Durham v. United States
| Decision Date | 08 November 1968 |
| Docket Number | No. 21650.,21650. |
| Citation | 403 F.2d 190 |
| Parties | George Washington DURHAM, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Jonathan U. Newman (argued), of Cake, Jaureguy, Hardy, Buttler & McEwen, Portland, Or., for appellant.
Jack G. Collins (argued), Asst. U. S. Atty., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.
Before JERTBERG and BROWNING, Circuit Judges, and *BOLDT, District Judge.
Appellant was charged with three violations of 18 U.S.C. § 474. Count I of the indictment involved possession of a counterfeit $20 Federal Reserve Note; Count II, possession of a second $20 Federal Reserve Note; and Count III, possession of a plate to be used for making counterfeit $5 United States Notes.
Appellant was convicted under Count II. For reasons unrelated to this appeal, the other counts were dismissed by the court — Count III after all the evidence was in, and Count I after verdict.
The note and plate referred to in the dismissed counts were obtained by the government when Secret Service agents searched appellant's house trailer on May 5, 1966, pursuant to a warrant issued the same day.1 The note referred to in Count II was found in appellant's wallet on May 7, 1966, under circumstances described later.
Appellant contends that the material seized on May 5 should have been excluded from evidence because the affidavit supporting the search warrant failed to establish probable cause and the search was therefore unlawful.
At the threshold, appellee suggests that we need not consider the validity of the May 5 search because the evidence seized related to the dismissed counts. Appellant argues that we must reach the issue for two reasons. First, he asserts that the note referred to in Count II, upon which he was convicted, was discovered as a result of the May 5 search and should have been suppressed as fruit of that search. For reasons stated later, we reject this contention. Second, appellant points out that the evidence seized on May 5 was admitted without limitation to particular counts of the indictment and argues that its admission adversely affected his defense to Count II. We agree. As the trial court indicated in its charge to the jury, the evidence was relevant on the issue of appellant's intent in possessing the counterfeit bill involved in Count II, and was highly incriminating. If it was improperly admitted, we cannot say, beyond a reasonable doubt, that the error did not contribute to appellant's conviction. Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The affidavit upon which the search warrant was issued is set out in full in the margin.2 We need consider only one of the many grounds upon which appellant challenges its sufficiency.
The facts submitted to the Commissioner must be sufficient to justify a conclusion by him that the property which is the object of the search is probably on the person or premises to be searched at the time the warrant is issued. The most convincing proof that the property was in the possession of the person or upon the premises at some remote time in the past will not justify a present invasion of privacy. There must be reasonable grounds for believing that the immediate search for which authority is sought may be fruitful.
This was made clear by the Supreme Court in Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932), the Court stating, "it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."3 The principle has been applied in an unbroken line of decisions.4 For at least twenty years it has been clearly stated in the official instructions to United States Commissioners:
A showing to the effect that the property to be seized was at the place to be searched a substantial time before the application is made does not justify the issuance of a search warrant, for the reason that during the intervening period the property may have been moved away. The facts must show that the property to be seized was known to be at the place to be searched so recently as to justify the belief that the property is still there at the time of the issuance of the search warrant.
Manual for United States Commissioners 24 (1948).
Whether the showing in support of the issuance of the warrant here meets this test must be determined by an examination of all of the circumstances presented to the Commissioner in the affidavit.5
The first paragraph of the affidavit recited the passing of a counterfeit note on July 12, 1965. The third paragraph described a purchase on July 19, 1965, of paper useable in counterfeiting. Both paragraphs described single events which preceded the issuance of the warrant by almost ten months.
Paragraphs four and five of the affidavit disclosed continuing courses of conduct. Paragraph four recited that in 1964 and 1965 appellant worked in a printing business with a man arrested for counterfeiting in 1956; paragraph five stated that in the same years the two men printed up some counterfeit notes. Even assuming these activities continued throughout 1965, the period during which they are said to have occurred ended more than seventeen weeks before the warrant was issued.6
There was nothing in the affidavit from which the Commissioner could reasonably conclude that any of the activities described continued beyond the dates stated in the affidavit, much less for the more than four months that elapsed before the warrant issued.7 The affidavit therefore failed to provide any basis for a finding that counterfeit notes or paraphernalia were probably present in appellant's house trailer or upon his person when the warrant issued.
We are thus compelled to conclude that the May 5 search was unlawful and that the evidence seized in that search should have been suppressed.
As noted earlier, however, we do not agree with appellant that the $20 Federal Reserve Note which formed the basis for Count II should also have been suppressed on the grounds that it was discovered as a result of the unlawful search. The relevant circumstances are these.
The unlawful search of appellant pursuant to the warrant disclosed that he did not have a wallet on his person. In response to an inquiry, he stated that he did not carry one.8
On May 6 the agents went to the home of Tom Mishler, whose identity they had previously learned from an independent source, and with his consent conducted a search. While the agents were thus engaged, Mrs. Yackley, Mishler's daughter, volunteered to one of the agents that she had seen appellant the evening before (at a time shortly before he and his trailer were searched) and that appellant had displayed a wallet containing currency.
On May 7 the agents returned to the Orville Killingbeck farm, where appellant was employed and his trailer was parked, and asked Mr. Killingbeck if he had seen appellant's wallet. Mr. Killingbeck responded that he had found the wallet in his barn the previous morning. He delivered the wallet to the government agents. The wallet contained the counterfeit note in question.
In determining whether the wallet and its contents should have been excluded because of the unlawful conduct of the agents on May 5, the question we must answer is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."9
Accepting uncontradicted testimony of the government agents, it seems clear that the wallet was come at by sufficiently distinguishable means and that there was no connection between the search May 5 and the ultimate discovery of the wallet. All that the agents learned from the illegal search was that appellant had no wallet on his person, and that he denied carrying one. They were not led to the Mishler home by this discovery; they knew of Mishler's connection with appellant from independent sources. Their visit was part of the continuing investigation of Durham and of possible counterfeiting activity in the Portland, Oregon, area, not an effort to locate Durham's wallet. They did not inquire of Mrs. Yackley regarding appellant's wallet, or tell her that it was missing. Mrs. Yackley's statement that appellant had a wallet containing currency was volunteered. It was this statement, not the failure to find a wallet when appellant was searched, which led the agents to return to the Killingbeck farm.
In these circumstances, it is fair to say that the wallet and its contents are admissible, both because "the Government learned of the evidence `from an independent source,'"10 and because any "connection between the lawless conduct of the police and the discovery of the challenged evidence has `become so attenuated as to dissipate the taint.'"11 If the unlawful search or questioning of appellant contributed in any degree to the ultimate seizure of his wallet, its role must be considered de minimis.
Nor would suppression of the wallet and its contents contribute significantly to the deterrent purpose of the exclusionary rule. That purpose would appear served by exclusion of the evidence seized in the initial unlawful search. The price is too high and the advantage too uncertain to make it reasonable to suppose that law enforcement officers will be encouraged to indulge in unlawful searches, knowing that what they find will be suppressed, in the hope of obtaining admissible evidence as remote and fortuitously acquired as this.12
Appellant also complains of the court's denial of his motion to require disclosure of confidential informants who provided the information recited in paragraphs four and five of the affidavit supporting the application for a search warrant.13 He argues that...
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