Campbell v. State of Minn., 76-1443

• Decision Date: 13 April 1977
• Docket Number: No. 76-1443,76-1443
• Citation: 553 F.2d 40
• Parties: Jerry H. CAMPBELL, Appellant, v. STATE OF MINNESOTA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 40

553 F.2d 40

Jerry H. CAMPBELL, Appellant, v. STATE OF MINNESOTA, Appellee.

No. 76-1443.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 15, 1976.

Decided April 13, 1977.

Douglas Hall, Legal Rights Center, Inc., Minneapolis, Minn., for appellant.

David W. Larson, Minneapolis, Minn., for appellee; Warren R. Spannaus, Atty. Gen., St. Paul, Minn., Vernon E. Bergstrom and Phebe S. Haugen, Minneapolis, Minn., on the brief.

Before WEBSTER and HENLEY, Circuit Judges, and VAN PELT, District Judge. ^*

VAN PELT, Senior District Judge.

This is a habeas corpus action involving a state court conviction for first degree murder. Petitioner contends that his Fourth Amendment rights were violated when a warrant to search his apartment was issued without probable cause. This is the second appearance of this case in this court. See Campbell v. State of Minnesota, 487 F.2d 1 (8th Cir. 1973). The court at that time reversed the district court and held that (1) the affidavit in support of the warrant did not provide sufficient basis upon which a finding of probable cause for the issuance of a warrant to search Campbell's apartment could have been made, and (2) the district court could not rely on 1967 post-trial affidavits from the police officers and Judge Anderson, ¹ who issued the warrant, to support a finding of probable cause. The case was remanded for an evidentiary hearing, including cross-examination by defendant, to determine whether oral statements made at the time the warrant was issued were given under oath and provided probable cause. The evidentiary hearing has now been had and the case is again before us.

Judge Alsop ² found the detectives' oral statements were made under oath and provided probable cause for the issuance by the state court trial judge of the search warrant.

We may not set aside the findings of the district court unless they are clearly erroneous. Fed.R.Civ.P. 52(a); DeBerry v Wolff, 513 F.2d 1336, 1339 (8th Cir. 1975). An examination of the record shows adequate support for the findings of the district court and we affirm.

Both detectives and Judge Anderson testified that the additional oral information to support the warrant was given under oath. The judge's deposition reflects uncertainty as to whether he administered the oath before or after the oral statements were given. The detectives testified the oath was administered after they had given the oral information, but before the warrant was signed, and that they understood the oath to pertain to both the oral statements and written affidavit in support of the warrant. Under Frazier v. Roberts, 441 F.2d 1224, 1228 (8th Cir. 1971), these oral statements would be considered sworn testimony since the officers understood the oath to relate back to them. While the exact language of the oath could not be recalled by the detectives, that is of less significance than what the men understood the words to mean.

Appellant contends that there were such inconsistencies between Detectives Anderson and Pufahl's 1966 trial testimony and 1967 post-trial affidavits and the testimony at the 1974 habeas evidentiary hearing that the 1974 testimony regarding the statements given under oath should be totally disregarded. We do not agree. This court earlier recognized that the 1967 affidavits may not have been accurate or complete and that an evidentiary hearing was needed with direct and cross-examination to ensure that all the facts would be presented. During the 1974 hearing, appellant's counsel had an opportunity to cross-examine the detectives about any testimony which conflicted...