The opinion of the court was delivered by: MARSH
These four libel proceedings brought under § 7302, Title 26 U.S.C.A., to perfect forfeiture of the currency and checks described in the captions, were consolidated for trial.
At the trial counsel agreed that on the basis of the record made in the civil forfeiture cases the court should rule on the four motions to suppress evidence may be the claimants Sheck, Sigal, Granoff and Rabinovitz, all of whom were arrested and bound over for grand jury action.
The libels allege that on November 20, 1961, the Assistant Regional Commissioner, Intelligence, Internal Revenue Service, Philadelphia Region, acting through his duly authorized agents, seized the currency and checks involved which were intended for use and had been used in violation of §§ 4411, 4412, 4901, Title 26 U.S.C.A. These sections of the Internal Revenue Code require those engaged in the business of accepting wagers to pay a special tax of $ 50.00 and register with the official in charge of the Internal Revenue District.
Claimant Rabinovitz filed an answer admitting the seizure from him of currency and a check, but denying the other material allegations of the libel; the claimants Sheck, Sigal and Granoff did not answer the libels but appeared on the continued return day in opposition to the forfeiture proceedings and in support of their motions to suppress.
The evidence discloses that on September 11, 1961, James A. Taylor, a senior criminal investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service, pursuant to orders, began an undercover surveillance of Whitey's Luncheonette, a combination restaurant and poolroom operated by Joseph Sheck at 1618 Center Avenue, Pittsburgh, Pennsylvania. On September 25, 1961, Taylor was joined by Harold J. Boone, also a senior criminal investigator, and from that date through November 21, 1961, Whitey's was under observation many mornings and afternoons by these agents. Their surveillance was conducted under the direction and supervision of Robert J. Madden, a special agent in the Intelligence Division of the Internal Revenue Service, to whom they reported. Their purpose was to obtain information regarding violation of the wagering tax laws by the claimants and others.
In the course of the investigation the agents made wagers by purchasing 'numbers' from various numbers writers in the area surrounding Whitey's, an area known as the 'Hill District'. During the surveillance of Whitey's, the agents frequently observed that in the afternoon some of these writers from whom they had purchased numbers, and others known to them as 'writers' or 'pick-up men', entered the premises and gave money and packs of numbers slips to Rabinovitz and, on occasion, to Granoff. At times checks were included in the deliveries. The amount received from each writer was noted on the back of 'waitresses' checks', the writer being identified by code. Rabinovitz and Granoff habitually put the money and checks in their pockets and the slips were placed in a bag which was usually given to 'Freddy', an employee of Whitey's, who at about 3:30 P.M. removed them from the premises. Rabinovitz regularly turned money over to Granoff and to Sigal when he was present; Sigal also received money from writers coming to Whitey's and habitually put the money he received from Rabinovitz and the writers in his pocket.
In addition the agents overheard conversations between the claimants and others connected with the wagering business clearly indicating that Sigal, assisted by Granoff and Rabinovitz, was operating a numbers lottery or 'book' in competition with another 'book' referred to as the 5th Avenue Bank; that several writers were working for Sigal on a commission basis, and that Sigal 'had a six hundred dollar payroll to take care of writers' problems'. They also heard Sigal give permission to one Goode to operate a numbers station in the area.
During the surveillance the agents frequently observed that in the morning Sigal, Granoff, and Rabinovitz discussed bets previously made, worked on adding machine tapes, and stuffed money into bank-type envelopes which were usually stored near the telephone and sometimes put into the cash register or behind the counter.
On November 20, 1961, in the afternoon prior to 3:00 P.M., the agents saw all the claimants in Whitey's. As previously observed, writers and pick-up men were turning in money, checks, and numbers slips to Rabinovitz who noted the amounts and put the money and checks into his pocket. On two occasions he turned over money and checks to Sigal, and on at least one occasion turned over money to Granoff. Sigal and Granoff put the money and checks received from Rabinovitz into their pockets and were not seen transferring these items to any other person. Rabinovitz was not seen transferring money or checks to any person other than Sigal and Granoff.
At about 3:00 P.M., according to prearranged plan, Whitey's was raided by Agent Madden, assisted by other revenue agents, including agents in the Alcohol and Tobacco Tax Division. Madden had a search warrant for gambling paraphernalia in Whitey's and arrest warrants for Sigal, Granoff, and 'John Doe', the last physically describing Rabinovitz and stating that he was known as 'Piggy'. This description and nickname identified Rabinovitz with reasonable certainty and sufficiently fulfilled the requirements of the Fourth Amendment to the Constitution. West v. Cabell, 153 U.S. 78, 14 S. Ct. 752, 38 L. Ed. 643 (1894).
Madden executed the search warrant and personally arrested Sigal, Granoff and Rabinovitz; subsequently he made the returns on the arrest warrants and the search warrant. These claimants were searched by Madden incident to their arrests, and currency and checks on their persons were seized. The sum of $ 2,007.43 was taken from Sigal's pocket along with $ 440.10 in checks and money orders. The sum of $ 395.96 and one check for $ 25.00 was taken from Rabinovitz's pocket. The sum of $ 1,058.00 was taken from Granoff, $ 640.00 from his pocket and $ 418.00 from his wallet.
The search of the premises revealed six packs of numbers slips in an onion bin in the kitchen, one pack of numbers slips in a cuspidor, tapes in the front phone booth, and tip sheets in the areaway between the restaurant and poolroom. These items were seized.
The next day at Whitey's Agent Taylor overheard Sigal express concern over the checks which were seized in the raid, and he wanted those who had turned them in to go to the people who had given them the checks 'and get a story as to how they came into their possession and that would give him an explanation as to why he had them.'
From the evidence and reasonable inferences arising therefrom, it is obvious that Whitey's was a primary turn-in station for a large scale numbers operation, and that Sigal was a principal assisted by Granoff and Rabinovitz in operating a segment of it. Regularly, wagers were received totaling substantial amounts from various writers who were identified by symbols for bookkeeping purposes; numbers slips were tallied; daily the numbers slips were taken from the premises to an unknown place; and in the ...