U.S. v. Saitta
Citation | 612 F.2d 205 |
Decision Date | 21 February 1980 |
Docket Number | No. 79-5055,79-5055 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leo Joseph SAITTA and James Patrick Westfall, Defendants-Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Janet F. Perlman, J. Richard Young, Asst. Federal Public Defenders, Atlanta, Ga., for Westfall.
Gerald L. Shargel, New York City, for Saitta.
James E. Fagan, Jr., Asst. U. S. Atty., Atlanta, Ga., for the U. S.
Appeals from the United States District Court for the Northern District of Georgia.
Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.
The defendants were convicted of counterfeiting offenses. 18 U.S.C. §§ 471, 472 and 474. Secret Service agents surveilled defendants at a one-story commercial printing shop owned by Westfall and located in a group of several small commercial establishments. During night hours, using 9-power binoculars and a 20-power hand-held telescope that could zoom to 40-power (both were commercially available), the agents observed defendants through a gap between the blinds covering the front windows of Westfall's shop. The windows opened onto the sidewalk in front of the building. The agents saw them examining layout sheets containing negatives of counterfeit Federal Reserve notes. This magnified observation was part of the basis for a search warrant obtained by telephone from a U. S. Magistrate. 1 Defendants assert that this mechanically assisted viewing of the interior of the print shop was a violation of the Fourth Amendment that in itself it was an unlawful search and also could not be used as part of the basis for the search warrant. 2
It is not necessary that we decide this issue because we conclude that the warrant was valid even without the fruits of the observation through the telescope and binoculars.
Following is a transcript of relevant parts of the telephone conversation between Secret Service agent Kivett ("K") and Magistrate Feldman ("F").
Summarizing, here is what the magistrate knew:
On May 28 Saitta told an undercover Secret Service agent that he would have counterfeit currency printed and would sell it to the agent.
The agent gave Saitta $700 which Saitta said he would use to purchase ink and paper.
Saitta said he would locate a printer on May 29 and print up the money.
The money was to be delivered on the afternoon of May 30.
Saitta flew to Atlanta and was met at the airport by Westfall. They went to Westfall's printing shop, arriving there at 11:47 a. m. Westfall came and went but Saitta was still there at 9:36 p. m.
In order for Saitta to have the counterfeit currency ready to deliver on the afternoon of May 30, the printing would have to begin immediately.
Westfall previously had been convicted for printing counterfeit Federal Reserve notes.
Saitta had a prior criminal record.
Westfall had been arrested after passing "these (counterfeit) notes" in New Iberia, Louisiana.
These circumstances adequately established probable cause to believe that criminal activity was going on in the print shop, and, even more specifically, criminal activity related to printing or preparation for printing of the counterfeit currency that Saitta had agreed would be delivered less than 24 hours later. As a result, we need not reach the appellants' allegations regarding the binocular-telescope search, particularly where, as here, the independent information was obtained prior to the search and thus was not even arguably "fruit of a poisonous tree." See U. S. v. Giordano, 416 U.S. 505, 554-56, 94 S.Ct....
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