*2 Ryan, Court in United States v. 402 U. 530, 533, S. 29 L. Patmon, Young Kirk, C., & P. James (1971): Ed.2d 85 Feaster, B. Detroit, Mich., on brief for . We have thus indicated appellant. immediately that review is available Ralph Guy, Jr., Atty., B. U. S. De- denial a motion for the return of troit, Mich., appellee; on brief for Laur- property, seized where there is no Sp. Leff, Atty., ence Dept, U. Jus- S. prosecution against pending criminal tice, Detroit, Mich., of counsel. the movant. See DiBella v. United EDWARDS, Before MILLER AND States, supra, 131-132, [369 U.S.] at Judges. KENT, Circuit [82 S.Ct. Denial 614.] of review in such would circumstances PER CURIAM. might mean that the in Government Investigation The Federal Bureau of definitely property retain the without obtained a search prem- warrant for opportunity for the movant to as ises Street, Pontiac, at 300 Fisher appeal right Mich- sert on his possession. 1. In an affidavit filed 1955(d) provides Wil 2. 18 U.S.C. Sec. motion, appellant liams’ property, including money, claims that used $35,000.00 the FBI seized subject but forced her violation of Sec. 1955 shall be sign receipt indicating only $25,- proceedings forfeiture instituted 915.09 had been purpose. seized. ruling Coury (ii)
Following our five more involves (1970), finance, conduct, F.2d 1354 who manage, direct, present supervise, motion motion consider the con own all or of such busi- to return ; order was ness court’s clude the district a “final decision.” (iii) has been or remains appellant op- contends that substantially continuous *3 by probable unsupported period warrant was for eration a in excess first, failed days gross affidavit thirty cause because the of or has a bring de- to the to facts $2,000 any show sufficient revenue of sin- purview the of gle day. within scribed activities second, allegedly violated and the statute (2) ‘gambling’ is not includes but crediting for there was no basis because poolselling, limited to bookmak- reports informants. We the of two the machines, ing, maintaining slot only merits contention the first think tables, roulette wheels dice and or discussion. conducting lotteries, policy, bolita allegedly is 18 U. The violated statute selling games, or or numbers (and 2 and also Sec. Secs. S.C. chances therein.” conspiracy aider abettor and the and respectively). The substantive a státutes to constitute violation of Sec. Thus persons here is defined Sec. five must be offense involved or more illegal gambling 1955: in an business volved operation which remains in continuous finances, “(a) conducts, Whoever thirty days period or of excess directs, manages, supervises, or owns gross $2,000 sin- revenue of has a gambling illegal busi- all or of an gle day. than fined not more ness shall be $20,000 imprisoned not more than us, however, question The before years, five or both. sufficiency evidence to of the is not the (b) As used this section— statute, under the a conviction ‘illegal (1) gambling business’ sufficiency the affidavit to of but the gambling business means a which that the statute cause show being justify issu as violated so perti (1) law of search warrant. is violation of the ance upon parts political of the affidavit sub- nent of the State repro based con- the search warrant in which it division is ; duced below.3
ducted organized operate Special Agent order an 3. the Federal In 1. am a 3. operation, gambling Investigation, an exten- have been so numbers Bureau runners, years employed and con- writers have been sive network for 2% required. assigned After In- trollers to the Federal Bureau vestigation, Detroit, Michigan Office, bets, to a them over runner turns past years. of the a written record who makes writer 11/2 selected, investiga- including my experience bet, amount the number 2. From offenses, wagered gambling bettor’s identification. I know that tion of form, bets to “policy” recorded their or “num- The writers its most common group wagers betting handles who bers” involves on a three- a controller record digit number, in turn The controllers is determined on the writers. amounts, particu- parimutual figures and total basis of at selected race the bets winning noting on picks larly bet amounts substantial tracks. If the bettor number, then con- times The controller he receive six hundred one number. wager. veys has tabulated While there the data which the amount of his large wagers, is ultimate- The bank “num- bank. central are occasional receiving great ly responsible the bets number bers” racket thrives winning paying bets. small bets. given by think an 1971 to we affidavit Thus the experience agent FBI, long to draw the conclusion it reasonable offenses, organized num- investigation gambling she in an type organized de- bers forth sets agent support- requires scribed the FBI gambling operation “an exten ing operation would runners, affidavit. Such an writers sive network of large require participation of num- controllers.” Since persons. addition, ber of other since question Geneva Wil here shows is identified in the affi- involved on liams was separate davit as involved in two with at least other two many separated betting transactions as transaction mag- days, think nine thirteen also observed she was reasonably istrate tele could conclude and over bets both there believe sometime 1971, 1971, paragraph observed her BETH ALLEN on more than LEN admit casion been leading liable information to the Federal Bureau bets formed me on BETH ALLEN took a at the house.” caller news already left the ALLEN an unidentified female wherein cussed the male while he from a scribed in ing FRANK DORN. over the bet and indicated she tions tiac, Michigan. that 18, WILLIAMS wherein she made a numbers lated half GAR f. The e. An c. b. On d. On a. On 8. I submit Investigation “pick-up FRANK telephone. [*] paragraph from the same for,FRED United States aof man she identified as present “LIL” VINEGAR in saying, that Sections placed he overheard ELIZABETH provide probable indicated phone that: informant, April 19, 1971, same February, 1971, February paragraph 8e at fact that man” had arrived a “She DORN took a numbers bet at the residence located at taking above, least six local telephone May 1, 1971, 1955, that CORR, informant 8b in connection with that 19, she (DORN) disappointment the month had some Code, who has from an unidentified 1971, 8a 371 and 2 told me on a man described as numbers was 150 above, call to GENEVA cause to believe following allega- residence. have been vio- and referred to “LIL” VINE- man as referred of three numbers here acting Wesson, [*] that he had provided “FRANK,” arrests, personally February, bets over call from identified they speaking ELIZA- ELIZA- at, call de- one at speak- years, [*] Title Pon- AL- this and dis- oc- be- (o to be bet bets, bets both already, He occasion WILLIAMS. NUMBER ONE informed me Pontiac, Michigan, vealing asked GENEVA how much GENEVA WILLIAMS VINEGAR called GENEVA WILLIAMS ble information to the Federal Bureau of lance. and casions “owed.” Investigation court authorized wire but tion has been corroborated on several oc- while 750.305, 750.300, 750.157a, NUMBER gan eight arrests. This informant’s informa- approximately two hours after and 707.39. 8a ful court male disseminated the to above were undertaken placed CORR to referred to CONFIDENTIAL I have examined verbatim 9. CONFIDENTIAL h. FRED j. *4 g. i. All the May 1, 1971, through CORR, advised it was 12.” same placed The and United States On Compiled using a call at by physical that on during he GENEVA number to an unidentified April 24, 1971, conduct discussed order, 441 slips, that he observed what he a numbers bet with GENEVA 8i evidence violations of Michi- ONE said phone interceptions CORR, wherein Kuhn, Pontiac, Michigan. paragraph 8g, Later Laws Sections tapes reflecting phone has been April 19, he was at three he and electronic surveil- period April answered “He owe where thought listed interceptions years, leading winning this call currency. pursuant over the unidentified fe- providing INFORMANT INFORMANT FRED CORR 1971, transcript disseminated 300 750.92 that on one paragraphs it was to 24, 1971, FRANK 28, observed 750.301, referred number to law- FRED “LIL” phone. “LIL” knew relia- male, 1971 and call re- 12 to 9,
913
prob-
continuing
(1964);
that affidavits
142]
one.
her
rig-
entirety,
Construing
less
able cause are
much
its
tested
governing
orous
cause was shown
standards than those
we find that
trial,
admissibility
at
evidence
statute was
violated
McCray
Illinois,
300,
[,
accordingly
311
and seizure
v.
386
the search
U.S.
recognize
1062,
1056,
87
unlawful. We
S.Ct.
Draper, and our other decisions 330, (6th Cir.1962). 332 Accord: Di give content to the notion of States, 99, Piazza v. United 415 F.2d 105 holding done, In cause. as we have (6th 1969); Cir. United States v. Gos we do not from retreat the established ser, 1964). (6th 339 111 F.2d Cir. propositions only probability, the prima however, ease, showing, not facie is not one where hearsay criminal activity involved. is the statements were standard of probable cause, Ohio, Gosser, supra, and it is Beck v. United States v. 379 U.S. [, investigation 96 85 not a case where the S.Ct. by supporting bolding required 4. To hold that the Fourth affidavit such proceeding ques- search warrant under the has statute in Amendment. Since no requires specific against appellant tion a direct and in which show- been instituted ing respect necessary with as evi- elements would serve evidence, of the offense and that these elements dence or ns a attention basis by by not be this established in- is called to the observation made reasonable concluding paragraph from its ference the facts and circumstances Court seriously impair Coury States, opinion F. would United effectiveness Further, view, the statute. in our 2d at 1356. triggered by satisfy weak evidence. DiPiazza v. Government intends supra. quirement people or more were that five joined violating Williams setting The statute forth the crime provisions of Title 18 U.S.C. 1955. forming reason for the search war- accept general descrip- cannot such rant and the affidavit tion as a sufficient statement of issuance of the search warrant are set “facts” to form a foundation for a majority opinion forth in full search warrant. repeated need not be here. summary In the affidavit forth: sets reality In the affidavit establishes (1) February, an informant ob- that Geneva taking served Elizabeth Allen taking bets at 300 Pon- telephone. bets over a The informant tiac, Michigan; that she was claimed that Allen stated she was April 19, 1971, on such bets Corr; (2) February for Fred béts On accepted date she “Lil” bet from Vine- telephone Allen took a call con- gar, Vinegar placing “Lil” cerning transactions; certain numbers used that bet the same as that (3) April 24, 1971, On Fred made Corr accept used Frank Dorn to bets on call received information about a April 19, 1971. winning number; (4) April 19, 1971 On nothing I find in the to es- Vinegar “Lil” called Geneva Williams tablish that business engaged making a numbers she indi- bet which Geneva Williams “Frank”, cated was made on behalf volved or more who con- “five given, no last name was but tele- direct, duct, finance, manage, supervise, originated call from same tele- all or business.” own of such Dorn; (5) as that used Frank only evidence in affidavit which April 19, 1971, On Frank Dorn took a would lead would be to that conclusion telephone (there bet over the general af- made statements “tap” was a authorized tele- the manner which fiant relation to phone) per- an from unidentified male If racket” conducted. “numbers accept (6) pe- son. On one occasion such as the basis statements riod, April 28, May 1, 1971, *6 mere warrant then the sin- search informant observed Geneva Williams gle of an informant statement that and over bets acceptance of made an observation of Pontiac, Fisher, at 300 presence mate- numbers bets of Michigan location where the [the rial used for bets would warrant executed]. is- sufficient establish a basis no have doubt that between suance a search warrant because of May Geneva Wil- pertinent violation of the statute that engaged gambling activity liams persons who there “five or more were which was a violation of the laws of the conduct, etc. such business.” Michigan. State “Lil” Some of the material contained of Frank Dorn and in the addition engaged Vinegar my people opinion affidavit relates to other is in insufficient gambling activity, any establish cause to believe but without suggestion Gene- evidence or even a all been violated 1955 had Section accept people any named had connection Even we were to va Williams. gambling theory activity many people are re- Williams, gambling quired “numbers Geneva ac- of the the conduct Pontiac, certainly tivity no conducted facts at 300 racket” there Michigan, establish house to be searched. this affidavit sufficient general description There is cause to believe that quired manner in or more” were involved “numbers racket” “five presumably is conducted from which Williams this case. the with Geneva in the affida- I find insufficient facts probable cause to believe
vit to establish in which Ge- business had “been neva Williams substantially continuous remains[ed] thir- period operation excess estab- days.” ty most At en- lished aspect “numbers gaged in some com- racket” 19, 1971 than earlier
menced not May later and continued opinion facts recited my 1971. “substan- to establish insufficient were period in tially continous days.” thirty
excess Dis- order of reverse I would en- case for remand Court
trict return requiring the try order appellant. SMITH, of the Es Administratrix
Fannie Smith, Deceased, Joseph tate of Plaintiff-Appellant, UGELSTAD, & Defendant-
OLSEN Appellee.
No. 71-1574. Appeals,
United States Court of
Sixth Circuit.
May 8, 1972.