United States v. Travisano

• Decision Date: 30 March 1983
• Docket Number: Crim. No. 82-1100(WWE).
• Citation: 560 F. Supp. 627
• Parties: UNITED STATES of America v. Joseph A. TRAVISANO.
• Court: U.S. District Court — District of Connecticut

560 F. Supp. 627

UNITED STATES of America v. Joseph A. TRAVISANO.

Crim. No. 82-1100(WWE).

United States District Court, D. Connecticut.

March 30, 1983.

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 identified this Cadillac.

(5) "Through West Haven Police" it was determined that this vehicle "in the past" had a front vanity plate reading "Baby John."

(6) During surveillance on August 10, 1982, between 10:30 a.m. and 12 noon, a white female operated the vehicle. There was no vanity plate on the front of it.

(7) "Through the news media, the public was aware that the Hamden Police Dept. was looking for a white Cadillac with a vanity plate on the front."

(8) The vehicle with Connecticut registration number YE1034 is a 1970 Cadillac registered to Marie Travisano of 371 Elm Street. A frequent operator of this vehicle is known by the West Haven Police Department to be the owner's son, Mark Travisano.

To establish probable cause for the search of defendant's residence, two factual showings must be made: 1) that a crime has been committed and 2) that there is probable cause to believe that evidence of that crime is located at the place to be searched. United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971). The affidavit establishes that a robbery occurred at the Hamden AAA Motor Club. The defendant concedes, and the court agrees, that the affidavit contains sufficient information to support a finding of probable cause to search the car. In the circumstances of this case, however, the validity of the search of the car is irrelevant to the validity of the search of the house. See United States v. Morris, 647 F.2d 568 (5th Cir.1981).

The defendant contends that the second part of the probable cause requirement has not been satisfied with regard to the residence at 371 Elm Street. Although the nexus between the objects to be seized and the premises to be searched need not rest on direct observation, here that observation cannot be replaced by inferences "from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide" evidence of his crime. United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979). A review of the facts alleged in the affidavit reveals only a minimal connection between the instrumentalities of the robbery and the residence, namely, the fact that the car was located in front of the house and that the police somehow knew that the owner's white male son was a frequent driver of the vehicle. The document, however, most notably fails to indicate whether this individual resides at or frequents the searched address. The affidavit provides no particular description of any of the perpetrators of the robbery and therefore makes no effort to establish probable cause to believe that any particular person committed the offense. The perpetrators were described only as white males. The identified car, registered to a white female, was seen being driven only by a white female. No suspicious activity was observed at 371 Elm Street and the affidavit does not link any white males to that address. A commonsense reading of the affidavit indicates that the chain of reasoning lacks an essential link connecting the car to the house. The judge who issued the warrant could not conjure up the necessary link from the insubstantial evidence presented to him.

Neither the parties nor the court have found any case precisely on point. Of the cases cited by the defendant, United States v. Taylor, 599 F.2d 832 (8th Cir.1979), is the most persuasive. In Taylor, the evidence supporting a probability of finding the illegal guns at the address searched was much greater than of finding evidence of the AAA robbery in the 371 Elm Street residence, yet the court found the warrant deficient. Federal agents in Taylor observed the defendant and his alleged co-conspirator walking to and from the house, and they were even spied carrying packages. The warrant was nevertheless found to be invalid because of an insufficient nexus between the address and the contraband; the suspects were never seen actually entering or leaving the abode. Id. at 836-37; also see State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980).

The cases cited by the government are for the most part distinguishable in that the courts in those cases found probable cause to search a suspect's residence and it was clearly set forth in the affidavits that the location was the suspect's residence. It is admittedly proper in many cases to assume that a criminal would hide evidence of his crime at his residence. The affidavit in this case does not allege that a robbery suspect lived at 371 Elm Street, visited there frequently or was seen there during the August 10, 1982 surveillance. See United States v. McNally, 473 F.2d 934 (3d Cir. 1973). Moreover, even with searches of suspects' residences, courts have required a showing of probability that the items sought will be found in a residence. See United States v. Lockett, 674 F.2d 843 (11th Cir.1982); United States v. Charest, 602 F.2d 1015 (1st Cir.1979); United States v. Lucarz, 430 F.2d 1051 (9th Cir.1970); United States v. Flanagan, 423 F.2d 745 (5th Cir.1970).

The government is similarly unpersuasive in relying on Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), to argue that the search of a premises owned by an uninvolved third party was valid. The government misses the point. In Zurcher, the Court found...