Conti v. Morgenthau

• Decision Date: 26 August 1964
• Citation: 232 F. Supp. 1004
• Parties: Application of Ralph CONTI and David Newman, Petitioners, v. The Hon. Robert M. MORGENTHAU, United States Attorney, Respondent.
• Court: U.S. District Court — Southern District of New York

232 F. Supp. 1004

Application of Ralph CONTI and David Newman, Petitioners, v. The Hon. Robert M. MORGENTHAU, United States Attorney, Respondent.

United States District Court S. D. New York.

August 26, 1964.

COPYRIGHT MATERIAL OMITTED

Dorsey, Burke & Griffin, New York City, for petitioner Ralph Conti; William T. Griffin, New York City, of counsel.

Irwin Klein, New York City, for petitioner David Newman.

Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, for United States; John E. Sprizzo, Asst. U. S. Atty., of counsel.

WEINFELD, District Judge.

These are separate applications by two petitioners, Ralph Conti and David Newman, to suppress evidence and for the return of property pursuant to Rule 41 (e) of the Federal Rules of Criminal Procedure. The applications will be treated together since, in large measure, they revolve about the same factual situation.

On January 22, 1964, Special Agents of the Internal Revenue Service obtained warrants, one to search Apartment B at 1582 First Avenue, New York City, and another to search an automobile belonging to one Ralph Conti. The warrant to search the apartment was executed that afternoon. During the course of this search the agents arrested Conti and Newman on the premises and charged them with operating a "wire room" without having paid the special occupation tax imposed by 26 U.S.C. § 4411. The agents had no arrest warrants; the arrests were made upon alleged probable cause. Immediately following the arrests and pursuant to the second warrant, the agents searched Conti's unoccupied and locked car which was parked on a street near the premises.

Petitioners seek suppression and return of the items of personal property taken (1) from the apartment, (2) from Conti's person at the apartment and (3) from Conti's automobile. These items include over $1800 in currency, keys, two telephones, electronic devices allegedly suitable for use in gambling operations and assorted papers described as bet slips, tally slips, scratch sheets and other gambling paraphernalia. It is contended that each warrant is insufficient on its face, that there was not probable cause for believing the existence of the grounds on which it was issued, that no probable cause existed for the arrests and, further, that the apartment search warrant was illegally executed.

The Search Warrant for the Apartment

The search warrant for the apartment was issued on the basis of an affidavit sworn to by one Special Agent to the effect that another agent had placed horse bets to a telephone number listed at the described apartment, that "wagers were placed by the Special Agent on January 20 and 21. * * *," and that no one at that address had paid the wagering tax. The allegations, if believed, were sufficient to establish probable cause. It was not unreasonable for the Commissioner to conclude from the sworn information as to the placement and acceptance of bets over a telephone listed at a particular apartment that a wagering operation was being carried on there.¹

The petitioners also attack the sufficiency of the affidavit on the ground that the Special Agent who made the telephone calls and placed the bets was not himself the affiant. These hearsay objections are without substance. It was clear that the allegations of the affiant were predicated upon information imparted to him by a fellow agent whose activities were spelled out. The observations of a fellow agent who acted in an undercover capacity in the course of official duty certainly are as reliable a source of information and as dependable for grounding belief as the word of a known reliable informer.² The official actions of the participating agent and the detailing of his observations provide a "substantial basis for crediting the hearsay."³ The Court concludes that the warrant to search the apartment was validly issued.

The petitioners next contend that, even so, the search was rendered invalid because entry into the apartment was gained in violation of 18 U.S.C. § 3109.⁴ Neither petitioner testified at the hearing in support of his claimed version of the manner in which the warrant was executed. The affidavits of the petitioners' attorneys who were not present are, of course, no substitute for evidence on the issue.

Based primarily upon the testimony of Agents Cotter and Riley, I find that on the afternoon of January 22 agents armed with the search warrant for the apartment secreted themselves at the top of a flight of stairs leading to the basement of 1582 First Avenue; that through a narrow aperture they observed the door of the apartment described in the warrant; that they saw Conti approach and open the door with his own key; that he was inside the vestibule attempting to remove the key from the now open door when Agent Cotter emerged and announced he was a Federal Officer with a warrant to search the apartment; that thereupon Conti, taken by surprise, stepped back and allowed Cotter to pass through the open and unobstructed doorway.

Since the agents identified themselves and announced their authority before entering the apartment and were not denied entrance, § 3109 was not violated.

The petitioners next attack the validity of their arrests once entry was gained into the apartment. In this instance, too, the only witnesses who testified were the government agents. I further find that having crossed the threshold of the apartment Cotter observed petitioner Newman sitting at a table, talking into one of two telephones; that Cotter saw Newman filling out a bet slip evidently in conjunction with the phone call; that Newman's table was littered with bet slips, tally pads and scratch sheets, and that Cotter then placed Newman under arrest for violation of the federal wagering tax law.

Meanwhile, Agent Riley had observed Conti surreptitiously drop his key to the floor and equally surreptitiously discard a large envelope he was carrying. Riley retrieved the envelope which contained basketball schedules of the type allegedly used in gambling operations. Conti gave the agents a name they knew was false and he was then placed under arrest. Then, the agents, pursuant to the search warrant, seized the gambling paraphernalia. The conduct of Newman and Conti gave the agents ample cause to arrest each for a federal crime⁵ committed in their presence,⁶ either as a principal or under the aiding and abetting law, and the search of Conti in the apartment was lawful as an incident of that arrest.

Accordingly, the motion to return the property taken from the premises pursuant to the search warrant and from the person of Conti following his arrest is denied.

The Search of Conti's Automobile

There remains the question of the search of Conti's car immediately following his arrest, a search pursuant to the warrant obtained earlier in the day. Conti attacks the warrant upon the ground of legal insufficiency of the supporting affidavit. The affiant relied upon:

"observation and surveillance by Special Agents of the Internal Revenue Service who — 1) on two occasions observed Ralph Conti, a person known to associate with bookmakers, visit an apartment wherein a telephone is located over which a Special Agent has placed two horse wagers; 2) on the above two occasions Conti was observed leaving the aforementioned apartment carrying a small packet of paper which he placed in the trunk of the above described automobile; 3) that a search of the records of the Internal Revenue Service reveal that Ralph Conti has not paid the Special Tax imposed by Title 26, United States Code, § 4411; 4) that horse wagers were placed by the Special Agent on January 20 and 21, 1964."

A reading of the affidavit exposes the failure to connect Conti's undated visits to the apartment with the bets telephoned to the apartment on January 20 and 21. The affiant failed to allege that Conti's visits coincided with the dates when the bets were placed or indeed that the visits were recent; and no explanation is given as to why the specific dates of his visits are omitted. For aught that appears they could well have occurred weeks or months before the agent telephoned the bets on the 20th and 21st of January. It is evident that the Commissioner accepted without question affiant's statement of probable cause and perfunctorily issued the warrant. There was an inadequate basis for the Commissioner's determination of probable cause.⁷ The matter is one of substance since the proof of the facts relied upon to search must "be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time."⁸ Tested by this standard the affidavit failed to establish probable cause to believe that on or about January 22 Conti's car was being used in connection with the alleged commission of crime.

The Government cannot and does not justify the search as an incident of Conti's arrest since the arrest was not contemporaneous with or in the vicinity of his car which was parked around the corner from the apartment.⁹ Moreover, with Conti already under arrest and the agents in possession of his keys to the locked car, there was no danger of movement of the car or loss of the evidence.¹⁰

The Government, however, does seek to uphold the search of the car on the ground that under all the attendant circumstances it was "reasonable" and hence within the Fourth Amendment. The substance of its position is that when the agents submitted the affidavit in support of the search warrant for the car, they had ample grounds upon which a finding of probable cause could be made by the Commissioner; that the failure to detail the facts essential to uphold the validity of the warrant did not destroy the existence of those facts; that after the issuance of the warrant now declared invalid they obtained fresh reason to believe the automobile contained gambling paraphernalia; that they understandably did not apply for a second warrant after the arrest...