U.S. v. Pond

• Citation: 523 F.2d 210
• Decision Date: 28 August 1975
• Docket Number: D,1117,Nos. 1075,s. 1075
• Parties: UNITED STATES of America, Appellee, v. Steven POND and David Fanelli, Appellants. ockets 75-1100, 75-1131.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 210

523 F.2d 210

UNITED STATES of America, Appellee, v. Steven POND and David Fanelli, Appellants.

Nos. 1075, 1117, Dockets 75-1100, 75-1131.

United States Court of Appeals, Second Circuit.

Argued June 6, 1975.

Decided Aug. 28, 1975.

Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society of New York, New York City, on the brief), for appellant Pond.

John D. Jessep, Bridgeport, Conn., for appellant Fanelli.

Michael S. Devorkin, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, Lawrence S. Feld, Asst. U. S. Atty., on the brief), for appellee.

Before SMITH, ANDERSON and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents two questions first, whether an unidentified but reliable informant's detection of marijuana using his sense of smell alone may provide probable cause for the issuance of a search warrant; second, whether the warrant issued in this case is valid despite a negligent misrepresentation by the officer in the underlying affidavit. The officer mistakenly had stated to the issuing magistrate that the informant had noted the unusual weight of the odiferous baggage in arriving at his conclusion that it contained the forbidden herb. We answer these questions affirmatively and hence affirm.

Appellant Pond checked a suitcase and footlocker on an Amtrak train, the "Broadway Limited," from San Diego, California, to New York, New York. The San Diego station agent, Mr. Dunbar, smelled what he believed to be the aroma of marijuana emanating from Pond's luggage. Dunbar had frequently been exposed to marijuana shipments (San Diego being only 17 miles from the Mexican border) and had accurately detected marijuana using his sense of smell as a determining clue in approximately half of 25 to 30 cases in which he had provided information to federal authorities. Dunbar telephoned his discovery, a description of Pond and the latter's baggage, with baggage tag numbers, and New York arrival time to San Diego DEA Agent McCravy, who relayed it to New York DEA Agent Sweikert. Agent Sweikert executed an affidavit relating that in Sweikert's experience San Diego was a convenient point of embarkation for marijuana shipments, setting forth Dunbar's information, and giving details of Dunbar's experience in olfactory detection of marijuana. ¹ The affidavit also contained the mistaken assertion that the informant had relied on the "disproportionate ratio of baggage weight to size." A warrant was procured. Pond and his friend, appellant Fanelli, picked up the baggage at the claim counter in New York and were arrested as they left the station with it. Some 44 bricks (77 pounds) of marijuana were found. ² Appellants' motions to suppress this evidence were denied by Lawrence W. Pierce, Judge, United States v. Pond, 382 F.Supp. 556 (S.D.N.Y.1974). Following preservation of the suppression issues for appeal under the procedure most recently approved in United States v. Faruolo, 506 F.2d 490, 491 n.2 (2d Cir. 1974), appellants were convicted in the United States District Court for the Southern District of New York on pleas of guilty to conspiracy to violate the narcotics laws (21 U.S.C. § 841(a)(1), (b)(1)(A) and possession with intent to distribute.

Appellants argue that the affidavit was insufficient because the allegations relating to the informant's smelling marijuana were inadequate to establish probable cause. ³ They concede that smell alone may justify issuance of a warrant if the affiant is qualified to know the odor and the odor is distinctive. United States v. Lewis, 392 F.2d 377, 378-79 (2d Cir.), Cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948). See United States v. Bronstein, 521 F.2d 459, 461-462 (2d Cir. 1975); United States v. Johnston, 497 F.2d 397 (9th Cir. 1974). But they argue strenuously that the warrant must fail because the informant was not the affiant here, as in Lewis, supra, and a magistrate therefore could not determine the informant's qualifications to know the odor under Johnson, supra.

We join the district court in rejecting the appellants' contention that where the informer does not appear before the magistrate, his qualification to know the odor of marijuana cannot be evaluated. The magistrate could justifiably conclude from the affidavit that the informant was an experienced smeller of marijuana, with a proven ability to detect that odor even through the walls of suitcases. Although the affidavit here does not specify the number of seizures for which the informant's sense of smell alone was responsible, it does describe one such occasion in detail, and affirms the "invariabl(e)" accuracy of the sense of smell in similar circumstances. ⁴ While it would have been preferable, as we stated in Lewis, for the informant here to have appeared before the magistrate, we agree that the affidavit disclosed a "substantial basis" for an independent conclusion that the informant was qualified to detect the odor of marijuana. See United States v. Harris, 403 U.S. 573, 579-80, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). It cannot be disputed that marijuana has a distinctive pungent odor, See United States v. Bronstein, supra, 521 F.2d at 461; United States v. Blair, 366 F.Supp. 1036, 1040 (S.D.N.Y.1973), even conceding that it may have been to some extent disguised here, See note 2 Supra. The requirements of Johnson and Lewis for probable cause based on smell alone have been met.

We are equally unimpressed with the contention that the affidavit does not reveal the underlying circumstances upon which the informant based his conclusions, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). As in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), it is reasonable to infer from the face of the affidavit that the information given is based upon the personal knowledge of the informant. The affidavit states that the informant "has detected the aroma of marijuana from the aforementioned baggage and that . . . he has concluded that a large amount of marijuana is being transported . . .." Paragraph Seven of the affidavit, note 3 Supra. We think that the magistrate could well infer from the affidavit as a whole that the informant was a station agent or baggage master who, having successfully detected marijuana in the past, had checked a train passenger's luggage, in the process smelling it personally, and concluded, correctly as it turned out, that marijuana was present in the suitcases.

We concur with the district court that the affidavit established the general reliability of the informant, as further required by Aguilar, supra. Indeed, in United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972), a recitation, such as that in Paragraph Six of the affidavit here, Supra note 3, that the informant previously provided information resulting in arrests and seizures of large quantities of marijuana was alone sufficient to establish the informant's reliability. We find in this case even more ample indicia of the informant's reliability than were present in Sultan.

Appellants also argue that the affidavit contained a misrepresentation which they argue was knowing (and therefore intentional) as well as material, either of which would support a reversal under United States v. Gonzales, 488 F.2d 833 (2d Cir. 1973). See also United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) (en banc) (warrant voided when misstatement recklessly untruthful and material); Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). The court below found that there was a misrepresentation of disproportionate weight, 382 F.Supp. at 556, even...