United States v. McCoy

Decision Date07 May 1973
Docket NumberNo. 72-1646.,72-1646.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Floyd McCOY, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

James M. Dunn, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., on the brief), for plaintiff-appellee.

David K. Winder, Salt Lake City, Utah, for defendant-appellant.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

Richard Floyd McCoy, Jr., was convicted by a jury of aircraft piracy under 49 U.S.C. § 1472(i)(1) and he now appeals his sentence of forty-five years. The only point raised on appeal concerns the validity of a search warrant which purported to authorize a search of McCoy's home. In view of the narrow issue presented to us for review, background facts need not be developed in detail.

A United Airlines plane en route from Denver, Colorado, to Los Angeles, California, was taken over by a so-called sky-jacker who by virtue of threats caused the pilot to change his course and land in San Francisco, California. There, the passengers were permitted to deplane and, pursuant to further direction of the sky-jacker, $500,000 in currency and several parachutes were brought aboard the plane. Still acting under threats from the sky-jacker, the pilot then flew the plane back to Utah, with the sky-jacker apparently bailing out near Provo, Utah, taking the $500,000 with him.

Two days after the sky-jacking, McCoy was arrested at his home in Provo, Utah. McCoy was immediately taken before a magistrate who advised him of his various constitutional rights. At the same time and place an FBI agent named William J. Geiermann presented his affidavit to the magistrate and asked for the issuance of a warrant to search McCoy's residence. The magistrate determined that probable cause was shown by Geiermann's affidavit, and issued a search warrant. However, the warrant signed by the magistrate, through someone's error or oversight, mistakenly identified the affiant as one Lote Kinney, Jr., also an FBI agent, instead of Geiermann. As indicated, Geiermann was the only one who had presented an affidavit to the magistrate in support of the request for a search warrant. The warrant itself was directed to Kinney, and he and others operating under his direction conducted the ensuing search of McCoy's residence. The search disclosed, among other things, $499,970 in currency, parachute and harness, grenade, gun and ammunition, and the like.

Four days prior to trial, counsel for McCoy filed a motion to suppress the various articles taken in the search of McCoy's home, alleging that the affidavit did not show "probable cause" for the issuance of a search warrant and that the search warrant itself was "insufficient on its face."

The motion to suppress came on for hearing at the commencement of the trial proper. At the conclusion of the relatively short hearing, the trial court stated that it would defer its ruling till the matter came up during the course of the trial. In the course of the trial, then, the circumstances surrounding the issuance of the search warrant were fully explored, initially out of the presence of the jury, and the trial court then denied the motion to suppress. Accordingly, the articles seized in McCoy's home by the FBI agents were received into evidence. As indicated, the only matter urged in this court concerns the propriety of the trial court's denial of McCoy's motion to suppress.

I.

As indicated, the affidavit upon which the issuance of the search warrant was based was that of agent Geiermann. McCoy's complaint about the sufficiency of the affidavit relates to the fact that the statements contained therein were all based on information acquired by Geiermann from others. In other words, Geiermann himself had no so-called firsthand information, and his statements were all based on what he had been told by other FBI agents who in turn had themselves acquired their information from others. The affidavit, then, according to counsel, is one based on double hearsay, if not indeed triple hearsay, and for that reason alone was insufficient to permit a finding by the magistrate that probable cause did exist for the issuance of the search warrant. Let us examine the affidavit a bit more closely.

In his affidavit, Geiermann stated that he had been advised by a fellow FBI agent from San Francisco that a passenger aboard the hijacked plane had been interviewed and that this passenger had viewed a number of photographs presented to him by the FBI and had identified a picture of McCoy as being a picture of the sky-jacker.

Geiermann in his affidavit also stated that he had been advised by a fellow FBI agent who had interviewed a stewardess aboard the sky-jacked plane that he had received from the stewardess a hand printed note which the sky-jacker had sent the pilot during the flight, and that he had been since advised by a document examiner at the FBI laboratory in Washington, D. C., that the writing on the hand printed note had been identified as being the handwriting of McCoy as contained in his official Army personnel records.

Also, in his affidavit, Geiermann stated that he had been advised by still another fellow FBI agent who had talked with a Utah state highway patrolman who served in the Air National Guard with McCoy and that the patrolman had informed him that McCoy was a sky-diver and that the two of them had discussion regarding a plane sky-jacking and that he had ascertained that on the night of the sky-jacking McCoy was not at home.

Without going into more detail, the foregoing is indicative of the type of information set forth in Geiermann's affidavit, which consisted of some six typewritten pages. It is correct to say that all of Geiermann's statements were based on information relayed to him by fellow FBI agents who had in turn acquired their information from others interviewed in the course of their particular investigative endeavors. In this regard see United States v. Ventresca, 380 U.S. 102 (1965), where it was held at page 111, 85 S.Ct. 741, 13 L.Ed.2d 684 that observations of a fellow Government officer engaged in a common investigation may form the basis for a warrant applied for by one of their number. So, then, it is quite true that the affidavit contained some double hearsay, and perhaps even a bit of triple hearsay. However, such fact in and of itself does not render the affidavit insufficient. In determining the sufficiency of an affidavit, the test is whether the affidavit sets forth sufficient underlying facts and circumstances to the end that the magistrate can make a detached judgment as to the reliability of the various sources of the affiant's information. The affidavit in the instant case easily measures up to that test.

That an affidavit for a search warrant may be based on hearsay is well established. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Indeed, such is usually the case. As concerns so-called double hearsay, the Eighth Circuit has held that when a magistrate receives an...

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