Coury v. United States, 19942.

• Decision Date: 03 June 1970
• Docket Number: No. 19942.,19942.
• Citation: 426 F.2d 1354
• Parties: John J. COURY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

426 F.2d 1354 (1970)

John J. COURY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 19942.

United States Court of Appeals, Sixth Circuit.

June 3, 1970.

Robert A. Bell, Columbus, Ohio, for appellant.

Byron E. Trapp, Dept. of Justice, Crim. Div., Washington, D. C., for appellee; Will Wilson, Asst. Atty. Gen., Dept. of Justice, Crim. Div., Washington, D. C., Robert D. Gary, Atty., Dept. of Justice, Cleveland, Ohio, on the brief; Robert B. Krupansky, U. S. Atty., Cleveland, Ohio, of counsel; William W. Milligan, U. S. Atty., Alvin J. McKenna, Asst. U. S. Atty., Columbus, Ohio, on appendix.

Before CELEBREZZE and COMBS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

COMBS, Circuit Judge.

Appellant's home and person were searched and certain property was seized by Special Agents of the Federal Bureau of Investigation pursuant to warrants issued by a United States Commissioner. The property taken included lists of telephone numbers and other paraphernalia usually associated with a bookmaking operation.

Appellant has not been charged with a crime as a result of this search. Less than a month after the search, appellant filed a motion in the district court seeking to quash the two search warrants, to suppress the use of the property as evidence against him, and to have it returned to him. The district court examined the commissioner's finding of probable cause for issuance of the warrants in light of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and denied the motion.

The government argues that this appeal is premature since denial of a pre-indictment motion to suppress is not a final order. As to that part of the motion requesting the suppression of evidence, the government is correct. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Hill v. United States, 346 F.2d 175, 178 (9th Cir. 1965), cert. denied, 382 U.S. 956, 86 S.Ct. 433, 15 L.Ed.2d 361 (1965). See also Benes v. Canary, 224 F.2d 470, 472 (6th Cir. 1955). However, since no criminal charges have been filed against appellant, the motion to return the seized property is an independent proceeding from which an appeal may be taken. DiBella, supra, at 131-132, 82 S.Ct. 654.

Appellant attacks the search warrants on three grounds: (1) they were issued on "ancient" information; (2) all the information submitted to the commissioner was not written before him under oath; and (3) the standards of probable cause as set forth in Spinelli were not met.

We find that the allegations contained in the affidavits were based on information sufficiently current to authorize issuance of the warrants. The affidavit of Special Agent Thomas was dated December 31, 1968, the same day the search was conducted. The affidavits of Special Agents Spears and Bishop were dated December 16 and December 24, 1968. The information contained in these affidavits had been obtained during a pending investigation. It was not ancient. The Thomas affidavit incorporated by reference an attached statement which he had previously written. This statement recited facts within the agent's knowledge upon which he based his belief that appellant was engaged in illegal conspiratorial activity. It was properly before the commissioner. Thomas also had the right to incorporate into his affidavit the sworn statements of Spears and Bishop. As the Supreme Court stated in United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L. Ed.2d 684 (1965):

"Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number."

The commissioner's finding of probable cause was based on the three affidavits and the statement of Special Agent...