The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
This cause comes on for hearing on the motion of the government
to reconsider the October 1, 1981, order of the Court quashing
the search warrant of defendant Eric Rambis' home and suppressing
the evidence seized pursuant thereto. For the reasons set forth
herein, the government's motion is denied.
The Court's responsibility in reviewing a magistrate's
determination of probable cause is to determine whether the
affidavit sets forth facts and circumstances which would lead a
person of reasonable caution to believe that a crime was being
committed, or items relating to a crime were located, in the
place named. Brinegar v. United States, 338 U.S. 160, 175-76, 69
S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); United States v.
Mirallegro, 387 F.2d 895, 898 (7th Cir. 1967). In making such
determination, both magistrates and reviewing courts must avoid
hypertechnical readings of affidavits which must be interpreted
in a "commonsense and realistic fashion." United States v.
Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684
(1965). Nevertheless, we are mindful that the Fourth Amendment to
the United States Constitution protects against unreasonable
searches and seizures by requiring that warrants be issued by
"neutral and detached" magistrates, Johnson v. United States,
333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), supported by
affidavits sufficiently specific to ensure that magistrates do
not act as rubber stamps for the police. United States v. Roth,
391 F.2d 507, 511 (7th Cir. 1967); see Aguilar v. Texas,
378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964). Neither a
magistrate, nor a reviewing court, should have "to use
imagination to supply essential details critical to determining
probable cause." United States v. Karathanos, 531 F.2d 26, 31 (2d
Cir. 1976), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d
1217 (1976). The affidavit in the instant search must be examined
with these guidelines in mind.
On June 20, 1981, agents of the Federal Bureau of Investigation
executed a search warrant at the defendant's residence at 4642
West Jerome Street, Skokie, Illinois. The search resulted in the
seizure of various items, and the defendant was subsequently
indicted and charged with a number of firearms violations under
Title 26, United States Code, §§ 5841 et seq. and §§ 5851 et seq.
The affidavit for search warrant states that Rambis was first
observed by FBI agents on June 18 entering and exiting a number
of stores with Spiro Anast. Anast had previously discussed with
an FBI informant the burning of a building for money, and on June
17 told the informant that the next morning he would meet with
the person who would be making detonating devices for the
proposed arson and obtain the parts and materials needed to make
an electronic detonating device. On June 18, at
11:18 a.m., Anast and Rambis were observed visiting various
hobby, electronics, electrical supply, and sports shops. That
afternoon, Rambis and Anast were observed driving to Anast's
residence, then to a location on Howard Street in Skokie,
Illinois. At this point, the two men were seen exiting the car in
which they were driving, and walking toward the trunk of the car.
The affiant states that Rambis was carrying a brown paper bag
which appeared similar to one which he was seen carrying earlier
when exiting an electronics store. Anast and Rambis opened the
trunk, then Anast was seen closing the trunk and driving away.
Rambis was seen walking to and entering a residence at 4642 W.
Jerome Street in Skokie; however, the affidavit does not state
that Rambis was carrying the brown paper bag at this time.
The instant affidavit would provide probable cause to support
the search warrant if it established that the brown paper bag (or
other contraband or evidence of the alleged arson) was taken into
Rambis' residence or, perhaps, if the affidavit read as a whole
otherwise links Rambis' home to some criminal activity. As
demonstrated below, it does neither.
The first inquiry may be disposed of readily in spite of the
fact that the government would have the Court read the affidavit
as establishing probable cause to believe that Rambis was
carrying the bag into his residence. No such conclusion is
supported by the affidavit. To find probable cause to believe
that the materials which Rambis and Anast had been collecting
throughout the day of June 18 were located at 4642 W. Jerome
Street would indeed require a magistrate to use his imagination
to supply missing details. When taken in conjunction with other
information contained in the affidavit, which we consider below,
although the affidavit may raise probable cause to believe that
the defendant Rambis may have been involved in wrongdoing, it
"raises no more than an anemic suspicion" that the contents of
the paper bag were located in the Rambis residence. United States
v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964).
We must next consider whether probable cause may be inferred
from the facts set forth in the complete affidavit, even though
no direct evidence to link the electronic detonation materials to
the Rambis residence is presented. The Court of Appeals for the
Seventh Circuit has frankly observed that "[t]he quantum of
information needed to support probable cause to search a
suspect's house after the suspect has been linked to a crime is
unclear." United States v. Spach, 518 F.2d 866, 872 (7th Cir.
1975) (citations omitted). However, a series of decisions in the
Ninth Circuit provide some guidance.
In Durham v. United States, 403 F.2d 190, 193 (9th Cir. 1968),
the court makes it clear that the facts supporting a search
warrant must link the criminal items to the place to be searched
because, as the court stated subsequently, "it cannot follow in
all cases, simply from the existence of probable cause to believe
a suspect guilty, that there is also probable cause to search his
residence. If that were so there would be no reason to
distinguish search warrants from arrest warrants . . ." United
States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).
Nevertheless, construing an affidavit in the "commonsense"
fashion that Ventresca requires "may result in the inference of
probable cause to believe that the criminal objects are located
in a particular place to which they have not been tied by direct
evidence." United States v. Valenzuela, 596 F.2d 824, 828 (9th
Cir. 1979), cert. denied, Lizarraga v. United States,
441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979). Facts and
circumstances which the court may properly consider in drawing
this inference include the "type of crime, the nature of
the . . . items, the extent of the suspect's opportunity for
concealment and normal inferences as to where a criminal would be
likely to hide" the property to be searched for. United States v.
Lucarz, supra at 1055. See United States v. Teller,
412 F.2d 374 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1603,
29 L.Ed.2d 118 (1971).
Applying these principles, the Ninth Circuit in Valenzuela,
Lucarz, and in United
States v. Spearman, 532 F.2d 132 (9th Cir. 1976), inferred
probable cause to search a location not tied by direct evidence
to the property sought to be recovered. In Lucarz, a postal
employee was suspected of stealing the contents of a mail pouch.
The affidavit presented in support of a warrant to search the
employee's residence showed that Lucarz was away from the post
office for approximately thirty-five minutes. Given, then, his
limited opportunity to conceal the stolen items, the court deemed
it permissible for the magistrate to infer that Lucarz could have
hidden the items at home but not in a more unusual place.
Furthermore, the court thought that the theft involved "the sort
of materials that one would expect to be hidden at appellant's
place of residence, both because of their value and bulk."
Lucarz, supra at 1055. In Spearman, direct evidence was presented
in the affidavit that the defendant was engaged in the selling of
heroin, and that he was observed in a particular automobile on
numerous occasions. The affidavit also contained the police
officer's assertion that "[i]t is commonplace for dealers of
heroin to have heroin that is packaged for sale in the place
where they live or sell from, in their vehicles or on their
persons." Spearman, supra at 133. Thus, the court found probable
cause to search the automobile to be fairly inferrable despite
the absence of direct evidence or observation tending to show
that heroin would be found in that location. Similarly, in
Valenzuela, the affidavit set forth facts indicating that one of
the defendants had made deliveries to a person known to be a
heroin dealer, and on one occasion, a delivery occurred after
this defendant left his house and drove to the place where the
transaction occurred. While there was no direct evidence that
heroin would be found at this defendant's residence, the
affidavit contained an experienced narcotics officer's statement
that heroin would be found there. The court determined that on
these facts the affidavit was sufficient to permit an inference
of probable cause to search the defendant's house. Valenzuela,
supra at 828-29.
On the facts of the instant case, no similar inference to
support probable cause to search the Rambis residence is
permissible. The affidavit, to be sure, contains statements and
facts which appear to implicate Rambis in criminal activity.
Nevertheless, the facts clearly do not establish a nexus between
the Rambis home and the alleged criminal activity.*fn1
The instant case also differs from the situation in Lucarz
where the suspect had only a few minutes to find a hiding place
for the items sought to be located through a search warrant.
Rambis and Anast made a number of stops on June 18, including a
stop at Anast's house, and the arrest of Anast and his companion
at the target
building was not until late the following afternoon. It further
differs from Lucarz in that there is no particular reason to
believe that the items, due to their bulk or value, would
necessarily be kept in the home. Also, whatever the value to be
placed upon an officer's opinion as to where he expects to find
certain items, unlike in Spearman and in Valenzuela, there is no
statement in the instant affidavit that the officer believes the
items sought — here, electronic detonation materials — are
customarily kept in an arson suspect's place of residence.
Finally, unlike in Valenzuela, there was no direct observation of
the suspect going from his home to the scene of a crime which
would permit an inference that items used in the commission of a
crime were kept at home. Therefore, it would be little more than
pure speculation, not reasonable inference, to conclude from the
affidavit presented to the magistrate in this case that
electronic detonation materials, or in particular, the electronic
detonation materials intended for use in the proposed arson to
which Anast agreed, would be found at the Rambis residence.
The government's petition for rehearing relies primarily on two
First Circuit opinions: United States v. Melvin, 596 F.2d 492
(1979), and United States v. Picariello, 568 F.2d 222 (1978).
Although, like those of the Ninth Circuit, these decisions are
not binding upon this Court, to the extent that they are
probative they are also distinguishable. In Melvin, the affidavit
for search warrant alleged that because of its nature and
characteristics, the bomb involved therein could only have been
manufactured and assembled in a workshop. The First Circuit
stating that "while the question [of the sufficiency of the
affidavit] is a close one, we believe it was permissible for the
issuing judge to infer that evidence or instrumentalities might
be found in appellant's home." In the instant cause, the
affidavit does not suggest that Rambis' home was a bomb assembly
workshop or that it was in any other manner involved in the
offense. To the contrary, the only reference in the affidavit to
Rambis' home is that the brown bag was seen in Rambis' hand
outside his house. The clear inference from the affidavit,
however, is that the bag was placed in Anast's car trunk before
Rambis entered his residence. In Picariello bombs exploded at
several New England public facilities. Highly explosive dynamite,
which was part of a shipment recently stolen, was recovered after
a high-speed chase from a wrecked car in which the defendant was
riding. Defendant was a suspect in this theft as well as the
bombings. Not all the stolen explosives were accounted for after
the recovery from the wrecked auto. A search warrant to recover
the balance of the explosives was issued for defendant's home.
The inherent dangers to the community because of the volatile
nature of the items to be seized obviously were considered by the
Magistrate in issuing the Picariello warrant. The affidavit in
the instant cause suggests no similar scenario of imminent
danger. The items to be seized were not, as they were in
Picariello, stolen explosives which could not otherwise be
obtained lawfully by the defendant. Rather, the items sought to
be seized herein were lawfully purchasable by any citizen at any
hobby or sporting goods store.
It is clear that the United States Supreme Court has construed
the fourth amendment so as to provide greater protections from
searches of homes by law enforcement officials than for similar
searches of non-residences. Thus, in Payton v. New York,
445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court
held that an otherwise permissible ...