U.S. v. Luna

• Citation: 525 F.2d 4
• Decision Date: 07 November 1975
• Docket Number: No. 75-1084,75-1084
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gilbert LUNA et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 4

525 F.2d 4

UNITED STATES of America, Plaintiff-Appellant, v. Gilbert LUNA et al., Defendants-Appellees.

No. 75-1084.

United States Court of Appeals Sixth Circuit.

Argued June 3, 1975.

Decided Nov. 7, 1975.

Ralph B. Guy, Jr., U. S. Atty., John L. Newcomer, Detroit Strike Force, Detroit, Mich., Marc Philip Richman, Washington, D. C., for plaintiff-appellant.

Norton N. Wisok, Hugh M. Davis, Jr., Detroit, Mich., for defendants-appellees.

N. C. Deday LaRene, Detroit, Mich., for Luna.

Sienna LaRene, Detroit, Mich., for Kopp.

Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

This is a government appeal from the suppression of wire tap evidence which the United States desired to offer in its prosecution of Gilbert Luna and three other defendants. The four had been indicted on four counts charging conspiracy to extort money from one William Stewart. The government contends that evidence of this extortion scheme was discovered as a result of a duly authorized and legal interception of communications through Gilbert Luna's telephone under an order dated March 2, 1973, issued by a District Judge in the Eastern District of Michigan, Southern Division. After originally denying defense motions to suppress the evidence derived from the telephone intercept order, the District Judge subsequently took testimony on a supplemental motion to suppress and thereafter granted that motion in a bench opinion.

In his suppression opinion, the District Judge identified as false, portions of a particular paragraph of the affidavit which pertained to information concerning thefts at the Detroit Metropolitan Airport and the subsequent fencing of the materials stolen there.

The paragraph principally in dispute reads as follows:

FBI-1 told me that Hines told him that Joseph "Joe" Tocco and Gilbert Luna provide the means of payment to the men actually performing the thefts and receive money from the sales of the freight and merchandise stolen, as well as some of the stolen freight and merchandise.

This paragraph was one sentence of a 15-page affidavit filed by an FBI agent which dealt at length with allegations concerning a major theft ring operated at the Detroit Metropolitan Airport and with the fencing of the stolen goods procured. Even more detailed information (particularly in relation to Luna) alleged that the thieves were paid in narcotics by the persons who received and fenced the stolen goods. In these memoranda Luna was said to be supplying narcotics to Hines.

At the hearing on the motion to suppress, defendants produced a person named Filkovich whom they claimed was FBI-1. Subsequently this was conceded to be true by the agents involved. Filkovich testified that he had informed about the theft ring and had said that Hines was financing it, but had not said that Luna was. After hearing Filkovich and the two FBI agents involved who also testified on this score, and after inspecting the agents' field notes, the District Judge concluded, "There was no evidence elicited at the hearing to challenge Filkovich's unequivocal denial that such a statement had been made," and "We are compelled to conclude that the statement at page 8 was false."

The District Judge did not pass on the credibility of Filkovich or the FBI agents. He found the statements in the quoted paragraph were false and "material," and held that any material false statement in the affidavit required suppression of the evidence seized under the intercept order. He declined to find that "the falsity was an intentional effort to deceive the court," but concluded that "the misrepresentation was knowing and not inadvertent."

After a motion for rehearing supported by government filed affidavits was denied, the government appealed, claiming that the case should be remanded for further testimony and for a square resolution of the credibility of the witnesses.

We agree with the desirability of remand for resolution of credibility, since we find a decided conflict between the testimony of Filkovich and that of the FBI agents. ¹ But we also feel that before remand this Circuit should define the legal standards to be applied.

This case presents squarely the problem of whether or not an attack upon a search warrant affidavit can be made, alleging not that it was facially insufficient to supply probable cause, but that when made it was actually false or fraudulent, or both. This issue was noted by the United States Supreme Court, but not decided, in Rugendorf v. United States, 376 U.S. 528, 531-33, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), and was referred to similarly by this court in United States v. Bowling, 351 F.2d 236, 241-42 (6th Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966).

It appears that since 1965 other circuit opinions have divided somewhat as to under what circumstances false representations in an affidavit should lead to suppression of evidence seized under a search warrant. See United States v. Belculfine, 508 F.2d 58 (1st Cir. 1974); United States v. Marihart, 492 F.2d 897 (8th Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Thomas, 489 F.2d 664 (5th Cir. 1973); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

In the Carmichael case cited above, the Seventh Circuit held:

We now hold 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 government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material. See generally United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), certiorari denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412; United States v. Halsey, 257 F.Supp. 1002 (S.D.N.Y.1966); Kipperman, "Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence," 84 Harv.L.Rev. 825 (1971).

However, once such a hearing is granted, more must be shown to suppress the evidence. Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. A completely innocent misrepresentation is not sufficient for two reasons. Most importantly, the primary justification for the exclusionary rule is to deter police misconduct (see Kipperman, supra, at 831, and cases cited), and good faith errors cannot be deterred. Furthermore, such errors do not negate probable cause. If an agent reasonably believes facts which on their face indicate that a crime has probably been committed, then even if mistaken he has probable cause to believe that a crime has been committed. Such errors are likelier and more tolerable during the early stages of the criminal process, for issuance of a warrant is not equivalent to conviction.

Negligent misrepresentations are theoretically deterrable, but no workable test suggests itself for determining whether an officer was negligent or completely innocent in not checking his facts further. We therefore conclude that evidence should not be suppressed unless the officer was at least reckless in his misrepresentation. Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. Arguably, the same conclusion could be reached as to deliberate but immaterial misrepresentations. However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.

United States v. Carmichael, supra at 988-89. (Footnote omitted.)

This view is squarely adopted by the Eighth Circuit in the Marihart case cited above, supra at 900. See also United States v. Belculfine, supra.

The Fifth Circuit has phrased this matter somewhat differently:

Therefore, we hold that affidavits containing misrepresentations are invalid if the error (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.

United States v. Thomas, ...