U.S. v. Seta
| Decision Date | 26 January 1982 |
| Docket Number | Nos. 81-5080,s. 81-5080 |
| Citation | 669 F.2d 400 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfred Joseph SETA, Jr. (81-5080), Robin P. Benner (81-5081), Tammy Nadena Reed(81-5082), Jerome Frederick Crone (81-5083), Defendants-Appellants. to 81-5083. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gerald F. Dusing, Adams, Brooking & Stepner, Florence, Ky., for defendant-appellant in No. 81-5081.
Albert C. Hawes, Covington, Ky., for defendant-appellant in No. 81-5080.
Edward G. Drennen, II, Florence, Ky., for defendant-appellant in No. 81-5083.
Gary Sergent, Covington, Ky., for defendant-appellant in No. 81-5082.
Patrick H. Molloy, U. S. Atty., Lexington, Ky., Robert Rawlins, James E. Arehart, Asst. U. S. Attys., Lexington, Ky., for plaintiff-appellee in all cases.
Before BROWN and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Alfred Seta, Jr., Robin Benner, Tammy Reed and Jerome Crone appeal from their jury convictions for conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm their convictions.
In the late morning hours of October 16, 1980, agents of the Northern Kentucky Narcotics Enforcement Unit were on a stake-out at the Shenandoah Apartment complex, located in Florence, Kentucky. These agents had received information from an informant which indicated that possible drug-related activities were occurring there. Early in the afternoon, the agents observed a silver Lincoln Continental automobile arrive at the complex. The driver of this vehicle, after parking it, entered the apartment at 6820 Shenandoah Drive. Twenty minutes later, the agents observed three males return to the car, open the trunk and remove three large, burlap-covered packages. The agents suspected that these bundles contained marijuana. These packages were subsequently taken into the apartment.
At approximately 4:00 p. m., Officer John Prindle left the scene of the surveillance and traveled to the office of the Boone County Attorney in order to obtain a search warrant for the premises and automobile. Once at the County Attorney's office, Officer Prindle relayed information to a Boone County prosecutor who inserted it into a standardized "Affidavit for Issuance of a Search Warrant" form. However, the search warrant affidavit did not list, in the properly designated space, any of the property to be seized, although references to marijuana could be found on the second page of this form. Also the affidavit recited that Officer Prindle, along with an informant who had previously supplied information that had resulted in arrests and convictions, personally observed the marijuana bales being carried into the premises. After reviewing the affidavit and questioning Officer Prindle, without the presence of a court reporter or transcriber, state judge Robert Hall issued a search warrant for the apartment and motor vehicle and authorized the seizure of "marijuana."
Officer Prindle then returned to the apartment building in order to execute the warrant. During his absence, however, the motor vehicle and its driver departed. Its driver, subsequently identified as Jerome Crone, was stopped and arrested by the Florence police for driving with a revoked license. A search of the automobile netted a small quantity of marijuana.
The search of the apartment was commenced shortly after 9:00 p. m. The agents found in the apartment approximately 125 pounds of marijuana, a triple beam scale and a quantity of Ziploc storage bags. All three persons found in the apartment, Tammy Reed, the lessee of the searched premises, Alfred Seta, her roommate, and Robin Benner, were arrested and charged with trafficking in a controlled substance. Also, nine photographs depicting Tammy Reed, her son and Alfred Seta seated near a large plastic swimming pool full of marijuana were seized. Ultimately, a federal grand jury returned a two-count indictment against all four defendants alleging violations of 21 U.S.C. §§ 841(a)(1) and 846.
Prior to trial, all four defendants moved to suppress the evidence obtained as a result of the search warrant issued by state judge Robert Hall. These motions were consolidated and heard before a magistrate. The magistrate issued a proposed order that the motion be denied with respect to the marijuana, scale and plastic bags. However, the magistrate ruled that the photographs should be suppressed because they were neither listed in the search warrant nor fell within the "plain view" exception. District Judge Bertelsman entered the proposed order with one modification. He ruled that in the event that defendant Reed took the stand and testified in her own behalf, one photograph could be admitted into evidence for impeachment purposes only. At trial, Tammy Reed did, in fact, take the stand in her own defense, and pursuant to the district court's ruling, the government did introduce one of the seized photographs on cross-examination. Defendant Benner, pursuant to Fed.R.Crim.P. 14, moved for a separate trial after introduction of this photograph. This motion was denied. After three days of trial, the jury returned a verdict of guilty against each defendant on both counts.
On appeal, all the defendants attack the validity of the search warrant issued to search defendant Reed's home. Specifically, they allege that Officer Prindle's affidavit did not provide the requisite probable cause because: (1) it failed to list the items to be seized in the search; (2) it failed to list the time and date on which the affiant observed the activity upon which the probable cause was allegedly based; and (3) it failed to establish both the reliability and credibility of its unnamed informant as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). While the affidavit present in the instant case was not artfully drawn, we cannot conclude that it did not meet the mandates of the Fourth Amendment. Affidavits must be tested and interpreted in "a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); United States v. Hatfield, 599 F.2d 759, 761 (6th Cir. 1979). Moreover, omissions resulting from negligence or good faith mistakes should not invalidate an affidavit which on its face establishes probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); United States v. Townsend, 394 F.Supp. 736, 744 (E.D.Mich.1975). A court, in determining whether an affidavit is sufficient to require issuance of a search warrant, must consider whether the items sought are sufficiently described so that its...
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