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UNITED STATES v. GROSSO

January 9, 1964

UNITED STATES of America, Plaintiff,
v.
Anthony M. GROSSO, Samuel J. Grosso, Jennie B. Grosso, Joseph Pino,Defendants



The opinion of the court was delivered by: GOURLEY

This criminal proceeding presents, through a Motion to Suppress Evidence, many of the complex and intricate questions which arise in law enforcement as to the interpretation of the Constitutions of the United States and Pennsylvania as the provisions thereof relate to arrest, search of premises, and seizure of evidence.

The proceeding also brings into clear focus the problems that law enforcement officers have in bringing to the bar of justice those persons who it is believed are the heads or in control of, directly or indirectly, syndicated lottery or gambling operations.

 On one side of the scales or account of justice, the ledger entries show the all-consuming amount of time, effort and dedication to duty involved in the close and careful supervision and investigation of a syndicated lottery operation, the lack of legal training and education of the law enforcement officers, and the lack of close or proper liaison relationship between police officers who enforce the law on the one hand, and the directors of said officers or their supervisors and the legal staff commonly identified as the prosecuting attorney or district attorney's office which does not have the time or opportunity to confer and/or consult with an officer before an arrest is made. On the other side of the ledger are the provisions of the Constitutions of our states, more particularly Pennsylvania in this proceeding, the Constitution of the United States of America, and the requirements which our founding fathers enunciated as to the protection and rights which a resident of this great country should be afforded when accused or required to appear in a Court of the state or the United States to answer charges as to conduct which has been prohibited or made unlawful either by state or federal law.

 The Court has reviewed most carefully and meticulously all of the evidence, documentary and oral in nature, has studied and evaluated all authorities cited by the United States of America and the defendants, has made its own independent research, and I must conclude that although the matters involved in the Motion to Suppress are in the 'twilight zone' of what is proper or improper, reflected judgment requires the conclusion that the arrests and the evidence secured in the searches and seizures incident to the arrests is, in each instance, sustainable and the Motion to Suppress, in each instance, will be denied.

 My mind can reach no other conclusion and I believe if the writers of our Constitution had the facts which exist in this case before them, the Constitution would state that 'the provisions of the Constitution shall not be interpreted to mean that the arrests and evidence secured incident thereto are improper or violative of the Constitution which is this day written.'

 The evidence which is subject to the Motion to Suppress arises out of two raids by state officers, one of which will be identified as the Jefferson Raid, and the other as the Bethel Park Raid. While each raid naturally involves a different factual situation, many of the constitutional and legal questions which are posed have application to each of the two separate and distinct searches and seizures, the legality of which is now before the Court. However, a legal question is presented in the Bethel Park Raid which is not posed in the Jefferson Raid.

 A. Jefferson Raid --

 Members of the Racket Squad of the City of Pittsburgh had, for some time prior to said raid, been conducting a very extensive and thorough investigation of racket and gambling activity in and around Pittsburgh and Allegheny County, Pennsylvania. On the day of the raid, an experienced member of the Racket Squad, Flynn, who had personally participated in much of the investigation, obtained a search warrant from a Pittsburgh Alderman for the Lovejoy home in Jefferson Borough.

 The knowledge which Flynn has as to violations of the state lottery laws, the specific details of the surveillance, and the facts revealed by the surveillance and investigation were stated in the presence of the Alderman while both were participating in a conference in the office of the Director of Public Safety, an official by whom the Alderman was employed as Chief Clerk. Later that day, the same officer appeared before the Alderman in his office in the City of Pittsburgh and signed informations, under oath, charging the commission of the crimes of operating a lottery and conspiracy to operate and maintain a lottery. Each of the informations was in conclusionary terms. The wording of each of them was in the language of the state wagering statutes and did not set forth any facts as to what the officer swearing out the information had seen, heard, observed or even been told by others. The only facts given or statements made to the Alderman under oath were those which were contained within the information itself. Any facts given or statements amde orally to the Alderman or in his presence were not made while Officer Flynn or anyone else was under oath.

 B. Bethel Park Raid --

 Search and arrest warrants were issued by a magistrate for the premises raided and for some of the persons arrested therein. The factual background of this raid is similar to that of the Jefferson Borough Raid in that the only statements made or facts given while under oath before the Justice of the Peace who issued the warrants were those contained in the information sworn to by Leo Flynn who, by this time, was a private citizen and no longer a Pittsburgh Police Officer.

 The Justice of the Peace was not told, under oath, orally or in writing, any of the facts of gambling activity by the persons present at the raided premises and arrested therein personally known, or of which trustworthy information had been received, by Mr. Flynn or by William Claney Smith, Esq., an Assistant District Attorney for the County of Allegheny who had, by accident, discovered what has been described as the wagering headquarters allegedly being operated by or for some or all of the defendants in this proceeding. *fn1"

 Of the five primary legal questions posed by the factual background of the raids, four are posed in the Jefferson and the Bethel Park Raids, and the fifth is raised solely by the factual background of the Bethel Park Raid and is not posed in the Jefferson Raid.

 GENERAL PRINCIPLES OF LAW

 Evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendants' immunity from unreasonable search and seizure under the Fourth Amendment is inadmissible in a federal criminal trial. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). However, federal statutory standards are not applicable unless the search and seizure can be deemed to be a federal or a joint federal and state, rather than a state, search and seizure. See Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927).

 While the Fourth Amendment to the Constitution of the United States ordinarily prohibits searches of premises without search warrants, a reasonable search of premises may be conducted without a search warrant where such search is incident to a valid arrest. See Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). An arrest warrant is not necessarily required for a valid arrest to be made. The validity of an arrest without a warrant is determined by state law so long as such state law meets federal constitutional standards. See Ker v. California, supra.

 To meet said standards the lawfulness of the arrest without warrant must, in turn, have been based upon probable cause, which exists where the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Ker v. California, supra.

 The reasonableness of the resulting search and seizure incident to an arrest lawful under state law is determined by federal constitutional standards. *fn2"

 I. WERE THE WARRANTS ISSUED VALID?

 The answer is 'no'.

 Law

 Article 1, Section 8, of the Constitution of Pennsylvania, P.S., provides:

 'The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.'

 The Fourth Amendment of the Constitution of the United States *fn3" provides:

 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

 The Fourth Amendment has been construed to require that affidavits for the issuance of search and arrest warrants must state sufficient facts to permit the impartial Commissioner or issuing magistrate to determine whether probable cause exists. Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933); see Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 6 L. Ed. 2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958). *fn4" This is true whether the prosecution be a state or federal one.

 Discussion

 It appears to the Court that the facts contained in the sworn written informations *fn5" upon which the warrants were issued are insufficient to enable a magistrate to find the probable cause prerequisite to issuance of a warrant under the Fourth Amendment. The informations are in conclusionary terms, taken from the language of the Pennsylvania lottery statutes.

 Some contention has been made that while the information may be in conclusionary terms, nevertheless the language used also constitutes a statement of facts. Even if this premise be accepted, the statements contained therein do not contain sufficient facts to enable a magistrate to find probable cause. *fn6" See Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958); Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933); Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927). *fn7"

 Whatever may be the requirements of the Pennsylvania Constitutional provision insofar as requiring that the oath or affirmation be in writing, since in neither of the two raids was anything said under oath other than what was stated in the formal information, any discussion or determination of this question would be superfluous and unnecessary. Furthermore, since it seems quite clear to the Court that the issuance of both the search and arrest warrants did not meet Fourth Amendment standards, the Court will not attempt to determine whether or not Article 1, Section 8, of the Pennsylvania Constitution applies to the issuance of arrest warrants as well as search warrants, a question which appears not to have yet been determined by any Pennsylvania appellate court, *fn8" nor will the Court measure the sufficiency of the facts stated in the informations against the requirements of the Pennsylvania Constitution for the issuance of a warrant.

 Accordingly, the Court holds that the warrants issued for both the Jefferson and the Bethel Park Raids were defective because the sworn informations supporting the issuance of the warrants failed to meet the requirements of the Fourth Amendment in that they did not state sufficient facts to permit a finding by an impartial magistrate that probable cause existed for the issuance of the warrants. Therefore, the search and seizure cannot be justified as being pursuant to a valid search warrant or as incident to an arrest pursuant to a valid arrest warrant. *fn9"

 II. DOES THE INVALIDITY OF THE WARRANTS RENDER THE ENTRY AND SEARCH AND SEIZURE UNLAWFUL, EVEN IF THERE WOULD HAVE BEEN A VALID BASIS FOR ENTRY AND SEARCH AND SEIZURE WITHOUT WARRANT?

 The answer is ...


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