Unquestionably statements to the informant by the other aliens that they were illegally in the United States would have been sufficient to support a holding that the information was reliably obtained by the informant. See, e.g., United States v. Sultan, 463 F.2d 1066, 1068 (2d Cir. 1972). But the affidavit's bald statement that Athanasiou had lived with the other aliens is an insufficient basis for inferring that they made such incriminating admissions. While co-workers and bunkmates may exchange considerable amounts of information, it can hardly be assumed that, living in fear of arrest and deportation, illegal aliens would have revealed their illegal status to a stranger such as Athanasiou. On the contrary, one would expect this subject to rank high on the list of topics too sensitive to be casually revealed. The unlikelihood that the information was directly revealed by any of the aliens to Athanasiou is heightened by the fact that in depositions taken later in the present proceeding the deposition of Athanasiou was taken in the Greek language whereas the depositions of six out of seven of the seized aliens were taken in the Spanish language, indicating that any communication between him and them would have been handicapped by a language barrier.

Rather than hearing any such admissions by the aliens, Athanasiou may simply have concluded that his co-workers were illegal aliens by observing their physical appearance, language characteristics and the fact that they lived in cramped quarters on the premises where they worked. Such observations would be an insufficient basis, however, for determining that the person observed is an illegal alien, since there is no necessary connection between a person's physical, linguistic characteristics, and living arrangements, on the one hand, and the legality of his status, on the other. See United States v. Brignoni-Ponce, 422 U.S. 873, 885--87, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); ⁴ United States v. Mallides, 473 F.2d 859, 860 (9th Cir. 1973). The fact that the co-workers were boarded in the basement is not inconsistent with traditional employers' past treatment of low-paid lawfully admitted immigrants. It is equally consistent to infer that, in tipping the INS that eight illegal aliens were employed on the premises, Athanasiou was simply passing along rumors about various employees which he had collected in the course of his employment at the restaurant; rumors, however, are patently insufficient to provide a sufficient basis for probable cause. If, indeed, Athanasiou obtained his information by direct statements from the aliens rather than by rumor, the Jacob affidavit should have so stated. Its failure to do so is a fatal deficiency.

To infer that the informant reached his conclusion in a reliable manner (e.g., through admissions by the aliens) rather than in an unreliable manner (e.g., through rumor or assumptions based on observations of physical appearance and the like) would be to permit a warrant to issue on the basis of a degree of speculation proscribed by the Aguilar-Spinelli test. While an affidavit...