The opinion of the court was delivered by: METZNER
Petitioner is the owner and was in control of the premises at 438 South Fifth Avenue, Mt. Vernon, New York. He has moved pursuant to Fed.R.Crim.P. 41(e) for the return to him and the suppression as evidence against him of certain property seized at the premises.
On May 8th, 1962 a search warrant for the premises was issued by the Commissioner based upon an affidavit executed by a Special Agent of the Internal Revenue Service. That affidavit stated that the agent had reason to believe that there was concealed on the premises gambling paraphernalia 'including, but not limited to, policy slips, horse-racing slips, scratch sheets, and money, which are designed and intended for use as a means of committing a criminal offense, to wit, the business of accepting wagers and receiving wagers in violation of Title 26, United States Code, Sections 4401, 4411, 4412 and 7272.'
The affidavit then concludes with the statement that the facts tending to establish the grounds for issuance of the warrant were 'oral statement made to your deponent and investigations made by your deponent during the course of his official duties, including personal observations of gambling paraphernalia in the premises.'
Petitioner claims that the warrant is invalid because of deficiencies in the supporting affidavit. The claimed deficiencies are the absence of a specific allegation that the special tax as provided by section 4411 had not been paid, and the absence of a specific allegation of a failure to register as provided by section 4412. Further, it is claimed that the facts stated in the affidavit to show probable cause are insufficient because references to investigations made by the deponent, without more, are meaningless, as are references to oral statements of others, without more. It is claimed that the substance of these investigations and oral statements should be set forth, including a statement that the official records reveal the failure to pay the tax and to register. Finally, the petitioner claims that reference to 'gambling paraphernalia' without further details is insufficient.
In Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958), the complaint upon which the warrant of arrest was issued stated:
"The undersigned complainant * * * being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code." 357 U.S. at 481, 78 S. Ct. at 1247.
The sufficiency of the warrant was attacked on two grounds, the first being that the complaining officer relied exclusively upon hearsay information, and the second being that the complaint recited no more than the elements of the crime charged. The Court pointed out that the language of the Fourth Amendment requiring a showing of probable cause, applies to arrest as well as search warrants.
The Court said that the purpose of the complaint is to enable the Commissioner to determine the existence of probable cause, and he must judge for himself the persuasiveness of the facts as they appear on the fact of the complaint. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. The Court left open the question whether a warrant may be issued on hearsay information. However, the complaint was held to be insufficient since it contained no affirmative allegation that the affiant spoke with personal knowledge of the matters alleged. The complaint did not indicate any sources for the deponent's belief and did not set forth any other sufficient basis upon which a finding of probable cause could be made.
In DiBella v. United States, 284 F.2d 897 (2d Cir.1960), vacated with instructions to dismiss the appeal, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962), the complaint requesting the arrest of the petitioner stated:
'That upon information and belief, the defendants, Mario DiBella and Samuel Panzarella, did on September 10, 1958, at Jackson Heights, Long Island, New York * * *unlawfully sell, dispense and distribute a narcotic drug, to-wit: approximately one ounce of heroin hydrochloride, a derivative of opium, which said heroin hydrochloride was not in or from an original package bearing tax stamps required by law * * *.
"That the source of your deponent's information and the grounds for his belief are your deponent's personal observations in this case, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics." 284 F.2d at 898.
The court held that the complaint was deficient in not setting forth the sources of the information or the grounds for the belief of the affiant. In referring to the 'basis' of the affiant's belief, the court said:
'Such a shotgun, all-encompassing enumeration is no better than none at all. There is no indication of what he had personally observed, what he had heard from others or what he learned from the reports and records of the Bureau of Narcotics. * * * The complaint is no better than that in Giordenello v. United States, and the warrant is invalid for the same reasons.' 284 F.2d at 900.
In United States v. Interbartolo, 192 F.Supp. 587 (D.Mass.1961), the complaint stated that Richard Roe was engaged in the business of accepting wagers as defined in 26 U.S.C. § 4421 and receiving wagers for or on behalf of a person liable for the tax on wagers imposed by 26 U.S.C. § 4401, having failed to pay the occupational tax required by 26 U.S.C. § 4411, owing for the year ending June 30th, 1960; in violation of 26 U.S.C. § 7203. The complaint ...