362 F.2d 493 (5th Cir. 1966), 22793, Potter v. United States

Docket Nº:22793.
Citation:362 F.2d 493
Party Name:Robert Lafayette POTTER, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 23, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 493

362 F.2d 493 (5th Cir. 1966)

Robert Lafayette POTTER, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

No. 22793.

United States Court of Appeals, Fifth Circuit.

June 23, 1966

Page 494

S. Gunter Toney, Tallahassee, Fla., for appellant.

Clinton Ashmore, U.S. Atty., Jack Carrouth, Asst. U.S. Atty., Tallahassee, Fla., C. W. Eggart, Jr., Asst. U.S. Atty., Pensacola, Fla., for appellee.

Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

COLEMAN, Circuit Judge:

Appellant was convicted of possession and removal of non-taxpaid distilled spirits in violation of 26 U.S.C., Sections 5205(a)(2), 5604(a)(1), and 5601(a) (12). The conviction stands on the discovery of a quantity of moonshine whiskey by Florida beverage agents as the result of a search, without a search warrant, of an automobile in which appellant was riding. There is no contention that the vehicle was not in appellant's possession and control. A motion to suppress the fruits of the search on the ground that the search was unreasonable was denied and the appellant was thereupon convicted. The appeal presents two questions: (1) Whether there was probable cause for the search and (2) whether it was reversible error to deny revelation of the identity of the informant or informants. For the reasons hereinafter developed, we reverse the conviction with directions that the indictment be dismissed.

I

Whether there was probable cause for any particular search without a warrant is always a judicial question, to be determined after a full development of the relevant, material, competent facts, United States v. Robinson, 2 Cir., 1963, 325 F.2d 391. Each case must be decided on its own facts, Bruner v. United States, 5 Cir., 1961, 293 F.2d 621.

W. A. Dykes, Florida State Beverage Agent, testified that about 5 o'clock one morning he received information from 'a confidential source' that appellant would transport a quantity of non-taxpaid whiskey into Chipley, Florida. The proof, on the motion to suppress, proceeded as follows:

'Q. Had you used that confidential informer prior to that time?

A. Yes, sir, I had.

Page 495

Q. Was he reliable?

A. Yes, sir, he had previously been in the past.

Q. Did you recognize the party's voice on the telephone?

A. Not that I could positively say.

Q. Did the party give you his name?

A. I don't recall whether the party used the name or not.

Q. But did you know who he was?

A. I have got an idea who he probably was.

Q. But he didn't give you his name and you didn't recognize his voice, is that your testimony?

A. I didn't say I didn't know, I said I didn't know for sure. I can make a guess.

Q. Let's see what your recollection is-- what does your recollection tell you now, did the party give you a name?

A. I don't remember his giving a name.

Q. So far as you were concerned this was a stranger giving you this information?

A. No, he said he wanted to keep it confidential because Robert might find out who it was.

Q. So far as you were concerned he was a stranger, you didn't know who this party was?

A. Well, he was talking on the phone and didn't give me a name, so I could not say for sure who it was.

Q. You didn't recognize the voice and you don't know whether or not this party's information was going to be reliable or not, did you?

A. Someone with a voice similar to this man, the man that called, they had given me information on occasions once or twice before this.

Q. But you are not certain that this was the same one?

A. No, no, I could not be positive it was the same man, no, sir, not just by voice.'

The anonymous caller, according to the testimony of Agent Dykes, advised that the liquor car would be a 1957 Mercury, bearing tag number 51W536. The agent went to a point on Highway 77 South of U.S. 90 at Chipley and waited for appellant to come along. According to Mr. Dykes, when the car passed the observation point about 8:30 a.m. it was visibly violating no law. He stated that the only reason for his putting the car under surveillance was the telephone call.

While at the observation point, Officer Dykes said that a second confidential informer came up and advised that he had seen appellant loading empty jugs into the vehicle, which the second informer described. The officer did not say whether he knew this second informer. Nobody at any time vouched for the reliability of this second informer.

When counsel for the appellant asked for the names of the first and second informers, the government objected, and the objections were sustained.

The defense called Mr. Frank Brooks, another Florida Agent, who testified after refreshing his memory from notes. He said that he and Dykes went to the surveillance point before midnight. This was a material variance from the testimony of Dykes. Brooks saw the second informer, a colored man, talk to Dykes, but did not hear the conversation. He was asked to identify the informer, but the government's objection was sustained. He thereafter stated, however, that he did not know the informer, but the court then stated '* * * the objection is sustained', although the record fails to reflect that any objection had been made.

Vernon E. Anderson, another Florida Agent, testified that Dykes picked him up at 3 o'clock a.m. to go on the stake out.

This sums up the proof as to when, what, how, and from whom any information was received.

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