United States v. Brouillette

• Decision Date: 15 May 1973
• Docket Number: No. 72-2456.,72-2456.
• Citation: 478 F.2d 1171
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kent "Frenchy" BROUILLETTE and Joan Lee Clemens, a/k/a Joan Shipp, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 1171 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Kent "Frenchy" BROUILLETTE and Joan Lee Clemens, a/k/a Joan Shipp, Defendants-Appellants.

No. 72-2456.

United States Court of Appeals, Fifth Circuit.

May 15, 1973.

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Hilary J. Gaudin, George M. Leppert, New Orleans, La., for defendants-appellants.

Gerald J. Gallinghouse, U. S. Atty., Mary Cazalas, Robert L. Livingston, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before COLEMAN, MORGAN and RONEY, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellants "Frenchy" Brouillette and Joan Clemens were convicted of violating 18 U.S.C. § 1952. This section prohibits the use of interstate commerce in promoting, establishing or managing an unlawful activity. In this appeal, Brouillette and Clemens challenge the validity of a search warrant under which certain items, later admitted into evidence against them, were seized. After careful consideration of their claim, we are compelled to agree and must remand this case to the district court for a new trial.

The Factual Setting

Mr. Brouillette and Ms. Clemens are allegedly the "managing partners" of a prostitution ring headquartered in Metairie, Louisiana. While it seems virtually admitted that they indeed operate in the "world's oldest profession", the question in this federal prosecution centers on the commission of a federal, rather than a state, offense. To bring the appellants within the grasp of federal authorities, the government alleges that they have caused, or perhaps more accurately aided and abetted, one of their "girls" to "attend" a convention in New York City and there to ply her trade.

In the process of preparing its case, the government sought and obtained a search warrant for Apartment 224 at the Imperial House Motor Hotel in Metairie, Louisiana. This location was the alleged nerve center of the prostitution ring's operations. A search warrant for the above address was signed on April 8, 1971. The federal agents duly executed this warrant on April 12, 1971, and seized a number of items allegedly used in furtherance of the prostitution activities. These items included various address books and files, bankbooks, pictures, and documents. Many of these items were introduced against appellants at trial.

The Legal Issue

The crux of this appeal comes down to a single, concise legal issue: In obtaining a search warrant, must federal officers present evidence ample to establish probable cause that a federal crime has been committed. In the instant case, the agent of the Federal Bureau of Investigation who obtained the warrant and gave the supporting affidavit never presented any evidence whatsoever to support the bald assertion that these appellants had violated the federal law. The complete text of the affidavit is set out in the margin.¹

Thus, in this case, we have a federal warrant which includes a statement from the agent that a federal offense is violated. The supporting assertions of "reliable information" never mention any reason for believing that this prostitution operation had come within the scope of federal prohibition. At the most, the affidavit established probable cause to support a finding that appellants were operating a prostitution ring in violation of Louisiana state law. The "reliable information" was addressed solely to the fact that this address was connected with prostitution activities and that various items would probably be found therein. The government concedes that there is no specific statement in the affidavit which establishes that interstate transportation or facilities were used in the furtherance of the criminal prostitution activity. That is, of course, a necessary element of the federal criminal offense.

One of the prerequisites for issuing a search warrant is the requirement that "probable cause" be established by factual information given a neutral and detached magistrate. The precise question involved in this case is whether the facts supporting probable cause to find the commission of a crime must, when a warrant is being sought by federal agents and alleging a federal crime, give facts sufficient for the magistrate to find that in all probability a federal violation was involved.

Appellants rely heavily on this court's decision in Thomas v. United States, 5 Cir. 1969, 376 F.2d 564. While that case is very strong for their position in some respects, it is distinguishable in at least one discernible way.

The basis for the issuance of any federal search warrant is Rule 41 of the Federal Rules of Criminal Procedure. The relevant provisions of Rule 41 set out the basic criteria:

(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property . . .

(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; . . .

(c) Issuance and Contents. A warrant shall issue only on affidavits sworn to before the judge or commissioner and establishing the grounds for issuing the warrant . . .

As the court noted in the Thomas case, the government has conceded that Rule 41(b)(2) "is directed to federal criminal offenses, i. e., that it authorizes search warrants for property believed to have been used or which is to be used as a means of committing a federal crime." 376 F.2d at 566.

The Thomas case grew out of the prosecution of defendant Thomas for possession of an illegal firearm in violation of federal law. In obtaining a search warrant for Thomas' home, the F.B.I. agents did not ever allege the commission of a federal offense. They did allege that Thomas had been involved in the murder of one Viola Luizzo and that the weapons used in the crime were felt to be concealed in the place to be searched.

In holding that the evidence given to the magistrate in the Thomas case was not sufficient to establish "probable cause", this court pointed out that that affidavit did not begin to describe a federal crime. All that was described by the affidavit was the shooting of an individual by another named individual. While such a murder would clearly be a state crime, it is not a federal crime standing alone. The federal crime involved was, of course, as pointed out by the court, the deprivation of Mrs. Luizzo's civil rights. However, this federal crime was never stated by the agents. "It was necessary that the affidavit allege with at least some reasonableness that an offense against the laws of the United States had been committed." Id at 567.

As previously mentioned, while we feel that this case is somewhat similar to Thomas, there is a ready distinction. In the instant case the federal agents did state the precise federal section which they believed was being violated by these appellants. The affidavit clearly shows that the agents stated that they were investigating a violation of 18 U.S.C. § 1952, involving the use of interstate facilities in furtherance of criminal activities. The deficiency in the warrant is the failure in any respect to show underlying facts which tend to establish a connection with the use of interstate facilities. This is, of course, a jurisdictional prerequisite for the federal offense; merely showing prostitution activities is insufficient. In Thomas there was never any mention of what federal section was being violated, although the court, taking note of the widespread publicity in the Luizzo case, had no difficulty in ascertaining what federal crime the agents could have charged.

We do not feel that this distinction is significant in light of the underlying rationale of the Thomas case. Basically, the notion underlying Thomas and, in fact, underlying any federal search warrant case, is that federal agents are charged with the investigation of federal, as distinct from state, crimes. In granting a search warrant to a federal agent, we feel there must be some showing that a federal crime has been or is being committed. To establish the probability of a crime under 18 U.S.C. § 1952, it seems necessary to present facts concerning both the state law being violated and the manner in which interstate commerce is involved in the violation.

It can clearly not be enough merely to state the section which allegedly has been violated. The standard rule is that in determining whether probable cause exists for issuance of a search warrant it is not necessary to determine whether or not the offense has actually been committed but it is necessary to determine whether the affiant has reasonable grounds, at the time of making the affidavit and the issuance of the warrant, for believing that "the offense charged" was being or had been committed. Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032 (1925); Lowrey v. United States, 8 Cir. 1947, 161 F.2d 30, 35. The "offense charged" in this case is the use of the facilities of interstate commerce in furtherance of a violation of the law of a state. The warrant in question and the affidavit supporting it give no factual support sufficient to justify any belief that interstate commerce has been used for such a violation. In short, the magistrate in this case had absolutely no basis on which to place a finding that the instrumentalities of interstate commerce were being used contrary to federal law. Yet that is what must be established in order to justify a warrant under these circumstances. Otherwise, federal agents would be able, by merely mentioning a statute involving interstate commerce, to search what would otherwise be establishments violating only local state law, possibly in the hopes of finding evidence which would support a federal violation. We do not feel that this is a proper course of conduct. Federal agents are not to go around looking for state violations and then try to turn them into federal violations.

It is not onerous to require federal officers to state their reasons for believing that a federal crime has been committed in...