United States v. Unger

• Decision Date: 28 November 1972
• Docket Number: No. 72-1149.,72-1149.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman P. UNGER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.2d 1283 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Herman P. UNGER, Jr., Defendant-Appellant.

No. 72-1149.

United States Court of Appeals, Seventh Circuit.

Argued October 17, 1972.

Decided November 28, 1972.

Rehearing Denied January 2, 1973.

Harry J. Busch, Patrick A. Tuite, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., Gary L. Starkman, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, FAIRCHILD, Circuit Judge and GRANT, District Judge.^*

DUFFY, Senior Circuit Judge.

Defendant-appellant is a licensed firearm dealer. He was tried before the court on a three-count indictment charging possession of unregistered firearms in two counts and a failure to keep registration records in the third count. Defendant was found guilty of the possession charge in Count-I¹ and was fined $500. Defendant appeals.

On December 20, 1970, pursuant to a search warrant, Chicago police detective Vollick and several other City police officers went to defendant's apartment located in Chicago, Illinois. Defendant Unger was present when the officers arrived and led the officers to the basement of his apartment. A number of weapons were discovered in a basement locker including machine guns, rifles, pistols, hand grenade casings, black powder, fuse assembly kits for hand grenades and M-2 conversion kits.

Daniel Harnett, a U.S. Treasury agent, testified that he heard an Assistant State's Attorney warn defendant of his constitutional rights. Later, when defendant was asked whether the M-2 conversion kits were registered defendant replied, "No, you've got me there".

At the trial, defendant moved for a judgment of acquittal without tendering any witnesses after the government had presented their evidence. The basis for this appeal is that the trial court erred in denying defendant's pre-trial motion to quash the search warrant. Therefore, questions concerning the constitutional requirements for obtaining a state search warrant are now before us.

The complaint for the warrant alleged that a private citizen, while working at his occupation, had occasion to be in the basement of an apartment building located on North Ashland Avenue, Chicago. In the course of his work, he observed an enclosed locker in the southeast corner of the basement. There was a small opening in the locker through which a cache of weapons was visible.

The citizen called the police, and based upon his experience with weapons gained while in the Ordnance section of the United States Army, he described the firearms and materials with particularity.

Thereafter, the citizen personally identified the building in question to the police and drew a diagram of the basement disclosing the exact location of the locker where the weapons were stored.

Based upon this information, Detective Vollick, the complainant in the warrant, applied to a magistrate and obtained a search warrant to search the locker and seize the specific weapons which had been described to him by the citizen.²

Defendant contends on appeal that the District Court improperly denied his motion to suppress the evidence and material listed in the indictment after he attempted to indicate the insufficiency of the complaint for the search warrant. In support of his argument, defendant alleges under the guidelines of 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 (1967) that the complaint for the search warrant herein was insufficient to provide "a neutral and detached magistrate"³ with the requisite probable cause basis for the warrant to issue and furthermore, the complainant failed to allege or make a showing with respect to the reliability of the unidentified citizen-informant providing the police officer with the pertinent information.

Even if the decision of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) which gives great deference to a magistrate's determination of probable cause is ignored, we are convinced the complaint for warrant was factually sufficient to form a probable cause basis for the warrant to issue. The locker containing the arms and the distinct varieties of arms viewed by the citizen were described with great particularity evincing personal observation. Furthermore, with knowledge of weapons gleaned from the Armed Forces, the citizen was able to list the types of weapons he witnessed inside the locker for police, believing them to be illegally stored or possessed.

We turn to the question raised by defendant of the omission of an allegation in the complaint for the warrant concerning the reliability of the informant, which defendant considers fatal to the validity of said warrant.

The exactions of the complaint for a search warrant under the Fourth Amendment are propounded by the Supreme Court in Aguilar, supra, and later considered in Spinelli, supra. Under Aguilar, supra, a complaint when based solely on hearsay information from an unidentified informant must recite ". . . some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable'." (378 U.S. at 114, 84 S.Ct. at 1514)

With these stringent requirements as precedent, the Supreme Court considered a reversal of a conviction by the Sixth Circuit where the question concerned the sufficiency of an affidavit upon which a warrant had issued, United States v. Harris, 412 F.2d 796 (6 Cir., 1969). Although the Sixth Circuit determined that the first prong of the Aguilar test had been satisfied, Harris' conviction was reversed in that the affidavit for the warrant did not contain a basis for establishing the informant's credibility. The Supreme Court then reversed the holding of the Sixth Circuit, (403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723), finding that the affidavit in question contained an "ample factual basis for believing the informant which, when coupled with affiant's own knowledge of the respondent's background, afforded a basis upon which a magistrate could reasonably issue a warrant." (403 U.S. 579-580, 91 S.Ct. 2080).

Thus, while adhering in general to the Aguilar, supra, decision, the Supreme Court clearly indicated the burden of satisfying the so-called second prong of Aguilar was not as stringent as Spinelli had indicated. The Supreme Court suggested a more flexible approach to examine probable cause affidavits.

In the case at bar, obvious from the face of the complaint is the fact that the Aguilar requirement of an allegation of reliability has been omitted from the wording of the complaint, thereby failing to explicitly attest to the veracity of the informant. Nonetheless, the wording of the complaint sets forth with specificity the facts and circumstances which lend credence to belief that a crime was being committed or criminal activity was evidenced from personal observation. See Spinelli, supra, 393 U.S. at 416, 89 S.Ct. 584. The question then must be asked whether "the internal content of the affidavit intrinsically proves the truth of the . . . citizen's word." United States v. Roman, 451 F.2d 579, 581 (4 Cir., 1971), and whether this is sufficient to satisfy the reliability standard of Aguilar.

From the face of the complaint, evident is the fact that the citizen was familiar with the premises in question and was possessed with intimate knowledge of the exact location and contents of the locker in question. The allegations of the complainant are not self-serving nor does it appear that the accusations by the citizen were reported to the police merely to spite defendant Unger.⁴ The Complaint emphasizes the very circumstances from which the magistrate herein could determine that the information given by the citizen was "credible" or the informant was "reliable".

We are of the opinion that the reliability of the citizen's tip is further underwritten by his knowledge of the weapons viewed in the locker and the specificity with which he reported its contents to the police. In addition the citizen pointed out the house where the weapons were stored thereby leaving no chance for error when the search was effected. He also penned a detailed map of the premises indicating the exact location and...