U.S. v. Conley

• Citation: 4 F.3d 1200
• Decision Date: 16 September 1993
• Docket Number: No. 93-3095,93-3095
• Parties: UNITED STATES of America, Appellant, v. John F. "Duffy" CONLEY; William C. Curtin; Sheila F. Smith; John Francis "Jack" Conley; Thomas "Bud" McGrath; Mark A. Abbott; Thomas Rossi; William Steinhart; Roberta Fleagle; Robin Spratt; Monica C. Kail; William J. Reed; Joanne T. Smith; Kenneth "Ron" Goodwin; Lawrence N. "Neudy" Demino, Sr.; Christopher "Chris" Kail; Joseph A. Devita; Frank Garofalo; Thomas D. Ciocco; Michael Sukaly; Phillip M. "Mike" Farrell; Amestos "Naz" Rodites; William E. Rusin.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1200

4 F.3d 1200

UNITED STATES of America, Appellant, v. John F. "Duffy" CONLEY; William C. Curtin; Sheila F Smith; John Francis "Jack" Conley; Thomas "Bud" McGrath Mark A. Abbott; Thomas Rossi; William Steinhart; Roberta Fleagle; Robin Spratt; Monica C. Kail; William J. Reed Joanne T. Smith; Kenneth "Ron" Goodwin; Lawrence N "Neudy" Demino, Sr.; Christopher "Chris" Kail; Joseph A. Devita; Frank Garofalo; Thomas D. Ciocco; Michael Sukaly; Phillip M. "Mike" Farrell; Amestos "Naz" Rodites; William E. Rusin.

No. 93-3095.

United States Court of Appeals, Third Circuit.

Argued Aug. 11, 1993.

Decided Sept. 16, 1993.

Thomas W. Corbett, Jr., U.S. Atty., Michael L. Ivory (Argued), Asst. U.S. Atty., Pittsburgh, PA, for appellant U.S.

Alisa N. Carr (Argued), Laughlin, Difenderfer & Boyle, Pittsburgh, PA, for appellee John F. "Duffy" Conley.

Gary Gerson, Pittsburgh, PA, for appellee John Francis "Jack" Conley.

Ellen M. Viakley (Argued), Pittsburgh, PA, for appellee Sheila F. Smith.

Before: SCIRICA, COWEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

The United States appeals from an order entered by the district judge suppressing evidence obtained by police pursuant to a search warrant. The district court concluded that the search warrant was not supported by probable cause and suppressed from evidence the fruits of the search, 813 F.Supp. 372. Because we find that the district court applied an unduly narrow standard for evaluating probable cause, and the search warrant is supported by probable cause, we will reverse.

I.

On September 23, 1988, members of the City of Pittsburgh Police Department executed a search warrant for a commercial building located at 930 Saw Mill Run Boulevard in the City of Pittsburgh. Earlier that day, Detective John Bosetti presented an application and affidavit of probable cause for a search warrant to District Justice Anne Marie Scharding ("the magistrate"). Bosetti, at the time, was involved in an investigation of illegal gambling activity involving video poker machines. The major issue presented in this case is whether the affidavit on its face provided a substantial basis for the magistrate's finding of probable cause. Accordingly, we set forth in full the statements contained in Bosetti's affidavit:

In June of 1988, affiant began an investigation into a gambling operation, involving video poker machines. During this time frame, affiant and other Dets [Detectives] from the Pittsburgh Police Organized Crime Unit, visited over fifty (50) various locations, throughtout [sic] the City of Pittsburgh, that contained video poker machines. Dets were able to play, at random, these poker machines and received cash payments/pay-offs for credits they had accumulated, in fortynine [sic] (49) different locations. During this period, Dets observed numerous cash pay-offs to other individuals that were playing poker machines and had aquired [sic] the set amount of credits needed. A detailed accounting of every location is given in each affidavit for search warrant. The City of Pgh, requires a permit for anytype [sic] of video/mechanical amusement device that is placed inside a particular business and made available to the public. Once the establishment registers, they are given a plaque which must be placed inside the premises so it can be viewed by the public. Dets found that of the 49 locations visited, 42 listed Duffy's Vending Co [sic] as the owner of the video poker machines. Dets then examined the permit application form, from these 42 locations and found that Duffy's Vending Co., lists it's [sic] business address as 930 Sawmill Run Blvd., Pgh, Pa. 15220.

On Sep [sic] 15, 1988, affiant observed a Ford pick-up truck transporting a load, of what appeared to be video devices, covered in black plastic. For intelligence purposes, affiant checked the registration plate, Pa# YC-42550 and found it to be registered to Duffy's Vending Co., 930 Sawmill Run Blvd.

The telephone number, 431-6582, is listed as the telephone number for Duffy's Vending Co., as stated on the application for the City of Pgh license permits. Affiant called this number on Sep [sic] 22, 1988 and found it be answered "Duffy's Vending". Affiant checked the Bell of Pa [sic] yellow pages, both Consumer and Business to Business, but found no listing for Duffy's Vending Co.

On March 16, 1988, John Duffy Conley was found guilty for violating Sec # 5513, [sic] of the Pa [sic] Crimes Code, Gambling Devices. John Duffy Conley is listed as the individual owner of Duffys [sic] Vending Co. This conviction was a result of an investigation, inwhich [sic] affiant participated in, that lead to Conleys [sic] arrest for his involvement [sic] in the Slovak Civic Federation of Allegheny County, AKA Slovak Club. In summary, Dets entered the Slovak Club on [sic] various times allowing them to play various machines. They were able to obtain a cash pay-off after accumulating the required amount of credits on the video poker machines.

Based on the above information, affiant concludes that the business address of Duffy's Vending Co., is 930 Sawmill Run Blvd., Pittsburgh, Pa. 15220 and request [sic] that this search warrant be issued in an effort to gain a better insight into the internal works of this gambling operation. Therefore I request that a search warrant be issued.

App. at 42(a)-43.

The magistrate reviewed the affidavit and application, found probable cause to search the building located at 930 Saw Mill Run Blvd., and issued a warrant which authorized the search and seizure of the following items:

All video poker machines, keys for machines, accounting records, all revenue records, employee records, purchase orders from distributors and manufactors [sic] of video poker machines, all records showing poker machine locations and any and all paraphernalia indicative of a gambling operation.

App. at 42. The warrant was executed on September 23, 1988. The search resulted in the seizure of documentary evidence relevant to Duffy Vending Company. Among the items seized were several bundles of canceled checks for Duffy Vending, personnel record sheets, written notes pertaining to Duffy Vending, sales receipts and several documents concerning employees of Duffy Vending.

As a result of the investigation and search, a federal grand jury returned an indictment against John F. "Duffy" Conley; John F. "Jack" Conley; Sheila F. Smith and others. The indictment included charges that the defendants had engaged in an illegal gambling business and a gambling conspiracy involving video poker machines in violation of 18 U.S.C. Secs. 371 and 1955.

Defendants filed a motion to suppress the evidence seized pursuant to the warrant, and an evidentiary hearing was held before the district court. The district court granted the motions to suppress the evidence seized at 930 Saw Mill Run Blvd., holding that the affidavit in support of the search warrant was insufficient to indicate probable cause for the intended search. The government appeals the suppression order. We have jurisdiction to hear this appeal by virtue of 18 U.S.C. Sec. 3731.

II.

Probable cause determinations are necessarily fact-intensive; thus, the standard of review can be outcome determinative. It is important to distinguish between the standard of review which we exercise over a district court, and the standard of review which both we and the district court are to apply to the initial probable cause determination by the magistrate.

When a district court, in reviewing a magistrate's determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court's decision. United States v. Jones, 994 F.2d 1051, 1055 & n. 5 (3d Cir.1993); see also United States v. Deaner, 1 F.3d 192, 194-95 (3d Cir.1993); United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Belle, 593 F.2d 487, 497 (3d Cir.), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 277 (1979). Accord, e.g., United States v. Patrick, 959 F.2d 991, 996 n. 6 (D.C.Cir.1992) ("We review de novo the district court's ultimate conclusion that the search did not violate the fourth amendment."); United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir.1991); United States v. Arrellano-Rios, 799 F.2d 520, 522 (9th Cir.1986); United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982) ("Whether the information in the affidavit establishes probable cause is a determination based solely on written evidence. Since this determination involves the application of law rather than an evaluation of factual evidence, on review the appellate court is not limited to a determination of whether the district court's finding was clearly erroneous. It must independently review the sufficiency of the affidavit...."); United States v. Minis, 666 F.2d 134, 138 (5th Cir.), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); see also Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). In the matter presently before us, we exercise plenary review over the district court because the district court found that the affidavit, on its face, did not provide a substantial basis for a finding of probable cause. Jones, 994 F.2d at 1055 & n. 5.

In contrast, both we and the district court exercise only a deferential review of the initial probable cause determination made by the magistrate. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) "A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " (emphasis added) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)). ¹ "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates...