Petition — Melvin v. United States

Supreme Court brief1979

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Rem ACL RODAK, JR., CLERK

In the ,

Supreme Court of the United States.

Ocroser Term, 1978.

No. 78-1814

JAMES FRANCIS MELVIN,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Martin G. WEINBERG,

Juprrn H. Mizner,

Oren: & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Constitutional provision involved

Statement of the case

Reasons why the writ should be granted

Il.

In redefining probable cause as simply a “rea-

sonable basis to believe,” the court below pro-

mulgated and applied a novel and unprece-

dented standard of cause for judging the validi-

ty of warrants lower than the probable cause

expressly mandated by the warrant clause of

the Fourth Amendment, in abrogation of con-

stitutionally guaranteed rights and liberties

Reliance on information provided by an in-

dividual identified only as an “unknown male”

— information crucial to a finding of probable

cause — presents unresolved questions impor-

tant to the proper and uniform administration

of criminal justice concerning the credibility

and reliability standards to be applied to hear-

say information in affidavits in support of search

warrants

Conclusion

Appendix

Magistrate’s recommendation and report on de-

fendant’s motion to suppress

Memorandum of United States District Court,

District of Massachusetts

“I oownswWN =

follows page 19

ii TABLE OF CONTENTS.

Magistrate’s report and recommendation on de-

fendant’s motion to suppress 10a

Memorandum of United States District Court,

District of Massachusetts 2la

Order of United States District Court, District

of Massachusetts 23a

Opinion of United States Court of Appeals for the

First Circuit 24a

Judgment of United States Court of Appeals for

the First Circuit 55a

Memorandum and order of United States Court of

Appeals for the First Circuit 56a

Table of Authorities Cited.

CASES.

Aguilar v. Texas, 378 U.S. 108 (1964) 6, 14, 15, 16

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 8

Colonnade Catering Corp. v. United States, 397 U.S.

72 (1970) ll

Henry v. United States, 361 U.S. 98 (1959) 10n

South Dakota v. Opperman, 428 U.S. 364 (1976) 8,9

Spinelli v. United States, 393 U.S. 410 (1969) 6, 14, 15, 16

Terry v. Ohio, 392 U.S. 1 (1968) 8, 18

United States v. Biswell, 406 U.S. 310 (1972) 8

United States v. Chadwick, 433 U.S. 1 (1977) 8n

United States v. Colon, 559 F. 2d 1380 (5th Cir. 1977) 12

United States v. Flanagan, 423 F. 2d 745 (5th Cir.

1970) 12

TABLE OF AUTHORITIES CITED. iii

United States v. Gramlich, 551 F. 2d 1359 (5th Cir.

1977), cert. denied, 434 U.S. 866 (1977) 12

United States v. James Lee Taylor, No. 78-1724 (8th

Cir. April 18, 1979) 12, 13

United States v. Ramsey, 431 U.S. 606 (1977) 8n

United States v. Solario, 557 F. 2d 554 (9th Cir. 1978) 12

United States v. Ventresca, 380 U.S. 102 (1965) 15n

United States v. Whitlow, 339 F. 2d 975 (7th Cir.

1964) 12

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) 12

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourth Amendment 3, 6, 7, 8,

9, 10, 13, 18

26 U.S.C. § 5861(d) 6

28 U.S.C. § 1254(1) 2

MISCELLANEOUS.

Ash, John, New and Complete Dictionary of the Eng-

lish Language (1775) 9

Johnson, Samuel, Dictionary of the English Language

(7th ed. 1783) 10

Kenrick, William, A New Dictionary of the English

Language (1773) 10

In the

Supreme Court of the United States.

OcrosBer TERM, 1978.

No.

JAMES FRANCIS MELVIN,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

James Francis Melvin petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the First Circuit entered in this case on April 13, 1979, and

May 4, 1979.

Opinions Below.

The Court of Appeals for the First Circuit issued an opinion,

Bownes, J., dissenting, not yet reported, on April 13, 1979.

The opinion is reproduced in the Appendix at pp. 24a-54a.

The memorandum and order entered May 4, 1979, denying

Melvin’s petition for rehearing, is reproduced in the Appendix

at pp. 56a-57a. Petitioner's motion to suppress was denied

after numerous hearings before both the United States Magis-

trate and the United States District Court for the District of

Massachusetts. The Magistrate’s recommendations and

reports on petitioner's motion to suppress of May 3, 1977, and

November 18, 1977, are reproduced in the Appendix at pp.

la-5a, 10a-2la. The District Court’s memoranda and orders

of November 15, 1977, July 27, 1978, and August 3, 1978, de-

nying petitioner's motion to suppress are reproduced in the

Appendix at pp. 6a-9a, 2la-23a.

Jurisdiction.

The original judgment of the Court of Appeals was entered

on April 13, 1979 (App. 55a). A timely petition for rehearing

was denied on May 4, 1979 (App. 56a-57a). The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

Questions Presented.

I. Whether the constitutionally mandated standard of

probable cause to justify the issuance of a warrant to search a

private residence for evidence and instrumentalities of crime

requires a higher degree of certitude than a mere reasonable

basis to believe that such items will be found in that home?

II. Whether the constitutionally mandated credibility/re-

liability requirements — which must be met to justify judicial

reliance on information in an affidavit in support of a search

warrant provided to an affiant by a third party — have been

abrogated where information essential to any possible finding

of probable cause has been provided by an individual iden-

tified only as an “unknown male”?

Constitutional Provision Involved.

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants 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.

Statement of the Case.

At approximately 4 a.m. on November 18, 1976, there was

an explosion at Rooney’s Tavern in the Dorchester section of

Boston, Massachusetts (App. 25a). At 5:30 p.m. on November

19, 1976 — more than 372 hours after the explosion (App. 53a)

— a judge of the Suffolk Superior Court for the Common-

wealth of Massachusetts issued a warrant to search petitioner's

home in Weymouth, Massachusetts, for evidence and instru-

mentalities of that explosion.

The warrant was predicated on an affidavit submitted by

Boston Police Detective John Lydstone after discussion with

the District Attorney. Reproduced in the dissenting opinion

below (App. 40a-54a; see n.2 at App. 4la-43a), the affidavit

states that there was an explosion at Rooney’s Tavern, pro-

bably caused by using wires to detonate a blasting cap which

in turn detonated a stick of dynamite; that while on duty and

patrolling in the area of Rooney’s Tavern at about 2 a.m., John

Arnstein, a Boston Police officer, had seen a white Cadillac

parked in front of the tavern and had seen a white male stand-

ing at the front door;' that Arnstein later indicated that a

photograph of petitioner James Melvin bore a “strong

resemblance” to the man seen at the tavern door at 2 a.M.;

that when Arnstein responded to the radio call concerning the

explosion at Rooney’s Tavern at approximately 4 A.M. an “un-

known male” stated to him that a white Cadillac had left the

scene moments before the explosion; that James Melvin is

listed as an owner of Rooney’s Tavern and operated a white

1976 Cadillac; and, finally, that bomb squad officers believed

that the type of explosive used would generally be assembled

in a workshop of some sort.

The search warrant was executed on the evening of

November 19, 1976, by state and federal law enforcement of-

ficers. No evidence related to the explosion was seized. How-

ever, during the course of the search, the firearms which form

the basis of the conviction in this case were seized from the

basement of petitioner’s home.

Petitioner challenged the validity of the search warrant in

the District Court, contending that the affidavit was facially

insufficient to establish probable cause to believe that evidence

or instrumentalities of the explosion would be found in his

home; that critical information provided by an individual

identified only as an “unknown male” was improperly relied

‘Arnstein later testified that he had not observed the model, year, or

license number of the Cadillac, and that he had not stopped to investigate

because he did not feel the circumstances were suspicious.

upon in determining the existence of probable cause; and that

the affidavit contained misrepresentations and omissions of

fact rendering it insufficient to establish probable cause.®

*The testimony at the hearings on the motion to suppress fleshed out the

skeletal facts concerning the “unknown male” and his observations and the

subsequent police investigation. According to Arnstein, a few minutes after

his arrival at Rooney's Tavern an individual tapped him on the shoulder and

asked: “Am I a prime suspect on this?” Arnstein looked around and recog-

nized him as an individual he knew by the nickname of “Arky.” “Arky” is

the nickname of Arthur Sutliff, the owner of the Circle Cafe, a bar located

across the street from and a business competitor of Rooney's Tavern. Ac-

cording to Arnstein, Arky told him that he was there to turn off an alarm on

his property and that he had seen a white Cadillac leave the area. He did not

say what time the vehicle had left or whether it had left before or after the ex-

plosion. In a court-ordered videotaped deposition, Sutliff testified that there

had been no conversation concerning an alarm and that he had not told Arn-

stein that he had seen a white Cadillac. Arnstein knew that Arky’s “proper-

ty” was the Circle Cafe and had seen him there prior to November 18, 1976,

when he had responded to disturbances at that establishment. Arnstein had

also seen Arky before November 18, 1976, at a Dunkin Donuts Shop. Arn-

stein knew that Arky had some managerial responsibilities at the cafe. How-

ever, he made no efforts to find out Arky’s full name, or his background.

Boston Police Officer John Lydstone of the Intelligence Division began in-

vestigating the explosion at Rooney's Tavern at approximately 9:30 in the

morning of November 18, 1976. Early that evening he interviewed Patrol-

man Arnstein, and was informed of Arnstein’s own observations at 2 a.m.

and his conversation with Arky. As recalled by Lydstone, Arnstein said that

Arky had said: “Am I a suspect in this?”, and told him that he had been by

just after or just before the explosion and had seen a white Cadillac leaving

the area. Lydstone, too, was familiar with the individual nicknamed Arky

and the fact that he was connected with the Circle Cafe.

Lydstone and his partner, Martin Coleman, then went to the Circle Cafe

and inquired for Arky. Although he was not there, Coleman spoke to him on

the telephone and related the conversation to Lydstone. Arky told Coleman

that he had seen a white car parked in the rear of the tavern and, when asked

if he had told Arnstein earlier that he had seen a white Cadillac, said no, that

he had only been joking, and could not identify the make of the car. Arky

also told Coleman that threats had been received at the bar, but not by him

personally. There was no evidence that any threats had been made by or at

the request of petitioner.

Although he was speaking to Arky on the telephone, Coleman did not ask

him for his full name. Nor did he or Lydstone ask the waitress in the Circle

The trial court held that the information provided by the

“unknown male” could properly be relied upon under the

relaxed credibility/reliability standards applicable to so-called

citizen informants; that the affidavit was facially sufficient ic

establish probable cause to believe that the explosive device

had been constructed in petitioner's home and that instru-

mentalities would be found there; and that there were no

deliberately false statements, statements made with reckless

disregard for the truth; or omissions consciously made to

' falsify the affidavit.

Petitioner was convicted of possession of firearms not

registered to him in the National Firearms Registration and

Transfer Record in violation of 26 U.S.C. § 5861(d) following

a jury-waived trial upon stipulated facts.

In a two-to-one decision the Court of Appeals also rejected

petitioner's Fourth Amendment claims. Treating the “un-

known male” as a “bystander witness,” the majority held the

Aguilar-Spinelli® standards inapplicable and found that Of-

ficer Arnstein’s 2 A.M. observation of a white Cadillac at the

tavern provided sufficient corroboration to afford the requisite

substantial basis for crediting the hearsay (App. 30a-32a).

Conceding that the question of probable cause to search

petitioner's home was a close one (App. 33a; see also App.

56a), the majority rejected a more likely than not, or pre-

ponderance of the evidence, standard of probable cause, and,

utilizing a standard of probable cause consisting of a

“reasonable basis to believe” — a standard which petitioner

submits is constitutionally defective — found probable cause

to search petitioner's home on the basis of facts sufficient to

Cafe, or any other employee there, for Arky’s full name. Lydstone later

checked the liquor license, but was unable to identify Arky from the

documents.

3 Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S.

410 (1969).

regard petitioner as a prime suspect, coupled with the bomb

squad's belief that the explosive device was of a type that

generally would be assembled in a workshop of some sort, and

a rejection of the tavern as a likely place for construction of the

device. The majority also held that the District Court had not

erred in finding that the affidavit contained no material mis-

statements or omissions made with the intent to falsify or with

reckless disregard for the truth (App. 35a-37a).

Reasons Why the Writ Should be Granted.

I. IN REDEFINING PROBABLE CAUSE AS SIMPLY A “REASONABLE

Basis To BELIEVE,” THE Court BELOW PROMULGATED AND

APPLIED A NOVEL AND UNPRECEDENTED STANDARD OF CAUSE

FOR JUDGING THE VALIDITY OF WARRANTS LOWER THAN THE

PROBABLE CAUSE EXPRESSLY MANDATED BY THE WARRANT

CLAUSE OF THE FourTH AMENDMENT, IN ABROGATION OF

CONSTITUTIONALLY GUARANTEED RIGHTS AND LIBERTIES.

In affirming the judgment of conviction, the majority pro-

mulgated and applied a “reasonable basis” standard for deter-

mining the va dity of the warrant to search petitioner's home.

Petitioner submits that in so doing the majority adopted a new

and unprecedented standard of cause for judging the validity

of warrants — a standard lower than the probable cause ex-

pressly mandated by the warrant clause of the Fourth Amend-

ment and one which abrogates the well-established require-

ment of specific and articulable facts undergirding this Court's

Fourth Amendment jurisprudence. Petitioner submits that

the standard, and its application to the facts of this case, is

flawed both legally and logically and, because this new stand-

ard flies in the face of one of the oldest cornerstones of Fourth

Amendment jurisprudence and substantially decreases the

protections provided by the Fourth Amendment, this Court

should grant certiorari.

When the language and structure of the Fourth Amendment

are examined and when viewed in historical context, there can

be no question that the framers intended‘ that the probable

cause necessary for the issuance of a warrant require a higher

degree of certitude than the reasonable basis to believe

adopted by the majority in this case.

Although reasonableness may be the “overriding test of

compliance with the Fourth Amendment” (App. 28a), it can-

not displace the requirement of probable cause as the touch-

stone for determining the constitutional validity of a warrant.

What is reasonable under the Fourth Amendment for purposes

of assessing the constitutionality of certain types of searches is

not reasonable for all. A variety of searches deemed rea-

sonable under the Fourth Amendment — border searches, in-

ventories, certain administrative searches, stops and frisks —

may all be conducted on less than probable cause. (See, e.g.,

Almeida-Sanchez v. United States, 413 U.S. 266 (1973); South

Dakota v. Opperman, 428 U.S. 364 (1976); United States v.

Biswell, 406 U.S. 310 (1972); Terry v. Ohio, 392 U.S. 1

(1968)). However, full scale criminal investigative searches

made pursuant to a warrant stand apart. They, unlike the

searches set forth above, have had a specific and higher stand-

ard of certitude — a standard of probable cause — constitu-

tionally imposed upon them as a predicate for compliance

with the Fourth Amendment.°®

‘The relevance of historical context and the framers’ intent in construing

the Fourth Amendment have often been recognized by this Court. See, e.g.,

United States v. Chadwick, 433 U.S. 1 (1977).

‘Indeed, in United States v. Ramsey, 431 U.S. 606, 612-613 (1977), this

Court specifically recognized the more stringent nature of the probable cause

requirement, stating that “[t]he ‘reasonable cause to suspect’ test adopted by

The Fourth Amendment provides not only that “[t}he right

of the people to be secure . . . against unreasonable searches

and seizures, shall not be violated,” but, more specifically,

that “no Warrants shall issue, but upon probable cause . . ..”

Accordingly, the warrant requirement is linked textually to

the concept of probable cause (see, e.g., South Dakota v. Op-

perman, 428 U.S. 364, 370 n.5 (1976)) and not simply to

the more general prohibition of unreasonable searches and

seizures. This linkage demonstrates the founding fathers’

specific concern with the degree of certitude and specificity re-

quired for the issuance of a warrant — a degree of certitude

which is, petitioner submits, a more demanding and specific

showing than a court’s ad hoc assessment of a reasonable basis.

Indeed, to equate probable cause with a reasonable basis

would render the inclusion of the term “probable cause”

meaningless. Had the founding fathers intended for a war-

rant to issue solely on a showing of reasonableness, they could

have said so; the specific mandate of probable cause would

have been unnecessary. Thus the use of the two separate

terms in the Fourth Amendment negates the validity of the

equation adopted by the majority.

That probable cause requires a higher degree of certitude

than a reasonable basis is further supported by examining the

meaning of the words “probable” and “reasonable” extant at

the time of the passage of the Fourth Amendment. The New

and Complete Dictionary of the English Language by John

Ash, published in 1775, defines “probable” as “likely, having a

preponderance of evidence.” “Preponderance” is defined as

“the act of outweighing; that which outweighs.” “Reason-

abic” — the adjective from reason — is defined as “having the

the statute [19 U.S.C. § 482), is, we think, a practical test which imposes a

less stringent requirement than that of ‘probable cause’ imposed by the

Fourth Amendment as a requirement for the issuance of{warrants.”

faculty of reason; just; rational; moderate; tolerable”; and

“reason” is defined as “the power by which we deduce one

proposition from another; clearness of faculties.” The Dic-

tionary of the English Language by Samuel Johnson, Seventh

Edition, published in 1783, defines “probable” as “likely; hav-

ing more evidence than the contrary.” “Reasonable” is de-

fined as “acting, speaking or thinking rationally; not im-

n.oderate; tolerable.” See also, A New Dictionary of the

English Language by William Kenrick, published in 1773,

which sets forth the same definitions of “probable” and

“reasonable.”

Clearly, the two words are not interchangeable in meaning

— having more evidence than to the contrary or having a

preponderance of evidence requires a higher degree of cer-

titude than simply being rational, tolerable, or not im-

moderate. Thus, both the structure of the Fourth Amend-

ment and the meaning of the words as defined during the time

period of the adoption of the Amendment demonstrate that

compliance with the mandate of probable cause requires a

higher degree of certitude than mere ad hoc reasonableness —

a degree of probability® absent from the mere determination

of a reasonable basis adopted by the majority below as the

standard of probable cause.

Examination of the facts set forth in the affidavit demon-

strates the absence of specific, articulable facts — the total

lack of specificity — essential to justify the severe intrusion of a

full-scale criminal investigative search of a private residence

* Although petitioner does not suggest that a precise mathematical equa-

tion must be imposed in defining probable cause, he does suggest that if a

mathematical equivalent is to be imposed it must be a more likely than not

standard. Anything less would leave persons and their premises subject to

governmental intrusion on nothing more than suspicion, and even strong

suspicion is not equivalent to probable cause. See, e.g., Henry v. United

States, 361 U.S. 98 (1959).

under traditional, constitutionally mandated standards of

probable cause. Indeed, petitioner submits that even under

the unprecedented — and constitutionally defective —

lowered standard adopted by the majority below the affidavit

fails to pass muster. Assuming, arguendo, that the magistrate

properly relied upon the statement of the “unknown male”

(but see section II, infra) and, therefore, had an adequate

foundation to regard petitioner as a prime suspect in the explo-

sion, the affidavit remains devoid of any factual nexus be-

tween the explosion at Rooney’s Tavern and petitioner's home.

In lieu of specific and articulable facts the majority substituted

reliance on inferences and conclusions — drawn from the

bomb squad officers’ belief that the type of explosive device

used “would generally be assembled in a workshop of some

sort” (App. 43a n.2 (emphasis added)), and its conclusion that

the tavern would have been an unlikely place to have con-

structed the device — to support a “reasonable basis to

believe” that evidence and instrumentalities of the explosion

would be found in petitioner’s home.

Petitioner maintains first that the majority’s exclusion of the

tavern as an equally likely place for the construction of the ex-

plosive device is predicated on a misapprehension of the scope

of governmental authority to inspect the premises of establish-

ments serving liquor. That an establishment may be inspected

without notice during business hours (Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970)) simply does not

support a finding that the tavern would be a “particularly un-

likely” place to have constructed the explosive device. There

is nothing in the record even to suggest that construction of the

device would have taken more than two hours. It is therefore,

at minimum, equally probable that it was constructed at the

tavern between the hours of 2 a.m. and 4 a.m. — hours when

the threat of unannounced administrative inspection is nonex-

istent — as it is to believe that it was constructed at petitioner’s

home and transported to the tavern.

Moreover, even if, contrary to all reasonable inferences, the

tavern could be excluded as a likely place of construction,

that, under the bomb squad’s hypothesis, leaves much of the

indoor world as a potential site. The critical element —

specific articulable facts to narrow that world to petitioner's

home — is totally absent here. The affidavit contains nothing

to suggest that petitioner had recently purchased or been seen

with any of the items sought, much less that he had brought

them into his house prior to the explosion. There were no

observations of any such items in his home, at any time. In-

deed, there were no facts before the magistrate to support an

inference that petitioner had a workshop in his home. Without

a nexus between his home and the items sought, there can be

no probable cause (see, e.g., Zurcher v. Stanford Daily, 436

U.S. 547 (1978)), even if there is reason to suspect his involve-

ment in criminal activity. See, e.g., United States v. Flan-

agan, 423 F. 2d 745 (5th Cir. 1970); United States v. Gram-

lich, 551 F. 2d 1359 (5th Cir. 1977), cert. denied, 434 U.S. 866

(1977); United States v. Colon, 559 F. 2d 1380 (5th Cir. 1977);

United States v. Solario, 577 F. 2d 554 (9th Cir. 1978); United

States v. Whitlow, 339 F. 2d 975 (7th Cir. 1964).

The central nature of the requirement of a nexus between

the place to be searched and the items to be seized and the

necessity of articulable specific facts to support such a nexus is

compellingly illustrated by the recent case of United States v.

James Lee Taylor, No. 78-1724 (8th Cir. April 18, 1979).

There a warrant for a private residence was predicated on an

affidavit stating, in part, (iat on two separate occasions an

agent of the Bureau of Alcohol, Tobacco, and Firearms had

driven one Worley (from whom he had recently purchased

firearms) to a specific address. Worley had been observed

walking toward the house and up to the house. He had never

been observed entering the house. Both times Worley and

another individual — identified the second time as defendant

Taylor — entered a vehicle parked in the driveway, and drove

to a rendezvous point where Worley sold firearms to the

A.T.F. agent. At the first sale, Worley stated that the driver

of the vehicle was his supplier. After the second sale, Taylor

was followed back to the house. The court held that,

although “long and detailed,” “the affidavit bears a fatal

flaw” (Slip. Op. p. 5). In the absence of observations of any-

one actually entering or leaving the residence, the allegation of

probable cause to believe that the firearms were located in the

house rested “on a conclusion or mere suspicion and this the

constitution forbids” (Slip. Op. p. 7). Similarly, here, on the

skeletal facts presented, the Constitution forbids a finding of

probable cause. As stated by the dissent, the issuance of a

warrant “eviscerates the fourth amendment’s mandate that no

warrant issue except on probable cause” (App. 45a), and con-

stitutes “an open invitation to issue warrants upon the gos-

samers of suspicion and conjecture” (App. 54a).

No decision of this Court supports the majority's un-

precedented substitution of a “reasonable basis to believe” for

the higher degree of certitude based on specific and articulable

facts mandated by the probable cause requirement of the war-

rant clause of the Fourth Amendment. Accordingly, this

Court should grant certiorari to review this abrogation of one

of the cornerstones of Fourth Amendment jurisprudence.

Il. RELIANCE ON INFORMATION PROVIDED BY AN INDIVIDUAL

IDENTIFIED ONLY AS AN “ UNKNOWN MALE” — INFORMATION |

CrUCIAL TO A FINDING OF PROBABLE CAUSE — PRESENTS

UNRESOLVED QuesTIONS IMPORTANT TO THE PROPER AND

UNiFoRM ADMINISTRATION OF CRIMINAL JUSTICE CONCERN-

ING THE CREDIBILITY AND RELIABILITY STANDARDS TO BE AP-

PLIED TO HEARSAY INFORMATION IN AFFIDAVITS IN SUPPORT OF

SEARCH WARRANTS.

Petitioner also seeks review of the ruling below that the in-

formation provided by the “unknown male” — information

which the majority found to be crucial to any reason to suspect

petitioner's involvement in criminal activity (App. 30a) — was

properly relied upon by the Magistrate as an essential element

of a finding of probable cause.

Recognizing the dangers of reliance on hearsay information

as justification for the issuance of a warrant to invade an indi-

vidual’s premises and privacy, this Court has established strin-

gent standards of credibility and reliability for determining

whether information provided by a confidential informant

can be relied upon by a Magistrate to justify a finding of prob-

able cause. Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.

United States, 393 U.S. 410 (1969).

Although a number of Courts of Appeals have addressed

some of the problems raised by reliance on information pro-

vided by someone other than a traditional confidential infor-

mant, and have concluded that factors other than those enun-

ciated in Aguilar, Spinelli and their progeny may provide the

indicia of reliability and credibility necessary to justify re-

liance on information provided by a citizen-informer or a by-

stander witness, the questions raised in connection with

reliance on a bystander witness have never been fully addressed

by this Court. The reliance on the statement of the “unknown

male” as a key element in the establishment of probable cause

in this case squarely presents a number of questions concerning

the standards to be applied to information supplied by an in-

formant: under what circumstances should an individual be

deemed a bystander witness rather than a traditional con-

fidential informant; to what extent should the credibility/

reliability standards established by Aguilar, Spinelli and their

progeny be relaxed in situations involving a bystander witness;

what type and what degree of corroboration should be re-

quired for reliance on information provided by a bystander

witness. All of these are questions which should, in the in-

terest of the proper and uniform administration of criminal

justice, be addressed by this Court at this time.

Since the issues of credibility and reliability do not vanish

simply because an affiant chooses to characterize an informant

as an “unknown male” rather than as a “confidential infor-

mant,” petitioner submits that if the Aguilar-Spinelli credibil-

ity/reliability requirements are to be less stringently applied in

cases involving a bystander witness, there must be, as an essen-

tial first step, a factual basis set forth in the affidavit to sup-

port such a classification. Anything less would, without

justification in law, logic, or policy, permit law enforcement

officers to circumvent the constitutionally based credibility/

reliability requirements simply by their choice of appellation.

In this case the factual basis for classifying the “unknown

male” as a bystander witness is lacking. As the dissent noted,

there was no statement in the affidavit that the “unknown

male” had observed the vehicle leave the area moments before

the explosion, and, in fact, he had left the area 15-30 minutes

prior to the explosion. See App. 5la and n.10.7

7The majority excused the absence of a factual assertion that the “un-

known male” was an eyewitness and the absence of any other detail sur-

rounding the “unknown male” and his information, in part, by relying on

this Court’s statement in United States v. Ventresca, 380 U.S. 102, 108

(1965), that affidavits are normally drafted in haste by nonlawyers (App.

However, even if the “unknown male” is deemed a

bystander witness the questions of to what extent the Aguilar-

Spinelli standards are to be relaxed and the nature and degree

of corroboration required remain. Neither this Court nor any

other court has held that classification as a bystander witness

justifies the total abrogation of the credibility/reliability re-

quirements. Regardless of the nomenclature employed to

describe the source of the hearsay, the Magistrate must be sup-

plied with constitutionally sufficient factual support for a con-

clusion that the source is credible and his information is

reliable.

Thus, the critical question is the nature and degree of cor-

roboration necessary to establish the requisite credibility and

reliability. Indeed, as the majority noted, “[t]hat the ‘un-

known male’ was not identified and that the affidavit did not

state the circumstances of his observation might be grounds for

discounting the statement had it stood alone” (App. 32a).

Nonetheless, the majority affirmed reliance on the critical in-

formation, finding that Arnstein’s 2 a.m. observation of a

white Cadillac at the tavern provided sufficient corroboration

to constitute a “sound basis for crediting the remark.” Id.

Petitioner submits that such “corroboration” does no more

than give lip service to the credibility/reliability requirement. ®

3la). However, in this case, the affidavit was submitted 37 hours after the

explosion, after consultation with the District Attorney (see App. 53a); in-

vocation of the talisman of haste necessitated by evolving circumstances is,

therefore, inappropriate.

°A white Cadillac is not yet an endangered species in the city of Boston;

Arnstein’s observation of such a vehicle in front of the tavern at 2 a.M. can-

not, alone, constitute the corroboration necessary to elevate the statement of

the “unknown male” concerning a white Cadillac at 4 a.m. to the level where

a Magistrate could justifiably rely upon it to establish probable cause. In-

deed, on its face, Arnstein’s 2 a.m. observation is fully consistent with inno-

cence. It is, petitioner submits, extremely unlikely that a tavern owner who

intended to set an explosion at his establishment would park his own highly

Nor have the decisions of other Courts of Appeals, cited by the

majority at App. 3la-32a and the dissent at App. 50a-5la,

reduced the nature and degree of corroboration necessary to

comply with the credibility/reliability requirements to the

level considered sufficient by the majority. Rather, in those

cases, factors absent here — name and address of the

bystander witness; information which by its character and

detail provided its own corroboration; detailed external cor-

roboration — were held sufficient to justify reliance on such

information:

In the absence of such corroboration, petitioner submits

that the majority erred in relying on the information provided

by the “unknown male” to justify a finding of probable cause®

and requests that certiorari be granted to resolve the impor-

tant and frequently recurring question of the standards to be

applied in determining whether an individual can be classified

as a bystander witness and, if so, the nature and degree of cor-

conspicuous white Cadillac in front of the tavern two hours before he in-

tended to set off an explosion. Nor were there any other indicia of credi-

bility/reliability. The information was not self-corroborating by reason of

great detail; the “unknown male” was not a victim or accomplice; there was

no detailed external corroboration. See App. 5la-52a.

*Petitioner suggests that this case presents the paradigmatic example of the

dangers of reliance on information provided by an individual identified only

as an “unknown male,” and the need for a strong factual showing of cor-

roboration to establish credibility and reliability. As revealed at the hearings

on petitioner’s motion to suppress, the “unknown male” was not an

unknown, neutral bystander. Rather, he was known to the investigating

oficers as an individual nicknamed “Arky” who had at least a managerial in-

terest (in fact he was the owner) in a nearby competing bar (App. 52). He

had not stated that he had seen a vehicle leave the scene moments before the

explosion. Rather, he had left the area 15-30 minutes prior to the explosion

(App. 5la n. 10, 52a). Moreover, prior to the filing of the affidavit he had

changed his story, recanting his identification of the car as a white Cadillac

(App. 52a).

roboration necessary to meet the credibility/reliability re-

quirements essential to reliance on his information to establish

probable cause.

Conclusion.

The degree of certitude required to establish probable cause

to search a private residence is a question which goes to the

heart of the Fourth Amendment. The majority below has,

without justification in iaw, logic or policy, lowered the

degree of certitude required from the time of passage of the

Fourth Amendment. Under its unprecedented standard,

almost anytime there is reason to suspect that an individual

has committed a crime,'° and nothing affirmatively to exclude

his home as a potential location of instrumentalities of that

crime, there will be probable cause to search his home. Such a

standard completely abrogates the “demand for specificity in

the information upon which police action is predicated

[which] is the central teaching of this Court’s Fourth Amend-

ment jurisprudence,” Terry v. Ohio, 392 U.S. 1, 21 n.18

(1968), and constitutes an unprecedented encroachment on

the rights and liberties guaranteed by the Fourth Amendment.

In addition, petitioner submits that the majority has,

without legal or logical support, reduced the credibility/reli-

ability standards for crediting information provided by a non-

professional informant to a constitutionally deficient level.

'° Petitioner notes that the majority never concluded that the facts set forth

in the affidavit established probable cause to arrest, and, indeed, no arrest

warrant was sought prior to the search despite the fact that search warrants

were obtained.

Determination of the proper standard is a recurring issue

which has been addressed by many Courts of Appeals. It is an

issue now ripe for resolution by this Court.

Accordingly, for all the foregoing reasons, this petition for a

writ of certiorari should be granted.

Respectfully submitted,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

Appendix.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CRIMINAL No.

77-53-M

UNITED STATES OF AMERICA

JAMES FRANCIS MELVIN

Recommendation and Report

on Defendant’s Motion to Suppress.

May 3, 1977.

CouEN, M.

Pursuant to the provisions of 28 U.S.C. 636(b)(1)(B), de-

fendant’s Motion to Suppress was referred to this court for

hearing and recommendation on March 11, 1977. Inasmuch

as counsel for the defendant was engaged in trial in another

district, this matter was not heard until Apri! 18, 1977.

1. The motion to suppress relates to the two firearms re-

ferred to in the indictment which were seized during a search

conducted under the authority of a search warrant! issued by

the Honorable Samuel Adams, Justice of the Massachusetts

Superior Court. Fairly read, the motion to suppress raises

' The warrant itself was directed to paraphe[r}nalia which could be used to

manufacture an explosive device.

various grounds challenging the seizure of the firearms, to wit:

(1) that the affidavit in support of the application for a search

warrant was insufficient on its face; (2) that a statement made

by the defendant during the search to the effect that he did not

have a state permit to possess firearms was obtained in viola-

tion of his Miranda rights, and, thus, the subsequent seizure of

the firearms for that reason constituted an improper exploita-

tion of the Miranda violation; and (3) that the scope of the

search was so broad as to constitute “rummaging” in violation

of the Fourth Amendment. Finally, defendant contended

that the affiant who filed the affidavit in support of the appli-

cation for the search warrant, or another police officer from

whom the affiant obtained information, intentionally misrep-

resented certain facts in that affidavit. In this regard,

paragraph 4 of the affidavit stated as follows:

(4) That at about 6:00 pm on Thursday, November 18,

1976, I and other officers of the Intelligence Division in-

terviewed Patrolman John Arnstein of Boston Police Dis-

trict 11. Patrolman Arnstein stated that at about 2:00 am

on Thursday, November 18, 1976, he had been on duty

and patrolling the area of Rooney’s Tavern and noted

that a white Cadillac was parked at the front door and

that a white male, about 35 years, 5-10, 180 lbs. was

standing at the front door. Later that same morning, at

about 3:56 aM, Patrolman Arnstein responded to a radio

call relative to an explosion at Rooney’s Tavern. Unon

[sic] arrival and during his investigation, an unknown

male stated that a white Cadillac had left the scene

moments before the explosion. (Emphasis added).

As to these underscored allegations, defendant proffered (1)

that Patrolman Arnstein, in fact, observed a white 1972 or

1973 Cadillac parked in front of Rooney’s Tavern, and that his

intentional omission of that fact was the equivalent of an in-

tenticnal misrepresentation, since the search warrant was

issued, in part, on the basis that the defendant owned a white

1976 Cadillac; and (2) that the alleged “unknown male” was,

in fact, known to Patrolman Arnstein, and that that person

did not, in fact, tell Patrolman Arnstein that a white Cadillac

left the scene moments after the explosion.

On the basis of these proffers of proof, this court received

limited evidence to determine whether or not the proffers

were sufficient to permit further exploration beneath the four

corners of the affidavit in support of the search warrant. With

respect to the first proffer, John Rooney, owner of Rooney's

Tavern, testified that he arrived at the scene of his tavern some

time after the explosion. At that time, according to Rocney,

Patrolman Arnstein told him that he [ Arnstein] had observed a

1972 or 1973 Cadillac parked in front of Rooney’s Tavern

before the explosion. Patrolman Arnstein, however, denied

that he had told Rooney that the white Cadillac was a 1972 or

1973 model.

On the other issue, Patrolman Arnstein testified that the

“unknown male” was, in fact, unknown to the extent that he

did not know his first name. He did testify, however, that he

knew this “unknown male” by a nickname, and that he knew

that this “unknown male” worked in the area of Rooney's

Tavern. At this point, counsel for defendant stated that he

[counsel] was aware of the name of the person referred to as an

“unknown male,” that he [counsel] had taken this person’s

statement under oath, and that this alleged “unknown male”

had categorically denied that he had given the reported infor-

mation — i.e., that a white Cadillac had left the area of

Rooney's Tavern moments after the explosion — to Patrolman

Arnstein.

Because of a question in this court’s mind as to whether the

“unknown male” referred to in the affidavit in support of the

search warrant was, in fact, the same person from whom

counsel for defendant obtained a statement under oath, this

court ordered that the government and defense counsel sub-

mit, on an in camera basis, the name, if known, of the alleged

unknown male. Those submissions? were made on or about

April 22, 1977, and, on the basis of those submissions, this

court finds that a factual issue exists concerning what, if

anything, was told to Patrolman Arnstein by the alleged “un-

known male.”

2. For the reasons more fully set forth in this court’s Memo-

randum and Order in United States v. llario Zannino, Et Al.,

Crim. No. 77-30-T (April 20, 1977) (a copy of which is at-

tached hereto), this court concludes that a defendant may not,

on a motion to suppress, delve beneath the four corners of sup-

porting affidavits by the mere asking, or, indeed, by simply

alleging, without substantiation, that the affiant made an in-

tentional misrepresentation in the affidavit. In this case,

however, the defendant has presented evidence which, if

believed, would tend to show that Patrolman Arnstein or the

affiant might have deliberately failed to call to the issuing

court’s attention that the white Cadillac which Arnstein ob-

served before the explosion was a 1972 or 1973 model — not a

1976 model similar to that owned by the defendant. More-

over, if defendant’s witness(es) were to be believed, the “un-

known male” did not tell Patrolman Arnstein that a white

Cadillac left the area of Rooney’s Tavern moments after the

explosion. In this court’s view, if such were the case, the

statements to the contrary could be deemed, at the very least,

“intentional, relevant and non-trivial” misstatements Which,

under the rationale of United States v. Belcufine, 508 F.2d 58

* Those submissions have been sealed as Impounded Exhibit “A”.

(1st Cir. 1974), would invalidate the warrant, and hence the

search, in this case.

In this setting, it is clear to this court that the motion to sup-

press should be returned to the district court judge for further

hearings — at least for the purpose of resolving the factual

questions now extant. In the Belcufine case, the United States

Court of Appeals for this Circuit clearly and unequivocally

stated that, in cases “where the veracity of an affidavit

underlying a warrant is challenged,” the conflicting facts must

be resolved by a district court judge — not a magistrate. Id.

at 64. To be sure, the Court of Appeals did not have the

benefit of the recent amendments to the Magistrate’s Act

which permit magistrates to receive evidence and make rec-

ommendations on motions to suppress. 28 U.S.C. 636(b)

(1)(B). But since the last word on this subject in this Circuit

suggests to the contrary, prudence mandates that the motion

to suppress should, in the first instance, be returned to the

district court judge for further hearings.

All orders heretofore entered by this court relating to the

motion to suppress are hereby vacated, and should be renewed

before the district court prior to further hearings on that mo-

tion.

LAWRENCE P. COHEN,

United States Magistrate.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

v. CRIMINAL ACTION

No. 77-53-M

JAMES FRANCIS MELVIN

Memorandum.

Murray, Senior District Judge

This case came on to be heard under the following circum-

stances on defendant’s motion to suppress. The motion was

referred to the magistrate originally for hearing and recom-

mendation. Among the grounds of the motion is the defend-

ant’s assertion that certain intentionally misrepresentations of

fact were averred in paragraph 4 of the affidavit filed in sup-

port of the application for the search warrant. Paragraph 4

contained the following averments:

That at about 6:00 pm on Thursday, November 18,

1976, I and other officers of the Intelligence Division in-

terviewed Patrolman John Arnstein of Boston Police

District 11. Patrolman Arnstein stated that at about 2:00

AM on Thursday, November 18, 1976, he had been on du-

ty and patrolling the area of Rooney's Tavern and noted

that a white Cadillac was parked at the front door and

that a white male, about 35 years, 5-10, 180 lbs. was

standing at the front door. Later that same morning,

at about 3:56 am, Patrolman Arnstein responded to a

radio call relative to an explosion at Rooney’s Tavern.

Unon [sic] arrival and during his investigation, an

unknown male stated that a white Cadillac had left the

scene moments before the explosion. (Underscoring

added.)

The alleged intentional misstatements are underscored as

noted above. Before the magistrate, defendant offered to

prove that Patrolman Arnstein had declared that he observed

a white 1972 or 1973 Cadillac parked in front of Rooney’s

Tavern; that the unknown male was indeed known to Patrol-

man Arnstein, and that such male did not tell Arnstein that a

white Cadillac had left the scene moments before the explo-

sion. The magistrate received some evidence to determine

whether the proffered matters were sufficient to permit fur-

ther exploration by the district judge of the challenge to the

veracity of the averments in paragraph 4. United States v.

Belculfine, 508 F.2d 58 (1st Cir. 1974). Having concluded the

proffered evidence, if believed, would render statements in

the affidavit to the contrary “intentional, relevant and non-

trivial misstatements”, id. at 62, the magistrate returned the

motion to the district judge for hearing of defendant's

challenge to the veracity of the specified averments of para-

graph 4.

The motion was heard on the testimony of witnesses called

by the parties, the report filed by the police, a video-taped

deposition, and the arguments of counsel. Putting to one side

at this juncture defendant’s claim that the unknown male was

indeed known to Arnstein, the court finds that the challenge to

the other statements raises the issue of the credibility of the

witnesses presented. If the statements are proved untrue, the

motion to suppress the evidence obtained pursuant to the war-

rant should be suppressed; if not untrue the motion should be

denied on this aspect of the challenge. Defendant has the

burden of satisfying the court that these statements were not

true. That burden has not been sustained.

Although Arnstein’s statements were contradicted by the

testimony of John Rooney, co-owner with defendant of

Rooney’s Tavern and by testimony of Arthur Sutliff, Arnstein’s

testimony in support of the challenged statements was forth-

right, clear and unwavering and was corroborated in impor-

tant respects by Lieutenant Boyajian of the Massachusetts

State Police. There was no showing of any bias or prejudice

on the part of any police officer against the defendant or the

owners of Rooney's Tavern. Indeed, the only suspicion of bias

or animosity that emerged from the hearing focused on the at-

titude of Rooney toward Sutliff and Sutliff’s attitude toward

the new owners of Rooney’s Tavern. Nothing in the police

report impugned Arnstein’s testimony in the slightest degree.

In this aspect of the motion the defendant failed to persuade

the court that it should be granted. )

The facts concerning the challenge to the averment in

paragraph 4 of the unknown male establish the following.

Arnstein recognized Sutliff after the explosion as a person he

had seen before at the Circle Cafe (an establishment located

approximately 90 yards distant from Rooney’s Tavern); he had

never before talked with Sutliff; he did not know the name

“Arthur Sutliff”; all he knew was that the person had the

nickname “Arky”. Arnstein gave to Officer John Lydstone the

information set forth in paragraph 4 of the affidavit. Lyd-

stone had knowledge that a person with the nickname “Arky”

ran an establishment near the Rooney Tavern, but he never

had met the person known as “Arky” and did not know his

true name. Lydstone went to the Circle Cafe on the evening

of November 18 and inquired for “Arky” of a waitress, and

received the response that “Arky” was not present. No addi-

tional efforts were made to learn the true name of the person

identified in the affidavit as “unknown male”. Lydstone used

the expression “unknown male” in the affidavit “because the

man was not known to” him.

If under the circumstances the phrase “unknown male” was

inaccurate, it was only because a fuller description of the per-

son might have been supplied, e.g., “a person known by me to

use the nickname Arky and who frequents the Circle Cafe”.

But to insist that such description was required is to yield to

the needless exercise of correcting police language of usage.

There was no showing that in and around the area of the Cir-

cle Cafe and Rooney’s Tavern the person known as “Arky” was

known by any other name. There was no showing that if

there was an inaccuracy, it resulted from any recklessness on

the part of the police. Moreover, assuming the description

“unknown male” was a misstatement, a view which the court

does not entertain, it has not been demonstrated that it was in-

tentional or that it was material on a showing of probable

cause. Defendant has failed to satisfy the court that para-

graph 4 contained “intentional, relevant and non-trivial mis-

statements” in the respects specified.

Accordingly, the motion to suppress is denied as regards the

challenge to paragraph 4.

FRANK J. MURRAY,

Senior District Judge.

November 15, 1977

i0a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CRIMINAL No.

77-53-M

UNITED STATES OF AMERICA

JAMES FRANCIS MELVIN

Report and Recommendation on Defendant’s

Motion to Suppress.

November 18, 1977

CouHeEN, M.

By his motion, defendant moves to suppress the sawed-off

shotgun and sawed-off rifle referred to in Counts 1 and 2 of the

indictment, respectively. Both firearms were seized during

the execution of a search warrant by state and federal author-

ities directed against the home and vehicle of the defendant.

The warrant itself was issued by the Honorable Samuel

Adams, Associate Justice of the Massachusetts Superior Court.

To the extent that this motion is before this court, defendant

makes three general contentions, i.e., (1) that the affidavit in

support of the warrant was insufficient on its face; (2) that the

discovery and seizure of the firearms was the result of an im-

proper exploitation of the failure of police officers to give

lla

defendant his Miranda warnings; and (3) that the officers

should have obtained a new search warrant before seizing the

firearms referred to in the indictment.' These issues are

discussed seriatim.

A. Defendant first challenges the sufficiency of the af-

fidavit in support of the application for a search warrant. That

affidavit, prepared by Detective John E. Lydstone of the

Boston Police Department, set forth the following facts:

(a) That on November 18, 1976, Lydstone and other of-

ficers investigated an explosion at Rooney’s Tavern in Dor-

chester;

(b) That Lydstone was advised by members of the bomb

squad that certain pieces of wire found outside and inside the

premises indicated that the explosion was caused by dynamite;

‘ (c) That Lydstone was told by Patrolman John Arnstein

that —

. . . at about 2:00 AM on Thursday, November 18, 1976,

he had been on duty and patrolling the area of Rooney’s

Tavern and noted that a white Cadillac was parked at the

front door and that a white male, about 35 years, 5-10,

180 lbs. was standing at the front door. Later that same

morning, at about 3:56 AM, Patrolman Arnstein re-

sponded to a radio call relative to an explosion at

Rooney’s Tavern. Unon [sic] arrival and during his in-

vestigation, an unknown male stated that a white Cadil-

lac had left the scene moments before the explosion. (Em-

phasis added.)

‘A fourth issue — i.e., that the affidavit contained “intentional, relevant

and non-trivial misstatements” under the rationale of United States v.

Belcufine, 508 F. 2d 58 (1st Cir. 1972) — has been resolved adversely to the

defendant by the Court.

12a

(d) That Patrolman Arnstein identified a photograph of

defendant as bearing a strong resemblance to the person whom

he had observed at 2:00 a.m. that morning standing at the

front door of Rooney’s Tavern;

(e) That the defendant was listed as an owner of Rooney’s

Tavern, and the operator of a white 1976 Cadillac;

(f) That the defendant lived at 38 Ells Avenue, Weymouth,

and that the defendant’s white Cadillac was parked in the

driveway of that location at 10:00 a.m. that morning; and

(g) That Detective Lydstone was advised by officers of the

bomb squad that, in their opinion, the type of bomb capable

of causing the sort of damage suffered at Rooney’s Tavern

“.. . would generally be assembled in a workshop of some

sort, as opposed to in the vehicle, because of the type of tools

and materials needed to assemble the bomb.”

On the basis of these facts, Detective Lydstone sought a

search warrant for defendant’s vehicle and home. As noted

above, those warrants were issued by Associate Justice Adams

on November 19, 1976.

1. With respect to this Affidavit, defendant contends that

the facts were insufficient on their face to establish probable

cause linking defendant with the bombing, or probable cause

that implements of the bombing would be found in defendant’s

house. In connection with this contention, defendant first

contends that the Court should disregard that information im-

parted by the “unknown male” — i.e., that a white Cadillac

had left the scene moments before the explosion — because

there was nothing before Justice Adams indicating the relia-

bility of this unknown male, or how the unknown male

learned about the information which he told Patrolman Arn-

stein, as required by the rationale of Aguilar v. Texas, 378

U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410

(1968).

In this court’s view, Justice Adams properly considered the

information reported by the unknown male to Patrolman Arn-

l3a

stein. As noted in United States v. Burke, 517 F.2d 377, 380

(2d Cir. 1975):

. there has been a growing recognition that the

language in Aguilar and Spinelli was addressed to the

particular problem of professional informers and should

not be applied in a wooden fashion to cases where the in-

formation comes from an alleged victim of or witness to a

crime.

Other circuits have accepted a similar interpretation of the

Aguilar and Spinelli rationale. E.g., United States v. Mahler,

442 F.2d 1172, 1774-1175 (9th Cir.), cert. denied, 404 U.S.

993 (1971); United States v. Bell, 457 F.2d 1231, 1238-1239

(Sth Cir. 1972); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th

Cir.), cert. denied, 395 U.S. 934 (1969); United States v.

Unger, 469 F.2d 1283, 1287 (7th Cir. 1972), cert. denied, 411

U.S. 920 (1973); United States v. McCoy, 478 F.2d 176, 179

(10th Cir.), cert. denied, 414 U.S. 828 (1973); cf. United

States v. Harris, 403 U.S. 573 (1971). This “growing recogni-

tion” is not mere ipse dixit on the part of the Courts referred to

above. To the contrary, this interpretation is fully consistent

with the extent and scope of the Aguilar-Spinelli rationale. As

pointed out by the Court in McCleary v. Sigler, supra, at

1268:

The additional significance we glean from Spinelli is

that the magistrate must assure himself that the affidavit

is not merely based upon “casual rumor circulating in the

underworld or an accusation based merely on an individ-

ual’s general reputation.” 89 S.Ct. at 589. However,

older principles repeated in Spinelli are worthy of abbre-

viation here. In dealing with the sufficiency of affidavits

l4a

(1) only a probability of criminal conduct need be shown,

(2) standards less rigorous than rules of evidence deter-

mine sufficiency, (3) common sense controls and (4)

“great deference” should be shown by the courts to a

magistrate’s determination of probable cause.

In this context, Justin [sic] Adams properly considered the

information imparted by the “unknown male.” If the purpose

of the Aguilar-Spinelli rationale is to assure the issuing judicial

officer that he is not relying upon “casual rumor circulating in

the underworld or an accusation based merely on an in-

dividual’s general reputation,” then that rationale would not

have been furthered to the slightest by rejecting the informa-

tion received from the “unknown male.” Reading the affi-

davit in its entirety, it was clearly reasonable for Justice

Adams to conclude that the “unknown male” witnessed the

white Cadillac leave the scene moments before the bombing.?

Thus read, the possibility that the information imparted con-

sisted of “casual rumor” or “mere gossip” is, at best, de

minimus. To the contrary, Justice Adams was obviously

reasonable in concluding that the “unknown male” reported

what he observed, and observed what he reported.

Moreover, under the Aguilar-Spinelli test, information im-

parted [by] an “informant” may be credited if independent

facts brought to the attention of the judicial officer cor-

roborate — and thus lend credence to — the information so

reported. In the present case, the “unknown male” reported

that a white Cadillac left the scene moments before the explo-

* Although the affidavit did not state that the “unknown male” actually

saw the white Cadillac drive away, given the fact that Patrolman Arnstein

immediately responded to the bombing, and acquired this information from

the “unknown male” shortly thereafter, Justice Adams could reasonably con-

clude that the “unknown male” related an eyewitness account.

l5a

sion. The explosion, according to Patrolman Rooney [sic], oc-

curred sometime prior to 3:56 a.m. And Patrolman Arnstein

himself had seen a white Cadillac parked in front of Rooney's

Tavern at approximately 2:00 a.m. that same morning. In

this context, the statement of Patrolman Arnstein cor-

roborated the information given by the “unknown male”, and

Justice Adams properly credited the information supplied by

the “unknown male.”

Thus viewed, the affidavit stated sufficient facts linking the

defendant with the bombing. Under settled principles, given

the fact that affidavits are invariably prepared in haste

because of evolving and ambiguous circumstances, United

States v. Cruz-Pagan, 537 F.2d 554, 557 (Ist Cir. 1977), af-

fidavits in support of a search warrant must be read in a com-

monsense and realistic — as opposed to a hypertechnical —

fashion, United States v. Ventresca, 380 U.S. 102, 105-106

(1965); United States v. Poulack, 556 F.2d 83 (1st Cir. 1977), a

strong preference should be accorded to searches conducted

pursuant to a warrant, Ventresca, supra, the finding of prob-

able cause by a judge or magistrate should be accorded “great

deference” by the reviewing court, Spinelli, supra, at 419, and

the resolution of doubtful or marginal cases should be deter-

mined by the preference accorded to warrants. Ventresca,

supra; Jones v. United States, 362 U.S. 257 (1963); United

States v. Christenson, 549 F.2d 53 (8th Cir. 1977).

In the present case, the facts, and the reasonable inferences

drawn therefrom, before Justice Adams showed: (1) that the

defendant (or a person of defendant’s likeness) was observed

standing at the front door of Rooney’s Tavern two hours

before the bombing; (2) that a white Cadillac was parked in

front of the tavern at the same time; (3) that defendant was an

owner of Rooney’s Tavern and of a white Cadillac; and (4)

that a white Cadillac was observed leaving the scene of

Rooney’s Tavern moments before the explosion. Since part of

16a

the detonation equipment was found inside the tavern, the

clear inference to be drawn was that someone who had access

to the tavern (such as the defendant who was listed as an

owner) was responsible for placing the device inside that

tavern. In keeping with the established notion (Spinelli,

supra, at 419) —

... that only the probability, and not a prima facie show-

ing of criminal activity is the standard of probable cause,

Beck v. Ohio, 379 U.S. 89, 96 (1964)...

it is clear that Justice Adams properly concluded that, in all

probability, defendant was responsible for the bombing at

Rooney’s Tavern. Moreover, applying the same principles,

Justice Adams properly concluded that, in all probability,

evidence and implements of the bombing would be found in

defendant’s home. According to members of the bomb squad

as set forth in the affidavit, the explosive device was such as

could require assembly at a work bench with the aid of tools.

Although there is always the possibility that the bomb could

have been manufactured elsewhere, that possibility does not

square with the real world. Bombers do not make bombs in

public, nor do they use a neighbor’s workshop. If secrecy is an

element of the bomber’s doings, then the security of one’s

home is the most logical place to assume as the area where the

bomber’s doings are done. Thus, Justice Adams properly con-

cluded that, in all probability, the bomb was assembled in the

defendant’s house.

For these reasons, this court recommends that the Court

deny defendant’s motion to suppress insofar as it challenges the

sufficiency of the affidavit.

2. Defendant next contends that the seizure of the firearms

was the product of an exploitation of the failure of police of-

ficers to give defendant his Miranda warnings.

l7a

According to the evidence before this court, Detective

Robert F. Ryan of the Boston Police Department, together

with other local law enforcement officers and agents from the

Alcohol, Tobacco and Firearms Division, executed the war-

rant at approximately 5:30 p.m., November 19, 1976. Upon

arriving at the premises, Detective Ryan was greeted by

defendant’s wife, who was told as to his purpose. She told

Detective Ryan that the defendant was upstairs in a bedroom.

Detective Ryan met the defendant in the bedroom and again

explained his purpose. At this time, in order to avoid any

problems during the search and to ensure the safety of the of-

ficers, Detective Ryan asked the defendant if there was any

money or firearms in the house. Defendant said that there

was no money, but that there were firearms. Detective Ryan

then asked the defendant if he [defendant] would show or get

him the firearms, and defendant said that he would. The

defendant then went to the kitchen and began to enter steps

leading to the cellar. At this point, Detective Ryan asked the

defendant if he had an FID (Firearms Identification Card)

card or a license to carry firearms, and defendant responded

that he did not. The defendant then told Detective Ryan that

they would have to find the firearms themselves. All the

above conversations took place prior to Miranda warnings be-

ing given to the defendant.

Prior to the time the defendant and Detective Ryan had

gone from the bedroom to the kitchen, officers had already

begun searching defendant’s cellar. Between 5 and 10

minutes of the beginning of that search, ATF Special Agent

William J. Murphy — who was searching for implements of

an explosive device — found the sawed-off shotgun in a duffle

bag underneath a workbench in the cellar. At the same time,

Detective Lydstone found the sawed-off rifle in the same area.

No implements of a bomb had yet been found.

18a

Approximately 30 to 40 minutes later, a blasting cap and

other items were found in defendant's vehicle. At this time,

defendant was placed under arrest and was given his Miranda

warnings. Until the time of his formal arrest, defendant was

detained in the kitchen with his wife, and, according to Detec-

tive Ryan, he was not free to leave.

Against this factual background, relying upon the rationale

of Wong Sun v. United States, 371 U.S. 471 (1963), defendant

contends that the discovery and seizure of the firearms re-

ferred to in the indictment was the fruit of a primary illegality

— i.e., the failure to advise defendant of his Miranda rights —

and, thus, that the firearms should be suppressed.

In the circumstances, there is no occasion to consider

whether defendant — who was kept in his kitchen with his

wife during the search — was in “custody” within the mean-

ing of Miranda, cf. Orozco v. Texas, 394 U.S. 324 (1969), or

whether the routine questions initially put by Detective Ryan

was the sort of “interrogation” contemplated by the Miranda

opinion. For even assuming that Miranda warnings should

have been given, the Wong Sun rationale does not apply.

The test to be applied is neither a per se nor a “but for” rule.

See Brown v. Illinois, 422 U.S. 590, 603 (1975). The question

to be asked in each case is whether the particular evidence was

obtained “by means sufficiently distinguishable to be purged

of the primary taint.” Wong Sun, at 488. On this latter score,

it is clear that the discovery of the firearms was wholly

unrelated to the statements made by the defendant Accord-

ing to Detective Ryan, the search party had planned to search

the entire house in order to find evidence and implements of

an explosive device. Police officers and federal agents had

already begun to search the cellar even before the statements

were made. The discovery was made as a result of the search

for evidence and implements of the explosive device, and

would have been found irrespective of.the statements made by

19a

the defendant. In these circumstances, it is clear that the

firearms were discovered by means wholly independent of the

alleged primary illegality, see Virgin Islands v. Gereau, 502

F.2d 914, 926-928 (3rd Cir. 1974), cert. denied, 420 U.S. 909

(1975); United States v. Falley, 489 F.2d: 33, 40-41 (2d Cir.

1973); United States v. Schipani, 414 F.2d 1262 (2d Cir.

1969), cert. denied, 397 U.S. 922 (1970), and no purpose un-

derlying the exclusionary rule would be served by excluding

evidence of the firearms found during the otherwise lawful

search. Virgin Islands v. Gereau, supra; United States v. Ed-

monds, 432 F.2d 577 (2d Cir. 1970).

In short, the police officers may have discovered “fruits,”

but they were not from the “poisonous tree.” Accordingly,

this court recommends that the Court deny the motion insofar

as it is based on this ground.

3. Finally, defendant contends that the officers should have

obtained a second warrant before seizing the firearms. Under

settled principles, of course, officers making a legal search may

seize contraband discovered during that search even though it

is not listed in the warrant. E.g., Abel v. United States, 362

U.S. 217 (1960); Harris v. United States, 331 U.S. 145 (1947);

United States v. Sorenson, 330 F.2d 1018 (2d Cir.), cert.

denied, 380 U.S. 945 (1965). Defendant apparently does not

dispute this settled principle, but contends that — with the ex-

ception of defendant’s statement to the effect that he did not

have an FID card or a license to carry firearms (a statement

which defendant contends was improperly obtained as dis-

cussed above) — the agents did not-have probable cause to

believe that the sawed-off shotgun and rifle were contraband,

since it technically is possible to legally register and possess

such firearms.

In this court’s view, defendant’s contention is fully answered

by the language of the Court in United States v. Canestri, 518

20a

F. 2d 269, 274-275 (2d Cir. 1975), wherein it was said in rela-

tion to a similar argument:

While it is possible for a person to register and therefore

possess legally a sawed-off shotgun or an automatic

weapon, it is not a prerequisite for a legal seizure that the

officers know at the time of the search that the seized

weapons were not registered. United States v. Story, 463

F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988, 93

S.Ct. 343, 34 L.Ed. 2d 254 (1972); United States v. Cecil,

457 F.2d 1178, 1180-81 (8th Cir. 1972); United States v.

Zeidman, 444 F.2d 1051, 1054 (7th Cir. 1971); United

States v. Ciaccio, 356 F. Supp. 1373, 1378 (D.Md. 1972).

As the Ninth Circuit noted in Porter v. United States,

335 F. 2d 602, 607 (1964), cert. denied, 379 U.S. 983, 85

S.Ct. 695, 13 L.Ed. 2d 574 (1965), “a sawed-off shotgun

in private hands is not an intrinsically innocent object.

The possession of it is a serious crime, except under extra-

ordinary circumstances.” In 1972, there were less than

15,000 registered sawed-off shotguns in the United States,

most of which were registered to governmental agencies

for training purposes or to residents of Western states.

United States v. Cecil, supra, 457 F.2d at 1182 n.1

(Heaney, Jr., dissenting). In light of these circumstances

we think that the district court properly concluded that

the officers had probable cause to believe that the seized

weapons were contraband. (footnote omitted).

In the present case, in addition to what has been said above,

the sawed-off shotgun was concealed in a duffel bag which, in

turn, was underneath a workbench in the defendant’s cellar.

Thus, the officers clearly had probable cause to believe that

the firearms were unregistered in violation of federal law, and

2la

those firearms were properly seized as contraband without a

warrant.

For the foregoing reasons, this court recommends that the

motion to suppress be denied.

LAWRENCE P. COHEN,

United States Magistrate.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

v. CRIMINAL ACTION

No. 77-53-M

JAMES FRANCIS MELVIN

Memorandum.

Murray, Senior District Judge

Defendant’s motion to suppress evidence, insofar as the mo-

tion alleged certain intentional misrepresentations of fact were

averred in paragraph 4 of the affidavit of Detective John

Lydstone of the Boston Police which was offered in support of

the application for a search warrant, was denied after hear-

ing. (See Memorandum Decision, November 18, 1977.) De-

fendant’s motion for reconsideration of that decision was

denied.

The case is now before the court on defendant’s second mo-

tion for reconsideration of the motion to suppress on the

ground of newly discovered evidence of material misstate-

ments and omissions in paragraph 4 of the affidavit. The new-

ly discovered evidence is alleged to appear in the testimony

22a

of Detective Lydstone and of Detective Martin Coleman of the

Boston Police given to a Justice of the Superior Court of Massa-

chusetts on May 18 and 19, 1978. Defendant argues that the

misrepresentations, if excised, and the omitted information, if

supplied, would leave the affidavit “devoid of probable cause”

connecting the defendant with the explosion at Rooney's

Tavern.

The motion for reconsideration is allowed and, the court

finding that the motion to suppress on the ground alleged is

without merit, denies the same.

The person whose veracity is the object of impeachment by

defendant is the affiant, John Lydstone. Defendant’s burden

is to prove deliberate falsehood or reckless disregard for the

truth on the part of Lydstone in the particulars of the affidavit

that are claimed to be false. Examination of the transcripts of

May 18 and 19, 1978, discloses that Lydstone omitted from the

affidavit matters which he deemed irrelevant, and included

information which he received from Patrolman Arnstein. Ex-

amination of the transcript of April 18, 1977 of Lydstone

shows no substantial or material deviation from his later

testimony. In the latter transcript (p. 90) the testimony of

Patrolman Arnstein confirms the information which Lydstone

included in the affidavit.

Defendant has not shown any deliberately false statements

or statements made with reckless disregard for the truth in

paragraph 4 of Lydstone’s affidavit, and has not shown omis-

sions consciously made to falsify the affidavit. See Franks v.

Delaware, ____ U.S. ___., Slip Opinion No. 77-5176 (June 26,

1978). Let an order enter denying defendant’s motion to sup-

press, and an order assigning the case for trial on August 21,

1978 at 10:00 am.

FRANK J. MURRAY,

July 27, 1978 Senior District Judge.

23a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA

v. CRIMINAL ACTION

No. 77-53-M

JAMES FRANCIS MELVIN

Order

Murray, Senior District Judge

This case came on to be heard on the report and recommen-

dation of the Magistrate, and the defendant's objections there-

to, on the defendant’s motion to suppress, and thereupon,

upon consideration thereof, the report and recommendation

be and hereby are accepted and adopted. Accordingly, the

motion to suppress is hereby denied on every ground advanced

by defendant.

FRANK J. MURRAY,

United States Senior District Judge.

August 3, 1978

24a

United States Court of Appeals

For the First Circuit

No. 78-1437

UNITED STATES OF AMERICA,

APPELLEE,

JAMES FRANCIS MELVIN,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank J. Murray, U.S. District Judge]

Before Corrin, Chief Judge, :

CAMPBELL aND Bowness, Circuit Judges.

Martin G. Weinberg, with whom Judith H. Mizner, and Oteri

& Weinberg, were on brief, for appellant.

Robert B. Collings, First Assistant United States Attorney,

Chief, Criminal Division, with whom Edward F. Harrington,

United States Attorney, was on brief, for appellee.

April 13, 1979

CaMPBELL, Circuit Judge. This is an appeal by James

Francis Melvin from his conviction for the possession

of two firearms, a sawed-off shotgun and a sawed-off

carbine, which were not registered to him in the National

Firearms Registration and Transfer Record, in violation

of 26 U.S.C. § 5861(d). The guns were discovered and

seized by police officers during a search of Melvin’s home

pursuant to a warrant. Melvin contends that the district

court erred in refusing to suppress the firearms as evi-

dence against him at trial. He argues (1) that the search

25a

2 U.S. UV. MELVIN

warrant was issued without probable cause; (2) that it

was issued upon an affidavit containing a material false

statement made in reckless disregard for the truth; and

(3) that the seized weapons were the fruits of an interroga-

tion conducted in violation of Miranda v. Arizona, 384

U.S. 436 (1966). As we conclude that the district court

properly admitted the seized firearms into evidence, we

affirm the conviction.

We address first the question of probable cause. The

warrant, authorizing the search of appellant’s home at

38 Ells Avenue, Weymouth, was issued by a justice of the

Massachusetts Superior Court upon the affidavit of De-

tective John E. Lydstone of the Boston Police Department.

The objects sought by the search as authorized by the

warrant were instrumentalities used in the commission

of a bombing, not the firearms which were found and intro-

duced against appellant at trial.’

In passing on the probable cause basis for the search

warrant, we may consider only information brought to the

issuing judge’s attention. Aguilar v. Texas, 378 U.S. 108,

109 n.1 (1964). The judge issued the warrant solely on

the basis of Detective Lydstone’s affidavit, which stated

the facts in material respects as follows. At approximately

4:00 a.m. on November 18, 1976, there was an explosion at

Rooney’s Tavern in Dorchester, Massachusetts. Patrolman

1 Apparently none of the instrumentalities of the bombing sought

by the warrant were found in the house, although the returned

warrant reported that electrical and friction tape. a current tester.

and six pairs of wire cutters had been discovered. The judge also

issued a warrant authorizing a search of appellant’s car, however.

and appellant’s brief indicates that what appeared to be part of a

blasting cap was found in the car. Based on this evidence, appel-

lant apparently was arrested for having caused the explosion, but

he was acquitted after a trial in state court.

26a

OPINION OF THE COURT 3

Arnstein of the Boston Police Department arrived at the

tavern a few minutes after the explosion. According to the

affidavit, shortly after Arnstein’s arrival ‘‘an unknown

male stated that a white Cadillac had left the scene

moments before the explosion.’’ Earlier that morning, at

about 2:00 a.m., Arnstein while patrolling the area had

noticed a white Cadillac parked in front of Rooney’s Tav-

ern and a white male, about 35 years old, 5’10” tall, and

180 lbs., standing at the tavern’s front door. Detective

Lydstone in the affidavit affirmed further:

‘*(5) That I gave photographs of persons known

by me to frequent the area of Rooney’s Tavern and

Patrolman Arnstein indicated that a photograph of

James Melvin bore a strong resemblance to the man

that he had seen at the Tavern door at 2:00 AM that

morning.

‘*(6) That James Melvin is a white male, 34

years old, 5’-9”, 165 lbs. is listed as an owner of Roo-

ney’s Tavern and that he operates a 1976 Cadillac,

color white, Mass. Reg. D66-105 and he resides at 38

Ells Ave., Weymouth.

‘“(7) That at about 10:00 PM Thursday, Novem-

ber 18, 1976, Detective Martin Coleman of the Intel-

ligence Division responded to 38 Ells Ave., Weymouth

and observed that the white Cadillac belonging to

Melvin was parked at that location.”’

Lydstone stated also that Sergeant Ruglario and Patrol-

man Cunningham of the Boston Police Department’s bomb

squad reported finding at the rear of the tavern a 103 foot

length of brown wire and another length of similar brown

wire inside the tavern, the latter attached to yellow and

blue wires of the type and in a configuration consistent

With use in detonating a stick of dynamite, and that ‘‘[i]t

is the opinion of these bomb squad officers that the above

paraphernalia was in fact used to cause the explosions at

27a

4 U.6. V. MELVIN

Rooney’s Tavern.’’ Finally, Detective Lydstone requested

a warrant for the following reasons:

‘‘(8) That I have discussed the above stated facts

and their inferences with other members of the Intel-

ligence Division and it is our collective opinion that

there is probable cause to believe that James F. Melvin

was responsible for the explosion at Rooney’s Tavern

and respectfully request that the Court issue search

warrant for Melvin’s white Cadillac, Mass. Reg. D66-

105.

‘“(9) I have discussed the facts and inferences of

this case with Sgt. Ruglario and Patrolman Cunning-

ham of the Bomb Squad. They inform me that the type

of device capable of causing the above damage (at

Rooney’s Tavern) would generally be assembled in

a workshop of some sort, as opposed to in the ve-

hicle, because of the type of tools and materials needed

to assemble the bomb. Therefore, I also request a

search warrant for James Melvin’s residence at 38

Ells Avenue, Weymouth, Massachusetts. That resi-

dence is described as a single-family, brown, two-story

house with a garage attached.’’

The warrant was issued on November 19 and the search

conducted later that day.

The fourth amendment protects against ‘‘unreasonable

searches and seizures,’’? and provides that ‘‘no Warrants

shall issue, but upon probable cause.’’ The Supreme

Court in Spinelli v. United States, 393 U.S. 410, 419 (1969),

summarized the principles that govern the issuance and

review of search warrants. These ‘‘established proposi-

tions’’ are,

‘that only the probability, and not a prima facie show-

ing, of criminal activity is the standard of probable

cause, Beck v. Ohio, 379 U.S. 89, 96 (1964); that affi-

davits of probable cause are tested by much less rig-

28a

OPINION OF THE COURT 5

orous standards than those governing the admissibility

of evidence at trial, McCray v. Illinois, 386 U.S. 300,

311 (1967); that in judging probable cause issuing

magistrates are not to be confined by niggardly lim-

itations or by restrictions on the use of their common

sense, United States v. Ventresca, 380 U.S. 102, 108

(1965); and that their determination of probable

cause should be paid great deference by reviewing

courts, Jones v. United States, 362 U.S. 257, 270-271

(1960).’’

Appellant misapprehends two fourth amendment prin-

ciples which we wish to clarify at the outset. First, appel-

lant reads the phrase ‘‘probable cause’’ with emphasis on

the word ‘‘probable,’’ and would define it mathematically

to mean ‘‘more likely than not’’ or ‘‘by a preponderance

of the evidence.’’ This reading is incorrect. The phrase

is less stringent than that — the words ‘reasonable

cause’’ are perhaps closer to what is meant. The Supreme

Court has asserted that ‘‘ ‘reasonableness’ is the over-

riding test of compliance with the Fourth Amendment,”’

Zurcher v, Stanford Daily, 436 U.S. 547, 559 (1978); has

approvingly quoted authority equating ‘‘probable cause”’

with ‘‘reasonable grounds to believe,’’ id. at 556 n.6; and

has even used the phrases ‘‘reasonable cause’’ and ‘‘prob-

able cause’’ interchangeably, compare id. at 556, with id.

at 507. See also Brinegar v. United States, 338 U.S. 160,

175-76 (1949).

Appellant’s second misunderstanding is his contention

that for the warrant to have been proper there had to

have been probable cause to believe that he was respon-

sible for the explosion. This would mean that the search

of appellant’s home was improper unless the police had

sufficient evidence prior to the search to arrest him. Such

a requirement would render property searches ineffective

as tools of criminal investigations in many cases, and it

29a

6 U.6. UV. MELVIN

has been rejected by the Supreme Court. The Court has

ruled that ‘‘ ‘[{o]nce it is established that probable cause

exists tc believe a federal 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 [‘fruits, instrumentalities, or evi-

dence,’ see 436 U.S. at 554,] of the crime.’’’ Zurcher v.

Stanford Daily, 436 U.S. at 558, quoting United States v.

Manufacturers National Bank, 536 F.2d 699, 703 (6th

Cir. 1976), cert. denied sub nom. Wingate v. United States,

429 U.S. 1039 (1977). Moreover, the Court has declared that

‘it is untenable to conclude that property may not be

searched unless its occupant is reasonably suspected of

crime and is subject to arrest.’’ 436 U.S. at 559. It is true

that Zurcher involved a search of property possessed by

a third party who was not suspected of the criminal ac-

tivity being investigated, and held only that such a non-

suspect’s property could be searched without probable

cause to arrest him. But, the rule is obviously the same

with respect to a person who the police do indeed suspect

but do not have probable cause to arrest; such a person’s

property may be searched upon probable cause to believe

that fruits, instrumentalities, or evidence of the crime

are present, even though the products of the search may

implicate him. Carroll v. United States, 267 U.S. 132, 158-

59 (1925) ; 436 U.S. at 556-58.

In this case it is undisputed that the judge who issued

the warrant had probable cause to believe that a crime

had been committed. Whether he properly issued the war-

rant therefore depends upon whether he had probable cause

to believe that instrumentalities of the crime were present

in appellant’s home. Appellan{ claims that such probable

cause was lacking because of insufficient evidence linking

him to the bombing and inadequate reason to expect that

30a

OPINION OF THE COURT 7

instrumentalities would be found in his home even if he

had been involved.

The evidence described in the affidavit connecting appel-

lant to the explosion was the ‘‘unknown male’s’’ statement

that a white Cadillac had left the scene moments before

the explosion, Patrolman Arnstein’s earlier observation of

a white Cadillac and a man fitting appellant’s description at

the tavern, the fact that appellant owned a white Cadillac,

which was parked at his home the day after the bombing,

and the fact that appellant owned the bombed tavern.

Perhaps the most important fact was the statement that

the white Cadillac had left the scene ‘‘moments’’ before

the explosion. This permitted the issuing judge to conclude

that whoever was driving the car heard the explosion but

did not return. Since the relative uniqueness of white

Cadillacs and the earlier evidence of defendant’s presence

justify a conclusion that it was defendant who was driving

away, the judge could further have drawn the inference

of complicity from a failure to do what defendant, if

innocent, would have done, i.e., returned to check on his

premises after hearing the explosion. If the issuing judge

was entitled to credit all of this information, we think it

provided him with an adequate foundation to regard appel-

lant as a prime suspect, quite apart from whether it would

have provided probable cause for appellant’s arrest.

Appellant, however, challenges the use of the statement

of the ‘‘unknown male,’’ a crucial piece of evidence in the

chain implicating appellant, in establishing probable cause

for the search. Appellant argues that the statement of the

‘‘unknown male’’ should be treated as an informant’s tip

and not credited because the police have not demonstrated

his credibility and the reliability of his statement, as re-

quired by Aguilar v. Texas, 378 U.S. 108 (1964), and Spin-

elli v. United States, 393 U.S. 410 (1969). See also United

States v. Harris, 403 U.S. 573 (1971). We do not, however,

3la

8 U.S. VU. MELVIN

regard the ‘‘unknown male’s’’ statement as an informant’s

tip subject to Aguilar and Spinelli. We view it instead

as the statement of a bystander witness. While the affidavit

does not expressly disclose the source of the ‘‘unknown

male’s’’ information, the nature of the information he

provided and the circumstances of his ‘‘on the scene’’ re-

port could strongly suggest to the issuing judge that he was

relating what he had personally observed. And, his state-

ment was not at all in the nature of an informant’s tip —

it was non-accusatory and did not describe criminal] ac-

tivity. He merely stated that a white Cadillac had left the

scene moments before the explosion, a detail innocuous by

itself. Its, significance lay in its fitting in with other facts

which such a bystander would presumably not know. To

be sure, it would have been preferable for the affidavit

to have identified the ‘‘unknown male’’ and to’ have

specified whether he had personally observed the Cadillac

leave the scene. But we must interpret the affidavit ‘‘in a

commonsense and realistic fashion,”’ eschewing ‘‘[a]

grudging or negative attitude’’ and recognizing that af-

fidavits for search warrants ‘‘are normally drafted by

nonlawyers in the midst and haste of a criminal investiga-

tion.’? United States v. Ventresca, 380 U.S. 102, 108 (1965).

From that perspective, the reasonable implication of the

affidavit is that the ‘‘unknown male’’ was a bystander

witness, not an informant. Treating him as such — and

taking into account that the statement, which formed a

single link in a circumstantial chain, was non-accusatory—

we think the demonstration of credibility and reliability

that would be required under Aguilar and Spinelli in the

case of an informant is not required here. As the Second

Cireuit noted in United States v. Burke, 517 F.2d 377, 380

(2d Cir. 1975) (Friendly, J.),

‘‘there has been a growing recognition that the lan-

guage in Aguilar and Spinelli was addressed to the

32a

OPINION OF THE COURT 9

particular problem of professional informers and

should not be applied in a wooden fashion to cases

where the information comes, from an alleged victim

of or witness to a crime.”’

-lccord, e.g., United States v. Bell, 457 F.2d 1231, 1238-39

(Sth Cir. 1972); United States v. Mahler, 442 F.2d 1172,

1174-75 (9th Cir.), cert. denied, 404 U.S. 993 (1971) ; United

States v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert. denied,

414 U.S. 828 (1973). The considerations that produced the

Aguilar and Spinelli formulation in the case of an in-

formant do not all apply in the eyewitness situation. United

States v. Bell, 457 F.2d at 1238-39.

While the precise requirements of Aguilar and Spinelli

need not be met in this situation, it is still necessary that

the issuing judge have had a ‘‘substantial basis’’ for credit-

ing the hearsay. See United States v. Burke, 517 F.2d at

381. See generally United States v. Harris, 403 U.S. at

081; Jones v. United States, 362 U.S. 257, 271-72 (1960).

That the ‘‘unknown male’’ was not identified and that the

affidavit did not state the circumstances of his observa-

tion might be grounds for discounting the statement had

it stood alone. However, we think the corroboration pro-

vided by Patrolman Arnstein’s observation of a white

Cadillac at the tavern earlier in the morning afforded a

sound basis for crediting the remark. We accordingly

agree with the district court that the affidavit’s hearsay

report of the ‘‘unknown male’s’’ statement could contribute

to the probable cause basis of the search warrant. See

Jones v. United States, 362 U.S. at 271; Fed. R. Crim. P.

41(c).

The facts recited in the affidavit thus strongly pointed

to appellant as having played some role in the bombing.

To justify the warrant authorizing the search of his house,

the affidavit must also have provided a reasonable basis

to believe that the instrumentalities of the crime sought

33a

10 U.5. V. MELVIN

by the police — wires, blasting caps, dynamite, crimping

pliers and other tools applicable to the making of a bomb —

might be found there. The affidavit stated in this regard

only that the bomb squad officers believed that the type

of bomb used at the tavern ‘‘would generally be assembled

in a workshop of some sort, as opposed to in the vehicle,

because of the type of tools and materials needed to as-

semble the bomb.’’ Appellant claims that that supposition

does not create a reasonable basis for believing that the

instrumentalities sought were present in appellant’s home.

While the question is a close one, we believe it was per-

missible for the issuing judge to infer that evidence or

instrumentalities might be found in appellant’s home. We

note particularly the abundance of wire (103 feet outside

the tavern), the location of some of it inside the tavern,

and the home-made nature of the device. The defendant,

who could have been thought to have known precisely when

the explosion was to occur, was the only person so far

known to have had a possible connection with the bomb.

Since a place to assemble it other than a car, or out of

doors, was indicated, this would suggest two places — the

tavern and defendant’s home. While we are urged to ac-

cept the tavern as equally probable, we think the tavern

a particularly unlikely place for the clandestine assembling

of a bomb, given the wide-ranging authority of officers to

inspect premises of dealers in liquor with or without war-

rant, United States v. Biswell, 406 U.S. 311, 314 (1972).

This is a business with ‘‘a long tradition of close govern-

ment supervision, of which any person who chooses to

enter... must already be aware.’’ Marshall v. Barlow’s,

Inc., 436 U.S. 307, 313 (1978). Under these circumstances,

defendant’s house emerges as the likely location having a

connection with him. Furthermore, it was reasonable to

assume that if the bomb had been assembled in the house,

given the large quantity of wire, the traces of bomb-making

34a

OPINION OF THE COURT ll

activity sought would still be present when the warrant was

issued and executed the day aiter the explosion. Reasonable

inferences of this nature are sufficient to justify the

search warrant. See United States v. Samson, 533 F.2d 721,

723 (Ist Cir.), cert. denied, 429 U.S. 845 (1976) ; cf. United

States v. Picariello, 568 F.2d 222, 224-27 (1st Cir. 1978) ;

Haefeli v. Chernoff, 526 F.2d 1314, 1318-19 (1st Cir. 1975) ;

United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).

But cf. United States v. Flanagan, 423 F.2d 745 (5th Cir.

1970).

Accordingly, giving due weight to the finding of probable

cause by the state judge who issued the warrant in this

close case, see United States v. Ventresca, 380 U.S. at

109, we think that the warrant had an adequate probable

cause basis.

Il.

Appellant argues next that Detective Lydstone’s affi-

davit contained materia] misrepresentations and omissions

in reckless disregard for the truth, and that therefore the

search warrant should have been voided and the seized

firearms excluded from evidence under Franks v. Delaware,

46 U.S.L.W. 4869 (June 26, 1978). In Franks the Supreme

Court ruled,

‘‘where the defendant makes a substantial preliminary

showing that a false statement knowingly and inten-

tionally, or with reckless disregard for the truth,

was included by the affiant in the warrant affidavit,

and if the allegedly false statement is necessary to

the finding of probable cause, the Fourth Amendment

requires that a hearing be held at the defendant’s

request. In the event that at that hearing the allega-

tion of perjury or reckless disregard is established by

the defendant by a preponderance of the evidence, and,

with the affidavit’s false material set to one side, the

35a

12 U.S. UV. MELVIN

affidavit’s remaining content is insufficient to estab-

lish probable cause, the search warrant must be voided

and the fruits of the search excluded to the same ex-

tent as if probable cause was lacking on the face of the

affidavit.’’

46 U.S.L.W. at 4870. The district court held an evidentiary

hearing on appellant’s challenges to the truthfulness of the

affidavit and found them to lack merit. We are not per-

suaded that the court erred.

The veracity challenges appellant makes are to the

affidavit’s statement that ‘‘[u]pon [Patrolman Arnstein’s]

arrival and during his investigation, an unknown male

stated that a white Cadillac had left the scene moments

before the explosion.’’ This is all the affidavit said regard-

ing what the witness had reported seeing. Appellant chal-

lenges the veracity of this statement in three respects.

Appellant first claims that the stated timing of the car’s

departure, ‘‘moments before the explosion,’’ was a material

misrepresentation of what the witness had reported. It is

true that at the district court’s hearing on the motion to

suppress, both Arnstein and Lydstone testified that the

witness had in fact not stated just when he had seen the

car leave. But, both officers consistently maintained that

the witness had reported seeing the car in the area just

prior to the explosion and seeing it leave at some unspeci-

fied point. Since the witness reported this to Arnstein

just after the explosion, the inference is clear that the

witness saw the car leave either moments before, at the

time of, or moments after the explosion. Within this

narrow range, it is difficult to discern how the precise tim-

ing of the car’s departure from the scene of the explosion

would have made any difference to the issuing judge’s

determination of probable cause. The affidavit’s inaccuracy,

if any, in this regard was therefore immaterial.

36a

OPINION OF THE OOURT 13

Appellant claims further that it was a material omission

for the affidavit to identify the witness as an ‘‘unknown

male.’’ The evidence supports the district court’s finding,

however, that the only information the police had about

the witness at the time the affidavit was submitted was

that he was known by the nickname ‘‘Arky’’ and that he

was associated with the Circle Cafe, an establishment

located close to Rooney’s Tavern. While it would have

been preferable for Lydstone to have included even this

sketchy information in the affidavit to indicate that the

witness was not a phantom stranger in the night, its

usefulness to the issuing judge seems slight. The district

court, in any event, found the information was not excluded

intentionally or in reckless disregard for the truth, and we

cannot say that the court was clearly erroneous.

Lastly, appellant contends that the affidavit was flawed

for not disclesing statements made by ‘‘ Arky’’ to Detective

Coleman in a telephone conversation the day after the

explosion. The conversation, evidently took place when

Coleman and Lydstone went to the Circle Cafe to inquire

about ‘‘Arky,’’ and were told he was not there but would

talk to them by telephone. Coleman reported that during

the conversation ‘‘ Arky’’ said he had just been joking when

he talked to Patrolman Arnstein the night before and that

while he had seen a white car parked behind Rooney’s

Tavern he could not identify the car’s make. ‘‘Arky’’ at

the same time told Coleman that he had received threats

and that he wanted to forget the whole matter, and Cole-

man sensed that ‘‘ Arky’’ was nervous and upset. Detective

Lydstone did not mention this conversation in the affi-

davit for the warrant. The reason he gave for its exclusion

was his view that the conversation was irrelevant. The

district court, believing that Lydstone genuinely viewed the

conversation as irrelevant, found that the failure of the

affidavit to mention it was not a deliberate falsification

37a

14 U.S. VU. MELVIN

or a reckless disregard for the truth under Franks v. Del-

aware.? That was a permissible conclusion on the record.

The apparent reason why Lydstone discounted the state-

ments made by ‘‘Arky’’ to Coleman was that his purported

recantation of his statement to Arnstein lacked credibility

and reasonably seemed to be prompted by the threats he

had been receiving. Coleman inferred that the threats re-

lated to ‘‘Arky’s’’ role as a witness and understandably

concluded that he was upset thereby. We do not approve

the affidavit’s failure to reveal the conversation; whether

‘‘Arky’s’’ recantation was unbelievable was properly for

the issuing judge, not the police, to decide. Detective Lyd-

stone should have reported the conversation in his affidavit,

and it was negligent for him not to have done so. But his

failure was even-handed, omitting not only the extent to

which ‘‘Arky’’ had changed his story but the fact that he

had received threats. We therefore again hold that the

district court was not cleary erroneous in finding that the

police were not so culpable as to warrant relief.

Ii.

Appellant argues lastly that the sawed-off shotgun and

sawed-off carbine seized during the search of his home

were the fruits of statements obtained from him by the

police in violation of Miranda v. Arizona, 384 U.S. 436

(1966), and therefore should have been excluded from

2 The two challenges to the veracity of the affidavit discussed

above were decided by the district court prior to the Supreme

Court’s decision in Franks v. Delaware, 46 U.S.L.W. 4869 (June

26, 1978). The court was guided by our opinion in United States

v. Belculfine, 508 F.2d 58 (1st Cir. 1974), however, and clearly

understood that an affidavit’s intentional or reckless false state-

ment, if necessary to the finding of probable cause, would in-

validate a search warrant. There is no reason to believe the district

court would have reached any different result after Franks v.

Delawarc. Sce also United States v. Cruz, No. 78-1146 (1st Cir.

March 9, 1979).

38a

OPINION OF THE COURT . 15

evidence. The statements were elicited during the search

pursuant to the warrant. Upon beginning the search, a

police officer asked appellant whether any money or fire-

arms were in the house. These apparently are routine

questions asked for the purpose of protecting the searching

officers from violence or accusations of theft. Appellant

answered that he did have firearms in the house. The police

officer then asked appellant whether he had a Firearms

Identification Card or a license to possess the firearms, and

appellant answered that he did not. This conversation took

place prior to any Miranda warnings being given to ap-

pellant.

We need not decide under the circumstances whether

these questions constituted a custodial interrogation in

which appellant was entitled to Miranda warnings. Even

if we assume that the warnings were required, there is

ample evidence supporting the district court’s finding be-

low that the firearms were not the fruits of appellant’s

statements but were obtained ‘‘by means sufficiently dis-

tinguishable to be purged of the primary taint.’’ Wong Sun

\. United States, 371 U.S. 471, 488 (1963). Indeed, the

district court found that the discovery of the firearms

was ‘‘wholly unrelated’’ to appellant’s statements re-

garding the firearms. Police officers had already started

their search of the cellar, where the firearms were dis-

covered, before appellant’s statements were made. In their

search for the implements used in the bombing, the police

officers certainly would have uncovered the firearms re-

gardless of appellant’s statements. Appellant evidently

did not lead the officers to the weapons, and one of them

was found in a duffel bag beneath a workbench. As the

firearms were discovered by a means wholly independent

of the alleged primary illegality, no purpose underlying

the exclusionary rule would be served by suppressing the

firearms which were found during the otherwise lawful

39a

16 U.S. UV. MELVIN

search. Virgin Islands v. Gereau, 502 F.2d 914, 926-28

(3d Cir. 1974), cert. denied, 420 U.S. 909 (1975); United

States v. Falley, 489 F.2d 33, 40-41 (2d Cir. 1973).

Appellant’s statements that the weapons were unreg-

istered were not necessary to give the police officers prob-

able cause to seize the weapons once they were discovered.

The very nature of the objects — a sawed-off shotgun

and a sawed-off carbine — provided probable cause to

believe the firearms were contraband. The Second Circuit

has explained,

‘*While it is possible for a person to register and

therefore possess legally a sawed-off shotgun or an

automatic weapon, it is not a prerequisite for a legal

seizure that the officers know at the time of the search

that the seized weapons were not registered. United

States v. Story, 463 F.2d 326, 328 (8th Cir.), cert.

denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254

(1972); United States v. Cecil, 457 F.2d 1178, 1180-81

(8th Cir. 1972); United States v. Zeidman, 444 F.2d

1051, 1054 (7th Cir. 1971); United States v. Ciaccio,

356 F.Supp. 1373, 1378 (D.Md. 1972).’

‘As the Ninth Circuit noted in Porter v. United

States, 335 F.2d 602, 607 (1964), cert. denied, 379 U.S.

983, 85 S.Ct. 695, 13 L.Ed.2d 574 (1965), ‘a sawed-off

shotgun in private hands is not an intrinsically. in-

nocent object. The possession of it is a serious crime,

except under extraordinary circumstances.’ In 1972,

there were less than 15,000 registered sawed-off shot-

guns in the United States, most of which were regi-

**7 As the Eighth Circuit noted in Cecil, ‘{ w]e know of no

rule which requires an officer to have knowledge of all the

elements of the crime when he views an article which reason-

ably appears to be contraband. A requirement that an officer

must know the fact of nonregistration before seizing a

contraband firearm would stultify the enforcement of the

National Firearms Act.’ 457 F.2d at 1180.”’

40a

OPINION OF THE COURT 17

stered to governmental agencies for training pur-

poses or to residents of Western states, United States

v. Cecil, supra, 457 F.2d at 1182 n.1 (Heaney, J., <is-

senting).’’

United States v. Canestri, 518 F.2d 269, 274-75 (2d Cir.

1975). In addition, here the sawed-off shotgun was found

concealed in a duffel bag beneath a workbench in appel-

lant’s cellar, reinforcing the suspicion that it was illegally

possessed, Accordingly, the district court correctly con-

cluded that the firearms were not seized as a ‘‘fruit of the

poisonous tree.’’

Affirmed.

Bownes, Circuit Judge (dissenting). The warrants

which were issued for the search of defendant Melvin’s

home and car were fatally defective in that no adequate

showing of probable cause was made. The affidavit upon

which the warrants were premised was facially insuf-

ficient’ to meet the fourth amendment’s requirement that

‘*no Warrants shall issue, but upon probable cause, . . .’’

The facts we are presented with are skimpy indeed. At

approximately 2:00 A.M. a man was seen in front of

Rooney’s Tavern.’* A white Cadillac was parked outside

in front. At 3:55 A.M. an explosion ripped through the

tavern, According to the affidavit of a police officer who

was not present at the time, an ‘‘unknown male’’ had said

that a white Cadillac had left the scene moments before

the explosion. James Melvin, defendant, at that time owned

1] disenss, infra, some of the subfacial problems of the affidavit.

At the suppression hearing, Officer Arnstein stated that,

while he thought Rooney’s had only a 1:00 A.M. license, it still

appeared to be open at 2:00 A.M. with several people inside.

4la

18 U.8, U0. MELVIN

a white Cadillac. He was part owner of the tavern and

lived-in another town, Weymouth. Leg wires were found

outside the back of the building leading inside, thus sug-

gesting that it had been bombed. Two officers of the

bomb squad said they thought the bomb which caused the

explosion would generally be made in a workshop of some

sort. The patrol officer, when shown a photo of defen-

dant, said that the man he had noticed at 2:00 A.M.

bore a ‘‘strong resemblance’’ to the picture of defendant.

On the basis of these facts -- which were all that were

before the justice issuing the warrants — a search war-

rant for defendant’s car and another warrant to search

his home were obtained.

Even reading the affidavit, which is reproduced in its

entirety in the margin,? in the most generous light, United

2 The affidavit is here reproduced in its entirety:

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, 88. Superior Court

AFFIDAVIT

I, JOHN E. LYDSTONE, a detective in the Boston Police

Department, assigned to the Intelligence Division, Vice Control

Section, being duly sworn, state .

(1) That I have been a police officer in the City of Boston

for the past ten vears and for the last three years assigned to

the Intelligence Division. Vice Control Section. During that time

as a detective in the Intellizence Division, it has been my assign-

ment in part, to investigate organized criminal activity in and

around the City of Boston.

(2) That about 9:30 AM on Thursday, November 18, 1976

1 and other officers from the Intelligence Division had occasion

to respond to 417 Neponset Avenue, Dorchester, which is Rooney's

Tavern, on report that an explosion had taken place there. Upon

arrival and after conversing with members of the Boston Fire

Department Arson Squad who were already on the seene, I

notified the Boston Police Emergency Service Unit, Bomb Squad

and requested them to conduct an investigation.

(3) Boston Police Sergeant Rugiario and Patrolman Cunning-

ham of the Bomb Squad responded and conducted an investigation

and reported the following facts to me: a length of brown wire

was found at the rear of Rooney’s Tavern, partially concealed in

the grass. This wire was about one hundred and three feet in

length with the insulation stripped at both ends and extended

42a

DISSENTING OPINION —— BHOWNES, J. 19

States v. Ventresca, 380 U.S. 102, 108-09 (1965), the affi-

davit does not support a finding of probable cause neces-

sary to underpin the warrants, Neither the facts therein

recited nor the inferences reasonably drawn therefrom

supports a finding of a probable cause.

from the rear of the Tavern to the sidewalk along Cradick Street.

It is the opinion of the Bomb Squad officers that this wire is

capable of and consistent with the type used to explode a bomb.

The officers further reported that inside of the tavern a length

of similar brown wire was found. Attached to the end of this wire

was a piece of yellow wire and a piece of blue wire which is

consistent with the kind used to detonate a blasting cap which

would detonate a stick of dynamite. It is the opinion of these bomb

squad officers that the above paraphernalia was in facts [sic]

used to cause the explosion at Rooney's Tavern.

(4) That at about 6:00 PM on Thursday, November 18, 1976,

I and other officers of the Intelligence Division interviewed

Patrolman John Arnstein of Boston Police Distriet 11. Patrolman

Arnstein stated that at about 2:00 AM on Thurs’.y, November 18,

1976, he had been on duty and patrolling the area of Rooney's

Tavern and noted that a white Cadillac was parked at the front

door and that a white male, about 35 years, 5-10, 180 Ibs. was

standing at the front door. Later that same morning, at about

4:56 AM, Patrolman Arnstein responded to a radio call relative

to an explosion at Rooney's Tavern. Unon [sic] and during his in-

vestigation, an unknown male stated that a white Cadillac had

left the scene moments before the explosion.

(5) That I gave photographs of persons known by me to

frequent the area of Rooney’s Tavern and Patrolman Arnstein

indicated that a photograph of James Melvin bore a strong re-

semblance to the man that he had seen at the Tavern door at

2:00 AM that morning.

(6) That James Melvin is a white male, 34 years old 59”

165 lbs., is listed as an owner of Rooney’s Tavern and that he

operates a 1976 Cadillac, color white, Mass. Reg. D66-105 and he

resides at 38 Ells Ave., Weymouth.

(7) That at abont 10:00 PM Thursday, November 18, 1976,

Detective Martin Coleman of the Intelligence Division responded

to 38 Ells Aven., Weymouth and observed that the white Cadillac

helonging to Melvin was parked at that location.

(8) That I have discussed the above stated facts and their

inferences with other members of tlie Intelligence Division and it

is our collective opinion that there is probable cause to believe

that James F, Melvin was responsible for the explosion at Rooney's

Tavern and respectfully request that the Court issne search war-

rant for Melvin’s white Cadillac, Mass. Reg. D66-105,

43a

20 U.S. U. MELVIN

In its skeletonized form, the information presented in

the affidavit? was that a white Cadillac and a man who

resembled defendant were seen in front of the tavern at

2:00 A.M.,* that defendant owned a white Cadillac, and

that an ‘‘unknown male’ had stated that a white Cadillac

(9) I have discussed the facts and inferences of this case with

Set. Ruglario and and [sic] Patrolman Cunningham of the Bomb

Squad, They inform ine that the type of device capable of causing

the above damage (at Rooney's Tavern) would generally be as-

sembled in a workshop of some sort, as opposed to in the vehicle,

because of the type of tools and materials needed to assemble the

bomb. Therefore, I also request a search warrant for James Melvin’s

residence at 38 Ells Avenue, Weymouth, Massachusetts. That

residence is described as a single-family, brown, two-story house

with a garage attached.

Respectfully submitted,

John E. Lydstone

Joun E, Lypstone

Detective

Boston Police Department

3 There is no contention that information other than that in the

affidavit was presented to the justice who issued the warrants.

Any finding of probable cause must, therefore, be found in the

affidavit. Spinelli v. United States, 393 U.S, 410, 413 n.3 (1969) ;

Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964); Giordenello vy.

United States, 357 U.S. 480, 486 (1958).

This fact in and of itself impites no wrongdoing. Even if the

bar had a closing time of 1:00 A.M., it is not unreasonable that

the owner should come to the premises an hour later, perhaps to

cheek receipts for the evening, close the bar for the night, check

to make sure that everything had run smoothly. In short, neither

the fact, nor any reasonable inference therefrom, that a man

strongly resembling defendant had been seen in front of the

tavern at 2:00 A.M. is suggestive of criminal liability,

5 The ‘‘unknown male’’ was the owner of a nearby bar and was

known to the police at the scene of the explosion as Arky. As

Arky was approaching the throng of police, he asked Officer Arn-

stein, ‘‘Am I a prime suspect in this?’’. His query was made in a

joking manner according to his deposition testimony. There is

nothing in the record before us to suggest that he was in any way

involved in the explosion. 1 note the remark simply for the tint it

casts over the question of his credibility as a witness.

44a

DISSENTING OPINION — BOWNES, J. 21

had left the tavern shortly before the explosion at 3:55 A.M.®

To uphold a search of defendant’s home on the basis of

the affidavit here is a brazen intrusion upon historic

fourth amendment rights. A man who resembled defen-

dant was observed entering his own establishment, a car of

the same make as that owned by defendant’? was later

observed shortly before the explosion. Two bomb experts

* Froia these facts, a jump is made that probable cause existed

to search defendant’s car. The search of defendant’s car is not the

lecus Oo. attention here since the guns which formed the basis of

the .ncietment and conviction were found in the house, not the

var. Since, however, the car forms a necessary step on the road to

finding probable cause to search the house, I briefly consider it.

On the basis of the facts contained in the affidavit, I think that

no warrant should have issued for a search of the car. I reach

this conclusion recognizing full well that automobiles have been

aceorded special treatment by the Supreme Court for fourth

amendment purposes. An exception to the warrant requirement

has been formulated for searches of automobiles under certain

circumstances. The rationale has been articulated in terms of the

unique status automobiles enjoy in our society, with their inherent

mobility and relatively fewer expectations of privacy associated

with them. See, ¢.g., United States v. Chadwick, 433 U.S. 1 (1977);

United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976);

Cardwell v. Lewis, 417 U.S. 583. 590 (1974) (plurality opinion) ;

Che:abers v. Maroney, 399 U.S. 42 (1970); Carroll v. United

States, 267 U.S. 132 (1925). Nonetheless. there is a bedrock upon

which any such search must rest: probable cause. ‘‘[T]he Carroll

doctrine does not declare a field day for the police in searching

automobiles. Automobile or no automobile, there must be probable

cause for the search.’’ Almeida-Sanchez v. United States, 413 U.S.

266, 269 (1973) (footnote omitted). Cf. Delaware v. Prousc, 47

U.S.L.W. 4323 (Mar. 27, 1979) (either probable cause or articu-

lable reasonable suspicion necessary for spot checks of automobiles).

Ifere, there was no information in the affidavit concerning the

year of the Cadillac seen at 2-00 A.M. and the one seen later.

No livense plate numbers were obtained, to check against whether

the ear purportedly seen at 3:55 A.M. bore tags registered to de-

fendant, no vear or model of the Cadillacs was included, matching

either the 2:00 A.M. car with the 3:55 A.M. one or matching

either vehicle with the one owned by defendant. In short, I find

no clearly identifying information linking the cars seen with that

owned by defendant.

TI do not believe, as the majority suggests — nor is there

anything in the record to support a finding — that white Cadillacs

are ‘‘relative[ly] unique[]’’ in Boston. In a city the size of

Boston, Cadillacs — even white ones — are not an endangered

species.

45a

22 U.S. UV. MELVIN

‘concluded that the explosive was probably built in a work-

shop. In boiled down format, this was the basis upon which

the warrant issued. I cannot believe the constitution’s re-

quirement for a finding of probable cause can be satisfied

on these facts.

There is a disturbing circularity to the majority’s argu-

mentation. It proceeds on inferences to find it reasonable

to suspect defendant of having bombed the tavern and

then assumes that the tools for the bomb making are likely

to be found at his residence. The defendant’s white

Cadillac, on this bootstrap merry-go-round, becomes the

key that opens his home to a search and seizure.

The affidavit contains the assertion that it is the ‘‘col-

lective opinion’’ of the police that there is probable cause

to believe defendant was responsible for the explosion.

That this conclusory statement could not — at least in my

understanding — support an arrest warrant (and I find

it interesting that no arrest warrant was ever sought by

police despite their collective opinion that there was prob-

able cause) is beyond peradventure. It is, however, the

necessary building block in the affidavit’s construct since,

from this, the affidavit skips to the fact that two members

of the bomb squad ventured their opinion that the bomb

which caused the explosion would ‘‘generally be assembled

in a workshop of some sort.’’ On this basis — the collective

opinion by the police that defendant was responsible and

the opinion of two bomb experts that a workshop of some

sort might have been used in making the explosive — a

warrant to search defendant’s home was obtained. This

eviscerates the fourth amendment’s mandate that no war-

rant issue except on probable cause.

We are asked to link inference to inference until the final

chain of probable cause is forged. The first set of inferences

culminated in the conclusion that it was reasonable to as-

sume that defendant had played a role in the bombing. Next,

46a

DISSENTING OPINION — BOWNES, J. 23

we are told that it was reasonable to believe that the

bomb would have been constructed in a workshop of some

sort. From there, the inference is that the bomb was a

homemade device which the person responsible would have

built himself. Since we have already inferred that defen-

dant was prebably responsible — so the argument goes —

it then becomes reasonable to suspect that he built the

bomb and that his home, which lies in another town

(though we are assured, is not too distant from the tavern)

would have been the locus of the bomb making activity.

Finally, we are faced with the linchpin that if the bomb

had been assembled in the house, the traces of bombmaking

would still be present.®

I reiterate what this court said on an earlier occasion:

It is one thing to expect the magistrate to give a

commonsense reading to facts set forth and to draw

inferences from them. It is quite another thing to ex-

pect the magistrate to reach for external facts and to

build inference upon inference in order to create a

reasonable basis for his belief{.]

Rosencranz v. United States, 356 F.2d 310, 317 (1st Cir.

1966). \

There must be a ‘‘substantial basis’’ for the magistrate

or justice to conclude that evidence of the crime would be

found at defendant’s home. Aguilar v. Texas, 378 U.S. 108,

111 (1964), quoting Jones v. United States, 362 U.S. 257,

271 (1960). ‘‘Facts or circumstances’’ from which the

justice can find probable cause must be presented. Nath-

® No traces of bombmaking were found in defendant’s house.

though some evidence was found in the car. Instead, the police

uncovered a veritable arsenal of dangerous and highly suspicious

weapons and ¢.amunition. Seven guns were seized, including sawed-

off weapons. A cache of ammunition, including armor piercing

bullets, was taken by the police. The munitions are highly sugges-

tive, of course, of criminal behavior. Their discovery cannot, how-

ever, justify post facto the illegal search, initiated without prob-

able cause.

47a

24 “ U.S. UV. MELVIN

anson v. United States, 290 U.S. 41, 47 (1933). Here, no

such basis was present. No facts or circumstances were

described which would have permitted the justice to con-

clude that evidence of the bombmaking would likely be

found at the home. There was no allegation that more than

one bomb was constructed, compare United States v. Pica-

riello, 568 F.2d 222, 224-26 (1st Cir. 1978); there was no

statement that defendant had a workshop in his home;

no one reported seeing any such bomb making implements

at the home, compare United States v. Burke, 517 F.2d 377,

379 (2d Cir. 1975); no one had personally witnessed defen-

dant making such a bomb, compare United States v. Harris,

403 U.S. 573, 579 (1971); the affidavit claimed no direct

knowledge of explosive making material at defendant’s

home, compare Jones v. United States, 362 U.S. 257, 268

(1960).

The cases cited by the government and relied upon by the

majority are clearly distinguishable. In United States v.

Samson, 533 F.2d 721 (1st Cir.), cert. denied, 429 U.S. 845

(1976), there was a recitation of specific facts by the in-

formant who had been directly involved in the criminal

activity; there was no question about defendant’s involve-

ment in the purported illegality. The informant also stated

that defendant, who had illegally brought guns to the in-

formant’s apartment for sale, then brought the guns back

to his own apartment as far as the informant knew.

Haefeli v. Chernoff, 526 F.2d 1314 (1st Cir. 1975), upheld

a warrant to search defendant’s apartment following his

arrest for possession of stolen property and after other

evidence and fruits of criminal activity had been seized from

a search of his car. Other known pieces of property which

had been stolen during the burglary were still missing.

On these grounds, as well as evidence which had been gath-

ered as the result of surveillance and general identification

48a

DISSENTING OPINION — BOWNES, J. 25

of defendant by other victims, we found the search war-

rant validly issued.

In United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970),

defendant mail clerk had signed for a registered pouch

containing $29,000; several hours later, he reported the

pouch stolen. Defendant was seen leaving the post office

and returning approximately thirty-five minutes later,

time enough for him to have gone to his home and re-

turned. Shortly thereafter, he reported the pouch missing.

The affidavit contained detailed descriptions of his move-

ments, as well as glaring discrepancies in the story he told

his supervisor and others. His own version was internally

inconsistent.

United States v. Picariello, supra, 568 F.2d 222, is clearly

not apposite. There, over 1,200 pounds of explosives had

been stolen and only a small portion recovered; defendant

had been under surveillance for two months prior to the

search, following tentative witness identification of defen-

dant as a participant in a bombing incident. Defendant was

observed by agents leaving his house carrying a box and an

attache case, entering a car which was tailed by police,

then which was engaged in a high speed chase with police,

and was found abandoned hours later with fifty sticks of

the stolen dynamite in it.

Here, by contrast, we have no eyewitness or participant

to the alleged illegality; we have no positive identification

of defendant as directly involved in the explosion; there

was no valid arrest and simultaneous discovery of part

of the incriminating material; there was no showing that

defendant had ever possessed explosives; there was no

suggestion that more than one bomb had been manu-

factured; there were no grounds for a reasonable belief

that additional explosive making material was extant or

would be found at defendant’s home.

49a

26 U.S. UV. MELVIN ‘

For a series of cases which have held that no probable

cause existed to search defendant’s home, even after defen-

dant had been lawfully arrested (here, there is not even

this to suggest a permissible link for a search of defen-

dant’s house), see, e.g., United States v. Gramlich, 551 F.2d

1359, 1362 (5th Cir. 1977) (no circumstance upon which

magistrate could base his determination that incriminating

evidence would be found in defendant’s home; search

invalid); United States v. Bailey, 458 F.2d 408 (9th Cir.

1972) (nothing in the affidavits to support affiant’s con-

clusion that fruits of the crime might be in either the

house or car; search invalid); United States v. Flanagan,

423 F.2d 745 (5th Cir. 1970) (affidavit merely raises the

suspicion that goods would be found in the home sought to

be searched; search invalid).

The affidavit here presented ‘‘no more than an anemic

suspicion,’’ United States v. Whitlow, 339 F.2d 975, 980

(7th Cir. 1964), that evidence of bomb making would be

found at defendant’s home. No adequate foundation for a

finding of probable cause was laid and the resulting war-

rant was, therefore, illegally issued.

I am also troubled by the implications of the majority’s

comments regarding the degree of certitude required for a

finding of probable cause. Ante at 5. The majority states

that probable cause is properly defined as reasonable cause

and cites to Zurcher v. Stanford Daily, 436 U.S. 547

(1978), and Brinegar v. United States, 338 U.S. 160, 175-76

(1949). The focus of the discussion in Zurcher was whether

the premises of a third party, not implicated in criminal

wrongdoing, could lawfully be the subject of a search war-

rant when there was probable cause to believe evidence of

a crime could be found there. The majority, by focusing

narrowly on language relating to ‘‘reasonableness,’’ com-

pels the inference that the degree of probity required for

probable cause to obtain a search warrant is somehow of

50a

DISSENTING OPINION — BOWNES, J. 27

a lesser calibre than other forms of probable cause. This is

patently incorrect. Probable cause for a search warrant

requires the same degree of certitude as probable cause to

arrest.” Zurcher at 556-57 n.6; Spinelli v. United States,

393 U.S. 410, 417 n.5 (1969); Aguilar v. Texas, 378 US.

108, 112 n.3 (1964); Giordenello v. United States,-857 U:S.

480, 485-86 (1958); Ex Parte Burford, 7 U.S. (3 Cranch)

448, 451 (1806). While that degree need not be calibrated

according to mathematical formula, the strong showing

which must be made cannot be ignored.

In reviewing the affidavit for probable cause, my breth-

ren analyze the information provided by the ‘‘unknown

male’’ and discuss the distinction which has been drawn

by some courts between crediting information which comes

via an informant and that from a bystander witness. Ac-

cording to the distinction, the latter is not subject to the

precise requirements of Aguilar v. Texas, supra, 378

U.S. 108, and Spinelli v. United States, supra, 393 U.S. 410.

However, the cases cited by the majority in support of the

application of this principle to the instant case do not aid

the affidavit here relied on. In United States v. Burke,

supra, 517 F.2d 377, the eyewitness had actually seen the

illegal gun in the place to be searched, there was particu-

larity of detail, and the witness was named. In United

States v. McCoy, 478 F.2d 176 (10t) Cir.), cert. denied,

* Relaxation of this standard has been condoned in a few

specifieally recognized exceptions. i.c., routine searches which

eecur at our national borders and their functional equivalents and

which involve no more than a visual inspection of occupants and

contents visible from the outside, I’nited States v. Martinez-Fuerte.

428 U.S. 543 (1976); United States vy. Briqgnoni-Ponce, 422 U.S.

873 (1975) ; searches of luggage at the border; **stop and frisk’’

limited searches for weapons under Terry vV. Ohio, 392 U.S. 1

(1968). In these limited eases, the personal interest protected by

the fourth amendment has been weighed against the publie in-

terest in the search and the intrusion has been found to be

reasonable.

5la

28 U.S. UV. MELVIN

414 U.S. 828 (1973), eyewitnesses aboard a skyjacked plane

gave detailed information concerning defendant; the F.B.I.

laboratory in Washington matched the handwriting on the

demand note to defendant’s Army personnel records;

there were several other corroborating details, all directly

linking defendant with the crime. In United States v. Bell,

457 F.2d 1231 (5th Cir. 1972), there was positive identifi-

cation by witnesses of defendant, there were several cor-

roborating witnesses. In United States v. Mahler, 442 F.2d

1172 (9th Cir.), cert. denied, 404 U.S. 993 (1971), there was

a self-corroborating aspect to the information transmittted

since the informant had been the victim of defendant’s

extortion scheme.

The important point these cases make is that an affi-

davit does not fail merely because it relies on hearsay

evidence of a bystander to establish probable cause. So

long as the hearsay evidence includes indicia of credibility

and internal reliability, it poses no problem. The problem

arises when, in a case such as that presented here, there

is no method for ascertaining the truth or accuracy of the

bystander’s comments. He was listed solely as an uniden-

tified male; there was no statement that he himself had

seen the car leave the scene of the explosion ;’® there were

no other witnesses who could place the car at the scene

moments before the explosion. On this last point, I think it

important to say that, unlike my brethren, I do not consider

the patrol officer’s observation of a white Cadillac two

hours earlier as corroborating evidence that a white Cadil-

lac was seen shortly before the explosion. The unidentified

male had not seen defendant or anyone else at the tavern,

10In fact. we know now that he never said that he had seen

the car leave the scene shortly before the explosion. We further

know that he was not at the site when the explosion ocurred,

but had left fifteen to thirty minutes earlier and was at his home

and was called by an employee whose house faces Rooney’s Tavern.

Arky then drove from his house back to the area.

52a :

DISSENTING OPINION — BOWNES, J. 29

so there was no positive identification unlike the cases

cited above. There was no self-corroborating aspect to

Arky’s comment, since he had been neither the victim nor

accomplice of the alleged illegality. In short, there is lack-

ing the type of firm and concrete detail shown in the

witnesses’ statements in the cases relied on by the govern-

ment and the majority. I have no quarrel with the principle

that the Aguilar/Spinelli analysis might need adaptation

where the informant is a witness or bystander rather than a

professional informer. What I think is necessary, however,

is a recognition that the focus should not be on drawing

this distinction, but rather on whether the information

transmitted is credible and contains sufficient indices of

credibility for a neutral magistrate to be able to justifi-

ably rely on it in finding probable cause.

There are other iroubling aspects to this case which

raise grave questions. The most serious of these concerns

the subfacial problems of the affidavit. Since I believe

the affidavit failed on its face to make a showing suffi-

cient to find probable cause, I do not reach the questions

raised by defendant concerning the subfacial irregulari-

ties of the affidavit, but their mere recitation is unsettling:

the failure of the police to disclose that the informant

Arky (1) recanted on his identification of the car as a

‘‘white Cadillac,’’ (2) may never have identified the car

as a white Cadillac, (3) never said that he had seen the

car leave the scene of the incident ‘‘moments before the

explosion,’’ (4) was not an ‘‘unidentified male’’ since he

was known at least by the nickname Arky and was known

to have at least a managerial (in fact he was the owner)

interest in a nearby competing bar, the Circle Cafe." The

The district court, pursuant to United States v. Belculfine,

508 F.2d 58 (1st Cir. 1974), see also Franks v. Delaware. 438 U.S.

154 (1978), held an evidentiary hearing and determined that sup-

pression would not be required for the asserted flaws in the af-

fidavit, ruling that they did not constitute material omissions

or misstatements made either intentionally or recklessly.

53a

30 U.S. V. MELVIN

majority excuses these failures by noting that the lapses by

the police were ‘‘even-handed”’ since they also failed to

report that Arky had purportedly received threatening

calls. There might be a balancing of the scales were the

recantation weighed against the threats. However, the

fact that Arky never said that he saw the car ‘‘moments

before’’ the explosion, that he never said that he saw the

ear leaving the scene, and that he, himself, was not even

at the scene at the time of the explosion, tips the scale

heavily against a conclusion of even-handedness.

The court below also forgave these flaws, on the grounds

that the affidavit was prepared in haste because of ‘‘evolv-

ing and ambiguous circumstances[.]’’ Although the talis-

man of time pressure and haste is invoked, I do not suc-

cumb to its spell. The police sought the warrant at 5:30 P.M.

on November 19, a full 37% hours after the explosion.

This is not the situation of United States v. Cruz Pagan,

537 F.2d 554 (1st Cir. 1976), cited below, where the setting

was indeed one of a series of rapid-fire events: a plane

landed without authority, a car was observed speeding

away from the air field abandoning the aircraft. The

errors in the affidavit there were minimal and were based

‘on direct observation by the police. Here, the police

waited a day and a half before seeking the warrant, dur-

ing which time little or no effort was made to flesh out

the factual details surrounding the explosion. The police

did interview Arky, by phone. Notwithstanding this, the

affidavit still referred to him as ‘‘an unidentified male.’’

Even more alarming is the failure of the police to recount

Arky’s recantation, during that conversation, of his com-

ments of the previous day. This is not the proper setting

for applying the rubric of quickly occurring events as an

excuse for slight discrepancies or omissions in an affidavit.

Everything that was to happen had already occurred.

All that remained was for the police to do proper investi-

54a

DISSENTING OPINION — BOWNES, J. 31

gative work so that they could lay the basis for a neutral

justice to conclude that probable cause existed to search

defendant’s car and home. This, the police did not do. In

fact, the only investigative work which was done resulted

in a recantation which the police suppressed from the

affidavit.

The protection afforded by the fourth amendment stands

as an important bulwark for people in a free society. Un-

reasonable searches, made without probable cause, threaten

tie very fabric of our democratic system. The search here

was executed in the absence of probable cause. I think

nothing is clearer in our jurisprudence than that the fruits

of that search should be suppressed. I fear that by uphold-

ing the constitutionality of the search here, the majority’s

opinion will be read as an open invitation to issue warrants

upon the gossamer's of suspicion and conjecture.

I would reverse. :

55a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 78-1437.

UNITED STATES OF AMERICA,

APPELLEE,

JAMES FRANCIS MELVIN.

DEFENDANT, APPELLANT.

Judgment

Entered April 13, 1979.

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The dnacune of the District

Court is affirmed.

By the Court:

/s) DANA H. GALLUP,

Clerk.

56a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 78-1437.

UNITED STATES OF AMERICA,

APPELLEE,

JAMES FRANCIS MELVIN.

DEFENDANT, APPELLANT.

Before Coffin, Chief Judge,

Campbell and Bownes, Circuit Judges.

Memorandum and Order.

Entered: May 4, 1979.

Appellant’s petition for rehearing is based on his disagree-

ment with the court’s legal analysis and his understandable

disappointment in the result. This is a close case, susceptible

of different analysis by different minds as the dissenting opin-

ion of our able colleague indicates. The petition adds nothing,

however, to the arguments already presented and considered.

57a

Accordingly it is denied. Our colleague, Judge Bownes,

would allow the petition.

Petition denied.

By the court:

/s) DANA H. GALLUP,

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.