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United States v. Zucco

November 24, 1982

UNITED STATES OF AMERICA, APPELLANT,
v.
ANTHONY ZUCCO, DEFENDANT-APPELLEE.



The government appeals pursuant to 18 U.S.C. § 3731 from an order of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, granting defendant's motion to suppress evidence seized pursuant to a search warrant because the underlying affidavits failed to provide any basis to substantiate the credibility of anonymous informants. Reversed, order vacated, and remanded

Author: Meskill

Before MESKILL, PIERCE and FAIRCHILD,*fn* Circuit Judges.

MESKILL, Circuit Judge:

On March 17, 1980 an Acting Justice of the New York Supreme Court (state judge) issued a warrant to search a vehicle which had been stopped by the New York State Police as it travelled south on the New York State Thruway. Armed with the warrant, the police recovered from the automobile four handguns, two rifles, and one shotgun. The driver, Appellee Anthony Zucco, was subsequently charged with seven counts of unlawful possession and transportation of firearms in violation of 18 U.S.C. App. § 1202(a) (1) (1976). In the United States District Court for the Western District of New York, Zucco moved to suppress the evidence seized from the automobile on the grounds that the affidavits supporting the warrant were constitutionally insufficient to support a finding of probable cause. The district court in its opinion reported at 537 F. Supp. 901 (W.D.N.Y. 1982), John T. Curtin, Chief Judge, granted Zucco's motion and held that the affidavits provided no basis for the state judge to assess the reliability of the anonymous tipsters whose information led to Zucco's apprehension. The government appealed pursuant to 18 U.S.C. § 3731 (1976). We reverse.

The state judge reviewed several affidavits supporting the application for a search warrant. The affidavit of Detective Darrell Eddings of the Niagara Falls Police Department reported that at about 9:10 a.m., March 17, 1980, he received a telephone call from an unidentified informant who claimed that he had seen a man place several pistols into the wheel well of a station wagon parked at 401 56th Street. The informant said that the station wagon was towing a black truck and black wooden camper, and that he suspected the man would be gone within the hour. The informant claimed knowledge that the man was responsible for bombings and threats in the area and that he possessed three sub-machine guns.

Detective Jack Cardinal of the Niagara Falls Police Department reported in his affidavit that he received a telephone call at about 9:30 a.m. on March 17 from an unidentified man*fn1 who said that he had seen someone trying to sell two handguns. The informant added that a man and a woman were leaving two in a green station wagon sporting Maine license plates with a black truck in tow.

The state judge also considered an affidavit from Senior Investigator P.J. Petrie of the New York State Police. On the morning of March 17, Investigator Petrie received a telephone call from Detective Cardinal who related his conversation with the anonymous informant. Detective Cardinal suspected that the green station wagon might be headed for the New York State Thruway. Investigator Petrie alerted Trooper James Farrell, also of the New York State Police, and a collector at a nearby Thruway toll to be on the lookout for a green station wagon. About ten minutes later, the toll collector spotted the vehicle and notified Investigator Petrie, who in turn notified Trooper Farrell. The vehicle was stopped by Trooper Farrell a short distance beyond the toll booth. The station wagon was occupied by a man and a woman.

When he arrived at the scene, Investigator Petrie recognized the driver of the station wagon as Zucco, a "person of questionable character with numerous arrest," 537 F. Supp. at 902, quoting Affidavit of P. J. Petrie, Gov't App. at 14, including arrests for possession of a weapon, rape, criminal mischief, theft, conspiracy to commit theft, possession of stolen property, interstate transportation of a stolen vehicle, and possession of a controlled substance. When asked, Zucco told Investigator Petrie that he sad his female companion were on their way to Texas. Zucco did not consent to a search of the station wagon. Consequently, a search warrant was obtained for the state judge and the firearms were recovered from the automobile.*fn2

The aforementioned facts are not disputed and the parties agree for the most part on the applicable law. The district court concluded that under the controlling authority of the Supreme Court's decisions in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), Zucco's Fourth Amendment rights were violated because the underlying affidavits offered insufficient information from which the state judge could determine that the anonymous informants were credible or reliable. Consequently, the court granted the motion to suppress the evidence.

I

A search warrant is properly issued upon a determination of probable cause by a neutral and detached magistrate, see Steagald v. United States, 451 U.S. 204, 212-13, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981), from information set forth in sworn affidavits which set forth the "grounds for issuing the warrant." Fed. R. Crim.P. 41(c) (1). Hearsay information contained in an affidavit can suffice to establish probable cause, Jones v. United States, 362 U.S. 257, 269-70, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), provided there is a "substantial basis' for crediting the hearsay," United States v. Harris, 403 U.S. 573, 581, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971) (plurality opinion). While a reviewing court should "not serve merely as a rubber stamp for the police," it is firmly established that substantial deference should be accorded judicial determinations of probable cause. Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). "[I]n a close case any doubts should be resolved in favor of upholding the warrant." United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.) (per curiam), cert. denied, 445 U.S. 966, 64 L. Ed. 2d 242, 100 S. Ct. 1656 (1980). It is against this backdrop of substantial deference to judicial findings of probable cause that we must view the district court's holding.

Recognizing that an informant's tip presents special problems of reliability and trustworthiness, the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), announced that in order to find probable cause from affidavits that rely upon informant's tips, the affidavits must set forth: (1) the underlying basis for the informant's belief that a crime had been committed, and (2) the underlying basis for the affiant's belief that the informant is reliable and his tip credible. Id. at 114. Upon these factual predicates, a detached and neutral magistrate can ensure that probable cause exists. United States v. Marino, 682 F.2d 449, 452 (3d Cir. 1982). The first prong of the Aguilar test is satisfied if the affidavit states that the informant personally observed the activity described. See, e.g., United States v. Gagnon, 635 F.2d 766, 768 (10th Cir. 1980), cert. denied, 451 U.S. 1018, 69 L. Ed. 2d 390, 101 S. Ct. 3008 (1981); United States v. Agapito, 620 F.2d 324, 332 (2d Cir. 1979), cert. denied, 449 U.S. 834, 66 L. Ed. 2d 40, 101 S. Ct. 107 (1980); United States v. Rollins, 522 F.2d 160, 164-65, (2d Cir. 1975, cert. denied, 424 U.S. 918, 47 L. Ed. 2d 324, 96 S. Ct. 1122 (1976). The second prong of the test is satisfied if the informant has a track record of providing reliable information. See, e.g., United States Marino, 682 F.2d at 453; United States v. Sumpter, 669 F.2d 1215, 1220 (8th Cir. 1982); United States v. Rollins, 522 F.2d at 164-65.

The two-prong Aguilar test was refined in Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), where the Supreme Court provided an alternative route to satisfy either prong of the test. A sufficiently-detailed tip makes it easier for the magistrate to "know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Id. at 416; see United States v. Marino, 682 F.2d at 453. Corroboration of the details supplied by the informant serves to buttress the reliability of the informant by confirming the accuracy of the tip. Spinelli, 393 U.S. at 416-17; see United States v. Jackson, 560 F.2d 112, 121 (2d. Cir.), cert. denied, 434 U.S. 941, 54 L. Ed. 2d 301, 98 S. Ct. 434 (1977); United States v. Canieso, 470 F.2d 1224, 1229-30 (2d Cir. 1972). There is substantial disagreement as to whether the corroboration necessary to satisfy Aguilar-Spinelli must be of incriminating facts or may be of innocent facts. Some courts, including this Court, have accepted corroboration of innocent facts as sufficient to establish an informant's credibility. See, e.g., United States v. Jackson, 560 F.2d at 121; United States v. Gonzalez, 555 F.2d 308, 313 (2d Cir. 1977); United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972). Other courts require the corroboration to be of incriminatory facts. See, e.g., United States v. Rasor, 599 F.2d 1330, 1332 (5th Cir. 1979); United States v. Larkin, 510 F.2d 13, 15 (9th Cir. 1974). In between are those courts permitting only substantial or significant corroboration of ...


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