United States v. Eugene Andrew Anthony Algie

721 F.2d 1039, 1983 U.S. App. LEXIS 15367

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 10, 1983
• Docket: 82-5368
• Status: Published

Opinions

PER CURIAM.

Defendant-appellant Eugene Algie appeals from a denial by the trial court to suppress evidence obtained as a result of the issuance of a search warrant. Algie was tried by the court on May 10, 1982 and was found guilty on both counts of an indictment charging that he operated an illegal gambling business in violation of 18 U.S.C. Sec. 1955, and participated in an illegal conspiracy in violation of 18 U.S.C. Sec. 371. We reverse.

Algie was one of eleven defendants indicted by a federal grand jury on December 19,1979. The indictment followed an investigation by the Federal Bureau of Investigation (FBI) which had commenced in the spring of 1977. The FBI’s investigation concerned a network of gambling activities in the Northern Kentucky and Southern Ohio area. The FBI learned of bookmaking operations, conducted by Al Zenni, Dan Weyer and Richard Musk, which were headquartered in a Cincinnati, Ohio apartment. Special Agent Harold S. Harrison, Jr. of the FBI applied to the United States Magistrate for the Southern District of Ohio for the authorized use of a pen register to record numbers called on the apartment’s two phones.¹ Harrison, in his affidavit, indicated his belief that “the specific telephone numbers called by the participants in furtherance of the alleged offenses would be obtained by monitoring the telephone dial mechanisms” of the telephones in the apartment. During the twelve day period that the pen register was operating (May 19, 1979 to May 30,1979), fifteen calls were placed to telephone number 431-3912, registered to Highland Security Corporation.

Thereafter, Harrison filed an affidavit for a search warrant, incorporating the previously filed affidavit in support of the application for the pen register. The affidavit included numerous paragraphs detailing the illegal gambling operation in Cincinnati and revealed that telephone calls from the apartment where the gambling operation took place were made to Highland Security Corporation in Covington, Kentucky. In addition, Harrison indicated his belief that the apartment’s two telephones were being used to make “lay-off” bets.² On June 12, 1979, a search warrant was issued to search Highland Security Corporation. During the search, federal officials seized a variety of gambling paraphernalia which led to appellant’s indictment. Prior to trial, appellant moved to suppress the evidence obtained as a result of the search of Highland Security Corporation. The district court denied appellant’s motion on March 18, 1980, and denied appellant’s motion to reconsider on April 21, 1980. Both parties agree that the sole issue preserved for appeal is whether the facts and circumstances contained in the affidavit are sufficient to uphold the search of Highland Security Corporation.

Probable cause to conduct a search exists when the facts and circumstances described in the affidavit indicate a “fair probability” that evidence of a crime will be located on the premises of the proposed search. E.g., Illinois v. Gates, — U.S. —, 103 S.Ct. 2317, 2336, 76 L.Ed.2d 527 (1983); Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). In deciding whether there is probable cause to believe that contraband or evidence is located in a particular place, the “totality of the circumstances approach” should be used. Illinois v. Gates, — U.S. —, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Affidavits in support of an application for a search warrant are to be reviewed by both courts and magistrates in a realistic and common sense fashion. E.g., U.S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). Moreover a magistrate’s determination should be accorded great deference, and be disturbed only if arbitrarily exercised. E.g., United States v. Swihart, 554 F.2d 264, 267-268 (6th Cir.1977); United States v. Sevier, 539 F.2d 599, 603 (6th Cir.1976). Consistent with these principles, we turn to appellant’s arguments.

Appellant argues that the affidavit for the search warrant did not establish the credibility of the informants as constitutionally required and, furthermore, that the affidavit did not provide the reviewing magistrate with the underlying circumstances from which the informants drew their conclusions. We disagree. The information supplied by informants regarding appellant was based on direct observation by sources shown to have been reliable in the past. Informant information regarding the Cincinnati apartment was similarly obtained and corroborated by an affiant who made periodic spot checks of the premises. We hold that the informants’ information was credible and reliable, as were the underlying circumstances of their conclusions. However, the informants’ credibility is important only insofar as it establishes that the Cincinnati apartment was used in a gambling operation.

The issue is whether there was probable cause to search Highland Security Corporation, not the apartment at which illegal activities were known to be taking place. Nothing in the affidavit refers to informant information concerning Highland Security Corporation. The sole reference to Highland Security Corporation in the affidavit for the search warrant, which incorporates the affidavit for the pen register, indicates that from a phone in the Cincinnati apartment, the telephone number of Highland Security Corporation was dialed fifteen times between May 19, 1979 and May 30, 1979. Therefore, we must decide whether these fifteen telephone calls are sufficient to constitute probable cause to search Highland Security Corporation.³

The government asserts that fifteen calls made to Highland Security Corporation from an apartment which authorities knew to be used for gambling, coupled with an affiant’s belief that telephones are often used to make lay-off bets, constitutes sufficient evidence for a finding of probable cause. We disagree.

A pen register is a mechanical device which is usually installed at a “central telephone facility.” U.S. v. Giordano, 416 U.S. 505, 549 n. 1, 94 S.Ct. 1820, 1842 n. 1, 40 L.Ed.2d 341 (1974) (opinion concurring in part and dissenting in part). The instrument records telephone numbers dialed by monitoring electronic impulses and causing perforation of a tape which indicates the number dialed, as well as the date and time.⁴ See United States v. New York Tel. Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 366 n. 1, 54 L.Ed.2d 376 (1977) and United States v. Terry, 702 F.2d 299, 306 n. 5 (2nd Cir.1983). The device “does not overhear oral communications and does not indicate whether calls are actually completed.” United States v. New York Tel. Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 366 n. 1, 54 L.Ed.2d 376 (1977). (Emphasis added). Furthermore, a pen register does not indicate whether a receiving telephone was answered and, if it was, whether any conversation occurred. United States v. Terry, 702 F.2d 299, 306 (1983). Thus, the pen register in this instance could only reveal that someone in the Cincinnati apartment dialed Highland Security Corporation’s telephone number fifteen times between May 19, 1979 and May 30, 1979. Although the Cincinnati apartment was a known location where illegal gambling took place, Highland Security Corporation was not; no demonstrable illegal activities were observed at Highland Security Corporation. In our view, the limited information obtained from the pen register in this instance is insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises. See, e.g., United States v. Gray, 659 F.2d 1296, 1300 (5th Cir.1981).

The only other possible source of probable cause is the affiant’s assertion that telephones are commonly used to make lay-off bets.⁵ Although bookmakers depend on the telephone to obtain’ and give out information, the affidavit does not indicate that every outgoing call from the Cincinnati apartment was of an illegal nature. Indeed, a common sense reading of the affidavit reveals that a number of phone calls from the Cincinnati apartment were made to locations with no discernible connection to gambling operations. There is no evidence, but only a business’ “mere propinquity to others independently suspected of criminal activity,” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), to link Highland Security to the known gambling operation. In our view, the evidence raises only a mere suspicion that Highland Security Corporation was involved in illegal activities. Mere suspicion, however, is insufficient to establish any fair probability that contraband or other instrumentalities of crime would be found on the property of Highland Security Corporation. See, e.g., Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1948); United States v. Drake, 673 F.2d 15, 18 (1st Cir.1982); United States v. Green, 670 F.2d 1148, 1151 (D.C.Cir.1981).

We emphasize the narrowness of our holding.⁶ In this instance, the only factor before the magistrate was the fifteen telephone calls from the Cincinnati apartment to Highland Security Corporation. The inference that contraband or evidence of illegal operations can be found on every premises called by known bookmakers is not the sort of reasonable inference required to support an intrusion. We conclude that there was insufficient evidence to support a reasonable inference that contraband would be found on the premises of Highland Security Corporation. Consequently, we hold that the magistrate’s decision to authorize a search of Highland Security Corporation was arbitrarily exercised.

Accordingly, the trial court’s order is reversed.

1 . The telephone numbers (513) 471-1708 and (513) 471-0595 were subscribed to in the name of Richard Musk, Apartment 41, 2500 Warsaw Avenue, Cincinnati, Ohio.

2 . A “lay-off” bet simply enables a gambling operation to lessen the risk of loss by betting with other gamblers. E.g., United States v. Cierkley, 556 F.2d 709 (4th Cir.1977).

3 . The affidavit for search warrant indicates that ten telephone calls were made from the Cincinnati apartment to appellant’s personal residence during the period that the pen register monitored the apartment’s outgoing calls. The affidavit also contains information from two confidential informants; this information reveals that appellant was “conducting a large bookmaking operation” from three or four different locations. The information concerning appellant, however, is only relevant if there is a connection drawn between the appellant and Highland Security Corporation. A common sense reading of the affidavit in support of the search warrant fails to reveal any connection between appellant and Highland Security Corporation. The fact that the search of Highland Security Corporation revealed that appellant was its owner is inapposite. Although the government believes that the information obtained from the pen register is only a “part of the totality of the circumstances” reported in the affidavit for the search warrant, we believe that the pen register information is the only evidence that this court can properly consider in determining whether the magistrate’s decision was arbitrary. United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976) (One reason for requiring a search warrant is to prevent hindsight from affecting a later evaluation of the search.); Stone v. Powell, 428 U.S. 465, 473 n. 3, 96 S.Ct. 3037, 3042 n. 3, 49 L.Ed.2d 1067 (1976) (Police are not permitted to supplement information contained in the affidavit at a hearing on a motion to suppress.); Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 1034, 28 L.Ed.2d 306 (1970) (“The decisions of this court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”).

4 . The dissent notes that “lay off bets are generally placed only once each day.” Because the 15 calls from the Cincinnati apartment were made in a 12 day period, a ratio of approximately one call per day, the dissent concludes that the calls were probably lay off bets. In this regard, the dissent charges that we have failed to consider the “modus operandV of the criminal activity involved and, thus, that we have failed to construe the affidavits in support of probable cause in a “common-sense” fashion. Although the dissent presents a logical theory, its premise that “lay off bets are generally placed only once each day” is without support. See Dissenting Opinion at p. 1046 (“Pelle’s Tax Service (4 calls); Eugene Algie (10 calls); Edward Kerkoff (3 calls); Pelle’s Cafe (2 calls)”). In fact, neither the dates nor the times of the calls dialed from the Cincinnati apartment were included in the affidavits.

5 . The dissent argues that the telephone is an “essential tool of the trade” and, thus, that the fifteen calls made from the Cincinnati apartment to Highland Security “assume heightened significance and render the recipient of the calls highly suspect.” Further, the dissent asserts that because “lay off bets are generally placed only once each day, ... the magistrate was justified in concluding that 15 calls in a 12 day period warranted a suspicion that Highland ... was a bookmaking operation.” We agree with the dissent that the calls from the Cincinnati apartment to Highland Security were sufficient to establish a suspicion that some unknown person was involved in a bookmaking operation. As the Supreme Court has indicated, however, mere suspicion that someone is involved in criminal activity is insufficient to establish probable cause to search. E.g., Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1948).

6 . We do not claim that information obtained through use of a pen register is irrelevant. We hold only that the pen register information, in light of the facts and circumstances of this case, is insufficient to support the magistrate’s probable cause determination.