U.S. v. Giacalone
| Decision Date | 18 August 1976 |
| Docket Number | No. 75-2121,75-2121 |
| Parties | UNITED STATES of America, Appellant, Plaintiff-Appellant, v. Joseph GIACALONE and One 1975 Mercury Four-Door Automobile, Maroon In Color, Bearing License Plate Number TMS 416, Appellee, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frederick S. Van Tiem, U. S. Atty., Robert C. Ozer, C. Stanley Hunterton, Detroit Strike Force, Detroit, Mich., for the U. S.
N. C. DeDay LaRene, Detroit, Mich., for Giacalone.
Before PHILLIPS, Chief Judge, and WEICK, EDWARDS, * CELEBREZZE, PECK, McCREE, LIVELY and ENGEL, Circuit Judges, sitting en banc.
The Government has appealed from an order of the United States District Court for the Eastern District of Michigan granting a motion for return of seized property under Fed.R.Crim.P. 41(e). The seized property consisted of an automobile and its contents belonging to Joseph Giacalone. The automobile and contents were seized by the FBI pursuant to a search warrant issued by a United States Magistrate. The District Court held that the affidavit for the warrant submitted to the Magistrate did not allege sufficient facts to support the Magistrate's finding of probable cause. It granted the motion and ordered the automobile and contents returned to Giacalone. The Government seeks a reversal of that judgment. We reverse.
A temporary stay of the order of the District Court was granted by a Judge of this Court and it was later extended to run pending the appeal.
The affidavit for the warrant reads as follows:
JAMES C. ESPOSITO, being duly sworn according to law, deposes and states as follows:
I am a Special Agent of the FBI and I have been engaged since August 3, 1975, in an investigation into the disappearance and possible abduction of JAMES R. HOFFA (hereafter HOFFA).
The FBI has been informed by JAMES P. HOFFA, the son of HOFFA, that on July 30, 1975, and for some time prior thereto, HOFFA was engaged in a highly publicized campaign, to express his views and opinions in support of his own nomination and candidacy for the office of President of the International Brotherhood of Teamsters (IBT) a labor organization as defined by Section 152 of Title 29, United States Code. On July 30, 1975, HOFFA left his home in Lake Orion, Michigan, and traveled to the Machus Red Fox restaurant at Maple and Telegraph Roads in Bloomfield Township, Michigan, and he advised witnesses, who have in turn advised the FBI, the (sic) he intended to meet with ANTHONY GIACALONE and ANTHONY PROVENZANO. At approximately 2:30 p. m., July 30, 1975, HOFFA telephoned his wife and advised her that GIACALONE had not as yet arrived at the Red Fox for the said meeting. No member of HOFFA's family has seen him or heard from him since that time.
JAMES P. HOFFA has advised the FBI that HOFFA, his father, was definitely conscious of the possibility of physical harm from opponents of his in the labor movement and that HOFFA, as of July 30, 1975, was a member of the IBT. JAMES P. HOFFA has stated to the FBI that CHARLES L. J. O'BRIEN (O'BRIEN) is one of the small number of persons with whom HOFFA is acquainted and with whom HOFFA would willingly enter an automobile. JAMES P. HOFFA has advised the FBI that this is so notwithstanding the fact that O'BRIEN, who was raised in the HOFFA home as a son of HOFFA, has during the past several months aligned himself with ANTHONY GIACALONE with whom O'BRIEN has actively supported HOFFA's opponents and enemies in the labor movement. O'BRIEN is currently employed by the IBT at the pleasure of HOFFA's opponents in office.
As part of the FBI investigation during the past week, witnesses have advised the FBI that O'BRIEN vigorously claimed and insisted that at the time of HOFFA's disappearance during the afternoon of July 30, 1975, he (O'BRIEN) was with ANTHONY GIACALONE at the Southfield Athletic Club. Various witnesses, including the owner of the Southfield Athletic Club have denied that O'BRIEN was ever there on July 30, 1975.
On August 6, 1975, O'BRIEN admitted to Special Agents of the FBI that he (O'BRIEN), on July 30, 1975, borrowed from JOSEPH GIACALONE, a 1975 4-door Mercury Brougham automobile, maroon in color, which he (O'BRIEN) used to deliver a 40 pound frozen salmon to Mrs. ROBERT HOLMES, SR. in Farmington, Michigan, sometime between 12:00 p. m. and 1:00 p. m., and that he thereafter had the said automobile washed, O'BRIEN claimed, because blood from the salmon had stained the seat. Extensive interviews by the FBI have failed to identify anyone who has seen O'BRIEN during the period of approximately 2:20-2:30 p. m. on July 30, 1975, until "late afternoon" July 30, 1975, which is the only approximation that JOSEPH GIACALONE was able to provide to Special Agents of the FBI with respect to the time that day that O'BRIEN returned the automobile to GIACALONE.
The office of the Michigan Secretary of State has advised the FBI that there is listed as registered to Liftall Company, 2679 Conner, Detroit, Michigan, a 1975 Mercury four door automobile, license tag 1975 Michigan TMS 416. JOSEPH GIACALONE was interviewed on August 8, 1975, and acknowledged that he is the owner of Liftall Company and that he (JOSEPH GIACALONE) is the owner of the said 1975 Mercury 4-door automobile bearing license tag TMS 416. JOSEPH GIACALONE is known to me to be the son of ANTHONY GIACALONE.
JOSEPH GIACALONE was requested by Special Agents of the FBI, on August 8, 1975, to voluntarily permit a search of the said automobile for any evidence of fingerprints or microscopic particles of blood, hair, clothing, fibers, or flesh which can be identified as that of a human being, or specifically as that of HOFFA, as well as any physical evidence indicating where the automobile has been. Counsel of JOSEPH GIACALONE has (informed) the FBI that no inspection of JOSEPH GIACALONE'S automobile will be permitted, except pursuant to a search and seizure warrant.
For all of the above reasons I feel that probable cause exists to believe that CHARLES O'BRIEN has used JOSEPH GIACALONE's automobile to facilitate an abduction of HOFFA; and that the said abduction constitutes the use of force and violence to restrain, interfere, and prevent HOFFA from exercising his rights to which he is entitled under Section 411, Title 29, United States Code; and that evidence of the said abduction, to wit, fingerprints and microscopic particles of blood, clothing, fibers, flesh, and hair which can be identified as that of a human being, or specifically that of HOFFA as well as any physical evidence indicating where the automobile has been, is being concealed on the said 1975 4-door Mercury automobile, maroon in color, bearing license tag number TMS 416 registered to Liftall Company.
I represent that it is necessary to seize the said automobile as soon as it may be found, at any time during the day or night, in order to minimize the time during which evidence contained therein may be disturbed, deliberately or otherwise, now that JOSEPH GIACALONE is aware of FBI interest in that automobile. The FBI is currently unaware of the location of the said automobile although a search for it is in progress.
/s/ Special Agent, FBI
Subscribed and Sworn to Before Me
this 8th Day of August, 1975.
/s/ BARBARA K. HACKETT
U. S. Magistrate
Before addressing the sufficiency of the affidavit we must examine the threshold question of mootness raised by appellee. This issue arose because a Grand Jury, which was investigating the disappearance of Mr. Hoffa and possible violations of federal law, issued a subpoena duces tecum for the automobile and it was served by the United States Marshal on the defendant after the District Court had entered its order for the return of the automobile to him. The order of the District Court had been stayed by this Court and the appeal ordered expedited. The purpose of the subpoena duces tecum is not clear to us as it would seem that the Government was adequately protected by our stay.
The theory for the subpoena duces tecum was that Giacalone had constructive possession of the automobile because of the order of the District Court even though it had been stayed. Enforcement of the subpoena duces tecum was procured in the District Court where Giacalone was charged with contempt for refusing to surrender his constructive possession, and finally he did surrender his constructive possession of the automobile in order to purge himself from the contempt. By reason of this unnecessary procedure a new issue was injected in this case, and it has delayed consideration of the appeal.
Giacalone argues that we should dismiss this appeal as moot; however, the granting of a Rule 41(e) motion serves not only to restore possession of seized property to its owner, but also serves as a ruling that the search and seizure of the property were illegal, and that the fruits of the search "shall not be admissible in evidence at any hearing or trial." Because the District Court's ruling will be binding on all courts in future criminal litigation, the consequences of the ruling reach beyond the issue of custody of the car; furthermore, this binding effect on future litigation requires that we review the ruling at this time rather than hold that the question is not ripe because Giacalone has not yet been indicted.
Turning to the affidavit for the warrant, we must confront the problem of defining what allegations are necessary therein to support a finding of probable cause. Most of the major pronouncements of the Supreme Court in recent years on the subject discuss the sufficiency of certain classes of allegations in affidavits. 1
During the early years of the Constitution the Supreme Court did not seem troubled by the meaning of probable cause; Chief Justice Marshall wrote:
(Probable cause) has a fixed and well-known meaning. It imports a seizure made under circumstances which warrant suspicion.
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