Frazier v. Roberts

• Decision Date: 24 May 1971
• Docket Number: No. 20222.,20222.
• Citation: 441 F.2d 1224
• Parties: James Thomas FRAZIER, Appellant, v. Ralph ROBERTS, Superintendent of the Cummins Farm Unit of the Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

441 F.2d 1224 (1971)

James Thomas FRAZIER, Appellant, v. Ralph ROBERTS, Superintendent of the Cummins Farm Unit of the Arkansas State Penitentiary, Appellee.

No. 20222.

United States Court of Appeals, Eighth Circuit.

April 7, 1971.

Rehearing Denied May 24, 1971.

James L. Sloan, Little Rock, Ark., for appellant.

Joe Purcell, Atty. Gen., by Mike Wilson, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEVILLE, District Judge.

PER CURIAM.

Petitioner-appellant James Thomas Frazier and two others were convicted by a jury in the Circuit Court of White County, Arkansas, for possession of burglary tools and gambling equipment in violation of Ark.Stats. § § 41-1006 and 41-2001 respectively. The facts of the case appear at length in Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968), and Frazier v. Roberts, 310 F.Supp. 504 (E.D.Ark.1970).

In the district court it was agreed that the admissibility of crucial evidence against petitioner Frazier depended entirely upon the validity of a search warrant authorizing the search of an automobile, attached trailer, and certain motel rooms, which warrant was obtained by local police from Norris Fox, Mayor of Bald Knob, Arkansas, and ex officio Justice of the Peace. Mayor Fox issued the warrant on the basis of a concededly deficient affidavit supplemented by unsworn oral information given by the requesting officers. The State courts and the district court below held that these communications to Mayor Fox, taken together, bore objective information sufficient to support a finding of probable cause under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968), and Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).¹

Petitioner contends, inter alia, that the Fourth Amendment requires that probable cause may be established only by information related to the magistrate "on Oath or affirmation," that the additional testimony given by the requesting officers was not in fact sworn, that the warrant therefore was illegal and should not have issued, and that since his conviction resulted from the fruits of such an illegally issued warrant, his conviction should be set aside. We agree with the trial court that for all practical purposes defendant has exhausted State court remedies, having twice been to the Arkansas Supreme Court. By the time further State court proceedings and further evidentiary hearings are had, were we to remand, defendant's five-year prison sentence for his 1967 conviction will have been substantially served. The trial court was apprehensive over this fact. On the first appeal to the Arkansas Supreme Court the thrust of the appellant's argument went to an unlawful search and seizure because of lack of probable cause. The Arkansas Supreme Court rejected this claim. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Encompassed in or at least as a companion to this contention, though apparently not specifically argued or raised by counsel at the time, is the question of whether the information given the magistrate by the officers requesting the warrant was under oath so as to validate the warrant and thus the search. In a later post-conviction State court hearing, referred to as a Criminal Rule 1 proceeding, the Arkansas trial court regarded the issue of unlawful search and seizure as settled and foreclosed by the prior appeal and refused to hear evidence on the issue. It was thereafter that this habeas corpus proceeding was commenced in the United States District Court, after the commencement of which the trial judge suspended proceedings until appellant could appeal to the Arkansas Supreme Court from the denial of his Rule 1 post-conviction hearing. Such application was made and denied without opinion. The United States trial judge then held an evidentiary hearing and stated in his memorandum opinion:

"This Court was not willing to require petitioner to litigate further in the State courts and proceeded to overrule the motion to dismiss the habeas corpus proceedings."

Earlier in his memorandum opinion the trial judge said:

"Petitioner countered by pointing out that if he had to appeal again to the Supreme Court of Arkansas and if the order of the Circuit Court should be reversed, the case would probably simply be remanded for an evidentiary hearing; that if the Circuit Court should again overrule the Rule 1 petition, petitioner would have to appeal a third time to the Supreme Court of Arkansas, and that the State court process would take months, if not years, to complete during all of which time petitioner would be confined in the Penitentiary."

Having reached the conclusion he did on this issue, in our opinion the trial judge should then have proceeded to grant the writ of habeas corpus based on the evidence he received at the hearing without further concern over considerations of comity or interference with State court jurisdiction.

It is clear that the Fourth Amendment permits the warrant-issuing magistrate to consider sworn oral testimony supplementing a duly executed affidavit to determine whether there is probable cause upon which to issue a search warrant. United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970).² In this case, such additional testimony is crucial to the validity of the warrant because the affidavit alone contained no objective facts whatsoever.³

The Fourth Amendment to the United States Constitution reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Emphasis added

It is certain from the text that the intention was to condition the issuance of warrants upon two requirements: (1) that there be a showing of "probable cause, supported by Oath or affirmation," and (2) that "the place to be searched, and the persons or things to be seized" be described on the face of the warrant with particularity. Thus the Supreme Court has held that a magistrate may find probable cause only "from facts or circumstances presented to him under oath or affirmation." Nathanson v. United States, 290 U.S. 41 at 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). Lower federal cases on the point are rare, since most searches in federal criminal cases are conducted under rule 41 of the Federal Rules of Criminal Procedure.⁴ The nearly unanimous view is that the Fourth Amendment requires that only information related to the magistrate on Oath or affirmation is competent upon which to base a finding of probable cause; that unsworn oral statements may not form a basis for that decision. Lopez v. United States, 370 F.2d 8 (5th Cir. 1966); United States v. Wroblewski, 105 F.2d 444 (7th Cir. 1939); Sparks v. United States, 90 F.2d 61, 64 (6th Cir. 1937); United States ex rel. Boyance v. Myers, 270 F. Supp. 734, 738 (E.D.Pa.1967) rev'd on other grds., 372 F.2d 111 (3rd Cir. 1967). State decisions reaching the same conclusion as to the meaning of the Fourth Amendment and/or similar State constitutional provisions include Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968); Tygart v. State, Ark., 451 S.W.2d 225 (1970); State v. Oliveri, 261 Iowa 1140, 156 N.W.2d 688, 694 (1968); State v. Spier, Iowa, 173 N.W.2d 854 (1970); People v. Asaro, 57 Misc.2d 373, 291 N.Y.S.2d 613 (1968); State v. Racanelli, 74 N.J.Super. 420, 181 A.2d 420 (1962); Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966).

These holdings are not inconsistent with Miller v. Sigler, 353 F.2d 424 (8th Cir. 1965), cert. den. 384 U.S. 980, 86 S. Ct. 1879, 16 L.Ed.2d 690. In that case, the language of the Fourth Amendment was construed by this court as follows:

"Before a search warrant may issue two steps must be taken. The application must be supported by `Oath or affirmation, * * * describing the place to be searched, and the persons or things to be seized.\' Next, the Fourth Amendment requires a showing of `probable cause.\' Even though the affidavit of the officer is not constitutionally sufficient, in itself, to support a finding of probable cause, it nonetheless fills the requirements of a proper `Oath or affirmation\' describing the place to be searched and the thing to be seized. In addition, it can be considered some evidence to support a finding of the necessary probable cause. Aguilar v. State of Texas, supra, however, demands something more than this bare affidavit. The `something more\' was supplied by Officer McAdams in his statement to the magistrate that he personally observed the odor of marijuana outside of the described premises."

353 F.2d at 426. Although the positive statement does not appear in the opinion, it seems clear from the above quote that the court considered the "something more" to have been a statement under oath. A bare unsworn assertion for which the informing officer takes no moral or legal responsibility is of course not sufficient. See Annot., 51 A.L.R. 852. We do not here concern ourselves with the wisdom or empirical efficacy of such a requirement; our task is simply to read the Constitution.

As the Eighth Circuit has suggested in Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966), whether information was given on Oath or affirmation within the meaning of the Fourth Amendment is to be considered a question of fact:

"The officer\'s testimony did not make it entirely clear whether the oath taken by him on execution of the affidavit was merely to the truthfulness of the formal affidavit or to that of his oral statements as well. The District Court, however, regarded the evidence on hearing of the motion to suppress as sufficiently indicative that the oath has had application to both the executed instrument and the oral statements."

368 F.2d at 3. See also United States ex...