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April 22, 1982

UNITED STATES of America, Plaintiff,
Anthony ZUCCO, Defendant

The opinion of the court was delivered by: CURTIN

Defendant in this criminal action is charged with the unlawful possession and transportation of several firearms under 18 U.S.C.App. § 1202(a)(1). He moves now to suppress the evidence seized from his automobile pursuant to a search warrant authorized by Acting New York State Supreme Court Justice Charles J. Hannigan on March 17, 1980. His principal contention is that the affidavits underlying the warrant failed to explain either how the affiants knew the two anonymous tipsters were credible, or how they knew the information was reliable. These omissions, defendant insists, infringed his constitutional rights under the Fourth Amendment to the United States Constitution.

The parties do not disagree about the facts leading to the issuance of the warrant. According to his affidavit, Detective Darrell Eddings of the Niagara Falls Police Department received a phone call from an anonymous man at 9:10 a.m. on March 17, 1980. The caller told him he saw a man put some pistols into the wheel well of a station wagon parked in front of 401 56th Street. A black truck and a black wooden camper were attached by tow to the station wagon. The caller added that the man also had three sub-machine guns and would be gone within an hour. Finally, the caller asserted that this person was the one responsible for recent bombings and threats in the area. Besides this information, Detective Eddings noted that Detective Cardinal told him he had just received a similar phone call.

 Detective Jack Cardinal, also with the Niagara Falls Police Department, stated in his affidavit that he spoke with an anonymous caller at 9:30 a.m. on March 17. The male caller *fn1" told him he had seen two handguns someone was trying to sell. He further told Detective Cardinal that a man and "women" *fn2" were leaving town in a green station wagon with Maine license plates which was pulling a black truck.

 The third and final affidavit of any significance *fn3" was that of P. J. Petrie of the New York State Police. According to Petrie, Detective Cardinal phoned him with the information he had just received from the anonymous caller. In response, Petrie called New York State Trooper James Farrell and Margie Vergy, a toll collector at Grand Island, and asked them to be on the lookout for the green station wagon. When Vergy saw the vehicle a short time later, she called Petrie, who relayed the information to Trooper Farrell. Farrell stopped the vehicles a short distance south of the toll booth. Within 20 minutes of Vergy's phone call, Petrie arrived at the scene. He recognized the driver of the station wagon as Anthony Zucco, a "person of questionable character with numerous arrests" dating back to 1971, including, inter alia, the illegal possession of a weapon and the interstate transportation of stolen goods. Zucco told Petrie that he and his girlfriend, the only two occupants in the car, were headed to Texas. When Zucco refused to consent to a search, the warrant was obtained.

 Just as the parties do not dispute the facts, they do not disagree about the legal principles governing defendant's challenge to the warrant. In Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), the United States Supreme Court established that when probable cause underlying a warrant depends on hearsay, the application must set forth both the circumstances suggesting illegal activity was underfoot and the circumstances showing the tipster was reliable. Defendant maintains the warrant fails the classic test in both respects.

 He insists first that the informers saw only entirely innocent conduct. Because the licensed possession of handguns is legal in New York, he argues, mere evidence of their possession was insufficient to show a crime had occurred or was underway. Consequently, there were no circumstances to justify the informants' belief that defendant was engaged in unlawful activity.

 Defendant's analysis is unconvincing. Contrary to his characterization, the behavior observed by the first phone caller was not necessarily innocuous. It was not unreasonable for the informant to infer that the suspect transferred the weapons to the wheel well of the station wagon, as opposed to the seats or cargo section of the vehicle, to prevent them from being noticed. Additionally, the second informer stated he saw two handguns "someone" was trying to sell, presumably referring to one of the car's occupants. Even assuming the personal sale of handguns is legal, as defendant suggests, it cannot seriously be debated that the circumstances surrounding the alleged attempted sale were, at the very least, out of the ordinary.

 The reliability of the callers' information was supported in other respects as well. The first informant's belief that illicit activity was underway was underscored by his purported knowledge that the man he saw was responsible for other illegal activity. Furthermore, Investigator Petrie recognized the driver of the station wagon as Anthony Zucco, an individual with an extensive arrest history. The affiant's knowledge of the subject's reputation can properly be considered in assessing the reliability of an informant's tip in certain circumstances. United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2081-2082, 29 L. Ed. 2d 723 (1971) (but see footnote 6, infra).

 Finally, the informants' descriptions of their observations were both specific and accurate. They reported in some detail the color and type of vehicles, the people in the car, the Maine license plates, and the time and place they saw the defendant. Defendant correctly points out that the accuracy of a description of innocent details cannot in itself provide the requisite probable cause for a warrant. On the other hand, such accuracy can serve to corroborate the informants' assertions that they witnessed legally questionable conduct, thereby substantiating the reliability of their information. United States v. Gonzalez, 555 F.2d 308, 313 (2d Cir. 1977); United States v. Lace, 502 F. Supp. 1021, 1043 (D.Vt.1980).

 For all these reasons, I am satisfied Judge Hannigan reasonably could have determined that the affiants' information was sufficiently reliable to meet the first prong of the Aguilar-Spinelli formula.

 Defendant stands on firmer ground when he challenges the affidavits for their failure to recite any underlying indicia of the informants' credibility. Neither Detective Eddings nor Detective Cardinal explained why he believed the unnamed man on the other end of the telephone line was telling the truth. Both affidavits are utterly devoid of any express references to the callers' trustworthiness. On their faces, then, the Cardinal and Eddings affidavits patently violate the Aguilar-Spinelli rule that affidavits based on hearsay must include indicators of the sources' reliability.

 In defense of the warrant, the government contends that the affidavits contain an implicit factor of the tipsters' reliability which adequately fulfills the goals of Aguilar and Spinelli, thereby offsetting their ostensible constitutional defects. Specifically, the government maintains that each caller's status as an eyewitness to criminal activity carries with it an intrinsic element of credibility. Unlike the unnamed paid informants treated with caution by the Aguilar-Spinelli Court, eyewitnesses to a crime seldom pass along idle rumor or stand to gain financially from their information. For these reasons, the general rule that the underlying bases of an informant's reliability must be specified in the affidavit does not invariably apply to eyewitness informants, and, according to the government, should not apply here. United States v. Burke, 517 F.2d 377, 380 and n.2 (2d Cir. 1975); see also United States v. Rollins, 522 F.2d 160, 164-65 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976).

 The difficulty with the government's analysis is that neither the Burke exception nor its underlying policy considerations aptly apply to the fact situation presented here. In Burke, the affidavit revealed that the police had both interviewed and obtained a written statement from the informant, whose identity was disclosed. The informant stated he had not only seen the sawed-off shotgun in the suspect's room but had also been told by the suspect that the gun was stolen. Moreover, the informant's ...

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