United States v. Romano, Crim. A. No. 62-19

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Citation: 241 F. Supp. 933
• Docket Number: Crim. A. No. 62-19,62-32.
• Parties: UNITED STATES of America v. Frank ROMANO and Anthony DiPietro. UNITED STATES of America v. Samuel ROSENCRANZ.
• Decision Date: 19 May 1965

241 F. Supp. 933

UNITED STATES of America
v.
Frank ROMANO and Anthony DiPietro.
UNITED STATES of America
v.
Samuel ROSENCRANZ.

Crim. A. Nos. 62-19, 62-32.

United States District Court D. Maine, S. D.

May 19, 1965.

241 F. Supp. 934

COPYRIGHT MATERIAL OMITTED

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Alton A. Lessard, U. S. Atty., William E. McKinley, Asst. U. S. Atty., Portland, Me., for plaintiff

Casper Tevanian, Ralph I. Lancaster, Jr., Portland, Me., Joseph J. Balliro, Boston, Mass., for defendants.

GIGNOUX, District Judge.

Defendants Anthony DiPietro, Frank Romano and Samuel Rosencranz were convicted, following a jury verdict, of various offenses relating to the operation of an illicit still.¹ On appeal, their convictions were reversed on the ground that evidence introduced at the trial had been obtained as the result of an unlawful search of a truck owned and operated by a co-defendant. Rosencranz v. United States, 334 F.2d 738 (1st Cir. 1964). There are now before the Court defendants' motions under Fed.R.Crim.P. 41(e),² filed subsequent to the remand of the proceedings to this Court, to suppress for use as evidence at their second trial materials seized in the course of an allegedly illegal search of the premises on the Ash Swamp Road in Scarborough, Maine, upon which the still was found.

The Government raises two preliminary questions which must be passed upon before considering the merits of defendants' motions. First, the Government challenges defendants' standing to file the motions, on the ground that they are not "person(s) aggrieved" within the meaning of Rule 41 (e). See Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The Court received evidence on this issue. On direct examination DiPietro testified that at the time of the search in question, and for some months prior thereto, he held legal title to the premises involved. He also testified that he had not leased or otherwise surrendered possession of the premises to any other person. While on cross-examination he admitted that he had never in fact occupied the premises and denied any interest in the materials seized by the agents therefrom, his testimony as to ownership was neither contradicted nor impeached. Under these circumstances it cannot be seriously doubted that this defendant had a sufficient interest, as the owner of the premises searched, to establish him as a "person aggrieved" by their search, and to give him standing to make his present motion. See Jones v. United States, supra, 362 U.S. at 265, 80 S.Ct. 725; Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498, 500-501 (1950), aff'd, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). It is also clear that under the

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rule set forth in McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948), the Government would be precluded from using against DiPietro's co-defendants Romano and Rosencranz any unlawfully seized evidence which it could not use against DiPietro himself. Rosencranz v. United States, supra; Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173, 174, n. 5 (1963); Hair v. United States, 110 U.S. App.D.C. 153, 289 F.2d 894 (1961); compare United States v. Serrano, 317 F.2d 356 (2d Cir. 1963); United States v. Chieppa, 241 F.2d 635, 637-38 (2d Cir. 1956), cert. denied, 353 U.S. 973, 77 S.Ct. 1057, 1 L.Ed.2d 1136 (1957).³ Whether the true scope of McDonald is that set forth in the majority opinion in Rosencranz, or that suggested in the concurring opinion in that case, this Court rules that defendants here have the necessary standing to file their present motions to suppress.⁴

The Government next questions that defendants' present motions have been timely filed. It argues that the provision of Rule 41(e) which requires that motions to suppress be made before trial precludes the defendants from filing motions to suppress at this time based on grounds which were not presented to the Court prior to their first trial.⁵ The Court cannot agree. This provision of Rule 41(e) "is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt." Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. at 732. Its purpose is to avoid the delay and confusion which would result from the necessity of determining during trial an issue as to the admissibility of evidence which may be efficiently isolated and disposed of in advance of trial. Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37 (1955); United States v. Jennings, 19 F.R.D. 311, 312 (D.D.C. 1956), aff'd, 101 U.S.App.D.C. 198, 247 F.2d 784 (1957); 4 Barron, Federal Practice and Procedure, § 2406, at 361 (1951). Defendants' present motions have been filed well in advance of their impending second trial, and the issues which they present can be determined at this time without contravening the policy underlying the Rule. They raise substantial questions of constitutional rights and should not be barred by a "narrow, finicky procedural requirement." Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. 725. For these reasons this Court concurs in the view expressed by Holtzoff, J., in United States v. Watson, 146 F.Supp. 258, 259 (D.D.C.1956), rev'd on another ground, 101 U.S.App.D.C. 350, 249 F.2d 106 (1957), that after a conviction is reversed and a case is remanded for a new trial, a defendant's original rights are reinstated and he is not precluded from filing a motion to suppress evidence prior to his retrial. Nor is he

241 F. Supp. 937

precluded from urging in support thereof legal grounds not previously raised. Cf. United States v. Paroutian, 319 F.2d 661 (2d Cir. 1963), cert. denied, 375 U.S. 981, 84 S.Ct. 494, 11 L.Ed.2d 426 (1964); Booth v. United States, 154 F. 836, 837 (2d Cir. 1907). Furthermore, even if the Court might properly dismiss defendants' present motions as not timely filed, the Court would be disposed, because of the appearance of new counsel and the rapidly changing law in the search and seizure area, to exercise its discretion under Rule 41(e) to entertain these motions at this time. See Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. 725. Accordingly, the Court holds that defendants' motions are timely filed. It will therefore pass upon their merits

The challenged search was carried out under a search warrant, which was issued upon the affidavit printed in the margin.⁶ Defendants assert that the affidavit fails to set forth sufficient facts from which the Commissioner could properly find that there was probable cause for issuing the warrant.⁷

The standards by which a court should determine whether an affidavit sufficiently sets forth probable cause for the issuance of a search warrant are well settled. When a Commissioner determines that an affidavit makes out the probable cause required for issuing a warrant, he performs a judicial act. Giordenello v. United States, 357 U.S. 480, 485-487, 78 S.Ct. 1245, 2 L.Ed.2d

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1503 (1958). In reviewing that judicial act a court must make its own judgment on the basis of the information brought to the Commissioner's attention, which in this case is limited to that contained in the affidavit. Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. 725; Schoeneman v. United States, supra; United States v. Casino, 286 F. 976, 977 (S.D.N.Y.1923) (L. Hand, J.). Probable cause means more than...