United States v. Lassoff
| Decision Date | 14 January 1957 |
| Docket Number | No. 10042.,10042. |
| Citation | 147 F. Supp. 944 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert LASSOFF, Myron Deckelbaum, Benjamin Lassoff, Simon Klaymon, Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
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Henry J. Cook, U. S. Atty., Marvin Jones, Asst. U. S. Atty., Lexington, Ky., for plaintiff.
Daniel W. Davies, Thomas D. Hirschfield, Newport, Ky., for defendants.
The defendants are charged by indictment with conspiring to willfully attempt to evade a federal tax and for doing acts making the defendants liable for a federal tax without having paid the tax in violation of 18 U.S.C.A. § 371 and 26 U.S. C.A. §§ 7201, 4401, 4411, and 7262. The violations alleged are charged to have occurred prior to the first day of March, 1956, and continuing up to and including the 19th day of April, 1956. The case is before the court on the following motions filed by the defendant to wit: for a separate trial under Counts 1 and 3 of the indictment, for a severance under Counts 2, 4 and 5 of the indictment, and for the return of the seized property and the suppression of evidence.
The first two of these motions address themselves to the discretion of the court and have not been briefed by either the defendants or the United States. It is clear from the record that no disadvantage would inure to any of the defendants by a denial of these two motions. The trial of the case as to each of the defendants would require the introduction of all the evidence as pertaining to any or all of the defendants and it would be a needless expenditure of time and financial expense to grant a severance or separate trials. The motion for a separate trial under Counts 1 and 3 of the indictment and the motion for a severance under Counts 2, 4 and 5 should be overruled. An order to that effect is this day entered.
The defendants strenuously insist the motion to suppress the evidence should be sustained. The United States equally as strongly urges the court to overrule the motion. Briefs have been filed by the respective sides in support of their contentions.
On April 19, 1956, Mr. Leroy G. Venable, an agent of the Treasury Department of the United States, in the capacity of technical adviser, Office of the Assistant Regional Commissioner, Intelligence, situated in Cincinnati, Ohio, appeared before the United States Commissioner in Newport, Kentucky, and made the following affidavit for a search warrant:
On this affidavit the commissioner issued a search warrant which, aside from the formal language in all such instruments, contained the following pertinent statements:
"Affidavit having been made before me by Levoy Venable that he has reason to believe that on the premises known as second and third floors of 1045 Monmouth Street, Newport, Kentucky in the Eastern District of Kentucky, there is now being concealed certain property, namely betting sheets, betting slips, run down sheets, scratch sheets, equipment, records and gambling paraphenalia which are presently being used in violation of US IRC Regulations 7201, 4401 and 4411 (wagering tax law). * * *"
The United States agents, immediately upon securing the warrant for the search, proceeded to the address set forth in the warrant. This was a three story brick building as evidenced by Defendants' Exhibit 1. The door opening to the street was locked. The officers knocked and failing to gain admission voluntarily from the occupants forced the door open and proceeded up the stairs to the second floor. In the hallway they announced that they were federal officers and sought admission into the rooms opening out of the hallway. The doors from the hallway to the rooms were locked and the officers with instruments broke them open.
Upon entering the rooms they found the defendants whom they detained. They also found the property which is the subject of this motion and which the United States proposes to use as evidence in the prosecution. It is obvious from the photographs introduced as exhibits and from the evidence that the place was being used solely for the purpose of conducting what is generally known as a handbook on horse racing. These items which were confiscated by the agents included betting slips, rundown sheets, records that indicated bets had been taken on ball games, a large number of pencils, an electric pencil sharpener, racing forms and seven telephones which the officers state were constantly ringing during their occupation of the place.
The raid on this building was a part of an extended, if not nation-wide, effort by the Treasury Department to apprehend those engaged in unlawful gambling who had failed to comply with the law requiring the payment of a federal tax. An investigation had been going on for a number of days prior to the time and throughout various communities in several states. The raid was timed to coincide with similar raids in other parts of the country. Knowledge and information of interstate communications with relation to the running of horse races at various race tracks throughout the country was in possession of the agent who made the affidavit for the search warrant. The information established that this place at 1045 Monmouth Street, Newport, Kentucky, was a part of a system where information on sporting events could be received and bets placed by individuals by telephone communications.
The court is called upon to determine two questions: first, the validity of the search warrant; and, second, the right to the search even though the search warrant may be held invalid. I will consider these questions in the order named.
The Fourth Amendment to the Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Probable cause has been defined by the Supreme Court as "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged." Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035.
The circumstances referred to by the court must be apparent from the facts set out in the affidavit and those facts must be such that a reasonably discreet and prudent person would believe an offense as charged had been committed and that there was probable cause to justify the issuance of a search warrant. Dumbra v. U. S., 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032. Clearly the affidavit in the instant case does not meet this test. There is no fact set out and it does not contain such chain of circumstances that probable cause of the violation of law in the premises can be said to be established. A careful reading of the affidavit for the search warrant will show that it contains only conclusions of the affiant. There is no recital that the affiant found or determined facts or circumstances on which probable cause could be based other than that he had good reason to believe and did believe that a violation was being committed.
The Constitutional guarantee against unreasonable search and seizure should not be lightly set aside by a general declaration of a non-judicial officer that he has reason to believe and does believe that a crime is being committed. His affidavit must state facts which he knows to be true from observation. Courts should not permit the evasion of the protection of the individual by validating writs issued on sworn declarations which literally comply with the terms of the federal statue on information and belief or conclusions of fact or of law instead of positively alleging the material facts. Ripper v. U. S., 8 Cir., 178 F. 24; Schencks v. U. S., 55 App. D.C. 84, 2 F.2d 185.
A warrant cannot issue by placing an inference upon an inference as it is well established that the basis of a presumption must be a fact and not another presumption. United States v. Ross, 92 U.S. 281, 23 L.Ed. 707; United States v. Carr, 132 U.S. 644, 10 S.Ct. 182, 33 L.Ed. 483.
The following quotation, succinctly stating the rule with citation of additional authorities, is found in Wagner v. U. S., 8 Cir., 8 F.2d 581, 583:
When the validity of such an affidavit was before the Court of Appeals for the First Circuit in Giles v. U. S., 284 F. 208, 214, the court said:
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