United States v. Fachini, 71-2096.
| Decision Date | 11 August 1972 |
| Docket Number | No. 71-2096.,71-2096. |
| Citation | 466 F.2d 53 |
| Parties | UNITED STATES of America, Appellant, v. Dominic FACHINI, Jr., Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mervyn Hamburg, Dept. of Justice, Criminal Div., Washington, D. C., Sidney M. Glazer, Dept. of Justice, Criminal Div., Washington, D.C., Ralph B. Guy, U.S. Atty., Detroit, Mich., Laurence Leff, Attorney in Charge Detroit Strike Force, U.S. Dept. of Justice, Haskell Shelton, Sp. Atty., Detroit, Mich., on brief, for appellant.
Peter Shumar, Liberson, Fink, Feiler, Crystal, Burdick & Schwartz, P. C., Detroit, Mich., Neil H. Fink, Detroit, Mich., on brief, for appellee.
Before PHILLIPS, Chief Judge, and McALLISTER and O'SULLIVAN, Senior Circuit Judges.
The United States appeals from an order granting a motion to suppress the use of five counterfeit Federal Reserve notes as evidence.
An indictment was filed March 4, 1969, charging Fachini with having knowingly possessed five counterfeit notes, in violation of 18 U.S.C. § 472. The notes had been taken from the person of Fachini at the time he was arrested at his home pursuant to an arrest warrant issued by a District Court judge upon a complaint. On November 5, 1971, prior to Fachini's second trial,1 the District Court sustained a motion to suppress these counterfeit notes as evidence on the ground that the complaint was invalid. The Government, pursuant to 18 U.S.C. § 3731, appealed to this court. We reverse.
The warrant for the arrest of Fachini was issued by District Judge Fred W. Kaess2 upon the basis of the following complaint:
Before filing this complaint, FBI Agent Tallia, in the course of an investigation with Agent James Killeen of the Immigration and Naturalization Service, had learned that when Fachini had applied to bring his wife into the United States, he had furnished information to the Immigration and Naturalization Service that he was employed by the R. J. Engineering Company. Julius Toth, the owner of this firm, had told the FBI Agent that he had never employed Fachini and could not identify his photograph.
On May 17, 1968, Tallia and other FBI agents executed the arrest warrant and arrested Fachini at his home. Incident to the arrest they searched his person and found and seized the five ten dollar counterfeit notes.
Two questions are presented on this appeal:
(1) Was the complaint upon which the arrest warrant was based adequate to show probable cause? and
(2) If the complaint was insufficient, was the search of the person of Fachini and the seizure of the counterfeit notes valid as incident to a lawful arrest?
In his order suppressing the evidence, the District Court held that the complaint was insufficient under Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and Rule 4, Fed.R.Crim.P.
The complaint filed before Judge Kaess states that on October 16, 1967, Fachini made a false statement in a matter within the jurisdiction of the Immigration and Naturalization Service in violation of 18 U.S.C. § 1001. This offense is punishable by a fine of not more than $10,000 or imprisonment of not more than five years or both.
The complaint states that it is based "on the personal knowledge of the complainant," an FBI agent, and upon information supplied by a named investigator of the Immigration and Naturalization Service and by Julius Toth, that Fachini had submitted a false statement to the Immigration and Naturalization Service representing that he was employed by R. J. Engineering Company.
In granting the motion to suppress, the District Court laid emphasis upon the fact that the complaint does not identify Julius Toth. Certainly the FBI agent would have been more prudent if he had identified Mr. Toth in the complaint as the owner of R. J. Engineering Company. Although the complaint does not so state, the record discloses that Mr. Toth was owner of this firm, which Fachini had claimed under oath to be his employer. The record is silent as to whether the identity of Mr. Toth was disclosed orally to Judge Kaess at the time the arrest warrant was issued. Even without the identification of Mr. Toth, we hold that the complaint was sufficient for Judge Kaess to conclude that there was "probable cause to believe that an offense has been committed and that the defendant has committed it." Rule 4, Fed.R.Crim.P. The complaint contained more than a mere conclusion that Fachini had committed a crime, which was the deficiency found by the Supreme Court in the complaint in Giordenello.
Mr. Justice Harlan, author of the majority opinion in Giordenello, also wrote the subsequent opinion in Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1967). In this later case the Court sustained the sufficiency of a complaint, distinguishing and explaining Giordenello. Under the requirement of Jaben, Judge Kaess was required "to make a neutral judgment that resort to further criminal process is justified." The complaint had to be sufficient to "provide a foundation for that judgment." It had to provide the affiant's answer to the hypothetical question, "What makes you think that the defendant committed the offense charged?" It is not required that "every factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusion be spelled out in the complaint." The complaint simply had to be sufficient to enable Judge Kaess "to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process." 381 U.S. at 224-225, 85 S.Ct. at 1371.
Based upon the information set forth in the complaint, Judge Kaess could have concluded that a reasonable reading of the affidavit showed that the facts were obtained by Government investigation, rather than tips from unnamed informants. Cf. United States v. Moore, 452 F.2d 569, 572 (6th Cir. 1971).
We therefore conclude that the complaint was sufficient under the standards of Giordenello and Jaben.
After determining that the complaint was invalid, the District Court heard evidence on the question of whether the FBI agents had independent probable cause to arrest Fachini, notwithstanding the invalidity of the complaint. The District Court found, on the basis of uncontradicted testimony, that "probable cause did exist at the time of the arrest to believe that Fachini had committed a felony in violation of federal law." This conclusion is well supported by the testimony, which is made an appendix to this opinion.
The factual basis for a conclusion of probable cause supporting a warrantless arrest is at least as stringent as the standards applied for the issuance of an arrest warrant. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). If this standard is met, a showing of probable cause that a felony has been committed has long been deemed sufficient to justify arrest, even if the arrest warrant is invalid. United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971); United States ex rel. Gockley v. Myers, 450 F.2d 232, 234 (3rd Cir. 1971); Chrisman v. Field, 448 F.2d 175, 176 (9th Cir. 1971); Ferganchick v. United States, 374 F.2d 559, 560 (9th Cir. 1967), cert. denied, 387 U.S. 947, 87 S.Ct. 2085, 18 L.Ed.2d 1337.
After ruling that probable cause existed at the time of the arrest to believe that Fachini had committed a felony in violation of federal law, the District Court held that FBI agents were not authorized to arrest Fachini in his private residence without a valid warrant supported by a valid complaint, relying on language in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). That decision involved a search warrant issued by a State Attorney General. After holding the search warrant to be invalid, the court examined and rejected three alternate theories urged by New Hampshire to bring the facts of that case within one of the exceptions to the search warrant requirement. Applying a basic maxim for the interpretation of judicial opinions, we read the language of Coolidge, "in connection with the case in which those expressions are used." Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 398, 5 L.Ed. 257.
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