“... the grant of a motion for return of seized property serves not only to restore possession of property to its owner but also serves as a ruling that the search and seizure were illegal and” that the fruits of the search are inadmissible in any proceed ing such as trial upon the merits held subsequent to the indictment. The ruling is binding upon all courts in future criminal litigation.
How later courts described this case
- “... the grant of a motion for return of seized property serves not only to restore possession of property to its owner but also serves as a ruling that the search and seizure were illegal and” that the fruits of the search are inadmissible in any proceed ing such as trial upon the merits held subsequent to the indictment. The ruling is binding upon all courts in future criminal litigation.
- motion for return of a blood-stained automobile belonging to Vito’s nephew, Joseph Giacalone, and seized in connection with an FBI investigation into the disappearance of former Teamsters’ president James Hoffa
Written by the judges who cited it.
The opinion
McCREE, Circuit Judge,
with whom
Judge PECK and Judge LIVELY join, (dissenting).
I concur in Judge Lively’s dissenting opinion, and I write separately only because I was a member of the panel which decided one of the cases relied upon in the majority opinion for the proposition that “once a Magistrate has found probable cause and has issued a warrant, his judgment is conclusive unless arbitrarily exercised, since the purpose of the Fourth Amendment has been served by his review of the affidavit.” The cited cases use the terms “abuse of discretion” and “arbitrariness” as a shorthand way of describing the courts’ obligation to determine whether the facts in the affidavit and all the permissible inferences therefrom could afford the magistrate probable cause to believe that evidence of a crime would be found in the place to be searched. They do not hold that the magistrate’s determination is “conclusive” and therefore immune from judicial review as suggested in the majority opinion.
Our precedents do not support the statement in the majority opinion that “the purpose of the Fourth Amendment has been served by [the magistrate’s] review of the affidavit” and that “the purpose of the probable cause requirement is not so much to establish a burden of proof as to require that searches be authorized by an impartial judicial officer.” The language of the Fourth Amendment explicitly rejects this analysis. It does not simply require that a warrant be judicially authorized. It also provides “no Warrants shall issue, but upon probable cause . . . .” This is an express requirement that the person seeking the issuance of a warrant must sustain the burden of affording the magistrate probable cause to believe that the place to be searched will produce the things to be seized. And probable cause means something more than reasonable suspicion. See Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).