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U.S. v. Conley

filed: September 16, 1993; As Corrected September 17, 1993.

UNITED STATES OF AMERICA, APPELLANT
v.
JOHN F. "DUFFY" CONLEY; WILLIAM C. CURTIN; SHEILA F. SMITH; JOHN FRANCIS "JACK" CONLEY; THOMAS "BUD" MCGRATH; MARK A. ABBOTT; THOMAS ROSSI; WILLIAM STEINHART; ROBERTA FLEAGLE; ROBIN SPRATT; MONICA C. KAIL; WILLIAM J. REED; JOANNE T. SMITH; KENNETH "RON" GOODWIN; LAWRENCE N. "NEUDY" DEMINO, SR.; CHRISTOPHER "CHRIS" KAIL; JOSEPH A. DEVITA; FRANK GAROFALO; THOMAS D. CIOCCO; MICHAEL SUKALY; PHILLIP M. "MIKE" FARRELL; AMESTOS "NAZ" RODITES; WILLIAM E. RUSIN



On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Cr. No. 91-00178)

Before: Scirica, Cowen and Rosenn Circuit Judges.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

The United States appeals from an order entered by the district Judge suppressing evidence obtained by police pursuant to a search warrant. The district court concluded that the search warrant was not supported by probable cause and suppressed from evidence the fruits of the search. Because we find that the district court applied an unduly narrow standard for evaluating probable cause, and the search warrant is supported by probable cause, we will reverse.

I.

On September 23, 1988, members of the City of Pittsburgh Police Department executed a search warrant for a commercial building located at 930 Saw Mill Run Boulevard in the City of Pittsburgh. Earlier that day, Detective John Bosetti presented an application and affidavit of probable cause for a search warrant to District Justice Anne Marie Scharding ("the magistrate"). Bosetti, at the time, was involved in an investigation of illegal gambling activity involving video poker machines. The major issue presented in this case is whether the affidavit on its face provided a substantial basis for the magistrate's finding of probable cause. Accordingly, we set forth in full the statements contained in Bosettti's affidavit:

In June of 1988, affiant began an investigation into a gambling operation, involving video poker machines. During this time frame, affiant and other Dets [Detectives] from the Pittsburgh Police Organized Crime Unit, visited over fifty (50) various locations, throughtout [sic] the City of Pittsburgh, that contained video poker machines. Dets were able to play, at random, these poker machines and received cash payments/pay-offs for credits they had accumulated, in fortynine [sic] (49) different locations. During this period, Dets observed numerous cash pay-offs to other individuals that were playing poker machines and had aquired [sic] the set amount of credits needed. A detailed accounting of every location is given in each affidavit for search warrant. The City of Pgh, requires a permit for anytype [sic] of video/mechanical amusement device that is placed inside a particular business and made available to the public. Once the establishment registers, they are given a plaque which must be placed inside the premises so it can be viewed by the public. Dets found that of the 49 locations visited, 42 listed Duffy's Vending Co [sic] as the owner of the video poker machines. Dets then examined the permit application form, from these 42 locations and found that Duffy's Vending Co., lists it's [sic] business address as 930 Sawmill Run Blvd., Pgh, Pa. 15220.

On Sep [sic] 15, 1988, affiant observed a Ford pick-up truck transporting a load, of what appeared to be video devices, covered in black plastic. For intelligence purposes, affiant checked the registration plate, Pa# YC-42550 and found it to be registered to Duffy's Vending Co., 930 Sawmill Run Blvd.

The telephone number, 431-6582, is listed as the telephone number for Duffy's Vending Co., as stated on the application for the City of Pgh license permits. Affiant called this number on Sep [sic] 22, 1988 and found it be answered "Duffy's Vending". Affiant checked the Bell of Pa [sic] yellow pages, both Consumer and Business to Business, but found no listing for Duffy's Vending Co.

On March 16, 1988, John Duffy Conley was found guilty for violating Sec #5513, [sic] of the Pa [sic] Crimes Code, Gambling Devices. John Duffy Conley is listed as the individual owner of Duffys [sic] Vending Co. This conviction was a result of an investigation, inwhich [sic] affiant participated in, that lead to Conleys [sic] arrest for his involvment [sic] in the Slovak Civic Federation of Allegheny County, AKA Slovak Club. In summary, Dets entered the Slovak Club on [sic] various times allowing them to play various machines. They were able to obtain a cash pay-off after accumulating the required amount of credits on the video poker machines.

Based on the above information, affiant concludes that the business address of Duffy's Vending Co., is 930 Sawmill Run Blvd., Pittsburgh, Pa. 15220 and request [sic] that this search warrant be issued in an effort to gain a better insight into the internal works of this gambling operation. Therefore I request that a search warrant be issued.

App. at 42(a)-43.

The magistrate reviewed the affidavit and application, found probable cause to search the building located at 930 Saw Mill Run Blvd., and issued a warrant which authorized ...


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