508 F.

2d 58

UNITED STATES of America, Appellee,

v.
Joseph L. BELCULFINE, Defendant-Appellant.
No. 74-1110.

United States Court of Appeals, First Circuit.

Argued Sept. 10, 1974.
Decided Dec. 6, 1974.

Robert Snider, Boston, Mass., for defendant-appellant.

Alan R. Hoffman, Asst. U.S. Atty., with whom James N. Gabriel, U.S.
Atty., was on brief for appellee.
Before COFFIN, Chief Judge, MOORE * and McENTEE, Circuit Judges.
COFFIN, Chief Judge.

Appellant was convicted in the United States District Court for the District of
Massachusetts of the possession and mailing of a pipe bomb. The bomb,
contained in a package addressed to the Worcester Music Co., exploded in the
South Boston Postal Annex. Investigation by postal authorities revealed that the
explosion had been caused by a home-made bomb charged with black powder,
and triggered by a device wired to attached batteries by means of soldered
circuits. Officials of the Worcester Music Co. told postal inspectors that
appellant had been employed by Worcester as a service manager; that he had
knowledge of electrical circuitry and soldering; that appellant and another
former employee of Worcester were the proprietors of Bell Music and
Amusement Co., against which Worcester had obtained an $80,000 judgment
for breach of a covenant not to compete; and that Bell Music would be apt to
have a workshop equipped to do electrical soldering.

Subsequently, the postal inspectors received a report from the Postal Service
Crime Laboratory that appellant's thumb print had been identified on the inner
wrappings of the parcel which had contained the bomb. The postal inspectors
secured from a magistrate a warrant to search the premises of Bell Music and

Amusement Co. In the affidavit submitted in support of their application for the
warrant, the inspectors recounted the above described results of their
investigation and stated:
3

'12. On several occasions between July 26 and August 8, 1973, we went to the
premises of Bell Music and Amusement Company, Inc., at 1 Pineland Avenue,
Shrewsbury, Massachusetts, looked through the glass window. The premises
consisted of a front office with one desk and file cabinets. To the rear of this
office through a door partially open, we observed a wooden bench and table.'

The present appeal arises out of the refusal of the district court to suppress the
fruits of the search of Bell Music, strands of wire similar to that used in the
construction of the bomb. Appellant contends that the inspectors' representation
that they had observed a wooden bench and table in the Bell Music
establishment was false, that evidence presented at the suppression hearing
made it apparent that they could not have seen what they said they saw, and
that they admitted as much in their testimony at the hearing.1

A little over a decade ago the Supreme Court noted that it had

'. . . never passed directly on the extent to which a court may permit
(examination of the validity of a search warrant) when the search warrant is
valid on its face and when the allegations of the underlying affidavit establish
'probable cause'.' Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct.
825, 827-828, 11 L.Ed.2d 887 (1964).

This observation came amid a slow thaw in the rigidity of the rule which had
long predominated among the circuit courts that judicial scrutiny of the
propriety of the issuance of a warrant could not probe beneath the surface of the
supporting affidavits.2 In several circuits the process of reassessment has
culminated in the adoption of general standards which permit examination of
the accuracy of affidavits underlying a warrant in a variety of circumstances. In
United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), the Seventh Circuit
ruled that a defendant is

'. . . entitled to a hearing which delves below the surface of a facially sufficient
affidavit if he has made an initial showing of either of the following: (1) any
misrepresentation by the governmnment agent of a material fact, or (2) an
intentional misrepresentation by the government agent, whether or not
material.' 489 F.2d at 988.

Evidence should be suppressed, the court ruled, only if after the hearing the
trial court finds the government agent to have been 'recklessly or intentionally
untruthful'. Ibid. Upon such a finding, evidence resulting from a search
pursuant to a warrant based on the untruthful affidavit must be suppressed, the
court held, regardless of whether, absent the misrepresentative portions, the
affidavit still establishes probable cause.3

10

The Fifth Circuit, in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973),
discussed the rule established by the Seventh Circuit in Carmichael, and
adopted a rule which is similar, but marked by two important variations.
Evidence should be suppressed, the court ruled, if the warrant was issued on
the basis of an affidavit containing a misstatement that

11

'. . . (1) was committed with an intent to deceive the magistrate, whether or not
the error is material to the showing of probable cause; or (2) made nonintentionally, but the erroneous statement is material to the establishment of
probable cause for the search.' 489 F.2d at 669.

12

The Fifth Circuit's formulation of the rule, unlike the Seventh Circuit's would
hold a warrant invalid if the underlying affidavit contained a negligent but
unintentional misrepresentation that was material.4 A second distinction
between the rules set forth in the two decisions is that the Fifth Circuit
explicitly requires that a non-material misrepresentation must have been made
with an intent to deceive the magistrate if it is to vitiate the resulting warrant.
The Seventh Circuit's rule seems to contemplate no determination of whether
the affiant intended to deceive the magistrate.5

13

In essence the two rules reflect differing pragmatic judgments of what sort of
misconduct-- negligent or intentional, flagrant or trivial-- can and ought to be
deterred by the suppression of evidence at trial. At what point does the increase
in deterrence effected by an expansion of the Fourth Amendment rights of
defendants become so marginal that it does not warrant the hindrance to
successful prosecution of the guilty which results?

14

'The rule is calculated to prevent, not to repair. Its purpose is clear-- to compel
respect for the constitutional guaranty in the only effectively available way-- by
removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206,
217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

15

We find perplexing the question of the prophylactic value of the exclusion of

evidence secured with a warrant issued in reliance on negligent and material,

but not intentional misstatements. At this stage of development of legal

doctrine, we would hesitate to adopt a position for this circuit on a hypothetical
basis. Suffice it to say that, as we view the record, the question is not before us,
and we imply no views as to the answer.6
16

We find the misstatements at issue in the present appeal non-material. The

testimony and photographic evidence adduced at the suppression hearing
establish conclusively that the statement in the affidavit that 'to the rear of this
office through a door partially open, we observed a wooden bench and table'
was incorrect.7 Excising that paragraph of the affidavit, however, we still find
at least the minimal requirements for probable cause satisfied. The affidavit
truthfully recounted the statements of the Worcester Music Company officials
that they had won a substantial judgment against appellant and Bell Music, that
appellant had electrical wiring skills, and that Bell Music would probably have
a workshop facility. Combined with the information supplied by the Postal
Service Crime Laboratory with respect to the manner of construction of the
bomb and the identification of appellant's thumb print on the wrappings of the
bomb, these facts viewed in a commonsense manner were sufficient to establish
probable cause for a search of Bell Music. United States v. Ventresca, 380 U.S.
102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964); Rosencranz v. United States,
356 F.2d 310 (1st Cir. 1966).

17

That we regard the misstatement in the affidavit as immaterial in the sense of

not being a 'but for essential' of probable cause, however, does not dispose of
the case. The fact that the investigating agents had actually seen a workbench
within the Bell Music premises may have carried great weight with the
magistrate, for it both provided an independent fact supporting a finding of
probable cause, and verified by observation the educated guess given by the
Worcester Music officials, thus strengthening the credibility of all they said. It
changed a marginally adequate affidavit into a solidly persuasive one. A
knowing misstatement of so significant a fact would exhibit exactly that quality
of unscrupled zeal which impelled the adoption of the exclusionary rule.

18

We are sensitive to the fact that allowances must be made for errors in
judgment, observation, or memory on the part of fallible human beings
endeavoring faithfully to carry out the duties of office, sometimes under
conditions of great pressure. But we see no policy reason for overlooking
intentional, relevant, and non-trivial misstatements in an affidavit which could
subject any maker of such, be he an official or a private citizen, to a fine or
imprisonment for perjury under 18 U.S.C. 1621.8 Indeed, policy suggests
particular sensitivity to such misstatements in an affidavit for a search warrant
which is necessarily granted ex parte, and in complete reliance upon the

truthfulness of the statements in the affidavit. The major reliance for

implementation of the Fourth Amendment is a warrant, a judgment of probable
cause, i.e., a conclusion that there exist 'reasonable grounds to believe-- that
criminally related objects are in the place which the warrant authorizes to be
searched, at the time when the search is authorized to be conducted', /9/ by 'a
neutral and detached magistrate . . . (not of an) officer engaged in the often
competitive enterprise of ferreting out crime.' Johnson v. United States, 333
U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
19

Were the judicial response to be merely the elimination of the false statements
and the assessment of the affidavit's adequacy in the light of the remaining
averments, enforcement officers would be placed in the untoward position of
having everything to gain and nothing to lose in strengthening an otherwise
marginal affidavit by letting their intense dedication to duty blur the distinction
between fact and fantasy. We therefore see no supportable alternative to
suppression of evidence obtained pursuant to a warrant based on an affidavit
containing an intentional, relevant, and nontrivial misstatement. We see no
basis for confining this sanction to false statements made with the specific
intent to deceive the magistrate as opposed to false statements merely intended
to 'round out the picture'. We see no danger of frequent frustration of
warrantbased searches and seizures occasioned by challenges based on
intentional misstatements. Such challenges, to be entertained, would have to be
preceded by a showing of falsity of allegation-- a showing presumably not
easily to be made in most cases.

20

Since neither the magistrate, nor the district judge dealt with the question
whether the postal inspectors knowingly misrepresented the facts, we must
remand this case for a hearing on that issue. The hearing should be conducted
by the district judge and, if he determines that the misstatements in the affidavit
were knowingly made, the evidence discovered in the search of Bell Music and
Amusement Company must be suppressed and a new trial granted to appellant.
In the future when a defendant makes a preliminary showing of knowing
misstatements in an affidavit underlying a warrant, a hearing should be
conducted by a judge to determine whether the evidence obtained pursuant to
the warrant should be suppressed.

21

In Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (June 26,
1974), the Supreme Court held that the Federal Magistrates Act, 28 U.S.C. 631639, did not affect the longstanding requirement that evidentiary hearings in
habeas corpus cases be conducted by a judge. The Court found 'nothing in the
text or legislative history of the Magistrates Act' to suggest that Congress
intended to change the requirement.

22

'Rather, both text and legislative history plainly reveal a congressional

determination to retain the requirement. For, although the Act gives district
judges broad authority to assign a wide range of duties to Magistrates, Congress
carefully circumscribed the permissible scope of assignment to only 'such
additional duties as are not inconsistent with the Constitution and laws of the
United States.' 28 U.S.C. 636(b).' 94 S.Ct. at 2848.

23

In Campbell v. United States District Court, 501 F.2d 196 (9th Cir. Aug. 15,
1974), the Ninth Circuit faced the question whether the Magistrates Act
permitted reference of a motion to suppress to a magistrate for findings and
recommendations. Paralleling the Supreme Court's analytical approach in
Wingo the circuit court sought to determine whether before the passage of the
Magistrates Act the laws or Constitution required that a motion to suppress be
heard, in the first instance, by a judge. The court found that unlike habeas
corpus proceedings motions to suppress were subject to no preexisting
requirement that they be heard initially by a judge. See also Weber v. Secretary
of Health, Education, and Welfare, 503 F.2d 1049 (9th Cir. Sept. 13, 1974).
That it is permissible to refer a motion to suppress to a magistrate does not
imply, the court added, that the district judge is relieved of the responsibility of
finally deciding the issues raised at the hearing. Scrupulous care must be taken,
the court stated, that the final adjudication is made by the district court, without
special deference to the findings of the magistrate.10

24

The rule we establish here is not addressed to the general question whether
motions to suppress may be referred for preliminary action to a magistrate. We
limit ourselves to one specific situation, where the veracity of an affidavit
underlying a warrant is challenged. In such circumstances the credibility of
witnesses is so likely to be determinative, and the evidence so delicately
balanced that we see little probability that judicial time would be saved by
preliminary reference to a magistrate. Furthermore, in this circuit we have
relatively few full time magistrates; these deal with a limited number of federal
agents. We see risks to both the defendant and the government in requiring the
same magistrate who believed the challenged statements of government agents
or who has believed them in the past, to hold a hearing to determine if the
agents perjured themselves in obtaining a warrant. Cf. Halliday v. United
States, 380 F.2d 270 (1st Cir. 1967).

25

Judgment vacated; remanded to the district court for further proceedings

consistent with this opinion.

Of the Second Circuit, sitting by designation

*
1

Of the Second Circuit, sitting by designation

The posture of the district court, relative to the issues raised by appellant, is as
follows. The district judge referred the motion to suppress to the magistrate
who wrote a memorandum recommending that the motion be denied. Although
the magistrate permitted counsel for appellant to cross-examine the two postal
inspectors about their observations of the Bell Misic offices, he made no
findings regarding the veracity of the statements made in the affidavit,
indicating instead that he was constrained to look only within the 'four corners
of the affidavit'
The district judge heard brief argument from counsel for appellant, but, stating
that he was concerned only 'with what is in the affidavit', denied the motion to
suppress without findings.
The government argues that appellant made no request for findings, that
Fed.R.Crim.P. 41(e) does not require findings, and that absent such findings we
must affirm the action of the district court if any reasonable view of the
evidence supports it. See United States v. Horton, 488 F.2d 374 (5th Cir. 1973),
cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). Here,
although the government in its memorandum in opposition to the motion to
suppress cited United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), a
leading case permitting examination of the veracity of statements contained in a
probable cause affidavit, neither the magistrate, nor the district court believed it
permissible to delve beneath the surface of the affidavit. Since we hold that the
district court must, in certain circumstances, delve beneath the surface of a
facially sufficient affidavit, it would be improper for us to treat the case as
though the district court had decided that no intentional misstatement had been
made in the affidavit. Thus, this case is distinguishable from Horton, where the
district court did not appear to have misconceived the controlling law.

See, e.g., United States v. Gillette, 383 F.2d 843 (2d Cir. 1967); United States
v. Dunnings, 425 F.2d 836 (2d Cir. 1969); King v. United States, 282 F.2d 398
(4th Cir. 1960); United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971);
United States v. Pearce, 275 F.2d 318 (7th Cir. 1960); United States v. Roth,
391 F.2d 507 (7th Cir. 1967); United States v. Bridges, 419 F.2d 963, 966 n. 4
(8th Cir. 1969); Chin Kay v. United States, 311 F.2d 317, 323 (9th Cir. 1962)
(dissenting opinion); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972)

We accept the Seven Circuit's phrasing as the proper characterization of

'material' in this context-- information which is essential to a showing of
probable cause-- and so use the term throughout this opinion. We reject
appellant's effort to have us accept a definition which would equate 'material' to
relevant to an element of probable cause. Kipperman, Inaccurate Search

Warrant Affidavits As a Ground for Suppressing Evidence, 84 Harv.L.Rev.

825, 829 n. 35
4

The position of the court on the question of the significance of material

misstatements negligently made is rendered somewhat nebulous by a footnote
several pages subsequent to the quoted passage which states that the court does
not reach the question of what degrees of negligence will invalidate a warrant.
489 F.2d at 671 n. 5
Both the Thomas and Carmichael courts discuss the arguments in Kipperman,
Inaccurate Search Warrant Affidavits As a Ground for Suppressing Evidence,
84 Harv.L.Rev. 825 (1971), which advocates the exclusion of evidence secured
with a warrant which depends for probable cause on negligently misstated facts.

The importance of this distinction becomes apparent in the context of the

Thomas opinion. The court found that the affidavit there challenged contained
knowing misrepresentations indicating that the agent's sources had named a
man called Finley in connection with criminal activities described in the
affidavit. In fact the sources had named a man called 'Tee' and the agent had
concluded, on the basis of further investigation, that 'Tee' was Finley. Closely
analyzing the facts, the court held the resulting warrant valid since the agent's
false statements were made in 'good faith', 489 F.2d at 671-672, i.e., with no
intent to deceive the magistrate

Compare United States v. Gonzales, 488 F.2d 833 (2d Cir. 1973), and United
States v. Marihart, 492 F.2d 897 (8th Cir. 1974)

Inspector O'Leary testified that his observation was through a closed drape. 'It
was a quick look, but I looked, and to the best of my knowledge, I saw what
appeared to be a workbench or a table.'
Inspector Peterson testified that he had 'a feeling' that his observation was
through a glass door rather than a window, and that there may have been a
shade on the door which may have been drawn. Photographs introduced into
the record by appellant show that it was not physically possible for the
inspectors to have seen the workshop in the Bell Music offices from either the
door or the window.

18 U.S.C. 1621 reads in part:

'Whoever, having taken an oath before a competent tribunal, officer, or person,
in any case in which a law of the United States authorizes an oath to be
administered, that he will testify, declare, depose, or certify truly, or that any
written testimony, declaration, deposition, or certificate by him subscribed, is

true, willfully and contrary to such oath states or subscribes any material matter
which he does not believe to be true, is guilty of perjury . . ..'
We note that the term 'material' is here used in the broader sense of relevant or
persuasive. See United States v. Wesson, 478 F.2d 1180 (7th Cir. 1973); United
States v. Birrell, 470 F.2d 113, 115 n. 1 (2d Cir. 1972).
9

Amsterdam, Perspectives on the Fourth Amendment (The Oliver Wendell

Holmes Lectures), 58 Minn.L.Rev. 349, 358 (1974)

10

To preserve this allocation of authority the court established the following

rules:
'If neither party contests the magistrate's proposed findings of fact, the court
may assume their correctness and decide the motion on the applicable law.
'The district court, on application, shall listen to the tape recording of the
evidence and proceedings before the magistrate and consider the magistrate's
proposed findings of fact and conclusions of law. The court shall make a de
novo determination of the facts and the legal conclusions to be drawn therfrom.
'The court may call for and receive additional evidence. If it finds there is a
problem as to the credibility of a witness or witnesses or for other good reasons,
it may, in the exercise of its discretion, call and hear the testimony of a witness
or witnesses in an adversary proceeding. It is not required to hear any witness
and not required to hold a de novo hearing of the case.
'Finally, the court may accept, reject or modify the proposed findings or may
enter new findings. It shall make the final determination of the facts and the
final adjudication of the motion to suppress.' 501 F.2d at 206-207.