United States v. Smith

• Decision Date: 27 June 1972
• Docket Number: 71-1623.,No. 71-1622,71-1622
• Citation: 462 F.2d 456
• Parties: UNITED STATES of America, Appellee, v. Larry C. SMITH, etc., Appellant. UNITED STATES of America, Appellee, v. Marshall CARTER, etc., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.2d 456 (1972)

UNITED STATES of America, Appellee, v. Larry C. SMITH, etc., Appellant.

UNITED STATES of America, Appellee, v. Marshall CARTER, etc., Appellant.

Nos. 71-1622, 71-1623.

United States Court of Appeals, Eighth Circuit.

Submitted May 10, 1972.

Decided June 27, 1972.

Rehearing and Rehearing Denied July 21, 1972.

Ronald I. Meshbesher, Minneapolis, Minn., for appellants.

Peter J. Thompson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before VOGEL, BRIGHT, and STEPHENSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied in No. 71-1622 July 21, 1972.

BRIGHT, Circuit Judge.

Appellants Larry Smith and Marshall Carter appeal from their convictions for possessing, with intent to distribute, heroin and cocaine in violation of 21 U.S.C. § 841(a)¹ Circuit Judge Heaney, sitting by assignment, presided over appellants' jury trial. District Judge Larson, however, heard and decided a pretrial motion to suppress items of physical evidence seized under the authority of a search warrant. The propriety of Judge Larson's decision on this pretrial motion constitutes one of the principal issues for our consideration on this appeal.

Appellant Smith² makes the following specific contentions: 1) a competent affidavit did not support the search warrant; 2) the search was unlawful because the warrant did not particularly describe the premises; 3) during the search, police officers seized appellant Smith's personal papers unlawfully; 4) the trial court erred in instructing on the prosecution's burden of proof; 5) the evidence was insufficient to support Smith's conviction; 6) the trial court erred in refusing to order the government to disclose the identity of its informant; 7) the trial court erred in denying Smith's motion to preclude the introduction of evidence of his prior convictions to impeach his credibility; 8) the trial court erred in refusing to grant a mistrial after the prosecuting attorney alluded to the fact that, upon conviction, the judge might grant probation; 9) the court erred in allowing the prosecutor to cross-examine a defense witness as to the amount of certain bank deposits made by Smith. We reject these contentions and affirm the convictions.

On May 14, 1971, federal and state law enforcement officers searched a second floor apartment of the premises located at 678 Concordia Avenue, St. Paul, Minnesota. The building is situated on the corner of the block with the downstairs bearing the Concordia Avenue address while access to the apartment upstairs is through a doorway having a St. Albans Street address. The officers found in this apartment a substantial quantity of foil-wrapped packages containing heroin and cocaine. The search also uncovered packaging materials and cutting agents used in the preparation of individual doses of narcotics. In the northeast bedroom of the apartment, officers found and seized personal papers belonging to Smith, including business correspondence, checks, bank deposit slips, and credit cards. In addition, the officers found in this bedroom a quantity of heroin, hashish, and marijuana located in a pair of socks hanging by a rope inside a ventilator shaft.

Smith, who owned the building and operated a cafe located on the ground level, denied that he lived in the upstairs apartment. The upstairs telephone and utilities services, however, were listed in his name. Defendant Carter admitted occupying a second bedroom on the west side of the apartment.

We, therefore, turn our attention to the incidents surrounding the issuance of the search warrant in order to examine appellants' claim that the trial court erred in denying their motion to suppress as evidence the items seized during the search. The warrant here in question was issued pursuant to an affidavit prepared by a special agent for the Federal Bureau of Narcotics and Dangerous Drugs. That affidavit, in material part, recited the following:

On May 13, 1971, I interviewed a confidential informant who advised (sic) that within the last two days he went to 678 Concordia, St. Paul, Minnesota with a second individual. The informant previously advised the second individual that the informant wished to buy heroin. The second individual advised that Larry Smith had heroin and cocaine. The second individual went to the second floor of 678 Concordia Avenue. The second individual returned and gave the informant a foil package of heroin. The informant advised that Larry Smith resides on the second floor of 678 Concordia. I ran a Narcodal test on the powder which the informant obtained. The test indicated the powder was an opiate derivative. The second individual advised the informant that in addition to heroin, there was cocaine on the second floor.

The informant has previously provided reliable information to agents of the Bureau of Narcotics and Dangerous Drugs. On one occassion (sic) within the last two weeks a search warrant was issued pursuant to the informants (sic) information and narcotics were seized. On another occassion (sic) within the last month the informant introduced me to an individual who he said was a dealer. I purchased heroin from the individual.

Appellants argue that this affidavit failed to establish the requisite probable cause for the issuance of a search warrant since it "relied upon information supplied to a government informant by an anonymous second party whose reliability was in no way established * * *."

It is uncontroverted that an affidavit can show probable cause even when based on hearsay statements of an anonymous informant, under the rule enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as follows:

Although an affidavit may be based on hearsay information and need not reflect direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was "credible" or his information "reliable." Id. at 114, 84 S.Ct. at 1514

Appellants insist, however, that the hearsay based upon hearsay contained in this affidavit failed to establish probable cause because it did not satisfy the Aguilar requirements with respect to the second anonymous individual. Appellants concede the credibility of the affiant's direct informant, but maintain that since no reliance should be placed on the hearsay information provided by the second individual, the magistrate lacked sufficient credible information to justify the issuance of the search warrant.

We do not agree. It is not unusual for an affidavit of a law enforcement officer to contain hearsay information from an informant, which, in turn, is based on other information gathered by that informant. See Spinelli v. United States, 393 U.S. 410, at 416-417, 89 S.Ct. 584, 21 L.Ed.2d 637, discussing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Therefore, when a magistrate receives an affidavit which contains hearsay upon hearsay, he need not categorically reject this double hearsay information. Rather, he is called upon to evaluate this information as well as all other information in the affidavit in order to determine whether it can be reasonably inferred "that the informant had gained his information in a reliable way." Spinelli, supra, 393 U.S. at 417, 89 S.Ct. at 589. The magistrate must canvass the affidavit and the informer's tip as a whole and measure it against Aguilar standards in order to assess its probative value.

We pointed out in McCreary v. Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969), that the Aguilar requirements "must be weighed with the added analysis of Spinelli * * *. Under Spinelli the magistrate must know that he is relying on information of substance, not upon "casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." 393 U.S. at 416, 89 S.Ct. at 589; McCreary, supra 406 F.2d at 1268.

In his concurring opinion in Spinelli, Mr. Justice White made these appropriate remarks on the problem of an affidavit presenting an informant's hearsay based on hearsay gathered by that informant:

If the affidavit rests on hearsay— an informant\'s report—what is necessary under Aguilar is one of two things: the informant must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2) that his information is hearsay, but there is good reason for believing it—perhaps one of the usual grounds for crediting hearsay information. The first presents few problems: since the report, although hearsay, purports to be first-hand observation, remaining doubt centers on the honesty of the informant, and that worry is dissipated by the officer\'s previous experience with the informant. The other basis for accepting the informant\'s report is more complicated. But if, for example, the informer\'s hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient.

I am inclined to agree with the majority that there are limited special circumstances in which an "honest" informant\'s report, if sufficiently detailed, will in effect verify itself—that is, the magistrate when confronted with such detail could reasonably infer that the informant had gained his information in a reliable way. 393 U.S. at 425, 89 S.Ct. at 593

The affidavit in this case clearly justified the issuance of the warrant under the test of Aguilar as that test has been further explicated in Spinelli and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).³ The affiant here attested to the credibility of his informant and related underlying circumstances which would lend reliability to the information within the informant's...