602 F.2d 1015 (1st Cir. 1979), 78-1524, United States v. Charest
|Citation:||602 F.2d 1015|
|Party Name:||UNITED STATES of America, Appellee, v. Maurice J. CHAREST, Defendant-Appellant.|
|Case Date:||August 01, 1979|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Argued May 8, 1979.
Michael Avery, Boston, Mass., by appointment of the Court, for defendant-appellant.
Joan C. Stanley, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MURRAY, Senior District Judge. [*]
BOWNES, Circuit Judge.
This is an appeal from a conviction for possession and receipt of a firearm, defendant having previously been convicted of a felony, in violation of 18 U.S.C. § 922(h)(1) and 18 U.S.C.App. § 1202(a)(1). The appeal focuses solely on the legality of the seizure at the home of defendant-appellant of the firearm on which the prosecution was based. Appellant attacks the warrant on a number of grounds. Since we find the warrant was invalid because the affidavit failed to supply a sufficient nexus between the
firearm and defendant's premises, we treat only this issue.
The base point for a determination of whether there was probable cause for issuing a search warrant is Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), reaffirmed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). There must be a "substantial basis" for the magistrate, in this case the Assistant Clerk of the Second District Court of Bristol, Massachusetts, to conclude that evidence of the crime would be found at defendant's home. Aguilar v. Texas, supra, 378 U.S., at 111, 84 S.Ct. 1509 citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The affidavit must contain facts or circumstances from which the magistrate can make such a determination. Spinelli v. United States, supra, 393 U.S., at 416, 89 S.Ct. 584. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933).
The essential facts here can be stated as follows. On April 3, 1977, Dennis Raimondi was found dead from gunshot wounds in his home in Somerset, Massachusetts. During the police investigation, one Robin Raposa was uncovered as a witness. She told the police that she had seen the murder and initially identified one John Lopes as the person who shot Raimondi. She later changed her story and identified defendant as the killer. Sergeant Francis McDonald of the Fall River, Massachusetts, Police Force obtained both an arrest warrant and a search warrant on April 19, 1977, for the defendant's premises at 84 Danforth Street, Fall River. The gun in question was taken from a bedroom closet shelf. The affidavit for the search warrant states:
The property for which I seek the issuance of a search warrant is the following: (describe property as particularly as possible).
1- Handgun capable of firing a 38 calibre projectile.
Attached to the face page of the affidavit is the following statement:
The following which leads me to believe that Maurice Charest was in possession of a hand gun and certain clothing on our (sic) about April 1, 1977. On April 3, 1977 the dead body of Dennis Raimondi was found inside a house on Wilbur Avenue...
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