The opinion of the court was delivered by: COOLAHAN
Defendant Robert Nilsen is charged with four (4) violations of 18 U.S.C. § 1461
(mailing obscene matter). Indictment No. 79-325, Counts I-IV. Presently before the Court is defendant's motion to suppress evidence seized by the Government during searches authorized by warrants issued by United States magistrates. Rules 12(b), 41(f), Federal Rules of Criminal Procedure.
Some preliminary explanation sets the stage for decision. A total of seventeen (17) search warrants relevant to the instant motion were issued by two different United States magistrates.
The fifth search warrant, chronologically speaking, authorized the search of defendant's home and seizure of certain things if found therein. The first three warrants authorized the search and seizure of mail found in defendant's post office box. The fourth search warrant authorized a search of defendant's automobile.
With minor variations not material here, a review of the seventeen warrants discloses that each succeeding search warrant affidavit recounts virtually verbatim the affidavit in support of the preceding warrant, and additionally sets forth the results of the preceding search.
The parties have urged that I focus on the warrant authorizing a search of defendant's home (the fifth warrant), apparently because most, if not all, of the relevant evidence, was seized by the Government there. If the search warrant for defendant's home (the fifth warrant in time) and its execution is held unconstitutional, defendant argues the subsequent warrants will fall as well. In view of my unfavorable disposition of this motion, I need not and do not reach that point. Nevertheless, at the outset, the Court expresses its appreciation to counsel for both parties for their constructive efforts to narrow the issues presented.
The Court takes the facts pertinent to this motion from the affidavit of Postal Inspector Bruce Gentile which was filed with the United States magistrate in support of the application for the warrant authorizing search of defendant's home (the fifth warrant), which is reprinted in full in the Appendix to this Opinion (hereinafter "Gentile Aff., App.").
Defendant advances essentially four contentions in support of his suppression motion, two with respect to the search warrant affidavit and two with respect to the warrant itself. As to the former, he urges that the affidavit does not support the magistrate's finding of probable cause to search defendant's house in that it is based upon stale information and uncorroborated hearsay. As to the latter, defendant argues that the warrant authorizes seizure of so many "things" that it is tantamount to a "general" warrant proscribed by the Fourth Amendment,
and further urges that the warrant fails to scale the higher standard of "reasonableness" attending upon the search and seizure of materials arguably protected by the First Amendment. I shall address each of defendant's arguments Ad seriatim.
II. THE SEARCH WARRANT AFFIDAVIT
Defendant's first argument rests upon his contention that the affidavits of Postal Inspector Gentile, and in particular, the fifth search warrant affidavit, were grounded upon stale, dated information. As such, he reasons, the affidavits do not demonstrate probable cause since the magistrate must base his finding upon information showing probable cause at the time of the application.
The touchstone of analysis is of course the language of the Constitution itself. The Fourth Amendment guarantees
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Defendant is unquestionably on firm ground when he states "that there must be a sufficient basis (for a magistrate to conclude) that probable cause as alleged in the affidavit exists at the time" the warrant is issued. Def. Br. at 10. See also Letter from defendant's counsel to the Court (Dec. 17, 1979). As the Supreme Court stated nearly a half-century ago:
"(It) is manifest that the proof
(before the magistrate) must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case."
Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932). See generally Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1960).
Probable cause, of course, deals with probabilities. In these circumstances, it means evidence, though not necessarily admissible, as would persuade a man of reasonable caution to believe that an offense was or is being committed and that evidence of assistance in securing an apprehension or conviction of the perpetrator likely will be found in the place(s) to be searched. See Rule 41(b), Federal Rules of Criminal Procedure. See also Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), Quoting Locke v. United States, 11 U.S. (7 Cranch.) 339, 348, 3 L. Ed. 364 (1813); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
Defendant's central factual argument concerning staleness relates to the first series of search warrants executed on CRS Color Lab envelopes (Government Br., Ex. A-C). Within the affidavit in support of the first search warrant, however, (as recounted virtually verbatim in paragraphs 1-8(b) of the Gentile Aff., App., in support of the fifth warrant), there is evidence upon which the magistrate could independently discern a pattern of continuing activity on defendant's part beginning in early 1976 and continuing up to August-September 1979.
A brief synopsis of the affidavit belies any conclusion to the contrary. It begins in 1976 with reports of interviews with employees of GAF Photo Service revealing repeated mailings of negatives, at least some of which the magistrate could reasonably conclude were obscene. Gentile Aff., App., PP 2, 3(2)-(3). Confirmatory of the ongoing nature of defendant's alleged activities were the series of mailings between the defendant and American Photo in Philadelphia during 1978. Also significant is the note allegedly from defendant to American Photo contemplating future "order(s)". Interviews with employees of CRS Color Lab during March through August 1979 further corroborate the probability that defendant was continuing to violate the applicable statute. Gentile Aff., App., PP 5-6. Finally, from August 31, 1979 until just before the issuance of the fifth search warrant on September 12, 1979, Inspector Gentile's affidavit disclosed a series of mailings to defendant's post office box. A search pursuant to the first, second and third warrants of the items contained therein revealed a "series of photographs of young boys with their shirts off, posing and flexing their muscles. One photo depicted Nilsen standing in a bikini brief with an adolescent girl kneeling next to him with her hand near his crotch." Gentile Aff., App., P 8. Even if, as seems likely, these photographs are not obscene, nevertheless they far from negate probable cause.
The timeliness of probable cause cannot be assessed in a factual vacuum. Rather, timeliness and its converse, staleness, must be measured by the Nature and regularity of the allegedly unlawful activity.
"Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant."
United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), Quoted in United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973).
Questions of timeliness require "review on a case-by-case basis." United States v. Harris, supra, 482 F.2d at 1119. Here the magistrate could reasonably conclude that defendant had been engaged in on-going violations of the applicable statute over a three-year period. Even more importantly, he could independently determine from the affidavit that "there was no reason to believe that this operation had ceased." United States v. Forsythe, 560 F.2d 1127, 1132 (3d Cir. 1977). "Considering the nature of the items named in the (fifth) warrant, it was reasonable to expect that they would remain in defendant's possession and on his premises for some period of time, at least for a month." United States v. Matthews, 572 F.2d 208, 209 (9th Cir. 1977) (Per curiam ) Citing Andresen v. Maryland, 427 U.S. 463, 478-79 n. 9, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).
I therefore reject defendant's argument that the observations contained in Inspector Gentile's affidavit were too stale to establish probable cause at the time of issuance of the fifth search warrant. "It was certainly reasonable for (the) magistrate, concerned only with a balancing of probabilities, to conclude that there was a reasonable basis for a search" of defendant's home. United States v. Harris, 403 U.S. 573, 579, 29 L. Ed. 2d 723, 91 S. Ct. 2075 n. *, 403 U.S. 573, 91 S. Ct. 2075, 2080, 29 L. Ed. 2d 723 (1971).
B. Uncorroborated Hearsay
For his second argument, defendant asserts that the search warrant affidavit is defective in that it is based in part upon uncorroborated and unreliable hearsay. Specifically, he argues that the second-hand statements of employees of the photo developing concerns, Gentile Aff., App., PP 2-3, 5-6, 8A-9, cannot be credited because the affiant did not set forth the underlying circumstances from which one could reasonably infer the declarants' reliability and the basis for the declarants' observations. In the absence of information establishing a "substantial basis" for crediting the hearsay contained in Inspector Gentile's affidavit, defendant argues, the affidavit is insufficient on its face, Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. ...