U.S. v. Manufacturers Nat. Bank of Detroit, Livernois-Lyndon Streets, Safety Deposit Box No. 7B 127, Detroit, Michigan

• Citation: 536 F.2d 699
• Decision Date: 22 July 1976
• Docket Number: LIVERNOIS-LYNDON,No. 76-1296,76-1296
• Parties: UNITED STATES of America, Plaintiff, v. MANUFACTURERS NATIONAL BANK OF DETROIT,STREETS, SAFETYDEPOSIT BOX # 127, DETROIT, MICHIGAN, Defendant. Petition of Alzalia WINGATE and Toni Wingate, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 699

536 F.2d 699

UNITED STATES of America, Plaintiff, v. MANUFACTURERS NATIONAL BANK OF DETROIT, LIVERNOIS-LYNDON

STREETS, SAFETYDEPOSIT BOX # 127, DETROIT,

MICHIGAN, Defendant.

Petition of Alzalia WINGATE and Toni Wingate, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 76-1296.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1976.

Decided June 16, 1976.

Rehearing Denied July 22, 1976.

S. Allen Early, Jr., Charles S. Brown, Detroit, Mich., for appellant.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Frederick J. Dana, Detroit Strike Force, U. S. Dept. of Justice, Detroit, Mich., for appellee.

Before CELEBREZZE, MILLER ^* and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The issues in this case arose out of two searches conducted pursuant to separate search warrants issued by a federal magistrate. On October 6, 1975 an F.B.I. agent filed with the magistrate an extensive affidavit based on an eighteen month long "investigation of an organized illegal gambling business operating . . ." in Detroit. The affidavit identified a number of persons as participants in the illegal activities, including James Wingate who was described as the "banker" for a numbers operation handling approximately $25,000 per day in bets. The affidavit contained a detailed description of the numbers operation in the Detroit area, based on "personal observations and participation in this investigation, as well as receipt of information from confidential informants whose information has been corroborated by independent surveillances conducted by the Federal Bureau of Investigation and by information supplied by other confidential informants . . .."

The affidavit identified by street number thirteen separate buildings or residences in the Detroit area where it was believed evidence relating to illegal gambling would be found. Each location was connected to specific information received from a particular informant whose past reliability was vouched for. Among the residences identified in the affidavit was that of James W. Wingate at 18805 Capitol, Southfield, Michigan. The thirteen requested search warrants were issued and the Capitol Street residence was searched on October 6th.

On October 7, 1975 the same F.B.I. agent who had filed the October 6th affidavit filed a second one with the magistrate who had issued the October 6th warrants. The first two numbered paragraphs were identical to the corresponding opening paragraphs of the October 6th affidavit. The October 7th affidavit then concluded as follows:

3. That pursuant to the execution of a search warrant authorized by the Honorable Barbara Hackett on October 6, 1975, the residence of JAMES WINGATE, located at 18805 Capitol Street, was searched by Agents of the Federal Bureau of Investigation. Approximately Three-Thousand Dollars ($3,000.00) in currency was located in the residence of 18805 Capitol Street. During the course of that search, JAMES WINGATE who was present remarked to the investigating agents in substance that he did not keep gambling paraphernalia or gambling receipts at his residence; that he did have a safety deposit box, but that he did not keep the key on the premises at 18805 Capitol Street; he stated that the safety deposit box was at MANUFACTURERS BANK he did not disclose the location.

Subsequently, the investigating agents found in the residence at 18805 Capitol Street, a receipt for payment for a safety deposit box, # 110 at MANUFACTURERS NATIONAL BANK OF DETROIT, Livernois-Lyndon Branch, Detroit, Michigan.

This Agent has learned that box # 110 was closed on March 18, 1974, but that a new and larger box, number # 127, was opened on March 19, 1974, in the names I, therefore, have reason to believe that from statements made by JAMES WINGATE during the course of the search at his residence at 18805 Capitol Street, that gambling receipts and gambling records are contained in a safety deposit box, # 127, located at the MANUFACTURERS NATIONAL BANK OF DETROIT, Livernois-Lyndon Branch, Detroit, Michigan. In addition an effort was made to locate any other safety deposit box held by Manufacturer National Bank on behalf of James Wingate. No other safety deposit boxes appear to be held by James Wingate.

of AZALIA WINGATE, wife of JAMES WINGATE, and TONI WINGATE, daughter of JAMES WINGATE.

/s/ EDWARD GRIMSLEY

EDWARD GRIMSLEY

Special Agent/Federal Bureau of Investigation

A search warrant was issued for safety deposit box # 127, and the search yielded $500,200.00 in currency. A motion was made by Alzalia Wingate and Toni Wingate pursuant to Rule 41(e), Fed.R.Crim.P., for return of the property seized from the lock box. This appeal is from an order of the district court denying this motion. The appellants argue that the October 6th affidavit was not sufficient to establish probable cause to search the Wingate residence. They maintain that the search of the residence was illegal and that all information pertaining to the safety deposit boxes was derived from this search and should be suppressed as "fruit of the poisonous tree." They further contend that even if the October 6th search was lawful the October 7th affidavit was not sufficient to establish probable cause for the search of box # 127, and that the magistrate was not permitted to rely on the October 6th affidavit to cure deficiencies in the October 7th affidavit in finding probable cause for a search of box # 127.

We have carefully considered the October 6th affidavit. To the extent that the information contained in it was not based upon personal observations and experience of the affiant or surveillance by other F.B.I. personnel it was derived from statements of unnamed informants. The affidavit recited past experiences with all the informants in which their information had proven reliable, corroboration of their statements about the Detroit numbers operation by F.B.I. surveillance and the fact that each informant was deeply involved personally in numbers betting. In addition, the affidavit set forth conversations between several of the informants and James Wingate as the source of some of the information. The affidavit described many details of the "James Wingate Mutuels Combine."

The October 6th affidavit satisfied the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), for crediting hearsay information from unnamed informants in determining whether probable cause for issuance of a search warrant has been established. The affidavit contained a sufficient statement of "some of the underlying circumstances from which the informant concluded . . ." that illegal numbers gambling was being carried on and that money used in the operations would be found at the Wingate residence as well as some of the underlying circumstances from which the affiant had concluded that the informants were "credible" or their information was "reliable." Id. at 114, 84 S.Ct. 1509. See Naples v. Maxwell, 393 F.2d 615 (6th Cir. 1968), cert. denied, 393 U.S. 1080, 89 S.Ct. 850, 21 L.Ed.2d 772 (1969). Appellants complain that the affidavit contained no statement that the affiant, or anyone else, had actually seen money being taken into the Wingate residence or had viewed money there. Their reliance on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), is misplaced. The October 6th affidavit did not contain a recital of activities which "contain no suggestion of criminal conduct when taken by themselves . . ." which the affiant sought to convert into evidence of a crime on mere suspicion. Spinelli, supra, 393 U.S. at 418, 89 S.Ct. at 590. Nor did the affidavit contain the "(m)ere affirmance of suspicion or belief . . ." of the affiant. Nathanson, supra, 290 U.S. at 47, 54 S.Ct. at 13.

The October 6th affidavit was sufficient to establish probable cause to believe that illegal gambling activities which are a federal offense under 18 U.S.C. § 1955 were being carried on, United States v. Williams,459 F.2d 909 (6th Cir. 1972); and that evidence of these activities would be found on the premises at 18805 Ca...