633 F.2d 902 (9th Cir. 1980), 79-1378, United States v. Whitney

Docket Nº:79-1378.
Citation:633 F.2d 902
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles WHITNEY, Defendant-Appellant.
Case Date:December 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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633 F.2d 902 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,


Charles WHITNEY, Defendant-Appellant.

No. 79-1378.

United States Court of Appeals, Ninth Circuit

December 9, 1980

Submitted May 5, 1980.

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[Copyrighted Material Omitted]

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David S. Teske, Federal Public Defender, Portland, Or., for defendant-appellant.

Ronald H. Hoevet, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and ANDERSON, Circuit Judges, and BATTIN, [*] District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Following a jury trial, Charles E. Whitney was pronounced guilty of possession of heroin with intent to distribute and distribution of heroin in violation of 21 U.S.C. § 841(a)(1).

Much of the government's case rested on evidence acquired during searches conducted pursuant to two warrants issued by The Honorable Joseph Ceniceros, District Judge for Multnomah County, Oregon. Both warrants were issued upon the affidavits of Portland police officer William E. Johnston, whose allegations of criminal activity were based upon information relayed to him by an undisclosed informant. Whitney contends on appeal that the convictions should be reversed because (1) the affidavits in support of the search warrants lacked sufficient indicia of the informant's reliability; (2) one of the warrants failed to describe the place to be searched with sufficient particularity; (3) the execution of both warrants violated 18 U.S.C. § 3109; and (4) the district court erred in denying his motion to reveal the identity of the informant. After carefully considering the underlying facts and the arguments presented by counsel, we conclude that the convictions must stand.

Before analyzing appellant's contentions, we think it is advisable to summarize the facts. Since most of Whitney's arguments directly involve Officer Johnston's affidavits, we begin there.

The affidavits involved in this case were executed on October 3, 1978, and contain the information that follows. Officers Johnston and Parks had been in contact with a confidential informant within the last 48 hours. 1 During the past year, the informant had furnished them with considerable amounts of specific information regarding narcotics dealers and their modes of operation, including the storage and transportation of narcotics. Some of the information merely corroborated facts already known by the officers, but all of the information had proved to be accurate in every respect. Because the informant was a former heroin user, the officers believed him to be knowledgeable about narcotics trafficking. The informant had been inside the residence located on S.W. 64th within the last 48 hours. While there, he had observed Whitney in possession of heroin. The informant had also observed Whitney in possession of a handgun. Finally, Officer Johnston stated in the affidavit that he knew that Whitney had been convicted for smuggling marijuana, and arrested numerous times for possession and sale of heroin. Based on the information contained in the

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affidavit, the search warrant for the S.W. 64th residence was issued.

Seeking another warrant for a residence located at 5025 N. Maryland, Johnston submitted a similar affidavit. In addition to the information contained in the other affidavit, it stated that the informant had been inside the residence on numerous occasions and that it was used by Whitney as a storage and cutting house for heroin. Again, it was stated that Whitney was in possession of a handgun. The residence was described as a two-story, single-family dwelling, being wood-framed and green in color, and located on the west side of N. Maryland, with the front door facing east. Based on this affidavit, the warrant for the N. Maryland residence was issued.

In the evening of the same day, both warrants were executed. The warrant for the S.W. 64th residence was executed first. After officers were positioned at the front and rear entrances, Officer Johnston announced their authority and purpose for being there. Within seconds, the officers made a forcible entry into the house.

Whitney's wife and his eleven-year-old daughter were present, but Whitney was not. The search of the premises resulted in the discovery of fifteen grams of heroin contained inside a camera, four grams of heroin in a jar of LeTolanol hair cream, two packages of balloons (commonly used for packaging heroin), a .22 caliber Derringer pistol, a box of .22 cartridges, and a piece of notebook paper containing the following message: "I owe Chuck two bags totalling $400 bought on Friday eve. Lin Tilton." Additionally, his wife informed the officers that Whitney could be found at the 5025 N. Maryland residence and she described the car he would be driving.

Upon arriving at the N. Maryland address to execute the second warrant, the officers found a car meeting the description provided by Whitney's wife. Officer Parks knocked on the door and Officer Johnston announced their authority and purpose. Again, within moments of the announcement, forcible entry into the residence was made.

Once entry into the building was made, the officers found themselves in an entry vestibule. To the left was a doorless stairway leading upstairs and directly ahead was a doorway leading into the lower living area. The record indicates that the officers split up and both levels were searched. 2

The officers entered the upper apartment through an open door. Whitney was there arrested and the apartment searched. Various items were discovered, including a Seal-A-Meal food packager, measuring spoons, scissors, packaging material, a coffee grinder, and a man's purse containing I.D. cards bearing Whitney's name.

Upon entering the lower-level apartment, the officers found Mr. Williams with three of his guests. The search of Williams' apartment resulted in the discovery of approximately twelve grams of heroin which were concealed inside a jar of LeTolanol hair cream.


Reliability of the Informant

Whitney argues that the district court erred in denying his motion to suppress the evidence on the grounds that the supporting affidavits failed to set forth sufficient indicia of the informant's credibility. The well-established standard for judging the sufficiency of affidavits based on hearsay information provided by an informant is the two-pronged test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and the refinements added by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. First, the affidavit must inform the magistrate of some of the underlying circumstances that indicate that the informant's information is reliable. Second, it must inform the magistrate of some of the underlying circumstances from which the officer concluded

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that the informant, whose identity need not be disclosed, was credible. Aguilar, supra, 378 U.S. at 114, 84 S.Ct. at 1514; United States v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir. 1980). If either prong of the test is not met, probable cause may still be established through corroborating information from independent sources. Spinelli, supra, at 393 U.S. 415, 89 S.Ct. 588; United States v. Fluker, 543 F.2d 709, 714 (9th Cir. 1976).

The Aguilar test does not focus on the reliability of the affiant. A magistrate is not expected to doubt the officer's statement. Rather, the test demands that a neutral magistrate evaluate the facts and circumstances contained in the affidavit and make a determination based on them as to whether or not probable cause exists. Probable cause exists when the information before the magistrate establishes the probability-not a prima facie showing-of criminal activity. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).

Whitney attacks the affidavits by arguing that the statements are conclusory and fail to provide specific information concerning the prior police contacts with the informant and the quantum of reliable information which was...

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