U.S. v. Calisto

• Decision Date: 29 February 1988
• Docket Number: No. 87-1096,87-1096
• Citation: 838 F.2d 711
• Parties: UNITED STATES of America v. CALISTO, Samuel J., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 711

838 F.2d 711

56 USLW 2482

UNITED STATES of America v. CALISTO, Samuel J., Appellant.

No. 87-1096.

United States Court of Appeals Third Circuit.

Argued Sept. 9, 1987.

Decided Feb. 5, 1988.

Rehearing and Rehearing In Banc Denied Feb. 29, 1988.

Gilbert J. Scutti (argued), Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty. Chief of Appeals, Ewald Zittlau (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before SLOVITER and STAPLETON, Circuit Judges, and FISHER, District Judge. ^*

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellant, Samuel Calisto, was charged with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982), and with receipt and possession of firearms after having been convicted of a felony, in violation of 18 U.S.C. Secs. 922(h)(1) and 1202(a)(1) (Appendix) (1982 & 1987 Supp.). He was convicted on all three counts at a bench trial. Calisto's convictions rest on physical evidence seized during a search of his home pursuant to a warrant and on one of two incriminating statements he made during that search. Calisto attempted, without success, to have the physical evidence and the statement suppressed. In this appeal, he argues that the denial of his motion to suppress was reversible error. We will affirm the judgment of the district court.

I.

On the evening of July 4, 1986, Detective Vivino, a Philadelphia police officer participating in an investigation of a man by the name of Frank Aiello, received a telephone call at home from an informant who told Vivino that Aiello had given a suitcase containing a number of pounds of methamphetamine to Calisto for safekeeping at Calisto's residence. The informant also provided some information about when and where this transaction had taken place. Later that evening, Vivino called Agent Dougherty, a Pennsylvania Crime Commission officer with whom Vivino had worked in the past and who was also involved in the Aiello investigation, and passed this information along to him. Vivino's reason for relaying the information to Dougherty in this way was his belief that it would aid Dougherty in his investigation of Aiello. In order to protect his informant from retaliation by those involved in the drug dealing, Vivino requested that Dougherty not reveal that Vivino was the source of the information; Vivino believed that if he were identified, his informant could be as well. Dougherty asked Vivino if the informant was reliable, and was assured that this was the case. Vivino testified at the suppression hearing that his belief in the truthfulness of the information secured from his source was based on several past contacts in which information supplied by the informant had proved to be reliable.

On the following Monday, July 7, 1986, Agent Dougherty shared the information about Calisto with Agent Gilbride of the Drug Enforcement Agency, with whom Dougherty was working on the Aiello investigation. Dougherty asked Gilbride to preserve the anonymity of the Pennsylvania Crime Commission in using the information in order to prevent news of the Commission's interest in Aiello from leaking out. Gilbride inquired of Dougherty whether the source of the information could be relied on, and Dougherty told Gilbride that the source was indeed reliable. Gilbride was not aware at that time that Dougherty's immediate source was another law enforcement officer, and Gilbride did not ask who the source was.

Later that day, Agent Gilbride called Pennsylvania State Trooper Weniger, with whom he had worked in the past, and informed him of the reported Aiello-Calisto transaction. Gilbride told Weniger that the information came from a "confidential source", and that this source had given Gilbride true and reliable drug information in the past. In making these statements, Gilbride was attempting to keep secret the involvement of the Pennsylvania Crime Commission in the investigation of Aiello, as he had been requested to do by Agent Dougherty. Gilbride also informed Weniger that Aiello was entered into the DEA's Narcotic and Dangerous Drug Information System, NADDIS, as a methamphetamine manufacturer.

Weniger proceeded to look up the addresses and arrest records of both Aiello and Calisto, and found that Aiello had a non-drug arrest in 1982 while Calisto apparently had a clean record. Calisto's prior felony conviction, and thus his criminal liability under 18 U.S.C. Secs. 922(h)(1) and 1202(a)(1) (App.), did not come to light until after his arrest. Weniger also contacted Corporal Marinetti, a member of one of the regional narcotics forces of the state police, who told Weniger that his office had received information that Aiello was involved in trafficking and manufacturing methamphetamine. Weniger then called Gilbride back to ask how Gilbride knew the methamphetamine was at Calisto's residence. Gilbride called Dougherty, who called Vivino, who asked his informant; word filtered back to Gilbride that the informant had seen the methamphetamine there. The next day, July 8, 1986, Gilbride reported this to Weniger, who went to a state court bail commissioner to request a search warrant for Calisto's residence.

Thus, the information provided by the original confidential source went to Vivino, to Dougherty, to Gilbride, to Weniger, and ultimately, to the magistrate.

In support of his request for a warrant, Weniger swore to an affidavit which included the following paragraphs, challenged by Calisto as deceptive:

2. On 7 July 86, the affiant received information from Special Agent John GILBRIDE, of DEA-Philadelphia Office, that a Samuel J. CALISTO ... and a Frank A. AIELLO Jr. ... are involved in trafficking narcotics, namely methamphetamine. SA GILBRIDE related that he learned through a confidential source that on 4 July 86, the subject AIELLO gave the subject CALISTO a package that contained between 5 and 10 pounds of methamphetamine. This transaction took place above the GOOD, the BAD & the UGLY BAR, located in South Philadelphia, during the evening hours. CALISTO then took the methamphetamine and placed it in his residence located at 821 Watkins Street, Phila., Penna.

3. On 7 July 86, SA GILBRIDE related to the affiant that his confidential source has provided him with drug information in the past and has proved this information to be true and reliable. SA GILBRIDE has received information from this source on several occasions in the past and on each occasion the source's information has been checked and verified. On every occasion the information was found to be true and correct. SA GILBRIDE feels without a doubt that all information supplied by the source is true.

6. On 8 July 86, the affiant again received information from Special Agent GILBRIDE concerning the activities of CALISTO and AIELLO. SA GILBRIDE related to the affiant that his source advised him, that between 4 July 86 and 6 July 86 the methamphetamine was observed in CALISTO's residence.

Weniger also included in the affidavit Gilbride's statement to him that Aiello was entered in NADDIS as a methamphetamine manufacturer, information about his own efforts to check up on the information provided by Gilbride, and a statement that he knew from experience that traffickers use individuals without criminal records to hold drugs for them.

Calisto's home was searched by a group of law enforcement officers which included members of the Philadelphia Police Department, the Pennsylvania State Police, and the DEA. Weniger read Calisto his rights at the outset of the search, and Calisto chose to remain silent. In the course of the search, Philadelphia Police Officer Shiver found a suitcase of methamphetamine in a second-floor bedroom. He called this information down to Officer McKeefry, also of the Philadelphia Police Department, who arrested Calisto and began rereading him his rights. Shiver meanwhile returned to the second floor, looked around for another half a minute, and came downstairs. He waited until McKeefry had finished, then said to McKeefry that he had found both men's and women's clothing in the bedroom where the methamphetamine had been located. McKeefry responded "Well, then we'll have to get an arrest warrant for the daughter." McKeefry testified that he said this very softly, in "almost a whisper", or at least in a "low-tone voice". Calisto, who had just repeated to McKeefry his wish to remain silent, was sitting nearby; he said "Don't lock my daughter up. She has nothing to do with that stuff. That's mine. I'm the one you want." Calisto later made a second, more incriminating, statement in response to a direct threat to proceed against his daughter.

The police found two guns, both admitted into evidence, in the same bedroom as the drugs. Another gun, ultimately not presented as evidence, was found in an adjacent bedroom together with a large amount of cash. All of the guns, and the cash, were confiscated.

Calisto moved to suppress the drugs, guns, and statements. After a suppression hearing, his motion was denied as to all evidence but the second statement. At the hearing, the trial judge found the following: that Weniger believed in the truth of his affidavit; that the affidavit was, read literally, accurate; that there had been no effort to deceive the bail commissioner; ¹ that there was no evidence that the bail commissioner was deceived by the affidavit; that the omitted information was not crucial to the existence of probable cause to issue a warrant; that the guns were properly seized as items used in drug distribution; and that the first incriminating statement was admissible because it was not a product of custodial interrogation.

II.

Calisto's challenge to the validity of the search is based on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, if a defendant makes a substantial preliminary showing that 1) a false statement was included by...