317 F.2d 173 (D.C. Cir. 1963), 17395, Schoeneman v. United States

Docket Nº:17395, 17396.
Citation:317 F.2d 173
Party Name:Harry Carl SCHOENEMAN, Appellant, v. UNITED STATES of America, Appellee. Garlan Euel MARKHAM, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 04, 1963
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 173

317 F.2d 173 (D.C. Cir. 1963)

Harry Carl SCHOENEMAN, Appellant,

v.

UNITED STATES of America, Appellee.

Garlan Euel MARKHAM, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 17395, 17396.

United States Court of Appeals, District of Columbia Circuit

April 4, 1963

Argued March 7, 1963.

Page 174

Mr. James J. Laughlin, Washington, D.C., for appellant in No. 17, 395.

Mr. John F. Doyle, with whom Mr. William R. Rafferty, Washington, D.C., was on the brief, for appellant in No. 17, 396.

Mr. George B. Searls, Atty., Dept. of Justice, with whom Mr. Robert S. Brady, Atty., Dept. of Justice, was on the brief, for appellee.

Mr. Kevin T. Maroney, Atty., Dept. of Justice, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit judges.

WRIGHT, Circuit Judge.

Appellant Schoeneman was a small business procurement specialist in the Navy Department. Appellant Markham was a self-employed manufacturers' representative for smaller companies seeking Government contracts. In July, 1960, Schoeneman and Markham formed Washington Procurement Consultants for the purpose of representing small businesses interested in dealing with the United States Government, utilizing Schoeneman's inside information on Navy procurement. In the course of carrying on this business, Schoeneman supplied Markham with many classified documents dealing with future purchases by the Navy Department. In an attempt to interest one Heins in retaining Washington Procurement Consultants as his company's representative in Washington, Markham, on February 15, 1961, took Heins to his home and displayed to him the classified documents which Markham possessed. Unfortunately for appellants, Heins promptly passed this information on to the Federal Bureau of Investigation.

On June 2, 1961, an FBI agent appeared before a United States Commissioner and applied for a search warrant for Markham's home. The warrant was granted and the search revealed a plethora of highly incriminating evidence. Markham and Schoeneman were indicted and tried jointly. Markham was convicted of bribing a Government official. 1 Schoeneman was convicted of accepting a bribe 2 and converting Government property. 3 Both were convicted of conspiracy to commit the three specified offenses. 4

Appellants' chief contention on appeal is that the fruits of the search of Markham's home should have been suppressed because there was insufficient showing of probable cause on June 2, 1961, to justify issuance of a search warrant. 5 The commissioner issued this search

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warrant in reliance upon two affidavits. 6 The first affidavit, signed by an FBI agent, alleged that a 'confidential informant, who formerly was an employee of the Department of Justice and the Treasury Department of the United

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States, and who is now a business executive, and who is believed to be reliable, ' had 'furnished an affidavit to a special agent of' the FBI stating that he had seen certain Government documents in Markham's home on February 15, 1961, 107 days prior to the date of application for the warrant, June 2, 1961. 7 It was further alleged that the documents were of a type which could not legally have been in Markham's possession. The second affidavit, signed by ONI Agent Kingsbury, merely alleged that he had observed a meeting between Markham and the unnamed informant described in the first affidavit on February 15, 1961.

The question of probable cause sufficient for the issuance of a search warrant is, of course, directed in the first instance to the commissioner. But where, as here, the commissioner's judgment is predicated solely on affidavits, a court is not relieved from making its own judgment as to whether the affidavits provide a 'substantial basis for him to conclude that (the evidence was) probably present in the (home).' Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). Applying this test, Judge Lord, in another proceeding, 8 has already held the search warrant in suit here invalid. We agree.

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Most striking about the evidence disclosed in the affidavits in this case is the delay of 107 days in applying for a warrant. 9 In determining probable cause for the issuance of a search warrant, time alone, of course, is not controlling. 10 However, we cannot overlook the fact that the Government could cite, and we could find, no case which sustained a search warrant issued more than 30 days after finding of the evidence which constituted the basis for the search. Chief Justice Hughes stated the controlling principle very succinctly:

'* * * The proceeding by search warrant is a drastic one. Its abuse led to the adoption of the Fourth Amendment, and this, together with legislation regulating the process, should be liberally construed in favor of the individual. (Citing cases.) * * * While the statute does not fix the time within which proof of probable cause must be taken by the judge or commissioner, it is manifest that the proof 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.' Sgro v. United States, supra, Note 9, 287 U.S. at 210, 53 S.Ct. at 140. 11(Emphasis added.)

Thus the critical question here is whether the affidavits when presented to the commissioner gave probable cause to believe that the Government documents were still no the premises. The Government relies quite heavily upon the nature of the conspiracy ultimately revealed to show that it was entirely probable that the books seen on February 15 were on the premises on June 2. However, the elaborate plot later developed is not described in the affidavits. It is merely alleged that certain books were seen in Markham's house. There is no allegation that the books had not been moved in the intervening three and one-half months or, indeed, that Markham himself had not moved. To support a search warrant the proof supplied 'must speak as of the time of the issue of (the) warrant. The commissioner has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the * * *...

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