# United States v. Joseph Giacalone and One 1975 Mercury Four-Door Automobile, Maroon in Color, Bearing License Plate Number Tms 416

> Court of Appeals for the Sixth Circuit · August 18, 1976 · 541 F.2d 508

URL: https://www.frixlaw.com/law-library/cases/9463055

## Case

- **Full name:** UNITED STATES of America, Appellant, Plaintiff-Appellant, v. Joseph GIACALONE and One 1975 Mercury Four-Door Automobile, Maroon in Color, Bearing License Plate Number TMS 416, Appellee, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 18, 1976
- **Citations:** 541 F.2d 508; 1976 U.S. App. LEXIS 7512
- **Precedential status:** Published
- **Opinion:** Dissent by McCREE
- **Judges:** Phillips, Weick, Edwards, Celebrezze, Peck, McCree, Lively, Engel
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463055

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463055. Public record. Not legal advice.