Howard v. United States, 6939.

• Decision Date: 05 July 1962
• Docket Number: No. 6939.,6939.
• Parties: John HOWARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

306 F.2d 392 (1962)

John HOWARD, Appellant, v. UNITED STATES of America, Appellee.

No. 6939.

United States Court of Appeals Tenth Circuit.

July 5, 1962.

Oscar H. Beasley of Ertz, Beasley & Colberg, Albuquerque, N. M., for appellant.

John Quinn, U. S. Atty. (John A. Babington, Albuquerque, was with him on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant was convicted below for failure to pay the annual tax required of persons engaged in receiving wagers under 26 U.S.C.A. §§ 4411, 4412 and 7262. The only question presented is the trial court's refusal to suppress certain evidence offered by the government and admitted during the trial.

The record discloses that appellant was arrested by Albuquerque city police on a street of that city, after some days of surveillance, for the crime of vagrancy. The arresting officers were armed with a search warrant signed and issued by a state district judge under state law. At the time of the arrest the officers searched appellant's person and automobile, and subsequently executed the search warrant by a search of the premises described in the warrant. As a result of these searches certain gambling paraphernalia including racing forms, tally sheets of horse betting, race results, football pool cards, adding machine tapes, an address book and telephones with long extension cords were seized, and were the items covered by appellant's motion below to suppress evidence.

After the arrest and searches appellant was turned over to the United States for prosecution.

In support of his efforts to suppress evidence in the case, appellant contends: That the search warrant was illegally issued because an affidavit required by statute to procure the issuance of a search warrant did not appear in the files of the issuing court; and, that the city ordinance, under which appellant was arrested, is unconstitutional, thereby making the fruits of the arrest inadmissible.

The alleged invalidity of the search warrant, as contended by appellant, arises because the affidavit, required by the state statute for initiating the issuance of a search warrant, could not be found at the time of the hearing upon the Motion To Suppress. The testimony of Police Officer Smith, taken at the hearing, shows: That he signed such an affidavit before the state district judge, who issued the warrant, and in the presence of the state district attorney; that upon leaving the court room of such state judge the district attorney took possession of the affidavit and Smith left the court with the search warrant. At the time of the hearing below a substitute affidavit had been executed and was attached to the search warrant and offered and admitted into evidence without objection.

The New Mexico gambling law, Sec. 40-22-8¹ requires the filing of an affidavit with a state district judge as the first step for the securing of a search warrant. The affidavit is for the consideration by the judge and is a prerequisite to his issuance of a search warrant. From the evidence adduced below there is no question but what this requirement of the statute was met, such an affidavit was filed with and considered by the judge before the issuance of the search warrant. Appellant does not contend otherwise, nor does he attack the sufficiency of the affidavit. The statute provides only for the filing of the required affidavit and has no further...