The Federal Bureau of Investigation obtained a search warrant for the premises at 300 Fisher Street, Pontiac, Michigan, (occupied by one Geneva Williams) alleging that concealed therein was certain property used in connection with an illegal gambling business as defined by 18 U.S.C. Sec. 1955. On May 6, 1971, a search of the location produced bookmaking paraphernalia and approximately $25,900.1 No arrests were made at the time of the raid and no criminal or forfeiture proceedings have been initiated by the United States.2 On May 7, 1971, Geneva Williams, who resides at the searched premises, filed a "Motion to Quash Search Warrant, Suppress Evidence and Return Property." The district court held a hearing and ordered that the motion be denied. This appeal is from that order.

At the outset we take note of a jurisdictional question presented by the appeal. Under 28 U.S.C. Sec. 1291 we may hear an appeal from a "final decision" of the district court. Thus we may not review the denial of the present motion if that denial is interlocutory. If, for example, there is outstanding a forfeiture proceeding, a complaint or arraignment, or an indictment, the denial of a motion is merely an interlocutory proceeding preliminary to subsequent proceedings. As stated by the Supreme Court in United States v. Ryan, 402 U.S. 530, 533, 91 S. Ct. 1580, 1582, 29 L. Ed. 2d 85 (1971):

. . . . We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant. See DiBella v. United States, supra, [369 U.S.] at 131-132, [82 S. Ct. 654, 7 L. Ed. 2d 614.] Denial of review in such circumstances would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession.

Following our ruling in Coury v. United States, 426 F.2d 1354 (1970), we consider the present motion as a motion to return the seized property and conclude that the district court's order was a "final decision."

The appellant contends that the search warrant was unsupported by probable cause first, because the affidavit failed to show sufficient facts to bring the described activities within the purview of the statute allegedly violated and second, because there was no basis for crediting the reports of the two informants. We think only the first contention merits discussion.

The statute allegedly violated is 18 U. S.C. Sec. 1955 (and also Secs. 2 and 371, the aider and abettor and conspiracy statutes respectively). The substantive offense involved here is defined by Sec. 1955:

"(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.

(b) As used in this section-

(1) 'illegal gambling business' means a gambling business which-

(1) is a violation of the law of the State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

(2) 'gambling' includes but is not limited to poolselling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein."

Thus to constitute a violation of Sec. 1955, five or more persons must be involved in an illegal gambling business which remains in continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

The question before us, however, is not the sufficiency of the evidence to support a conviction under the statute, but the sufficiency of the affidavit to show probable cause that the statute was being violated so as to justify the issuance of a search warrant. The pertinent parts of the affidavit upon which the search warrant was based are reproduced below.3

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* * *Thus the affidavit given by an agent of the FBI, with long experience in investigation of gambling offenses, sets forth that an organized numbers gambling operation requires "an extensive network of runners, writers and controllers." Since the affidavit in question here shows that Geneva Williams was involved on April 19, 1971 with at least two other persons in a numbers betting transaction and that she was also observed taking numbers bets both in person and over the telephone sometime during the period of April 28, 1971 to May 1, 1971, we think it reasonable to draw the conclusion that she was engaged in an organized numbers gambling operation of the type described by the FBI agent in the supporting affidavit. Such an operation would require the participation of a large number of other persons. In addition, since Geneva Williams is identified in the affidavit as being involved in two separate transactions separated by as many as nine to thirteen days, we think the magistrate could reasonably conclude that there was probable cause to believe that her operation was a continuing one. Construing the affidavit in its entirety, we find that probable cause was shown that the statute was being violated and accordingly that the search and seizure were not unlawful. We recognize the well settled principle that affidavits for search warrants "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965).

Accordingly, the order of the district court denying the appellant's motion to return the seized property is hereby affirmed.4

KENT, Circuit Judge (dissenting).

I must respectfully dissent. I am not satisfied that the affidavits in support of the search warrant were sufficient to justify the issuance of the warrant. The Fourth Amendment to the Constitution of the United States provides in part: "* * * * no Warrants shall issue, but upon probable cause * * * *." I do not find probable cause in this case.

The tests to be applied to an affidavit for a search warrant are summarized in Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590-591, 21 L. Ed. 2d 637 (1969):

"The affidavit, then, falls short of the standards set forth in Aguilar, Draper, and our other decisions that give content to the notion of probable cause. In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96 [, 85 S. Ct. 223, 228, 13 L. Ed. 2d 142] (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311 [, 87 S. Ct. 1056, 1062, 18 L. Ed. 2d 62] (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108 [, 85 S. Ct. 741, 745, 13 L. Ed. 2d 684] (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271 [, 80 S. Ct. 725, 735-736, 4 L. Ed. 2d 697] (1960). But we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry."

This Court has consistently applied the following standard in determining the existence of probable cause.

"Probable cause exists where the facts and circumstances within the officer's (sic) knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed."

United States v. Nicholson, 303 F.2d 330, 332 (6th Cir.1962). Accord: DiPiazza v. United States, 415 F.2d 99, 105 (6th Cir. 1969); United States v. Gosser, 339 F.2d 102, 111 (6th Cir. 1964).

This case, however, is not one where hearsay statements were involved. United States v. Gosser, supra, and it is not a case where the investigation was triggered by weak evidence. DiPiazza v. United States, supra.

The statute setting forth the crime forming the reason for the search warrant and the affidavit in support of the issuance of the search warrant are set forth in full in the majority opinion and need not be repeated here.

In summary the affidavit sets forth: (1) In February, 1971, an informant observed Elizabeth Allen taking numbers bets over a telephone. The informant claimed that Allen stated she was taking bets for Fred Corr; (2) On February 24, 1971, Allen took a telephone call concerning certain numbers transactions; (3) On April 24, 1971, Fred Corr made a call and received information about a winning number; (4) On April 19, 1971 "Lil" Vinegar called Geneva Williams making a numbers bet which she indicated was made on behalf of "Frank", no last name was given, but the telephone call originated from the same telephone as that used by Frank Dorn; (5) On April 19, 1971, Frank Dorn took a numbers bet over the telephone (there was a court authorized "tap" on the telephone) from an unidentified male person. (6) On one occasion during the period, April 28, 1971 to May 1, 1971, an informant observed Geneva Williams taking numbers bets in person and over the telephone at 300 Fisher, Pontiac, Michigan [the location where the search warrant was executed].

I have no doubt that between April 19, 1971 and May 1, 1971, Geneva Williams was engaged in gambling activity which was a violation of the laws of the State of Michigan.

Some of the material contained in the affidavit relates to other people engaged in gambling activity, but without any evidence or even a suggestion that all of the people named had any connection with any gambling activity on the part of Geneva Williams, or any gambling activity conducted at 300 Fisher, Pontiac, Michigan, the house to be searched. There is a general description of the manner in which the "numbers racket" is conducted from which presumably the Government intends to satisfy the requirement that five or more people were joined with Geneva Williams in violating the provisions of Title 18 U.S.C. Sec. 1955. I cannot accept such a general description as being a sufficient statement of "facts" to form a foundation for a search warrant.

In reality the affidavit establishes that Geneva Williams was engaged in taking numbers bets at 300 Fisher, Pontiac, Michigan; that she was taking such bets on April 19, 1971, on which date she accepted a bet from "Lil" Vinegar, and that "Lil" Vinegar in placing that bet used the same telephone as that used by Frank Dorn to accept bets on April 19, 1971.

I find nothing in the affidavit to establish that the gambling business in which Geneva Williams was engaged involved "five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business." The only evidence in the affidavit which would lead to that conclusion would be the general statements made by the affiant in relation to the manner in which the "numbers racket" was conducted. If we accept such statements as the basis for a search warrant then the mere single statement of an informant that he made an observation of acceptance of numbers bets and the presence of material used for numbers bets would be sufficient to establish a basis for the issuance of a search warrant because of violation of the pertinent statute in that there were "five or more persons who conduct, etc. such business."

The addition of Frank Dorn and "Lil" Vinegar is in my opinion insufficient to establish probable cause to believe that Section 1955 had been violated by Geneva Williams. Even if we were to accept the theory that many people are required in the conduct of the "numbers racket" there are certainly no facts in this affidavit sufficient to establish probable cause to believe that the required "five or more" were involved with Geneva Williams in this case.

I find insufficient facts in the affidavit to establish probable cause to believe that the gambling business in which Geneva Williams was engaged had "been or remains[ed] in substantially continuous operation for a period in excess of thirty days." At most the affidavit established that Geneva Williams was engaged in some aspect of the "numbers racket" during a period which commenced not earlier than April 19, 1971 and continued not later that May 1, 1971. In my opinion the facts recited were insufficient to establish "substantially continous operation for a period in excess of thirty days."

I would reverse the order of the District Court and remand the case for entry of an order requiring the return of the seized property to the appellant.