Appendix — Pascente v. United States

APPENDIX A.

dn the

United States Court of Appeals

| For the Seventh Girrentt == |

| September Term, 1967 — SeptemBer Session, 1967

No. 16126 :

Unirep States or AMERICA, Appe 5 ea Ba

—-Plaintiff-Appellee, |, United States Dis.

: trict Court for the

7 NY, : : :

Witu1am Rocer -Pascente and yi i iet

Frank J. Furio, . inois, Kastern

Defendants-Appellants,) P*vision.

December 26, 1967

Before Knocn, Sentor Circuit Judge, and Faikcump and

Cummines, Circuit Judges.

Kwnocn, Senior Circuit Judge. The defendants, William

’ Roger Pascente and Frank J. Furio, were charged in

Count I of a two-count indictment with possession of

goods stolen from an interstate freight shipment in viola-

tion of Title 18, U.S.C. §659.- Count II charged the defen-

dant William Roger Pascente with theft of the same goods.

Jury trial was waived. All facts were stipulated. The

defendants were convicted. The Court placed’ William

Roger Pascente on‘ probation for five years on each count,

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ee

App. 2

to run concurrently, and committed Frank J. Furio to serve,

-, 18 months on Count I.

The defendants charge error in denial of their motion

to quash the search warrant issued here and to suppress

the evidence secured through its execution. They contend .

that the affidavit submitted was insufficient in law to

establish probable cause for issuance of the: search war- —

rant, stating insufficient facts, being based only on the

“belief of the affiant and unsupported hearsay, and failing

to méntion articles which were subsequently seized from

one of the petitioners. No other error is charged.

The affidavit in question consists of a printed form

filled in and completed in what is obviously a hasty,

handwritten scrawl, replete with abbreviations (some of

them rather unconventional) and composed in a highly

cryptic style, as follows:

*‘The undersigned being duly sworn deposes and

says: That he has reason to believe that on the

premises known as second floor of a two-family resi-

dence at 1913 West Ohio Street, Chicago, in the

No. District of Tll. there is now being concealed certain

property, namely several cartons of merchandise which

constituted interstate commerce and were stolen there-

from. And that the facts tending to ‘establish the

foregoing grounds for issuance of a Search Warrant

are as follows:

This information was furnished affiant by Spec

Ag Anthony Genakos of F.B.I. that Paul Pic-

quet Terminal Mgr of Mason-Dixon Lines, Chi-

cago,, carrier of freight that he received an

. anonymous call who stated he was a neighbor,

that he observed at 11:30 P.M., Feb. 11, 1965, 2

men unloading truck of said into said residence,

Marianne Costello living downstairs her steps

up and down stairs at 11:30 P.M. Said terminal

¢

App. 3

stated he found 5 interstate shipments missing

from one of their trucks after the time stated.’’

Carefni study of this document, however, discloses certain

facts. Some prior to execution of the warrant on...

Friday, February 12, 1965, shortly before 5:00 p.m., the

Terminal Manager, Paul Picquet, of the Mason-Dixon

Line, furnished information to Special Agent Anthony

Genakos of the F.B.I., who in turn passed it on to the

affiant, that he had found five ‘‘interstate shipments’”’

missing from one of his trucks. The Terminal Manager

had also reported reeeipt of an anonymous telephone

call from an alleged neighbor of 1913 W. Ohio Street,

Chicago, the address of the premises later searched, con-

cering his observation at 11:30 p.m., (an unusual time

for delivery of commercial merchandise to a residence)

on February 11, 1965, of the activities of two men who

were unloading a Mason-Dixon truck and carrying the

contents - into the house at that address. Special Agent

‘Genakos had also told the affiant that one Marianne

Costello, who lived on the first floor of the two-apartment .

building searched, reported hearing footsteps going up

and down the stairs at 11:30 p.m. that night.

To be sure, this was hearsay, but it’was hearsay from

three different sources, two of which were identified, all

of which were mutually corroborative in part and worthy

of credit. Jones v. U. S., 362 U. S. 257, 272 (1960). A

reasonably prudent person would be justified in believing

an offense was being committed. Evans v. U. S., 6 Cir.,

1957, 242 F. 2d 534, 536; cert. den. .353 U. 8. 976.

The Commissioner was entitled to exercise his own

common sense and to draw reasonable inferences from .

the wording of the affidavit in the light of his extensive

OE Ne en eS ae ee =

App. 4

"experience. Irby v. U, 8., D. C. Cir., 1963, 314 F. 2d 251,

253, cert. den. 374 U. S. 482: U. S. v. Ventresca, 380 U. S.

102, 109 (1965).

We see no abuse of ‘discretion in the Commissioner’s

decision that there was probable cause for issuance of

the warrant™ Nor can we agree that the word ‘‘merchan-.

dise’’ in the light of the circumstances here was | unduly

vague.

_ The judgment of the District Court is affirmed.

No. 16126

Cummines, Circuit Judge, with whom Farrcum1p, Circuit.

Judge, joins, concurring. The affidavit upon which the

search warrant issued was concededly prepared by the

_ United States commissioner although signed by. an FBI

agent. Rule 41(¢) of the Federal Rules of Criminal

Procedure provides in part as follows:

‘A warrant shall issue only on affidavit sworn to

before the judge or commissioner and establishing

the grounds for issuing the warrant. If the judge

or commissioner is satisfied that grounds for the

application exist or that there is probable cause to

believe that they exist; he shall issue a warrant

‘identifying ‘the property and naming or _——

_the person or place to be searched.”’’

This Rule of course contemplates that the iemiadinis

affidavit be prepared by the affiant and not by the com-

missioner. The commissioner is not meant to play the

dual roles of magistrate and investigator. Cf. In re -

: ix

App. 5

Murchison, 349 U.S. 133, 137. No prejudice to defendant

has been shown, so that reversal is unwarranted. Never- °

theless, the practice of having the commissioner prepare

any such affidavits ‘should be disapproved in order that:

it will not recur in any Districts of this Circuit.

A true Copy:

Teste:

s -

.

, Clerk of the United States Court of

Appeals for the Seventh Circuit.

App. 6

-_ APPENDIX B.

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

< Chicago, Illinois 60604

Canin Decémber 26, (1967

| | Before

‘Hon. Win G. Knocu, Senior Circuit Judge

Hon. THomas K. Farrcump, Circuit Judge

Hon. Water J. Cumminas, Circuit Judge

Unitep States or AMERICA, ‘\) Appeal from the |

) Plaintiff-Appellee, United States Dis-

No. 16126 ° - V. 4 trict Court for the

Wiut1aMm Rocer Pascente and Northern District |

Frank J. Furtio, _ of Illinois, Eastern

Defendants-Appellants. Division.

This cause came on to be heard on the transcript of thie

record from the United States District Court for the

Northern District of Illinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it-is ordered and adjudged

tia by this court that the judgment of the said District Court

in this cause appealed from be, and the same is hereby,

Affirmed, in accordance with the opinion of this Court

filed this day.

‘App. 7 ) é,

APPENDIX C.

UNITED STATES COURT OF APPEALS- +

For the Seventh Circuit

Cricago, Illinois 60604

Wednesday, Janeary ms, 1968 yee

Before oa : eof

‘ Hon. Wis ‘G. Kxocn, Senior Circuit Judge

Hon. Tuomas E. Famcump, Circuit Judge

Hon. Water J.. Cumminés, Circuit Judge

Unsirep Srates or AMERICA, ) Appeal from ‘the

Plaintiff-Appellee, United States Dis-

B 2 trict Court for the

No. 16126 = > ’ Northern District

WituiamM Rocer Pascente, et al, | of Illinois, Eastern

: Defendants- Appellants. J Division.

It Is Ordered that the petition for a: rehearing of this

cause be, and it is. hereby, Denied.

4

App. 8

| APPENDIX D.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

| Wednesday, January 24, 1968

Before ©

‘Hon. Joun S. Hastines, Chief Judge —

- Hon. Eimer J. Scunackensere, Circuit Judge. —

Hon. Win G. Knocu, Senior Circuit. Judge. :

Hon. LatHam Castiz, Circuit Judge

Hon. Rocer J. Kuey, Circuit Judge

Hon. Luruer-M. Swycert, Circuit Judge

Hon. THomas EH. Famcuup, Circuit Judge

'- Hon. Warten J. Cummines, Circuit Judge

Unitep States. oF AMERICA, ) Appeal from the

-. Plaintiff-Appellee,|, United States Dis-

| ‘trict Court for the

No. 16126 be r Northern District

’ Witu1am Rocer Pascente, et al., of Illinois, Eastern

Defendants-Appellants. J Division.

It Is Ordered by the Court that the petition for a-re-

_ hearing en banc of this cause be, and it is hereby, Denied.

(Judges Kiley and Swygert voted to —_ the petition for

rehearing en bane). |

App.9 ,

APPENDIX E.

‘In The

- UNITED STATES COURT OF APPEALS

‘For the Seventh Circuit -

.° No. 16173 SepremBer Term, 1967 SEPTEMBER Sessiow, 1967

Unitep Starrs or America, 7 Appeal from the

Plaintiff-Appellee, United States Dis-

ee L trict Court for ‘the

= Northern District

“Mirox Senate hone: +, of Indiana, Ham-

Defendant- Appellant. : . mond Division.

- - Novemser 20, 1967

Before Hastrncs, Chief Judge, Kuzy, and Swycerr,

Circuit Judges.

Sweciin: Circuit Judge. Milton James Roth appeals

from a judgment of conviction pursuant to a jury verdict

of guilty. The indictment charged that he knowingly had

in his possession goods stolen from-a shipment in inter-

state commerce in violation of 18 U.S.C. § 659: The only

question in this appeal concerns the propriety of the

district court’s pre-trial ruling denying Roth’s motion

to suppress evidence «seized pursuant to the execution

~ of a search warrant.

On October 97, 1965"approximately ios thousand Hamil-

ton Beach blenders were placed on a truck in Chicago

destined for Philadelphia. During the. evening of Oc.

“tober 29, the loaded truck disappeared and was found

Oe a rr a TE ee a ee

| App. 10 |

empty the next afternoon on the far south side of Chi-

cago, several miles‘ from Hammond, Indiana. © William

Morrison, a Special Agent of the Federal Bureau of

Investigation, obtained a warrant from a judge -of the

Lake County, Indiana Superior Court on November 1.

Pursuant to that warrant, agents searched a garage-type,

warehouse building adjacent to and.a part of Day-Lite

Foods, Hammond, Indiana, occupied - the defendant, and

found the stolen blenders.

An affidavit sworn to by Agent’ Morrison was the

only matter presented to the state court judge who issued

the search warrant. After reciting the preliminary facts —

detailing the occurrence of the theft and the location

of the building occupied by the defendant, the affidavit

- set forth two grounds purporting to establish probable

cause that the blenders were contained on the defendant’s

premises! The first was a statement that the affiant

1The pertinent text of Agent Morrison’s affidavit follows:

1. That the affiant is.employed as a Special Agent of the

Federal Bureau of Investigation, a branch of the United States

Department of Justice and that affiant has continuously held

such positiori as a Special Agent for the past 11 years.

2. That the affiant has reason to believe, and does believe,

that there is now being concealed certain property, to-wit: a

large number, believed to be 3,000, Hamilton Beach Electric

Blenders,’ which electric blenders were part of an interstate

shipment from C. and A. Terminal Company, Chicago, IIlinois,

consigned to Hamilton Beach, c/o Terminal Warehouse, Phila-

delphia, Pennsylvania, under B. and P. Motor Express Pro No.

266419, and which were stolen on or about October 29, 1965,

from B. and P. Motor Express Trailer No. 784, which was

parked in the yards of B. and P. Motor Express, Inc., Chicago,

Illinois, and that the said electric blenders are now. being kept .

at the following-described premises: In the building located at

6406 Calumet Avenue, Hammond, Indiana, and known as Day

Lite Foods, which building is an “L” shaped structure made

App. 11

received information from a confidential informant on

October 31, 1965 to the effect that ‘‘said electric blenders’’ |

were on: the defendant’s premises and that the informant

had in the past furnished accurate information and was a”

reliable source. The second was a statement that the affi-

ant had been informed of the observation of another F.B.I.”

agent who had personally seen ‘‘a large number of boxes

bearing the name ‘Hamilton Beach’ ”’ through a window in

the warehouse. ;

After he was arrested and before ‘trial, the defendant

moved to suppress the evidence obtained pursuant to the -

up of the main store building and an attached garage-type ware-

house which extends from the rear portion of the building at a

right angle, and in a southerly direction, along a certain public

alley, which alley runs in a northerly-southerly direction behind ©

said address, and parallel to Calumet Avenue. ~~ ae

3. That the information upon which the affiant bases his

belief that said Hamlton Beach Electric Blenders are on said

premises mentioned ‘above is as follows:

(a) That on October 31, 1965, your affiant received in-

formation from a confidential informant that the said electric

blenders were contained in the building above-described. That

said informant has iri the past furnished the affiant with reliable

and accurate information and that he knows the informant to be

a reliable source. _

(b) That your affiant has been informed by. Thomas Noonan,

a Special Agent of the Federal Bureau of Investigation, that

Agent Noonan personally observed a large number of boxes

bearing the name “Hamilton Beach” in the premises above-

described, and that such boxes were observed through a window

by Agent Noonan while he was standing in a public parking lot

adjacent to the said building, | 4

(c) That the said B. and P. Motor Express Trailer No. 784

was found empty and abandoned at 103rd Street and Dan Ryan

Expressway, in Chicago, Illinois, in the late afternoon of Oc-

tober 30, 1965. !

RRR Me WN Rin Niet or 2) tte saad

A Appt 12

execution of the warrant. The motion was denied by Ge

district court.

' Initially, we must determine the effect to be given to

matters brought out at a hearing on a motion to suppress

in assessing ‘the sufficiency of an. affidavit for a search —

warrant. When a court reviews whether dn issuing magis- .

trate has properly granted a search or an arrest warrant,

the Supreme Court has cautioned, ‘‘the issue. of probable

cause ... [has] to be determined by the... [magistrate],

and an adequate basis for such a finding ... [has] to

appear on the face of the complaint.’’ Giordenello v.

United States, 357 U.S. 480, 487 (1958).? If an affidavit.

is the only matter presented to the issuing magistrate,

as in this case, the warrant must stand or fall solely ©

on-the contents of the affidavit. What is subsequently

adduced at a hearing on a motion to suppress, therefore,

cannot be used by the trial court to augment an otherwise

defective affidavit. But if the hearing discloses matters

which discredit or impeach the assertions in an affidavit,

these must be considered by the trial court in determining

whether probable cause in fact existed. |

At the hearing on the motion to suppress in the instant

case, testimony was illicited which exposed a fatal flaw

in the affidavit. The affiant, Morrison, testified that the

confidential informant told him, ‘‘there was a load of

Hamilton Beach products that were stored in a grocery

2 Giordenella dealt with the sufficiency of an affidavit for the

issuance of an arrest warrant. The Supreme Court stated; however,

. “The language of the Fourth Amendment, . . of course applies to

‘arrest-as well as search warrants.” 357 U.S. at 485, 486. In a sub-

sequent case, Aguilar v. Texas, 378 U.S. 108, 109 n.1. (1964), the |

Court cited Giordenello with respect to the sufficiency of. an affi-

davit for the issuance of a search warrant.

Apy. 13

store. out on the 6500 block of Calumet Avenue in Ham-

mond, Indiana.’’ In contrast, Morrison’s affidavit stated

that the informant told him that ‘‘the said electric blenders

[the stolen items]}’’ were on the defendant’ S premises.

(Emphasis added.) When Morrison’s testimony is com-

pared with his statement in the affidavit, a contradiction is

disclosed, glaring enough to require the trial court to find

the affidavit as a matter of iaw.®

Other defects permeate the affidavit in addition to the

contradiction. The statement therein that a confidential

informant told Agent Morrison that ‘‘said electric blenders

were contained’’ in the defendant’s premises is at best

hearsay. In all probability, the statement reflects hearsay

on hearsay, the informant having received the information

from someone else rather than by means’ of. his own

- observation. Agent Morrison’s testimony at the hearing

supports this conclusion.‘

3 Tf Morrison’s testimony is the correct version of the information

given by the informant, the term “products” could refer to any of the

full range of items manufactured by Hamilton Beach rather than spe-

cifically to the stolen blenders. See p. 7, infra.

* The relevant testimony of Agent Morrison is as follows:

Q. Did’you ask him from where or how he had obtained this

information ?

A. No, sir. “9 °

-Q. Did you ask him whether or not he had seen the items in

the store that he mentioned to you?

A. To the best of my know ledge, I don’t recall asking him

that. .

oO. So you have no knowledge from him or from anyone else

that he personally observed these items in the store, do your

A. No, sir.

Q: You don’t know whether he obtained that information

from somebody else who may have observed it, do you?

A. No, sir, I don’t.

Q. Has this informant in the past supplied you with infor-

mation ?

sie Ee

‘App. 14

The Supreme Court has held that an affidavit “‘is not

to be deemed insufficient’’ on the ground that it contains

hearsay statements ‘‘so long as a substantial basis for

crediting the hearsay is presented.’’ Jones v. United

States, 362 U.S. 257, 269 (1960). There the affidavit was

-held to: be sufficient in part because the hearsay state-_

ments related the personal observations of the informant.

Subsequent Supreme Court cases have elaborated upon

the nature and extent of the corroboration necessary to

sustain a search warrant: issued pursuant to an -affidavit

containing hearsay. In Aguilar v. Texds, 378 U.S. 108,

109 (1964), the affiants, two local police officers, stated

that they had received ‘‘reliable information from a credi-:

ble person and do believe’’ the defendant possessed nar-

cotics. Neither the police officers nor the informant had

personally observed the facts recited in the affidavit. The-

. Supreme Court held the affidavit insufficient to establish

‘probable cause, stating: |

Although an affidavit may be based on hearsay in-

formation and need not reflect the direct personal

Yes, sir, he has,

On how many occasions?

On several occasions.

How many is several? Is it more than three?

Yes, sir.

Now, this informant—and again I am not asking you to

reveni the identity of the informant—obtains information from)

other so-called underworld sources and then transmits it to you,

doesn’t he? Isn’t this the work he works most of the time?

A. Well, I would say in some cases, yes, and in some cases—

we are talking about the past information, % that correct, sir?

Q. Yes.

A. I would say in some cases he did hear: this from other in-

dividuals and a couple of cases he had personal knowledge of the

information.

OPO >O>

Ay. i 15

observation of the affiant, ... the magistrate must

be informed of some of the underlying circumstances

from which the informant concluded that the narcotics

were where he claimed they were, and some of the

underlying circumstanées from which the officer con-

cluded that. the informant, . . . was ‘‘credible’’ or his

information ‘reliable. 378 U. S. at 114. (Heyieen

added.)

‘In accordance with the itil of Jones and Aguilar.

if Morrison’s affidavit contained only .the statement of

what the informant related to him without the support

of any ‘underlying circumstances,’’ there would be no

adequate basis from which the magistrate could properly .

have concluded that probable cause existed. Despite the

. additional averment. in the affidavit that the informant

_ had ‘‘in the past furnished the affiant with reliable and

accurate information and that he knows the informant

to be a reliable source,’’ that statement .in itself is too

barren either to credit or to corroborate the hearsay state-

ments of the informant. Irrespective of the informant’s

- reliability, he in turn may have received his information

from someone wholly unreliable. Consequently, the fact

that the agent vouched for the credibility or reliability

of the informant cannot reach the crucial question posed

by the hearsay on hearsay situation present in this case.

For the reliability of both the anonymous hearsay source

and the information he imparted to the informant is to- |

tally lacking.

We believe that an affidavit containing ‘‘inherently defec-

tive hearsay on hearsay”’ (that is, hearsay on hearsay as-

to which there is ‘absent any indication of the reliability of

the anonymous hearsay sourcé) can withstand attack only

if the ‘‘supporting circumstances”’ related therein are suf-

al ela aca im ae Poa oe DG

App. 16

ficient in themselves to establish probable cause. Mor-

rison’s statement. in the affidavit that he was informed

by Agent Noonan of his own observation of ‘‘boxes bear-

ing the name ‘Hamilton Beach’ ’’ on the defendant’s prem-

ises fails to satisfy this requirement.

The Supreme Court recently considered the sufficiency

of an affidavit reciting the observations of the affiant’s

fellow officers in Ventresca v. United States, 380 U.S.

102 (1965). That decision upheld the validity of a search

warrant issued on the presentation of an affidavit in which

the affiant based his belief that an illegal distillery was in

operation on his own observations and ‘‘upon information

received officially from other Investigators . . . assigned

to this investigation, and reports orally made to me de-

scribing the results of their observations and investiga-

i tions, . . .”’? 380 US. at 103, 104. Seven instances of the

agents’ deannvatiatin of suspicious, incriminating activities

_ were described.

A significant difference is apparent between the affidavit

in Ventresca which. relied on the observations of fellow

officers (and which contained ‘‘not merely ‘some of the .

underlying circumstances’... but a good many of them’’

380 U.S. at 109) and Morrison’s affidavit which relied on

the observations of Noonan. The latter lacked the speci-

ficity found ‘adequate in Ventresca. Neither ‘the date on

which Noonan observed the defendant’s premises nor the

5 Thus if an affidavit, unlike Morrison’s, indicated the highly rll-

able nature not only of the confidential informant but also of his anony-

mous hearsay source, a different problem would be posed. In such a

situation, the quantum of “underlying circumstances” necessary to

sustain the affidavit would decrease as the indicia of reliability of the

anonymous hearsay source increased.

—_—_——oorrerer ee

Ap p. 17.

type of Hamilton Beach petits he observed were re-

cited in the affidayit. Both of these omissions are highly

critical in view of the nature of the premises, a ‘‘garage-

type warehouse,’’ and the type of merchandise stolen, a -

product that is. mass -produced by a nationwide manu-

facturer of a variety of household electrical appliances.

-. Without detailing the date of Noonan’s observation and

what he specifically saw, Morrison’s statement might have,

described any of a large number of warehouses that had

received a shipment of Hamilton Beach products prior

to or contemporaneously with the theft of the. blenders in

question.* The statement, therefore, is too imprecise to -

establish probable cause that what Noonan observed on

the defendant’s premises was the stolen blenders.

‘Although we are mindful-of the Supreme Court’s ad-

monition in Ventresca that ‘‘affidavits for search warrants,

- must be tested and interpreted by magistrates and

courts in a commonsense and realistic fashion,’’ we may

not overlook the equally important charge that sufficient

specificity of an affidavit for a search warrant ‘‘is essen-

tial if the magistrate is to perform his detached function

and not serve merely as a rubber stamp for the police.’?

380 U.S. at 108, 109. We feel constrained, in light of the °

reasons heretofore outlined, to hold that the district

court erred in refusing to grant the defendant’s motion to

suppress the evidence obtained as a result of the search.

SAlthough we previously held that an affidavit cules forth the

observations of fellow F.B.I. agents was sufficient to sustain the issu-

ance of a search warrant, United States v. McCormick, 309 F.2d 367

(7th Cir. 1962), cert. denied, 372 U.S. 911 (1963), the affidavit

there, like the one in Ventresca, was more specific than Morrison’s

affidavit in this case.

5 a LEE Oe PN

-Hastines, Chief Judge, concurring.

App. 18

v

aad

The judgment of the district court is reversed ‘and the

case is remanded for a new trial.

ae re 3 -

I concur in the result reached in this case. :

A true Copy: -

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

a

meres ee