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MACLEAN v. TRAINOR

November 2, 1973

D. R. MACLEAN, Individually & t/a Smith-Waterhouse & Co.
v.
Barry E. TRAINOR et al.


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 This is a civil action for a preliminary injunction against three individuals employed by the Postal Service, inter alia, "ordering return of the material seized" by them at the place of business of plaintiff at 847 West North Avenue, Pittsburgh, Pennsylvania, and "an Order that any possible criminal prosecution be terminated", and for other relief.

 The search warrant which issued for the aforesaid material stated that they are the instrumentalities of and evidence of a scheme and artifice to defraud various individuals by the use of the United States mails in violation of Title 18 U.S.C. § 1341. This search warrant was promptly executed and an inventory of the alleged instrumentalities and evidence *fn1" seized was filed. It appears that the seized instrumentalities and evidence of the scheme were specifically the business records of the plaintiff located in his place of business. *fn2"

 No criminal indictment has been returned against the plaintiff as of this date.

 The complaint avers, inter alia, that the affidavit for the search warrant was insufficient, and that the facts and conclusions set forth in the affidavit are not true.

 A hearing was held on the motion for preliminary injunction on September 26, 1973. On October 15th the government filed a motion to dismiss the civil action for want of jurisdiction pursuant to Rule 12(h)(3), Fed.R.Civ.P., and argues that the plaintiff has an adequate remedy at law under Rule 41(e), Fed.R.Crim.P. The plaintiff argued that the civil complaint was filed because he desired the right to appeal in case of an adverse decision, which right he indicates may not be available from a refusal of a 41(e) motion; see also, his "Partial Answer to Motion to Dismiss". *fn3" We think that the civil complaint should be treated as a Rule 41(e) motion, Wright, Federal Practice and Procedure: Criminal § 673, and that the government's motion to dismiss and the plaintiff's motion for return of property should be denied.

 In our opinion the facts alleged in the affidavit sworn to by the affiant, Barry E. Trainor, a Postal Inspector, sufficiently establish probable cause for the issuance of the search warrant.

 At the hearing, the plaintiff called Inspector Trainor as a witness. He was asked whether the following statement in his affidavit (p. 4) was true:

 
"Stewart Samuels, an investigator for the Bureau of Consumer Protection of the State of Pennsylvania, told me that in mid-August, 1973, he visited Martorella's [the plaintiff's former name] place of business, that is, 847 West North Avenue, Pittsburgh, Pennsylvania, and that the files, books, and records of Smith-Waterhouse were there as he saw the Smith-Waterhouse files at that location * * *."

 Inspector Trainor admitted that Samuels had not told him anything. He testified that a prior affidavit, which had been disapproved by the Magistrate for reasons undisclosed, stated that Robert Adler, the Consumer Protection Deputy Attorney General, and Mr. Samuels' superior, provided Trainor with the aforesaid information which he (Adler) had received from Samuels; that this was the fact stated in the prior affidavit but on retyping the new affidavit, the typist accidentally omitted Adler's name as Trainor's informant. Trainor negligently failed to notice and correct the omission when he cursorily re-read the new affidavit before presenting it to the Magistrate.

 The plaintiff strenuously argues that because it was untrue that Samuels told Trainor anything, the quoted averment should be expunged. He cites, inter alia, United States v. Jones, 475 F.2d 723 (5th Cir. 1973); United States v. Roth, 391 F.2d 507 (7th Cir. 1967); United States v. Pearce, 275 F.2d 318 (7th Cir. 1960).

 We believe that the material fact is the location of the plaintiff's files. The fact that two law enforcement officers were in the chain of hearsay on hearsay, we think, is not significant. Law enforcement officers are presumed to be reliable. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Brooks v. United States, 416 F.2d 1044, 1049 ...


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