United States v. Poppitt, Cr. A. No. 1554

• Decision Date: 06 March 1964
• Docket Number: Cr. A. No. 1554,1556.
• Citation: 227 F. Supp. 73
• Court: U.S. District Court — District of Delaware
• Parties: UNITED STATES of America, Plaintiff, v. Alfred J. POPPITT and Veronica R. Poppitt, Defendants.

227 F. Supp. 73

UNITED STATES of America, Plaintiff, v. Alfred J. POPPITT and Veronica R. Poppitt, Defendants.

Cr. A. Nos. 1554, 1556.

United States District Court D. Delaware.

March 6, 1964.

William J. Wier, Jr., Asst. U. S., Atty., Wilmington, Del., for plaintiff.

James F. Kelleher, Wilmington, Del., for defendants.

STEEL, District Judge.

The question for decision is whether property seized by federal officers under a federal search warrant can be used against defendants in a federal court trial for the violation of a federal statute.

Defendants Alfred and Veronica Poppitt, husband and wife, were charged by separate informations with the commission of a misdemeanor, i. e. accepting wagers without paying the special tax required by 26 U.S.C. § 4411, in violation of 26 U.S.C. § 7203. The cases have been consolidated for trial.

Veronica was arrested in her home at 707 Lore Avenue in New Castle County, Delaware. The arrest was made by Harold J. Maloney, a special agent of the Internal Revenue Service, under an arrest warrant. Immediately following the arrest, Maloney, and other federal officers who accompanied him, acting under a search warrant, seized twenty-six bet sheets and other writings and articles, appearing to relate to numbers and horse betting activities. Alfred was not at home at the time.

Defendants have moved under Rule 41 (e) to suppress the seized property as evidence, and to have it returned to them, for the alleged reason that "there was not probable cause for believing the existence of the grounds on which the search warrant was issued."

The motions were supported and opposed by affidavits. They have been the subject of two hearings. At the first, two arguments were advanced by defendants: (1) the affidavit upon which the warrant issued failed to show probable cause for its issuance, and (2) the warrant was issued before the supporting affidavit was executed. Both points were resolved against the defendants in a memorandum dated November 7, 1963.

During the first hearing two other questions suggested themselves:

1. Did the search warrant describe the premises with sufficient particularity to satisfy the IV Amendment of the Constitution of the United States?¹

2. Was the search warrant executed in violation of 18 U.S.C. § 3109?²

A second hearing was held at which testimony was taken upon these two questions.

Since the same principles govern both motions and a disposition of Veronica's motion will govern Alfred's, only the former will be discussed.

The Sufficiency Of The Description Of The Property To Be Searched

The warrant directs that a search be made of "707 Lore Avenue, being a white, two-story, stucco and shingled detached house with a glassed enclosed porch on the west side facing Lighthouse Road, situated on the northeast corner of Lighthouse Road and Lore Avenue, Gordon Heights, New Castle County, Delaware." The name of defendant did not appear in the warrant, and the warrant did not restrict the search to a particular part of the premises.

The Commissioner issued the warrant upon the basis of an affidavit executed by Joseph A. Camplone, a special agent for the Intelligence Division of the Internal Revenue Service. It stated that 707 Lore Avenue was "a one family * * * dwelling". The present problem arises because this was not true.

The defendant testified that while she and her husband occupied the first floor and basement of the house, the second floor was rented to three men as a furnished apartment, consisting of a living room, two bedrooms, a bath and a kitchen. The apartment was not accessible to the defendant and her husband, entry being by a stairway from the front porch. When at the time of arrest defendant told the officers that other persons lived on the second floor, the officers refrained from entering it.

Because the warrant directed the search of 707 Lore Avenue in its entirety, defendant argues that instead of describing "particularly" the place to be searched as the IV Amendment requires, the warrant directed that two places be searched, and hence it is invalid under the principle stated in United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930).³ In United States ex rel. Sunrise Products Co. v. Epstein, 33 F.2d 982, 984 (E.D.N.Y.1929) the court stated that when warrants have directed the search of apartment houses or other buildings occupied by divers persons, they have been upheld only when by their terms they limited the search to a particular part of the premises, indicated either by a designation of occupants, business carried on, or otherwise. Consistent with this view, warrants have been upheld which directed the search of premises described by street and number but identified the defendants as the occupants, even though other rooms or apartments at the same address were occupied by other persons. Shore v. United States, 60 App.D.C. 137, 49 F.2d 519 (C. A.D.C.1931), cert. den. 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469 (1931); Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442 (C.A.D.C.1946).

Although defendant has discussed the problem as one of constitutional specificity of description, this would appear to be a misconception. The warrant on its face identifies the property to be searched, i. e. a house at 707 Lore Avenue, with sufficient precision to enable an officer with reasonable effort to ascertain and identify the place. This is all that the IV Amendment requires. Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925); United States v. Joseph, 174 F.Supp. 539 (E. D.Pa.1939), aff'd 278 F.2d 504 (3rd Cir. 1960), cert. den. 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960). Properly analyzed, the question of description in the present context would appear to be one of probable cause.

When a warrant directs the search of a multiple occupancy apartment or building, without identifying the particular apartment or room to be searched, the validity of the Commissioner's act in issuing the warrant will depend upon whether probable cause for so describing the premises is shown in the affidavit. A search warrant may validly direct the search of an entire building if probable cause is shown for searching each separate apartment, or for believing that the entire building is actually being used as a single unit; but absent such a showing, a conviction based upon evidence obtained under a warrant commanding a search of the entire building cannot stand. Tynan v. United States, 297 F. 177, 179 (9th Cir. 1924); United States v. Hinton, 219 F.2d 324 (7th Cir. 1955). The evidence upon which a warrant issues must go to all the essential features of the authority to be given by the warrant, of which the particular place to be searched is one. United States v. Innelli, 286 F. 731, 733 (E.D.Pa.1923); Lowrey v. United States, 161 F.2d 30, 33 (8th Cir. 1947), cert. den. 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947), rehearing den. 332 U.S. 787, 68 S.Ct. 36, 92 L.Ed. 369 (1947). In Hinton the court said that "the scope of the warrant to search is dependent upon the extent of the showing of probable cause". 219 F. 2d at 325.

When the warrant here involved is examined in the light of the Camplone affidavit there can be no doubt that the Commissioner was justified in issuing a warrant for a search of 707 Lore Avenue in its entirety. Upon the basis of the affidavit the Commissioner had reasonable cause to believe that the premises were being used in accepting bets on horses in violation of the law, and that gambling paraphernalia and related items were located on the premises. The affidavit stated that a deed for 707 Lore Avenue was recorded in the name of the defendant and her husband and that the building was "a one-family dwelling". The Commissioner had no reason to suppose that anyone other than defendant and her husband lived in the house.

It has been held that if a Commissioner has probable cause to issue a search warrant, a defendant may not, by a motion to suppress, attack the factual accuracy of the affidavit upon which the Commissioner has acted. United States v. Gianaris, 25 F.R.D. 194 (D.C.D.C. 1960). The statement that "most cases" are of this view, 4 Federal Practice & Procedure (Barron) § 2406, 1963 supplement, p. 371, seems doubtful in light of the impressive line of decisions to the contrary cited in King v. United States, 282 F.2d 398, 400, fn. 4 (4th Cir. 1960). Furthermore, United States v. Gianaris, supra, and like cases appear to be irreconcilable with the statement in Rule 41(e) that "the judge shall receive evidence on any issue of fact necessary to the decision" on a motion to suppress. The Espionage Act of 1917, of which Rule 41 is a codification, likewise permitted the reception of evidence when the grounds on which a warrant issued were controverted. Steele v. United States, supra, 267 U.S. p. 501, 45 S.Ct. p. 415, 69 L.Ed. 757.

The question to be resolved is whether evidence obtained under a search warrant which has been properly issued initially by the Commissioner, must be suppressed when later evidence discloses that it applies not only to premises occupied by the defendant, but also to an apartment occupied by three other persons who, so far as appears, are in no way implicated in the alleged crime. The answer would appear to depend upon whether Camplone, in executing the affidavit, had probable cause to believe that the house at 707 Lore Avenue was, as he stated, a single family dwelling.

When in Dumbra v. United States, 268 U.S. 435, p. 441, 45 S.Ct. 546, p. 549, 69 L.Ed. 1032 (1925) it was asserted that a search warrant had been issued without probable cause, the Court said that the only question was: "* * whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; * * *." This statement was made when the sufficiency of the affidavit itself was challenged. The same ...