Petition — Jackstadt v. United States
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Sa the Court, U. & a
FILE D
} Mag 12 1980
MICHAEL RODAK, JR. CLERW
In THE
Supreme Court of the United States
October Term, 1979.
\-#9~T 418
KIRK M. JACKSTADT,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Second Circuit.
Francis H. NEVERETT
Counsel for Petitioner
39 Court St., P. O. Box 909
Plattsburgh, N. Y. 12901
Of Counsel
Ara ASADOURIAN
39 Court St., P. O. Box 909
Plattsburgh, N. Y. 12901
(518) 561-7711
Table of Contents.
NE PO ee
a as ha ha ww dain dip ees oes
EES SET
Constitutional Provisions Involved.................
a ecw aces nse sbivneccesess
es tess pap eess
I. The decision of the Court of Appeals is in conflict
with decisions of the Fifth, Sixth and Seventh Circuits.
II. The Court of Appeals improperly relied on con-
fidential informant information...................
IES SA rr
CASES CITED.
Aguilar v. Texas, 378 U. S. 108, 84S. Ct. 1509 (1964).
Piccioli v. United States, 390 U. S. 202 (1968)........
Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584
EES Se ae en
Page
ii.
Page
United States v. Karanthanos, 531 F. 2d 26 (2d Cir.
| ae gs VME Le etiin POEs Saas eke 6
United States v. Lewis, 392 F. 2d 377 (2d Cir. 1968),
cert. denied 393 U. S. 891, 89S. Ct. 12 (1968)......... 9
United States v. Moore, 452 F. 2d 569 (6th Cir. 1971).. 4, 5,6
United States v. Noreikis, 481 F. 2d 1177 (7th Cir.
EER ss wat cr thd oe ee ORANG AT AOE Bene = 4, 5,6
United States v. Park, 531 F. 2d 754 (Sth Cir. 1976)... 4, 5, 6
United States v. Pond, 523 F. 2d 210 (2d Cir. 1975),
cert. denied 423 U. S. 1058 (1976)..... ee Ee 8
United States v. Serao, 367 F. 2d 347 (2d Cir. 1966). . 8
ne ata ictiniats iene
ee eee re ee Ee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1979.
&
KIRK M. JACKSTADT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT.
Petitioner, Kirk M. Jackstadt, prays that a Writ of Certiorari
issue to review the Judgment and Opinion of the United States
Court of Appeals for the Second Circuit entered in this pro-
ceeding on February 14, 1980.
Opinions Below.
The Memorandum of Decision and Order of the United
States District Court for the Northern District of New York
dated June 15, 1979 granting Petitioner’s motion to suppress the
use of physical evidence seized in a search of Petitioner’s
residence in the prosecution of the Petitioner, which Decision
has not yet been published, is appended hereto as Appendix
‘**B.’’ The Judgment and Opinion of the United States Court of
2
Appeals for the Second Circuit reversing the Decision of the
District Court for the Northern District of New York, which has
not yet been published is appended hereto as Appendix ‘‘C.’’
Jurisdiction.
The Judgment of the Court of Appeals, appended hereto as
Appendix ‘‘C,’’ was entered on February 14, 1980. Petitioner
has applied to the Court of Appeals for a stay of its mandate
pending the filing of a Writ of Certiorari and a final determina-
tion thereon by the Court. No determination has yet been made
on Petitioner’s motion.
The jurisdiction of this Court is invoked under 28 U. S. C.
Section 1254 (1). A timely Petition for a Writ of Certiorari is
hereby filed.
Questions Presented.
1. Should the Decision of the Federal District Court granting
Petitioner’s motion to suppress ‘or lack of probable cause have
been reversed by the Circuit Court of Appeals where the govern-
ment investigation recited in the affidavit established that the
Petitioner had a minor prior conviction for marijuana posses-
sion and had purchased a chemical precursor to the manufac-
ture of the illegal drugs under suspicious circumstances but did
not trace the precursor into the Petitioner’s residence nor
establish that suspicious activity was observed in or about Peti-
tioner’s residence?
2. Was the Decision of the Court of Appeals reversing the
District Court Decision in error because it improperly relied
upon confidential informant information which does not meet
the requirements ©! the first test as enunciated by the Supreme
Court in Aguilar ». ‘exas, 378 U. S. 108, 114, 84S. Ct. 1509,
1514 (1964), and Spinelli v. United States, 393 U. S. 410, 415,
416, 89S. Ct. 584, 588, 589 (1969), to establish probable cause?
Peete s HS em «
3
Constitutional Provisions Involved.
The constitutional provision involved is the Fourth Amend-
ment prohibiting the issuance of a search warrant except upon
probable cause.
Statement of the Case.
On January 18, 1979, a search warrant was issued by United
States Magistrate for the Northern District of New York, Henry
Van Acker, for the search of the residence of Petitioner and
one, Joseph A. Tourville, in AuSable Acres, New York. The
search warrant and affidavit are appended hereto as Appendix
‘**A.’’ A search was conducted pursuant to the warrant on the
evening of January 18, 1979.
On February 20, 1979, a Grand Jury sitting in the United
States District Court for the Northern District of New York in-
dicted the Petitioner and Joseph A. Tourville for conspiracy to
manufacture hashish oil and possess the drugs with intent to
distribute (Count I), possession of hashish oil with intent to
distribute (Count II) and possession of marijuana with intent to
distribute (Count III).
On April 2, 1979, the Petitioner and Joseph A. Tourville, by
separate motions, moved in the District Court for the Northern
District of New York to suppress the use in their prosecution of
the physical evidence seized in the search on January 18, 1979.
By Memorandum-Decision and Order dated June 15, 1979,
Chief Judge James T. Foley granted the separate motions to
suppress and ordered that the property seized in the search not
be offered in evidence (Appendix ‘‘B’’). The United States of
America appealed the Decision of the District Court to the
United States Court of Appeals for the Second Circuit. By
Judgment and Opinion decided on February 14, 1980, the
United States Court of Appeals for the Second Circuit reversed
the Decision of the District Court (Appendix ‘‘C’’). Petitioner
now prays for'a Writ of Certiorari to review the Judgment and
Opinion of the United States Court of Appeals for the Second
Circuit.
4
Argument.
Certiorari should be granted in this case because the Decision
of the Court of Appeals for the Second Circuit, reversing the
Decision of the District Court, is in conflict with the standards
of probable cause established in the Decisions of the United
States Court of Appeals for the Fifth, Sixth and Seventh Cir-
cuits in the cases of United States v. Park, 531 F. 2d 754 (Sth
Cir. 1976); United States v. Moore, 452 F. 2d 569 (6th Cir.
1971), and United States v. Noreikis, 481 F.2d 1177 (7th Cir.
1973). Certiorari should also be granted in this case because in
its Decision, the Court of Appeals, although disavowing any
reliance, did rely upon confidential informant information
which does not properly qualify under the first test enunciated
by this Court in its Decision in Aguilar v. Texas, 378 U.S. 108,
114, 84S. Ct. 1509, 1514 (1964), and Spinelli v. United States,
393 U. S. 410, 415, 416, 89 S. Ct. 584, 588, 589 (1969).
The affidavit in support of the application for search warrant
in this case contains both confidential-informant information
and non-informant information obtained through government
surveillance and investigation. The affidavit purports to
establish probable cause that Petitioner and his co-defendant
had concealed in their residence an illicit laboratory manufac-
turing hashish oil. The confidential informant information
relates primarily to a prior government investigation of other in-
dividuals which is included in the affidavit to create the impres-
sion of a continuing government investigation. The non-
informant information purports to show that petitioner, who
had previously been convicted of a minor marijuana violation
under state law, was observed purchasing liquid ether, a
chemical which can be used in the manufacture of hashish oil,
under an assumed name, and transporting the ether to his
home.
Both the District Court and the Court of Appeals, although
for different reasons, claim to disregard the informant informa-
tion in the affidavit. The District Court held that the confiden-
tial informant information in the affidavit relevant to Petitioner
nnd ll
5
and his.co-defendant could not be considered in determining
probable cause as it failed to meet the first test of Aguilar-
Spinelli. The Court of Appeals simply disavows any need to rely
on the informant information.
On the issue of the sufficiency of the non-informant informa-
tion the District Court and the Court of Appeals disagree. The
District Court held that the information obtained by govern-
ment investigation and surveillance, standing alone, did not
demonstrate probable cause for the issuance of the search war-
rant. The Court of Appeals, in reversing, found that ‘‘without
reference to the informant’s tip . . . that the officer’s investiga-
tion and observation provided substantial basis’’ for the is-
suance of the warrant (Appendix ‘‘C’’).
The decision of the Court of Appeals is in conflict with
decisions of the Fifth, Sixth and Seventh Circuits.
The Courts of Appeal of the Fifth, Sixth and Seventh Circuits
have approved the issuance of search warrants, where govern-
ment investigators, tracing chemical precursors purchased
under suspicious circumstances, have established all of the
following:
(1) That a chemical precursor to the manufacture of illegal
drugs was purchased under suspicious circumstances; and
(2) That the precursor was traced by investigation to the
premises sought to be charged; and
(3) That suspicious activity, such as odor, were observed in
or about the premises to which the precursor was traced. United
States v. Park, supra; United States v. Moore, supra; and
United States v. Noreikis, supra.
6
In expressed reliance upon the standards of probable cause
formulated in these cases, the District Court, while allowing
that the affidavit established that Petitioner had been previously
convicted of possession of marijuana as a violation under state
law and was observed purchasing the precursor, liquid ether,
under an assumed name and transporting the ether in his
automobile to the driveway of his home, nevertheless, granted
Petitioner’; motion to suppress because the affidavit (a) failed
to establish that the precursor had been traced into Petitioner’s
residence and (b) failed to establish that any suspicious activity
was observed in or about Petitioner’s residence: as required by
United States v. Park, supra; United States v. Moore, supra,
and United States v. Noreikis, supra.
In reversing the Decision of the District Court, the Court of
Appeals completely ignored the finding of the District Court
that the affidavit was defective because it did not reveal any
observation of suspicious activity in or about Petitioner’s home.
The Decision of the Court of Appeals, eliminating the need for
the affidavit to show that suspicious activity was observed in or
about Petitioner’s residence, is a far reaching, troubling and un-
constitutional departure from previously established standards
of probable cause as set forth in United States v. Park, supra;
United States v. Moore, supra, and United States v. Noreikis,
supra. In each of these cases, it was the observed suspicious ac-
tivity in or about the premises sought to be searched which
established the probability that the suspicions aroused by the
purchase of the precursor were related to criminal activity or
evidence of it in the premises. The affidavit in this case, while
adequately documenting suspicious activity by the Petitioner
and maybe even his co-defendant away from his home, is devoid
of any information whatsoever tending to establish that the
Petitioner or anyone else was operating an illicit manufacturing
laboratory at Petitioner’s home. Petitioner’s previous convic-
tion of possession of marijuana, while further arousing the
suspicions raised by the circumstances of Petitioner’s purchase
of the ether, does not cure the inadequacy of the affidavit in
failing to relate Petitioner’s suspicious behavior to his home.
United States v. Karanthanos, 53\ F. 2d 26, 30 (2d Cir. 1966),
Meer
7
cert. denied 428 U. S. 910 (1976). Certainly, the mere fact that
Petitioner’s jeep and his co-defendant’s auto were observed
parked in their own driveway did not establish the probability
that the ether they purchased was to be used in an illegal
laboratory located in the home. By eliminating the requirement
that the affidavit shows suspicious activity in the premises
sought to be searched, the Court of Appeals frankly sanctions
the unconstitutional proposition that search warrants may be
issued for the home or a person with a prior criminal record
based only on observations of suspicious activity by that person
away from his home.
Contrary to the standard of probable cause established in the
Fifth, Sixth and Seventh Circuits and relied on by the District
Court, the Court of Appeals concluded that simply tracing the
ether to Petitioner’s home was a sufficient substitute for obser-
vation of suspicious behavior in or about the home. Without
this finding there would be no basis whatsoever to conclude that
the ether would even be located in Petitioner’s home. Even
diluting the standard of probable cause to that extent, the Court
of Appeals still faced great difficulty with this affidavit because
the affidavit by its own words does not trace the ether into the
home. The Court ef Appeals resolved this dilemma by inferring
from the facts presented in the affidavit that at least some of the
chemical precursor had been taken into his home by Petitioner.
The affidavit does clearly establish that the Petitioner pur-
chased liquid ether under an assumed name and transported the
ether to the driveway of his home in his jeep. The only other
reference in the affidavit to the ether in Petitioner’s jeep is as
follows:
‘*At approximately 7:20 P.M. Investigator Fountain
observed Jackstadt removing a five-gallon can from the
rear of. his jeep, bearing New York registration
10SCJE’’ (Appendix ‘‘A’’).
8
The District Court rejected the argument that this statement
in the affidavit traced the precursor into Petitioner’s home in
concluding that ‘‘the statement of surveillance stopped after
removal of the five-gallon can from the jeep and never follows it
or traces it into the residence’ (Appendix ‘‘A’’). The Court of
. Appeals circumvented this critical gap in the affidavit by
deciding it «vas permissible for the Magistrate to infer that after
Petitioner removed a can of the ether from his jeep that he then
carried it into his home. As authority for drawing this inference
the Court of Appeals cites United States v. Pond, 523 F. 2d 210,
213 (2d Cir. 1975), cert. denied 423 U. S. 1058 (1976); United
States v. Serao, 367 F. 2d 347, 349-50 (2d Cir. 1966), vacated on
other grounds sub nom. Piccioli v. United States, 390 U.S. 202
(1968). However, none of these cases sanction the drawing of an
inference of the type made by the Court of Appeals. Each of
these cases involve the drawing of an inference from an ob-
served fact which is recited in the affidavit. In each of these
cases no necessary observation of fact is inferred, only the
meaning of an observed fact is inferred. Here, on the other
hand, the Court of Appeals simply infers that something took
place which is not recited in the affidavit to have taken place.
The consequences of this error is decisive since the entire Deci-
sion of the Court of Appeals necessarily rests on this improper
inference of essential fact. Without the inference that Petitioner
carried some ether into his home there is nothing in the affidavit
tending to show that Petitioner was probably going to use the
ether in an illicit manufacturing laboratory at his home.
In its Decision, the Court of Appeals derides the notation that
an inference other than the inference that Petitioner carried the
ether into his home is appropriate. This ridicule only disguises
the weakness of the argument. Is it not more logical to infer that
the Petitioner did not take the ether into his house because the
person observing him did not say that he did? In fact, the af-
fidavit simply does not say what Petitioner did with the ether.
The danger of abuse inherent in reliance on an inference of this
nature is far reaching and self-evident. When it is no longer
necessary to observe or otherwise document facts necessary to
find probable cause where will this process of inference end?
i Ln
~
ee
9
The absence of a necessary fact is the very essence of the dif-
ference between suspicion and probable cause and therefore the
difference between a legal search and an illegal search.
The District Court, in granting Petitioner’s motion to sup-
press the established constitutional standards of probable cause,
gave weight to the facts relied on by the government and the
Court of Appeals and concluded that this affidavit did not
establish probable cause for the issuance of this warrant. Since
the Court of Appeals has repudiated these standards, it is
respectfully requested that this Court, in the proper exercise of
its powers, grant certiorari to review the Decision of the Court
of Appeals.
The Court of Appeals improperly relied on confidential
informant information.
The affidavit in this case established through government in-
vestigation that Petitioner had been convicted some eight
months prior to the application to search his home for posses-
sion of marijuana as a violation under state law. The District
Court, citing, United States v. Lewis, 392 F. 2d 377, 379 (2d Cir.
1968), cert. denied 393 U. S. 891, 89 S. Ct. 212 (1968),
acknowledged that the prior conviction was an important factor
tending to show probable cause. The District Court concluded,
however, that this conviction, together with the other non-
informant information in the affidavit did not demonstrate
probable cause to support the search warrant.
In reversing, the Court of Appeals placed crucial reliance on
Petitioner’s prior conviction in finding probable cause. The
Court of Appeals did this by unconstitutionally relying upon the
informant information in the affidavit so as to read the affidavit
to reveal not only the prior conviction but more ominously that
Petitioner ‘‘had previously been arrested under circumstances
that linked him with the manufacture of hashish oil’’ (Appendix
**C’’). Certainly the difference in probability that the ether
10
would be used in an illegal manner when purchased by a person
who was convicted of a relatively minor charge of marijuana
possession as opposed to an ‘‘arrest linking him to the manufac-
ture of hashish oil’’ are self-evident in an application to search
for a hashish oil factory.
The non-informant information in the affidavit does not link
Petitioner’s prior arrest to the manufacture of hashish oil. The
only linkage of this nature is made in the confidential informant
information in the affidavit. While the affidavit recites at great
length the circumstances of a prior investigation by the affiant
of a hashish oil manufacturing operation being conducted by a
Charles Miller and William Reid which eventually led to their
arrest, the non-informant information in the affidavit does not
link Petitioner to that investigation. All the non-informant in-
formation in the affidavit says about the circumstances of Peti-
tioner’s prior arrest is the following affirmance:
‘‘On May 6, 1978 I was participating in a joint in-
vestigation with the New York State Police and the
Plattsburgh Police Department. As a result of this in-
vestigation, Edward Joseph DESAUTELS, DOB:
September 17, 1951, Lot 73, Garden City Trailer Park,
Plattsburgh, New York; Kirk Mathew JACKSTADT,
DOB: September 13, 1949, 26 Leonard Avenue, Platts-
burgh, New York and Cathy Julia KIPP, DOB: July 3,
1955, Tom Miller Road, Plattsburgh, New York, were
arrested at Edward DESAUTELS'’ trailer. At this time
several pounds of marijuana, a quantity of hashish and
two glass jars containing less than 25 grams of hashish
oil were seized’’ (Appendix ‘‘A’’).
This statement of the investigation leading to Petitioner’s prior
conviction certainly does not indicate that the investigation of
the Petitioner was a part of the investigation of Miller and
Reid’s manufacturing operation recited elsewhere in the af-
fidavit.
11
The only statements in the affidavit which purport to link the
Petitioner to the Miller and Reid investigation are two unsup-
ported conclusions of an informant; namely, that one Desautels
**was one of Charles Miller’s runners’’ and ‘‘that Jackstadt was
one of Edward Desautels runners’’ (Appendix ‘‘A’’).
Although the Court of Appeals expressly disavows any
reliance on the informant information in finding probable
cause, in fact, the reading of the affidavit by the Court of Ap-
peals which turns Petitioner’s seemingly minor conviction of
marijuana possession into an arrest that ‘‘linked him to the
manufacture of hashish oil’’ necessarily rests on the informant
information which the District Court held did not ‘‘comply with
the standards of the noted Aguilar-Spinnelli tests’? (Appendix
**—’’). Petitioner, therefore, requests this Court, in exercise of
its powers, to grant certiorari to review the Decision of the
Court of Appeals.
CONCLUSION.
The decision in this case dilutes and is in conflict with stand-
ards of probable cause established by the Fifth, Sixth and
Seventh Circuits and the decisions of the United States Supreme
Court and presents an opportunity for this Court to resolve the
conflict. It will not become moot. For the foregoing reasons,
certiorari should be granted.
Respectfully submitted,
FRANCIS H. NEVERETT,
Counsel for Petitioner,
39 Court Street, P. O. Box 909,
Plattsburgh, N. Y. 12901
Of Counsel,
ARA ASADOURIAN,
39 Court Street, P. O. Box 909,
Plattsburgh, N. Y. 12901
Al
APPENDIX — Search Warrant.
APPENDIX A.
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA ) Magistrate’s Docket No.
VS. ) Case No. C8-79-0007
Joseph A. TOURVILLE et al ) SEARCH WARRANT
To any United States Marshal or other authorized officer
Affidavit having been made before me by Special Agent
Thomas M. Fitzpatrick that he (has reason to believe) that
(on the premises known as) the residence of Joseph A.
TOURVILLE and Kirk JACKSTADT, an “A” frame struc-
ture located by proceeding in a westerly direction on Church
Street in the village of Ausable Forks, then turning left on
Ausable Drive, proceeding on Ausable Drive until reaching the
first Oak Hollow Rd. proceeding on the Oak Hollow Road
until intersecting with Butternut Street.At Butternut St. turn
right and travel approximately .2 of a mile on Butternut St.
whereby the residence is on the left side of the road and is the
second structure on the left on Butternut Street.
in the Northern District of New York
there is now being concealed certain property, namely an illicit
laboratory manufacturing hashish oil, a controlled substance
under the Schedule I (here describe property) of the Controlled
Substance Act of 1970
which are contraband, controlled substances illegally manufac-
tured and possession in violation of 21.USC841(a)(1) and 21
USC846 of the Controlled Substance Act of 1970 (here give
alleged grounds for search and seizure)
A2
APPENDIX — Search Warrant.
and as I am satisfied that there is probable cause to believe that
the property so described is being concealed on the (premises)
above described and that the foregoing grounds for application
for issuance of the search warrant exist.
You are hereby commanded to search forthwith the (place)
named for the property specified, serving this warrant and mak-
ing the search (at any time in the day or night!) and if the
property be found there to seize it, leaving a copy of this war-
rant and a receipt for the property taken, and prepare a written
inventory of the property seized and return this warrant and
bring the property before me within ten days of this date, as
required by law.
Dated this 18th day of January, 1979
__s/ HENRY VAN ACKER,
U.S. Magistrate.
1 The Federal Rules of Crimi i
minal Procedure provide: ‘The warrant shall
direct that it be served in the daytime, but if the affidavits are se
that the property is on the person or in the place to be searched, the war-
rant may direct that it be served at any time.’’ (Rule 41C) ,
A3
APPENDIX — Search Warrant.
RETURN
I received the attached search warrant on January 18, 1979,
and have executed it as follows:
On January 18, 1979 at 8:10 o’clock P.M, I searched (the
premises) described in the warrant and
I left a copy of the warrant with Kirk M.JACKSTADT __
name of person searched or owner
or ‘‘at the place of search”’
together with a receipt for the items seized.
The following is an inventory of property taken pursuant to
the warrant: See attached list consisting of three pages.
This inventory was made in the presence of Thomas M.
Fitzpatrick, Special Agent; John Fountain, New York State
Police and Fenton Thompson.
I swear that this Inventory is a true and detailed account of
all the property taken by me on the warrant.
s/ THOMAS M. FITZPATRICK
Thomas M. Fitzpatrick, Special Agent
Subscribed and sworn to and returned before me this 19th
day of January, 1979.
HENRY C
Henry C. Van Acker U.S. Magistrate.
A4
APPENDIX — Affidavit for Search Warrant.
UNITED STATES DISTRICT COURT
FOR THE
Northern District of New York
UNITED STATES OF AMERICA ) Magistrate’s Docket No.
VS. ) Case No. C8-79-0007
Joseph A. TOURVILLE et al ) AFFIDAVIT FOR
: SEARCH WARRANT
BEFORE Henry C. Van Acker Rouses Point, New York
Name of Magistrare, Address of Magistrate
The undersigned being duly sworn deposes and says:
That he (has reason to believe) that (on the premises known
as) the residence of Joseph A. TOURVILLE and Kirk
JACKSTADT, an “A” frame structure located by proceeding in
a westerly direction on Church Street in the village of Ausable
Forks, then proceeding left on Ausable Drive proceeding on
Ausable Drive until reaching the first Oak Hollow Road, pro-
ceeding on the Oak Hollow Road until intersecting with Butter-
nut Street.At Butternut St. turn right and travel approximately
.2 of a mile on Butternut St. whereby the residence is on the
left side of the road and is the second structure on the left on
Butternut Street.
in the Northern District of New York
there is now being concealed certain property, namely an illicit
laboratory manufacturing hashish oil, a controlled substance
under Schedule I of the Controlled Substance Act of 1970
(here describe property )
. which are contraband, controlled substances iliegally manufac-
tured and possessed in violation of 21 USC841(a)(1) and 21
USC846 of the Controlled Substance Act of 1970. (here give
alleged grounds for search and seizure)
A5
APPENDIX — Affidavit for Search Warrant.
Page 2
Affidavit for Search Warrant
January 18, 1979
And that the facts tending to establish the foregoing grounds
for issuance of a Search Warrant are as follows:
During the month of April, 1978 I received information from
Investigator John W. Fountain, New York State Police, Malone~
New York, that a hashish oil factory was operating in the Platts-
burgh, New York area. Investigator Fountain advised me that a
previous reliable informant had informed him that the hashish
oil factory was being operated by Charles MILLER and William
REID, both residing at 75 Clinton Street, Plattsburgh, New
York. Investigator Fountain further advised that his informant
stated that Edward DESAUTELS, Garden Zity Trailer Court,
Plattsburgh, New York, was one of Charles MILLER’s drug
runners.
During the month of June, 1978 Investigator Fountain ad-
vised that his previously reliable informant had furnished him
with a sample of hashish oil that Charles MILLER and William
REID were manufacturing. Investigator Fountain further ad-
vised that he had conducted a field test on the hashish oil for
the presence of marijuana with positive results.
On May 6, 1978 I was participating in a joint investigation
with the New York State Police and the Plattsburgh Police De-
partment. As a result of this investigation, Edward Joseph
DESAUTELS, DOB: September 17, 1951, Lot 73, Garden
City Trailer Park, Plattsburgh, New York; Kirk Mathew
JACKSTADT, DOB: September 13, 1949, 26 Leonard Ave-
nue, Plattsburgh, New York and Cathy Julia KIPP, DOB: July
3, 1955, Tom Miller Road, Plattsburgh, New York, were
arrested at Edward DESAUTELS’ trailer. At this time several
pounds of marijuana, a quantity of hashish and two glass jars
(cont’d.)
A6
APPENDIX — Affidavit for Search Warrant.
Page 3
Affidavit for Search Warrant
January 18, 1979
containing less than 25 grams of hashish oil were seized. In-
vestigator Fountain advised me that the hashish oil appeared to
be of the same description that he had received from Charles
MILLER through his reliable informant.(This information was
received from JWF during June, 1978.)
DESAUTELS, JACKSTADT, and KIPP were arrested on
Felony Drug Charges. On January 18, 1979 Investigator
Fountain advised me that the charges against DESAUTELS are
still pending. Further, that Kirk JACKSTADT and Cathy KIPP
pled guilty to a reduced charge of Possession of Marijuana Vio-
lation and were fined $25.00 each on May 8, 1978.
On May 7, 1978 Investigator Fountain advised me that he
had received information from his reliable informant that Kirk
JACKSTADT was one of Edward DESAUTELS runners.
On October 24, 1978 I participated in a joint investigation
with the New York State Police and the Plattsburgh Police De-
partment. On this date a search warrant was executed at the
residence of Charles Joseph MILLER, DOB: February 8, 1950,
and William Henry REID, III, DOB: August 28, 1950, both of
75 Clinton Street, Plattsburgh, New York. At this time ap-
proximately one pound of marijuana, approximately 44.7 grams
of hashish oil, a quantity of glass work and other equipment
used in the manufacturing of hashish oil. Also seized was an
empty five-gallon can of petroleum ether. This can had a label
on it and Investigator Fountain requested that I trace the can to
the distributor. The label on the can bore the name Farrell
Chemical, Winooski, Vermont.
On January 18, 1979 Investigator Fountain advised me that
MILLER and REID had pled guilty to a reduced charge of
(cont'd. )
AT
APPENDIX — Affidavit for Search Warrant.
Page 4
Affidavit for Search Warrant
January 18, 1979
Criminal Possession of Marijuana in the Second Degree, a Mis-
demeanor, and paid a $500 fine each on October 24, 1978.
On December 8, 1978 I received information from Investi-
gator Fountain that he had received information from his re-
liable informant that Charles MILLER and his associates were
manufacturing hashish again. Further, that the hashish oil
factory was supposed to be secreted at a secluded rural loca-
tion. Investigator Fountain further advised that several other
reliable informants had advised him that a large hashish oil
factory was operating in the Peru-Saranac, New York area.
On December 12, 1978 I interviewed Buddy Folino of Farrell
Chemical Company, Winooski, Vermont, regarding anyone from
the Plattsburgh, New York area purchasing quantities of
petroleum ether. Folino stated that around 11:00 a.m., De-
cember 12, 1978, he had received a call from Richard MILLER
ordering 20 gallons of petroleum ether.
On December 12, 1978, around 4:00 p.m., information was
received from Buddy Folino, Farrell Chamical Company, that
19 gallons of petroleum ether was picked up by a subject using
the name “Rick” MILLER. Folino described ‘“Rick’”” MILLER
as 5’9’’, brown hair, 170 pounds and driving a green Dodge,
bearing New York Registration 631CJE.
On December 12, 1978 I obtained a data on New York Plate
631CJE and found it was registered to Joseph A. TOURVILLE,
DOB: February 12, 1949, of Signal Hill, Lake Placid, New
York. A driver’s data revealed an address of 33 Olivetti Place,
Plattsburgh, New York.
(cont’d.)
A8
APPENDIX — Affidavit for Search Warrant.
Page 5
Affidavit for Search Warrant
January 18, 1979
On December 15, 1978 Investigator Fountain advised me
that his department had intelligence information that Joseph
TOURVILLE, Plattsburgh, New York, was involved in illegal
drugs. (Marijuana)
On December 28, 1978 I caused a lookout to be placed at
Anachemia Chemical Company, Inc., Champlain, New York,
for anyone purchasing large amounts of petroleum ether.
On January 16, 1979 I received a call from Al Saunders,
manager of Anachemia Chemical Company, Champlain, New
York, stating that a subject using the name Rick MILLER,
Peru, New York, had called and requested to purchase 20 gal-
lons of petroleum ether. Saunders stated he told MILLER he
didn’t have 20 gallons in stock, but that he could have it for
him on January 17, 1979, and to call in the afternoon some-
time after 3:00 p.m.
On January 17, 1979, at approximately 3:35 p.m., Al
Saunders advised that at approximately 3:20 p.m. a call was
received from the subject using the name Rick MILLER.
MILLER wanted to know if his order was in. Mr. Saunders’
secretary stated she told MILLER it was in and MILLER told
her he would pick it up before 4:30 p.m.
On January 17, 1979, at approximately 3:45 p.m., a surveil-
lance was commenced in the vicinity of Anachemia Chemical
Company, Inc. by Investigator John Fountain, New York State
Police, Malone, New York; Richar Siegel, United States Cus-
toms and Michael Consavage, United States Customs, Rouses
Point, New York. I took up a position in the office of the
chemical company.
(cont’d.)
AQ
APPENDIX — Affidavit for Search Warrant.
Page 6
Affidavit for Search Warrant
January 18, 1979
At approximately 4:25 p.m., a subject who I identified as
Kirk JACKSTADT arrived at the office. Kirk JACKSTADT
picked up the 20 gallons of petroleum ether, paid $106.40 in
cash and signed the receipt R. MILLER. JACKSTADT placed
the petroleum ether in the rear end of a green Jeep, with
wooden doors and cab, bearing New York registration 105CJE
and left.
Surveillance was maintained on JACKSTADT’s vehicle and
eventually he drove to a large “A” frame residence on Butter-
nut Street, located’ at AuSable Acres, AuSable Forks, New
York. JACKSTADT arrived there at approximately 7:00 p.m.
At approximately 7:20 p.m., Investigator Fountain observed
JACKSTADT removing a five-gallon can from the rear of his
Jeep, bearing New York registration 105CJE.
On January 1¥, 1979 a data was obatined on New York Plate
105CJE and it was registered to Kirk M. JACKSTADT, DOB:
September 13, 1949, of Signal Hill, Lake Placid, New York.
On January 19, 1979 at approximately 8:00 p.m., a green
Dodge, 4-door Sedan, bearing New York registration 631CJE
was observed in the driveway of the residence, where Kirk
JACKSTADT had parked his vehicle. This being the same ve-
hicle used by another subject using the name “Rick’” MILLER
to pick up 20 gallons of petroleum ether on December 12,
1978 from the Farrell Chemical Company in Winooski, Ver-
mont.
On January 18, 1979 this agent discussed the case with
D.E.A.Chemist Richard Karasiewsky at the Northeastern Re-
gional Laboratory and he advised that petroleum ether is used
to extract hashish oil from marijuana.
(cont’d.)
Al10
APPENDIX — Affidavit for Search Warrant.
Page 7
Affidavit for Search Warrant
January 18, 1979
A Night-Day Search Warrant should issue hereon due to the
moveable nature of the petroleum ether, laboratory equipment
and marijuana.
Signature of Agent,
Resident Agent-in-Charge
Official Title, if any.
Sworn to before me, and subscribed in my presence, January
18, 1979.
United States Magistrate.
All
APPENDIX B.
APPENDIX — Memorandum-Decision and Order.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK -
UNITED STATES OF AMERICA
vs. 79—CR—20
KIRK M. JACKSTADT and
JOSEPH A. TOURVILLE,
Defendants.
APPEARANCES: OF COUNSEL:
GEORGE H. LOWE TERRENCE M. KELLY
United States Attorney, N.D.N.Y. Assistant U.S. Attorney
Attorney for United States of America
US. Post Office & Courthouse
Albany, New York 12207
NEVERETT & ASADOURIAN ARA ASADOURIAN
Attorneys for defendant Jackstadt
39 Court Street, P.O. Box 909
Piattsburgh, New York 12901
PAUL V. FRENCH
Attorney for defendant Tourville
112 State Street, Suite 1100
Albany, New York 12207
JAMES T. FOLEY, D. J.
MEMORANDUM-DECISION and ORDER
There are separate motions presented for the above two de-
fendants to suppress evidence obtained by reason of the ex-
ecution of a search warrant at an “A” frame house located
on Butternut Street, Town of Jay, New York. The date of
the execution of the search warrant was January 18, 1979,
and it had been issued by Magistrate Henry C. Van Acker, Jr.
of this District Court on January 18, 1979. The two defend-
ants have been indicted jointly in three counts: One of con-
spiring to manufacture a quantity of hashish oil (an extract
of marihuana), and with intent to distribute marihuana and
Al2
APPENDIX — Memorandum-Decision and Order.
hashish oil; and two substantive counts of possession with in-
tent to distribute approximately 30 pounds of hashish oil,
and in the third count approximately 40 pounds of marihuana.
Trial upon the indictment is scheduled to commence in the
immediate future.
The motions have been submitted in good form and briefed
factually and legally, competently and thoroughly. The chal-
lenge in both motions is that the affidavit of Thomas M.
Fitzpatrick, Special Agent, Drug Enforcement Administration,
sworn to January 18, 1979, and duly submitted to the Magis-
trate to support the issuance of the search warrant was deficient
in failing to supply the necessary element of probable cause.
The affidavit is single space typing on three pages, filled with
great detail of names and information gleaned and passed
back and forth in a joint state and city police, and federal
drug agent investigation, moving from place to distant place
over a period from April 1978 to January 18, 1979, the day
of the raid on the house. It was not done on the affidavit
submitted to the Magistrate, but to the credit of the lawyers
to accomplish easier reading and understanding, the numerous
paragraphs of the affidavit have been numbered 2 to 24, or
lettered A to W, and keyed accordingly into the particular
brief where reference is made to the paragraphs. Attorneys
for both sides express full confidence in their respective posi-
tions.
The case law on questions of this kind when they possess
substance is substantial and the lines drawn and distinctions
made are fine. It is settled that in a situation as this one con-
sideration may be given only to the facts within the four
corners of the affidavit. Aguilar v. Texas, 378 U.S. 108, 109
(1964). In Spinelli v. United States, 393 U.S, 410, 419, Justice
Harlan summarized the principles and standards to be followed
and applied in the analysis of the facts in such affidavits:
In holding as we have done, we do not retreat from th
established propositions that only the probability, and nak
a prima facie showing, of criminal activity is the standard
Al3
APPENDIX — Memorandum-Decision and Order.
of probable cause, Beck v. Ohio, 379 U.S. 89, 96 (1964);
that affidavits of probable cause are tested by much less
rigorous 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 magis-
trates are not to be confined by niggardly limitations
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).
These principles as stated from the review of previous Su-
preme Court decisions, unquestionably in favor of upholding
the search warrants have been kept in mind, but even with
their application to the fullest extent my conviction is firm
that the affidavit falls short of required factual showing.
First, I find that there is not sufficient information supplied
or circumstances related about the informants as described by
the State Police Investigator to Special Agent Fitzpatrick to
comply with the standards of the noted Aguilar-Spinelli tests.
See for restatement, United States v. Karathanos, 531 F.2d
26, 31 (2d Cir. 1976), cert. den., 428 U.S. 910. An example
of the weakness is the statement without further elaboration
that “Investigator Fountain advised me that he had received
information from his reliable informant that Kirk JACKSTADT
was one of Edward DESAUTELS runners.” (Par. 6 or E). Again,
with some lack of preciseness, information from the same
unnamed, reliable informant of Inspector Fountain... “that
the hashish oil factory was supposed to be secreted at a se-
cluded rural location.” (Par. H or 9). That description would
cover many areas of Upstate New York and would hardly lead
to the probability that had to be presented that an illicit manu-
facturing operation was being conducted on Butternut Street
in the Village of Ausable Forks. There are other deficiencies
in the recitation of the informant tips, but it does seem from
the facts selected by the government in its brief that there is
not great reliance placed upon the informant information as
Al4
APPENDIX — Memorandum-Decision and Order.
supplying probable cause, but the facts pointed to are ones re-
lating to actual surveillance of Jackstadt, the driveway, and
outer area of the residence.
However, my review of the facts in that regard, actual sur-
veillance information, does not persuade me that the facts
gained therefrom and recited in the affidavit satisfactorily
demonstrate probable cause to support the search warrant.
The most that is shown in paragraphs 19, 20 and 22 are that
the Jackstadt Jeep and the Tourville car were seen at the
premises, and that a five-gallon can was removed from the Jeep
at 7:30 P.M., January 18, 1979. I view it also as an important
omission, that in the search for probable cause to uphold the
execution of the search warrant against the premises, that
the statement of surveillance stops after removal of the five-
gallon can from the Jeep and never follows or traces it into
the residence.
The case law offered by the government as to certain parts
of the factual statements in the affidavit has not been dis-
regarded or overlooked. Purchase of a chemical precursor
under a fictitious name is an important factor to consider.
United States v. Noreikis, 481 F.2d 1177, 1178 (7th Cir. 1973);
United States v. Moore, 452 F.2d 569, 572 (6th Cir. 1971),
cert. den. 407 U.S. 910 (1972). Jackstadt was convicted of
marihuana possession and fined $25.00. United States v.
Lewis, 392 F.2d 377, 379 (2d Cir. 1968), cert. den. 393 US.
891 (1968). But in most of the instances similar to the situa-
tion here, there is always more obtained from the surveillance
and set forth in the affidavit than presented here. Usually,
there is observance of activities around a place that support
a fair inference that something illegal is going on inside, such
as odors emanating from a building, or actual delivery of sus-
picious materials or substances into the building. See United
States v. Spinelli, 393 U.S. p. 423, supra, White, J., concurring;
Lazarski & McDonald, N.D.N.Y., 75-CR-166, 76-CR-15, de-
cided April 29, 1976, aff'd, Second Circuit, Bench opinion,
Al5
APPENDIX — Memorandum-Decision and Order.
January 6, 1977. The most we have here is several isolated
factors that would only support, alone or in combination,
good suspicion, but not probable cause.
Therefore, it is my conclusion from the above findings
that probable cause was not sufficiently shown by the affidavit
of Special Agent Fitzpatrick to support the issuance of the
search warrant. The separate motions to suppress are granted,
and the personal property seized shall not be offered in evi-
dence by the prosecution.
It is so Ordered.
Dated: June 15, 1979
Albany, New York
s/ JAMES T. FOLEY
UNITED STATES DISTRICT JUDGE
Al6
APPENDIX C.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ee
No. 617—September Term, 1979.
(Argued November 27, 1979
Decided February 14, 1980.)
Docket No. 79-1290
—~
UNITED STATES OF AMERICA,
Appellant,
—_—Vi—
KIRK M. JACKSTADT and JOSEPH A. TOURVILLE,
Appellees.
- os -
Before:
TIMBERS, VAN GRAAFEILAND, and NEWMAN,
Circuit Judges.
—~
Appeal from an order of the United States District
Court for the Northern District of New York, Foley,
C.J., suppressing evidence seized pursuant to a search
warrant on the grounds that the supporting affidavit
fails to show probable cause.
Reversed.
1261
Al7
TERRENCE M. KELLY, Assistant U.S. Attor-
ney (George H. Lowe, U.S. Attorney for
the Northern District of New York, of
counsel), for Appellant.
ARA ASADOURIAN, Plattsburgh, NY
(Neverett & Asadourian, Plattsburgh,
NY, of counsel), for Appellee Jackstadt.
PAUL V. FRENCH, Albany, NY filed brief for
Appellee Tourville.
~~
PER CURIAM:
On January 18, 1979, United States Magistrate
Henry C. Van Acker issued a search warrant fc: the
residence of Joseph A. Tourville and Kirk M. Jackstadt
in the Village of Ausable Forks, New York. Agents of
the Drug Enforcement Administration and the New
York State police executed the warrant that evening,
seizing the components of a hashish oil factory, thirty
pounds of hashish oil, and forty-nine pounds of mari-
juana. On February 20, 1979, a grand jury sitting in
the United States District Court for the Northern Dis-
trict of New York indicted Jackstadt and Tourville for
conspiracy to manufacture hashish oil and possess the
drugs with intent to distribute (Count I), possession of
hashish oil with intent to distribute (Count II), and
possession of marijuana with intent to distribute
(Count III). Tourville and Jackstadt then moved to sup-
press the items seized during the search, attacking the
sufficiency of the affidavit used to secure the warrant.
1262
Al8
The district court granted defendants’ motions and the
Government appeals. We reverse.
The affidavit in support of the search warrant is
that of Special Agent Thomas M. Fitzpatrick of the
Drug Enforcement Administration. It begins by re-
counting his past involvement in efforts to apprehend
a group operating a hashish oil factory in the Platts-
burgh, New York area. During the course of that inves-
tigation, Fitzpatrick participated in the arrests of
Jackstadt and one Edward J. Desautels on May 6,
1978. A previously reliable informant had stated that
Desautels was involved with the group manufacturing
hashish oil. At the time of the arrests, which took
place in Desautels’ trailer in Plattsburgh, the police
seized several pounds of marijuana, a quantity of hash-
ish, and a small amount of hashish oil. Jackstadt pled
guilty to a charge of possession of marijuana and was
fined and released.
Charles J. Miller and William H. Reid, two princi-
pals in the manufacturing ring, were arrested, and the
factory was seized on October 24, 1978. Tips from the
previously reliable informant were partially responsible
for these arrests. Among the items seized was an
empty five-gallon can bearing the label of the Farrell
Chemical Company, Winooski, Vermont. The can had
contained petroleum ether, a solvent used to extract
hashish oil from marijuana.
In December 1978, information from the previously
reliable informant indicated that a hashish oil factory
was once again operating at a “secluded rural location”
in the area. Agent Fitzpatrick contacted the Farrell
Chemical Company and was informed that one “Ri-
chard Miller” had ordered twenty gallons of petroleum
ether on December 12, 1978. The ether was picked up
1263
Al9
by a man using the name “Rick Miller” but driving a
car registered to Joseph A. Tourville. On January 16,
1979, one “Rick Miller” ordered twenty gallons of pe-
troleum ether from the Anachemia Chemical Company
of Champlain, New York. On January 17, Jackstadt
picked up the ether in his Jeep. He signed the receipt
“R. Miller”.
The police followed the Jeep to the Tourville-Jack-
stadt residence in Ausable Forks. About twenty minu-
tes later, the police observed Jackstadt removing a
five-gallon can from the Jeep. Shortly after that,
Tourville’s car, which had transported the petroleum
ether from the Farrell Chemical Company, was also
observed to be parked in the driveway.
The Magistrate was satisfied from the above facts
that there was probable cause to believe that an illicit
laboratory manufacturing hashish oil was being con-
cealed at the Tourville-Jackstadt residence, and that
finding is entitled to substantial deference. Aguilar v.
Texas, 378 U.S. 108, 111 (1964); United States v.
Rahn, 511 F. 2d 290, 292 (10th Cir.), cert. denied, 423
U.S. 825 (1975). A magistrate’s finding of probable
cause is itself a substantial factor tending to uphold
the validity of the warrant. United States v. Ramirez,
279 F. 2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850
(1960); United States v. Freeman, 358 F. 2d 459, 462
(2d Cir.), cert. denied, 385 U.S. 882 (1969). In order to
encourage the use of warrants, supporting affidavits
should be read “in a commonsense and realistic
fashion”, United States v. Ventresca, 380 U.S. 102,
108 (1965), and in a close case any doubts should be
resolved in favor of upholding the warrant, id. at 106.
Accord, United States v. Lewis, 392 F. 2d 377, 379 (2d
Cir.), cert. denied, 393 U.S. 891 (1968).
1264
A20
The affidavit in this case revealed large purchases of
petroleum ether by the defendants using false names.
One of them had previously been arrested on mari-
juana charges in circumstances that linked him to the
manufacture of hashish oil. These were important fac-
tors tending to show probable cause. See United States
uv. Lewis, supra, 392 F. 2d at 379; United States v.
Park, 531 F. 2d 754, 759 (5th Cir. 1976). The petro-
leum ether trail led directly to the defendants’ resi-
dence. The transporting automobiles were parked
there. Jackstadt had been followed there directly from
the Anachemia Chemical Company. He was observed
removing a five-gallon can from the rear of his Jeep.
We do not find Agent Fitzpatrick’s affidavit to be fa-
tally defective because it fails to state explicitly that
Jackstadt carried the container into the house. The
Magistrate was entitled to make reasonable inferences
from the facts stated in the affidavit. United States v.
Pond, 523 F. 2d 210, 213 (2d Cir. 1975), cert. denied,
423 U.S. 1058 (1976); United States v. Serao, 367 F.
2d 347, 349-50 (2d Cir. 1966), vacated on other
grounds, sub nom. Piccioli v. United States, 390 U.S.
202 (1968). It would be surprising indeed if Jackstadt
had purchased petroleum ether, driven it to his home,
removed a five-gallon can from his car and then
strolled with it down the street. The inference that
Jackstadt carried the ether into the house was plainly
a reasonable one in the circumstances of this case.
Appellees’ argument that those portions of the sup-
porting affidavit referring to information supplied by
an informant should be stricken, because they do not
reveal the source of the information as required by
' Aguilar v. Texas, supra, 378 U.S. at 114, is not a
compelling one in the context of this case. Most of the
1265
ae | ee ES
A21
informant’s information had to do with the earlier in-
vestigation; the balance did no more than stir Agent
Fitzpatrick into renewed activity. Information that Mil-
ler and his associates were supposed to be manufac-
turing hashish again “at a secluded rural location” had
little relevance to the search of defendants’ house in
the Village of Ausable Forks. Without any reference to
the informant’s tip, cf. Parts Mfg. Corp. v. Lynch, 129
F.2d 841 (2d Cir. 1942), the officers’ investigation and
observation provided substantial basis for the Magis-
trate to conclude that hashish oil was probably being
made in defendants’ house. That is all the law re-
quired. See United States v. Burke, 517 F.2d 377, 381
(2d Cir. 1975). The suppression order is reversed. ©
1266
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