Clay v. United States, 16385.

• Decision Date: 28 October 1957
• Docket Number: No. 16385.,16385.
• Parties: Will Parks CLAY and Mattie Bell Anderson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F.2d 298 (1957)

Will Parks CLAY and Mattie Bell Anderson, Appellants, v. UNITED STATES of America, Appellee.

No. 16385.

United States Court of Appeals Fifth Circuit.

June 29, 1957.

Rehearing Denied August 5, 1957.

Writ of Certiorari Denied October 28, 1957.

Paul M. Conaway, T. Reese Watkins, T. A. Jacobs, Jack J. Gautier, Macon, Ga., for appellant.

Robert B. Thompson, Asst. U. S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

Writ of Certiorari Denied October 28, 1957. See 78 S.Ct. 96.

HUTCHESON, Chief Judge.

Charged in three counts of an indictment, count one charging him with a conspiracy with Mattie Bell Anderson and others to violate sections of the Internal Revenue Code prohibiting wilfully attempting to evade and defeat the payment of the wagering occupational tax and the federal excise tax imposed on wagers, and counts two and three charging him alone with the substantive offenses of wilfully attempting to evade and defeat the payment of said taxes, and convicted on all of these, Clay is here urging: that he was convicted by the use of evidence obtained in violation of the fourth amendment and because thereof the judgment must be reversed.

Mrs. Anderson, who was convicted on the conspiracy count and has appealed, makes the same claim and, in the alternative, claims that the evidence as a whole was insufficient to convict her.

In support of their primary claim, appellants assert: (1) that the search warrant, under authority of which the defendant's house was searched, was not in accordance with, but in violation of, Rule 41,¹ and that no probable cause was shown to support its issuance; and (2) that the evidence obtained from appellant Clay at the time of his arrest was taken without a warrant of arrest and without probable cause for arresting him and seizing it.

Appellee, on its part, urges upon us that the search warrant was validly issued upon an adequate showing of probable cause and that the arrest and search of Clay at his residence was also valid. As to the sufficiency of the evidence to convict Mrs. Anderson of conspiracy it insists that the record amply supports the verdict, indeed that any other verdict would have been unreasonable.

A brief statement of the facts² will disclose, we think, that there is little if any conflict in them, and that our determination of the question of law arising thereout will be dispositive of the appeal.

The appellants, relying for their attack upon the search warrant upon claimed defects in it and for their attack upon the arrest and search of Clay upon the opinion of this court in Clay v. United States, 239 F.2d 196, holding that a search of his person under the facts there shown was not a reasonable search, insist that the arrest and the search and seizure were invalid, the evidence obtained thereby should have been suppressed, and the conviction obtained by its use must be set aside.

Directing their main attack upon the search warrant, appellants thus state their case against it:

"The point we wish to emphasize here is that no person appearing before the Commissioner stated that he had reason to believe that, as the warrant itself states, `there is now being concealed certain property; namely, books, records, papers, documents and memoranda relating to the business of accepting wagers.\' Nothing is said in the four signed affidavits which would lead a reasonably discreet person to believe that any such books, records, etc., were being concealed at the place in question. In other words, there is no fact allegation or statement that the books and records were being concealed in the house, and for this reason alone there was no basis for the issuance of the warrant. Even if such a conclusion had been stated by any one of the affiants there would still be absent from the affidavits such fact statements as would justify a reasonably prudent person in concluding that lottery paraphernalia was, on the 21st day of June, 1955, concealed in the premises by a person or persons engaged in carrying on a lottery business without having first purchased the occupational stamps required by law. In the four affidavits which are signed, only the most loose, vague, doubtful and disconnected facts are stated. * * *"

Thus appellant's attack upon the search warrant reduced to their ultimate substance are: that the affidavits on which it was based did not sufficiently show that lottery records would be found in the house to be searched; that no person appearing before the Commissioner, stated under oath that he has reason to believe that there is now being concealed in the premises to be searched certain property, viz., books, papers, records and memoranda relating to the business of accepting wagers; and that nothing was said in the four affidavits which would lead a reasonably discreet person to believe that any such property was being concealed there; that, in short, there is no sworn to fact allegation or statement that books or records or other paraphernalia are being concealed at the house, and because this is so, there was no basis for the warrant. In further support of their attack, urging upon us that the only papers attached to the search warrant which contained any reference to the fact that described property was being concealed at 140 Morton Avenue, Athens, Georgia, or sought a search warrant to seize it, was in blank and that, of the affidavits, one of them was not taken before the Commissioner and the others made no specific statement as to any property being in the residence, they insist that it must be held that the search warrant was invalid and the search of the house was therefore not supported.

The United States, citing numerous cases,³ presses upon us that in each case involving arrests and searches and seizures, the question for decision is whether the evidence as a whole supports the conclusion of the district judge that the action of the Commissioner in issuing the search warrant or the action of the officer in making an arrest was or was not reasonable. It urges in short that there is no hard and fast rule precisely pinpointing what should be said and done in applying for and issuing a search warrant or what facts must appear to justify an arrest and search without a warrant; that in each case the inquiry is, are the facts put forward to support the action impeached in any way and, if not, are they as a whole sufficient to support the view that the conclusion reached and the action taken in accordance with the rule were not unreasonable but reasonable.

We find ourselves in general agreement with the position of the United States that the rule of reason applies in the consideration and determination of questions such as those presented here, and the majority is of the opinion for the reasons hereafter stated, that its application requires affirmance of the judgment.

The documents that were before the Commissioner when he issued the search warrant consisted of five papers physically attached. The first of these was a blank unsigned form of affidavit which is here reproduced in full:

"Affidavit for Search Warrant.

"District Court of the United States, Middle District of Georgia, Macon Division.

"Commissioner's Docket No. 2 Case No. 532.

"United States of America,

v.

Premises known as 140 Morton Avenue, Athens, Georgia.

"Before (Name of Commissioner) Walter F. Doyle, (Address of Commissioner) Macon, Georgia.

"The undersigned being duly sworn deposes and says: That he (has reason to believe) on (on the premises known as) 140 Morton Ave., Athens, Georgia, Athens Division, in the Middle District of Georgia, there is now being concealed certain property, namely, (here describe property) books, records, papers, documents and memorandum relating to the business of accepting wagers by a person or persons, (here give alleged grounds for search and seizure) liable for the payment of the special tax provided for and imposed "by Sections 4411 and 4412(a), IRC of 1954, which has not been paid, all in violation of Section 7203, IRC of 1954. 26 U.S.C.A. §§ 4411, 4412(a), 7203

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

"See Attached Affidavits. ----------- Signature of Affiant. ----------- Official Title, if any.

"Sworn to before me, and subscribed in my presence, June 21, 1955.

"Walter F. Doyle (Seal) United States Commissioner."

Attached to this paper were four affidavits, one of them sworn to before a special agent of the Internal Revenue Service (and thus of no validity or import in this connection), the other three sworn to before the Commissioner, as required by law, all documents bearing the date June 21, 1955.

Rule 41 quoted above, requires that for the Commissioner to issue a search warrant he must make a determination that the "grounds for the application exist or that there is probable cause to believe that they exist". If the affidavits which conformed to the requirements of the rule were sufficient to support such a determination of probable cause by the Commissioner, neither the trial court nor an appellate court is justified in quashing the warrant as void. In construing the document we must apply the rule of reason. Gregory v. United States, 5 Cir., 237 F.2d 727. If, therefore, the three properly executed affidavits, together with the first document to which they were attached all together sufficiently establish the grounds for issuing the warrant, then it is immaterial that there was no signature on the first document, because it became a part of the other three affidavits.

We must thus determine whether together the affidavits were sufficient to establish the grounds for issuing the warrant. We are satisfied that they were.

From the affidavit of agent Richard E. Lewis it appeared that appellant Clay had several times been seen carrying into the house in question paper bags of the sort that...