U.S. v. Wagner

• Citation: 989 F.2d 69
• Decision Date: 12 March 1993
• Docket Number: No. 97,D,97
• Parties: UNITED STATES of America, Appellant, v. Gerard WAGNER, Defendant, Michael Canale; Tammie Canale; Thomas Brewer; Donald Howard; Shawna O'Leary; Leo Talback; Arthur Villa and David Keays, Defendants-Appellees. ocket 92-1173.
• Court: U.S. Court of Appeals — Second Circuit

Page 69

989 F.2d 69

UNITED STATES of America, Appellant, v. Gerard WAGNER, Defendant Michael Canale; Tammie Canale; Thomas Brewer; Donald Howard; Shawna O'Leary; Leo Talback; Arthur Villa and David Keays, Defendants-Appellees.

No. 97, Docket 92-1173.

United States Court of Appeals, Second Circuit.

Argued Sept. 18, 1992.

Decided March 12, 1993.

Paul D. Silver, Asst. U.S. Atty. for the N.D.N.Y. (Gary L. Sharpe, U.S. Atty. for the N.D.N.Y., of counsel), for appellant.

Michael A. Feit (Ellen C. Brotman, Feit & Schlenker, Albany, NY, of counsel), for defendant-appellee Michael Canale.

Joseph R. Brennan (McPhillips, Fitzgerald & Meyer, Glens Falls, NY, of counsel), for defendant-appellee Shawna O'Leary.

Before MINER, ALTIMARI, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

This is an interlocutory appeal by the United States, pursuant to 18 U.S.C. §§ 2518(10)(b) and 3731, of an order of the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge ) dated January 23, 1992, suppressing the fruits of a wiretap on the telephone of Defendant Michael Canale (hereinafter "Canale") and a search of Defendant Shawna O'Leary's home.

On April 8, 1991, Judge Cholakis authorized the wiretap pursuant to 18 U.S.C. § 2518. The O'Leary search warrant was issued by United States Magistrate Ralph W. Smith, Jr. on May 3, 1991. The various defendants were indicted on October 9, 1991 for possession and distribution of marijuana and for conspiracy to do the same in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also charged Canale with possession and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

In his January 23, 1992 suppression order, Judge Cholakis concluded that the affidavit in support of the application for authorization of interception of wire communications (the "Wiretap Affidavit") was not supported by probable cause, and that the affidavit submitted with the application for the search warrant (the "Search Warrant Affidavit") failed to establish probable cause and was stale. The government, in its appeal from this order, maintains that the two affidavits did establish probable cause, that the search warrant was not stale, and that officers conducting the search and the agents executing the wiretap acted in good faith reliance on the search warrant and the authorization of the wiretap. We denied an earlier motion by the defendants to dismiss the appeal. See Canale v. United States, 969 F.2d 13 (2d Cir.1992).

While we uphold the suppression of evidence seized in the search of O'Leary's home, we reverse the suppression of evidence derived from the wiretap.

A. The Canale Wiretap Application

On April 8, 1991, Judge Cholakis signed an order that he would later contradict authorizing the interception of wire communications on Canale's telephone pursuant to 18 U.S.C. § 2518(3).

Title 18, United States Code, Section 2518(3)(a-d), requires that before issuing an order for interception of wire communications, the judge must determine, based on the facts in the affidavit, that there is probable cause to believe that a crime has been, is being, or is about to be committed; probable cause to believe that communications about the crime will be obtained through the wiretap; that alternative means have been tried and failed or appear too dangerous or unlikely to succeed; and probable cause that the premises to be wiretapped are being used for criminal purposes or are used or owned by the target of the wiretap.

The test for determining probable cause under 18 U.S.C. § 2518 is the same as that for a search warrant. United States v. Rowell, 903 F.2d 899, 901-02 (2d Cir.1990); United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court set forth a "totality-of-the-circumstances" test for determining probable A reviewing court must accord substantial deference to the finding of an issuing judicial officer that probable cause exists. United States v. Nichols, 912 F.2d 598, 602 (2d Cir.1990) (search warrant); United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983) (search warrant). The reviewing court's determination should be limited to whether the issuing judicial officer had a substantial basis for the finding of probable cause. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; United States v. Nersesian, 824 F.2d 1294, 1306 (2d Cir.) (wiretap authorization), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987). In this case Judge Cholakis authorized the wiretap as based upon probable cause. After the agents had executed the wiretap, secure in the knowledge that their search and seizure of communications had been judicially approved, the district judge reversed himself and found probable cause lacking. In these circumstances, it is Judge Cholakis's April 8, 1991 order authorizing the wiretap upon which the agents acted in apparent good faith, and not Judge Cholakis's order suppressing the fruits of the wiretap on January 23, 1992, which we believe to be entitled to deference. It was in issuing the first order and not the second that he was acting as an issuing judicial officer to whom deference is owed.

                cause to support a search warrant.   The issuing judicial officer must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."  462 U.S. at 238, 103 S.Ct. at 2332.   The quanta of proof necessary to establish probable cause is "only the probability, and not a prima facie showing, of criminal activity...."  Id. at 235, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969))
                

The wiretap application was supported by an affidavit of Special Agent Robert K. Sears of the Drug Enforcement Administration (the "DEA"), in which Agent Sears stated that the DEA was conducting a joint investigation, with the Warren County Sheriff's Department and the New York State Police, of a marijuana distribution ring controlled by Canale. The affidavit stated that beginning on June 19, 1990, a confidential informant (the "CI"), who had not worked previously with law enforcement officials, told Agent Sears that he had known Canale for approximately 20 years, during which time he had sporadically purchased small, "user" quantities of marijuana from Canale. Prior to becoming an informant, the CI was in Canale's home at various times from December, 1989 to March, 1990 doing construction work in a room in the basement. On several occasions, the CI saw large quantities of marijuana, and smaller quantities of cocaine, in Canale's house. Sometime around December, 1989 or January, 1990, the CI helped break up a one-hundred-pound package of marijuana in the house and was paid a small quantity of marijuana and cocaine for his work on the house. After beginning to cooperate with the government in June, the CI continued to observe drugs in Canale's home. In January, 1991, Canale gave the CI $700 to buy one quarter pound of marijuana from Michael Stewart, saying that his supply was low. Following the instructions of Agent Sears, the CI returned the $700 to Canale.

The affidavit also stated that, under the supervision of the agents and officers conducting the investigation, from December, 1990 to February, 1991, the CI made six separate purchases of marijuana and cocaine from members of the alleged Canale conspiracy other than Canale. On February 19 and 25, also under law enforcement supervision, the CI bought marijuana from a person not believed to be a member of the conspiracy alleged.

The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of providing reliable In this case our focus is entirely upon the reliability of the information provided by the CI, since without that information, probable cause is lacking. An inquiry into the reliability of an informant's information is usually of two general types, not necessarily mutually exclusive: an inquiry into an informant's veracity and an inquiry into the quality of his sources of knowledge of the information. By quality of sources we mean the degree to which his information is based on reliable means, such as first-hand observations or second-hand information from reliable sources, rather than on unreliable means such as rumor or innuendo. Our inquiry here is of the first type, a focus on the veracity of the CI, since if the CI was telling the truth to Agent Sears, then probable cause to believe that criminal activity was being conducted in Canale's home is easily established in light of the fact that the CI described numerous occasions on which he personally witnessed, and even participated in, drug distribution-related activities in the Canale home.

                information, or if it is corroborated in material respects by independent evidence.   If a substantial amount of information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that he provides, though uncorroborated, is also reliable
                

While information provided by an informant from whom the government has received consistently reliable information in the past is likely to be sufficiently reliable to establish probable cause, Gates instructs that it is improper to discount an informant's information simply because he has no proven record of truthfulness...