United States v. Staino

• Decision Date: 17 May 1973
• Docket Number: Crim. A. No. 73-96.
• Citation: 358 F. Supp. 852
• Parties: UNITED STATES of America v. Ralph STAINO and Alfred Viner.
• Court: U.S. District Court — Eastern District of Pennsylvania

358 F. Supp. 852

UNITED STATES of America v. Ralph STAINO and Alfred Viner.

Crim. A. No. 73-96.

United States District Court, E. D. Pennsylvania.

May 17, 1973.

Joel H. Slomsky, Special Atty., U. S. Dept. of Justice, Philadelphia Strike Force, Philadelphia, Pa., for plaintiff.

Robert F. Simone, Philadelphia, Pa., for defendants.

MEMORANDUM OPINION

WEINER, District Judge.

On September 20, 1972, this Court issued an Order, at the request of the Organized Crime and Racketeering Section of the United States Department of Justice, authorizing electronic surveillance by the United States Secret Service over telephone number XXX-XXX-XXXX, subscribed to by Alfred "Sonny" Viner and located at 3901 Conshocken Ave, Apartment 82, Philadelphia, Pa. (Misc. No. 72-609). Based upon the intercepted conversations and other evidence, the defendants Viner and Ralph Staino were charged by the Grand Jury with violations of federal laws relating to conspiracy, possession, and dealing in Counterfeit Federal Reserve Notes, 18 U.S.C. §§ 472, 473, 371.

Presently before this Court is the defendants' motion to suppress the evidence which was obtained pursuant to our September 20 wiretap order.

Section 2518 of Title 18, United States Code, and, in particular, subparagraph (3) of that section, pursuant to which the disputed authorization was issued, reads as follows:

"(3) Upon such application the judge may enter an ex parte order . . . authorizing or approving interception of wire or oral communications . . . if the judge determines on the basis of the facts submitted by the applicant that—

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person."

It is the contention of the defendants that the requirements of subsection (b), (c), and (d) were not met by the affidavit of Secret Service Agent McDonnell in that it failed to cite reliable evidence to demonstrate the requisite probable cause to authorize the Order. The government insists that, under the applicable statutory and constitutional standards, the McDonnell affidavit meets each of the requirements in full.

In attempting to determine the propriety and constitutionality of the wiretap at issue, two distinct questions must initially be answered by this Court: whether the information contained in the affidavit is of such a character that a magistrate may credit it in determining whether probable cause has been established, and whether, once it has been determined that the information is creditable, it establishes probable cause.

In order to answer the first of these questions, reference may be helpfully made to the decisions of the Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In essence, these cases suggest that where the affidavit relies on information furnished by an informant for probable cause, it must demonstrate two things—(1) that the informant himself is personally reliable and trustworthy, and (2) that the information furnished by him was gained in a reliable way.

The information set out in the affidavit which led to the monitoring of the telephone number in question comes from a variety of sources. Initially, substantial information was related to the affiant McDonnell and other Secret Service agents by the confidential informant following his arrest for possession of counterfeit notes. Additional information resulted out of an investigation carried out by the informant and other government agents which culminated in the transfer of $2000 in counterfeit bills. Numerous other corroborating steps were taken by the affiant and other agents and were detailed in the affidavit.

We will first consider the personal reliability of the informant. The informant, according to the affidavit, first came to the attention of affiant and the Secret Service following his arrest on September 6, 1972 in Boston, Mass., for possession of $200 in counterfeit Federal Reserve Notes. He provided the agents with an oral statement concerning the source of the notes, identifying that source as one Alfred Viner and stating that he met Viner in Philadelphia and received the notes following a phone call which he placed to XXX-XXX-XXXX. Following this interview, the informant participated in the investigation which was carried out by the agents. Two telephone calls were made on September 7, 1970 to XXX-XXX-XXXX, both of which were monitored by the agents with the consent of the informer, which eventually resulted in a sale of counterfeit currency to the informant who was constantly accompanied by a Secret Service agent. Only an isolated portion of the information involving the first purchase of notes from Viner took place without an agent being present. Given these facts and circumstances, it is doubtful whether the information from this source should even be treated under the "informant" standard of Aguilar and Spinelli, inasmuch as it was verified by the personal observation of a regular identified law enforcement officer at the moment the events described by the informant occurred. In any case, in our opinion, it is clearly sufficient under the applicable constitutional tests to establish the reliability of the informant.

Turning to the second test, it must be established that the information contained in the affidavit, whether based on direct investigation by the affiant or an information supplied by an informant, was obtained by the person furnishing it in a reliable manner. A reading of the affidavit, as noted above, clearly establishes the...