724 F.2d 341 (2nd Cir. 1983), 138, United States v. Travisano
|Docket Nº:||138, Docket 83-1159.|
|Citation:||724 F.2d 341|
|Party Name:||UNITED STATES of America, Appellant, v. Joseph A. TRAVISANO, Defendant-Appellee.|
|Case Date:||December 22, 1983|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Sept. 1, 1983.
Jeremiah F. Donovan, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant.
Richard A. Reeve, Asst. Federal Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., New Haven, Conn., of counsel), for defendant-appellee.
Before KEARSE, CARDAMONE and WINTER, Circuit Judges.
CARDAMONE, Circuit Judge:
Upon application of the local police following a shooting and robbery in August 1982, a Superior Court Judge in Connecticut issued a search warrant for a West Haven residence. The ensuing search failed to unearth the instrumentalities of that crime, but did turn up an unregistered gun which later resulted in a federal indictment being lodged against defendant Joseph Travisano. The indictment charged Travisano with possession of an unregistered short barrelled
Winchester shotgun in violation of 26 U.S.C. Secs. 5861 and 5871 (Count One), and, as a previously convicted felon, with possession of a firearm that had affected commerce in violation of 18 U.S.C.App. Sec. 1202(a) (Count Two). In granting defendant's motion to dismiss both counts of the indictment, the district court set forth its reasons in an opinion, United States v. Travisano, 560 F.Supp. 627 (D.Conn.1983).
While we agree with the trial court's conclusion that Count Two should have been dismissed, since the issue raised by the government is one of first impression we set forth our reasons for affirming on that count in some detail later in this opinion. We reverse and remand for trial on Count One because in our view probable cause did exist for the issuance of the search warrant.
The facts in this kind of case are critical. Here, while concededly close, they are not in dispute. We recite them chronologically.
At 2:13 on Monday afternoon August 9, 1982, two messengers employed by the AAA Motor Club in Hamden, Connecticut were robbed in the AAA parking lot. During the course of the robbery one of the messengers was shot in the face and seriously wounded. The robbers stole an AAA Motor Club flight bag which had three American National Bank bags containing over $35,000 in cash and $45,000 in checks payable to the AAA. Eyewitnesses saw two men flee from the scene of the shooting, run south to the vicinity of a Howard Johnson parking lot and jump into an older-make white Cadillac in which a third male was waiting. The Cadillac carried a vanity plate in front, identified by one witness as "Baby Joe," and the first two letters of the Connecticut license plate mounted on the rear were noted as "YE." The news media reported this incident and broadcast the fact that the police were searching for a white Cadillac bearing a vanity plate.
The next morning--Tuesday, August 10--the West Haven Police, responding to a Connecticut police teletype message sent to give notice of the robbery, advised that one of their officers had observed a vehicle, which matched the one described, on Elm Street in West Haven. At 10:30 a.m. the Hamden police established surveillance of this vehicle which was parked in a driveway at 371 Elm Street and bore Connecticut license plate number YE1034. The police learned that this 1970 white Cadillac was registered to Marie Travisano, a resident at the Elm Street address. West Haven police told the Hamden officers that Marie Travisano's son, Mark, frequently used the Cadillac and that in the past it had carried a vanity plate which the West Haven officers recollected as bearing the legend "Baby John." On the morning of August 10, during the course of the Hamden police surveillance, the automobile was being operated by a white female. It was immediately observed that the identifying vanity plate had been removed. Randy Borruso, one of the eyewitnesses to the shooting, was shown the vehicle while it was parked on Elm Street that morning and he identified it as the white Cadillac he had seen the day before speeding from the scene of the shooting and robbery.
The surveillance was terminated at noon. Within the next hour or so, two Hamden police detectives with combined experience of 39 years as police officers presented the above information in affidavit form to Judge Harrigan, a Superior Court Judge of the State of Connecticut. He signed the search warrant authorizing the Hamden officers to search the white Cadillac and the residence at 371 Elm Street for the AAA Motor Club flight bag, the three American National Bank bags, a .38 caliber handgun, a vanity plate with the legend "Baby John", numerous checks payable to the AAA Motor Club and a large amount of paper currency. The warrant was executed at 2:30 p.m. that same afternoon at the Elm Street address. None of the enumerated items of evidence were discovered, but during the search the police found an unregistered sawed-off shotgun (that was the subject of the motion to suppress) in the front foyer closet of the Elm Street residence.
In suppressing the gun, the illegal possession of which is the gravamen of Count One, the district court found "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." 560 F.Supp. at 629. We disagree. In our view of the law of probable cause, there were sufficient facts before the State Court Judge for him to sign the search warrant.
Countless are the cases that undertake to define probable cause. The recitation of what we believe are the applicable rules to apply in this case will be brief. Searches under the authority of an arbitrarily obtained warrant like the flagrant one in Wilkes v. Wood, 19 Howell's State Trials 1153, 98 Eng.Rep. 489 (K.B.1763), are what prompted the concerns of the framers of the Bill of Rights. In Wilkes, the Secretary of State authorized a general warrant in a search for the author of a pamphlet critical of the King. The warrant did not name any person who could be searched or describe the items to be seized. Under its authority, 49 persons were quickly arrested on suspicion and from them it was learned that John Wilkes might be the author of the offending publication. Armed with that intelligence, the warrant which had been issued three days earlier was immediately executed at Wilkes' home. All his private papers, including his will, were seized by the messengers dispatched for that purpose, after they had forced his cabinet drawers. The wrong done Wilkes was righted after a stirring trial by a jury award of a thousand pounds damages. But, a lesson had been learned from the use to which this general warrant had been put. If a public official could...
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