United States v. Rich

Decision Date26 May 1969
Docket NumberNo. 26447.,26447.
Citation407 F.2d 934
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Irving RICH, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Barry Garber, Miami, Fla., for defendant-appellant.

William A. Meadows, U. S. Atty., Michael J. Osman, by Jose E. Martinez, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

Certiorari Denied May 26, 1969. See 89 S.Ct. 1775.

AINSWORTH, Circuit Judge:

Pursuant to new Rule 18 of the Rules of this Court, we have concluded that this case is of such character as not to justify oral argument. Accordingly, the Clerk has been directed to place the case on the summary calendar provided for such matters, and to notify the parties in writing.1

Appellant was indicted on three counts of interstate transportation of obscene matter for sale and distribution in violation of 18 U.S.C. §§ 1462 and 1465, and he was tried without a jury. The District Court found appellant guilty on all counts, and sentenced him to six months' imprisonment and an additional four years on probation. Appellant attacks his conviction on the ground that the Trial Judge erred in denying a motion to suppress evidence seized under the authority of a search warrant.2 After a thorough consideration of the affidavits upon which the search warrant was based, we affirm the decision of the District Court.

The affidavits, pursuant to which the search warrant issued, were made on September 14, 1967, by William P. Kelly and John C. Phelps, Special Agents of the Federal Bureau of Investigation. These Special Agents asserted that they had reason to believe that three cardboard cartons, addressed to "Mr. Rich, 530 N. W. 26th St., Miami, Fla.," contained obscene books, pamphlets, pictures and motion pictures. These cartons were allegedly on the premises of the Greyhound Bus Terminal, having been transported in interstate commerce from Newark, New Jersey, and/or New York City, New York, to Miami, Florida, by the Greyhound Bus Lines. In order to establish the grounds for the issuance of the search warrant, Special Agent Phelps stated that he had received information from a confidential informant, "who has on repeated occasions in the past furnished reliable and credible information," that "Irvin Rich," living at 7901 S. W. 14th Terrace, Dade County, Florida, had sold the informant numerous obscene films, photographs, and drawings, and one obscene book. These items allegedly depicted numerous sexual acts. Furthermore, Special Agent Phelps stated that he had examined some of the obscene items that the informant had purchased, and that they, in fact, conformed with the informant's description of them. Finally, the informant advised Phelps that Rich admitted to the informant that he sells obscene materials, that he received shipments of such materials from sources in New York City via Greyhound bus, and that he was going to New York City in order to check on a shipment of obscene items that had failed to arrive.

Special Agent Kelly stated in his affidavit that he had personally observed appellant board a plane at the Miami International Airport, which was bound for Newark, New Jersey, and that three days later he saw appellant arrive at Miami International Airport, aboard a nonstop flight from Newark, New Jersey. The following day, Kelly observed the three cardboard cartons discussed above.

The Fourth Amendment of the Constitution of the United States requires that a search warrant issue only upon probable cause. See, e. g., Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 548-549, 69 L.Ed. 1032 (1925); Gurleski and Villafranca v. United States, 5 Cir., 1968, 405 F.2d 253.3 Probable cause is deemed to exist "where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Berger v. State of New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967).4 There only need be a probability of criminal activity rather than a prima facie showing, and a magistrate's determination of probable cause "should be paid great deference by reviewing courts * * *." Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969). See also Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).

In cases such as the present one, where a search warrant has been secured with complete or partial reliance on information provided by an informant, courts have tended to be critical in ascertaining whether the requirement of probable cause has been demonstrated. Note, Testing the Factual Basis for a Search Warrant, 67 Col.L.Rev. 1529, 1532 (1967). Thus, in Spinelli v. United States, 89 S.Ct. at 588, the Supreme Court, in applying and explaining the rules laid down in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), held that there was insufficient information presented to the magistrate to justify a finding of probable cause:

"The magistrate must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar\'s tests without independent corroboration? * * *
"* * * Though the affiant swore that his confidant was `reliable,\' he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar\'s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI\'s source received his information — it is not alleged that the informant personally observed Spinelli at work or
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    • United States
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    ...number of cases around the country to ascertain what has been said under similar, but not identical, circumstances. In United States v. Rich, 407 F.2d 934 (5th Cir. 1969), cert. denied 395 U.S. 922, 89 S.Ct. 1775, 23 L.Ed.2d 239 (1969), a search warrant was upheld where the affiant describe......
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