362 F.2d 477 (9th Cir. 1966), 20187, Travis v. United States

Docket Nº:20187.
Citation:362 F.2d 477
Party Name:Roy Joseph TRAVIS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 14, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 477

362 F.2d 477 (9th Cir. 1966)

Roy Joseph TRAVIS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20187.

United States Court of Appeals, Ninth Circuit.

June 14, 1966

Page 478

Joel J. Bellows, San Francisco, Cal., for appellant.

Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, POPE and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge:

Roy Joseph Travis appeals from a judgment of conviction, and sentence, for a violation of section 2(c) of the Narcotic Drugs Import and Export Act, 70 Stat. 570 (1956), 21 U.S.C. § 174 (1964).

On February 11, 1965, shortly before sunset, Travis, travelling alone, landed a rented Canadian-registered 'Mooney' aircraft at the airport in Yuba City, California. He had the airplane's gas tank filled, parked the aircraft 'on the line,' locked it, and left for town. A few minutes before 9:00 o'clock that night, federal narcotic agents and custom agents arrived at the airport. They placed the plane under surveillance, and between that time and 7:00 o'clock the next morning obtained a search warrant.

No one entered the plane while it was under surveillance. When Travis returned to the airplane that morning, the search warrant was served upon him. Producing a key, Travis unlocked the aircraft. Almost a pound of heroin, out of sight under the control panel, was found by the searching agent. An indictment was returned against Travis. His pretrial motions for suppression of the evidence and for a bill of particulars disclosing the identity of the informant were denied. The package of narcotics was received at the trial over his objection and the jury returned a verdict of guilty.

Travis argues that the described search and seizure violated his rights under the Fourth Amendment because the affidavit used in obtaining the search warrant was deficient in several respects. One particular in which the affidavit is insufficient, he contends, is the lack of an affirmative allegation of personal knowledge by affiant or by the source of information referred to in the affidavit, that Travis had possession of narcotics at the time in question. He cites Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as holding that an affidavit which does not contain an affirmative allegation of this kind is fatally deficient.

The substantive part of the affidavit under review in Aguilar is quoted in the margin. 1 The Supreme Court pointed out that the affidavit contained no affirmative allegation that the affiant, or his unidentified source, spoke with personal knowledge. Where this is the case, and the affiant indicates that he relied upon the conclusions of an informant, the Court in effect held that the magistrate must be informed of: (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was 'credible' or his information 'reliable.'

Application of these principles in Aguilar led the Court to conclude that the affidavit at issue in that case was inadequate. Application of the same principles in the subsequent case of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, led the

Page 479

Court to accept the affidavit involved in that case as sufficient. This affidavit, set out as an appendix to the Ventresca opinion, consists of several pages and is in great detail. The facts therein alleged were asserted to be based upon observations made by the affiant, and upon information received officially from other official investigators as a result of their observations and investigations. The affidavit described seven different incidents involving an automobile which was utilized in manner tending to indicate that illegal operations were in progress.

In reaching the conclusion that it did in Ventresca, the Supreme Court, at pages 108-109, 85 S.Ct. 941 observed that affidavits used to obtain search warrants must be...

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