United States v. Conway, Crim. No. 62-116.
| Decision Date | 23 May 1962 |
| Docket Number | Crim. No. 62-116. |
| Citation | 217 F. Supp. 853 |
| Parties | UNITED STATES of America v. Clair CONWAY. |
| Court | U.S. District Court — District of Massachusetts |
W. Arthur Garrity, U. S. Atty., Paul J. Redmond, Asst. U. S. Atty., for U. S.
Sheldon Newman, Samuel Leader, Chelsea, Mass., for Clair Conway.
This case is before me on defendant's motion, pursuant to Rule 41(e), to suppress evidence and an alleged confession.
D'Alessandro, a special agent of the Intelligence Division of the Internal Revenue Service on April 5, 1962 made before United States Commissioner (1) an application to search the premises of Leaders Grocery, 74 Second St., Chelsea, and (2) a complaint that Jane Doe had violated 26 U.S.C. §§ 4411, 4412, and 7203.
The application stated:
"I have reason to believe that there is presently being held in the same premises in which I placed wagers with a person or persons whose true and correct identity is unknown to me on or about February 1, 1962, April 3, 1962 and on other occasions, certain gambling materials, devices, equipment, and money, in violation of Title 26, U.S.Code, Sections 4401, 4411, 4412, and 7203. Said premises described as Leaders Grocery, 74 Second Street, Chelsea, Massachusetts, being the first floor of a three story wood frame building painted brown and black and having a pitched roof, and a sign which reads "Leaders Grocery".
Supporting both the application and complaint D'Alessandro offered (1) his affidavit and (2) the affidavit of Rose, another special agent.
Rose's affidavit stated that his search of the tax records disclosed no record of the registration, or issuance of a special occupational tax stamp-wagering for any person at Leaders Grocery.
Commissioner Nelligan issued both (1) a warrant of arrest of Jane Doe and (2) a warrant to search Leaders Grocery for paraphernalia commonly used in the business of accepting wagers and said to be held in violation of 26 U.S.C. §§ 4401, 4411, 4412, and 7203.
The search warrant had in it this recital:
"Affidavit having been made before me by Special Agent Guido D. D'Alessandro that he has reason to believe that on the premises known as Leaders Grocery, 74 Second Street, Chelsea, Massachusetts, above described in the Judicial District of Massachusetts there is now being concealed certain property, namely books, records, papers, notebooks, pencils, memoranda sheets, racing forms (so called), money, and other paraphernalia commonly used in the business of accepting wagers, which are being held and possessed in violation of Title 26, U.S.Code, Sections 4401, 4411, 4412, and 7203 in that the special tax required by Section 4411 has not been paid for the fiscal year ending June 30, 1962."
Reavey, a regular deputy marshal, and McNally and Ginley, both special agents of the Intelligence Division of the Internal Revenue Service went to 74 Second St., Chelsea about 6 P.M. on April 5, 1962. Before their departure, with the telephoned consent of the Department of Justice, the United States Marshal the Honorable Robert Morey appointed McNally as a special deputy United States marshal.
When the trio arrived at 74 Second St., they found that no one was there and the premises were padlocked. Indeed the place was no longer a grocery store but was a daytime restaurant which had closed for the day.
McNally, who undertook the responsibility of executing the search warrant, demanded entrance. No one answering, Ginley procured a crowbar, and broke the lock, and all three entered. Later D'Alessandro joined them for five minutes.
Reavey and McNally searched for and found gambling paraphernalia. Before they had finished James Conway entered. In the presence of Reavey and Conway, McNally completed the inventory on the back of the search warrant. McNally swore to its accuracy and to the presence of Reavey and of Conway. McNally also gave a copy to Conway. The inventory listed these twelve categories of articles seized:
About 7:20 P.M. Mrs. Conway, who was the Jane Doe named in the warrants, arrived. Reavey at once placed her under arrest. Reavey claims that he told Mrs. Conway she did not have to make any statement, and that anything she said might be used in evidence against her. McNally, who was in the room, which was only about 12 feet by 12 feet, did not hear this admonition, and I find that Mrs. Conway did not hear it.
Then McNally started to address questions to Mrs. Conway. He says he also gave her notice that she need not speak, and that what she said might be used against her. But the mimeographed form on which McNally recorded the purport of her answers does not refer to any admonition that either should be given or was in fact given to Mrs. Conway. I find that if Mrs. Conway was warned, she did not hear the warning, and did not, with full knowledge of her right to remain silent, consent to speak. On April 5 McNally wrote out the gist of her answers to his questions on the mimeographed form. The next day he wrote an expanded account.
After both Mr. and Mrs. Conway had seen the seized articles, McNally and Reavey prepared to take Mrs. Conway to the Commissioner. At Mr. Conway's request they went in his car and arrived at about 8 P.M. at the Commissioner's. The seized articles are now in the custody of the Government, and seem to have been taken with the Conways to the Commissioner.
I turn from the findings of fact to questions of law.
First, I consider Mrs. Conway's statements. They were made while she was under arrest. In making them, she did not regard herself as free to refuse to answer. She did not realize her right under the Fifth Amendment not to incriminate herself. She responded solely because of the psychological pressure of the arrest to which she was then subject. Therefore, these statements, admissions, and confessions were given involuntarily. Cf. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651. Hence the second branch of the motion, seeking suppression of Mrs. Conway's statements, should be granted.
The more difficult question is whether the search warrant is valid.
On its face the warrant stated that gambling paraphernalia is being "held and possessed" in violation of 26 U.S.C. §§ 4401, 4411, 4412, and 7203, in that the special tax required by § 4411 has not been paid.
Despite what the warrant says, none of the sections just cited makes it a crime to hold or possess gambling paraphernalia. § 4401 imposes a tax on wagers to be paid by the person accepting them. § 4411 imposes an occupational tax on persons in the business of receiving wagers. § 4412 requires registration on persons in the occupation of accepting wagers. § 7203 provides that any person, required to pay taxes on wagers or on the occupation of accepting wagers, who wilfully fails to pay such tax shall be guilty of a misdemeanor.
The anomalous wording of the warrant leads the defendant to argue that, according to its own text, the warrant purports to search, not for articles used in connection with a crime, but for articles which are alleged themselves to be held and possessed as contraband; and that so construed, the warrant is invalid first because it is based on a mistake of law, and second because the affidavits upon which the warrant was issued do not recite that the affiants observed any of the articles described in the warrant.
The Government cannot meet the argument directly, but seeks to do so obliquely. It urges that the search warrant, though inexact in its wording, was issued to search for articles (that is gambling paraphernalia) used and in that sense "held" in connection with Jane Doe's crimes of wilfully evading the taxes on wagers and on the occupation of accepting wagers. That is, it is the government's position that the warrant was issued on the theory that when an affiant gives evidence that he has observed a crime, and asserts his belief that the crime was committed by certain instruments, the issuing authority has probable cause to issue a warrant to search for the instruments. This argument is obviously premised on Federal Criminal Procedure Rule 41(b) (2) which provides that
Where either evidence directly observed (see Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032) or reliable hearsay...
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