489 F.2d 664 (5th Cir. 1973), 73-1403, United States v. Thomas

Docket Nº:73-1403.
Citation:489 F.2d 664
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Titus THOMAS, aka Tee, Defendant-Appellant.
Case Date:December 19, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 664

489 F.2d 664 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Titus THOMAS, aka Tee, Defendant-Appellant.

No. 73-1403.

United States Court of Appeals, Fifth Circuit.

December 19, 1973

Robert Glass, New Orleans, La., for defendant-appellant.

Page 665

Gerald Gallinghouse, U.S. Atty., Mary Williams Cazalas, Asst. U.S. Atty., New Orleans La., for plaintiff-appellee.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

TUTTLE, Circuit Judge:

This case primarily concerns the extent to which misrepresentations in affidavits by Government agents vitiate the search warrant issued pursuant thereto. Appellant Titus Thomas, a/k/a Tee, was convicted of possession of 128.46 grams of heroin, a Schedule I narcotic drug substance, in violation of 21 U.S.C. § 841(a)(1). This appeal seeks reversal on three grounds: (1) that the admitted misrepresentations in the affidavit by agent Phillips should vitiate the search warrant; (2) that the search conducted at night was illegal; and (3) that the arrest and search incident thereto were invalid. We readily find no merit in the latter two contentions, but determine that his case presents substantial questions regarding the standards for evaluating affidavits containing misrepresentations.

However, careful consideration causes us to hold that this affidavit, purged of the factual errors, is sufficient to support the search warrant because (1) the misrepresentations were not intentionally 1 made and (2) if unintentionally committed, the misrepresentations were not material to the showing of probable cause.

I. FACTS

The facts are undisputed. On May 8, 1972, agent Phillips of the Bureau of Narcotics and Dangerous Drugs made the following affidavit in support of his application for a search warrant:

'According to two reliable informants hereto referred to as Source 1 and Source 2 (both informants have furnished intelligence in the past that has led to the arrest and seizures of heroin) James H. FINLEY is a heroin trafficker. Source 1 supplied intelligence on September 20, 1971, that FINLEY conferred with him and at this time FINLEY stated that he was supplying numerous southern cities and that he wanted to expand his operations to include New Orleans. 'At this time FINLEY advised Source 1 that he would supply him with large quantities of heroin in the near future. FINLEY was driving a 1971 Lincoln bearing Alabama license 2A15335. The vehicle was registered to him at 470 East Ridge Road, Mobile, Ala. 'On Monday, May 1, 1972 Source 1 advised Affiant that FINLEY was in New Orleans and that FINLEY had sent an unknown male to him to advise him that FINLEY had a supply of heroin and could supply him with as much heroin as he wanted. Source 1 attempted to get in touch with FINLEY with negative results. 'On Sunday, May 7, 1972 Source 2 called Affiant and states that he had met earlier in the day with FINLEY and that FINLEY was residing at 2116 Iberville Street . . . Source 2 stated that he went to 2116 Iberville Street and talked with FINLEY about selling drugs for him. Source 2 told FINLEY that he was too afraid to do it. FINLEY explained to the source that he had rented an apartment across the street at 2117 Iberville and that he was keeping his cache at that location. FINLEY stated that he had to package some heroin and at this time he took Source 2 to the apartment (as described below). The Source related that FINLEY lifted the bed in the apartment and removed a small suitcase and removed numerous packages. Source 2 then advised he left the apartment and told FINLEY that he was afraid of being caught by the police.

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'On Sunday, May 7, 1972 at approximately 6:00 PM Affiant placed the premises of 2116 and 2117 under surveillance. At approximately 7:45 PM Affiant observed an unknown Negro male exit 2116 Iberville, go across the street to the door between 2115 and 2117 Iberville, use a key and enter the door. In approximately three minutes the unknown Negro male exited the premises and walked to the corner of Galvez Street and turned out of affiants' vision. In approximately five minutes the unknown Negro re-appeared and walked back and entered 2116 Iberville Street. 'WHEREFORE Affiant respectfully requests . . . that a nighttime warrant pursuant to section 509 of the Controlled Substances Act . . . be issued because of the need to search at the next most reasonable opportunity and because in my experience as a narcotics investigator drugs are likely to be more open for delivery and dealing at night and thus more exposed to seizure under a search warrant.'

The name, 'James H. Finley' was capitalized as shown in the above recital. At the hearing on the motion to suppress, agent Phillips admitted that the informants mentioned in the affidavit did not designate the party discussed by the name of 'James H. Finley,' but consistently referred to him as 'Tee' during each conversation with Phillips. It was Phillips' testimony that he, not the informants, as stated in the affidavit ascribed the name 'James H. Finley' to the party discussed by the informants based on certain deductions after additional investigation. The affidavit, however, clearly states that the informants avowed that 'James H. Finley' had shown source 2 the narcotics and had solicited both sources 1 and 2 as salesmen.

Source 1 had related to Phillip that 'Tee' met him in a 1971 Lincoln with an Alabama license tag 2A15335. Agent Phillips discovered through further investigation that this 1971 Lincoln had been associated in the Bureau of Narcotics and Dangerous Drugs Office in Mobile, Alabama with heroin traffic and was registered to 'James H. Finley.' Phillips deduced that 'Tee' was 'James H. Finley' and used this name in the affidavit. Phillips did not learn that the man arrested was the appellant Titus Thomas who was the same person known as 'Tee' until after appellant's arrest.

Agent Phillips obtained the search warrant around 8:00 or 9:00 p.m . on May 8, 1972. The search warrant was executed shortly thereafter, at approximately 10:00 p.m., at 2115-2117 Iberville Street, New Orleans, Louisiana, by agents Phillips, Costa and Curry. The landlady furnished these officers a key to 2117 after they showed her the search warrant; heroin was found both under the bed and in a locked suitcase. After seizing the contraband the officers proceeded to an area directly across from the premises searched and observed the front of 2116 Iberville Street. The landlady stated that Dickinson and Titus Thomas were the occupants of the apartment, and described Thomas as fifty years old, with receding hair, graying mustache, bright skin, heavy set and about six feet tall. While waiting across the street the agents observed Dickinson enter the apartment with a woman. After approximately ten or fifteen minutes, Dickinson, Thomas and two women left 2116 Iberville, and proceeded down the sidewalk. They stood for a moment or two; it appeared that they were going to separate; the women began to leave. The officers arrested Thomas and Dickinson as they were stepping off the curb on the side of the street opposite them at 2117 Iberville. The keys in Thomas' pocket fit the suitcase and the door to 2117 Iberville where the heroin had been located.

Phillips did not state to the magistrate his reason for believing 'Tee"s name was 'James H. Finley.' Phillips had assumed that 'Finley' and 'Tee' were the same persons since September of 1971, the time the circumstances concerning the automobile occurred. Also, both informants had stated that 'Tee' was from Mobile, Alabama, the residence

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of 'Finley.' The record does not reflect the specific physical description the two informants gave to Phillips of the persons they separately referred to as 'Tee,' but Phillips testified that the description of the person he was investigating was:

'He was brown skinned, 45 years old. He would have had short hair, heavyset, heavy build, 230, 240 pounds, black male.'

Phillips had conducted a surveillance of 2116-2117 Iberville Street on the night prior to the issuance and execution of the search warrant on May 8, 1972. Phillips noted in the affidavit that on May 7, 1972, he observed a 'Negro male' entering the apartment, but did not give any further description of this man. For these reasons, Phillips maintains that he did not intentionally misstate the facts in the affidavit prepared on May 8, 1972, because he believed 'Tee' to be 'Finley.'

The trial court found that Phillips maintained a good faith belief based upon his investigation that 'Tee' was in reality a man named 'Finley.' The erroneous theory of 'Tee"s true identity was deemed trivial and insignificant as regarding the magistrate's determination of probable cause. The court upheld the nighttime search and did not discuss the validity of the arrest.

II. MISREPRESENTATION IN AFFIDAVITS

The vast majority of decisions resolving attacks on the sufficiency of affidavits underlying search warrants are reached on the assumption that the affiant's statements are true. But how is a court to deal with a defense attack on the veracity of statements made by the affiant or other government agents? This Court's task is twofold: (1) to determine...

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