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January 10, 1955

George BELL et al.

The opinion of the court was delivered by: LAWS

Eighteen defendants have been charged in a thirty-one count indictment with conspiracy to commit offenses against the United States under 18 U.S.C. § 371, and with violations of the lottery laws of the District of Columbia, D.C.Code, Title 22, §§ 1501, 1502, 1505, 1951 ed., as amended. Before trial they have filed motions to suppress evidence and for return of property, to inspect documents and for statements of witnesses, for severance, for a bill of particulars, and to dismiss the first count of the indictment and for other appropriate relief. At the hearing the motion to dismiss was denied. This opinion deals with the other motions.

I. Motions to Suppress Evidence and to Return Property

 On the basis of a nine-page affidavit by police officers describing their observations of various persons and premises on twenty-eight days between November 16, 1953, and February 1, 1954, there were issued and executed on February 3, 1954, certain arrest warrants and five search warrants for the following premises in the District of Columbia:

 41 L Street, N.W. (entire premises), occupied by Bossy Glover;

 2126 10th Street, N.W. (entire premises), occupied by Bernie King and Janie E. Owens;

 1628 O Street, N.W. (entire first floor), occupied by Jewel C. Miller and Benjamin T. Lewis;

 54 M Street, N.W. (basement, janitor's quarters), occupied by Oliver Holsey; and

 1304 Gallaudet Street, N.E. (entire premises of Apartment 201), occupied by George Bell.

 Defendant occupants of the premises have moved to suppress evidence and for return of property seized under the search warrants, alleging violation of Constitutional rights in that the search warrants were insufficient in law, were improvidently granted, were defective upon their face, were not based upon adequate legal probable cause, and were illegally executed.

 It is an unreasonable search and seizure that is condemned by the Fourth Amendment. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653; Harris v. United States, 1947, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399; Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543. The law allows crime to be reached even in the privacy of one's own quarters upon a proper showing. Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436. The test of reasonableness is whether there was probable cause for the search: the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information must be sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. The proper showing required is that which is necessary to satisfy a neutral and detached magistrate, not that of a zealous officer acting under the stress of ferreting out crime. See Johnson v. United States, supra; United States v. Lefkowitz, 1932, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877.

 In determining whether there is probable cause for issuance of a search warrant an impartial magistrate is not compelled to ignore what is commonly known to be the usual procedures and operations of offenders in perpetrating the type of crime alleged. The law does not require that there be legal evidence sufficient for conviction. Brinegar v. United States, 1949, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879; Washington v. United States, 1953, 92 U.S.App.D.C. 31, 202 F.2d 214, certiorari denied 345 U.S. 956, 73 S. Ct. 938, 97 L. Ed. 1377, rehearing denied 345 U.S. 1003, 73 S. Ct. 1130, 97 L. Ed. 1408. The Fourth Amendment does not deny law enforcement officers the support of the usual inferences which reasonable men will draw from evidence. Johnson v. United States, supra. The probabilities involved in probable cause '* * * are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, 338 U.S. at page 175, 69 S. Ct. at page 1310, 93 L. Ed. 1890. The criterion of reasonableness of the search depends upon the particular facts and circumstances -- the total atmosphere of the case. United States v. Rabinowitz, supra.

 This is not a case where overzealous officers have taken matters into their own hands and in the unrestrained exercise of their discretion have invaded the privacy of a residence, rather than pursuing orderly established procedures under the 'aegis of judicial impartiality' where full opportunity was present. Cf. United States v. Jeffers, 1951, 342 U.S. 48, 72 S. Ct. 93, 95, 96 L. Ed. 59; McDonald v. United States, 1948, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153; Johnson v. United States, supra. Here the officers did not act recklessly upon mere information, but cautiously established a watch over the activities of the suspect and those who came into contact with him to determine whether a pattern of behavior was disclosed conforming to the customary procedures required in the operation of a numbers lottery. Cf. Mills v. United States, 1952, 90 U.S.App.D.C. 365, 196 F.2d 600, certiorari denied 344 U.S. 826, 73 S. Ct. 27, 97 L. Ed. 643. Their observations and conclusions were submitted in detail under oath for scrutiny by the United States Commissioner, authorized to issue warrants of arrest and search. This in itself is a factor to be considered in testing whether the search was reasonable. See United States v. Rabinowitz, supra.

 In this case, the officers had personal knowledge that the janitor's quarters in the basement of 54 M Street, N.W., were being used in the operation of a lottery, an undercover police officer having made a series of number plays there on ten different days with various persons who recorded them in a regular numbers book. A complaint was received by the officers that one Bossy Glover was writing and picking up numbers in the unit block of M Street, N.W., where these quarters were located. On the basis of this knowledge and information, coupled with observations that Glover regularly visited these quarters, as well as other residences on a regular circuit, the officers were justified in concluding Glover was in fact a numbers 'pick-up man'. This conclusion was fortified by the significance of the time of day, between 1:30 p. m. and 2:30 p. m., when Glover would make his tour, corresponding to the time of day when numbers are customarily picked up. It was Glover's practice to return to his residence at 41 L Street, N.W., after completing these rounds, stay about five minutes, then come out, meet one James Davis, a known numbers operator, a paper bag would change hands or they would drive off together. It is not without reason for the officers to infer that late numbers plays were being received at Glover's home just before the close of the day's operation. Drawing on their experience, the officers could note that pick-up men regularly return the day's winnings to successful betters on the next day when other numbers were picked up, indicating they would be kept at the pick-up man's residence until distribution.

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