Opposition — Melvin v. United States

No. 78-1814

In the Supreme Court of the United States

OcTOBER TERM, 1978

JAMES FRANCIS MELVIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCrer, Jr.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

Louis M. FisCHEeR

Altorney

Depariment of Justice

Washington, D.C. 20530

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In the Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-1814

JAMES FRANCIS MELVIN, PETITIONER °

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

-IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 24a-54a)

is reported at 596 F. 2d 492.

JURISDICTION

The judgment of the court of appeals was entered on

April 13, 1979. A petition for rehearing was denied on

May 4, 1979. The petition for a writ of certiorari was filed

on June 4, 1979. The jurisdiction of this Court is invoked

under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the affidavit supporting the search warrant

established probable cause to search petitioner's home.

(1)

2

STATEMENT

After a jury-waived trial in the United States District

Court tor the District of Massachusetts, petitioner was

convicted on two counts of possession of unregistered

firearms, in violation of 26 U.S.C. S86I(d). He was

sentenced to two years’ imprisonment, all but three

months of which were suspended, and placed on

probation for three years. The court of appeals affirmed,

one judge dissenting (Pet. App. 24a-54a).

|. Petitioner was tried in the district court on stipulated

facts. These facts showed that a sawed-off 12-gauge

shotgun and a_ sawed-off .30 caliber carbine were

discovered in petitioner's home on November 19, 1976,

during a search authorized by a warrant issued on that

date by a state court judge (Pet. App. 24a-25a; C.A. App.

96-98).' The affidavit for the search warrant stated that

the affiant, a Boston police officer, was investigating an

explosion on November 18, 1976, at Rooney’s Tavern in

Boston. The affiant was told by Patrolman Arnstein, who

was regularly assigned to the area, that he had seen a

white Cadillac parked at the front door of the tavern two

hours before the explosion and had also seen a man, who

Arnstein said “bore a strong resemblance” to petitioner,

standing at the front door (Pet. App. 25a-26a, 41a-42a).

Arnstein arrived at the tavern a few minutes after the

explosion, and shortly after his arrival “an unknown male

stated that a white Cadillac had left the scene moments

before the explosion” (id. at 26a). The affiant veritied that

petitioner was listed as an owner of the tavern, that he

owned a 1976 white Cadillac, and that the Cadillac was

parked at petitioner's residence some 20 hours after the

explosion (ibid.). The affiant also stated that members of

'“C_A. App.” refers to the appendix filed by petitioner in the court

of appeals.

the bomb squad had told him that a 103-foot length of

brown wire had been found at the rear of the tavern and

additional wire was discovered inside the tavern,

assembled in a manner coiisistent with use for detonating

dynamite. The bomb squad members turther advised the

alfiant that a bomb capable of causing the extensive

damage that occurred at the tavern would normally be

assembled in a workshop rather than in an automobile

(id. at 26a-27a).

2. The majority below held that the affidavit establish-

ed probable cause to search petitioner's residence for

evidence of paraphernalia associated with the assembly ot

a bomb. It reasoned (Pet. App. 30a-32a) that petitioner's

ownership of the tavern and a white Cadillac, and the fact

that a white Cadillac had been seen leaving the tavern

moments before the explosion, together with the inference

that petitioner, if innocent, would have returned to check

his property, “strongly pointed to [petitioner] as having

played some role in the bombing”. It also found that the

large quantities of wire involved and the home-made

nature of the device justified an inference that the bomb

would have been assembled in a building, and that

petitioner's home was a logical location because the

tavern was subject to inspection by liquor authorities (id.

at 32a-34a). The dissenting judge stated that in his opinion

the affidavit did not establish probable cause (id. at 40a-

54a).

ARGUMENT

1. Applying familiar principles, both courts below

properly concluded that probable cause existed tor the

search of petitioners home. This essentially factual

determination requires no further review. Berenyi v.

Immigration Director, 385 U.S. 630, 635 (1967).

a. Contending (Pet. 7-10) that the court of appeals ior-

mulated a “new and unprecedented” standard (id. at 7) in

evaluating the search warrant affidavit. petitioner makes

much of the court of appeals’ statement that probable

cause is equivalent to “reasonable cause” (Pet. App. 28a).

Whatever the semantic differences between those terms, it

is clear that the court of appeals did not depart from

settled principles of the Fourth Amendment in determin-

ing that the affidavit provided probable cause for a

search of petitioner’s residence. The court stated (Pet.

App. 30a):

The evidence described in the affidavit connecting

[petitioner] 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 [petitioner's] description at the tavern,

the fact that,[petitioner¥] owned a white Cadillac,

which was parked at his home the day after the

bombing, and the fact that [petitioner] owned the

bombed tavern. Perhaps the most important fact was

the statement that the white Cadillac had lett the

scene “moments” before the explosion. This per-

mitted 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 detendant’s

presence justify a conclusion that it was defendant

who was driving away, the judge could turther 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 alter 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 [petitioner] as a

prime suspect * * *.

This “commonsense and realistic” (United States v.

Ventresca, 380 U.S. 102, 108 (1965)) view of the affidavit

is in accord with established standards of this Court. See

Spinelli vy. United States, 393 U.S. 410, 419 (1969).

b. Nor was there any lack of “factual nexus” between

the explosion and the search of petitioner's home (Pet.

11-13). Reasonable inferences—drawn trom the tact that a

large amount of wire was found at the scene of the

explosion, as well as the great damage wreaked by the

bomb-—-pointed to the conclusion that the bomb was not

easily assembled and thus required a workplace of some

sort. Petitioner's home was a likely. location for such a

workshop. See, e.g., United States v. Picariello, 568 F. 2d

222, 227 (Ist Cir. 1978): United States v. Rahn, 511 F. 2d

290, 293-294 (10th Cir), cert. denied, 423 U.S. 825 (1975):

see also United States v. Solario, 577 F. 2d 554, 556 (9th

Cir. 1978). Whether the tavern or other indoor sites might

also have been likely locations for the workshop (Pet. I1-

12) is not conclusive.’

?The cases relied upon by petitioner (Pet. 12) afford him no

support. United States v. Gramlich, 551 &. 2d 1359 (Sth Cir. 1977}.

suppressed evidence seized from defendant's home when he had been

arrested after unloading marijuana 50 miles from his home; there

was no showing, unlike the situation here, that any evidence

would be found in his home. To a similar effect are United States v.

Colon, 559 F. 2d 1380 (Sth Cir. 1977); United States v. Flanagan, 423

F. 2d 745 (Sth Cir. 1970); and United States vy. Taylor, No. 78-1724

(8th Cir. Apr. 18, 1979). Moreover, United States v. Solario, supra,

also relied on by petitioner, recognized that a delendant’s home,

rather than other locations to which he might have access, was the

most likely location for weapons. 577 F. 2d at 556.

2. Petitioner also argues (Pet. 14-18) that the “un-

known male” who told officer Arnstein that a white

Cadillac had left the tavern moments belore the explosion

was not shown to be credible or reliable within the

meaning of Aguilar v. Texas, 378 U.S. 108 (1964), and

Spinelli v. United States, supra. However, the courts of

appeals have noted, as the Second Circuit did in United

States v. Burke, 517 F. 2d 377, 380 (1975), that “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 information comes

from an alleged victim of or witness to a crime.” See

United States v. Banks, 539 F. 2d 14, 17 (9th Cir.), cert.

denied, 429 U.S. 1024 (1976): United States v. McCoy,

478 F. 2d 176, 179 (10th Cir.), cert. denied, 414 U.S. 828

(1973); United States v. Unger, 469 F. 2d 1283, 1287 n.4

(7th Cir. 1972), cert. denied, 411 U.S. 920 (1973): United

States v. Bell, 457 F. 2d 1231, 1238 (Sth Cir. 1972);

McCreary vy. Sigler, 406 F. 2d 1264, 1268-1269 (8th Cir.),

cert. denied, 395 U.S. 984 (1969).

Petitioner to the contrary notwithstanding, the courts

below did not use the fact that the bystander was a

witness to the crime to “justif[y] [a] total abrogation ot

the credibility, reliability requirements” (Pet. 16). The

information he provided was corroborated by Officer

Arnstein’s personal observation of a white Cadillac

parked in front of the tavern less than two hours before

the explosion. This fact “afforded a strong basis for

crediting the [witness’] remark” (Pet. App. 32a). And since

the information itself was “non-accusatory and did not

describe criminal activity” (Pet. App. 3la), there was no

reasen to doubt the veracity of the witness. Under these

circumstances, the court of appeals did not err in

concluding that the information was properly considered

by the judge who issued the warrant. See United States v.

Baker, 577 F. 2d 1147, 1149-1150 (4th Cir.), cert. denied,

No. 77-6859 (Oct. 2, 1978): McCreary v. Singler, supra,

406 F. 2d at 1269. .

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WaprE H. McCrer, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

Louis M. FISCHER

Attorney

Juty 1979

DOJ-1979-07