Quigg v. Estelle
| Citation | 492 F.2d 343 |
| Decision Date | 11 February 1974 |
| Docket Number | No. 72-2169.,72-2169. |
| Parties | Gary Lee QUIGG, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Warden, Montana State Prison, and the State of Montana, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
David J. Patterson (argued), Mont., Defender Project, Missoula, Mont., for petitioner-appellant.
Jonathan B. Smith, Asst. Atty. Gen. (argued), Robert L. Woodahl, Atty. Gen. of Mont., David V. Gilko, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.
Before MERRILL and TRASK, Circuit Judges, and KELLEHER,* District Judge
Appellant was convicted of first degree murder in a Montana State Court on March 31, 1969; the Montana Supreme Court affirmed. State v. Quigg, 155 Mont. 119, 467 P.2d 692 (1970). Appellant then petitioned the United States District Court for the District of Montana for a writ of habeas corpus. In support of his petition, appellant argued that: (1) The affidavits in support of the search warrants used to procure evidence used against him in his trial did not establish probable cause for issuance of those warrants, and (2) The warrants in question violated the Fourth Amendment because they were "general warrants" and did not describe the items to be seized with the required particularity. The District Court found both of these contentions to be without merit and denied the petition. We affirm.
The question presented by petitioner centers around the use of an unidentified informant's hearsay statements that the defendant was known to have guns similar to the one used in the murder and that the informant believed such guns were kept in petitioner's home or automobile. The portion of the affidavit in question reads as follows:
"That Gary Lee Quigg is known to have had .22 guns in his possession, a caliber which is identical with the gun caliber that killed Mr. Robbins and said guns were believed kept in the home or kept in automobiles in possession of said Gary Lee Quigg."
Petitioner questions the absence of any showing before the magistrate of factual observations in the affidavit which led the Justice of the Peace to credit the conclusionary statements therein that the guns were in the possession of the defendant; appellant argues that the affidavit does not satisfy the test set down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Aguilar requires that a magistrate or justice of the peace be presented with some of the underlying circumstances from which an informant concludes that the object of the search is where the informant claims it to be, and some of the underlying circumstances from which the affiant concludes that the informant was credible or his information reliable. Petitioner asserts that Aguilar has not been satisfied because the Montana Justice of the Peace who issued the warrant had before him none of the underlying circumstances on which to base his assessment of the informant's conclusion that the items to be seized were in defendant's home or automobile.
Petitioner would ask us to scrutinize the affidavit and require it support a finding of fact by the magistrate that the gun was in his possession, or at his home, before a warrant could issue. Such a strict standard is not required. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 2079, 29 L.Ed.2d 723 (1971).
In the present case, the relevant facts from which the Justice of the Peace found probable cause to issue the warrant are summarized as follows: (1) On April 8, 1968, in Yellowstone County, Montana, Lee Robbins was killed; (2) Near Robbins' body were found shell casings of a gun similar in caliber to the gun which killed Robbins; (3) In June 1968 a crime was committed in Stillwater County, Montana, in which shell casings were found. F.B.I. analysis demonstrated that these shell casings were fired by the same gun that fired the shell casings found near Robbins' body; (4) A participant in the Yellowstone County crime told police that one of the other two participants in that crime had fired a gun in the commission of the crime; (5) Petitioner was one of the three participants in the Yellowstone County crime and was known to own a gun of the caliber used to kill Robbins and used in the commission of the Yellowstone County crime.
Such facts might clearly lead a reasonably prudent man to believe that petitioner had the murder weapon in his possession. The...
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