439 F.2d 381 (3rd Cir. 1971), 18908, United States v. Singleton

Docket Nº:18908.
Citation:439 F.2d 381
Party Name:UNITED STATES of America v. Robert SINGLETON, alias Popeye, Charles William Mosby. Appeal of Charles William Mosby.
Case Date:March 02, 1971
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 381

439 F.2d 381 (3rd Cir. 1971)

UNITED STATES of America

v.

Robert SINGLETON, alias Popeye, Charles William Mosby.

Appeal of Charles William Mosby.

No. 18908.

United States Court of Appeals, Third Circuit.

March 2, 1971

Argued Nov. 20, 1970.

Page 382

H. David Rothman, Pittsburgh, Pa., for appellant.

Charles F. Scarlata, Asst. U.S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U.S. Atty., Douglas D. McBroom, Asst. U.S. Atty., Pittsburgh, Pa., on the brief) for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.

OPINION

GERALD McLAUGHLIN, Circuit Judge.

Charles William Mosby was indicted in the United States District Court for the Western District of Pennsylvania in a two-count indictment charging him and Robert Singleton with violations of the Federal narcotics laws. After pretrial motions for the suppression of certain physical evidence seized and a confession given by Mosby were denied, he waived his right to jury trial and by stipulation, was tried before the court on the second count of the indictment. 1 Mosby was found guilty and received a suspended sentence of seven years imprisonment,

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a fine of $2,500. and the costs of prosecution, and placed on probation for a period of four years. This appeal followed. 2

The questions raised relate to the admissibility of the seized evidence and the written confession. Appellant argues that the search and seizure were invalid because the affidavit used to obtain the search warrant was purely conclusionary and unsupported by sufficient underlying facts to reveal probable cause and further because the search warrant was served in violation of 18 U.S.C. § 3109. With regard to the confession, it is argued that it was inadmissible because appellant was not advised of his rights under the Fourth Amendment and, additionally, that there was not sufficient, independent, corroborative evidence of the allegations of count 2 of the indictment to justify the admission of the confession.

We turn first to the question of the search and seizure. On September 22, 1967, Detective Edward Costanza of the Allegheny County Detective Bureau, Narcotics Squad received a tip from an informant, who had supplied reliable information in the past, to the effect that Charles Mosby and Robert Singleton, who was known as 'Popeye,' were 'bagging' narcotics in the premises occupied by Mosby. As a result of this tip, the premises, located at 217 Standard Street, Pittsburgh, Pennsylvania, were placed under surveillance. The informant had advised the detective that Singleton would be in the area at 8:00 o'clock in the morning and again at 5:00 o'clock in the afternoon. The surveillance verified Singleton's presence in the area at the stated time.

The affidavit in support of the warrant, executed by Costanza, said that he had reason to believe that heroin, narcotics paraphernalia and dangerous drugs were present on the premises, which were occupied by appellant and his wife, and that Robert Singleton was using said premises to deal in the traffic of heroin. The affidavit recited a description of a white Pontiac automobile used by Singleton. It further stated that the detective's belief was based upon

'information received from a confidential informant who has furnished reliable information to the affiant in the past several years leading to and resulting in the arrest and convictions of numerous dealers in and users of narcotics in the County of Allegheny to the effect that one Robert Singleton has been using the premises * * * for the purpose of preparing Heroin for distribution and sell (sic) by virtue of a process known as 'Cutting' and further packaging of the same in individual containers. * * *'

The affidavit went on to recite that the affiant, accompanied by another county detective and federal narcotics agents, had personally observed the premises on four different occasions and had seen Robert Singleton entering thereon at about 8:00 a.m. and after 5 p.m. and that such visitations were in accordance with information received from the informant. The affidavit was dated October 2, 1967. The search warrant was issued the same day.

On October 4, 1968, Singleton was seen entering the premises at 8:20 a.m. The search warrant was executed approximately fifteen minutes later.

Appellant argues that the affidavit is defective under the standards formulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the earlier case, it was established that, where the authorities, in applying for a search warrant, rely completely upon the tip of an informant, there must be a sufficient disclosure of any underlying circumstances from which the informant concluded that the suspect was engaged

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in criminal conduct and from which the authorities concluded that the informant was credible or his information reliable, to enable the impartial magistrate to judge the validity of the informant's conclusion. Spinelli indicates that where the informer's tip is corroborated by other information, the magistrate must be satisfied that the information disclosed by the informant, coupled with the other information, is at least as trustworthy as the informer's tip would need to be to stand alone under Aguilar.

Looking at the affidavit on its face, it is clear that the second test of Aguilar is satisfied, namely, the requirement that affidavit recite facts which led the affiant to conclude that the informant's tip was reliable. It has often been held that an indication that the informant had in the past supplied information leading to the arrest and conviction of other criminals is sufficient. It is not necessary for the affidavit to detail specific arrests or convictions as appellant argues. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Gonzales v. Beto, 425 F.2d 963 (5 Cir. 1970); United States v. Vigo, 413 F.2d 691 (5 Cir. 1969); United States v. Suarez, 380 F.2d 713 (2 Cir. 1967); Gabriel v. United States, 366 F.2d 726 (9 Cir. 1966).

On the other hand, the informant's tip standing alone does not satisfy the first Aguilar test. It does not, in any manner, disclose how the informant reached the conclusion that Singleton and Mosby were engaged in criminal conduct. It merely states a conclusion, buttressed by no facts to indicate that the informant observed narcotics or narcotics paraphernalia on the premises.

However, the informant's tip does not stand alone. This case is governed by Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) 3 and its progeny, which hold that, where an informant's tip is verified by independent dependent personal observations by police, probable cause may be established. United States ex rel. Kislin v. New Jersey, 429 F.2d 950 (3 Cir. 1970). Here the information provided by the undisclosed informant, to the effect that personal observations by police, and entering 217 Standard Street at approximately 8:00 o'clock a.m. and 5:00 o'clock p.m. and that he would be driving a white 1965 Pontiac, registration number 15837N, were borne out by the independent observations of Detective Costanza and others, and this verification was sworn to in the affidavit presented to the justice of the peace in support of an application for a search warrant. Cf. Gonzales v. Beto, 425 F.2d 963 (5 Cir. 1970).

In determining whether a search warrant should have been issued, we must decide whether the evidence presented indicated a probability of criminal activity. More is not required. It is elementary that in passing on the validity of a warrant, the court may consider only the information brought to the magistrate's attention, no more and no less. Aguilar v. Texas, 378 U.S. at 109 n. 1, 84 S.Ct. 1509.

The magistrate's determination of probable cause 'should be paid great deference by reviewing courts.' Spinelli v. United States, supra. It has been noted 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. Kidd, 407 F.2d 1316 (6 Cir. 1969); United States ex rel. Kislin v. New Jersey, supra.

Considering the affidavit in its entirety we hold that the information related by the informer substantiated by

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the underlying circumstances of past reliability and the additional supporting information gathered from surveillance established probable cause for the issuance of the search warrant.

We are further of the opinion that the search was not invalidated by the method of entry utilized by the authorities. After Singleton was in the house for approximately ten minutes, detectives went to both the front and back doors. Detective Costanza, who had the warrant, knocked on the back door. Mosby and Singleton were both by the door, but there was no response to the first knock. At the second knock, Mosby parted the curtains and looked out at Costanza, who was standing on the porch. Mosby, who knew that Costanza was a State narcotics officer, then closed the curtains and told Singleton that the police were outside. There was then a commotion inside the house. The rear of the house was guarded by a storm door and a wooden door. In response to the commotion, Costanza, fearing that any narcotics on the premises would be destroyed, kicked at the storm door, breaking the glass. He was unable, however, to reach the door knob and open the door. At the sound of glass breaking, Detective Kendrick, who was stationed at the front door, forced open that door, and entered with federal agent Moore. Kendrick then opened the rear door for Costanza. Upon entering the house, agent Moore heard other glass break and proceeded towards the bedroom, where he...

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