U.S. v. Farese

• Citation: 612 F.2d 1376
• Decision Date: 07 March 1980
• Docket Number: No. 79-2113,79-2113
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas Ralph FARESE et al., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1376

612 F.2d 1376

UNITED STATES of America, Plaintiff-Appellant, v. Thomas Ralph FARESE et al., Defendant-Appellee.

No. 79-2113.

United States Court of Appeals, Fifth Circuit.

March 7, 1980.

Rehearing and Rehearing En Banc Denied April 17, 1980.

Jay R. Moskowitz, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., Robert J. Lehner, U. S. Dept. of Justice, for plaintiff-appellant.

James J. Hogan, Joseph Mincberg, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, RUBIN and SAM D. JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The sole issue on this appeal is whether there was probable cause for a state judge to issue a warrant authorizing the police to place a concealed transmitter in the offices of the defendant, Thomas Farese. The district judge accepted the recommendation of the magistrate, made after an evidentiary hearing, and granted Farese's motion to suppress the evidence gained from the listening device. The district judge found, based on the magistrate's recommendation, that certain statements in the policeman's affidavit submitted to the state judge were made with reckless disregard for their truth. He held that there was not probable cause to grant the warrant absent those portions of the affidavit. We act on the premise that his factual findings were not clearly erroneous, and we have, therefore, in accordance with the teachings of Franks v. Delaware, 438 U.S. 154, 158, 98 S.Ct. 2674, 2678, 57 L.Ed.2d 667 (1978), considered the affidavit after excising those portions that he found to have been included with reckless disregard for their truth. We conclude that the affidavit as thus purged is sufficient to support the state judge's finding of probable cause, See Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 726 (1964), and we, therefore, reverse the judgment suppressing the evidence obtained.

If the issuance of a warrant is based solely upon information gained from an informant, the affidavit must contain (a) "some of the underlying circumstances" from which the informant drew the conclusions he presented to the police officer and (b) "some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable'. Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime' . . . ." Id. at 114-15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729 (footnote omitted).

The affidavit, the full text of which, as expurgated, is attached, was executed by Detective Olivieri of the Fort Lauderdale Police Department. Much of it was based upon information provided by a confidential informant, known by the pseudonym "Jason." It manifestly disclosed enough of the underlying circumstances from which Jason concluded that Farese was operating a drug-smuggling operation from his office to allow the state judge to infer that Jason's conclusion was correct. Jason provided a wealth of detail concerning Farese's smuggling operation, including where the drugs were entering the United States (Port Everglades), the names of the freighters used to bring them to this country (the Carib Express and the Halcyon Star), and how they were distributed locally (in white trucks belonging to Al's Delivery Service). He also related activity that, while not criminal in itself, would be unusual in an office handling Farese's nominal business (contract shipping) and could be considered part of a pattern of behavior commonly associated with drug smuggling: the maintenance of elaborate secrecy concerning the contents of and transactions in Farese's office; the movement into and out of the office of large sums of cash; the presence of a telex teletype and a ship-to-shore radio in an office whose nominal business would not require them; and the frequenting of the office by persons whose appearance and behavior was unlike that of people with whom Farese could be expected to have dealings in the normal course of his nominal business. These people generally refused to give their true names, instead representing themselves as "The Sheik" or "The Furthermore, the state judge in this case did not have to rely solely on the amount of factual detail to support the inference that Jason came by his information in a reliable way; Jason directly stated how he obtained some of it. Specifically, Jason's claim that the marijuana was being distributed locally in white trucks belonging to Al's Delivery Service was based on his personal observation ² of marijuana residue in the back of one of those trucks, which was loaned to him by Farese. Many of Jason's other allegations were based on what his girlfriend, who was Farese's secretary, told him. She of course would have ample opportunity to observe the suspicious activity around Farese's office.

Prince." ¹ "A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way." Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 644 (1969) (footnote omitted).

This case is, therefore, very different from Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), where the Court held that there was a lack of probable cause in part because "if the informant came by the information indirectly, he did not explain why his sources were reliable," Id. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 643-644. It is clear enough why Jason's information from his girlfriend could be considered reliable. The mass of detail Jason furnished, together with his indications of how he learned those details, provided an ample basis from which the state judge could conclude that Jason was "relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation," Id.

The second of the Aguilar requirements, that the affidavit disclose some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable, is likewise satisfied. There is sufficient evidence in Jason's own story on the basis of which the state judge could credit Olivieri's conclusion that Jason was a reliable informant. ³ In telling Olivieri that he was a former narcotics salesman who had sold a great deal of marijuana, Jason made an admission against interest. As the Supreme Court has said, "(a)dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficiently at least to support a finding of probable cause to search." United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734 (1971).

We do not, however, need to rest our holding solely upon what Olivieri in the affidavit related he had learned from Jason. He recited other facts in the affidavit that corroborated Jason's story. Farese's secretary talked to Olivieri, corroborated what Jason had said about the suspicious activity in Farese's office, and provided further details about that activity; ⁴ the Federal Drug Enforcement Administration independently reported that it had searched one of the ships mentioned by Jason as being used to transport drugs and had found marijuana residue aboard; the DEA later reported that this ship had left Colombia carrying marijuana and cocaine; and Olivieri himself ascertained that a license for an aviation company owned by Farese was taken out by a man who was on parole from a sentence for smuggling marijuana, that a white truck registered to Al's Delivery Service was parked behind Farese's office, and that Farese had an extensive criminal record. ⁵ On the spectrum of Supreme Court cases considering what amount of corroboration of an informant's tip is necessary to establish probable cause, this case clearly falls with those cases in which probable cause was upheld. Compare United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); And Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), With Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Even if Jason's information standing by itself were inadequate under Aguilar to establish probable cause, it could "fairly be said that the tip, . . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration," Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 643 (1969).

For the foregoing reasons, the judgment of the district court is REVERSED and the case is REMANDED for proceedings consistent with this opinion.

APPENDIX

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN

AND FOR BROWARD COUNTY, FLORIDA

IN THE MATTER OF THE INTERCEPTION OF WIRE/ORAL

COMMUNICATIONS OF THOMAS R. FARESE AND OTHER PERSONS

UNKNOWN, IN SUITE 200, LOCATED AT 3200 EAST OAKLAND PARK

BOULEVARD, FORT LAUDERDALE, COUNTY OF BROWARD, STATE OF

FLORIDA, LISTED TO OLYMPIC SHIPPING LINES, INC., SAID

APPLICATION BEING MADE BY FORT LAUDERDALE POLICE DEPARTMENT

TO INCLUDE NOT ONLY WIRE COMMUNICATIONS, BUT ORAL

COMMUNICATIONS AS WELL.

APPLICATION AND AFFIDAVIT

STATE OF FLORIDA )

) SS

COUNTY OF BROWARD )

Detective L. Olivieri, being first duly sworn, states that:

1. He is a police officer of the City of Fort Lauderdale Police Department and has been employed by the City of Fort Lauderdale Police Department for the past twelve years, being involved in the past with numerous investigations regarding the forthcoming alleged violations of law.

2. Further, he is empowered to conduct investigations...