560 F.Supp. 627 (D.Conn. 1983), Crim. 82-1100, United States v. Travisano
|Docket Nº:||Crim. 82-1100|
|Citation:||560 F.Supp. 627|
|Party Name:||United States v. Travisano|
|Case Date:||March 30, 1983|
|Court:||United States District Courts, 2nd Circuit, District of Connecticut|
Alan H. Nevas, Jeremiah F. Donovan, New Haven, Conn., for plaintiff.
Richard Reeve, New Haven, Conn., for defendant.
RULINGS ON MOTION TO SUPPRESS EVIDENCE AND MOTION TO DISMISS
EGINTON, District Judge.
Defendant in this action, Joseph Travisano, was indicted in a two-count indictment alleging possession of a firearm in violation of 26 U.S.C. §§ 5861, 5871 and 18 U.S.C.App. § 1202(a). These charges were brought as the result of the seizure of a shotgun from 371 Elm Street, West Haven, Connecticut. The seizure was made pursuant to a search warrant signed by a judge of the Superior Court of the State of Connecticut. The shotgun was not an item sought in the warrant, although a .38 calibre handgun was listed. None of the items enumerated in the warrant were found at 371 Elm Street.
Defendant has moved to suppress the shotgun from evidence and to dismiss count two of the indictment. This court heard oral argument and counsel filed memoranda of law.
I. MOTION TO SUPPRESS EVIDENCE
Defendant argues that the affidavit relied upon by the judge in granting the search warrant was fatally defective in that it did not establish probable cause to believe that the evidence sought would be secreted within the residence searched. 1 This court agrees that the affidavit was defective and GRANTS the motion to suppress the shotgun seized during the search.
Although it is well-established that searches conducted pursuant to warrants are preferred over warrantless searches, United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684 (1965), this preference should not unduly restrict the scope of this court's review. The privacy interests protected by the fourth amendment are far too important to allow such interests to be invaded by adopting an overly deferential stance. 2 The purpose of the court's review is to ensure that warrants are issued only upon a showing of probable cause. "While an affidavit supporting a search warrant should not be read in a grudging or technical manner, ... neither should it require the magistrate, or a reviewing court, to use imagination to supply essential details critical to determining probable cause." United States v. Karathanos, 531 F.2d 26, 31 (2d Cir.) (citations omitted), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976).
In analyzing the existence of probable cause, the court starts by examining the affidavit. The facts alleged in the affidavit that are relevant to the determination of probable cause to search the residence at 371 Elm Street are as follows:
(1) On August 9, 1982 at approximately 2:13 p.m. a robbery occurred at the AAA Motor Club in Hamden, Connecticut during which an AAA employee was shot and seriously wounded. An AAA flight bag containing bank deposit bags holding in excess of $35,000 in cash and $45,000 in checks was taken.
(2) One of numerous witnesses interviewed, Randy Borruso, stated that he
observed two subjects running from the area of the motor club and entering an older model white Cadillac which contained a third male. According to this witness, the Cadillac bore a vanity plate on its front which read "Baby Joe" and a Connecticut license plate with the first two letters YE.
(3) In the course of the investigation, it was determined that three white males were responsible for the robbery. The affidavit did not include more detailed descriptions of any of these men.
(4) A West Haven police officer recalled having seen a vehicle matching the description on Elm Street in West Haven, Connecticut. On August 10, 1982, the West Haven Police Department reported having found a vehicle bearing Connecticut registration number YE1034 parked in the driveway of 371 Elm Street, West Haven. Randy Borruso positively...
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