540 F.2d 1205 (4th Cir. 1976), 75-1068, United States v. Lee

Docket Nº:75-1068.
Citation:540 F.2d 1205
Party Name:UNITED STATES of America, Appellee, v. Bernard Jerome LEE, a/k/a James Wesley Carter, Appellant.
Case Date:May 17, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1205

540 F.2d 1205 (4th Cir. 1976)

UNITED STATES of America, Appellee,

v.

Bernard Jerome LEE, a/k/a James Wesley Carter, Appellant.

No. 75-1068.

United States Court of Appeals, Fourth Circuit

May 17, 1976

Argued Jan. 9, 1976.

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Gerald A. Kroop, Baltimore, Md. (Court-appointed), for appellant.

James A. Rothschild, Atty., U. S. Dept. of Justice, Washington, D. C. (Jervis S. Finney,

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U. S. Atty., Baltimore, Md., Peter M. Shannon, Jr., and Michael J. Remington, Attys., U. S. Dept. of Justice, Washington, D. C., on brief), for appellee.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Bernard Jerome Lee appeals his conviction for possession of a firearm in violation of 18 App.U.S.C. § 1202(a). 1 His principal contentions are (1) that evidence admitted against him was seized in an illegal search; the search is asserted to have been illegal because of an alleged material inaccuracy in a government agent's affidavit in support of an application for a search warrant; (2) that it was error to admit a witness' prior inconsistent grand jury testimony as substantive evidence; and (3) that the sentencing judge should not have taken into consideration evidence obtained in violation of the fourth amendment in fixing his punishment. We hold (1) that in the absence of intentional or reckless falsity by the affiant, a defendant is precluded from challenging, by way of a motion to suppress evidence, an affidavit sufficient on its face to establish probable cause; (2) a witness' prior inconsistent statement made under oath, as before a grand jury, may be received as substantive evidence; and (3) reliable but illegally-obtained evidence may generally be considered by the sentencing judge. We therefore affirm.

I.

At Lee's trial, evidence seized by agents of the Bureau of Alcohol, Tobacco and Firearms in search of premises at 4402 Fernhill Avenue, Baltimore, Maryland, was admitted over his objection. 2 The search was authorized by a warrant issued on August 24, 1973, by a United States Magistrate, on the basis of an affidavit by Special Agent William J. McMonagle of the Bureau. Although we do not quote the affidavit, it may be summarized as follows:

On July 30, 1973, one Katie Pearl Williams purchased a Colt AR-15 rifle from a federally-licensed firearms dealer in Baltimore. The rifle had moved in interstate commerce. In completing the forms necessary to effect the transaction, Williams denied ever having been convicted of a crime punishable by imprisonment for more than one year. On August 8, 1973, Williams purchased a Smith and Wesson revolver from the same dealer. The revolver also had travelled in interstate commerce. Williams again denied having been convicted of a crime punishable by more than one year's imprisonment.

The records of the District Court of Maryland reflected the conviction on June 6, 1972, of a Katie Lou Pearl Williams for possession of a deadly weapon, a crime which is punishable by imprisonment for not more than three years. On August 23, 1973, Agent McMonagle interviewed Williams. She admitted to being the person who was the subject of the June 6, 1972, state court action. 3 She

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further admitted that she had purchased the two firearms. She stated that she had taken the weapons to her boyfriend's house at 4402 Fernhill Avenue.

On the basis of this and other information (not material here) contained in McMonagle's affidavit, the magistrate found that there was probable cause to believe that a firearm was being concealed at 4402 Fernhill Avenue, in violation of 18 App.U.S.C. § 1202(a), which makes it a crime for any person who has been convicted by a state or federal court of a felony to possess a firearm; and the warrant was issued.

Lee claims that Williams was in fact not convicted of a felony within the meaning of 18 App.U.S.C. § 1202(a), because her conviction was entered upon a plea of nolo contendere. Lee argues that under Maryland law 4 such a conviction has no effect outside the case in which it is entered, and that therefore it should not trigger the disability from possessing firearms imposed by 18 App.U.S.C. § 1202(a). It follows, so the argument runs, that there was therefore not probable cause on August 24, 1973, when the warrant was issued, to believe any crime had been committed; that the warrant was thus invalid; and that the ensuing search was therefore illegal and its fruits should not have been admitted into evidence against Lee.

Were we to reach this issue and decide that a Maryland conviction entered upon a nolo plea is not a "conviction" under the federal firearms statute, we would be compelled to hold that the seized evidence should have been suppressed, for there is no doubt that the fact of Williams' "conviction" was material to a finding of probable cause. We find it unnecessary to decide the question, however, because we conclude in the instant case that Lee has neither alleged nor shown a legally sufficient basis on which to attack the accuracy of the statements contained in the affidavit.

Although the basis of our decision was neither raised nor briefed by the parties, the question of the extent to which a person challenging the existence of probable cause may go behind the face of an affidavit has received divers answers from the federal courts. 5 The Supreme Court "has never passed directly on the extent to which a court may permit such examination (of the warrant's validity) when the search warrant is valid on its face and when the allegations of the underlying affidavit establish 'probable cause' . . . ." Rugendorf v. United States, 376 U.S. 528, 531-32, 84 S.Ct. 825, 827, 11 L.Ed.2d 887 (1964). Early cases held the allegations of the affidavit conclusive. Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442 (1946); United States v. Brunett, 53 F.2d 219, 225 (W.D.Mo.1931). At present, the courts of appeals appear to be divided on the issue.

In United States v. Carmichael, 489 F.2d 983, 987-90 (7 Cir. 1973) (in banc), the Seventh Circuit Court held that an innocent or merely negligent material 6 misrepresentation

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in an affidavit would not justify suppression of the resulting evidence: "evidence should not be suppressed unless the officer was at least reckless in his misrepresentation." Id. at 989. The Eighth Circuit explicitly adopted this standard in United States v. Marihart, 492 F.2d 897, 900 (8 Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974). The Sixth Circuit has apparently reached a similar conclusion. See United States v. Bowling, 351 F.2d 236, 241-42 & n. 2 (6 Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966).

On the other hand, in United States v. Upshaw, 448 F.2d 1218, 1222 (5 Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972), and United States v. Morris, 477 F.2d 657, 662 (5 Cir.), cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973), the Fifth Circuit held that any material misstatement in an affidavit will vitiate the warrant and require suppression of the seized evidence; the officer's good faith and carefulness are irrelevant. This is also the view of the Tenth...

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