U.S. v. Belculfine

Decision Date06 December 1974
Docket NumberNo. 74-1110,74-1110
PartiesUNITED STATES of America, Appellee, v. Joseph L. BELCULFINE, Defendant-Appellant.
CourtU.S. Court of Appeals — First Circuit

Robert Snider, Boston, Mass., for defendant-appellant.

Alan R. Hoffman, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., was on brief for appellee.

Before COFFIN, Chief Judge, MOORE * and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted in the United States District Court for the District of Massachusetts of the possession and mailing of a pipe bomb. The bomb, contained in a package addressed to the Worcester Music Co., exploded in the South Boston Postal Annex. Investigation by postal authorities revealed that the explosion had been caused by a home-made bomb charged with black powder, and triggered by a device wired to attached batteries by means of soldered circuits. Officials of the Worcester Music Co. told postal inspectors that appellant had been employed by Worcester as a service manager; that he had knowledge of electrical circuitry and soldering; that appellant and another former employee of Worcester were the proprietors of Bell Music and Amusement Co., against which Worcester had obtained an $80,000 judgment for breach of a covenant not to compete; and that Bell Music would be apt to have a workshop equipped to do electrical soldering.

Subsequently, the postal inspectors received a report from the Postal Service Crime Laboratory that appellant's thumb print had been identified on the inner wrappings of the parcel which had contained the bomb. The postal inspectors secured from a magistrate a warrant to search the premises of Bell Music and Amusement Co. In the affidavit submitted in support of their application for the warrant, the inspectors recounted the above described results of their investigation and stated:

'12. On several occasions between July 26 and August 8, 1973, we went to the premises of Bell Music and Amusement Company, Inc., at 1 Pineland Avenue, Shrewsbury, Massachusetts, looked through the glass window. The premises consisted of a front office with one desk and file cabinets. To the rear of this office through a door partially open, we observed a wooden bench and table.'

The present appeal arises out of the refusal of the district court to suppress the fruits of the search of Bell Music, strands of wire similar to that used in the construction of the bomb. Appellant contends that the inspectors' representation that they had observed a wooden bench and table in the Bell Music establishment was false, that evidence presented at the suppression hearing made it apparent that they could not have seen what they said they saw, and that they admitted as much in their testimony at the hearing. 1

A little over a decade ago the Supreme Court noted that it had

'. . . never passed directly on the extent to which a court may permit (examination of the validity of a search warrant) when the search warrant is valid on its face and when the allegations of the underlying affidavit establish 'probable cause'.' Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 827-828, 11 L.Ed.2d 887 (1964).

This observation came amid a slow thaw in the rigidity of the rule which had long predominated among the circuit courts that judicial scrutiny of the propriety of the issuance of a warrant could not probe beneath the surface of the supporting affidavits. 2 In several circuits the process of reassessment has culminated in the adoption of general standards which permit examination of the accuracy of affidavits underlying a warrant in a variety of circumstances. In United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), the Seventh Circuit ruled that a defendant is

'. . . entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the governmnment agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material.' 489 F.2d at 988.

Evidence should be suppressed, the court ruled, only if after the hearing the trial court finds the government agent to have been 'recklessly or intentionally untruthful'. Ibid. Upon such a finding, evidence resulting from a search pursuant to a warrant based on the untruthful affidavit must be suppressed, the court held, regardless of whether, absent the misrepresentative portions, the affidavit still establishes probable cause. 3

The Fifth Circuit, in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), discussed the rule established by the Seventh Circuit in Carmichael, and adopted a rule which is similar, but marked by two important variations. Evidence should be suppressed, the court ruled, if the warrant was issued on the basis of an affidavit containing a misstatement that

'. . . (1) was committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made non-intentionally, but the erroneous statement is material to the establishment of probable cause for the search.' 489 F.2d at 669.

The Fifth Circuit's formulation of the rule, unlike the Seventh Circuit's would hold a warrant invalid if the underlying affidavit contained a negligent but unintentional misrepresentation that was material. 4 A second distinction between the rules set forth in the two decisions is that the Fifth Circuit explicitly requires that a non-material misrepresentation must have been made with an intent to deceive the magistrate if it is to vitiate the resulting warrant. The Seventh Circuit's rule seems to contemplate no determination of whether the affiant intended to deceive the magistrate. 5

In essence the two rules reflect differing pragmatic judgments of what sort of misconduct-- negligent or intentional, flagrant or trivial-- can and ought to be deterred by the suppression of evidence at trial. At what point does the increase in deterrence effected by an expansion of the Fourth Amendment rights of defendants become so marginal that it does not warrant the hindrance to successful prosecution of the guilty which results?

'The rule is calculated to prevent, not to repair. Its purpose is clear-- to compel respect for the constitutional guaranty in the only effectively available way-- by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

We find perplexing the question of the prophylactic value of the exclusion of evidence secured with a warrant issued in reliance on negligent and material, but not intentional misstatements. At this stage of development of legal doctrine, we would hesitate to adopt a position for this circuit on a hypothetical basis. Suffice it to say that, as we view the record, the question is not before us, and we imply no views as to the answer. 6

We find the misstatements at issue in the present appeal non-material. The testimony and photographic evidence adduced at the suppression hearing establish conclusively that the statement in the affidavit that 'to the rear of this office through a door partially open, we observed a wooden bench and table' was incorrect. 7 Excising that paragraph of the affidavit, however, we still find at least the minimal requirements for probable cause satisfied. The affidavit truthfully recounted the statements of the Worcester Music Company officials that they had won a substantial judgment against appellant and Bell Music, that appellant had electrical wiring skills, and that Bell Music would probably have a workshop facility. Combined with the information supplied by the Postal Service Crime Laboratory with respect to the manner of construction of the bomb and the identification of appellant's thumb print on the wrappings of the bomb, these facts viewed in a commonsense manner were sufficient to establish probable cause for a search of Bell Music. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966).

That we regard the misstatement in the affidavit as immaterial in the sense of not being a 'but for essential' of probable cause, however, does not dispose of the case. The fact that the investigating agents had actually seen a workbench within the Bell Music premises may have carried great weight with the magistrate, for it both provided an independent fact supporting a finding of probable cause, and verified by observation the educated guess given by the Worcester Music officials, thus strengthening the credibility of all they said. It changed a marginally adequate affidavit into a solidly persuasive one. A knowing misstatement of so significant a fact would exhibit exactly that quality of unscrupled zeal which impelled the adoption of the exclusionary rule.

We are sensitive to the fact that allowances must be made for errors in judgment, observation, or memory on the part of fallible human beings endeavoring faithfully to carry out the duties of office, sometimes under conditions of great pressure. But we see no policy reason for overlooking intentional, relevant, and non-trivial misstatements in an affidavit which could subject any maker of such, be he an official or a private citizen, to a fine or imprisonment for perjury under 18 U.S.C. 1621. 8 Indeed policy suggests particular sensitivity to such misstatements in an affidavit for a search warrant which is necessarily granted ex parte, and in complete reliance upon the truthfulness of the statements in the affidavit. The major reliance for implementation of the Fourth Amendment is a warrant, a judgment of probable cause, i.e., a conclusion that there exist 'reasonable grounds to believe-- that criminally related objects are in the place which the warrant authorizes to be searched, at the time when the search is authorized to...

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46 cases
  • People v. Cook
    • United States
    • California Supreme Court
    • September 8, 1978
    ...marginal affidavit by letting their intense dedication to duty blur the distinction between fact and fantasy." (United States v. Belculfine (1st Cir. 1974) 508 F.2d 58, 63.) That incentive will be removed if the result of uncovering perjury in the affidavit is to quash the warrant and suppr......
  • Com. v. Reynolds
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 30, 1977
    ...1976); United States v. Luna, 525 F.2d 4 (6th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976); United States v. Belculfine, 508 F.2d 58, on remand, D.C., 395 F.Supp. 7, aff'd, 527 F.2d 941 (1st Cir. 1975); United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), c......
  • United States ex rel. Petillo v. State of NJ
    • United States
    • U.S. District Court — District of New Jersey
    • September 18, 1975
    ...has the right to inquire into the truthfulness of the underlying affidavits, at least under some circumstances. United States v. Belculfine, 508 F.2d 58, 63 (1st Cir. 1974) (intentional misstatements invalidate the warrant); United States v. Gonzalez, 488 F.2d 833 (2nd Cir. 1973) (dicta); K......
  • U.S. v. Vento
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 7, 1976
    ...accord, United States v. Hunt, 496 F.2d 888, 894 (5th Cir. 1974).55 515 F.2d at 41-42. For similar results, see United States v. Belculfine, 508 F.2d 58 (1st Cir. 1974); United States v. Baynes, 400 F.Supp. 285, 296-97 (E.D.Pa.1975), appeal docketed, No. 75-1435 et al., 3d Cir., Apr. 30, 19......
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1 books & journal articles
  • Bearing false witness: perjured affidavits and the Fourth Amendment.
    • United States
    • Suffolk University Law Review Vol. 41 No. 3, June 2008
    • June 22, 2008
    ...issue also permitted such veracity challenges to warrant applications. Id. at 159 n.3, 176-80. (81.) Compare United States v. Belculfine, 508 F.2d 58, 63 (1st Cir. 1974) (holding warrant invalidated only if false statement was both intentional and "non-trivial" to the issue of probable caus......

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