Anthony G. Saville v. Daniel A. O'brien, Superintendent of Massachusetts Correctional Institution at Warwick, Massachusetts

420 F.2d 347
CourtCourt of Appeals for the First Circuit
DecidedJanuary 13, 1970
Docket7372
StatusPublished
Cited by12 cases

This text of 420 F.2d 347 (Anthony G. Saville v. Daniel A. O'brien, Superintendent of Massachusetts Correctional Institution at Warwick, Massachusetts) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony G. Saville v. Daniel A. O'brien, Superintendent of Massachusetts Correctional Institution at Warwick, Massachusetts, 420 F.2d 347 (1st Cir. 1970).

Opinions

McENTEE, Circuit Judge.

Petitioner, Anthony G. Saville, a state prisoner, was convicted in the Superior Court of Massachusetts on two indictments charging him with possession of counterfeit bank bills and possession of counterfeiting equipment in violation of M.G.L. (Ter. ed.) ch. 267, §§ 9, 13. On appeal, the Supreme Judicial Court upheld the convictions, affirming the trial court’s denial of petitioner’s motion to suppress evidence obtained by a search made under a warrant allegedly issued without probable cause.1 Petitioner then sought a writ of habeas corpus. After an evidentiary hearing, the district court denied the writ. On Saville’s request for a certificate of probable cause we agreed to hear his appeal but only on the question of whether there was probable cause for the issuance of the search warrant.

The warrant in question, issued on July 4, 1966, by one Collins, clerk of the Springfield district court, was based on the affidavit of Sergeant Desrosiers of the West Springfield Police. The affidavit, which was typed by Collins from what Desrosiers .told him, reads as follows:

“I have information based upon * * * statements made to me by Detective Richard Hurley of the Connecticut State Police that John J. Pa-risi has stated that Anthony Saville of 38 Burford Avenue West Springfield gave said Parisi 150 counterfeir (sic) ten dollar bills, this occurring at the print shop of said S.aville located at 212 Bosworth Street in West Springfield yesterday afternoon.”

[349]*349Two other affidavits, submitted by Desrosiers to the same court clerk earlier the same day in support of applications for warrants to search Parisi’s home and place of employment, revealed that he had been arrested in Connecticut the previous day on charges of uttering counterfeit money and that when arrested he had in his possession forty bogus ten dollar bills.2

On the basis of the information contained in the three affidavits,3 the clerk issued a warrant to search petitioner’s print shop and evidence obtained in the search was introduced against him at trial.4

In Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 729, 4 L.Ed.2d 697 (1960), the Supreme Court held that hearsay may be the basis for the issuance of a search warrant “so long as [there is] a substantial basis for crediting the hearsay.” This holding was amplified in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). There .the Court stated that where an affidavit is based on hearsay, the magistrate must be informed of some of the underlying circumstances from which the officer concluded that the informant was credible and his information reliable. The rule is the same whether the identity of the informant is disclosed or not. The sound policy behind this rule is to insure that a neutral officer is afforded the opportunity to exercise his independent judgment as to whether certain information in the hands of the police is sufficient to justify an invasion of privacy.

The affdavit in this case fails to satisfy the requirements of Aguilar.5 It said only that Detective Hurley had told Desrosiers that Parisi “had stated” that Saville gave him the counterfeit money at his print shop. Thus, Hurley may have received a call from someone who claimed to have overheard the remark at the neighborhood bar, see Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); a cellmate of Parisi's could have furnished the information to the police; or the hearsay chain could have comprised only police officers. The affidavit simply did not reveal when or to whom the statement had been made.

As we have indicated, a basic policy of the Fourth Amendment is that the judgment of an independent magistrate should be interposed between the police and a suspect before an invasion of privacy is countenanced. See, e. g., Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The affidavit in the case at bar prevents the making of such a judgment by providing insufficient information for the purpose. Accordingly, we hold that the affidavit was insufficient on its face.

The danger presented by such a document is not hypothetical. Although we base this decision solely on the insufficiency of the warrant, we note that the evidentiary hearing below revealed that [350]*350Detective Hurley had come by his information not from Parisi, but from an undisclosed third party, and .that Des-rosiers had obtained his information at least in part from the same unidentified informant. Moreover, since Desrosiers did not know to whom Parisi had spoken, nor through how many persons his information had passed before reaching Hurley, even Desrosiers could not have known whether the information was reliable or the informant credible.

This decision is consistent with Spin-elli. There the Supreme Court was faced with an affidavit which stated, among other things, that the F.B.I. had been informed by a confidential, reliable informant that Spinelli was accepting wagers. In rejecting this statement as insufficient under Aguilar’s dual standard, the Court observed that there was no indication how the informant came by this information. The affidavit did not say that he had personal knowledge nor, assuming that he had obtained the information indirectly, why his source was reliable. “It is clear,” the Court concluded, “that a Commissioner could not credit it without abdicating his constitutional function.” Spinelli, supra at 416, 89 S.Ct. at 589.

Nor is it significant that one of the informants in .the hearsay chain is named in the affidavit:

“Irrespective of the informant’s relia-blity, 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 totally lacking.” United States v. Roth, 391 F.2d 507, 510-511 (7th Cir. 1967).

Informant Hurley’s source was in fact totally unreliable, because it was totally unknown.

United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), does not require a different result. In that case the Court defined .the standard by which a reviewing court should interpret affidavits which are made in support of warrants. It held that,

“where [the] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the'warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Ventresca, supra at 109, 85 S.Ct. at 746.

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