United States v. Steve Karathanos and John Karathanos

531 F.2d 26
CourtCourt of Appeals for the Second Circuit
DecidedJuly 6, 1976
Docket550, Docket 75-1322
StatusPublished
Cited by67 cases

This text of 531 F.2d 26 (United States v. Steve Karathanos and John Karathanos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Steve Karathanos and John Karathanos, 531 F.2d 26 (2d Cir. 1976).

Opinions

MANSFIELD, Circuit Judge:

On this appeal from a decision of the United States District Court for the Eastern District of New York ordering the suppression of certain evidence and testimony as obtained in violation of appellees’ Fourth Amendment rights, the government asks us to reverse a decision by Judge James L. Watson that there was no probable cause to issue the search warrant in question or, alternatively, to restrict the operation of the exclusionary rule in this case. Since we find that the warrant was improperly issued, and are unpersuaded by the government’s arguments regarding the exclusionary rule, we affirm the decision below.

The case involves a search of Steve’s Pier One Restaurant in Bayville, N.Y.; appellee Steve Karathanos is the president and sole shareholder of the corporation which owns the restaurant, while appellee John Karathanos, his brother, works there as a chef. The search was conducted under authority of a search warrant issued by a United States Magistrate after Neil Jacobs, an investigator for the Immigration and Naturalization Service (“INS”) swore in an affidavit that he had reason to believe illegal aliens were on the restaurant’s premises. The affidavit reads, in pertinent part, as follows:

“Upon information and belief, there are a number of aliens who are not lawfully entitled to enter or reside within the United States, employed at and present within the premises known and operated as STEVE’S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, within the Eastern District of New York. The presence of said aliens is a violation of Title 8, United States Code, Section 1325.1 Moreover, such aliens are subject to arrest pursuant [29]*29to Title 8, United State Code, Section 1325, for having unlawfully entered the United States.
“The source of your deponent’s information and the grounds for his belief are:
“1. During the past five years at least eleven illegal aliens have been apprehended on the premises known as STEVE’S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAYVILLE, NEW YORK, including but not limited to the following individuals: MICHAEL KATSIGIORGIS, DIMITRIOUS STROUPAS, EMANUEL ARETINES, VELIRIS KOSTAS, VICTOR LLANOS, KOAS-TANTINOS VOULGARIDIS, ROBERTO BARRENCHEA-CAMACHO, VICTOR ALEXANDRO LLANO S-ATUNEA, LADIGLAO VENEGAS-FLORES, HUGO LAGOS, and KIKOLOS TISSANOS.
“2. On May 15, 1975, one ATHANASIOS ATHANASIOU, an admitted illegal alien, holding Greek citizenship, surrendered himself to agents of the Immigration and Naturalization Service at 20 West Broadway, New York, New York. After being advised of his rights, Mr. Athanasiou advised that he had been employed at STEVE’S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAY-VILLE, NEW YORK from October of 1973 till Sunday, May 11,1975; that as of May 11, 1975 at least eight other persons known to him to be illegal aliens were employed at STEVE’S PIER I RESTAURANT, 33 BAYVILLE AVENUE, BAY-VILLE, NEW YORK. That during the last year and a half he has resided in the basement of said restaurant with eleven other individuals in six (6) foot by six (6) foot cubicles. That at least six of the eleven individuals residing in the basement at 33 Bayville Avenue, Bayville, New York are known to him to be illegal aliens.”

Having obtained the warrant, INS agents searched the restaurant and arrested seven illegal aliens on the premises. The Karathanos brothers were then indicted for harboring and concealing these aliens in violation of 8 U.S.C. § 1324.2 The appellees moved to exclude from their trial any evidence of the presence of the aliens obtained during the search, and the testimony of the aliens themselves, on the ground that the affidavit for the search warrant failed to state probable cause to search. After a hearing, Judge Watson granted the motion, and the government, deeming the excluded evidence essential to its prosecution of the Karathanos brothers, appealed pursuant to 18 U.S.C. § 3731.

DISCUSSION

Though fine judgments are often required to determine whether an affidavit states facts sufficient to show probable cause for issuance of a search warrant, the basic standard for the decision is well-settled. When an affidavit relies on an informant’s time to establish probable cause, the affidavit must, first, set forth “some of the underlying circumstances” forming the basis of the informant’s conclusion that there is illegal activity or evidence thereof on the premises, and, second it must state facts which give some assurance that the informant is a credible person. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The purpose of the “two-pronged” test thus enunciated in Aguilar and Spinelli is, of course, to assure that the magistrate will not function merely as a rubber stamp but will issue search warrants only when [30]*30the facts are sufficient to satisfy a reasonably prudent detached and neutral person that a crime is being committed or evidence of it kept on the premises to be searched and that the informant’s information has been obtained by him in a reasonably reliable way rather than through neighborhood gossip, conjecture, or mere suspicion. See Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584, 21 L.Ed.2d 637. Then only is a limited invasion of a person’s privacy sanctioned by the Fourth Amendment.

With this basic framework in mind, we turn our attention to whether the requirements of the first phase of the Aguilar-Spinelli test have been met. The only information presented in the Jacobs affidavit3 to indicate how the informant Athanasiou reached his conclusion that there were illegal aliens at the restaurant is the statement that he had lived on the premises with these aliens. The government, recognizing that the mere presence of aliens (assuming that Athanasiou had a basis for concluding they were aliens) would not provide a basis for concluding that they had entered the United States illegally or otherwise violated immigration laws, strenuously argues that his statement gives rise to a reasonable inference that the other aliens must have admitted to him their illegal status, and thus provides sufficient assurance that he reached his conclusion in a reliable way.

Unquestionably statements to the informant by the other aliens that they were illegally in the United States would have been sufficient to support a holding that the information was reliably obtained by the informant. See, e.g., United States v. Sultan, 463 F.2d 1066, 1068 (2d Cir. 1972). But the affidavit’s bald statement that Athanasiou had lived with the other aliens is an insufficient basis for inferring that they made such incriminating admissions. While co-workers and bunkmates may exchange considerable amounts of information, it can hardly be assumed that, living in fear of arrest and deportation, illegal aliens would have revealed their illegal status to a stranger such as Athanasiou. On the contrary, one would expect this subject to rank high on the list of topics too sensitive to be casually revealed.

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531 F.2d 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steve-karathanos-and-john-karathanos-ca2-1976.