United States v. Marcia Lyon and Anton Lysczyk

CUMMINGS, Circuit Judge

(concurring in part and dissenting in part).

Insofar as the judgment of conviction of appellant Lyon is reversed and remanded, I concur. However, I believe that the judgment of conviction of appellant Lysczyk should also be reversed and remanded.

Lysczyk’s principal argument in this Court is that the affidavit supporting the search warrant authorizing seizure of the ledger was chiefly based on information and belief and therefore the search under the resulting warrant violated his Fourth Amendment rights. 1 This argument was not made before the able trial judge so that he had no opportunity to take corrective action. Nevertheless, the use of the ledger at trial and in the jury’s deliberations affected Lysczyk’s substantial rights, requiring us to notice the deficiency of the affidavit under the plain error rule embodied in Rule 52(b) of the Federal Rules of Criminal Procedure. Where the error is clear and affects the substantial rights of a defendant, it is cognizable on appeal although not raised below. Sykes v. United States, 373 F.2d 607, 612 (5th Cir. 1966), certiorari denied, 386 U.S. 977 , 87 S.Ct. 1172 , 18 L.Ed.2d 138 . If this affidavit was defective, the admission of the ledger picked up under the search warrant based on the affidavit was plain error within Rule 52(b). See United States v. Nikrasch, 367 F.2d 740, 743-744 (7th Cir. 1966) ; Smith v. United States, 118 U.S.App.D.C. 235 , 335 F.2d 270, 274, note 13 (1964); United States v. Asendio, 171 F.2d 122, 124-125 (3rd Cir. 1948). This same question is likely to return to haunt us in the form of a habeas corpus proceeding or post-conviction motion, further justifying review on this appeal. See Alexander v. United States, 390 F.2d 101, 103, note 3 (5th Cir. 1968).

The November 17, 1965, affidavit of the FBI agent upon which the search warrant issued provided as follows:

“That he is a Special Agent of the Federal Bureau of Investigation, and that in that capacity he has personally investigated complaints of the violation of the laws of the United States of America at Hurley, in the Western *514 District of Wisconsin, and that of his own personal knowledge MARCIA LYON is the operator of Kay’s Rooms and Hotel Bar, located at 7-9 Silver Street, Hurley, Wisconsin; and that as such operator and on information and belief she has maintained a ledger book containing numbers which have been assigned to acceptable patrons of her illegal operation of a house of prostitution within said premises; and that said ledger book contains the name of the city of address of such patron, followed by a numerical number which indicates the price paid for the services of a prostitute.

“That this affidavit is made for the purpose of securing a search warrant to seize the above-mentioned ledger book.

“That the grounds for the search and seizure are to preserve as evidence the above-mentioned records, which are evidence of the operation of an illegal house of prostitution, which constitutes the basis of a conspiracy to violate Section 1952 of Title 18 of the United States Code.

“Affiant further states that on information and belief your affiant says that the said Marcia Lyon has engaged in a conspiracy to violate Section 1952 of Title 18 of the United States Code by soliciting females from out of the state of Wisconsin, to wit, from St. Louis, Missouri, and Terre Haute, Indiana, to come to Wisconsin to engage in prostitution at her said place of business, and as a result of such solicitation females from both St. Louis, Missouri and Terre Haute, Indiana, did travel into the Western District of Wisconsin for the purpose of and did engage in prostitution at said place of business in violation of Section 1952 of Title 18 of the United States Code.

“Affiant further states on information and belief that a significant portion of the numbers so assigned in said ledger book refer to patrons who reside outside of the State of Wisconsin.” (Emphasis supplied.)

With the exception of the agent’s personal knowledge that defendant Lyon was the operator of Kay’s Rooms and Hotel Bar in Hurley, Wisconsin, the affidavit rests entirely on information and belief. No basis for the agent’s information and belief is conveyed in the affidavit, and under Rule 41(c) of the Federal Rules of Criminal Procedure, the warrant can “issue only on affidavit.” It is true that such an affidavit may be based on hearsay information, but the magistrate must be informed of some of the underlying circumstances supporting the informant’s and affiant’s requisite conclusions. He was not so advised by this affidavit. For failure to provide a sufficient basis for a finding of probable cause, this affidavit did not comply with the principles of the Fourth Amendment. 2 Aguilar v. State of Texas, 378 U.S. 108, 112-116 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 ; Giordenello v. United States, 357 U.S. 480, 486 , 78 S.Ct. 1245 , 2 L.Ed.2d 1503 ; United States v. Roth, 391 F.2d 507 (7th Cir. 1967). As we held in Roth , “sufficient specificity of an affidavit for a search warrant ‘is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police’ ” (at p. 511). Since the Government has not shown that this federal constitutional error was harmless, Lysczyk should receive a new trial without the ledger. Chapman v. State of California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 .

. The affidavit is part of the record on appeal, so that there is no need to go outside the record to consider this argument.

. Other points raised by Lysczyk are not considered in this dissenting opinion inasmuch as the Fourth Amendment point requires reversal.