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United States v. Sultan

decided: July 5, 1972.

UNITED STATES OF AMERICA, APPELLANT,
v.
SAMUAL SULTAN, APPELLEE



Waterman, Hays and Feinberg, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

The Government appeals from an order of the United States District Court for the Eastern District of New York, granting Samuel Sultan's motion to suppress evidence seized from his residence pursuant to a search warrant. We reverse.

Sultan was indicted for knowingly and fraudulently concealing the assets of a bankrupt, in violation of 18 U.S.C. ยง 152 (1970). He is the principal officer of Sultan's Big Discount, Inc., which was adjudicated an involuntary bankrupt on June 8, 1970. On the basis of an affidavit sworn to on January 7, 1971, George M. Hand, a Special Agent of the FBI investigating the case, applied to a United States magistrate for a search warrant. The warrant was issued and was executed the same day. The search resulted in the discovery and seizure of assets of the bankrupt that were being concealed at Sultan's residence and garage. The district court granted Sultan's motion to suppress this evidence on the ground that the warrant was issued without probable cause.

Agent Hand's affidavit recited his belief that "general merchandise and assets of Sultan's Big Discount, Inc." were being concealed on Sultan's property, and it continued as follows:

"The source of your deponent's information and the grounds for his belief are as follows:

1. An involuntary petition of bankruptcy was filed on or about April 15, 1970 . . . by . . . creditors of the said bankrupt Sultan's Big Discount, Inc.

2. Investigation by your deponent which revealed that Samuel Sultan . . . was and still is principal officer of the bankrupt . . . .

3. Information given to your deponent by one Charles Sultan, cousin of Samuel Sultan, that he was told by Samuel Sultan on or about January 5, 1971 that the merchandise and assets of the bankrupt Sultan's Big Discount, Inc. were being concealed from the Trustee in Bankruptcy in the house at 1557 East 21st St., Brooklyn, N.Y., and additionally, in a detached garage on said premises."

I.

The issue on this appeal is whether Hand's affidavit was sufficient to establish probable cause for believing that Samuel Sultan was committing a crime. In deciding this issue we are mindful that probable cause is more readily found to support a warrant than to validate a warrantless arrest or search. United States v. Ventresca, 380 U.S. 102, 106-107, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Jones v. United States, 362 U.S. 257, 270-271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).

The hearsay statement of Charles Sultan, as set out in the third paragraph of the affidavit above, was concededly necessary to establish probable cause. When an affiant seeking a search warrant relies on hearsay,

"the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need ...


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