517 F.2d 377 (2nd Cir. 1975), 888, United States v. Burke

Docket Nº:888, Docket 75-1021.
Citation:517 F.2d 377
Party Name:UNITED STATES of America, Appellee, v. Martin F. BURKE, Appellant.
Case Date:May 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 377

517 F.2d 377 (2nd Cir. 1975)

UNITED STATES of America, Appellee,

v.

Martin F. BURKE, Appellant.

No. 888, Docket 75-1021.

United States Court of Appeals, Second Circuit

May 15, 1975

Argued April 8, 1975.

Page 378

Thomas P. Smith, Asst. U. S. Atty. (Peter C. Dorsey, U. S. Atty., D. Conn., of counsel), for appellee.

David S. Golub, West Hartford, Conn., for appellant.

Before FRIENDLY and FEINBERG, Circuit Judges, and LASKER, District Judge. [*]

FRIENDLY, Circuit Judge:

Martin Burke appeals from a judgment of the District Court for Connecticut convicting him, on a plea of guilty, of unlawful possession of an unregistered, sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. 1 The basis for appeal is an alleged error of Chief Judge Clarie in denying, without an evidentiary hearing, a motion to suppress the shotgun because of the asserted invalidity of the search warrant under which the gun was seized from Burke's home in Hartford.

We deal preliminarily with the question whether the issue is properly before us. We said in United States v. Doyle, 348 F.2d 715, 718 (2 Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15

Page 379

L.Ed.2d 84 (1965), with citation of abundant supporting authority, that

(t)he cases are legion that "(a) plea of guilty to an indictment is an admission of guilt and a waiver of all non-jurisdictional defects."

However, we recognized, as the Supreme Court apparently had done without discussion in Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), that an appeal would lie in such a case on an issue not going to guilt when there had been "(a) plea expressly reserving the point accepted by the court with the Government's consent." 348 F.2d at 719 (footnote omitted). In a number of later decisions this court has recognized the exception stated in Doyle in some cases finding that the conditions spelled out in that opinion had not been met, United States v. Mann, 451 F.2d 346 (2 Cir. 1971); United States v. Selby, 476 F.2d 965 (2 Cir. 1973), in another finding that they had been, United States v. Rothberg, 480 F.2d 534 (2 Cir. 1973). See, accord, United States v. D'Amato, 436 F.2d 52 (3 Cir. 1970). Here Burke expressly reserved his right to appeal the denial of his suppression motion and the trial judge approved. The prosecutor said nothing. While arguably the lack of express consent by the prosecutor would be fatal under the language of United States v. Mann, supra, 451 F.2d at 347, in that case there was no approval by the judge, who indeed said, "I make no judgment at this time whether there is an appealable motion or whether any relief can be granted." We think that when a defendant has expressed a desire to plead guilty on condition that he be permitted to preserve the right to appeal on an issue not going to guilt and the judge tentatively indicates willingness to approve this, it is up to the prosecutor to object if he wishes; otherwise silence on his part is sufficient assent. Indeed the Government does not argue otherwise. We therefore proceed to the merits.

The search warrant, issued in Hartford by Judge J. Robert Lacey of the Circuit Court of Connecticut, authorized the search of Burke's apartment for a sawed-off shotgun therein described. Both the warrant and the Affidavit and Application for it were on Connecticut state forms. The Affidavit and Application was signed and sworn to by two members of the Connecticut State Police and a member of the United States Treasury Department, Alcohol, Tobacco and Firearms Division. In the portion of the Affidavit and Application following the description of the property to be seized, the name of the person said to possess it, and the identification of the place to be searched, there was a printed legend which says, in reference to the property, that it "is or has been or may be used as the means of committing the crime of". This statement had been completed with the following: "To receive or Possess a Firearm, which is not Registered to Him in the National Firearms Registration and Transfer Record. Title 26, USC Sec. 58-61d(5861(d))." The allegations of probable cause were

  1. That, on 8-21-73, at 0755 hrs., Lonnie C. Thompson, of 104 Kensington St., Htfd., Conn., was interviewed and submitted a written statement and will testify to the fact that on 8-20-73, at 1645 hrs., he was in Apt. # 3, on 279 Westland St., Htfd., Conn., resided in by Martin Burke, and had seen a sawed-off shotgun in the apartment's bedroom.

  2. That, Thompson further states, that he has been told by Burke that the shotgun was stolen in a burglary.

  3. That, as a result of the receipt of the information a check was conducted to search the National Firearms Register and Transfer Record, in Washington D. C. Special Agent Hampp was informed that no record could be found of any firearm registered to Martin Burke, of 279 Westland St., Htfd., Conn., this being a violation of Title 26, USC Sec. 58-61d(5861(d)).

Burke contends that the warrant was bad on its face because of the inadequacy of its showing of probable cause and

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because of the failure of the warrant to comply with certain requirements of F.R.Crim.P. 41(c).

I.

The contention of an inadequate showing of probable cause is bottomed on the absence from the affidavit of a recital that Thompson was known to the affiants to be a reliable informant, as Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), are claimed to require. Apart from the question of the precise standing of Spinelli after United States v. Harris, 403 U.S. 573, 581-83, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (qualification of Spinelli by Chief Justice Burger in portion of opinion joined by Justices Black and Blackmun), 585-86, 91 S.Ct. 2075 (Justice Black would overrule both Aguilar and Spinelli ; Justice Blackmun would overrule Spinelli ), see United States v. Unger, 469 F.2d 1283, 1286 (7 Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973), there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime. Indeed any other view would mean that, despite the 1972 amendment to F.R.Crim.P. 41(c) to the effect that "(t)he finding of probable cause may be based upon hearsay evidence in whole or in part," it would generally be impossible to use hearsay statements of victims or witnesses since ordinarily they would not be previously known to the police.

A pioneering case in this development was McCreary v. Sigler, 406 F.2d 1264, 1269 (8 Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969), decided within a few weeks after Spinelli. Judge Clark's opinion in United States v. Bell, 457 F.2d 1231, 1238-39 (5 Cir. 1972), dealing with an arrest warrant, contains a particularly good exposition, which we quote in the margin. 2 To the same effect are United States v. Mahler, 442 F.2d 1172, 1174-75 (9 Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. Unger, supra, 469 F.2d at 1287 n.4 an opinion we prefer to the later decision of a divided Seventh Circuit panel in United States ex rel. Saiken v. Bensinger, 489 F.2d 865 (7 Cir. 1973); United States v. McCoy, 478 F.2d 176, 179 (10 Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); and Cundiff v. United States, 501 F.2d 188, 189-90 (8 Cir. 1974). Our own cases are in accord. In United States v. Sultan, 463 F.2d 1066, 1068-69

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(2 Cir. 1972), we upheld the sufficiency of an affidavit in a bankruptcy fraud case where the showing of probable cause consisted primarily of a hearsay statement by a cousin of the defendant that the latter had told him that assets of the bankrupt were being concealed from the trustee in the premises proposed to be searched. More recently we have upheld a district court in finding probable cause to arrest on the basis, inter alia, of hearsay statements of a participant in the crime despite the absence of evidence that he had been a reliable informant, saying:

To require a showing of previous reliability by such a person would, as in the case of a victim or a witness, see Wisconsin v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971), make his information totally unavailable, despite the peculiar likelihood of its accuracy. Such information is toto coelo removed from a "meager report" that "could easily have been obtained from an offhand remark heard at a neighborhood bar", as to which prior history of providing accurate information is required. Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969).

United States v. Miley, 513 F.2d 1191, 1204 (2 Cir. 1975).

Viewed in the light of these decisions, the affidavit was sufficient; it made evident that Thompson had been in the bedroom of Burke's apartment and had talked with Burke about the gun, or at least that he had said so. See United States v. Sultan, supra, 463 F.2d at 1068. To be sure, it would have been better if the affidavit had recited how Thompson had come to see and hear what he did and still better if there had been an affidavit by Thompson himself, as in Ignacio v. People of Territory of Guam, 413 F.2d 513 (9 Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970), and United States v. Rajewich, 470 F.2d 666, 668 (8 Cir. 1972), but it is clear to us that the magistrate had "a ' "substantial basis" for crediting the hearsay.' United States v. Harris, supra, 403 U.S. at 581, 91 S.Ct. (2075) at 2080 (plurality opinion)." United States v. Sultan, supra, 463 F.2d at 1069. It is...

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