Petition — Wingate v. United States

Supreme Court, U. 8.

FILED

SEP 2 1996

1 MICHAEL RODAK, JR..CLERK

IN THE FF

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 6-'% 6-323

ALZALIA WINGATE and TONI WINGATE,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

WILLIAM A. LAMB

Attorney for Petitioners

25106 Sherwood Circle

Southfield, Michigan 48075

Of Counsel:

SHELDON M. MEIZLISH

1837 First National Building

Detroit, Michigan 48226

INDEX

Page

CONTE F pececnss deccchis oees cians uduewbdes sue il

GEE, Kcorvevucacres verde vweh issues l

Fedde Ve tanapiasbaiandescecasdecégecess 2

FC PURGE TED cc vcccccccccccsscscccstacs 2

CONSTITUTIONAL PROVISIONS INVOLVED ...... 2

STATEMENT OF THE CASE ..i.....ccccccccccccces 3

REASONS FOR GRANTING THE WRIT............. 6

CRUD SE's abe UORS bates cawsccceaeeesce 10

APPENDIX:

Memorandum Opinion (District Court, January 16, 1976) la

Order Denying Motion to Vacate Search Warrant and

Return Contents (District Court, January 16, 1976) . Sa

Opinion (Court of Appeais, June 16, 1976) ........... 6a

Order (Denying Petition for Rehearing) (Court of

Fe a EE hw ddece 46a thaled.s bend coeur 13a

CITATIONS

Page

CONSTITUTIONS:

PE i a a BE ah Mee 2, 7-9

PE \. <6. 5 seduudud uence ous nie heehee 2,9

STATUTE:

a I i ek aE a 2

Federal Rule of Criminal Procedure 41(e) .............. 6

CASES:

Aguilar v Texas, 378 U.S. 108 (1964) ................ 7,8

DiPiazza v United States, 415 F.2d 99 (C.A. 6, 1969). 7

Durham v United States, 403 F.2d 190 (C.A. 9, 1968) 8

Nathanson v United States, 290 U.S. 41 (1933) ...... 8

Spinelli v United States, 393 U.S. 410 (1969)......... 7,8

United States v Cobb, 432 F.2d 716 (C.A. 4, 1970)... 8

United States v Donlon, 334 F. Supp. 1272 (D. Del.,

SEE 46 hn euavbudtadindes bundled bdeb ak keel eeeeeans &

United States v Flanigan, 423 F.2d 745 (C.A. 5, 1970) 8

United States v Nolan, 413 F.2d 850 (C.A. 6, 1969) .. 7

United States v Ventresca, 380 U.S. 102 (1965) ...... 8

United States v Wilson, F.2d , 19 CrL 2349-50

(C.A. D.C., No. 75-1713, June 28, 1976)........... 9

United States v James Wingate, U.S. District Court,

E.D. Mich., So. Div., Crim. No. 75-81740 (Order of

ET Ge, SEs a dandcau oicbeuksdauec «ketene 6

—_—-— -_F

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

ALZALIA WINGATE and TONI WINGATE,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Petitioners, Alzalia Wingate and Toni Wingate, pray that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered in this

cause on June 16, 1976.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals, which is unreported as

of this date, and the order of that court denying the petition for

the rehearing appear in the appendix to this petition. The District

Court's memorandum opinion (unreported) and its order

denying motion to vacate search warrant and return contents

also appear in the appendix to this petition.

JURISDICTION

The judgment of the Court of Appeals was entered on June

16, 1976. An order denying the petition for rehearing was

entered on July 22, 1976. On August 16, 1976, an order was

entered extending the time for filing a petition for writ of

certiorari to September 20, 1976. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

|. Was petitioners’ property (some $500,200 cash) seized by

Federal agents as the result of an illegal search and seizure?

2. Assuming that the answer to the previous question is in

the negative, must the Government return the petitioners’

property (some $500,200 cash) where no criminal charges are

pending against anyone in connection with the possession of

such property, such property is not involved as evidence in any

criminal proceeding and the Government has asserted no claim

(through forfeiture or other appropriate proceedings) to the

property?

CONSTITUTIONAL PROVISIONS INVOLVED

1. The Fourth Amendment provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.”’

2. The Fifth Amendment provides:

“No person shall be . . . deprived of . . . property,

without due process of law: nor shall private property be

taken for public use, without just compensation.”

STATEMENT OF THE CASE*

On October 6, 1975, U. S. Magistrate Barbara Hackett

issued a search warrant! for the search of the premises located at

18805 Capitol Street, Southfield, Michigan (a-25—a-26), the

residence of petitioners and James Wingate (a-62).”

The search warrant was based upon an affidavit given by

FBI agent Edward Grimsley which stated that the Wingate

residence and twelve other locations had concealed upon them

‘bookkeeping records and wagering paraphernalia . . . which

are in violation of Title 18, United States Code, Sections 2,

371 and 1955"° (a-30). Additionally, Grimsley stated that he had

probable cause to believe that James Wingate and twenty-two

other individuals were engaged in illegal gambling operations

(a-32—a-33). This belief, he said, “is based upon personal

observations and participation in this investigation, as well as

the receipt of information from confidential informants whose

information has been corroborated by independent surveillances |

. .. and by information supplied by other confidential informants

of the Federal Bureau of Investigation, as set out herein” (a-33).

Insofar as it pertains to this case, Grimsley relied upon one

informant (‘‘FBI-1°") who told Grimsley that James Wingate was

one of the largest numbers operators in the Detroit area

(a-34—a-36). Mention was also made in the affidavit of the use of

‘drop sites”’, ‘‘offices’’, ‘‘runners"’, etc., in connection with the

operation of the particular type of gambling enterprise under

investigation (a-35—a-36). The affidavit went on to discuss in

great detail the gambling activity which was operated out of the

twelve locations other than the Wingate residence (a-36—a-56).

Next, it discussed, in general terms, the operation of the

particular type of gambling enterprise Grimsley believed James

Wingate headed (a-56—a-58). It then concluded that James

Wingate (1) was the ‘‘banker"’ of the ‘‘major mutuels combine”

*Unless the context indicates otherwise, parenthetical references

preceded by “‘a-"* refer to the pages of the appendix to the brief submitted by

the Petitioners to the Court of Appeals.

1. Hereinafter, this search warrant will sometimes be referred to as “*S.W.

#1.

2. James Wingate is, respectively, husband and father of Alzalia Wingate

and Toni Wingate, the petitioners (a-!7—a-18; a-62).

4

(a-S8—a-59) and (2) ‘‘keeps large sums of money used to operate

his combine at his residence . . . and in safety deposit boxes

located at an unknown commercial bank”’ (a-59). The second

conclusion, Grimsley said, was based on his experience and the

experience of other FBI agents, his Grims'ey’s) opinion ‘‘that a

‘banker’ would not utilize conventional depositories of money . . .

[but] would prefer to keep large sums of money unreported for

tax purposes’’, the fact that Wingate did ‘‘not maintain an office

at any known location where he conducts a legitimate business

and, so far as Grimsley knew, was not lawfully engaged in any

trade, profession, etc., that Wingate owned three automobiles

having *‘aggregate value of $25,500°' and that, although the

Wingate residence *‘was purchased by [James Wingate] and his

wife, Alzalia Wingate, for $100,000.00, only $50,000.00 of which

was mortgaged"’ (a-59).3

During the course of the October 6 search of the Wingate

residence, Federal agents seized cash in excess of $3,000 and

other items (a-26—a-29; a-17). Grimsley, on the following day,

applied for and received a second search warrant (“‘S.W. #2°°)

granting authority to search ‘‘safety deposit box, #127"' of the

Livernois-Lyndon Branch of the Manufacturers National Bank

of Detroit, Michigan (a-12—a-18). As the Court of Appeals

indicated, the first two numbered paragraphs of the supporting

affidavit were identical to the opening paragraph of the October

6 affidavit for S.W. #1. The October 7 affidavit then concluded:

“3. * * * During the course of [the October 6, 1975,

search of the Wingate residence}, JAMES WINGATE

who was present remarked to the investigating agents in

substance that he did not keep gambling paraphernalia or

gambling receipts at his residence; that he did have a

safety deposit box, but that he did not keep the key on

3. The affidavit contains nothing to substantiate Grimsley’s claim that

evidence of James Wingate’s alleged criminal activity would be found at the

Wingate residence apart from the assertions Grimsley made in support of his

second conclusion. Two points may be noted with respect to these assertions.

First, the most prominent of the assertions consist of several negative

propositions. But it does not follow from the fact that James Wingate did not do

certain things that he did do other things at his residence (or anyplace else).

Second, and of greater importance, as noted in the ‘Original Motion” (see n.

4, infra), petitioner Alzalia Wingate operated a rather substantial business

enterprise from her residence. (Original Motion, Pars. 6.B and 16.)

Sea

5

the premises at 18805 Capitol Street; he stated that the

safety deposit box was at MANUFACTURERS

BANK—he did not disclose the location.

‘Subsequently, the investigating agents found in the

residence at 18805 Capitol Street, a receipt for payment

for a safety deposit box, #110 at MANUFACTURERS

NATIONAL BANK OF DETROIT, Livernois-Lyndon

Branch, Detroit, Michigan.

‘This Agent has learned that #110 was closed on March

18, 1974, but that a new and larger box, #127, was

opened on March 19, 1974, in the names of ALZALIA

WINGATE, wife of JAMES WINGATE, and TONI

WINGATE, daughter of JAMES WINGATE.

‘I, therefore, have reason to believe that from

statements made by JAMES WINGATE during the

course of the search at his residence at 18805 Capitol

Street, that gambling receipts and gambling records are

contained in a safety deposit box, #127, located at the

MANUFACTURERS NATIONAL BANK,

Livernois-Lyndon Branch, Detroit, Michigan. In

addition, an effort was made to locate any other safety

deposit box held by MANUFACTURERS NATIONAL

BANK on behalf of JAMES WINGATE. No other safety

deposit boxes appear to be held by JAMES

WINGATE” (a-17—a-18).*

4. Petitioners’ present counsel, on November 4, 1975, filed a “Motion of

Alzalia Wingate for Return of Property Illegally Seized"’ (hereinafter,

‘Original Motion’). In it, the claims were made that the October 7, 1975,

affidavit was, in part, “‘intentionally incomplete so as to deceive the

Magistrate"’ and also, in other parts, **totally false, misleading and fabricated

(Paragraphs 4, 6, 15.C and 16). Before the hearing could occur, new counsel

came into the case and filed a document entitled ‘‘Superseding Motion of

Alzalia Wingate and Toni Wingate to Vacate the Search Warrant and Retum

Property Pursuant to Rule 41(e), Federal Rules of Criminal Procedure

(hereinafter, ‘‘Superseding Motion”) (a-1—a-3). The Superseding Motion,

which was explicitly “intended to replace any and all other motions with

respect to this specific subject matter’ (a-1), contained no charges of

misrepresentation or omission of material facts by Grimsley and apparently, at

the hearing, petitioners’ new counsel stated that he did not challenge the

veracity of the affidavits. (Gourt of Appeals Slip Opinion, pages 7-8.)

As indicated in the Original Motion (Par.4), although apparently not in the

Superseding Motion, Safe Deposit Box #110 had been opened in the name of

Petitioner Alzalia Wingate; her husband's name was nowhere on it.

Interestingly ,Grimsley’s October 7th affidavit omitted to specify the owner or

lessee of Safe Deposit Box #110.

6

After the search of the safe deposit box, Grimsley again

applied for a warrant (“‘S.W. #3°') to search the Wingate

residence. As a result of that search, some $3,600 cash was

seized by the Federal government.

. None of the monies seized have ever been returned. No

criminal charges were ever filed against: petitioners. Indeed, it

appears that they ‘‘have never been convicted of any crime or

engaged in any criminal activity’’ (a-l—a-3 [Paragraph 3)).

Indeed, in his affidavits for S.W. #1 and S.W. #2, Grimsley

never accused petitioners of engaging in any of the activities he

was investigating.

Although charges were filed against James Wingate, they

were all dismissed on December 18, 1975. (United States v

James Wingate, U. S. District Court, E.D. Mich., So. Div.,

Crim. No. 75-81740.)

The United States has not instituted forfeiture proceedings

with respect to gny of the items seized during the course of the

three searches.

The Government has refused to return to petitioners the cash

it seized from them.

The Superseding Motion was filed, pursuant to Federal Rule

of Civil Procedure 41(e), to obtain return of the $500,200 cash

seized from Safe Deposit Box #127 during the course of the

second search. As previously indicated, the motion was denied

on January 16, 1976, the Court of Appeals affirmed on June 16,

1976, and it denied rehearing on July 22, 1976.

REASONS FOR GRANTING THE WRIT

The ruling of the court below on the Fourth Amendment

argument is in conflict with the applicable decisions of both this

court and the various courts of appeals. The ruling on the Fifth

7

Amendment argument? is in direct conflict with that

amendment.

1. A search warrant may be issued only upon a snowing of

probable cause to believe that the criminal objects described in

the warrant are presently in the place whose search is

authorized. Spinelli v United States, 393 U.S. 410 (1969), and

Aguilar v Texas, 378 U.S. 108 (1964). The District Court appears

to have believed that the October 7 affidavit, by itself, could not

justify the search warrant for Safe Deposit Box #127 but

assumed that the Magistrate, in issuing the search warrant for

that safe deposit box, also considered the affidavit submitted to

her on the previous day for the warrant authorizing the search of

the Wingate residence and that, taken together, the two

affidavits established probable cause. The Court of Appeals,

upon the authority of its prior decisions in United States v

Nolan, 413 F.2d 850 (C.A. 6, 1969),° and DiPiazza v United

States, 415 F.2d 99 (C.A. 6, 1969), held that this approach to the

issue was consistent with the Fourth Amendment and affirmed.

Petitioners, on the other hand, contend that, either singularly or

collectively, the two affidavits did not establish probable cause

to justify a search warrant for Safe Deposit Box #127 and they

respectfully submit that the courts below erred in holding the

contrary.

5. While the Superseding Motion was pending in the District Court, all

criminal charges against James Wingate were dismissed. No proceeding

involving the $500,200 cash is pending in any court. The Government has not

claimed, through forfeiture or other proceedings, that it is entitled to any

portion of that money. Nevertheless, counsel who then represented petitioners

apparently never directly raised the Fifth Amendment issue in either the

District Court or in the Court of Appeals. It was, however, raised by

petitioners’ present counsel in the petition for rehearing which he submitted to

the Court of Appeals. That court, in its order denying rehearing, stated that the

issue “*had been considered fully at the original submission of this appeal.”

6. In Nolan, the Sixth Circuit had held that when one of two

contemporaneously filed affidavits is attached, one having been given for a

warrant to search a defendant's residence and the second for a warrant to

search his automobile, the evidence supplied by the othe~ can be considered as

support for the Commissioner's finding of probable cause for the warrant under

attack. In Nolan, it should be noted, unlike the situation in the instant case,

both affidavits were subm. ‘ted to, and considered by, the Commissioner at the

same time.

As previously indicated, the October 6 search warrant was

based on an affidavit requesting a warrant not only for the

Wingate residence but for also twelve other locations. However,

unlike the situation with respect to the Wingate residence, the

affidavit contained a plethora of facts to justify the belief that

there was evidence of gambling activity at the other locations

(a-36—a-56). However, insofar as it pertained to the Wingate

residence, the affidavit actually contained nothing other than the

flat assertion that the Wingate residence contained evidence,

etc., of gambling activity, such assertion being exclusively based

upon the fact that Wingate was (allegedly) the banker for a

numbers operation (a-58—a-59). This is hardly enough to

establish probable cause. Spinelli v United States, supra, United

States v Ventresca, 380 U.S. 102 (1965), Aguilar v Texas, supra,

378 U.S. at 114-16, Nathanson v United States, 290 U.S. 41,

46-47 (1933), United States v Cobb, 432 F.2d 716, 718-719 (C.A.

4, 1970), United States v Flanigan, 423 F.2d 745, (C.A. 5, 1970),

Durham v United States, 403 F.2d 190 (C.A. 9, 1968). and

United States v Donlon, 334 F. Supp. 1272 (D. Del., 1971). And

if the search of the Wingate residence was contrary to the Fourth

Amendment, evidence obtained as a result of information

obtained during that illegal search (i.e., the information

pertaining to the two safe deposit boxes) must be suppressed and

the property returned.

But even if the contents of the October 6 affidavit constituted

probable cause to search the Wingate residence, there still is no

basis for concluding that petitioners’ safe deposit boxes had

evidence, etc., of any illegal activity. Safe Deposit Box #110

was issued in the name of petitioner Alzalia Wingate.’ Safe

Deposit Box #127 was issued in the name of both petitioners

(a-17—a-18). No claim was ever made that James Wingate had

access to either box. Nothing in either the October 6 or the

October 7 affidavits remotely link either petitioner to any illegal

activity whatsoever. The fact that, over one year prior to

execution of the affidavits, Safe Deposit Box #110 had been

closed by one of the petitioners and Safe Deposit Box #127 had

7. See n. 4, supra.

9

been opened in the name of both of the petitioners (a-17—a-18)

hardly justifies any conclusion which could support issuance of

the search warrant for Safe Deposit Box #127.

To conclude, the fact that there was probable cause to

believe that James Wingate headed a numbers operation by itself

hardly constituted the cause necessary to justify a search of the

Wingate residence. It constituted even less cause to justify the

search of a safe deposit box owned or leased by others.

2. The government has never made any claim, through any

appropriate proceeding, to the $500,200. No criminal case is

pending involving the money. The Government's refusal to

return petitioners’ lawful property is a violation of their Fifth

Amendment rights to due process of law and not to have their

property taken for public use without just compensation. **[I]t is

fundamental to the integrity of the criminal justice process that

property involved in the proceeding, against which no

Government claim lies, be returned promptly to its rightful

owner.” United States v Wilson, ___F .2d_____ (C.A.. D.C.., No.

75-1713, June 28, 1976),® Slip Opinion at 6. **{T}he district court,

once its need for the property has terminated, has both the

jurisdiction and the duty to return the contested property here

regardless and independently of the validity or invalidity of the

underlying search and seizure.’’ United States v Wilson, supra,

Slip Opinion at 7. And a Rule 41(e) motion is an appropriate

vehicle to seek return of property under such circumstances

even though there may be other adequate civil remedies. United

States v Wilson, supra. Requiring petitioners’ to resort to other

civil remedies would merely result in a waste of time, money and

judicial resources and would hardly serve any policy

consideration.

8. A digest of the opinion appears at 19 Criminal Law Reporter 2349-50.

10

CONCLUSION

For the foregoing reasons, this petition for writ of certiorari

should be granted.

Respectfully submitted,

WILLIAM A. LAMB

Attorney for Petitioners

25106 Sherwood Circle

Southfield, Michigan 48075

Phone: (313) 557-4927

OF COUNSEL:

SHELDON M. MEIZLISH

1837 First National Building

Detroit, Michigan 48226

Phone: (313) 964-3430

Dated: August 20, 1976.

ADDENDUM (August 30, 1976): After this petition was sent to

the printer, counsel for petitioners (who does not represent them

in tax matters) was apprised of certain information not previ-

ously known to him. The substance of this information (which

may have the effect of modifying some of the statements con-

tained in the petition) is as follows: On November 11, 1975, the

Internal Revenue Service levied on property, monies, etc., in

the possession of the Federal Bureau of Investigation and be-

longing to either James Wingate or petitioner Alzalia Wingate.

The amount of the James Wingate levy was $385,185.40. The

amount of the Alzalia Wingate levy was $464,367.75. Counsel

has also been advised that the underlying jeopardy assessments

are being challenged by the attorneys who handle the Wingates’

tax matters.

APPENDIX

BANK OF DETROIT,

Safety Deposit Box #127,

la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, T

Plaintiff,

-VSs-

CRIMINAL

MANUFACTURERS NATIONAL NO. 75-81745

Livernois-Lyndon Streets,

Detroit, Michigan,

Defendants.

MEMORANDUM OPINION

Alzalia Wingate and Toni Wingate, by a superseding motion,

seek the return of the contents of a safety deposit box, which

contents were seized upon the authority of a search warrant.

On October 6, 1975, United States Magistrate Barbara K.

Hackett issued several search warrants, including a search

warrant for the premises at 18805 Capitol Street, Southfield,

Michigan, being the residence of James Wingate. The affidavit of

Special Agent Edward Grimsley, Federal Bureau of

Investigation, in support of the October 6, 1975 search warrant

contains great detail and is clearly sufficient for a determination

of probable cause to believe that James Wingate and others have

committed and were continuing to commit multiple offenses,

including illegal gambling operations in violation of Sections

750.301, 750.304, 750.306, 750.314, and 750.315 of the Michigan

Compiled Laws, and that they had conspired to do so in

violation of Sections 1955 and 371 of Title 18, United States

Code.

2a

On October 6, 1975, upon the authority of the search

warrant, agents of the Federal Bureau of Investigation searched

the premises at 18805 Capitol Street, Southfield, Michigan,

during the course of which they interviewed James Wingate.

On October 7, 1975, another affidavit of Special Agent

Grimsley was submitted to the same United States Magistrate,

whereupon she issued a search warrant authorizing the search of

safety deposit box No. 127 located at the Livernois-Lyndon

Streets Branch of Manufacturers National Bank of Detroit and

rented in the name of Alzalia Wingate and Toni Wingate, wife

and daughter of James Wingate. The search warrant recited that

said safety deposit box was being used to conceal illegally

obtained gambling records and gambling receipts.

On the authority of the October 7, 1975 search warrant,

special agents of the Federal Bureau of Investigation opened the

box and took possession of currency in the sum of $500,200.00.

In their superseding motion dated November 20, 1975,

Alzalia Wingate and Toni Wingate allege that they are the

owners of the currency removed from the safety deposit box.

The validity of the search warrant is the only issue raised by the

motion. The Court makes no determination with respect to the

ownership of the contents of the box.!

It is clear that the purpose of issuance of the search warrant

was to obtain gambling records and gambling receipts belonging

to and/or in the control of James Wingate. The warrant was not

issued to obtain evidence against Alzalia Wingate or Toni

Wingate.

The Court has difficulty with the sufficiency of the

allegations in paragraph 2 of the October 7, 1975 affidavit.

Paragraph 2 states nothing more than conclusions based upon

personal participation in an investigation. The allegations and

conclusions stated in paragraph 2 of the affidavit are more than

1. The affidavit in support of the motion is signed by counsel for the

moving party. The allegations in paragraph 3 are not on information and belief.

It is not clear how the affiant could know that others have never engaged in any

criminal activity, nor how they could know who owns the money found in the

box. It is perhaps reasonable to infer that these allegations were intended to be

upon information and belief.

[o> >

3a

adequately supported by the detailed allegations in the affidavit

of Special Agent Edward Grimsley filed on the previous day

with the same magistrate and which supported the issuance of

the October 6, 1975 search warrant with respect to the residence

of James Wingate.

MAY THIS COURT CONSIDER THE CONTENTS OF THE

OCTOBER 6 AFFIDAVIT IN DETERMINING THE

VALIDITY OF THE OCTOBER 7 SEARCH WARRANT?

It is established law that in passing on the validity of a search

warrant, the reviewing court may consider only information

brought to the magistrate’s attention. Aguilar v. Texas, 378 U.S.

108 (1964). Also see Vol. 68, Am.Jur.2d, Searches and Seizures,

§63; and Rule 41, Federal Rules of Criminal Procedure. With

equal reason, the reviewing court must consider all information

properly considered by the issuing magistrate.

While the inadequacy of the lone affidavit does not establish

that she relied upon more, such inadequacy is consistent with

such a conclusion, if otherwise supported by the record. So, too,

is the printed form of search warrant which refers to

**Affidavit(s)"’. (Emphasis added).

The affidavit of October 7 contains no specific cross

reference to the October 6 affidavit, but in paragraph 3 it does

contain a cross reference to the October 6 search warrant.

The opening paragraphs of both affidavits are the same.

Both affidavits were made by the same affiant. They were

filed with the same magistrate within a two-day period in

connection with one on-going major investigation.

Not only may it be inferred that the magistrate considered

information derived from both affidavits in issuing the October 7

warrant; the more carefully one examines the entire file, the

more certain it is that no other conclusion is consistent with

reality.

READING THE TWO AFFIDAVITS IN SERIES, AS DID

THE MAGISTRATE, DO THEY SUPPORT THE

CONCLUSION THAT THERE WAS PROBABLE CAUSE

TO BELIEVE THAT BOX 127 CONTAINED THE

DESCRIBED CONTRABAND?

4a

The October 6 affidavit not only described the large scope of

James Wingate’s illegal gambling operation; it also establishes

the great care he has used to escape detection.

The October 7, 1975 affidavit for search warrant was

typewritten. Above the affiant’s signature additional sentences

were printed. From the context the Court is satisfied that the

additional sentences read as follows:

‘‘In addition an effort was made to locate any other safety

deposit box held by Manufacturer National Bank on behalf

of James Wingate. No other safety deposit boxes appear to

be held by James Wingate.’’ (Emphasis added).?

The second affidavit disclosed admissions by James Wingate

that he did not keep gambling contraband at his home and that he

did have or had had a safety deposit box. It also indicates that

the investigating agents found at the Wingates’ residence a

receipt for payment for a safety deposit box, #110, at

Manufacturers National Bank of Detroit. Finding the receipt led

directly to the location of a currently leased box in the name of

his wife and daughter. The box was not the smailest box

available from the bank. It is reasonable to infer from all the

circumstances disclosed by the affidavits that James Wingate

had access to and used box #127 for illegal purposes although it

was leased in the name of others. The Court has been unable to

find any authority that a safety deposit box is immune from

search because it is leased in another's name.

For the foregoing reasons, the motion of Alzalia Wingate and

Toni Wingate to vacate the search warrant and to order return of

the contents of safety deposit box #127 to them should be

denied.

/s/ JAMES P. CHURCHILL

United States District Judge

A TRUE COPY

HENRY R. HANSSEN

Clerk

By: /s/ LILLIAN BROOKS

Deputy Clerk

Dated: January 16, 1976

2. The printed word itself could be read as “an” or “no”.

Sa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

CRIMINAL

-VS- NO. 75-81745

MANUFACTURERS NATIONAL BANK

OF DETROIT,

Livernois-Lyndon Streets,

Safety Deposit Box #127,

Detroit, Michigan,

Defendant.

ORDER DENYING MOTION

TO VACATE SEARCH WARRANT

AND RETURN CONTENTS

At a session of said court held in the Federal Building and

U. S. Courthouse, Detroit, Michigan, on January 16, 1976.

Present! HONORABLE JAMES P. CHURCHILL

United States District Judge

For the reasons set forth in a Memorandum Opinion of the

Court issued this date, the Superseding Motion of Alzalia

Wingate and Toni Wingate to Vacate the Search Warrant and

Return Property Pursuant to Rule 41(e), Federal Rules of

Criminal Procedure, is hereby DENIED.

/s/ JAMES P. CHURCHILL

United States District Judge

A TRUE COPY

HENRY R. HANSSEN

Clerk

By: /s/ LILLIAN BROOKS

Deputy Clerk

6a

NO. 76-1296

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff,

v.

MANUFACTURERS NATIONAL BANK

OF DETROIT, LIVERNOIS-

LYNDON STREETS,

SAFETY DEPOSIT BOX #127,

DETROIT, MICHIGAN,

APPEAL from the

United States

Defendants. District Court for

the Eastern District

of Michigan,

IN RE: PETITION OF ALZALIA

WINGATE Southern Division.

AND TONI WINGATE,

Petitioners-Appellants,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee,

Decided and Filed June 16, 1976.

Before: CELEBREZZE, MILLER* and LIVELY, Circuit

Judges.

LIVELY, Circuit Judge. The issues in this case arose out of

two searches conducted pursuant to separate search warrants

issued by a federal magistrate. On October 6, 1975 an F.B.I.

agent filed with the magistrate an extensive affidavit based on an

eighteen month long “investigation of an organized illegal

gambling business operating . . ."’ in Detroit. The affidavit

*The Honorable William E. Miller died on April 12, 1976 and did not

participate in this opinion.

7a

identified a number of persons as participants in the illegal

activities, including James Wingate who was described as the

‘*banker” for a numbers operation handling approximately

$25,000 per day in bets. The affidavit contained a detailed

description of the numbers operation in the Detroit area, based

on ‘personal observations and participation in this

investigation, as well as receipt of information from confidential

informants whose information has been corroborated by

independent surveillances conducted by the Federal Bureau of

Investigation and by information supplied by other confidential

informants... .””

The affidavit identified by street number thirteen separate

buildings or residences in the Detroit area where it was believed

evidence relating to illegal gambling would be found. Each

location was connected to specific information received from a

particular informant whose past reliability was vouched for.

Among the residences identified in the affidavit was that of

James W. Wingate at 18805 Capitol, Southfield, Michigan. The

thirteen requested search warrants were issued and the Capitol

Street residence was searched on October 6th.

On October 7, 1975 the same F.B.1. agent who had filed the

October 6th affidavit filed a second one with the magistrate who

had issued the October 6th warrants. The first two numbered

paragraphs were identical to the corresponding opening

paragraphs of the October 6th affidavit. The October 7th

affidavit then concluded as follows:

3. That pursuant to the execution of a search warrant

authorized by the Honorable Barbara Hackett on October 6,

1975, the residence of JAMES WINGATE, located at 18805

Capitol Street, was searched by Agents of the Federal

Bureau of Investigation. Approximately Three-Thousand

Dollars ($3,000.00) in currency was located in the residence

of 18805 Capitol Street. During the course of that search,

JAMES WINGATE who was present remarked to the

investigating agents in substance that he did not keep

gambling paraphernalia or gambling receipts at his residence;

that he did have a safety deposit box, but that he did not keep

the key on the premises at 18805 Capitol Street; he stated

that the safety deposit box was at MANUFACTURERS

BAN K—he did not disclose the location.

8a

Subsequently, the investigating agents found in the

residence at 18805 Capitol Street, a receipt for payment for a

safety deposit. box, #110 at MANUFACTURERS

NATIONAL BANK OF DETROIT, Livernois-Lyndon

Branch, Detroit, Michigan.

This Agent has learned that box #110 was closed on

March 18, 1974, but that a new and larger box, number #127,

was opened on March 19, 1974, in the names of AZALIA

WINGATE, wife of JAMES WINGATE, and TONI WIN-

GATE, daughter of JAMES WINGATE.

I, therefore, have reason to believe that from statements

made by JAMES WINGATE during the course of the search

at his residence at 18805 Capitol Street, that gambling re-

ceipts and gambling records are contained in a safety deposit

box, #127, located at the MANUFACTURERS NA-

TIONAL BANK OF DETROIT, Livernois-Lyndon Branch,

Detroit, Michigan. In addition an effort was made to locate

any other safety deposit box held by Manufacturer National

Bank on behalf of James Wingate. No other safety deposit

boxes appear to be held by James Wingate.

/s) EDWARD GRIMSLEY

EDWARD GRIMSLEY

Special Agent/Federal Bureau

of Investigation

A search warrant was issued for safety deposit box #127,

and the search yielded $500,200.00 in currency. A motion was

made by Alzalia Wingate and Toni Wingate pursuant to Rule

4l(e), Fed. R. Crim. P., for return of the property seized from

the lock box. This appeal is from an order of the district court

denying this motion. The appeliants argue thai the October 6th

affidavit was not sufficient to establish probable cause to search

the Wingate residence. They maintain that the search of the

residence was illegal and that all information pertaining to the

safety deposit boxes was derived from this search and should be

suppressed as ‘“‘fruit of the poisonous tree.’’ They further

contend that even if the October 6th search was lawful the

October 7th affidavit was not sufficient to establish probable

cause for the search of box #127, and that the magistrate was

not permitted to rely on the October 6th affidavit to cure

9a

deficiencies in the October 7th affidavit in finding probable

cause for a search of box #127.

We have carefully considered the October 6th affidavit. To

the extent that the information contained in it was not based

upon personal observations and experience of the affiant or

surveillance by other F.B.I. personnel it was derived from

statements of unnamed informants. The affidavit recited past

experiences with all the informants in which their information

had proven reliable, corroboration of their staterments about the

Detroit numbers operation by F.B.I. surveillance and the fact

that each informant was deeply involved personally in numbers

betting. In addition, the affidavit set forth conversations

between several of the informants and James Wingate as the

source of some of the information. The affidavit described many

details of the “James Wingate Mutuels Combine.”’

The October 6th affidavit satisfied the two-pronged test of

Aguilar v. Texas, 378 U.S. 108 (1964), for crediting hearsay

information from unnamed informants in determining whether

probable cause for issuance of a search warrant has been

established. The affidavit contained a sufficient statement of

‘‘some of the underlying circumstances from which the

informant concluded . . ."’ that illegal numbers gambling was

being carried on and that money used in the operations would be

found at the Wingate residence as well as some of the underlying

circumstances from which the affiant had concluded that the

informants were ‘‘credible’’ or their information was ‘‘reliable.”*’

Id. at 114. See Naples v. Maxwell, 393 F.2d 615 (6th Cir. 1968),

cert. denied, 393 U.S. 1080 (1969). Appellants complain that the

affidavit contained no statement that the affiant, or anyone else,

had actually seen money being taken into the Wingate residence

or had viewed money there. Their reliance on Spinelli v. United

States, 393 U.S. 410 (1969), and Nathanson v. United States,

290 U.S. 41 (1933), is misplaced. The October 6th affidavit did

not contain a recital of activities which ‘‘contain no suggestion

of criminal conduct when taken by themselves . . ."’ which the

affiant sought to convert into evidence of a crime on mere

suspicion. Spinelli, supra, 393 U.S. at 418. Nor did the affidavit

contain the *‘[mJere affirmance of suspicion or belief . . .“’ of the

affiant. Nathanson, supra, 290 U.S. at 47.

10a

The October 6th affidavit was sufficient to establish probable

cause to believe that illegal gambling activities which are a

federal offense under 18 U.S.C. § 1955 were being carried on,

United States v. Williams, 459 F.2d 909 (6th Cir. 1972); and that

evidence of these activities would be found on the premises at

18805 Capitol. As we wrote in United States v. Eisner, 297 F.2d

595. 597 (6th Cir.), cert. denied, 369 U.S. 859 (1962), “‘In

determining what is probable cause, the Commissioner is not

called upon to determine whether the offense charged has in fact

been committed.** The magistrate to whom an application for a

search warrant is presented must apply common sense stan-

dards, United States v. Ventresca, 380 U.S. 102, 108 (1965); and

when a determination of probable cause has been made, it is

entitled to great deference by reviewing courts. Spinelli v.

United States, supra, 393 U.S. at 419; United States v. Shrop-

shire, 498 F.2d 137, 142 (6th Cir. 1974), petition for cert. dismis-

sed, 420 U.S. 901 (1975).

The October 7th affidavit did not contain the detailed infor-

mation concerning the Detroit numbers operations which was

set forth in the affidavit of the previous day. After repeating the

opening paragraphs of the earlier affidavit verbatim, it was

limited to a statement of the results of the search of the Wingate

residence and the assertion that the evidence gained in this

search established probable cause for a search of safety deposit

box #127. The magistrate was entitled to consider the October

6th affidavit in conjunction with the one presented the following

day in determining whether probable cause had been established

for a search of the bank box of appellants. Both affidavits

referred to the same eighteen-month investigation and the al-

leged complicity of James Wingate in the Detroit numbers

operations. The second affidavit referred specifically to the

search warrant which the magistrate had issued the previous

day. This issue is controlled by our decisions in United States v.

Nolan, 413 F.2d 850 (6th Cir. 1969), and DiPiazza v. United

States, 415 F.2d 99 (6th Cir. 1969), cert. denied, 402 U.S. 949

(1971).

In Nolan separate affidavits were presented to a magistrate

by an officer seeking warrants to search the automobile and the

living quarters of a suspect. It was claimed that the affidavit with

respect to the automobile was deficient. The court wrote—

We believe that consistent with the Fourth Amendment the

facts supplied the Commissioner by both affidavits could be

taken into account by him in determining probable cause in

relation to each. 413 F.2d at 853.

It would needlessly restrict the discretion of a magistrate to hold

that two affidavits filed so close in time and referring to a single

criminal investigation which was still continuing could not be

considered together in determining whether to authorize a

further search. We do not believe that United States v. Acosta,

501 F.2d 1330 (Sth Cir. 1974), cert. denied, 423 U.S. 891 (1975),

leads to a different conclusion. There the magistrate relied on his

own information, not on statements contained in a written

affidavit. The court stated,

. we believe the weight of authority clearly is that any

information relied upon by a federal magistrate in determin-

ing whether probable cause exists must be made a part of the

affidavit or affidavits supporting the warrant. 501 F.2d at

1334. (emphasis added).

When read together the two affidavits provided the basis for a

reasonable inference that evidence pertaining to the Detroit

numbers operations would be found in box #127. A magistrate

may draw “‘the usual inferences which reasonable men draw

from evidence.’ Johnson v. United States, 333 U.S. 10, 14

(1948).

Appellants argue that as **. . . innocent and uninvolved third

parties, [they] were deprived of their Fourth and Fifth Amend-

ment rights due to failure of the government to utilize a sub-

poena duces tecum or demonstrate its impracticality before

applying for a warrant to search safe deposit box #127."’ Once it

is established that probable cause exists to believe a federval

crime has been committed a warrant may issue for the search of

any property which the magistrate has probable cause to believe

may be the place of concealment of evidence of the crime. The

necessity that there be findings of probable cause as to two

factors—the commission of a crime and the location of evi-

dence—affords protection from unreasonable searches and

seizures, which are the only ones forbidden by the Fourth

Amendment. We are not persuaded that the contrary rule

adopted by the district court in Stanford Daily v. Zurcher, 353

l2a

F.Supp. 124 (N.D. Calif. 1972), is required by either the Fourth

or Fifth Amendments or the Federal Rules of Criminal Proce-

dure.

The final ground for reversal which the appellants have

argued in this court charges misrepresentation or omission of

material facts by agent Grimsley in the October 7th affidavit.

This issue was not presented to the district court for a ruling. In

fact, at the hearing on their Rule 41 motion counsel for appel-

lants stated that he did not challenge “‘the veracity of the

statement’’—referring to the identical material which is now

claimed to be either a misrepresentation or an incomplete ac-

count of the agent's conversation with James Wingate during the

October 6th search. This issue is not properly before the court,

and we will not consider it. Gibson v. First Federal Savings &

Loan Association of Detroit, 504 F.2d 826 (6th Cir. 1974); Wiper

v. Great Lakes Engineering Works, 340 F.2d 727 (6th Cir.), cert.

denied, 382 U.S. 812 (1965).

The judgment of the district court is affirmed.

13a

NO. 76-1296

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff

v.

MANUFACTURERS NATIONAL

BANK OF DETROIT,

LIVERNOIS-LYNDON STREETS,

SAFETY DEPOSIT BOX #127,

DETROIT, MICHIGAN

Defendants ORDER

IN RE: PETITION OF ALZALIA

WINGATE

AND TONI WINGATE

Petitioners-Appellants

Vr

UNITED STATES OF AMERICA

Respondent-Appellee

BEFORE: PHILLIPS, Chief Judge; CELEBREZZE and

LIVELY, Circuit Judges.

Upon consideration of the petition for rehearing filed herein,

the court concludes that the issues raised therein were consid-

ered fully at the original submission of this appeal and that no

reason for rehearing has been demonstrated.

The petition for rehearing is denied.

ENTERED BY ORDER OF

THE COURT

John P. Hehman, Clerk

By /s/GRACE KELLER

Grace Keller,

Chief Deputy