The opinion of the court was delivered by: MOTLEY
Defendants, Enrique Monier and Charles Permisohn, have been indicted for a violation under the Gun Control Act of 1968, 18 U.S.C. § 922(a)(1), and for conspiring to violate the same. The provision cited makes the selling of "firearms"
without proper licensing, as required by 18 U.S.C. § 923, unlawful.
Defendants now move (1) to suppress any evidence
which was seized by Government agents from their business premises on March 3, 1970, pursuant to a warrant to search issued by the United States Commissioner; (2) to examine the grand jury minutes; and (3) to have the instant indictment dismissed on the ground that the defendants were denied a preliminary examination as provided for in Fed. R. Crim. P. 5(c).
I. The Motion to Suppress
Defendants' motion to suppress the evidence seized on March 3, 1970, is made on the ground that the search warrant authorizing said seizure was issued by the Commissioner upon an insufficient showing of probable cause. Their specific contentions are two-fold. First, defendants argue that the affidavit for search
submitted in support of the application for the warrant was defective in that it did not state that the starter guns purchased by the informant
were, in the words of the statute "readily . . . (convertible) to expel a projectile . . ." Absent such a specification, they argue, no state of facts warranting an inference that defendants were probably engaged in criminal activity was before the Commissioner. Secondly, they assert that the facts alleged in the affidavit did not constitute a crime. It is their contention that the starter pistols specified were not in fact capable of ready conversion.
The Supreme Court has said that probable cause is deemed to exist "where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." (citations omitted)
Berger v. State of New York, 388 U.S. 41, 55, 87 S. Ct. 1873, 18 L. Ed. 2d 1040, 1050 (1967). With this standard to guide it, the court finds the search warrant in the instant case was valid and the evidence seized pursuant thereto need not be suppressed. The court's reasons follows.
It is true, as defendants contend, that since not all starter pistols are within the purview of the statute in question the affidavit would have been much clearer had it stated in definite terms that the type of starter pistol purchased by the informant was believed to be capable of ready conversion to bulletemitting ability. But the court does not agree with defendants that the failure to so state rendered the affidavit insufficient for two reasons. First, the court thinks it would have been clear to the Commissioner in reading the affidavit that the starter guns purchased by the informant were believed by the affiant to have been of the type for which licensing was required, i.e., capable of ready conversion. Otherwise, why would the affiant have stated that the defendants were not licensed as required by law, and on this basis have asked for a warrant to search for and seize other starter pistols believed held by defendant in violation of law? The conclusion that the gun purchased was believed to be of the type for which licensing was required and, therefore, a "firearm" within the meaning of the statute would have been inescapable. But, more importantly, the court finds that even assuming that the failure to specify the nature of the guns purchased rendered the affidavit defective, the defect would have, in any event, been cured by the contents of the complaint against these defendants which was before the Commissioner for consideration at the same time the affidavit was. The sworn complaint specifically charged that defendant, in violation of 18 U.S.C. §§ 921(a)(3)(A), 2 and 922(a)(1), sold on February 28, 1970, a starter pistol which under the statute constituted a "firearm". The sale of February 28, 1970, is the very sale to the informant mentioned in the search warrant affidavit. The affidavit, if read in conjunction with the sworn complaint is thus cured of any defects which, standing alone, it (the affidavit) might have had. The Second Circuit has, in a long string of cases, sanctioned this pragmatic approach of considering all affidavits before the Commissioner at one time in determining the sufficiency of the allegations contained in any one. United States v. Serao, 367 F.2d 347 (2d Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S. Ct. 899, 19 L. Ed. 2d 1034 (1967); United States v. Bozza, 365 F.2d 206 (2d Cir. 1966); United States v. Markis, 352 F.2d 860 (2d Cir. 1965), vacated on other grounds, 387 U.S. 425, 87 S. Ct. 1709, 18 L. Ed. 2d 864 (1967). See United States v. Averell, 296 F. Supp. 1004 (E.D.N.Y. 1969). This approach is prompted by the Supreme Court's admonition that,
"[if] the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . . Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."
United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).
Defendants' first ground for suppression must, therefore, fail.
Defendants' argument that the guns purchased by the informant were not in fact capable of emitting projectiles goes to the merits of the case. It has never been held that proof such as would be required on trial to convict a defendant need be adduced to support a finding of probable cause. See United States v. Ventresca, supra, at 107-108, 85 S. Ct. 741; United States v. Campos, 255 F. Supp. 853, 856, aff'd, 362 F.2d 1011 (2d Cir.), cert. denied, 385 U.S. 842, 87 S. Ct. 95, 17 L. Ed. 2d 75 (1966). With or without the deference which the Supreme Court has said should be paid by a reviewing court to a Commissioner's findings (Jones v. United ...