U.S. v. Bourbon

• Decision Date: 28 May 1987
• Docket Number: No. 86-2116,86-2116
• Citation: 819 F.2d 856
• Parties: 22 Fed. R. Evid. Serv. 1519 UNITED STATES of America, Appellee, v. Terry Lynn BOURBON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 856

819 F.2d 856

22 Fed. R. Evid. Serv. 1519

UNITED STATES of America, Appellee, v. Terry Lynn BOURBON, Appellant.

No. 86-2116.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1987.

Decided May 28, 1987.

William P. Grant, St. Louis, Mo., for appellant.

Richard Poehling, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, FAGG and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Terry Lynn Bourbon appeals from a final judgment entered in the district court ¹ upon a jury verdict finding him guilty of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). The court sentenced appellant to fifteen years imprisonment, to be followed by a special parole term of six years. For reversal, appellant argues that the district court erred in (1) refusing to suppress evidence seized during execution of the search warrant, (2) refusing to compel the government to disclose the identity of the confidential informant, (3) refusing to allow certain questioning of a government agent, and (4) admitting, over objection, a grey notebook into evidence. For the reasons discussed below, we affirm.

I. BACKGROUND.

On March 6, 1986, a federal grand jury indicted appellant with one count of knowing and intentional possession with intent to distribute a quantity of cocaine. The indictment was based upon evidence seized during the execution of a search warrant issued by a federal magistrate. ² The magistrate issued the warrant based on the application and affidavit of Donald Walton, a special agent with the Drug Enforcement Agency, who relied on information supplied by an informant. ³ The warrant authorized the search of appellant's residence, and a two-story carriagehouse in the back of the residence.

On February 25, 1986, after obtaining the warrant, Walton went to the residence, and DEA Agent Braun and a police officer went to the carriagehouse. Braun identified himself and announced that he had a search warrant, but received no response. After hearing movement inside, he repeated his announcement but again received no response. After forcibly opening the door, the appellant and his 18-year-old stepson were found on the first floor. Appellant was detained and advised of his constitutional rights. A few minutes later, Walton came to the carriagehouse, and again advised appellant of his rights and told him of the search warrant.

Upon commencement of the search, DEA Agent Scott was designated as the seizing officer. In addition to seizing approximately eighty-five grams of cocaine with purities of 95%, 43%, and 24%, the agents also seized a grey notebook and numerous pieces of narcotic paraphernalia--scales, dilutants, a blender, and packaging materials--from a desk in the loft area of the carriagehouse.

Appellant filed several pretrial motions, including one to suppress evidence and one to reveal the identity of the government's informant. After hearings, a federal magistrate ⁴ recommended denial of both motions, and the district court ruled accordingly. The evidence seized pursuant to the search warrant was introduced at trial. Following a two-day trial, the jury found appellant guilty of possession with intent to distribute cocaine. This appeal followed.

II. DISCUSSION.

A. Motion to Supress.

Appellant argues that the district court erred in applying the "totality-of-the-circumstances" test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 2230 (1983), because the affidavit supporting the search warrant did not provide the reviewing magistrate with a substantial basis for determining the existence of probable cause of criminal activities within either structure listed on the search warrant. Specifically, appellant disputes the reliability of the unnamed informant, and asserts that even if there was probable cause to support the search of the residence, the only statement by the informant regarding the carriagehouse was that appellant kept weapons there and used it "to sell dope out of." Appellant contends that these statements were insufficient to support the search of the carriagehouse and that, at the least, the evidence seized from that search should not have been admitted.

Our duty, as defined in Gates, is "to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); accord United States v. Mims, 812 F.2d 1068, 1072 (8th Cir.1987). Under the totality-of-the-circumstances test, the issuing magistrate's function

is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332; accord Mims at 1072. The magistrate's determination must be given great deference. Mims, at 1072 (citing United States v. Arenal, 768 F.2d 263, 266 (8th Cir.1985)).

We believe that the issuing magistrate had a substantial basis for concluding that probable cause existed for the issuance of the search warrant as to both buildings. First, according to the affidavit, the confidential informant previously provided Agent Walton with information which led to the arrest of two individuals on charges of a drug conspiracy, and further advised Walton that appellant was to have purchased some of the drugs from those individuals. This information supported the informant's credibility and reliability. Second, the affidavit stated that the informant told Walton that he was inside appellant's residence four days before and the day of the search warrant's issuance; that he observed cocaine in the residence and a revolver in the carriagehouse; that he overheard appellant on the telephone having a conversation about "snow"; and that appellant used the carriagehouse to "sell dope out of" and to store weapons. Thus, the informant had personal knowledge of the appellant's activities as to both buildings. Finally, in the affidavit, Walton testified as to his prior experience with drug offenders and his knowledge of appellant's prior involvement with drug distribution.

Under a totality-of-the-circumstances analysis, we believe that the affidavit amply supported the magistrate's conclusion that there was a fair probability that cocaine and other evidence of criminal activity would be found in either or both of the buildings. Accordingly, we conclude that the magistrate had a substantial basis for determining that probable cause existed for issuance of the search warrant.

B. Disclosure of the Informant's Identity.

Although conceding that the government generally has the privilege to withhold from the defendant the identity of its informants, appellant argues that Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which held that disclosure may be required where a defendant shows that it would be relevant and helpful to the defense or essential to a fair trial, requires disclosure under the facts of this case. Appellant argues that the informant's past criminal record, if any, and the informant's incentive for supplying information were essential because the informant provided the probable cause for issuance of the search warrant.

We addressed a similar argument in United States v. Skramstad, 649 F.2d 1259, 1264-65 (8th Cir.1981), and our response applies equally to the instant case: "We disagree. As discussed above, the affidavit adequately established the reliability of the informant by referring to the informant's history of investigative cooperation which led to the arrests of several narcotics offenders." Id. at 1265. Moreover, the informant's reliability here was also established by his personal knowledge of the appellant's activities.

In addition, as the Supreme Court has stated:

What Roviaro thus makes clear is that this Court was not willing to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake.

McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967) (emphasis added). Obviously, the court's admonition is directly applicable to appellant's argument in this case.

Alternatively, appellant argues that the district court should have required disclosure of the informant's identity as a material defense witness. See Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28; United States v. Barnes, 486 F.2d 776, 778-79 (8th Cir.1973). Appellant asserts that because the informant was at his residence only four days before and also the day of the search warrant's issuance, and because the informant alleged personal observation of cocaine and hearing of statements made by appellant regarding possession of cocaine, the informant is a material witness. We disagree.

Disclosure of a confidential informant will not be ordered unless it is vital to a fair trial. United States v. Disbrow, 768 F.2d 976, 981 (8th Cir.) (citation omitted), cert denied, --- U.S. ----, 106 S.Ct. 577, 88 L.Ed.2d 560 (1985). In this case, disclosure was not vital to a fair trial, because the informant was a "tipster," i.e., a person who merely conveys information but does not witness or participate in the offense. Skramstad, 649 F.2d at 1265; United States v. House, 604 F.2d 1135, 1140 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). Although the informant admittedly was in appellant's house and personally observed the cocaine, he was not present during execution of the search...