United States v. Wong

• Decision Date: 11 December 1972
• Docket Number: No. 72-1061.,72-1061.
• Citation: 470 F.2d 129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abenel Makini WONG, aka "Tiger," Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.2d 129 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Abenel Makini WONG, aka "Tiger," Defendant-Appellant.

No. 72-1061.

United States Court of Appeals, Ninth Circuit.

November 6, 1972.

Rehearing Denied December 11, 1972.

Paul J. Durbin (argued), Honolulu, Hawaii, for defendant-appellant.

William J. Eggers, III, Asst. U. S. Atty. (argued), Joseph M. Gedan, Asst. U. S. Atty., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Before BROWNING and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.^*

GOODWIN, Circuit Judge:

Abenel Makini "Tiger" Wong challenges the warrant and the search that led officers to his unregistered sawed-off shotgun. He appeals from a conviction under 26 U.S.C. § 5861(d).

Wong's first contention is that the affidavit on which the warrant was based fails to show a sufficient basis in fact for the magistrate or the police officer to believe that an informer was reliable.

The affidavit reads as follows:

"Affiant states he has been a police officer for the City and County of Honolulu, Hawaii, for thirteen years, and assigned to the homicide detail of the detective division for three and one half years. On Monday night, May 7, 1971, Pablo Ulanco was murdered in Honolulu. On Monday, May 17, 1971, affiant was talking to an informant concerning this homicide. The informant gave reliable information concerning an assault that occurred May 16, 1971, naming names and times, and information concerning the murder. On May 18, 1971, affiant again talked to this informant, giving more reliable information concerning the murder. Informant stated she had been to Tiger\'s residence on May 17, 1971, and personally observed on the floor in the bedroom, a cardboard box containing a `chopper\' machine gun, and four hand grenades which she observed `Tiger\' put upon his belt. She heard `Tiger\' say he was going to blow up an apartment on Republican Street near the State Prison. She was in the house at about 11:30 p. m. to midnight on May 17, 1971."

We hold the affidavit sufficient to establish probable cause for a magistrate to issue a search warrant.

An affidavit for a warrant ordinarily is drafted by a nonlawyer, in the course of a rapidly moving criminal investigation. It should be tested by the courts in a common-sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

While a history of prior dealings between an informant and the police can be an important element in establishing the reliability of the informant, the absence of such a history does not of itself prove the informant unreliable. The magistrate is entitled to look to the underlying circumstances, including those portions of the information independently verified by police, and to other factors supporting the probable truthfulness of the information. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States ex rel. Washington v. Yeager, 448 F.2d 87 (3d Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 345, 30 L.Ed.2d 287 (1971); Louie v. United States, 426 F.2d 1398 (9th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S. Ct. 2123, 18 L.Ed.2d 1370 (1967).

Here, it might still be argued that the affidavit, to be sufficient, should have included the police officer's sources against which he checked the informant's story. However, such a chain could be endless, with each source of information needing corroboration by another source whose reliability would have to be established by still another, and so on. An absolute requirement of this nature would ignore the point that it is probable cause, not absolute certainty, that is the issue in weighing an affidavit for a warrant. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Care must be taken when a mere rumor reported from one unknown informant is "verified" by the same rumor in the mouth of another unknown informant. That situation is not present here. The informant in this case was acquainted with persons involved in violent crimes. She placed herself in danger when she gave the information she did give to the police. A baseless accusation in these circumstances is not likely. Further, we have here not an isolated report corroborated by an officer's knowledge of one crime, but information on two separate crimes. And the second time the officer spoke to the informant she added to the information she had given earlier on one of the crimes. Finally, the information itself, names and times, is not of the type likely to circulate in rumors. Under...