Travis v. United States, 20187.

Decision Date10 October 1966
Docket NumberNo. 20187.,20187.
PartiesRoy Joseph TRAVIS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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.

Certiorari Denied October 10, 1966. See 87 S.Ct. 179.

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 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 a 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 tested and interpreted in a common sense and realistic fashion. Where some of the underlying circumstances bearing upon probable cause are detailed, where reasons for crediting the source of the information are given, and when a magistrate has found probable cause, the courts, Ventresca cautions, should not invalidate the warrant by interpreting the affidavit in a "hypertechnical" manner.

In the light of the principles announced and applied in Aguilar and Ventresca, we turn to an examination of the affidavit here in issue, the pertinent part of which is quoted in the margin.2 It will be noted that Travis is correct in stating that this affidavit contains no affirmative allegations that affiant, or any of his indicated sources of information, had personal knowledge of facts tending to show that Travis had possession of narcotics at the time in question. But this does not end the inquiry for, as indicated in Aguilar and Ventresca, where the affiant indicates that he is relying on the conclusions of informants, the affidavit is sufficient if it (1) sets out some underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) alleges some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable.

The source referred to in paragraph 1 of the affidavit was of the belief that each trip Travis made into the United States, including the one which began on February 8, 1965, was for the purpose of acquiring heroin. This conclusion is supported by the source's assertion that Travis is a known "large-scale drug trafficker" who, on prior occasions, has made flights into the United States to acquire heroin. According to the informant, these flights involve travel to the Los Angeles area, avoidance of FAA towercontrolled aerodromes, and stops at remote airports prior to clearing Customs in Canada.

From this pattern of conduct, the source was warranted in his conclusion that Travis would be transporting heroin on this particular trip if it involved travel to the vicinity of Los Angeles and back to Canada. This latter point was verified by information supplied to the affiant by the Federal Aviation Agency and the manager of the Sutter County Airport.

But the assertions of the source with regard to Travis' narcotic activity can be used to support a conclusion of possession only if those assertions qualify as reliable information. This in turn depends on whether there were present here, underlying circumstances from which the affiant could conclude that the information received from the source was credible. The affidavit's validity depends, therefore, on the satisfaction of the second requirement of the test stated above.

We think that the second requirement was met, although with nothing to spare. According to paragraph 1 of the affidavit, the source had concluded that Travis had established a definite pattern or modus operandi for transporting narcotics into Canada; and that this modus operandi would be followed on the trip in question. Circumstances related in the affidavit, coming from other sources — FAA and the manager of the Sutter County Airport — tended to corroborate the conclusions of the source with regard to Travis' trip which began on February 8, 1965.

Thus the source referred to in paragraph 1 described with particularity the aircraft which Travis would be flying. The source advised that Travis' trips for the purpose of acquiring heroin had involved travel to the Los Angeles area, and that Travis frequented non-FAA tower-controlled airports. On this particular trip the FAA advised the affiant that after leaving Medford, Oregon, Travis made no ascertainable stops until an apparent fuel stop at Tehachapi Airport, Kern County, which is near Los Angeles. The stop at Yuba City airport, a comparatively remote aerodrome, comports with the modus operandi predicted by the source. In addition, the airport manager advised the affiant that Travis intended to depart for Canada early on the morning of February 12, thus completing his round trip.

The affiant, by virtue of information obtained from reliable independent...

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  • Gilbert v. United States
    • United States
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    ...sufficient to alert the trial court to a need for further inquiry into the reliability of the information. See Travis v. United States, 362 F.2d 477, 481 (9th Cir. 1966); Williams v. United States, 113 U.S.App.D.C. 371, 308 F.2d 326, 327 (1962). Cf. United States v. Bianco, 189 F.2d 716, 71......
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    ...that it cannot be viewed as establishing an unusual pattern of travel from which illegality can be inferred. Compare Travis v. United States, 362 F.2d 477 (9th Cir. 1966) (defendant established a definite pattern or modus operandi); and Hernandez v. United States, 353 F.2d 624, (9th Cir. (2......
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    ...opinion). 7 Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). 8 See, e.g., Travis v. United States, 362 F.2d 477 (9 CA), cert. denied, 385 U.S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113 9 Aguilar v. Texas, supra 378 U.S. at 109 n. 1, 84 S.Ct. at 1511. 10 S......
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