Naples v. Maxwell
| Decision Date | 19 April 1968 |
| Docket Number | No. 18099.,18099. |
| Citation | 393 F.2d 615 |
| Parties | Joseph NAPLES, Petitioner-Appellee, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Leo J. Conway, Columbus, Ohio, William B. Saxbe, Atty. Gen. of Ohio, David L. Kessler, Asst. Atty. Gen., on brief, for appellant.
John J. Kane, Jr., Cleveland, Ohio, Dan W. Duffy, Cleveland, Ohio, on brief, for appellee.
Before O'SULLIVAN, PHILLIPS and COMBS, Circuit Judges.
This appeal presents the single question of whether an Ohio search warrant was issued without probable cause in violation of Fourth Amendment standards. The District Court granted a writ of habeas corpus, holding that the affidavit was insufficient under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and that this decision of the Supreme Court should be given retroactive effect. The warden of the Ohio Penitentiary appeals.
This is the second appeal from the action of the District Court in granting a writ of habeas corpus to Naples. On the prior appeal this Court reversed on grounds that did not involve the sufficiency of the affidavit to the search warrant. Naples v. Maxwell, 368 F.2d 219 (6th Cir.), cert. denied, 386 U.S. 971, 87 S.Ct. 1165, 18 L.Ed.2d 131.
Naples was arrested on July 24, 1962, as a result of a search conducted by police officers in Youngstown, Ohio, pursuant to a search warrant issued on that date. Evidence seized by the officers under the search warrant consisted of lottery slips, lottery records, various guns, including automatic weapons, gun silencers and ammunition, a Bolex camera and a mink coat. Naples was convicted and sentenced under an indictment returned by the Grand Jury of Mahoning County, Ohio. The two counts of the indictment involved on this appeal are for unlawfully promoting a numbers game or scheme or chance, for which he was sentenced to a term of from one to ten years, and for receiving and concealing stolen property, for which he was sentenced to a term of from one to seven years, the sentences to run concurrently.
An appeal was perfected to the Ohio Seventh District Court of Appeals, where the judgment of the trial court was affirmed. On appeal to the Supreme Court of Ohio Naples raised the same question presented on the present appeal, i. e., whether the search was illegal because the search warrant was not based on legally sufficient probable cause. The Supreme Court of Ohio dismissed the appeal, State of Ohio v. Naples, 175 Ohio St. 550, 196 N.E.2d 591 (1964), and thereafter denied an application for writ of habeas corpus which raised the same issue. Naples v. Maxwell, 176 Ohio St. 443, 200 N.E.2d 340 (1964).
The affidavit to the search warrant is as follows, with two sentences italicized for emphasis:
AFFIDAVIT FOR SEARCH WARRANT
STATE OF OHIO | County of Mahoning > s.s CITY OF YOUNGSTOWN |
Before me, JUDGE MARTIN P. JOYCE, a Judge of the Municipal Court, personally appeared one GERALD BRACE who being first duly sworn according to law deposes and says:
That he believes and has good cause to believe that on or about the 24th day of July, 1962, in the City of Youngstown, Mahoning County, State of Ohio, Certain property to-wit: Explosives, gambling equipment, guns, narcotics, gambling records & monetary proceeds, stolen goods and any contraband.
In a house, building or place, described as follows, to-wit:
A certain one story brick building, located at and referred to for street purposes as 605 Carlotta dr. is occupied by Joseph Naples.
The affiant says he has good reasons to believe and does believe that the aforesaid property or some part thereof is still kept or concealed at the place aforesaid, and that there is urgent necessity for the search thereof to be made in the (nighttime) or (daytime). This affidavit is based on facts as follows: that affiant has received information which he believes to be reliable and true, that the above named items, or a part thereof, are being unlawfully kept on said premises in violation of law. Informant states that there is a secret room in cellar. Admitted to officers that he is a part of the Naples gambling operation. (Emphasis supplied).
Sworn to before me by Gerald Brace, affiant, and subscribed in my presence this 24th day of July, 1962.
/s/ MARTIN P. JOYCE Judge of the Municipal Court Joseph Naples 24th July 62
The facts underlying the issuance and execution of the search warrant are these: On July 24, 1962, at approximately 11:00 a. m., Detectives Gerald Brace and Martin Krohn of the Youngstown Police Department were called to police headquarters by Lieutenant Michael Carney, who at that time was Acting Chief of the Detective Bureau. Lieutenant Carney directed the two detectives to get a search warrant for the Joseph Naples house and stated that he had been told by an informant that there was a secret room in the cellar of this residence.
Detective Brace thereupon proceeded to type an affidavit for the purpose of obtaining a search warrant for the Naples premises. The statement that Brace believed, and had cause to believe, that gambling equipment, guns, narcotics, explosives, gambling records and monetary proceeds, stolen goods and contraband were in the Naples residence was based upon his knowledge of previous searches1 of the houses of Naples and one of his brothers, and upon Naples' personal admission to Brace that he and his brother were gamblers.
As originally typed by Detective Brace the affidavit did not contain the two sentences italicized above. After filling out the affidavit, and before swearing to it, Detective Brace, accompanied by Detective Krohn, applied to the Honorable Martin P. Joyce, a judge of the Municipal Court of Youngstown, for a search warrant. After examining the affidavit, Judge Joyce concluded that it was not sufficient to justify the issuance of a search warrant. Judge Joyce thereupon asked the two detectives if they had any other information to...
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People v. Sloan, 100580
...For example, this Court commends the procedure used in Naples v. Maxwell, 271 F.Supp. 850 (S.D.Ohio, 1967), rev'd on other grounds 393 F.2d 615 (C.A.6, 1968), in which the magistrate, after eliciting additional necessary information from the requesting officer by oral testimony, appended th......
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