Petition — Di Novo v. United States

No. 75-400 '

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L2 1975

Supreme Court of the Unite States |

| HICHA L RODAK. IR. Mrex |

Ocroser Term, 1975 ——

MYRON DI NOVO,

Petttioner,

vB.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ARTHUR J. O'DONNELL

33 North Dearborn Street

Chicago, Llinois 60602

(312) 263-5747

Counsel for Petitioner

See ea NN NES

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

TABLE OF CONTENTS

PAGE

Reference to Reports of Opinions ~...........22.....----:eecese-+ 1

I sicccicicinietiaraiclaphtihetahinsrihidilien tiaidacsittitsiannscnsisacaiipcissapectisien 2

Question Presented for Review ..0.0..0...........csecsseeeeeeeeeees 2

Constitutional Provision Presented _.....................:.00----- 2

I: TRI see Aciicincinssainichcanathelettinnctcbacisiiblccibiaitiiinatninesiin 2

STII. sescrcssicsclylbiilecde-wnciiliteatiaralaatiiialihadpiadaisneilibdaiiiliiiiadiadaanbie 2

re ir Oe I ccecicaeinlesnmentantionnion 3

Reason for Granting I 9

An affidavit for a search warrant that fails to

contain factual assertions indicating that narcotics

were on the premises cannot support the issuance

of a warrant to search a residence ............................ 12

SI hdiicciccckuiattisntisabiiticlinsiiiaalvhintiinsttiinsiiinimebeiinteimssipinees 16

Appendix ‘‘A’’ — Opinion of the United States Court

of Appeals for the Seventh Cireuit ~.................. App. 1

Appendix ‘‘B’’ — Affidavit for Search Warrant ....App. 10

Appendix ‘‘C’’— Order denying Petition for

SNITIE :cxnspnccsscciicontetisoinninnistniatibentnbsiniisennncinenist App. 16

AUTHORITIES CITED

Aguilar v. Texas, 378 U.S. 108 (1964) 200 .. 10

Chin Kay v. U.S., 311 F.2d 317 (9th Cir. 1962) ........... 15

Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966) —............. 16

Giordenello v. U.S., 357 U.S. 480 (1958) 20... 10

PAGE

Jones v. U.S., 362 U.S. 257 (1960) ........................0.c0000- 11, 12

Nathanson v. U.S., 290 U.S. 41 (1933) ~......002000000....... 10

Rugendorf v. U.S., 376 U.S. 528 (1964) .................-...... 11

Spinelli v. U.S., 393 U.S. 410 (1969) 0002 11

U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970) ............ 15

US. v. Harris, 408 U.S. 573 (1971) ...................22.-0000000- 11

U.S. v. Klopholz, 17 F.R.D. 18 (S.D.N.Y. 1955) ........ 15

U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964) ............ 16

In the

Supreme Court of the United States

Octoser TERM, 1975

No.

MYRON DI NOVO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner Myron Di Novo prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Seventh Circuit affirming his conviction

in the United States District Court for the Northern Dis-

trict of Indiana, Hammond Division for violation of 21

U.S.C. See. 841(a)(1), possession with intent to distribute

narcotics.

REFERENCE TO REPORTS OF OPINIONS

l'nited States v. Myron Di Novo and Janet Di Novo, ........

a (Gen. No. 74-1681), not yet reported, is attached

as Appendix ‘‘A’’,

2

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on July 7, 1975. A timely

petition for rehearing filed August 4, 1975, was denied on

August 13, 1975. Jurisdiction of this Court is invoked

under Title 28, U.S.C., See. 1254(1).

QUESTION PRESENTED FOR REVIEW

Whether an affidavit for a search warrant that fails to

contain factual assertions indicating that narcotics were

on the premises can support the issuance of a warrant to

search a residence?

CONSTITUTIONAL PROVISION PRESENTED

The Fourth Amendment to the Constitution of the United

States.

STATUTES INVOLVED

21 U.S.C., Sec. 841(a) (1).

18 U.S.C., See. 4208(a) (2).

RULE

Rule 41—Federal Rules of Criminal Procedure.

3

STATEMENT OF FACTS

The Search Warrant

On February 1, 1974, United States Magistrate Wilbur

J. Glendening in Hammond, Indiana, issued a search war-

rant for a white house trailer occupying lot number 24, at

Sheffield Estates, a trailer court located at 3601 Sheffield

Avenue, in Hammond. The warrant authorized a search

of the premises at any time of the day or night.

The affidavit in support of the warrant was dated Feb-

ruary 1, 1974, sworn to and signed by Agent Chown, re-

cited that he had reason to believe that there were con-

cealed on the premises a quantity of heroin, narcotics,

paraphernalia and equipment used for the distribution of

heroin and twelve $20 bills and one $10 bill in pre-recorded

United States currency.

As reasons supporting these conclusions, Agent Chown’s

affidavit stated as follows:

A. On February 1, 1974, Chown (affiant) was advised

by Agent Richard Lobes, Metropolitan Enforcement

Group, Cook County, Illinois, that during the week

of January 7, 1974, he (Lobes) had been advised

by an unnamed, confidential informant that during

the week of January 7, 1974, he (the informant) was

in a house located at 226 Highland, Hammond, In-

diana, with Myron DiNovo. The informant told

Lobes who told Chown that he (the informant) saw

two large plastic bags which DiNovo represented

to be seven pounds of heroin. The informant fur-

ther told Lobes who told Chown that DiNovo would

have thirty pounds of heroin coming from Mexico.

4

(No facts were alleged to show how the informant

acquired this information—i.e. that DiNovo would

have 30 pounds of heroin).

The affidavit also recited that Lobes told Chown that

this anonymous informant had previously introduced

Lobes to a subject who had sold Lobes a quantity

of heroin. Lobes further advised Chown that this

anonymous informant had previously worked with

an Agent Palmer of the Lllinois Bureau of Investiga-

tion and that Palmer told Lobes (who told Chown)

that the informant had given him information which

resulted in several arrests and convictions and that

Palmer considered him highly reliable.

The affidavit also recited that affiant was advised by

Lobes that he determined on January 21, 1974,

through the Illinois Bell Telephone Company that

the phone number at 226 Highland, Indiana, was

listed in the name of Myron DiNovo.

Chown’s affidavit further stated that he had been

advised by Agent Lobes that he had been advised

by an officer West of the Chicago Police Department

that he (West) had been advised by a confidential

informant (not identified as the same informant

mentioned previously) that one Wayne Wild had told

him (the informant) that he (Wild) was a runner

for Myron DiNovo and that Wild told the informant

(who told West, who told Lobes, who told Chown)

that DiNovo would soon have 30 pounds of heroin.

(There were no facts stated to show how Wild al-

legedly acquired this information.)

Chown’s affidavit also stated that on February 1,

1974 he was advised by Agent Richard Sebuck of

the Metropolitan Enforcement Group that on Jan-

a

F.

uary 21, 1974 Sebuck and other agents followed

DiNovo from a trailer on lot 24 on the Sheffield

Estate to 159th & Woodridge, where DiNovo met

Valarie Wild, who was followed to 15722 Willard,

Harvey, Lllinois. Agent Sebuck further advised

Chown that this address was known to be the resi-

dence of Wayne Wild.

Chown said he was advised, also on February 1,

1974, by Agent Thomas Ostrowski of the Metropoli-

tan Enforcement Group that on January 21, 1974,

he followed DiNovo from 159th and Woodridge to a

house trailer lot 24 at Sheffield Estates.

Chown also swore that he was advised on February

1, 1974, by Agent Pastrick, Metropolitan Enforce-

ment Group, that on February 1, 1974, a confidential

informant who had been supplied with twelve $20

bills and one $10 bill in pre-recorded United States

Currency met Valarie Wild at 15722 Willard in

Harvey and drove with her to MeDonald’s parking

lot on Sibley Boulevard in Calumet City, where they

parked next to a greenish Pontiae occupied by My-

ron DiNovo. The informant advised Pastrick (who

told the affiant, Chown) that the informant gave

the money to Valarie Wild who left the car, went

over to DiNovo, handed the money to DiNovo and

received a foil packet. Valarie Wild then returned

to the informant’s vehicle and delivered the foil

packet to the informant. Pastrick further advised

Chown that the informant delivered a packet of

brown powder to Pastrick, who conducted a field

test on the powder and received a positive indication

of opiate content.

Chown’s affidavit also stated: ‘‘ Agent Pastrick fur-

ther advised me that he personally observed the in-

formant and Valarie Wild enter the parking lot,

saw Valarie exit the car, go over to the car occupied

by DiNovo, hand money to DiNovo, and receive a

foil packet.’’

H. Chown’s affidavit further stated that on February

1, 1974, Agent Thomas Ostrowski of the Metropoli-

tan Enforcement Group advised Chown that he fol-

lowed the Pontiac driven by DiNovo from McDon-

ald’s parking lot to the trailer on lot 24 on Sheffield

Estates.

I. Chown also stated that on February 1, 1974, he was

advised by Agent Lobes, ‘‘that he had determined

on January 25, 1974, the telephone listed in the name

of Myron DiNovo was listed for the address at 3601

Sheffield, Hammond, Indiana.’’

J. Chown’s affidavit stated that he was advised by

Agent Pastrick that on January 25, 1974, he de-

termined from the Northern Indiana Public Service

Company that the utilities for lot 24, 3601 Sheffield,

Hammond, Indiana, was listed in the name of Myron

DiNovo.

K. Chown also stated that a review of the records of

the Chicago Police Department indicated that Di-

Novo had been convicted of importing heroin into

the United States and had received a sentence of 5

years probation on July 26, 1972, from the United

States District Court for the Northern District of

Illinois.

Nowhere in the affidavit was there any reference to

Janet DiNovo.

7

Based upon the foregoing affidavit, the United States

Magistrate issued the search warrant. The warrant was

executed in the early morning hours of February 2, 1974,

and a quantity of brown powder, some foil packets, some

syringes, and a quantity of money was seized from the

trailer. While the warrant was being executed, other agents

arrested Myron and Janet DiNovo.

On February 25, 1974, both Myron DiNovo and Janet

DiNovo waived indictment and pleaded not-guilty to a

one-count information which charged that on February 2,

1974, both defendants did knowingly and intentionally

possess with intent to distribute approximately 40 ounces

of a mixture containing heroin, a Schedule [ narcotic drug

controlled substance, in violation of Title 21, U.S.C. Sec.

841(a)(1). (App. ‘‘A’’ p. App. 2).

A motion pursuant to Rule 41(e) of the Federal Rules

of Criminal Procedure to quash the search warrant and

suppress the evidence seized was filed on February 25,

1974. The motions of both defendants were denied in a

memorandum and order dated March 29, 1974.

On June 4, 1974, the defendant filed a motion to reopen

the hearing on the motion to quash the search warrant and

suppress evidence on the grounds of material misrepre-

sentations contained in the affidavit supporting the issuance

of the warrant.

Paragraph 4C of the affidavit for the search warrant

recited that on January 21, 1974 an agent checked with the

telephone company and determined that the phone number

for the house at 226 Highland, Hammond, Indiana was

listed to Myron DiNovo. (App. ‘‘B’’) The records of the

telephone company contradicted this factual assertion and

the government at the hearing stipulated to the factual in-

accuracy contained in the affidavit for the search warrant.

(App. ‘‘A’’ p. App. 4) Following the hearing, the trial

court found no material misrepresentation and denied the

motion.

The defendants did not testify and both were found

guilty by a jury and judgment was entered on the verdict.

After post-trial motions were denied, defendant Myron Di

Novo was sentenced to the custody of the Attorney Gen-

eral for a term of 25 years and fined $25,000.00 with a spe-

cial parole term of six years. Janet DiNovo was sentenced

to the custody of the Attorney General for a term of 25

years and fined $25,000.00 with a special parole term of

six years pursuant to 18 U.S.C. Sec. 4208(a)(2). (App.

‘*A’? p, App. 2)

The United States Court of Appeals for the Seventh

Cireuit affirmed the conviction of Myron DiNo-. but re-

versed the conviction of Janet DiNovo without remand.

(App. ‘‘A’’ p. App. 9)

REASON FOR GRANTING THE WRIT

THE SEARCH WARRANT DID NOT ESTABLISH

PROBABLE CAUSE TO BELIEVE THAT THERE

WERE NARCOTICS ON THE PREMISES FOR WHICH

THE WARRANT WAS ISSUED.

The most glaring and fatal defect in the affidavit is fail-

ure to state anywhere any facts supporting the conclusion

that narcotics could be found on the trailer occupied by

Myron DiNovo. There was double and triple hearsay to

the effect that Myron DiNovo was a dealer in narcotics

and there was the recitation of one controlled sale to an

informer in the McDonald’s parking lot, but in sharp con-

trast to those cases where warrants have been upheld, not

one of the three informants relied upon in the affidavit

supplied any information supporting the conclusion that

there were narcotics in the trailer—the place to be searched

pursuant to the warrant. Absent some information to the

effect that there were narcotics on the premises or that

there was a crime being committed on the premises, there

was absolutely no basis for issuance of a search warrant

for those premises.

The insufficiency of the warrant is immediately apparent

when we recall that the agents applied for and relied upon

a search warrant for the trailer—not an arrest warrant

for defendant, Myron DiNovo. This Court is here called

upon to decide not whether there might have been probable

cause for the arrest of DiNovo—but whether there was

probable cause for the search of a trailer when there was

absolutely no factual allegation that there were narcotics

in that trailer.

10

Although three separate informants were relied upon

by the government, not one of them gave any information

about the trailer or the location of Myron DiNovo’s nar-

cotics. Not one of them had ever purchased narcotics from

DiNovo. None of them had ever been inside his trailer

and seen the narcotics. None of them could refer to a con-

versation in which he said where his narcotics were or

even that he had any narcotics for sale. Nor was there

any mention of narcotic addicts or dealers coming to and

from the trailer.

The Court has repeatedly held search warrants invalid

where they fail to set forth underlying circumstances suf-

ficient to support the conclusion that the items to be seized

are located where affiant says they are located. In Nathan-

son vy. United States, 290 U.S. 41 (1933), where an affidavit

alleged that the affiant had cause to suspect and did believe

that certain merchandise was at a specified location, the

Court held that the affidavit was not sufficient because it

was based upon a ‘‘... mere affirmation of suspicion and

belief without any statement of adequate supporting

facts.’’ (290 U.S. 41, 79 L.Ed. 159, 162) To the same effect

is Giordenello vy. United States, 357 U.S. 480 (1958).

And in Aguilar v, Texas, 378 U.S. 108 (1964), the Court

again held that an affidavit must set forth the underlying

circumstances. Relying on Nathanson and Giordenello, the

Court observed that the affidavit contained no allegation

that affiant spoke with personal knowledge of the matters

alleged therein and did not even contain the allegation that

affiant’s source spoke with personal knowledge. The Court

went on to reaffirm the Jones principle that the magistrate

must be informed of ‘‘some of the underlying circumstan-

ces from which the informant concluded that the narcotics

11

were where he claimed they were.’’ (378 U.S. 108, 114) To

the same effect is Spinelli v. United States, 393 U.S. 410

(1969).

Contrast the facts of this case with the information re-

lied upon in those cases where warrants have been upheld.

In Jones vy. United States, 362 U.S. 257 (1960), the in-

formant supplied information that petitioner and anoiher

kept a ready supply of heroin on hand in the apartment

and ‘‘claimed to have purchased narcotics at the apart-

ment from petitioner ‘on many occasions’, the last of

which was the day before the warrant was applied for.’’

(emphasis supplied) (362 U.S. 257, 268) In Jones the Court

held that the facts were sufficient to allow the magistrate

‘*to conclude that narcotics were probably present in the

apartment. ...’’ (362 U.S. 257, 271)

Similarly in Rugendorf v. Umted States, 376 U.S. 528,

11 L.Ed. 2d 887 (1964), the search warrant for the base-

ment of a residence was predicated upon the informant’s

statement that he ‘‘. .. saw the furs in petitioner’s base-

ment, ...’’ (376 U.S. 528, 532). There was no claim here

that anyone saw narcotics in defendant’s trailer.

And in United States v. Harris, 403 U.S. 573 (1971), the

affidavit in an illegal whiskey case stated that the in-

formant had personal knowledge and had purchased illicit

whisky from the resident described in the warrant. There

was no such allegation of purchase on the premises to he

searched in this case.

The insufficiency of the facts relied upon by the agents

here is further underscored by contrasting these facts with

the facts of numerous cases where the informant personal-

ly purchased narcotics from defendant on the premises to

12

be searched or actually saw narcotics on the premises to be

searched. (E.g. Jones v. United States, 362 U.S. 257).

In the instant case, although there was police surveillance

of the trailer for some time prior to issuance of the war-

rant, there were no drug peddlers or users seen going into

the trailer. A reading of the affidavit in light of the fore-

going principles shows that the facts do not even begin to

provide probable cause to believe there were narcotics

in the trailer. None of the informants here ever claimed

that there were narcotics in the trailer. No one claimed to

have any personal knowledge of what was in the trailer

and none of the persons referred to in the affidavit had any

knowledge of what was in the trailer. There is not even

any hearsay information as to what was in the trailer.

Nor was there any surveillance of known drug users or

peddlers entering the trailer or lurking in the neighbor-

hood. The conclusion of the affiant that there were nar-

cotics in the trailer is mere speculation.

The first informant referred to in the affidavit allegedly

on January 7, 1974, personally observed two large bags

which DiNovo represented to contain heroin in a house lo-

cated at 226 Highland, Hammond, Indiana—but not in the

trailer. Although the informant’s personal observations

may have provided probable cause for search of the house

on Highland, they did not and could not provide probable

eause for search of the trailer.

The second informant allegedly told the agent that one

Wayne Wild told him he was a runner for DiNovo and

that DiNovo would soon have 30 pounds of heroin. There

is, of course, nothing stated as to how Wild allegedly ac-

quired this information, but more importantly there is no

information supplied at all by his informant concerning

narcotics in the trailer.

13

The third informant allegedly participated through an-

other party in a purchase of heroin from defendant—but

again supplied no information as to any heroin in the

trailer or at any other location.

The Fourth Amendment requires that a search warrant

be supported by an affidavit setting forth facts supporting

the conclusion that the items to be seized are located on the

premises to be searched. The affidavit in this case does

not comply with this requirement.

The court below recognized that there were no factual

assertions in the affidavit that directly indicated that nar-

cotics or narcotics paraphernalia were being kept at the

premises to be searched, but affirmed petitioner’s conviction

upon the premise that there were factual assertions in the

affidavit which dissipated the critical nature of the problem.

(App. ‘‘A’’ p. App. 5) The court held that it was proper to

conclude that petitioner had been living at 226 Highland

and kept his supply of heroin there, and that when the af-

fidavit was filed he was no longer living at 226 Highland

but in the trailer.

The basis for the court’s conclusion finds its roots in

expanded interpretation given to the assertion contained

in the affidavit that Myron Di Novo was observed by an

informant in a house at 226 Highland on January 7th in

which narcotics were present, and that as of January 21,

1974 the telephone number for the house at 226 Highland

was listed in his name. (App. ‘‘A’”’ p. App. 4)

As a result of this interpretation, the court arrived at

the conclusion of prior residence by petitioner at 226

Highland and framed the issue as, ‘‘whether there was

probable cause to assume that a drug seller who had pre-

viously kept drugs in his former residence and was seen

14

returning to his current residence after making a drug

sale was still storing narcotics in his residence.’’ (App.

‘A’’ pp. App. 5-6)

The petitioner suggests that the factual assertions re-

lied upon by the court below as a predicate for the con-

clusion of prior residence which in turn is the basis for

the court upholding the search of a subsequent residence

finds no support in the affidavit. Mere presence in a house

three weeks prior does not, without more, establish an

inference of residence. Paragraph 4A of the affidavit states

the facts asserted:

‘‘A. That on February 1, 1974, your affiant was ad-

vised by Agent Richard Lobes, Metropolitan Enforce-

ment Group, Cook County, Illinois, that during the

week of January 7, 1974, a confidential informant ad-

vised Agent Lobes that the informant was in a house

at 226 Highland, Hammond, Indiana, with Myron

DiNovo that week and observed two large plastic bags

containing brown powder which DiNovo represented

to be seven pounds of heroin. The informant further

advised that DiNovo would have thirty pounds of

heroin coming in from Mexico;”’

A close reading of paragraph 4-A fails to show any fact

or circumstance from which residency could be inferred.

The informant did not refer to the premises as DiNovo’s

house, although, if that were the case, it certainly would

seem more likely a description. There are no facts that in-

dicate that he was a tenant or an occupant of the premises,

or that he exercised control of the place. Even the seven

pounds of heroin are not described as belonging to DiNovo,

and finally, the factual assertion that additional heroin

would be forthcoming is not attributed to DiNovo, or for

that matter to anyone.

15

That leads to a consideration of the second factual as-

sertion contained in the warrant from which the Court con-

cluded that appellant had been living at 226 Highland Ave-

nue, the telephone listing. The evidence adduced at the

hearing on June 11, 1974 clearly established that there was

no telephone number listed in the name of Myron DiNovo

at 226 Highland Avenue, Hammond, Indiana. The gov-

ernment expressly stipulated to the factual inaccuracy con-

tained in the affidavit for the search warrant.

Absent the element of prior residency previously dis-

cussed, we are left with the problem, ‘‘that there are no

factual assertions in the affidavit that directly indicate that

narcotics or narcotics paraphernalia were being kept at the

premises to be searched.’’

The two cases cited by the Court as standing for the

proposition that the mere fact that an individual is selling

drugs and has possession of a large quantity of drugs

someplace is sufficient probable cause to search his resi-

dence are clearly distinguishable from the instant case.

In Chin Kay v. United States, 311 F.2d 317 (9th Cir.

1962) the affidavit contained factual assertions from three

informants that the defendant kept narcotics at home and

his place of business.

In the case of United States v. Klopholz, 17 F.R.D. 18

(S.D.N.Y. 1955) it was because of defendant’s own admis-

sions that a search warrant for a safety deposit box was

upheld.

We respectfully suggest that United States v. Flanagan,

423 F.2d 745 (5th Cir. 1970) is more appropriate to the

circumstances in the instant case. In Flanagan, cited by

the court in the opinion, the Court there stated:

16

‘*The statement, even if reliable, that a named person

who is known felon has committed a burglary, plus

possession by the subject of some of the proceeds

when arrested, does not without more authorize the

issuance of a search warrant to search the residence

of accused miles away. Citing United States v. Whit-

low, 339 F.2d 975 (7th Cir. 1964); Gillespie v. United

States, 368 F.2d 1 (8th Cir. 1966).’’

The factual assertions described as dissipating the criti-

eal nature of the problem fail to justify the factual con-

clusion upon which the ultimate holding is based. The

critical problem is still very much in evidence. Something

more than the anemic inferences contained in the affidavit

should be required to fulfill the constitutional requirement

for showing probable cause to search a residence.

CONCLUSION

From the above and foregoing premise, petitioner prays

that your Honors will consider his complaints to be of

sufficient constitutional magnitude to warrant this Court’s

review on writ of certiorari.

Respectfully submitted,

Artruvur J. O’DoNNELL

33 North Dearborn Street

Chicago, Illinois 60602

(312) 263-5747

Counsel for Petitioner

APPENDIX

APPENDIX A

| IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

74-1681

UNITED STATES OF AMERICA,

Plaintiff -A ppellee,

vs.

MYRON DiNOVO and JANET DiNOVO,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division

No. H CR 74-19, Auten SHanp, Judge.

Arcuep Fresruary 26, 1975—Decipep Juty 7, 1975

Before Swycert and Tones, Circuit Judges, and Perry,

Semor District Judge.*

Swycert, Circuit Judge. The principal issues in this

case concern the adequacy of an affidavit by a federal

agent to establish probable cause for the issuance of a

search warrant; the sufficiency of the evidence with respect

to defendant-appellant Janet DiNovo; and the sufficiency

of the evidence with respect to the defendants’ intent to

distribute the drugs found in their home.

* Senior District Judge Joseph Sam Perry of the United States

District Court for the Northern District of Illinois is sitting by desig-

nation .

App. 2

Defendants-appellants Myron DiNovo and Janet DiNovo

were convicted after a jury trial of possession with in-

tent to distribute a mixture containing heroin in violation

of 21 U.S.C. § 841(a)(1). Myron DiNovo was sentenced to

a term of twenty-five years imprisonment and a special

parole term of six years. In addition he was fined $25,000.

Janet DiNovo was sentenced to a term of twenty-five years

imprisonment pursuant to 18 U.S.C. §4208(a) (2).

On February 1, 1974 various police officers, including

agents of the Drug Enforcement Administration traveled

to a house trailer located on Trailer Lot 24, 3601 Sheffield,

Hammond, Indiana to execute a federal search warrant.

Upon arriving the narcotics officers placed the residence

under surveillance. Myron DiNovo was observed leaving

the trailer and getting into a white Poutiac automobile

which he drove across the street and parked alongside

the trailer. Janet DiNovo then left the trailer and got

into this car. An agent pulled up behind the white car,

got out of his automobile and announced to the defendants

that he was a police officer, whereupon the defendants’

car sped away. After the automobile avoided a different

police car and another announced police officer, a high

speed chase took place. Eventually the defendants’ car

slowed down and the defendants were arrested. Janet

DiNovo was identified as having been the passenger in

the car.

Pursuant to the search warrant the Lot 24 house trailer

was searched. In the middle drawer of a bedroom dresser

an agent found a paper bag in which there were thirty-

nine prophylactics containing approximately two pounds

of 7.5 percent pure heroin. In the living room the agents

found a briefcase which had fourteen thousand dollars in

currency and a brown paper bag containing nine foil

packets of heroin. Also in the living room on top of a

App. 3

coffee table were found seven hypodermic syringes, six

of which contained heroin, a few empty packets of tin-

foil, and an open tinfoil packet that contained heroin.

Finally agents found in the bedroom closet two scales,

one of which was accurate to twenty-eight hundredths of

an ounce and was of the type used for rapid weighing.

I.

Both defendants challenge the constitutionality of the

issuance of the search warrant. First they contend that

the affidavit in support of the warrant contained multiple

hearsay which did not meet the requirements of Aguilar

v. Texas, 378 U.S. 108 (1964). We have included the affida-

vit as an appendix to this opinion. We find no problem

with the hearsay statements of the informant in paragraph

4-A. An affidavit for a search warrant can properly in-

clude hearsay based on hearsay provided it contains in-

formation ‘‘relating to (1) the reliability of the informant

and (2) some knowledge of the underlying facts to sup-

port the conclusion that a crime had been committed.’’

United States vy. Carmichael, 489 F.2d 983, 986 (7th Cir.

1973). Sufficient underlying facts are set forth and the

informant’s reliability is adequately shown in paragraph

4-B. The reliability of the crucial information contained

in paragraph 4-G was established by the personal obser-

vations of agent Pastrick also contained in that paragraph.

Finally there is the question of the reliability of the in-

formant referred to in paragraph 4-D. It could be

argued that the statement is a declaration against penal

interest and thus an exception to the hearsay rule. We

do not decide this issue since, as is evident from our later

discussion, we do not believe this informant’s statement

need be considered to find sufficient probable cause.

Defendants also contend that the warrant was invalid

because it was based on an affidavit in which there were

App. 4

material misrepresentations of fact. A full hearing was

held on this issue in the district court pursuant to United

States v. Carmichael. It was stipulated that the informa-

tion in paragraph 4-C was incorrect, Although defendants

contend that this was an intentional misrepresentation, the

district court found that that agent had not even acted

recklessly in regard to the matter and this finding is not

clearly erroneous. Therefore there was no basis for sup-

pression under Carmichael. Defendants also claim that

agent Pastrick’s statement in paragraph 4-G was a mis-

representation of what was actually observed. The dis-

trict court questioned the credibility of Valerie Wild who

gave contradictory testimony. Based on the testimony of

agent Pastrick we accept the lower court’s finding of no

misrepresentation.

Finally defendants attack the affidavit on the ground

that it was insufficient to show probable cause to search

the trailer. In view of our previous discussion, we are

confronted with evaluating the question of probable cause

on the basis of the following facts: During the week of

January 7, 1974 two large plastic bags containing a brown

powder were observed in a house at 226 Highland, Ham-

mond, Indiana and Myron DiNovo represented that they

contained seven pounds of heroin; as of January 21, 1974

the telephone number for the house at 226 Highland,

Hammond, Indiana was listed in the name of Myron Di

Novo; this house was vacated shortly after that date;

on January 21, 1974 Myron DiNovo was observed leaving

and returning to a house trailer on Lot No. 24 at Shef-

field Estates, 3601 Sheffield Avenue, Hammond, Indiana;

or February 1, 1974 Myron DiNovo drove from a parking

lot where he had just delivered a foil packet of opiate

content and received $250 to the house trailer on Lot 24,

Sheffield Estates; as of January 25, 1974 the telephone

App. 5

listed in the name of Myron DiNovo was listed for the

address at 3601 Sheffield; as of January 25, 1974 the

utilities for Lot 24, 3601 Sheffield were listed in the name

of Myron DiNovo; as of January, 1974 Myron DiNovo

was to receive thirty pounds of heroin; Myron DiNovo

had previously been convicted of importing heroin into

the United States. The question is whether these facts

support a search warrant for the Lot No. 24 trailer.

A problem arises because there are no factual asser-

tions in the affidavit that directly indicate that narcotics

or narcotics paraphernalia were being kept at the premises

to be searched. There was probable cause to assume that

Myron DiNovo was ‘‘dealing”’ in narcotics and had control

of heroin someplace. The affidavit was also sufficient to

allow the conclusion that this trailer was Myron DiNovo’s

residence. But there was still the difficult question of

whether the mere fact that an individual is selling drugs

and has possession of a large quantity of drugs someplace

is sufficient probable cause to search his residence. One

court has apparently determined that under such circum-

stances there is probable cause. Chin Kay v. Umted States,

311 F.2d 317 (9th Cir. 1962); cf. United States v. Klopholz,

17 F.R.D. 18 (S.D. N.Y. 1955). But cf. United States v.

Flanagan, 423 F.2d 745 (5th Cir. 1970). In the instant case

there are factual assertions in the affidavit which dissipate

the critical nature of the problem. From the affidavit it

was proper to conclude that Myron DiNovo had been

living at 226 Highland and had kept his supply of heroin

there. Also there was a basis to believe that when the

affidavit was filed Myron DiNovo was no longer living at

226 Highland but instead was living in the trailer on Lot

No. 24 in Sheffield Estates. Thus the issue becomes whether

App. 6

there was probable cause to assume that a drug seller

who had previously kept drugs in his former residence

and was seen returning to his current residence after

making a drug sale was still storing narcotics in his

residence. We think these additional facts and inferences

constituted sufficient probable cause and hold that the

warrant was properly issued.

Il.

Defendant-appellant Janet DiNovo contends that the

evidence was insufficient to prove her knowing possession

of the heroin. The Government’s case is based on the

theory of constructive possession, which ‘‘means being in a

position to exercise dominion or control over a thing.’’

United States y. Holland, 445 F.2d 701, 703 (D.C. Cir.

1971). ‘‘Such dominion and control need not be exclusive

but may be shared with others.’’ United States v. Davis,

461 F.2d 1026, 1035 (3d Cir. 1972). Still, ‘‘mere proximity

to the drug, mere presence on the property where it is

located, or mere association, without more, with the person

who does control the drug or the property on which it

is found, is insufficient to support a finding of possession.’’

Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962)

(footnotes omitted). Our task, which admittedly is some-

what subjective, is to apply these general propositions

to the facts in this case view in the light most favorable

to the Government and determine whether constructive

possession by Janet DiNovo was proved.

The relevant evidence in regard to Janet DiNovo is

minimal. She was present when the down payment of

$100 was made on the trailer, but Myron and his brother

returned alone and paid the $3,200 balance. A January

rent payment for Lot No. 24 was made by Myron DiNovo

App. 7

and the electric service on the trailer had been applied

for by Myron DiNovo. Janet DiNovo was seen leaving

the trailer on January 29, 1974 at approximately 8:50 p.m.,

whereupon she drove to a residence in Hammond, remained

about an hour, drove to a supermarket, bought a few

items, and then returned to the trailer. On February

1, 1974 she also was seen leaving the trailer and getting

into the ear driven by Myron DiNovo that was later

involved in the high speed chase. Finally two different

witnesses did refer to Janet as Myron’s wife.

The Government argues that this amount of evidence is

sufficient to prove that Janet DiNovo was in a position

to exercise dominion and control over the heroin found

in the trailer. It is important to note that, unlike United

States v. Davis, 461 F.2d 1026 (3d Cir. 1972) (relied upon

by the Government) Janet DiNovo was not discovered in

the immediate area of unconcealed narcotics. Thus her con-

structive possession must be justified on the basis of her

possessory interest in the trailer. There was no evidence

to show that she owned the trailer. At best the evidence

showed that she was married to Myron DiNovo and lived

in the trailer with him. Under the circumstances of this

case we think that merely being Myron’s wife is not the

kind of ‘‘special relationship’’ justifying a finding of con-

structive possession speculated upon in United States v.

Holland, 445 F.2d 701, 703 (D.C. Cir. 1971). Even if she

knew that Myron had possession of this heroin, this does

not mean she possessed it. The Government offered no

evidence of what type of clothing was in the dresser in

which the heroin was found. Nor do we know what was

in the portion of the closet where the scales were found.

There is no evidence from which to deduce that the heroin

was in a part of the trailer which was under the control

App. 8

of Janet DiNovo. Finally, unlike Myron DiNovo who

(lrove the fleeing car, Janet DiNovo’s presence as a passen-

ger in the car before and during the time it was involved

in the chase cannot be deemed an admission of guilt

since she did nothing to facilitate the flight. We therefore

hold that the evidence is insufficient to support the guilty

verdict returned against Janet DiNovo.

Ill

An insufficiency of the evidence issue is also raised in

regard to the question of proof of intent to distribute.*

We think the circumstantial evidence was more than suffi-

cient to support this element of the crime.

In the first place the heroin was discovered in prophy-

lactics which are often used for distribution; $14,000

bound in $1000 packets was also found. Most important

was the discovery of the scales, one of which was a rapid

weighing scale accurate to twenty-eight hundredths of an

ounce. Finally there was testimony that the ‘‘street’’

value of this heroin would range from $80,000 to $240,000

depending upon the method and dosage level of distribu-

tion. The introduction of this evidence was objected to

on the basis that it was irrelevant and highiy inflam-

matory. On appeal it is claimed that the evidence was

so prejudicial that the failure to exclude it constitutes

reversible error. We do not agree. Testimony as to value

was relevant and admissible on the question of intent

to distribute. United States v. Wilkerson, 478 F.2d 813,

815 (8th Cir. 1973). Any ‘‘prejudice’’ was due only to

the fact of the amount of heroin possessed which was

the very subject of the crime charged.

*In view of part II of this opinion we are only considering this

issue as it relates to Myron DiNovo.

App. 9

Given the quantity of the heroin possessed, its potential

value and the other discovered items, especially the scales,

we hold that the jury could have properly concluded that

the heroin was being possessed for sale purposes rather

than personal use.

The judgment of conviction of Myron DiNovo is af-

firmed. The judgment of conviction of Janet DiNovo is

reversed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

App. 10

APPENDIX B

UNITED STATES DISTRICT COURT

For The

Northern District Of Indiana

Hammond Division

UNITED STATES OF AMERICA,

vs.

A WHITE HOUSE TRAILER BEARING A RED,

WHITE AND BLUE INSIGNIA WITH THE WORD

‘““SCHULT”’ ON ITS FRONT END WITH A CANOPY

OVER THE SIDE ENTRANCEWAY, OCCUPYING LOT

NO. 24 AT SHEFFIELD ESTATES, 3601 SHEFFIELD

AVENUE, HAMMOND, INDIANA.

Magistrate’s Docket No.

Case No. 74-11M

AFFIDAVIT FOR SEARCH WARRANT

Before Witaur J. GLenventne, United States Magistrate,

49 Muenich Court, Hammond, Indiana, the undersigned

heing duly sworn, deposes and says:

1. That he is employed as a Special Agent of the Drug

Enforcement Administration, and has been so employed

by the Drug Enforcement Administration and its predeces-

sor, the Bureau of Narcotics and Dangerous Drugs, for

approximately four and one-half years, and that he has

been assigned to and participated in investigations in-

volving violations of Federal law during that time prohibit-

ing the sale of dangerous drugs, Title 21, United States

Code, Section 801, et seq. ;

App. 11

2. That based on said investigation, more particularly

described hereinafter, your affiant has cause to believe

and does believe that there is being concealed a quantity

of heroin in the premises described as a white house

trailer bearing a red, white and blue insignia with the

word ‘‘Schult’’ on its front end with a canopy over the

side entranceway, occupying let No. 24 at Sheffield Es-

tates, 3601 Sheffield Avenue, Hammond, Indiana, and

that there is being concealed narcotics paraphernalia

and equipment used for distribution of heroin, and twelve

$20 bills and one $10 bill in pre-recorded United States

currency ;

3. That your affiant is making this affidavit for the

purpose of securing a search warrant in order that a

legal search of the above-described premises may be made

at any time of the night or day, and that a quantity

of heroin which is being maintained for the purpose of

distribution, and narcotics paraphernalia and equipment

used for distribution of heroin, and money which was

the fruits of narcotics sales, in violation of Section 841(a)

(1) of Title 21 United States Code, found therein, may

be seized and dealt with according to law;

4. That the reason that your affiant has reason to be-

lieve and does believe that the above-described contraband

evidence and fruits are being concealed in the above-

described premises are as follows:

A. That on February 1, 1974, your affiant was advised

by Agent Richard Lobes, Metropolitan Enforcement Group,

Cook County, Illinois, that during the week of January

7, 1974, a confidential informant advised Agent Lobes

that the informant was in a house at 226 Highland,

Hammond, Indiana, with Myron DiNovo that week and

App. 12

observed two large plastic bags containing brown powder

which DiNovo represented to be seven pounds of heroin.

The informant further advised that DiNovo would have

thirty pounds of heroin coming in from Mexico;

B. That your affiant was further advised by Agent

Lobes that on a prior occasion this informant introduced

Agent Lobes to a subject who sold Agent Lobes a quantity

of heroin. Agent Lobes further advised your affiant that

the informant previously worked with Agent Palmer

of the Illinois Bureau of Investigation who represented

to Lobes that the informant had given information re-

sulting in several arrests and convictions and that Palmer

considered him highly reliable;

C. That your affiant was further advised by Agent

Lobes that he determined on January 21, 1974, through

Northern Illinois Bell Telephone Company that the tele-

phone number for the house at 226 Highland, Hammond,

Indiana, was listed in the name of Myron DiNovo; but

that investigation revealed that this address was vacated

shortly after that date.

D. That on February 1, 1974, your affiant was fur-

ther advised by Agent Lobes that on January 20, 1974,

Agent Lobes was advised by Officer West, Chicago Police

Department, Gang Intelligence Unit, that a confidential

informant had advised West that the informant was told

by Wayne Wild that Wild was a runner for Myron DiNovo

and that Wild told the informant that DiNovo would soon

have thirty pounds of heroin;

E. That on February 1, 1974, your affiant was ad-

vised by Agent Richard Sebock, Metropolitan Enforce-

ment Group, that on January 21, 1974, Agent Sebock

and other Agents followed Myron DiNovo from the house

App. 13

trailer on Lot No. 24 at Sheffield Estates, 3601 Sheffield

Avenue, Hammond, Indiana, to 159th and Woodridge,

Harvey, Illinois, where he met Valerie Wild. Valerie

Wild was followed to 15722 Willard, Harvey, Lllinois, first

floor apartment. Agent Sebock further advised your

affiant that this apartment was known to be the residence

of Wayne Wild;

F. That your affiant was advised on February 1, 1974,

by Agent Thomas Ostrowski, Metropolitan Enforcement

Group, that on January 21, 1974, he followed Myron

DiNovo from 159th and Woodridge, Harvey, Illinois, to the

house trailer on Lot No. 24 at Sheffield Estates, 3601

Sheffield Avenue, Hammond, Indiana;

G. That on February 1, 1974, your affiant was advised

by Agent Patrick Pastrick, Metropolitan Enforcement

Group, Cook County, Illinois, that on February 1, 1974,

a confidential informant who had been supplied twelve

$20 bills and one $10 bill in pre-recorded United States

Currency met Valerie Wild at 15722 Willard, Harvey,

Illinois, and drove with Valerie Wild to McDonald’s

parking Lot on Sibley Boulevard in Calumet City, Illinois,

where they parked their vehicle next to a greenish

Pontiac occupied by Myron DiNovo. The informant ad-

vised Agent Pastrick that informant had given the twelve

$20 bills and one $10 bill to Valerie Wild who exited

the car, went over to DiNovo, h»ded DiNovo the money,

and received a foil packet. Valerie Wild returned to

informant’s vehicle, delivered the foil packet to the in-

formant. Agent Pastrick further advised that the in-

formant delivered a foil packet of brown powder to Agent

Pastrick and Agent Pastrick conducted a Marquis test

on the powder and received a positive indication of opiate

content. Agent Pastrick further advised that he personal-

App. 14

ly observed the informant and Valerie Wild enter the

parking lot, saw Valerei Wild exit the car, go over to

the car occupied by DiNovo, hand money to DiNovo, and

receive a foil packet;

H. That on February 1, 1974, your affiant was ad-

vised by Agent Thomas Ostrowski that he followed the

greenish Pontiac driven by DiNovo from the MecDonald’s

parking lot to the house trailer on Lot No. 24 at Sheffield

Estates, 3601 Sheffield Avenue, Hammond, Indiana;

I. That on February 1, 1974, your affiant was advised

by Agent Lobes that he determined on January 25, 1974,

the telephone listed in the name of Myron DiNovo was

listed for the address at 3601 Sheffield, Hammond, In-

diana;

J. That on February 1, 1974, your affiant was ad-

vised by Agent Pastrick that on January 25, 1974, he

determined from Northern Indiana Public Service Com-

pany that the utilities for Lot No. 24, 3601 Sheffield,

Hammond, Indiana, was listed in the name of Myron

DiNovo;

K. That a review of the records for the Chicago

Police Department, Chicago, Illinois, indicated that Myron

DiNovo was convicted of importing heroin into the United

States in United States District Court for the Northern

District of Illinois and sentenced to five years proba-

tion on July 26, 1972.

Wherefore, your affiant requests that a search warrant

be issued to any Special Agent of the Drug Enforcement

Administration authorizing him to conduct a search of

the above-described premises, known as Lot No. 24,

Se ee

mens OL

App. 15

Sheffield Estates, 3601 Sheffield Avenue, Hammond, In-

diana, at any time of the night or day, and to search

said premises and to take into possession all such things

as previously described and found in or on such premises.

/s/ Thomas H. Chown

eee ee eeeeee -- Ore ee

Thomas H. Chown

Special Agent

Drug Enforcement Administration

Subscribed and sworn to before me this Ist day of

February, 1974.

/s/ Wilbur J. Glendening

Peer rT eT ee ee el eee

Wilbur J. Glendening

United States Magistrate

Northern District of Indiana

App. 16

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 13, 1975

Before

Hon. Lutuer M. Swycerr, Circuit Judge

Hon. Pamir W. Tons, Circuit Judge

Hon. JosepH Sam Perry, Sr. District Judge

Unitep States or AMERICA,

Plaintiff-Appellee,

No. 74-1681 vs.

Myron DrNovo and Janet DiNovo,

Defendant-Appellants.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

(No. H CR 74 19)

On consideration of the petition for rehearing filed in

the above-entitled cause,

IT IS HEREBY ORDERED that the petition for re-

hearing in the above-entitled appeal be, and the same is

hereby, DENIED.