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February 22, 1984


The opinion of the court was delivered by: Aspen, District Judge.


A special grand jury indicted the twelve defendants in this case on August 17, 1983, for conspiracy, operation of an illegal gambling business and tax law violations related to gambling, under 18 U.S.C. § 371 and 1955, and 26 U.S.C. § 7203. Now before the Court are motions to quash search warrants and suppress evidence filed by defendants Albert Tocco, Joanne Hucek, Robert Hucek, James Kluge and John Hadala. For the reasons set forth below, the defendants' motions are denied.

Defendants challenge the magistrate's findings of probable cause in connection with the search warrants issued for each of their residences and for Tocco's business premises.

A judicial officer, who has considerable experience evaluating affidavits in support of search warrants and the reasonable inferences which flow from the sworn facts, is in the best position to determine whether probable cause exists. United States v. Rambis, 686 F.2d 620, 622 (7th Cir. 1982). After-the-fact scrutiny by courts of an affidavit's sufficiency should not take the form of a de novo review. A magistrate's determination of probable cause is to be paid great deference by reviewing courts, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated. Rambis at 622. Moreover, because of the preference for warrants, a lesser showing may establish probable cause when a warrant is obtained than when a warrantless search is made. United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 (1965). Thus, doubtful cases should be resolved in favor of upholding the warrant. Id.; Rambis at 622.

The Supreme Court recently clarified the manner in which search warrant affidavits are to be evaluated for probable cause in Illinois v. Gates, ___ U.S. ___, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Court articulated a "totality of the circumstances" approach which emphasizes the practical, nontechnical nature of probable cause and which "permits a balanced assessment of the relative weights of all the various indicia of reliability" of the facts presented to the magistrate. Id. 103 S.Ct. at 2328-30. In the end, the standard of probable cause is "only the probability, and not a prima facie showing, of criminal activity." Id. at 2330 (quoting Spinelli, 393 U.S. at 419, 89 S.Ct. at 590). It is against this background that we consider the specific arguments of each of the defendants.

I. Tocco's Motions


Tocco first moves to quash a search warrant dated August 1, 1980, and to suppress evidence obtained in the August 2, 1980, search of his residence. Tocco states a number of reasons why the search warrant affidavit, sworn to by a Special Agent for the Internal Revenue Service ("I.R.S."), lacks probable cause:

  (1) the affidavit contains "double and triple
  (2) the reliability of the government's
      confidential informant was not established;
  (3) descriptions of trash recoveries in the
      affidavit do not specify the premises from
      which the trash was taken; and
  (4) the premises in question are not sufficiently
      connected to defendant Tocco.

A finding of probable cause may rest upon evidence which is not legally competent in a criminal trial, including hearsay. As the Supreme Court held in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusions and his belief that any informer involved was credible or his information reliable. Id. at 114, 84 S.Ct. at 1514.

The hearsay Tocco complains of includes information the affiant received from other I.R.S. agents and a confidential informant. Observations of fellow government agents engaged in a common investigation are plainly a reliable basis for a warrant applied for by one ...

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