United States v. Marihart, 72-1258.

• Citation: 472 F.2d 809
• Decision Date: 26 December 1972
• Docket Number: No. 72-1258.,72-1258.
• Parties: UNITED STATES of America, Appellant, v. James MARIHART et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

472 F.2d 809 (1972)

UNITED STATES of America, Appellant, v. James MARIHART et al., Appellees.

No. 72-1258.

United States Court of Appeals, Eighth Circuit.

Submitted November 15, 1972.

Decided December 26, 1972.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellant.

Donald W. Sylvester and Donald E. O'Brien, Sioux City, Iowa, for appellees.

Before MATTHES, Chief Judge, and MEHAFFY, GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges, en banc.

MATTHES, Chief Judge.

The defendants (appellees) stand jointly charged in a four count indictment returned on March 22, 1972, with possessing four firearms which were transported in and affected interstate commerce in violation of Tit. 18 App. U.S.C. § 1202(a)(1).¹ On April 14, 1972, the defendants filed a joint motion to suppress the firearms described in the indictment on the grounds, inter alia, that the weapons were obtained as the result of an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and because the information presented to the magistrate who issued the search warrant did not sufficiently delineate the "informant's" source of knowledge as required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The district court entered an order suppressing the firearms and this appeal followed.

I. BACKGROUND

The application for the search warrant was made on October 20, 1971, in the Municipal Court of Sioux City, Iowa, by Francis O'Keefe, Captain of Detectives of the Sioux City police force. The application was supported by O'Keefe's affidavit, which is reprinted in full in the margin,² and his oral testimony given under oath before the issuing magistrate.³ His live testimony contained the supplementing information that he had been told by three separate police officers that each had received informer tips identical to that recited in the affidavit; that FBI Special Agent Oxler and Sioux City Lieutenant Larson had received tips from the same informant; and that one Sergeant Stewart of the Sioux City police had received the identical tip from another informant. O'Keefe further testified that he had twice interviewed the informant mentioned by Oxler and Larson to verify the contents of the tip, particularly questioning him about the location of the guns.

After presenting the affidavit and supporting testimony to the magistrate, O'Keefe revealed to him the name of Oxler and Larson's informer. Since the judge recognized this informer as a person who had previously supplied reliable information upon which the judge had acted and which proved correct, he relied upon that informant's tip and made no effort to ascertain the credibility of Stewart's informer.

Based upon the officer's written affidavit and his supplementing sworn testimony, the warrant was issued by the magistrate, and executed by police officers who found, in the apartment described in the affidavit and specified in the warrant, the four guns which are the subject of the indictment.

The district court, in sustaining the motion to suppress, reasoned that the Supreme Court had laid down a "2-prong rule" in Aguilar v. Texas, 378 U. S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli, supra, to wit: the affidavit for the warrant must disclose (1) circumstances justifying the magistrate to conclude the informant was credible, and (2) circumstances supporting the informant's conclusion of the defendants' connection with the criminal activity. The court found the first prong — the credibility of the informant — had been sufficiently satisfied, and that finding is not challenged here by appellees. But the court found the second prong unsatisfied. In so deciding, the court reasoned:

"The affidavit in the case before this court like that in Spinelli does not state any of the underlying circumstances on which the informant concluded that defendants had committed the burglary in which the firearms were taken. There is nothing in this record independent of the informant\'s conclusions suggesting any criminal activity on the part of defendants. Thus, compliance with the second prong of Aguilar-Spinelli is lacking.

It is therefore the view of the court that since the affidavit of Captain O\'Keefe fails to state how this informant came by his information connecting the defendants with the burglary it was insufficient to establish probable cause for the issuance of the search warrant and the evidence must be suppressed."

Thus, because Aguilar's second prong was not satisfied, the district court granted the suppression order. The government then sought reconsideration of the order, contesting for the first time the standing of defendants to challenge the search and seizure. This issue was rejected by the court and this appeal followed.

II. STANDING ISSUE

The government's contention that defendants lack standing to contest this search is premised on evidence which tends to show that defendants had no interest, possessory or otherwise, in the apartment where the guns were seized. However, regardless of the merits of the argument espoused by the government, we prefer to and do assume arguendo that the defendants possessed the requisite standing and go directly to the issue of the validity of the search warrant.

III. THE VALIDITY OF THE SEARCH

The essential question presented by defendants' objections to this search is whether there was probable cause for the issuance of the warrant pursuant to which the search was conducted. Since without the informer's tip the officers' information would have consisted solely of knowledge of the occurrence of the burglary and observation of the act of removing a heavy, cardboard box from a car into a vacant apartment, it is clear the reliability of the informer's tip is essential to the validity of the warrant. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In this case, as in most similar cases, the magistrate could easily have found that the affiant officer accurately repeated the informer's tip and that the tip, if true, furnished probable cause for issuance of a warrant. The focal problem in these cases, then, is whether the magistrate was given sufficient basis for crediting the informer's tip. This is a problem which has received considerable attention from the courts, notably the Supreme Court,⁴ to whose opinions we now turn.

A.

The convenient starting place in discussing Supreme Court caselaw on informers' tips is Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In that case the information the Supreme Court deemed sufficient to credit the tip was twofold. First, the officers swore to the informer's past reliability in furnishing information. Second, the reliability of the contents of this particular tip was shown by the fact the police independently corroborated every facet of the tip's detailed description of the suspect and his activities except the essential fact that he had heroin in his possession. Then, in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court laid down a standard for testing the credibility of informers' tips which took no cognizance of the Draper holding that corroboration of part of the tip infers the remainder is reliable. Instead, the Court held that the magistrate must be told not only "some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable'" but also "some of the underlying circumstances from which the informant" reached the conclusions conveyed in his tip. 378 U.S. at 114, 84 S. Ct. at 1514.

The Court soon made clear, however, that the prophylactic rule announced in Aguilar did not overrule Draper sub silentio. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court expressly reaffirmed Draper and enunciated the following alternative test:

"The informer\'s report must first be measured against Aguilar\'s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate\'s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar\'s tests without independent corroboration? Aguilar is relevant at this stage of the inquiry as well because the tests it establishes were designed to implement the long-standing principle that probable cause must be determined by a `neutral and detached magistrate,\' and not by `the officer engaged in the often competitive enterprise of ferreting out crime.\' Johnson v. United States, 333 U.S. 10, 14 68 S.Ct. 367, 92 L.Ed. 436 (1948). A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer\'s tip which — even when partially corroborated — is not as reliable as one which passes Aguilar\'s requirements when standing alone.

. . . In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused\'s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual\'s general reputation.

The detail provided by the informant in Draper v. United States, 358 U.S. 307 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark. While Hereford, the Government\'s informer in that case, did not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by

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