inference that Giresi and Weingartner maintained some kind of common ownership or consignment relationship with respect to ammunition and firearms stored in the file cabinet in the Bar's office. The Government further suggests that from such relationship the magistrate could reasonably infer that evidence of the conspiracy to violate the above firearms statutes would be found in Giresi's residence.
The Government's first suggested approach does have some merit. However, we need not attempt to uphold this warrant solely on that basis. Instead, as the Government secondly suggests, we focus upon all the facts recited in the warrant affidavit, together with reasonable inferences thereof, in reviewing the magistrate's finding of probable cause that Giresi was: (1) associated in fact with a conspiracy to engage in an enterprise consisting of a pattern of racketeering activities, in violation of 18 U.S.C. § 1962 ("RICO statute"); and (2) a conspirator, in violation of 18 U.S.C. § 371, to violate the firearms statutes specifically described in the warrant.
Probable Cause to Search: Four Ingredients
Probable cause of course concerns probabilities, not absolute or near certainties. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Simply put, probable cause to search means such evidence as would persuade a person of reasonable caution to believe that an offense is or was committed and that evidence of assistance in securing the apprehension or conviction of the perpetrator is located in the place to be searched. See, e.g., United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820, 824, 46 L. Ed. 2d 598 (1976); Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782 (1967); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965); Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). Probable cause to search is founded upon a logical nexus between "four ingredients: time; crime; objects; and place. . . ." 1 LaFave, W., Search & Seizure § 3.7 (1978) (hereinafter "LaFave"). The oft-difficult application of these ingredients belies the relative simplicity of the paradigm. This is demonstrated by our consideration of the interplay of the four ingredients as enumerated below. We need also decide whether or not the warrant described the objects sought with the requisite constitutional particularity.
Crime: Two Conspiracies
The first question is whether the affidavit recites sufficient facts to enable the magistrate to find probable cause that there existed the two conspiracies enumerated on the face of the search warrant: the first to violate the RICO statute, 18 U.S.C. § 1962, and the second to violate the above federal firearms statutes. Affirmative answers are established by a brief review of the affidavit.
The warrant affidavit relates numerous facts depicting ongoing commissions of criminal offenses in and around the Truck Haven Rest.
Many of these acts fall within the statutory definition of "racketeering activities", 18 U.S.C. § 1961(1). For example, in excess of ten acts related in the affidavit are arguably indictable under either 18 U.S.C. § 659 (theft from interstate shipment) or 18 U.S.C. §§ 2314, 2315 (interstate transportation of stolen property). Facts are also recited which are indicative of a continuing loan-shark operation sited in a trailer immediately adjacent to the Truck Haven Rest. These facts are indicia of several violations of 18 U.S.C. §§ 892-894 (extortionate credit transactions). Inasmuch as more than two "racketeering activities" are alleged in the affidavit, it is probable that a "pattern of racketeering activities" existed, 18 U.S.C. § 1961(5). Taken together, these facts establish that there probably existed a conspiracy to engage in an enterprise, 18 U.S.C. § 1961(4), relating to a pattern of racketeering activities, 18 U.S.C. § 1961(5), in violation of 18 U.S.C. § 1962. See generally United States v. Elliott, 571 F.2d 880, 887-90 (5th Cir.), cert. denied sub nom., Delph v. United States, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978).
Facts are also related in the warrant affidavit which are indicative of the existence of a conspiracy, 18 U.S.C. § 371, to violate specific federal firearms statutes as described in the warrant; e.g., 18 U.S.C. § 922(a)(1) ("dealing without a license"); 18 U.S.C.App. § 1202(a)(1) ("felony possession"); 26 U.S.C. §§ 5861(d, e) ("unregistered firearms"). The affiants allege the commission of at least eight separate violations of federal firearms statutes, most of which involved habitues of the Truck Haven Bar and its adjacent trailer. In short, the affidavit recites facts which would convince even the skeptical of the likelihood that these named persons and others conspired to violate the above firearms statutes.
We therefore conclude that the requisite ingredient of "crime" is present, as there is probable cause to believe that there existed: (1) a conspiracy to violate the RICO statute; and (2) a conspiracy to violate the enumerated firearms statutes.
Nexus Between "Objects" and "Place"
We earlier indicated our doubt as to the existence of the requisite crime-objects-place nexus, absent probable cause that Giresi (or the occupant of the search situs) was either associated in fact with the conspiracy to violate the RICO statute or a conspirator to violate these firearms statutes. We now turn to consider whether the affidavit relates sufficient facts to support the magistrate's finding that Giresi was involved in the two conspiracies.
Apparently anticipating that we might chart this line, defendant attempts to deflect us off-course by his contention that "the affidavit on its face shows no probable meeting of the minds between Giresi and others concerning an overall criminal enterprise which implicates the man or his house. . . . At best, Giresi is being accused of "guilt by association', rather than participation in any coordinated criminal act." Defendant's Supplemental Memorandum 13-14. Although defendant's argument is superficially appealing, we nonetheless find it unpersuasive in the case at bar. Fair consideration of all the facts recited in the warrant affidavit, and the reasonable implications and inferences thereof, convinces this Court that the magistrate properly concluded that Giresi was personally involved in both of these conspiracies.
Giresi's position as a co-owner of the Truck Haven Rest, the operational hub of both conspiracies, is, without more, at least suggestive of his association in fact with the conspiracy to violate the RICO statute, 18 U.S.C. § 1962. While it would perhaps delve far into the realm of speculation to uphold the probable cause finding solely because of this fact, we need not decide that particular question today. This affidavit, taken as a whole, contradicts the otherwise equally plausible inference that Giresi might be a "silent" partner in the Bar, uninformed of the criminal activities regularly occurring there. It relates that "George Weingartner . . . conducts the fencing operation on a day-to-day basis, apparently working in conjunction with Jack Giresi." Search Warrant Aff., 2 (emphasis supplied). It would not be "apparent" to the undercover Government Agents frequenting the Bar and personally participating in its illegal firearms and stolen property transactions that Giresi worked with Weingartner on a daily basis unless the affiants had observed Giresi at the Bar on a regular basis. Although "(m)ere presence at the scene of a criminal offense does not (alone) support an inference of guilt," Newsom v. United States, 335 F.2d 237, 239 (5th Cir. 1964),
there clearly "is probable cause to arrest a person who on a continuing basis is present at a place where criminal activity is openly and repeatedly conducted." 1 LaFave, supra, § 3.6.
Also probative of Giresi's probable association in fact with the conspiracy to violate the RICO statute is Agent Luksic's observation in Giresi's apartment of stereo speakers "similar to" the suspected stolen speakers the Agent had previously purchased from Weingartner at the Bar. Although the affidavit does not recite any facts tending directly to substantiate the Agent's conclusory allegation that the speakers he purchased from Weingartner were stolen, the magistrate might have credited the allegation from the bargain sale price at which Weingartner sold the speakers ($ 40.00 for a pair). But see note 4 supra.
The Court also finds unmeritorious defendant's argument that probable cause that Giresi was associated in fact with the racketeering conspiracy must be founded upon direct evidence of a "meeting of the minds". If a "jury is entitled to infer the existence of an enterprise (in violation of 18 U.S.C. § 1962) on the basis of largely or wholly circumstantial evidence," United States v. Elliot, supra, 571 F.2d at 898, a fortiori the magistrate may rely upon entirely circumstantial evidence in determining that Giresi probably was associated in fact with the enterprise whose situs was the Bar co-owned by this defendant. The continuing nature of the criminal activities in the Bar belies any presumption that its owner might be unaware of and uninvolved in these illicit operations. We therefore conclude that defendant Giresi probably was associated in fact with the conspiracy to engage in an enterprise consisting of a pattern of racketeering activities in violation of 18 U.S.C. § 1962.
We have even less difficulty upholding the magistrate's finding of probable cause that Giresi conspired with other named and unnamed persons to violate the enumerated firearms statutes. We agree with the Government that the magistrate could reasonably infer that Giresi and Weingartner maintained some kind of common ownership arrangement with respect to ammunition and possibly firearms. The facts recited in the affidavit which tend to link Giresi with this conspiracy include Weingartner's July 7th statement to the affiant to the effect that the affiant had earlier purchased Giresi's ammunition from Weingartner. The latter's storage of "Giresi's ammunition" in a file cabinet in "his" office also tends to establish two more facts: as the co-owner of the establishment and the subject ammunition, Giresi probably had access to the office and its file cabinet; and, the firearms conspiracy had not terminated. Read in its totality, the affidavit thus provides an adequate factual basis for the finding that Giresi conspired to violate the above firearms statutes. This finding, however does not end the inquiry as to "place." Also requisite to an ultimate determination of probable cause to search is the establishment of an objects-place-time relationship: evidence that the objects sought would then be found in the place to be searched.
Although the 17-page warrant affidavit seemingly paints Giresi as a mere bit player in a Three Penny Opera, we nevertheless conclude that even those with minor supporting roles in this opera's three acts (loansharking, gun dealing and fencing) are likely concealing evidence of the schemes in their respective abodes. But even if we did not think this were probably so, nonetheless we shall endeavor to uphold the magistrate's finding of probable cause in these circumstances. "It may be that . . . alternative readings of the affidavit are equally reasonable, but it is neither our nor the district court's function as reviewing courts to substitute our interpretation of the facts in the affidavit for that of the magistrate." United States v. Hatfield, 599 F.2d 759, 762 (6th Cir. 1979).
This affidavit concededly contains little direct evidence that the items sought in the warrant would be found in Giresi's apartment. Indeed, the only direct link between "place" and "objects" is Agent Luksic's earlier statement that he noticed some speakers in defendant's apartment "similar to" the pair of allegedly stolen speakers the Agent had previously purchased from Weingartner. We doubt that this single, isolated reference would satisfy the magistrate or this Court. But it seems as probable to us as it apparently did to the magistrate (who simultaneously issued several search warrants based on this same affidavit) that even the lowliest of actors in this grand opera would have the items sought in his or her residence. Although Giresi may not have received top or second billing on the marquee, he is not portrayed as a mere stagehand.
Of course 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 . . . .