U.S. v. Travisano

• Decision Date: 22 December 1983
• Docket Number: D,No. 138,138
• Citation: 724 F.2d 341
• Parties: UNITED STATES of America, Appellant, v. Joseph A. TRAVISANO, Defendant-Appellee. ocket 83-1159.
• Court: U.S. Court of Appeals — Second Circuit

Page 341

724 F.2d 341

UNITED STATES of America, Appellant, v. Joseph A. TRAVISANO, Defendant-Appellee.

No. 138, Docket 83-1159.

United States Court of Appeals Second Circuit.

Argued Sept. 1, 1983.

Decided Dec. 22, 1983.

Jeremiah F. Donovan, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant.

Richard A. Reeve, Asst. Federal Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., New Haven, Conn., of counsel), for defendant-appellee.

Before KEARSE, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

Upon application of the local police following a shooting and robbery in August 1982, a Superior Court Judge in Connecticut issued a search warrant for a West Haven residence. The ensuing search failed to unearth the instrumentalities of that crime, but did turn up an unregistered gun which later resulted in a federal indictment being lodged against defendant Joseph Travisano. The indictment charged Travisano with possession of an unregistered short barrelled Winchester shotgun in violation of 26 U.S.C. Secs. 5861 and 5871 (Count One), and, as a previously convicted felon, with possession of a firearm that had affected commerce in violation of 18 U.S.C.App. Sec. 1202(a) (Count Two). In granting defendant's motion to dismiss both counts of the indictment, the district court set forth its reasons in an opinion, United States v. Travisano, 560 F.Supp. 627 (D.Conn.1983).

While we agree with the trial court's conclusion that Count Two should have been dismissed, since the issue raised by the government is one of first impression we set forth our reasons for affirming on that count in some detail later in this opinion. We reverse and remand for trial on Count One because in our view probable cause did exist for the issuance of the search warrant.

I

The facts in this kind of case are critical. Here, while concededly close, they are not in dispute. We recite them chronologically.

At 2:13 on Monday afternoon August 9, 1982, two messengers employed by the AAA Motor Club in Hamden, Connecticut were robbed in the AAA parking lot. During the course of the robbery one of the messengers was shot in the face and seriously wounded. The robbers stole an AAA Motor Club flight bag which had three American National Bank bags containing over $35,000 in cash and $45,000 in checks payable to the AAA. Eyewitnesses saw two men flee from the scene of the shooting, run south to the vicinity of a Howard Johnson parking lot and jump into an older-make white Cadillac in which a third male was waiting. The Cadillac carried a vanity plate in front, identified by one witness as "Baby Joe," and the first two letters of the Connecticut license plate mounted on the rear were noted as "YE." The news media reported this incident and broadcast the fact that the police were searching for a white Cadillac bearing a vanity plate.

The next morning--Tuesday, August 10--the West Haven Police, responding to a Connecticut police teletype message sent to give notice of the robbery, advised that one of their officers had observed a vehicle, which matched the one described, on Elm Street in West Haven. At 10:30 a.m. the Hamden police established surveillance of this vehicle which was parked in a driveway at 371 Elm Street and bore Connecticut license plate number YE1034. The police learned that this 1970 white Cadillac was registered to Marie Travisano, a resident at the Elm Street address. West Haven police told the Hamden officers that Marie Travisano's son, Mark, frequently used the Cadillac and that in the past it had carried a vanity plate which the West Haven officers recollected as bearing the legend "Baby John." On the morning of August 10, during the course of the Hamden police surveillance, the automobile was being operated by a white female. It was immediately observed that the identifying vanity plate had been removed. Randy Borruso, one of the eyewitnesses to the shooting, was shown the vehicle while it was parked on Elm Street that morning and he identified it as the white Cadillac he had seen the day before speeding from the scene of the shooting and robbery.

The surveillance was terminated at noon. Within the next hour or so, two Hamden police detectives with combined experience of 39 years as police officers presented the above information in affidavit form to Judge Harrigan, a Superior Court Judge of the State of Connecticut. He signed the search warrant authorizing the Hamden officers to search the white Cadillac and the residence at 371 Elm Street for the AAA Motor Club flight bag, the three American National Bank bags, a .38 caliber handgun, a vanity plate with the legend "Baby John", numerous checks payable to the AAA Motor Club and a large amount of paper currency. The warrant was executed at 2:30 p.m. that same afternoon at the Elm Street address. None of the enumerated items of evidence were discovered, but during the search the police found an unregistered sawed-off shotgun (that was the subject of the motion to suppress) in the front foyer closet of the Elm Street residence.

In suppressing the gun, the illegal possession of which is the gravamen of Count One, the district court found "only a minimal connection between the instrumentalities of the robbery and the residence, namely, the fact that the car was located in front of the house and that the police somehow knew that the owner's white male son was a frequent driver of the vehicle." 560 F.Supp. at 629. We disagree. In our view of the law of probable cause, there were sufficient facts before the State Court Judge for him to sign the search warrant.

II

Countless are the cases that undertake to define probable cause. The recitation of what we believe are the applicable rules to apply in this case will be brief. Searches under the authority of an arbitrarily obtained warrant like the flagrant one in Wilkes v. Wood, 19 Howell's State Trials 1153, 98 Eng.Rep. 489 (K.B.1763), are what prompted the concerns of the framers of the Bill of Rights. In Wilkes, the Secretary of State authorized a general warrant in a search for the author of a pamphlet critical of the King. The warrant did not name any person who could be searched or describe the items to be seized. Under its authority, 49 persons were quickly arrested on suspicion and from them it was learned that John Wilkes might be the author of the offending publication. Armed with that intelligence, the warrant which had been issued three days earlier was immediately executed at Wilkes' home. All his private papers, including his will, were seized by the messengers dispatched for that purpose, after they had forced his cabinet drawers. The wrong done Wilkes was righted after a stirring trial by a jury award of a thousand pounds damages. But, a lesson had been learned from the use to which this general warrant had been put. If a public official could arbitrarily order the home of a member of Parliament searched and his papers and personal effects seized, what then of the rights of everyday citizens? Plainly, the answer was that to safeguard individual rights of privacy would require the imposition of restraints upon those officials granted the power to issue warrants.

With the lesson grasped, the Fourth Amendment was drafted to provide that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. See Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich.L.Rev. 1229, 1237 (1983) ("Loewy"). In the American colonies prior to the Revolution, customs officers used writs of assistance to enter and search buildings for smuggled goods. It was against their issuance that James Otis, representing 63 Boston merchants, protested. His oratory on the occasion was such that one commentator ascribed to John Adams the belief that Otis' speech marked the birth of American Independence. 1 W. LaFave, Search and Seizure, Sec. 1.1, at p. 4 (1978) ("LaFave"). At any rate, the use of these infamous writs became so sharply etched in the minds of those who later attended the Constitutional Convention of 1787 as to make the need for a provision dealing with searches a focal point in the ratification debates. James Madison later undertook the drafting of a suitable clause in the Bill of Rights and, in substance, his words comprise the first phrase of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." U.S. Const. amend. IV. See W. LaFave, supra Sec. 1.1, at 5.

The qualifying language of the Fourth Amendment which prohibits unreasonable searches and warrants issued without probable cause plainly implies that there is no constitutional prohibition against a reasonable search, nor one against a properly issued warrant. The reason is that the government's interest in obtaining evidence of crime is so compelling that without the means to accomplish it, people would never be secure in their persons, houses or papers. See, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The common thread that laces together the two phrases of the Fourth Amendment--one which reflects the history and experience that brought the Amendment into being--is the constraint it exerts on the exercise of arbitrary power in both the issuance of a warrant and the conduct of a search or seizure. Thus, while the Amendment provides for the needs of the community in obtaining evidence of crime, its built-in restraints also safeguard the right of individual privacy--one of the bulwarks of liberty. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886).

III

In order to assure that neither one of these policies is...