United States ex rel. Hurley v. State of Delaware

Decision Date11 October 1973
Docket NumberNo. 194.,194.
Citation365 F. Supp. 282
PartiesUNITED STATES of America ex rel. Jay B. HURLEY, Petitioner, v. STATE OF DELAWARE, Respondent.
CourtU.S. District Court — District of Delaware

Jay H. Conner, of Conner, Daley & Erisman, Wilmington, Del., for petitioner.

Joseph A. Hurley, Deputy Atty. Gen., Wilmington, Del., for respondent.

OPINION AND ORDER

LATCHUM, Chief Judge.

Jay B. Hurley, a state prisoner and the petitioner in this habeas corpus proceeding, was convicted by a jury on March 2, 1972 in the Superior Court of the State of Delaware with being concerned in interest in lottery policy writing in violation of 11 Del.C. § 662 and of conspiracy to commit the offense of being concerned in interest in lottery policy writing in violation of 11 Del.C. § 105. Thereafter, he was sentenced to a two month term of imprisonment to be followed by a four month probationary period on both offenses, the sentences to run concurrently, to pay the costs of prosecution, and to pay a $500.00 fine for each offense. His conviction was affirmed by the Delaware Supreme Court on June 29, 1973. Hurley v. State, (Del.Supr.1973).

The principal issues before this Court were raised and decided adversely to the petitioner in the state court on appeal. Consequently, petitioner's state remedies have been effectively exhausted and the present petition is properly before this Court. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), rehearing den. 345 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370 (1953).

Petitioner raises three points: first, that sufficient probable cause was not established by affidavit to support the issuance of a search warrant which was executed to obtain critical evidence used against petitioner at trial; second, that the critical evidence seized pursuant to the search warrant was taken from the premises of 4023 New Castle Avenue, whereas 4021 New Castle Avenue was the premises which was authorized to be searched by the search warrant; and, third, that the trial court permitted the prosecutor, in cross-examining certain of petitioner's character witnesses to ask whether the witnesses knew that petitioner had previously been arrested for receiving stolen goods, even though the petitioner had been acquitted of the charge and the fact of acquittal was made known to the trial judge.1

On September 28, 1973 oral argument was heard on these issues. No evidentiary hearing was requested or held because the application for the writ presented only issues of law. 28 U.S.C. § 2254.

From the state trial record the following pertinent facts emerge: On September 1, 1970, the police received information from an informant that number bets were being taken over the telephone by Gerald Alexander ("Alexander") at 1340 Prospect Drive, Wilmington, Delaware and that this operation was a subbank of Jay Hurley Enterprises at 4021 New Castle Avenue, New Castle, Delaware. On November 20, 1970, the informant indicated that Alexander had moved and was now taking number bets over the telephone at 13 Constitution Boulevard, New Castle, Delaware. In addition, on January 1, 1971 telephone records were subpoenaed of Alexander, Jay Hurley Enterprises, Jay Hurley Auto Body Company, and James A. Lewis ("Lewis"), a suspected local numbers writer who had previously been arrested and convicted of lottery policy writing. These telephone records revealed that a total of 308 calls had been made during the Fall of 1970 between phones at the two Alexander addresses and a phone at Lewis' address of 117 East Lake Street, Middletown, Delaware2 and that a total of 24 calls had been made during the Fall of 1970 from phones at the Jay Hurley Enterprises and Jay Hurley Auto Body Company to a phone at the Lewis address, including 10 calls made during two days when telephone service was being transferred from Alexander's 1340 Prospect Drive address to his 13 Constitution Boulevard address.

As a result of this information, a further investigation was undertaken including the assignment of Patrolman James Evans to work as an undercover agent in the East Lake Street area of Middletown, Delaware and the surveillance of Alexander's premises at 13 Constitution Boulevard. This investigation revealed that number bets were in fact being taken at the Lewis address; that these bets were being relayed over the phone during periodic incoming telephone calls including two calls observed by Patrolman Evans as being received at Lewis' Middletown address precisely the same time two calls were originated at Alexander's address to some phone in Middletown; and that all number bets had to be totaled daily at Lewis' by 2:00 P.M. so they could be picked up shortly thereafter. In addition, a woman was observed on several different occasions leaving Alexander's address around 2:00 P.M. and returning some time later. Twice a woman was observed going to 11 Boswell Road, New Castle, Delaware before returning to Alexander's and on one occasion a woman was seen leaving Alexander's at precisely 2:00 P.M., arriving at Jay Hurley Enterprises, and returning to Alexander's later in the afternoon. Furthermore, on a different occasion a man was observed leaving Alexander's, going to 11 Boswell Road, then going to Jay Hurley Enterprises before returning to Alexander's.

The above information was set out in three different affidavits. One affidavit was attached to an application for a warrant to search James A. Lewis, his wife, and the Lewis' premise at 117 East Lake Street. Another affidavit was attached to an application for a warrant to search Gerald Alexander, the Alexander premise at 13 Constitution Boulevard, and two automobiles. The third affidavit was attached to an application for a warrant to search "JAY HURLEY and all buildings of JAY HURLEY AUTO BODY CO., JAY HURLEY ENTERPRISES located at 4021 New Castle Ave., New Castle, Del." and an automobile.

The three affidavits and search warrant applications were simultaneously presented to Judge Vincent A. Bifferato of the Superior Court of Delaware on January 28, 1971 and the three requested search warrants were issued by Judge Bifferato the same day.

The warrant to search the petitioner, the premises of Jay Hurley Auto Body Co., and Jay Hurley Enterprises was executed on January 28, 1971.3 The ensuing search resulted in the discovery of evidence on the person of petitioner and in a building of Jay Hurley Enterprises which is located at 4023 New Castle Avenue, New Castle, Delaware. This evidence was subsequently introduced at trial and presumably was material in obtaining petitioner's conviction.

1. Probable Cause Issue

The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In determining whether probable cause existed for the issuance of the Hurley search warrant, this Court looks to the specific facts of the case viewed in light of three basic guidelines. United States v. Donlon, 334 F.Supp. 1272, 1274-1275 (D.Del.1971). First, a reviewing court will pay great deference to a determination by a judge that probable cause did in fact exist so that although it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases will be determined largely by the preference to be accorded to issued warrants. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Second, the allegations of the affidavit must go beyond mere suspicion but need not constitute clear evidence. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). A "substantial basis" must be presented to enable a man of reasonable caution to hold the belief that a crime was occurring in a specific place. In particular, facts must be presented demonstrating the trustworthiness of the affiant's source of information and the basis of that information. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Third, the affidavit must be interpreted in a sensible manner. As the Supreme Court said in United States v. Ventresca:4

"* * * affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. * * * Where these underlying circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner."5

Here, the affidavit attached to the Hurley search warrant standing alone, when given due deference to the finding of Judge Bifferato and when read in a sensible manner, does prove a "substantial basis" for the belief that a crime was being committed by Jay Hurley at Jay Hurley Auto Body Co. and Jay Hurley Enterprises of 4021 New Castle Avenue which establishments were reasonably presumed to be Jay Hurley's own operations.

In the first paragraph, the affidavit states that:

". . . an informant who has proven reliable in the past and who's information has lead sic to the arrest and conviction of person sic involved in gambling activity that GERALD ALEXANDER is taking numbers bets over the telephone at 1340 Prospect Dr., Kynlyn Apts.,
...

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7 cases
  • State v. Rose
    • United States
    • Supreme Court of Connecticut
    • June 24, 1975
    ...denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62, reh. denied, 414 U.S. 1086, 94 S.Ct. 606, 38 L.Ed.2d 491; United States ex rel. Hurley v. Delaware, 365 F.Supp. 282, 286 (D.Del.); People v. Hendricks, supra, 25 N.Y.2d 133, 303 N.Y.S.2d 33, 250 N.E.2d 323. In this case, however, the evidenc......
  • U.S. v. Johnson, 76-1253
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 21, 1976
    ...U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124, reh. denied, 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969); United States ex rel. Hurley v. Delaware, 365 F.Supp. 282, 288 (D.Del.1973); United States v. Cotham, 363 F.Supp. 851, 855 Similarly, a "practical accuracy" standard has been consistent......
  • United States v. Zarate
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 3, 2019
    ...affidavits and discussing federal and state cases wherein multiple affidavits supported probable cause); U. S. ex rel. Hurley v. Del., 365 F. Supp. 282, 287 n.9 (D. Del. 1973) (multiple affidavits submitted at one time supported probable cause to issue one specific warrant); United States v......
  • United States v. West, Crim. A. No. 80-62
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • March 4, 1981
    ...cert. denied sub nom. Ogletree v. United States, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977); United States ex rel. Hurley v. State of Delaware, 365 F.Supp. 282, 285 (D.Del.1973). Second, affidavits of probable cause are tested by much less rigorous standards than those governing the ......
  • Request a trial to view additional results
2 books & journal articles
  • Survey of Washington Search and Seizure Law
    • United States
    • Seattle University School of Law Seattle University Law Review No. 9-01, September 1985
    • Invalid date
    ...past information has led to convictions is a sufficient showing of reliability. E.g., United States ex rel. Hurley v. Delaware, 365 F. Supp. 282, 286 (D. Del. 1973); State v. Adame, 37 Wash. App. 94, 678 P.2d 1299 (1984). An informant's reliability may also be established when the informant......
  • Survey of Washington Search and Seizure Law: 1988 Update
    • United States
    • Seattle University School of Law Seattle University Law Review No. 11-03, March 1988
    • Invalid date
    ...past information has led to convictions is a sufficient showing of reliability. E.g., United States ex rel. Hurley v. Delaware, 365 F. Supp. 282, 286 (D. Del. 1973); State v. Freeman, 47 Wash. App. 870, 873, 737 P.2d 704, 707 (affidavit alleged that informant had previously provided informa......

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