U.S. v. Basso, 1224

• Decision Date: 23 September 1980
• Docket Number: D,No. 1224,1224
• Citation: 632 F.2d 1007
• Parties: UNITED STATES of America, Appellant, v. Salvador Charles BASSO, Defendant-Appellee. ocket 79-1464.
• Court: U.S. Court of Appeals — Second Circuit

Page 1007

632 F.2d 1007

UNITED STATES of America, Appellant, v. Salvador Charles BASSO, Defendant-Appellee.

No. 1224, Docket 79-1464.

United States Court of Appeals, Second Circuit.

Argued May 14, 1980.

Decided Sept. 23, 1980.

Carolyn L. Gaines, Atty., Dept. of Justice, Washington, D. C. (Richard Blumenthal, U. S. Atty., D. Conn., New Haven, Conn., Sidney M. Glazer, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellant.

J. Daniel Sagarin, Milford, Conn. (William B. Barnes, Harrigan, Hurwitz, Sagarin & Rutkin, Milford, Conn., of counsel), for defendant-appellee.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

MANSFIELD, Circuit Judge:

The Government appeals from an order of the District Court for the District of Connecticut entered by Judge Ellen Bree Burns quashing an arrest warrant for violation of probation issued against appellee Salvador Basso under the authority of 18 U.S.C. § 3653. ¹ For the reasons stated below we reverse.

Basso was indicted by the grand jury for tax evasion, and on November 22, 1976, he pleaded nolo contendere to one count alleging such evasion in 1969. Thereafter, on January 14, 1977, Judge Zampano of the District of Connecticut sentenced Basso to a three-year term, execution of which was suspended, with Basso placed on two years probation and fined $4,000. Basso subsequently paid the fine in full.

Basso was initially assigned to Probation Officer Joseph Gagne, who informed him of the conditions of his probation. Condition 2 required that "You shall associate only with law-abiding persons. . . ." Officer Gagne explained this condition to Basso in detail, advising him that he could not associate with persons who had a criminal record, were engaged in ongoing criminal activity, or were on probation or parole.

On November 28, 1978, Officer Gagne was transferred to another probation district and Officer David Pond took over supervision of Basso's probation. After examining Basso's file, Officer Pond spoke to State Trooper Robert Blair, an undercover policeman investigating a so-called "Pizza Village" drug conspiracy, who had written a report on January 30, 1978, describing a meeting attended by Basso and several convicted criminals and alleged members of the Pizza Village conspiracy. Trooper Blair stated that Basso had called the meeting, which took place at the Pin-Up Restaurant in Bridgeport, Connecticut, to mediate a dispute over certain gambling interests. One week later, Officer Pond met with Basso, and on the following day, December 13, 1978, he petitioned Judge Zampano for a warrant for Basso's arrest for violating probation.

Officer Pond's petition for an arrest warrant, which was made on Probation Form No. 12, stated in pertinent part:

"Comes now David W. Pond PROBATION OFFICER OF THE COURT presenting an official report upon the conduct and attitude of probationer Salvador Charles Basso. . . .

"RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWs:

On October 21, 1977, at the Pin-Up Restaurant/Lounge, Fairfield Avenue, Bridgeport, Connecticut, probationer Basso is alleged to have met with Ilario 'Lefty' Regina, William Herman Dorman and Arnold Francis Russo, all of whom have criminal records, all in violation of Condition No. 2 of the Conditions of Probation, which states that, 'you shall associate only with law-abiding persons' ...."

"PRAYING THAT THE COURT WILL ORDER a Warrant to issue, said Warrant to serve as a temporary mittimus pending arraignment."

Officer Pond supported Form No. 12 with a two-page memorandum prepared by him, which detailed what Trooper Blair had told him and concluded that Basso was "viewed by law enforcement authorities as a well insulated and low key Mafia figure...."

Judge Zampano did not immediately issue the warrant but suggested that Officer Pond speak with Assistant U. S. Attorney James Pickerstein, who was familiar with the Pizza Village investigation. On December 18 Attorney Pickerstein accompanied the probation officers to Judge Zampano's chambers, and spoke in support of the sufficiency of the allegations. Judge Zampano then signed the warrant.

Basso appeared voluntarily before a magistrate in response to the warrant, and was released on his own recognizance. He then filed several motions, including a motion to dismiss the petition for revocation of probation and to quash the arrest warrant for violating probation on the ground that it was unsupported by probable cause. At a February 22, 1979, hearing before Judge Zampano on the motion to dismiss, Judge Zampano referred to the two-page memorandum supporting Officer Pond's application on Form No. 12. Basso's attorney advised that he had no knowledge of the memorandum, which had not been made part of the court file. Judge Zampano had placed the memorandum under seal because it contained confidential information about undercover activity, stating that it could be unsealed by either court order or consent of the Government (the document remained sealed until March 5, 1979, when the Government consented to unseal it). Judge Zampano then transferred the case to Judge Burns in the interest of "the appearance of impartiality," since he had signed the warrant under attack. On November 2, 1979, Judge Burns issued a 41-page Memorandum of Decision quashing the arrest warrant.

Judge Burns found no constitutional infirmity in Probation Condition No. 2's requirement that Basso "associate only with the law-abiding persons." She also stated that "the United States Probation Office, and Officer Pond, did not abuse their discretion or act arbitrarily in prosecuting the charge against Basso, and that there was probable cause to believe Basso had violated Condition No. 2." However, she held that Basso's due process and Fourth Amendment rights had been violated by the warrant for his arrest. In her view the sufficiency of Officer Pond's application must be determined upon his Form No. 12 petition, without regard to the two-page memorandum supporting it, because the contents of the memorandum were not disclosed to the petitioner and were not within the Form No. 12. She also appears to have acted on the ground that the warrant application was insufficiently supported by oath or affirmation. Finally, after observing that "some factual basis for the arrest warrant was necessary for the issuing judge to determine the existence of probable cause," ² she held that the petition on Form No. 12 failed to contain the requisite factual basis and quashed the warrant.

The United States appeals from the order quashing the arrest warrant.

DISCUSSION

The procedural stance of this case is somewhat uncertain. Although Basso's motion to quash the arrest warrant was granted, the district court took no formal action with respect to his motion to dismiss all probation revocation proceedings against him. Absent a dismissal, the Probation Office can issue an order to show cause why Basso's probation should not be revoked, thereby compelling his appearance without use of a warrant; in the alternative it can issue a new warrant for Basso's arrest, support by a formal oath or affirmation and alleging sufficient facts to establish probable cause under the warrant. Judge Burns acknowledged that sufficient information exists to establish probable cause that Basso violated the conditions of his probation. She quashed the warrant only because she thought the application for it failed to allege those facts properly.

The Government has not pursued these courses, ³ apparently because it believes that the Memorandum of Decision below was intended to dismiss the probation revocation proceedings with prejudice to any further proceedings based on Basso's alleged meeting with nonlaw-abiding persons at the Pin-Up Restaurant on October 21, 1977.

A dismissal would clearly be erroneous. "(A)n illegal arrest, without more, ha(s) never been viewed as a bar to subsequent prosecution, nor as a defense." United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1281, 63 L.Ed.2d 537 (March 25, 1980). Accord, Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 441, 7 S.Ct. 225, 228, 30 L.Ed. 421 (1886). The Supreme Court in Crews was unanimous on this point, see 445 U.S. at 447, 100 S.Ct. at 1253. (Powell, J., concurring); id. (White, J., concurring). Though evidence obtained as a direct result of an unlawful arrest is sometimes suppressed, see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); but cf. United States v. Frederickson, 581 F.2d 711, 713, 714 (8th Cir. 1978) (exclusionary rule does not apply in probation revocation proceedings); United States v. Wiygul, 578 F.2d 577, 578 (5th Cir. 1978) (same); United States v. Winsett, 518 F.2d 51, 53-55 (9th Cir. 1975) (same); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975) (same); United States v. Delago, 377 F.Supp. 708, 712 (S.D.N.Y.1974) (same), the Government in such cases is required only to purge the taint of illegally obtained evidence from its case, not to drop the case against the alleged wrongdoer. See Payton v. New York, 445 U.S. 445, 573, 100 S.Ct. 1371, 1383, n.34, 63 L.Ed.2d 639 (1980).

Absent prejudice to the arrestee's defense, then, the Government may continue its proceedings against him as if the illegal action had never taken place. In Gerstein v. Pugh, supra, for example, the defendant was arrested and jailed pending trial without a finding of probable cause on the basis of a prosecutor's information. While the Supreme Court held that every jailed person has a right to a judicial determination of probable cause either before or shortly after detention, it stressed that "a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of...