The opinion of the court was delivered by: Aspen, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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 ...