United States v. Kidd

Decision Date25 February 1969
Docket NumberNo. 18465.,18465.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ernest KIDD, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Charles W. Martin, Oneida, Tenn., for appellant.

G. Wix Unthank, Asst. U. S. Atty., Lexington, Ky., for appellee; George I. Cline, U. S. Atty., Lexington, Ky., on brief.

Before EDWARDS, McCREE, and COMBS, Circuit Judges.

McCREE, Circuit Judge.

Appellant was convicted of possessing "moonshine" whiskey in violation of § 5061 of the Internal Revenue Code of 1954 and sentenced to a term of three years in prison. The sole question on appeal is the sufficiency of an affidavit used to obtain a search warrant, the execution of which resulted in the discovery of twenty-eight gallons of whiskey on appellant's premises.

The affidavit in question was presented to the County Judge of McCreary County, Kentucky by an agent of the United States Treasury Department. In it the agent stated that he had reason to believe that appellant was unlawfully in possession of intoxicating liquor. He based his belief, as recited in the affidavit, "on information furnished him by a confidential and reliable source which had proved to be reliable on many occasions in the immediate past;" and on the fact "that said reputable and confidential informant stated to him on today that he saw on today moonshine whiskey in the possession of the appellant * * *."

Appellant contends that the aforementioned recitals were insufficient to establish the probable cause necessary for the issuance of a search warrant. He concedes that an affidavit based on hearsay is "not to be deemed insufficient on that score" alone, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960), but maintains that here there was no "substantial basis for crediting the hearsay * * *." 362 U.S. at 269, 80 S.Ct. at 735.

We observe, as we did in United States v. Bowling, 6 Cir., 351 F.2d 236 (1965), that police officers should be encouraged to submit their evidence to a magistrate and request the issuance of search warrants before acting, and "a grudging or negative attitude by reviewing courts toward warrants will tend to discourage" this practice. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Accordingly, the judiciary should be ever mindful not to encrust the procedure for securing warrants with unnecessary formalities and technicalities.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court established a two-pronged test for determining the sufficiency of affidavits based on hearsay.

Although an affidavit may be based on hearsay information and need not reflect the direct
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  • United States v. Lanza
    • United States
    • U.S. District Court — Middle District of Florida
    • March 30, 1972
    ...reliable in the past on several occasions in his utilization as an informant for the Federal Bureau of Narcotics ...;" United States v. Kidd, 407 F.2d 1316 (6th Cir. 1969), "... a confidential and reliable source which proved to be reliable on many occasions in the immediate past."; Brooks ......
  • State v. Kraft
    • United States
    • Maryland Court of Appeals
    • July 30, 1973
    ...informant as one 'who has on repeated occasions in the past furnished reliable and credible information.' In United States v. Kidd, 407 F.2d 1316 (6th Cir. 1969), the court said of the 'He based his belief, as recited in the affidavit, 'on information furnished him by a confidential and rel......
  • United States v. Marks
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • October 5, 1973
    ...a pragmatic approach to the issuance of a warrant. See Coury v. United States, 6th Cir., 426 F.2d 1354 (1970); United States v. Kidd, 6th Cir., 407 F.2d 1316 (1969). The accounts used herein are in no way comparable to the conclusory affidavits condemned in Marcus v. Search Warrant, 367 U.S......
  • United States v. Singleton
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 2, 1971
    ...and `a grudging or negative attitude by reviewing courts toward warrants will tend to discourage' this practice." United States v. Kidd, 407 F.2d 1316 (6 Cir. 1969); United States ex rel. Kislin v. New Jersey, Considering the affidavit in its entirety we hold that the information related by......
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