United States v. Markan
| Decision Date | 10 November 1972 |
| Docket Number | No. CR 71-810.,CR 71-810. |
| Citation | 356 F. Supp. 742 |
| Parties | UNITED STATES of America, Plaintiff, v. Karl Victor MARKAN, Jr., Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
John Berena, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff.
Peter Onysko, Cleveland, Ohio, for defendant.
Defendant is charged with possession of a sawed off shotgun in violation of 26 U.S.C. §§ 5861(b) and 5871. He has moved for suppression of the gun in question on the ground that the search violated his rights against search and seizure under the Fourth Amendment to the United States Constitution.
The motion to suppress challenged police actions with respect to two search warrants for defendant's premises. At the hearing on the motion, the Court ruled that the police actions subsequent to obtaining the first search warrant on October 24, 1972, did not violate defendant's Fourth Amendment rights in and of themselves. However, the Court further determined that the gun in question was obtained as a result or was a "fruit" of the first warrant and therefore must be suppressed if the first warrant was found to be invalid for lack of probable cause. Wong Sun v. United State, 371 U.S. 471, 485-487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
The crucial question presented by the motion to suppress is, therefore, whether the sworn statements in support of the first search warrant are sufficient to establish probable cause for the issuance of a search warrant for a stolen 1965 Chevrolet on defendant's premises. For the reasons stated below, the Court finds that the sworn statements did not establish the requisite probable cause.
On October 24, 1971, the Seven Hills Police arrested Gary Gabbard for riding a motorcycle without a license. They found an automobile vehicle inspection number ("vin") tag and certificate of title in his possession. After an investigation, they determined that the tag and title belonged to a blue 1965 Chevrolet which had been reported stolen.
Later the same day, Patrolman Rusnov advised Patrolman Lancaster of the Seven Hills Police Department of the items obtained from Gabbard. In addition, Rusnov told Lancaster that he had personally observed a turquoise Chevrolet on defendant's premises several nights before. Rusnov also related to Lancaster that an informant had told him (Rusnov) that he (the informant) had recently seen stolen automobiles on defendant's premises.
As a result of this conversation, Lancaster contacted the informant who stated to Lancaster that he (the informant) had seen a 1960 to 1965 Chevrolet on defendant's premises three or four days earlier. Lancaster then conferred with his supervisor, Sergeant Redish, who directed Lancaster to obtain a search warrant for defendant's premises.
Lancaster and several other officers wrote an affidavit later that day with the telephone assistance of a county prosecutor.1 Lancaster waited several hours for the Parma Municipal Court Judge to return from a football game. Although Lancaster testified at the suppression hearing that he had a discussion with the Judge, he did not recall the content of that conversation. The Judge signed the search warrant authorizing a search for a blue 1965 Chevrolet sedan.2
That evening, the police searched the defendant's property and found no 1965 Chevrolet. However, they observed an open box in the corner of the garage with the words "property of Ohio Bell" printed on the box. The police seized the box and the tools therein.
The box and its contents were shown to a security employee of Ohio Bell Telephone Company who stated that the equipment was Ohio Bell property and that he believed the property was a portion of that recently stolen from a repairman's truck. This information was incorporated into an affidavit requesting a second search warrant for the remaining telephone equipment in defendant's house. The Judge signed the second warrant on October 26, 1971.
In a search of defendant's house the same day, the police observed the gun in question hanging on the wall of a bedroom in defendant's house and seized it.
A search warrant issued for a private dwelling must be based on a neutral magistrate's determination from sworn statements of probable cause to believe there is criminal activity on the premises. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Coury v. United States, 426 F. 2d 1354 (6th Cir. 1970). The required probability of criminal activity is less stringent than a prima facie showing and more stringent than suspicion or belief. Spinelli v. United States, 393 U.S. 410, 415-419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Davis, 346 F.Supp. 435, 440 (S.D.Ill.1972).
Mindful of the importance of preventing later fabrication of probable cause and a vitiation of the requirement of the neutral magistrate, the courts have placed restrictions on what may be considered by the reviewing court in examining the magistrate's finding of probable cause. For example, in making the determination that the informant and his conclusions were validly found to be reliable, the reviewing court should examine only the evidence which was presented to the magistrate. United States v. Bailey, 458 F.2d 408 (9th Cir. 1972); United States v. Davis, 402 F.2d 171, 173 (7th Cir. 1968). Obviously, the reviewing court should not speculate that as to the content of conversations with the magistrate concerning additional facts not in the affidavit or record.
In addition, where the information given to the magistrate is not within the personal knowledge of the affiant, the magistrate may consider the information only when the underlying circumstances are described in sufficient detail to permit the magistrate to make an independent determination that, first, the informant is reliable and, second, the informant's conclusion as to the illegal activity is valid. Aguilar v. Texas, 378 U.S. 108, 112, 113, 84 S.Ct. 1509, 12 L. Ed.2d 723 (1965); Spinelli v. United States, 393 U.S. 410, 412, 413, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Thornton, 147 U.S. App.D.C. 114, 454 F.2d 957 (1971).
Apart from these specific restrictions, the reviewing courts have generally walked a narrow line between protecting the accused's rights to privacy and avoiding a highly technical reading of the affidavit. In general, the courts have treated an affidavit more leniently if it was drafted under emergency conditions by a policeman who had no opportunity to consult with a prosecutor. In United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the Court issued the following warning:
See also Coury v. United States, 426 F.2d 1354 (6th Cir. 1970). (Emphasis added.)
Following the principles discussed above, this Court must review the finding of probable cause in this case on the basis of statements presented to the municipal court judge. In this case, the only sworn statements and, in fact, the only statements which were presented to the judge are contained in the affidavit signed by Lancaster.3
The affidavit itself makes only the following statements to justify a search for a 1965 Chevrolet:
1. A stolen vin number tag and stolen certificate of title were found in the possession of Gary Gabbard.
2. Gary Gabbard was "known in the past to be in the company of" the defendant at defendant's residence.
3. An informer (who had given information in the past leading to indictment) had been at defendant's residence during the past week. The informant "further" stated that stolen automobiles had been "concealed and worked on" in the building at the rear of defendant's premises.
Applying Aguilar and Spinelli to the statements of the affidavit, the Court finds that the magistrate could not have properly considered two of these statements. First, the statement that Gabbard was "known" to have been in the company of the defendant is hearsay for which no source is identified and for which no underlying circumstances supportive of the conclusion are alleged. As such, it comes clearly within the ambit of Spinelli and Aguilar and cannot be considered by the Court. Second, the statement by the informant that the automobiles seen on the premises were "stolen" constitutes a conclusion with no facts to indicate how the informant reached the conclusion that the automobiles were, in fact, stolen and must, therefore, fall under the Aguilar holding.
Without these two statements the Court is left with an affidavit reciting merely that the stolen tag and certificate were found in Gabbard's possession and that an informant who had been at defendant's residence stated that cars were concealed and worked on in the buildings at the rear of that residence. Such information is clearly inadequate to support a search warrant for a 1965...
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