The opinion of the court was delivered by: MARSH
The defendant, George Arnal, moved to suppress evidence seized at his home at 118 Hamilton Avenue, Vandergrift, Pennsylvania, and for the return of same. He alleged that 'the affidavit upon which the search warrant was based was insufficient in law to establish probable cause for the issuance of a search warrant' in violation of the Fourth and Fifth Amendments to the Constitution. A hearing was fixed and testimony was taken; however, no evidence was submitted to sustain the factual averments in the motion. Only the search warrant, the attached affidavit, the complaint and the arrest warrant were offered in evidence by the defendant (Exs. A, A-1, B, and C). No arrest was made on the date of the search. The issue then is whether the Commissioner was justified in issuing the search warrant. In our opinion he was.
The affidavit (Ex. A-1) was executed by a special agent of the Internal Revenue Service on September 22, 1962. He swore that he had reason to believe that certain specified wagering paraphernalia were concealed at 118 Hamilton Avenue, Vandergrift, Pennsylvania, in violation of §§ 7203, 4411, and 4412 of the Internal Revenue Code of 1954; that he had personally searched the records of the District Director in Pittsburgh for all wagering tax stamps issued in the Pittsburgh District for the period from July 1, 1962 to September 22, 1962, and found no record of the registration or issuance of a wagering occupational tax stamp to any person whose residence or business address was 118 Hamilton Avenue, Vandergrift, Pennsylvania.
In our opinion the Commissioner had substantial basis for crediting the hearsay statements contained in the agent's affidavit. Cf. Jones v. United States, 362 U.S. 257, 267-272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff'd 278 F.2d 504 (3d Cir. 1960). Coupled with the hearsay was the corroborating fact that the agent himself heard McKee telephone Arnal and place a bet with him. As stated by Judge Lord in United States v. Joseph, supra, 174 F.Supp. at p. 543, 'at the very least, there was sufficient showing before the Commissioner to demonstrate that his issuance of the warrant was not arbitrary.'
An appropriate order will be entered.
Western, District of Penna. ss
I, John Charles Schwartz, Special Agent, Intelligence Division, state that:
I reside at 512 Wimer Circle, Pittsburgh 37, Pennsylvania.
I have been a Special Agent in the Intelligence Division of the Internal Revenue Service for 17 years. For the past several months I have been assigned to investigate wagering violations in the Vandergrift area; and in connection therewith, information that has been considered reliable in the past was given to me to the effect that George 'Brownie' Arnal of 118 Hamilton Avenue, Vandergrift, is the principal booker of horse race bets, sports bets of all kinds and allegedly numbers bets with his operations mainly at his residence. He has been observed by reliable informants in the act of accepting horse and sport bets in several business locations in Vandergrift, Pennsylvania, at specified times. These places are the Sweetlane Chocolate Shop and the Brideson and Lace Hotel both located on Grant Avenue in downtown Vandergrift, Pennsylvania.
A reliable informant, whose information has been considered trustworthy in the past, informed me that Mr. Arnal never takes bets from strangers; but that he has observed several businessmen in the Vandergrift area make bets on numerous occasions in the past several months, and also prior thereto, with Mr. Arnal. One of these businessmen is Charles 'Ching' McKee who normally works at the United Engineering Foundry in Vandergrift, and who also has a store at 115 McKinley Avenue, Vandergrift, Pennsylvania, known as McKee's Natural Food Center.