United States v. Vigo, 26882.

• Decision Date: 19 June 1969
• Docket Number: No. 26882.,26882.
• Citation: 413 F.2d 691
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel Alfredo VIGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 691 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Angel Alfredo VIGO, Defendant-Appellant.

No. 26882.

United States Court of Appeals Fifth Circuit.

June 19, 1969.

Charles H. Snowden, Snowden & Willis, Harry Willis, Miami, Fla., Judith A. Brechner, Miami Beach, Fla., for appellant.

William A. Meadows, Jr., U. S. Atty., Michael J. Osman, Theodore Klein, Asst. U. S. Attys., Miami, Fla., for appellee.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

KRENTZMAN, District Judge:

Vigo appeals his jury trial conviction for violations of 26 U.S.C.A. § 4704(a) and 21 U.S.C.A. § 174. We have considered each of the four points raised as error, and feel that only the question relating to the sufficiency of the search warrant affidavit merits extended discussion. For reasons that follow we affirm.

I. The Sufficiency of the Affidavit

The appellant contends that probable cause was lacking in the affidavit presented to the U.S. Commissioner. He relies primarily upon the recent decision of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit in question specifically overcomes the prime defects set out in the "Spinelli" affidavit. In particular the Supreme Court in that case was concerned with the conclusion of the informant's reliability and the allegations regarding surveillance offered in corroboration of the tip.

In Spinelli the affidavit merely recited that a "reliable informant" informed the F.B.I. that the defendant was carrying out proscribed bookmaking activity. No basis was set forth in the affidavit in support of the conclusion of reliability of the informer. The Court re-emphasized the position taken in Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) regarding the assertion of reliability. The mere statement that the informer is reliable is insufficient to afford the magistrate with a basis for finding probable cause. There must be some reason set forth in the affidavit whereby the magistrate can find support for the conclusion. In the present case this requirement has been met. The affidavit goes beyond a mere recital of reliability in stating:

"The affiant in this instance has been provided with information from an informant who has proven to be reliable in the past on several occasions in his utilization as an informant for the Federal Bureau of Narcotics." (Emphasis added)

This factual statement of past reliability provides sufficient basis for the magistrate to independently gauge the reliability of the informer. In this respect the affidavit meets the requirements of Aquilar and Spinelli, cited supra.

Aside from the issue of reliability of the informant in this case, it is significant that several of the transactions recited in the affidavit were carried out under surveillance by the Federal Bureau of Narcotics. The middleman, Bustamente, was observed going to the premises described in the affidavit after negotiations with the informant. On two occasions Bustamente proceeded immediately to the described premises after receiving requests for narcotics from the informer. Each time he was observed entering and then leaving 10-20 minutes later. On one occasion he returned immediately and advised the informer of the quality of the narcotics available from his connection and advised him that the connection had just received a supply of heroin that was being "cut up".

Other surveillance of the premises indicated that similar short visits were made by "known narcotic traffickers" or "well known narcotic traffickers". While the Court in Spinelli discredited a similar recital as being a "flat statement" or "simple assertion of police suspicion" we believe that in specifically naming these individuals the affidavit adds some information upon which the magistrate can independently evaluate the statements. The affidavit also refers to the appellant. Vigo, as being on record as a narcotic trafficker. This characterization by itself might also be viewed as mere suspicion, but here the basis of the statement is also set forth. The affidavit states that the Bureau of Narcotics had a record on Vigo with information dating back to 1962.

We do not find that the observations and surveillance of the Federal Bureau of Narcotics standing alone has furnished sufficient information for the issuance of the warrant; See Eaton v. United States, 5 Cir., 1968, 409 F.2d 1355 but do hold that in reading this affidavit in a common sense and realistic manner such observations lend authenticity to the account given by the informer. Considering the affidavit in its entirety we hold that the information related by the informer substantiated by the underlying circumstances of past reliability and the additional supporting information gathered from surveillance clearly established probable cause for the issuance of the search warrant.

II. The Warrant Was Duly Executed

The search warrant in this cause was a "daytime warrant," that is to say that its validity required it be served in the daytime. Counsel for the appellant, relying on the authority of United States v. Merritt, 293 F.2d 742 (3 Cir. 1961), sought to suppress evidence obtained during the search on the ground that the warrant was not served in the daytime. For this purpose he sought to introduce United States Weather Bureau data which established the official time of sunrise for the day of the search at 6:14 A. M. Testimony of two government witnesses stated that the warrant was served at 6:15 A. M. The testimony also contains a discrepancy wherein appellant contends that the sunrise data should...