596 F.2d 492 (1st Cir. 1979), 78-1437, United States v. Melvin

Docket Nº:78-1437.
Citation:596 F.2d 492
Party Name:UNITED STATES of America, Appellee, v. James Francis MELVIN, Defendant, Appellant.
Case Date:April 13, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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596 F.2d 492 (1st Cir. 1979)

UNITED STATES of America, Appellee,


James Francis MELVIN, Defendant, Appellant.

No. 78-1437.

United States Court of Appeals, First Circuit

April 13, 1979

Argued Jan. 2, 1979.

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Martin G. Weinberg, Boston, Mass., with whom Judith H. Mizner, and Oteri & Weinberg, Boston, Mass., were on brief, for defendant, appellant.

Robert B. Collings, First Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom Edward F. Harrington,

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U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal by James Francis Melvin from his conviction for the possession of two firearms, a sawed-off shotgun and a sawed-off carbine, which were not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). The guns were discovered and seized by police officers during a search of Melvin's home pursuant to a warrant. Melvin contends that the district court erred in refusing to suppress the firearms as evidence against him at trial. He argues (1) that the search warrant was issued without probable cause; (2) that it was issued upon an affidavit containing a material false statement made in reckless disregard for the truth; and (3) that the seized weapons were the fruits of an interrogation conducted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As we conclude that the district court properly admitted the seized firearms into evidence, we affirm the conviction.


We address first the question of probable cause. The warrant, authorizing the search of appellant's home at 38 Ells Avenue, Weymouth, was issued by a justice of the Massachusetts Superior Court upon the affidavit of Detective John E. Lydstone of the Boston Police Department. The objects sought by the search as authorized by the warrant were instrumentalities used in the commission of a bombing, not the firearms which were found and introduced against appellant at trial. 1

In passing on the probable cause basis for the search warrant, we may consider only information brought to the issuing judge's attention. Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The judge issued the warrant solely on the basis of Detective Lydstone's affidavit, which stated the facts in material respects as follows. At approximately 4:00 a. m. on November 18, 1976, there was an explosion at Rooney's Tavern in Dorchester, Massachusetts. Patrolman Arnstein of the Boston Police Department arrived at the tavern a few minutes after the explosion. According to the affidavit, shortly after Arnstein's arrival "an unknown male stated that a white Cadillac had left the scene moments before the explosion." Earlier that morning, at about 2:00 a. m., Arnstein while patrolling the area had noticed a white Cadillac parked in front of Rooney's Tavern and a white male, about 35 years old, 5'10 tall, and 180 lbs., standing at the tavern's front door. Detective Lydstone in the affidavit affirmed further:

"(5) That I gave photographs of persons known by me to frequent the area of Rooney's Tavern and Patrolman Arnstein indicated that a photograph of James Melvin bore a strong resemblance to the man that he had seen at the Tavern door at 2:00 AM that morning.

"(6) That James Melvin is a white male, 34 years, 5'-9 , 165 lbs. is listed as an owner of Rooney's Tavern and that he operates a 1976 Cadillac, color white, Mass. Reg. D66-105 and he resides at 38 Ells Ave., Weymouth.

"(7) That at about 10:00 PM Thursday, November 18, 1976, Detective Martin Coleman of the Intelligence Division responded to 38 Ells Ave., Weymouth and observed that the white Cadillac belonging to Melvin was parked at that location."

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Lydstone stated also that Sergeant Ruglario and Patrolman Cunningham of the Boston Police Department's bomb squad reported finding at the rear of the tavern a 103 foot length of brown wire and another length of similar brown wire inside the tavern, the latter attached to yellow and blue wires of the type and in a configuration consistent with use in detonating a stick of dynamite, and that "(i)t is the opinion of these bomb squad officers that the above paraphernalia was in fact used to cause the explosions at Rooney's Tavern." Finally, Detective Lydstone requested a warrant for the following reasons:

"(8) That I have discussed the above stated facts and their inferences with other members of the Intelligence Division and it is our collective opinion that there is probable cause to believe that James F. Melvin was responsible for the explosion at Rooney's Tavern and respectfully request that the Court issue search warrant for Melvin's white Cadillac, Mass. Reg. D66-105.

"(9) I have discussed the facts and inferences of this case with Sgt. Ruglario and Patrolman Cunningham of the Bomb Squad. They inform me that the type of device capable of causing the above damage (at Rooney's Tavern) would generally be assembled in a workshop of some sort, as opposed to in the vehicle, because of the type of tools and materials needed to assemble the bomb. Therefore, I also request a search warrant for James Melvin's residence at 38 Ells Avenue, Weymouth, Massachusetts. That residence is described as a single-family, brown, two-story house with a garage attached."

The warrant was issued on November 19 and the search conducted later that day.

The fourth amendment protects against "unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause." The Supreme Court in Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), summarized the principles that govern the issuance and review of search warrants. These "established propositions" are,

"that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, (85 S.Ct. 223, 228, 13 L.Ed.2d 142) (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, (87 S.Ct. 1056, 1062, 18 L.Ed.2d 62) (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, (85 S.Ct. 741, 745, 13 L.Ed.2d 684) (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, (80 S.Ct. 725, 735-736, 4 L.Ed.2d 697) (1960)."

Appellant misapprehends two fourth amendment principles which we wish to clarify at the outset. First, appellant reads the phrase "probable cause" with emphasis on the word "probable," and would define it mathematically to mean "more likely than not" or "by a preponderance of the evidence." This reading is incorrect. The phrase is less stringent than that the words " reasonable cause" are perhaps closer to what is meant. The Supreme Court has asserted that " 'reasonableness' is the overriding test of compliance with the Fourth Amendment," Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525 (1978); has approvingly quoted authority equating "probable cause" with "reasonable grounds to believe," Id. at 556 n.6, 98 S.Ct. 1970; and has even used the phrases "reasonable cause" and "probable cause" interchangeably, Compare id. at 556, 98 S.Ct. 1970, With id. at 557, 98 S.Ct. 1970. See also Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Appellant's second misunderstanding is his contention that for the warrant to have been proper there had to have been probable cause to believe that he was responsible for the explosion. This would

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mean that the search of appellant's home was improper unless the police had sufficient evidence prior to the search to arrest him. Such a requirement would render property searches ineffective as tools of criminal investigations in many cases, and it has been rejected by the Supreme Court. The Court has ruled that " '(o)nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of ('fruits, instrumentalities, or evidence,' See 436 U.S. at 554, 98 S.Ct. 1970,) of the crime.' " Zurcher v. Stanford Daily, 436 U.S. at 558, 98 S.Ct. at 1978, Quoting United States v. Manufacturers National Bank,536 F.2d 699, 703 (6th Cir. 1976), Cert. denied sub nom. Wingate v. United States, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 749 (1977). Moreover, the Court has declared that "it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest." 436 U.S. at 559, 98 S.Ct. at 1978. It is true that Zurcher involved a search of property possessed by a third party who was not suspected of the criminal activity being investigated, and held only that such a nonsuspect's property could be searched without probable cause to arrest him. But, the rule is obviously the same with respect to a person who the police do indeed suspect but do not have probable cause to arrest; such a person's property may be searched upon probable cause to believe that fruits, instrumentalities, or evidence of the crime are present, even though the products of the search may implicate him. Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 69 L.Ed. 543 (1925); 436 U.S. at 556-58, 98 S.Ct. 1970.

In this case it is undisputed that the judge who issued the warrant had probable cause to believe that a crime had been committed. Whether he...

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