Giacomo Ventresca, Defendant, Appellant, v. United States of America, Appellee, 324 F.2d 864 (1st Cir. 1963)

The defendant, Giacomo Ventresca, appeals from a judgment of conviction of the United States District Court for the District of Massachusetts for possessing and operating an unlawful still in violation of the Internal Revenue Code and for conspiracy to do so.¹ 

The defendant was arrested in his home on September 1, 1961 by Investigators attached to the Alcohol and Tobacco Tax Division of the Internal Revenue Service who were executing a warrant to search for an illicit still. The Investigators found and seized a still, along with other apparatus used in the distilling process and a large quantity of nontax paid liquors. Some of the seized objects were introduced in evidence against the defendant at the trial.

Prior to trial the defendant filed a motion for the return of seized property and the suppression of evidence obtained through the execution of the search warrant. After receiving evidence on the motion, the district court ruled that the affidavit was sufficient under the test promulgated by the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). Further, the court ruled that the facts in the affidavit constituted probable cause and the warrant described the things to be seized with sufficient particularity. Ordered suppressed as evidence, however, were a telephone book, desk directory and various papers taken from a box on Ventresca's bedroom bureau and from his trouser pocket on the ground that they were mere evidence and, therefore, not within the provision of Rule 41(b) (2) of the Fed.R. of Crim.P.

The principal question raised by the defendant is the sufficiency of an affidavit signed by one Walter A. Mazaka, an Investigator attached to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which affidavit was the sole evidence upon which the search warrant was issued.

The affidavit is set out in the margin.²  It alleged in substance that Mazaka had "reason to believe" that an illicit still and other material used in the manufacture of non-tax paid liquors were being concealed on the premises of a dwelling house located at 148½ Coburn Avenue, Worcester. On an attached sheet signed by Mazaka were recited the "facts tending to establish the foregoing ground for issuance of a Search Warrant."

The first paragraph of the attached sheet contained the following:

"Based upon observations made by me, and based upon information received officially from other Investigators attached to the Alcohol and Tobacco Tax Division assigned to this investigation, and reports orally made to me describing the results of their observations and investigation, this request for the issuance of a search warrant is made."

There followed eleven paragraphs of stated facts, nine of which detailed the activities of two men alleged to have been seen riding around in a 1961 Pontiac automobile and making seven individual deliveries of sugar and five-gallon cans to the dwelling house at 148½ Coburn Avenue, Worcester. Two of the paragraphs recited that on three separate occasions "Investigators" smelled an odor of fermenting mash in the immediate vicinity of the suspected dwelling.

The final paragraph of the attached sheet comprised this statement:

"The foregoing information is based upon personal knowledge and information which has been obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation."

The affidavit failed to clearly indicate which of the facts alleged therein were hearsay or which were within the affiant's own knowledge. Although the affiant claims part of the information to be based upon "personal knowledge and information," it is stated that such "personal knowledge and information" was obtained from other Investigators.

The finding of probable cause as the basis for issuance of a search warrant is made by the Commissioner from the facts stated in the affidavit when that is the only evidence presented. Siden v. United States, 9 F.2d 241 (8th Cir. 1925). Such a duty cannot be delegated to the accuser. United States v. Harnich, 289 F. 256 (D. Conn. 1922). Limited to the four corners of the affidavit, there was no way for the Commissioner to determine how much of the factual recitation was based on hearsay and how much was based on personal knowledge of the affiant. It could well be that none of the essential facts set forth in the affidavit were actually witnessed or established by the affiant. The Commissioner could only conclude that the entire affidavit was based on hearsay.

That is not to say that an affidavit dependent upon hearsay could not support issuance of a search warrant. The Supreme Court in Jones v. United States, supra, 362 U.S. at 269, 80 S. Ct. at 735, 4 L. Ed. 2d 697, has succinctly stated the law in this respect:

"The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented."

In Jones, the source of the hearsay, the informant, had direct knowledge himself of the possession of contraband articles by the suspect. He was deemed worthy of credence because he had previously given accurate information, his story was corroborated by other sources of information, and the suspect was known to the police as a narcotics user. The Court said 362 U.S. at 271, 80 S. Ct. at 736, 4 L. Ed. 2d 697:

"Thus we may assume that [the affiant] Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant's story." (Emphasis supplied).

The Court then went on to recite the further elements listed above, the sum total of which added up to substantial basis for crediting the hearsay.

Where the hearsay evidence has been personally observed by federal officers and communicated directly to the affiant, courts have found a substantial basis for crediting the hearsay. In United States v. McCormick, 309 F.2d 367 (7th Cir. 1962), cert. den., 372 U.S. 911, 83 S. Ct. 724, 9 L. Ed. 2d 719 (1963) — a case the government contends "appears to be on all fours" with the instant case — the affiant had no personal knowledge of the averments in the affidavit, but each factual statement was prefaced by the declaration that the F.B.I. agents from whom the information was received were "present" and "observed" each described event as it occurred. In Giacona v. United States, 257 F.2d 450 (5th Cir.), cert. den., 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958), the affiant was without personal knowledge but identified his informant as one W. T. Finley of the Federal Bureau of Narcotics who had personally observed the narcotics hidden under the building to be searched.

But the holdings in the aforementioned cases are inapplicable to the facts of this case. With the exception of two paragraphs in the factual recitation alleging that unidentified "Investigators" smelled the odor of fermenting mash in the vicinity of the suspected dwelling, all we learn from Mazaka's affidavit is that the investigators received their information through "investigation."

Thus, the affidavit leaves as a complete mystery the manner in which the Investigators discovered their information. There is no indication whatsoever that any of the evidence gathered through the investigation was based upon the personal knowledge or observation of the Investigators. As a consequence there arises doubt that such information was first-hand to the Investigators. The type of fact-finding activities that can qualify under the term "investigation" are numberless. Investigations can, and frequently do, include the interrogation of witnesses, the receipt of information from informants, the receipt of telephone tips, the checking of files and records, etc. We would have in such a case, not a hearsay affidavit alone, but the distinct possibility of hearsay-upon-hearsay.

Hearsay information received from an informant may be used in an affidavit to secure a search or arrest warrant only when the informant is shown to be "trustworthy," Monnette v. United States, 299 F.2d 847 (5th Cir. 1962), or "reliable," Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). In United States v. Pearce, 275 F.2d 318 (7th Cir. 1960), it was held that an affidavit based on hearsay relayed from one federal agent to another was insufficient. The affiant, an F.B.I. agent, had received his information from his superior, who in turn had received it from an F.B.I. agent in Seattle, who in turn had received it from a reliable informer. The court pointed out, therefore, that the statement in the affidavit that the affiant obtained the information from "a source which in the past has proved reliable" was obviously false. Similarly here, the affiant, Mazaka, could not truthfully vouch for the reliability or trustworthiness of the sources of information that might have been used by the Investigators. The substantial basis for crediting the hearsay found in Jones is nowhere apparent in this case.

Because we are unable to determine from Mazaka's affidavit which of the statements therein are based on his own personal knowledge, which are the result of hearsay, and whether such hearsay is direct or not, we hold that the affidavit is insufficient to support the issuance of a search warrant and the search and seizure made pursuant thereto were unlawful and in violation of the constitutional rights of the defendant. See DiBella v. United States, 284 F.2d 897 (2d Cir. 1960), rev'd on procedural grounds, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962). It follows that the evidence obtained as a result of such search should have been suppressed.

If hearsay evidence is to be relied upon in the preparation of an affidavit for a search warrant, the officer or attorney preparing such an affidavit should keep in mind that hearsay statements are only as credible as their source and only as strong as their corroboration. And where the source of the information is in doubt and the corroboration by the affiant is unclear, the affidavit is insufficient.

Judgment will be entered vacating the judgment of the district court, setting aside the verdict, and remanding the case for a new trial consistent with this opinion.

ALDRICH, Circuit Judge (concurring).

This is a case of general importance. As a matter of interpretation I cannot agree with the first paragraph of Judge WOODBURY'S dissent. While I do agree with the first sentence of the second paragraph, it does not lead me to his result. The government's obligation under the Fourth Amendment to justify the issuance of a warrant is far from a pro forma matter. Marron v. United States, 1927, 275 U.S. 192, 195, 48 S. Ct. 74, 72 L. Ed. 231. This is illustrated by the undisputed rule that deficiencies in its prima facie showing are not remedied by the circumstance that subsequent events prove it was right after all. Byars v. United States, 1927, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520. I believe it would be bad practice, down-grade the government's obligation, and lead, at best, to difficult performance of their duties by United States Commissioners, if the government were permitted to cart in a barrow-load of what is hopefully pay dirt and leave it to the commissioner, or ultimately the court, to pan out a possible nugget. In this case out of three and a half printed pages only the one sentence referred to by Judge Woodbury regarding odor is affirmatively identified as being to the personal observation of a government investigator, and even he is not necessarily the affiant. I believe the initial duty should be upon the government to evidence what is reliable and why, and not to introduce a hodge-podge under some general formalistic coverall.

Such a principle is peculiarly appropriate here because if a warrant is to be predicated primarily upon an odor, it is highly desirable that proper weighing may be made of the attendant circumstances. Cf. Johnson v. United States, 1948, 333 U.S. 10, 13, 68 S. Ct. 367, 92 L. Ed. 436.

WOODBURY, Chief Judge, (dissenting).

In the light of the first and more particularly of the final paragraphs of the sheet attached to Mazaka's affidavit, quoted at length in footnote 2 of the opinion of the court, I would read the statements of fact contained therein as based upon "observations" made either by the affiant himself or by other Investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Since knowledge obtained from other federal law enforcement agents, though hearsay, has sufficient verification to support the issuance of a search warrant under the rule of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), see United States v. McCormick, 309 F.2d 367 (C.A.7, 1962), cert. den. 372 U.S. 911, 83 S. Ct. 724, 9 L. Ed. 2d 719 (1963), it can make no difference which specific "observations" were made by the affiant himself and which were made by other Investigators and reported in line of duty to the affiant.

But, regardless of the foregoing, the allegations of the detection of the odor of fermenting mash emanating from Ventresca's house on three occasions, twice between four and five o'clock on the morning of August 18, 1961, and once at about four o'clock on the morning of August 30, 1961, are clear allegations of actual observations made by Investigators themselves and not observations relayed to them by someone else whose identity does not appear. These allegations read in conjunction with the others impress me as enough to warrant issuance of the search warrant by the Commissioner. See United States v. Parham, 17 F.R.D. 301 (E.D. Mich. 1955). I would affirm.