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United States v. McNally

decided: January 15, 1973.

UNITED STATES OF AMERICA, APPELLANT
v.
JOSEPH F. X. MCNALLY, A/K/A "POPE" MCNALLY, APPELLEE



Forman, Adams and Rosenn, Circuit Judges.

Author: Adams

Opinion of the Court

ADAMS, Circuit Judge:

This appeal, in which the government challenges a suppression of evidence ordered by the district court, 338 F. Supp. 341, forces us to peer once again into the murky area surrounding the precepts governing averments necessary for a finding of probable cause, the basic component that permits a search warrant to issue.

The Fourth Amendment commands:

"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."

A significant number of United States Supreme Court cases*fn1 require that, if a statement made by an unidentified informer is to be an element in the determination of probable cause, the importance of the statement and the weight to be accorded it in that determination must be analyzed carefully.*fn2 Thus the task facing the Court in this case is to ascertain whether the affidavit, produced to support the issuance of the search warrant, containing, inter alia, a statement by two unidentified informers, provided a sufficient basis for a finding of probable cause to search a property at 3039 Belgrade Street Philadelphia.

I.

Defendant Joseph F. X. "Pope" McNally was indicted on seven counts of (a) failing to file income tax returns and (b) filing fraudulent tax returns for the years 1963-1966, on income totaling $833,055.17. The charges were based primarily on evidence gathered at a house located at 3039 Belgrade Street, occupied by McNally's mother. That evidence, implicating McNally in a wide-ranging wagering operation, was seized in a search conducted pursuant to a warrant. It was this warrant that was successfully attacked in the district court.*fn3

The affidavit submitted to the magistrate in support of the warrant indicated an extensive system of numbers gambling and horse race wagering. The betting operation described, situated in the Richmond section of Philadelphia, Pennsylvania, was quite active, employing techniques typical of such an enterprise. This much of the affidavit is not in contention. Rather, the controversy turns on the allegations identifying McNally as the "banker" and establishing a nexus between his activity and 3039 Belgrade. The averments include statements that:

(1) "Confidential information was received from two confidential sources, proven reliable in the past, that a large scale wagering operation was being conducted in the Richmond section of Philadelphia, and the 'banker ' of this operation was Joseph 'Pope ' McNally. "

(2) McNally had been arrested fifteen times and convicted six times for numbers violations.

(3) McNally was observed driving in a surreptitious manner on several occasions.

(4) McNally was seen carrying a brown paper bag on two occasions.

(5) Several conversations were overheard by special agents in which reference was made to the leader of this operation, referred to as "Pope".

(6) McNally appeared several times in various taverns in which special agents had placed bets.

(7) McNally visited the house searched, 3039 Belgrade, the home of his mother, ten times within a two-month period ...


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