United States v. Bosch

• Decision Date: 13 September 1962
• Docket Number: Crim. No. 39168.
• Citation: 209 F. Supp. 15
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas BOSCH, Defendant.
• Court: U.S. District Court — Western District of Michigan

209 F. Supp. 15

UNITED STATES of America, Plaintiff, v. Nicholas BOSCH, Defendant.

Crim. No. 39168.

United States District Court E. D. Michigan, S. D.

September 13, 1962.

William H. Merrill, Chief Asst. U. S. Atty., Detroit, Mich., for the Government.

Robert E. Toohey, Detroit, Mich., for defendant.

FREEMAN, District Judge.

The defendant, Nicholas Bosch, is accused by indictment of failure to register and pay a special tax imposed on persons engaged in the business of accepting wagers, in violation of Sections 4411, 4412 and 7203, Title 26 U.S.C., and has filed a petition to suppress and return evidence consisting of gambling paraphernalia seized and removed from his residence at 27931 Gladstone Street, St. Clair Shores, Michigan, in the execution of a search warrant issued by a Judge of this Court on December 14, 1961, and to dismiss the complaint and warrant for his arrest on such charges issued the same date.

He contends that the search warrant was issued without probable cause in violation of the Fourth Amendment to the Constitution and Rule 41(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. and that it was executed in violation of Section 3109, Title 18 U.S.C.

The issuance of the search warrant was based on an affidavit made by a special agent of the Internal Revenue Service, stating that the affiant had reason to believe that certain gambling paraphernalia "consisting of bet slips, run-down sheets, account sheets, recap sheets, telephones, money used in or derived from a bookmaking operation, and other means and instruments" used in the violation of the aforesaid statutes was being concealed on the above described premises of defendant and, in support of such belief, alleged pertinent facts substantially as follows:

1. During the period of November 13, 1961, through December 13, 1961, the defendant was seen entering and departing from the premises at 23334 Lakewood, Clinton Township, Michigan, occupied by a previously convicted and presently suspected bookmaker, one Charles Gorman.

2. The defendant "has been observed" by affiant and other unnamed law enforcement officers under his direction in a certain sequence of events consisting of purchasing racing forms at 14513 East 8 Mile Road, Warren, Michigan, and then driving to Gorman's residence at 22640 Downing Street, St. Clair Shores, Michigan, whereupon he entered these premises and returned to his car in the company of Gorman; that these two men then drove to the premises at 23334 Lakewood, whereupon Gorman, on arrival, entered such premises and the defendant then proceeded to the corner of Lakewood and Harper where he regularly met one Lyle Clune, who had been observed by the officers visiting 23334 Lakewood during the observation period of November 13th to December 13th. At these meetings between Clune and the defendant, the former was observed passing to the latter a paper "resembling" a Daily Racing News used by bookmakers accepting horse wagers, with Clune then proceeding by himself to the Lakewood address, and the defendant, after having stopped at various taverns, returned home where he remained from about noon until 6:00 P.M. or later.

3. The affiant searched the records of the Detroit District Director of Internal Revenue and found no record which indicated that a wagering stamp had been issued to the defendant or that he had registered his residence at the above address as that of one to whom such a stamp had been issued, or that he had filed an excise tax return.

The Fourth Amendment prohibits the issuance of a search warrant, "but upon probable cause, supported by Oath or affirmation". Procedure for issuance of a search warrant pursuant to Rule 41(c) of the Federal Rules of Criminal Procedure provides that the warrant shall issue on affidavit "If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist * * *."

Probable cause has been interpreted and defined by the Supreme Court in Brinegar v. United States, 338 U.S. 160, at pp. 175-176, 69 S.Ct. 1302, at p. 1310, 93 L.Ed. 1879, as follows:

"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

"`The substance of all the definitions' of probable cause `is a reasonable ground for belief of guilt.' McCarthy v. De Armit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. 132 at 161 45 S.Ct. 280, 69 L.Ed. 543. And this `means less than evidence which would justify condemnation' or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348 3 L.Ed. 364. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where `the facts and circumstances within their the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 45 S.Ct. 280, 69 L.Ed. 543."

The Sixth Circuit Court of Appeals in the recently decided gambling tax cases of United States v. Woodson, 303 F.2d 49, and United States v. Nicholson, 303 F.2d 330, in considering the sufficiency of affidavits on which warrants were based and issued, relied largely on the test of probable cause laid down in Brinegar, and in Nicholson the Court said: "Whether probable cause exists requires an act of judgment formed in the light of the particular situation and with account taken of all the circumstances."

It is also well-established that hearsay may be the supporting basis for a search warrant where there is either some corroboration of the hearsay or where the circumstances are such that there is substantial basis for crediting the hearsay. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Applying the standards laid down in these authorities to the affidavit here in question, it is clear that the warrant based thereon was not legally issued. In reaching this conclusion, all the facts alleged pertaining to defendant and his premises have been considered and applied even though the affidavit fails to clearly indicate whether such averments were hearsay or within affiant's own knowledge. For this reason we do not reach the problem of finding a proper basis for crediting hearsay.

The existence of probable cause requires a decision in the light of the particular situation, taking into account all the circumstances. United States v. Nicholson, supra. This can only be determined by a careful consideration of what relevant facts are not stated in the affidavit, as well as those that are alleged. Affiant states that the premises at 23334 Lakewood were under surveillance for one month, but fails to allege the date or dates or how may times the defendant was seen at such premises on Lakewood or how often or at what times defendant drove Gorman to the Lakewood address and then met Clune. There is only the conclusional statement that the defendant regularly met Clune at a certain location.

It should be noted that affiant placed considerable emphasis on telephone installations and activity alleging that there were 2 telephones at Gorman's Lakewood property, one of which was unlisted, and that a large number of long distance calls to and from an alleged bookmaker in Houston, Texas, were charged to the unlisted phone, and that there were two unlisted telephones at the Betz residence. However, the affidavit is conspicuously silent as to any phone, listed or unlisted, in defendant's home. It seems unlikely that a gambling or bookmaking operation could be conducted on premises not having a telephone.

The search of defendant's premises was one of several conducted simultaneously on the same date. The warrants for two of these premises involved in United States v. Betz, D.C., 205 F.Supp. 927 and United States v. Gorman and Clune, 208 F.Supp. 747, were based on the same affidavit as that in the instant case, and another, United States v. Gebell, 209 F.Supp. 11 was based on a separate affidavit made by the same affiant. In Betz and Gebell, Judge McCree and Judge Thornton of this Court respectively found no probable cause for issuance of the warrants, where the affidavit alleged, in addition to other facts and circumstances, that there were two unlisted phones at the Betz premises and two telephones at the Gebell premises, one listed in Gebell's name and the other listed under another name. In Gorman and Clune, Judge Machrowicz of this Court found probable cause for issuance of the warrant to search the Gorman premises where the affiant alleged additional data as well as the installation of one listed and one unlisted phone and considerable activity to and from the unlisted phone, including the telephone of a convicted hand-book operator in Texas. This Court agrees with the conclusions reached in excellent opinions filed in all of these companion cases. Also see United States v. Nicholson, supra, where the affidavit stated, among other circumstances, that there were three telephones at the premises, two of which were listed under the name of an alias sometimes used by defendant, and that there were numerous long distance calls to and from bookmakers in other States made and received from such phones.

The cases cited by the Government in support of its position involve a surveillance of the searched premises which either disclosed that the suspects were conducting themselves very suspiciously in an abandoned grocery store, Merritt v. United States (C.A. 6), 249 F.2d 19, or that the suspects were carrying paper bags of the size and type commonly used for transporting...