The opinion of the court was delivered by: HANNUM
Presently before the Court is the motion of defendants Stanley Wolfe and Nathan Wolfe to suppress evidence. Following a hearing on the motion, the Court took the motion under advisement. The defendants, in their memorandum submitted to the Court, cite four reasons in support of their motion. We shall consider each of these contentions in turn.
WAS THE AFFIDAVIT UPON WHICH THE WARRANT WAS ISSUED FOR THE SEARCH OF THE PREMISES AT 3226 W. CHELTENHAM AVENUE SUFFICIENT TO JUSTIFY THE FINDING OF PROBABLE CAUSE?
On March 21, 1973, U.S. Magistrate Naythons issued a search warrant for the premises at 3226 W. Cheltenham Avenue, Philadelphia, Pennsylvania, based upon an affidavit of March 2, 1973 by Special Agent Ramsey of the F.B.I. pursuant to Rule 41(e) Fed. R. Crim. P. The defendants attack the affidavit of Agent Ramsey as failing to state sufficient probable cause for the issuance of a search warrant.
The Fourth Amendment states:
"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."
Before commencing an inquiry into the sufficiency of the affidavit, it is important to note the presumptions with which courts are directed to approach such an examination:
". . . that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96 [85 S. Ct. 223, 228, 13 L. Ed. 2d 142] (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311 [87 S. Ct. 1056, 1062, 18 L. Ed. 2d 62] (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108 [85 S. Ct. 741, 745, 13 L. Ed. 2d 684] (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, [80 S. Ct. 725, 735-736, 4 L. Ed. 2d 697] (1960)."
Moreover, in determining whether there was sufficient probable cause for the issuance of the search warrant the Court must look to the affidavit in its entirety. If the affidavit, reviewed as a whole, discloses the existence of probable cause, then the Government has met its burden. United States v. McNally, 473 F.2d 934 (3d Cir. 1973); United States v. Singleton, 439 F.2d 381 (3d Cir. 1971).
The affidavit submitted to the magistrate in the present case does provide sufficient grounds for a finding that probable cause existed to search 3226 W. Cheltenham Avenue. The affidavit contains the following facts and circumstances which justify a probable cause belief that Title 18 U.S.C. §§ 659 and 2314 have been violated by the defendants and the fruits of those alleged crimes will be found on the premises sought to be searched, 3226 W. Cheltenham Avenue, which is a one story brick building where Stanley and Nathan Wolfe do business.
Volume Merchandise Incorporated is located at 75 9th Ave., New York City and they sell ladies' and children's wearing apparel. The records of Volume Merchandise reflect that they do not sell or buy from Stanley Wolfe on Cedarbrook Fashions (the name the Wolfes do business under).
On February 20, 1973, F.B.I. agents observed approximately 25 to 30 boxes of what appeared to be Volume Merchandise Inc. merchandise being unloaded from a Ford Econoline truck into the premises at 3226 W. Cheltenham Avenue.
On February 22 and 26, 1973, F.B.I. agents observed the same Ford Econoline truck in the Jo-Jon Trucking lot in New York where the driver removed merchandise from a shabby trailer located on one side of the lot and delivered it to 3226 W. Cheltenham Avenue in Philadelphia. This merchandise was also marke Volume Merchandise Inc.
During the period from February 21 to February 27, 1973 electronic surveillance revealed that the defendants made several calls to various persons attempting to sell merchandise under style numbers which belong to Volume Merchandise Inc. that is, Volume Merchandise Inc. handles style numbers identical to those which the defendants were attempting to sell.
On February 28, 1973, F.B.I. agents found a discarded carton, number 279817, belonging to Volume Merchandise Inc., behind the premises at 3226 W. Cheltenham Avenue. That same carton had been consigned to interstate shipment during the period of February 19 through February 24 to a store in Harrisburg, Virginia.
On March 1, 1973, a carton from Volume Merchandise Inc., number 570, was observed being carried into 326 W. Cheltenham Avenue. It has been learned that carton number 570 was consigned from Volume Merchandise Inc. destined for a store in Knoxville, Tennessee, and that Volume Merchandise had made shipments to the Knoxville store during the past week.
On March 1, 1973, electronic surveillance revealed a conversation between defendant Stanley Wolfe and an individual named Middleton concerning an inquiry regarding stolen merchandise. The defendants stated that they would deny the allegation and that they did not want "them in the place" and that certain "measures" should be taken.
The affidavit also makes reference to the fact that in a telephone conversation monitored by F.B.I. electronic surveillance one of the defendants requested shirts with no labels. Also, color-coded shipping materials were seen being delivered to 3226 W. Cheltenham Avenue and matching the color coding system of Volume Merchandise Inc.
The above outlined facts taken from the affidavit give rise to a finding of probable cause that Volume Merchandise Inc. shipments have been unlawfully diverted in some manner and are being received by the defendants at 3226 W. Cheltenham Avenue, Philadelphia. The observation of Volume Merchandise Inc. merchandise being carried into that location certainly justifies a search warrant for those premises.
The defendants argue that the affidavit does not contain any report by Volume Merchandise Inc., or those to whom it sold merchandise, that any part of Volume Merchandise Inc.'s shipments were stolen. However, as the Government points out, the specific merchandise referred to was stolen during the same week that Volume Merchandise Inc. consigned it and shipped it to other individuals. At that early stage of the investigation, it would have been impossible for them to know of their own knowledge whether or not the merchandise had reached its legitimate destination. A common sense reading of the affidavit does reveal the requisite probability of criminal activity that is the standard of probable cause. Beck v. Ohio, supra.
The Court has decided that the affidavit was sufficient on its face. Nevertheless, the defendants next contend that the information included in the search warrant affidavit to convince the U.S. Magistrate that there was probable cause to believe the Wolfes were dealing in stolen merchandise, was so untrue and misleading as to invalidate the search warrant.
At the hearing on Motion to Suppress, the affiant, F.B.I. Agent Ramsey, stated that he was in charge of the investigation of Stanley and Nathan Wolfe. Agent Ramsey secured a Court Order permitting a tap on the Wolfes' telephones and he was in regular contact with the monitoring agents in order to ascertain whether there was anything passing over the telephones that would indicate that criminal activity was going on. Agent Ramsey determined which of the intercepted calls should be transcribed for possible use in Court.
The section of the affidavit in support of the search warrant which is attacked by the defendants, appears on page five and states as follows:
"On March 1, 1973, electronic surveillance revealed that an individual named Middleton spoke with Stanley Wolfe. Middleton identified himself as calling from S.E. Nichols and Company. Middleton told Wolfe that FBI agents were making inquiry at their Harrisburg, Virginia Store regarding certain merchandise that came from a hi-jacked truck. Middleton told Wolfe he thought the shipment had come from Stanley Wolfe. Wolfe told Middleton he could not recall having sold that brand to Middleton. Afterward, Stanley Wolfe called an individual named Nate and advised him of the conversation with Middleton. Nate told Stanley he could not remember selling the particular brand in question to S.E. Nichols and Company. Stanley Wolfe told Nate that Middleton said if the FBI came to Nichols, Middleton would show them the records. Stanley Wolfe said that 'We will just deny it '. Nate said 'That's right but the only thing is, I don't ...