United States v. Calandra

• Decision Date: 27 July 1972
• Docket Number: No. 71-1999.,71-1999.
• Citation: 465 F.2d 1218
• Parties: UNITED STATES of America, Appellant, v. John P. CALANDRA, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

465 F.2d 1218 (1972)

UNITED STATES of America, Appellant, v. John P. CALANDRA, Appellee.

No. 71-1999.

United States Court of Appeals, Sixth Circuit.

July 27, 1972.

Shirley Baccus-Lobel, Roger A. Pauley, David Margolis, Robert D. Gary, Steven R. Olah, Attys., U. S. Dept. of Justice, Washington, D. C., Henry E. Petersen, Acting Asst. Atty. Gen., Crim. Div., Frederick M. Coleman, U. S. Atty., for appellant.

Robert J. Rotatori, Gerald S. Gold, Gold, Rotatori, Messerman & Hanna, Cleveland, Ohio, for appellee.

Before PECK, MILLER and KENT, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

The United States has appealed from a decision of the United States District Court for the Northern District of Ohio, In re Calandra, 332 F.Supp. 737 (1971), in a proceeding ancillary to a grand jury investigation suppressing certain evidence seized from the place of business of a witness, the appellee Calandra, subpoenaed to testify before the grand jury, ordering the return of that evidence, and specifying that the witness need not answer any questions before the grand jury based on the suppressed evidence. While the validity of the search and seizure is presented, the principal issue is whether a district court may consider in a proceeding ancillary to a grand jury investigation a motion to suppress on Fourth Amendment grounds on behalf of a witness for whom the Government has requested immunity pursuant to 18 U.S.C. § 2514.

During the fall and winter of 1970-71 federal agents conducted a rather extensive investigation of certain alleged bookmaking operations. Joseph Lanese was thought to be the central figure in these illegal activities. On December 15, 1970, a number of search warrants were issued based on the information set forth in a master affidavit which purported to reflect the illicit gambling operation. The information contained in the affidavit was the fruit of court-ordered wiretapping, physical surveillance of suspected participants in the alleged operation, and the statements of six informants. Among others, searches of the person, residence, and place of business of the appellee were authorized. In this case, we are concerned only with the search of Calandra's place of business, the Royal Machine and Tool Company.¹ The warrant specifically authorized the seizure of bookmaking records and gambling paraphernalia.

The business occupies a two-story building. The ground floor occupies approximately 13,000 square feet and houses industrial machinery and inventory. The offices of the company are found on the second floor. A general office area occupying approximately 1500 square feet contains the desks of four employees, drawing tables, and filing cabinets for current records. To the south and separated by a partition, is the office of Calandra, president of the company, and his secretary. The office contains desks, filing cabinets and a safe. North of the general office area is a room in which older files and business documents are stored. On December 15, 1970, these premises were subjected to an extensive and apparently careful four-hour search. The record reveals that Government agents spent more than three hours searching appellee's office, meticulously examining virtually every document found therein.

No gambling paraphernalia was discovered during this exploration.² However, one of the searching agents found and seized what he believed to be "loansharking" records. While examining promissory notes found in a metal box stored in a filing cabinet, this agent noticed the name of Dr. Walter Loveland on a card. The card indicated that Loveland had been making periodic payments to Calandra. The agent stated in an affidavit that his suspicions were aroused by this card because he was aware that the United States Attorney's office in Cleveland was also investigating violations of 18 U.S.C. §§ 892, 893 and 894, which proscribe certain credit transactions, and that Dr. Loveland had been a victim of the loansharking enterprise which was under investigation. Various items were then seized, including books and records of the company, stock certificates and address books. In his brief, the appellee points out that while the appellant characterizes some of these items as "loansharking" materials, the nature of the materials seized has not yet been determined.

On March 1, 1971, a special grand jury was called to investigate further violations of federal laws proscribing various "loansharking" practices in the Cleveland area. Calandra was summoned to testify on August 17, 1971. He refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The Government requested the district court to grant Calandra immunity pursuant to 18 U.S.C. § 2514 as he was not the target of the investigation. It is acknowledged by the Government that the questions which it intended to put to Calandra were based on the items seized during the December 15, 1970 search. In response, Calandra requested postponement of the hearing on the immunity question so that he might prepare his motion to suppress the evidence seized as a result of the search of the Royal Machine and Tool Company and on the ground that he had not received proper notice pertaining to the immunity proceedings. The district court granted the postponement and set the matter for oral hearing on August 27, 1971.

On August 17, 1971, Calandra moved for suppression and return of the evidence in question. The motion challenged the validity of the search on a number of grounds, asserting that the warrant was insufficient in a number of respects and that the search itself went beyond the scope of the warrant. At the August 27 hearing, Calandra stipulated that he would refuse to answer questions based on the seized materials. The district court ordered the items seized from his place of business suppressed, directed their return and specified that Calandra need not answer any questions before the grand jury based on the suppressed evidence. The court based its order on findings that due process "allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure" 332 F.Supp. at 742; that the affidavit was insufficient to establish probable cause to search Royal Machine and Tool Company for gambling paraphernalia; that the evidence seized was not within the immediate "plain view" of the officers; and that the search was invalid because it was a "general search," going beyond the scope of the warrant and the permissible limits of the Fourth Amendment.

We turn first to the propriety of Judge Battisti's consideration of Calandra's Fourth Amendment claims. In the district court, the Government contended that a witness called before the grand jury lacks standing to move for pre-indictment suppression of evidence. It is the Government's view that "the scope of the exclusionary rule, or, what is the same thing, standing to suppress the fruits of an illegal search and seizure, has been limited to one who is (1) the subject of the illegal search and (2) the person against whom the evidence is sought to be admitted." While it is, in fact, clear that Fourth Amendment claims may not be raised vicariously Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), it is currently a matter of serious debate whether one whose Fourth Amendment right to privacy has been violated by an illegal search and seizure and is therefore a proper party aggrieved in the Alderman sense may assert such right when called as a witness before the grand jury. See especially In re Egan, 450 F.2d 199 (3rd Cir. 1971) aff'd 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed. 2d 179 (1972); In re Evans, 452 F.2d 1239 (D.C.Cir.1971) (cert. denied 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342); United States v. Gelbard, 443 F.2d 837 (9th Cir. 1971) rev'd 408 U.S. 41, 92 S. Ct. 2357, 33 L.Ed.2d 179 (1972); Application of United States, 427 F.2d 1140 (5th Cir. 1970); and Carter v. United States, 417 F.2d 384 (9th Cir. 1969) (cert. denied 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970)).

In Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the Supreme Court first applied the exclusionary rule, although not in the grand jury context, as a means of giving effect to the Fourth Amendment guarantee of privacy. The Court emphasized the duty of the federal judiciary not to sanction official disregard of the prohibition of unreasonable searches and seizures. That not only the particular items seized illegally but also the "fruit" of a Fourth Amendment violation are to be made unavailable to law enforcement officials was determined in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The very broad language of Silverthorne is tempered by the fact that traditional principles of standing govern the matter of who may seek suppression of the "fruit" of an illegal search and seizure. In Alderman v. United States, supra, the Supreme Court held that "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself . . . ." 394 U.S. at 171-172, 89 S.Ct. at 965. This rule that Fourth Amendment rights may not be asserted vicariously is consistent with the general rule of standing relied upon by the court below which was enunciated in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The Court there held that the standard for determining whether a person possesses requisite standing "concerns, apart from the `case' or `controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee...