U.S. v. Anderson

• Decision Date: 27 September 1974
• Docket Number: No. 73-2774,73-2774
• Citation: 500 F.2d 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian A. ANDERSON, Richard Quentin Felts, and Paul William Spicer,Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1311

500 F.2d 1311

UNITED STATES of America, Plaintiff-Appellee, v. Brian A. ANDERSON, Richard Quentin Felts, and Paul William

Spicer,Defendants-Appellants.

No. 73-2774.

United States Court of Appeals, Fifth Circuit.

Sept. 27, 1974, Rehearing and Rehearing En Banc Denied Nov. 22, 1974.

Dick DeGuerin, Houston, Tex., for defendants-appellants.

Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellants Brian A. Anderson, Richard Quentin Felts, and Paul William Spicer appeal from convictions for violating various parts of the federal narcotics law. ¹ Additionally, Spicer appeals his conviction for carrying a firearm during the commission of a felony. ² An informant's tip provided the initial impetus for the investigation leading to the arrests of the appellants, but additional evidence of the informant's credibility was provided by police surveillance and investigation. Because we find there was sufficient independent observation to corroborate the details of the tip and thus negate the possibility that the informer fabricated his report or passed on unreliable rumor, we affirm the judgment of the district court. ³

I. THE FACTS

As in most search and seizure cases, the facts here are extremely important. Although they are not in substantial dispute, they are recounted in some detail.

On February 4, 1973, at about 5:00 p.m., Customs Agent George H. Murray received information from an undisclosed but previously very reliable informant ⁴ that five persons were in McAllen, Texas, for the purpose of purchasing narcotics, which they intended to transport to Fort Wayne, Indiana. ⁵ The informant provided Murray with a list of names which consisted of 'Church,' 'Betz,' and the names of the three appellants. The informant further indicated that he had seen these persons in McAllen on a previous occasion when they had come to pick up narcotics and that they were using the same mode of operation that they had used on the previous trip: they rented two vehicles in McAllen, one to be used for local operations and the other to be taken to Fort Wayne.

Investigation by customs agents confirmed that Brian A. Anderson had rented a 1973 Pontiac from National Car Rental earlier that afternoon, the car to be returned to Fort Wayne. Gregory C. Church rented a 1973 Chevrolet for local use at the same time. Murray then located the appellants in McAllen using the information he gained from the informant and the auto rental agency. By checking motel records, he found that two rooms in the Rodeway Inn were rented in the names of 'Church' and 'Spicer,' respectively.

Murray then began an intermittent surveillance of the appellants which revealed no criminal activity. On February 26, a Monday, the three appellants, as well as Betz and an unidentified female who arrived the night of February 24, checked out of the Rodeway Inn and into the Quality Motel in Pharr, Texas. The three appellants occupied room 102 and the other persons room 103. The three appellants paid for their room in advance.

On the morning of Tuesday, February 27, Betz and the woman left the motel. Later that same morning, murray and two other officers saw three individuals load the two rented cars with boxes and other luggage and depart. As the Chevrolet passed the surveillance point, Murray recognized Spicer and Felts in the car; Murray followed the Pontiac, since that car was to be returned to Fort Wayne. At Donna, Texas, on Expressway 83, the car was stopped and searched. Anderson, the only occupant, was arrested. The search revealed four cardboard boxes containing marijuana.

Felts and Spicer were not followed from the motel, but were subsequently seen and photographed by other agents in downtown McAllen. Later that same day at the McAllen. airport, Murray observed Felts and Spicer check three pieces of luggage at an airline counter and return the 1973 Chevrolet to the National Car Rental. Both Felts and Spicer were arrested and searched. Murray took the baggage claim checks from Spicer's ticket and recovered the luggage Spicer and Felts had checked, which was already aboard the plane. Spicer and Felts each claimed one of the bags, but both disclaimed ownership of the third bag, although it was checked on Spicer's ticket and Murray had seen were taken to the police station where all the luggage was opened and searched without a warrant. Felts' suitcase contained marijuana; Spicer's luggage contained a book of addresses, along with other incriminating memoranda; ⁶ the unclaimed suitcase, which was checked on Spicer's ticket, contained a pistol with Spicer's thumbprint on the holster and other incriminating paraphernalia. ⁷

At trial to a jury, counsel for all defendants objected to the introduction of the evidence seized in the search of Anderson's car, claiming there was not probable cause for the search or for his arrest. Counsel for Spicer and Felts also objected to the introduction of evidence obtained from a warrantless search of the suitcases they checked at the airport, alleging the lack of exigent circumstances. All objections were overruled by the court and defendants were convicted on the counts charged. All defendants now appeal, alleging as error the introduction of evidence objected to at trial. We consider the issues seriatim.

II. ANDERSON'S SEARCH AND ARREST

While searches conducted without the prior issuance of a warrant are, for the most part, per se unreasonable, Katz v. United States,389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), there are a few clearly delineated exceptions to the warrant requirement of the Fourth Amendment. Among these is the warrantless search of a moving automobile, long accepted and justified on the basis of exigent circumstances. See Chambers v. Maroney,399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). A contemporaneous search of containers in the vehicle which could reasonably be employed in the illicit carriage of contraband is also constitutionally permissible. United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc); United States v. Chapman, 474 F.2d 300 (5th Cir. 1973). Such searches of the automobile and containers therein may be performed only where officers conducting the search have probable cause to believe they will find evidence pertaining to a crime. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973); United States v. Troise, 483 F.2d 615 (5th Cir. 1973). We believe that the requirements of probable cause for a warrantless search are met in this case.

Since the informant's tip initiated the investigation, it must be the focal point of the probable cause analysis. Use of an unnamed informant's tip to establish probable cause has been a cource of frequent litigation in the courts. Recent cases have relied upon what has come to be known as the Aguilar-Spinelli test-- drawn from two celebrated Supreme Court cases-- to assess the tip's usefulness for both searches pursuant to warrants and warrantless arrests and searches. ⁸

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), held that the affidavit supporting the issuance of the search warrant must present sufficient objective evidence to enable a magistrate to conclude that the unnamed informant is credible or that his information is reliable, and the affidavit must set forth some of the underlying circumstances which reveal the source of the informant's information pertaining to criminal activity. The Aguilar test was modified in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) where the court held that the latter 'prong' of Aguilar can be met by description in the affidavit of criminal activity 'in sufficient detail that the magistrate may know (the informant) 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,' id. at 416, 89 S.Ct. at 589, and that even an undisclosed informant's tip found wanting under the Aguilar test may provide the basis for a finding of probable cause if parts of it have been corroborated by independent sources, id. at 415, 89 S.Ct. 584; see United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).

Recent applications of the Aguilar-Spinelli test indicate that less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agents yields sufficient verification or corroboration of the informant's report to make it apparent the report was not fabricated. United States v. Squella-Avendano, supra, 447 F.2d at 580; accord United States v. Canieso,470 F.2d 1224, 1231 (2nd Cir. 1972); United States v. Acarino, 408 F.2d 512, 515 (2nd Cir. 1969). And the veracity of an unknown informer can be sufficiently determined by the searching officer's personal observation of some activity which is consistent with the tip but which would appear harmless without it. Thompson v. White, 406 F.2d 1176, 1178 (5th Cir. 1969); United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2nd Cir. 1968); Bailey v. United States, 386 F.2d 1, 3 (5th Cir. 1967).

Since the informant in this case had provided information leading to the seizure of narcotics eight times within the preceding eight months, the first prong of the Aguilar test is met. Likewise, the independent corroboration of the informant's tip satisfies the second prong of the test as modified by later opinions. The informant told Murray that the appellants were in town and described their mode of operation. Murray's...