Dudley v. United States, Civ. A. No. 12988.

Decision Date06 January 1970
Docket NumberCiv. A. No. 12988.
PartiesElmer H. DUDLEY and Premises at the Rear of 1131 Boulevard Avenue, S. E., Atlanta, Georgia v. UNITED STATES of America.
CourtU.S. District Court — Northern District of Georgia

Joe Salem, Atlanta, Ga., for plaintiff.

Dougald D. McMillan, Trial Atty., U. S. Dept. of Justice, Miami, Fla., J. Robert Sparks, Trial Atty., Crim. Div., Organized Crime and Racketeering Section, Atlanta, Ga., for defendant.

SIDNEY O. SMITH, Jr., Chief Judge.

This is a civil proceeding in which the movant seeks to suppress and have returned certain evidence obtained as the result of a search effected on his premises by federal agents on July 3, 1969. The motion is made prior to indictment and seeks to enjoin the use of any such evidence before a Grand Jury for such purposes. Federal Rules of Criminal Procedure 41(e); In re Fried, 161 F.2d 453 (2d Cir. 1947).

The case arises out of an investigation of interstate gambling activities centered in Miami, where a wire tap had been authorized under 18 U.S.C.A. § 2516. In a similar proceeding in the Southern District of Florida, the legality of the wire-tap has been sustained by Judge Mehrtens in an order issued September 2, 1969 (No. 69-4-Misc.—Civil). Except insofar as noted hereafter the use of the information obtained therein is no longer in question. However, the original authorization by the court was inadvertently not dated at the time of issuance and was nunc pro tunc dated June 17, 1969, by the September 2nd order of Judge Mehrtens, which was after the Atlanta search warrant issued.

The search warrant in question issued in Atlanta on July 2, 1969, by Frank A. Holden, United States Commissioner upon (1) the affidavit of Donald P. Burgess, an Atlanta FBI agent, sworn to before the Commissioner and (2) the affidavit of Edwin J. Sharp, a Miami FBI agent, sworn to before the United States Commissioner there and presented by Agent Burgess and incorporated by reference into his own affidavit.

Under those circumstances, the movant contends that no probable cause existed for the issuance of the Atlanta search warrant and the subsequent seizure of items of real evidence from him. He specifically raises the following objections:

(1) That the wire-tap information contained in the Sharp affidavit could not be considered by the issuing magistrate because the authorization order was not dated at the time.
(2) That the Miami affidavit of Agent Sharp could not be considered by the issuing magistrate because of his absence from the court.
(3) That the Atlanta affidavit of Agent Burgess, insofar as hearsay is concerned, could not be considered by the issuing magistrate and, therefore, did not constitute probable cause.
(4) That, in any event, some $10,000 in cash and certain credit cards seized in the search should be returned to him.
(1) THE NUNC PRO TUNC ORDER

The thrust of movant's position here is that inasmuch as the authorization order was undated when the Atlanta search warrant issued there is no way the issuing magistrate could determine if the wire-tap information contained in the Sharp affidavit and incorporated in the Burgess affidavit was obtained within the dates specified. This objection relates to the propriety and effect of the subsequent nunc pro tunc order.

As to the effect of the order itself, Federal Criminal Rule 36 clearly gives the issuing court the power to correct the order to show the true date. See also Wilson v. Bell, 137 F.2d 716 (6th Cir. 1942). Such correction has been accomplished in this instance by Judge Mehrtens on September 2, 1969. Nunc pro tunc orders, by their very nature, are generally retroactive in effect and here there has been a judicial determination that June 17th was in fact the true date. The question remains whether the issuing magistrate properly considered the information under the circumstances. In this connection, it appears that legal orders may properly be executed even though some omission is later furnished nunc pro tunc and likewise, upon subsequent review, may properly be considered effective as of the true date. Judge Mehrtens has done so in this very instance. In search warrant cases, the date has been supplied after execution. United States v. Matellian, 31 F.R.D. 233 (D.Mass.1962); United States v. Hertel Athletic & Social Club, Inc., 25 F.2d 872 (W.D.N.Y.1928). Similar technical omissions are correctible in the same manner. United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y. 1969) (absence of affiant's name); Hanger v. United States, 398 F.2d 91 (8th Cir. 1967) (absence of owner's name).

Moreover, there is a strong presumption of the correctness and legality of acts done in the discharge of official duties unless and until the contrary is made to appear. E.g., United States v. Chemical Foundation, 272 U.S. 1(11), 47 S.Ct. 1, 71 L.Ed. 131 (1926); Continental Bank & Trust Co. v. Brandon, 297 F.2d 928(3) (5th Cir. 1962). This presumption has been held to apply specifically to the Department of Justice. In re Coleman, 208 F.Supp. 199 (S.D.Miss. 1962), aff'd Coleman v. Kennedy, 5 Cir., 313 F.2d 867; United States v. One 1941 Cadillac, 145 F.2d 296 (7th Cir. 1944). And to peace officers. NLRB v. Bibb Mfg. Co., 188 F.2d 825(2, 3) (5th Cir. 1951); Bertram v. Citizens National Bank, 283 F.2d 783(1) (6th Cir. 1960). The issuing magistrate had a right to rely on this presumption at the time he approved the search warrant.

Therefore, it is concluded that the absence of the date in the authorization order did not preclude consideration of the wire-tap information and the nunc pro tunc order effectively corrected any deficiency therein.

(2) THE SHARP AFFIDAVIT

In connection with the Miami affidavit, the movant raises two objections: (a) that the affidavit per se could not be considered by the issuing magistrate because of the absence of the affiant from the court and (b) that it could not be considered as incorporated in the Burgess affidavit on the grounds that it constitutes hearsay.

(a) The first objection raises a very narrow question and one on which there is practically no authority. Rule 41(c) itself provides that "a warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant (Emphasis supplied)." Moreover, it is clear from what follows in Rule 41(c) that the "judge or commissioner" referred to is the issuing magistrate himself and not some other non-issuing magistrate before whom some affidavit may be given. The only authority in point found is the case of Rose v. United States, 45 F.2d 459 (8th Cir. 1930). There, at 464(5), the court stated:

"The only person appearing before the United States Commissioner was Splawn, and he had no personal knowledge of the facts; all he had was a belief based upon the affidavit of Kazakes which he produced. The testimony of Splawn was therefore clearly hearsay, and the commissioner was not authorized to act upon it. Neither was the affidavit of Kazakes such evidence as would authorize the commissioner to issue a search warrant. The affidavit was not such evidence as would be admissible before the commissioner. Kazakes did not appear before the commissioner. There was no showing who he was; nor that he was mentally competent to make an affidavit. There was no showing of the purpose for which the affidavit was made, nor the circumstances under which it was made. There was no showing how the affidavit was obtained by Splawn; nor from whom; nor the circumstances under which it was obtained. All this could and should have been elicited if Kazakes had appeared for examination before the commissioner."

Admittedly, Rose is fairly ancient authority and precedes by many years newer developments in the area of probable cause. An opportunity to rule on the question was present in United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964) where the affiant's affidavit before the issuing magistrate was apparently based solely on the affidavits of two other persons, neither of whom was an officer and for whose reliability no evidence was offered. In holding the evidence insufficient, the court relied on the absence of reliability rather than the absence of the person from the court. However, the theory is the same and the court is constrained to hold that the affidavit of another standing alone cannot form the basis for the issuance of a warrant. This is tantamount to a holding that the Sharpe affidavit alone if presented by another, or mailed to the commissioner, could not form the basis upon which to issue the warrant.

(b) However, in this instance, the Sharpe affidavit was incorporated into the affidavit of agent Burgess who did appear under oath before the issuing magistrate and its consideration in this posture is controlled by a determination of the weight afforded the Burgess affidavit by the magistrate.

(3) THE BURGESS AFFIDAVIT

Without doubt the affidavit of Burgess contains considerable hearsay, but in each instance it is a far cry from the hearsay of an admitted thief as in United States v. Whitlow, supra or of some unknown informer as in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) or Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) whose reliability is not demonstrated to the issuing magistrate. To the contrary, the hearsay present in the Burgess affidavit consists exclusively in the observations of fellow officers. Under such circumstances, the matter is controlled completely by Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) and United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965) and is typified by the results reached in United States v. Plemmons, 336 F.2d 731 (6th Cir. 1964) and Lopez v. United States, 370 F.2d 8 (5th Cir. 1966). These cases stand for the proposition (1) that...

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