Irby v. United States

• Decision Date: 04 January 1963
• Docket Number: No. 16982.,16982.
• Citation: 114 US App. DC 246,314 F.2d 251
• Parties: Mary D. IRBY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 US App. DC 246, 314 F.2d 251 (1963)

Mary D. IRBY, Appellant, v. UNITED STATES of America, Appellee.

No. 16982.

United States Court of Appeals District of Columbia Circuit.

Argued November 13, 1962.

Decided January 4, 1963.

Petition for Rehearing Denied February 13, 1963.

Mr. Herbert J. Muriel, III, Washington, D. C., for appellant.

Mr. Barry Sidman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BASTIAN, BURGER and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc February 13, 1963.

BURGER, Circuit Judge.

The central issue on appeal is whether the affidavits filed in support of the application for a search warrant disclose reasonable grounds, or probable cause, for belief that criminal acts were being committed on the premises in question.

After describing the place to be searched and giving the name of the occupant "James Campy Irby, alias Cueball," identified later in the affidavit, as in Police Records, as "a known and convicted narcotic peddler," the affidavit recited:

"About 9:40 A.M., June 16, 1961, Dets. Virgil S. Hood and Joseph W. Somerville, Narcotic Squad, MPDC, contacted a confidential Special Employee in the 1500 block of 13th St., N.W. Det. Hood searched the Special Employee and found him free of any money and narcotics and gave him $10.00 MPDC Advance Funds to purchase 6 capsules of heroin from inside of premises 1742 Corcoran St., N.W., 1st floor front apartment occupied by James C. Irby and a white female called Sweetie. The Special Employee was then driven to 17th and Corcoran St., N.W. in a private auto by Dets. Hood and Somerville, and was observed to enter premises 1742 Corcoran St., N.W. and remain inside about 10 minutes and come out and return to the auto and informed Dets. Hood and Somerville that James Irby alias Cueball was out capping up some heroin and would be back in an hour. While observing the premises Dets. Hood and Somerville observed 7 known addicts standing in front of premises 1742 Corcoran St., N.W."

This was plainly sufficient to require pursuit of the inquiry. The affidavit then continues:

"About 10:35 A.M. Dets. Hood and Somerville observed the Special Employee contact a subject known as `Little Eddie\' and handed him the money that had been given to him by Det. Hood. Little Eddie was also observed to take money from several of the other addicts that were standing on the corner of 17th and Corcoran St., and walk to 1742 Corcoran St., N.W., first floor front apartment, remain a short time and return to the corner and hand a small white package to the Special Employee at which time the Special Employee walked away north on 17th St., N.W., and east on T St., N.W., at all times within the observations of Dets. Hood and Somerville. The confidential Special Employee turned over to Det. Hood in Somerville\'s presence, a white paper napkin containing 6 gelatin capsules of white powder and one dollar change. Det. Hood searched the Special Employee and found him free of any money or narcotics. * * *"

The affidavit then stated the belief that based on their special knowledge of illicit narcotics traffic the officers believed that violations of drug laws were being conducted, concluding:

"About 11:30 A.M. Wednesday, July 26, 1961, the Special Employee stated that he went to 1742 Corcoran St., N.W., 1st floor front apartment. Contacted a white female known to him as Sweetie. She asked the Special Employee how many he wanted and said do you know the price has gone up to $2.00 per cap? The Special Employee then said `I want five caps\'. The female then handed the Special Employee 5 gelatin capsules each containing a white powder and he handed her $10.00 and left the premises."

On this information the United States Commissioner issued a search warrant which when executed disclosed substantial quantities of illicit narcotics on the premises. The convicted narcotics peddler James C. (Cueball) Irby was not at home at the time; his wife is appellant.

The United States Commissioner had before him not hearsay but direct information of trained and experienced officers who described what they saw by way of the presence of known narcotics users and peddlers gathered just outside the residence of a well known and previously convicted drug trafficker. Secondly he had statements of information given to police by a person who advised police that he had made purchases of drugs on the premises. They were advised on the first surveillance that the convicted drug peddler "Cueball" Irby was not at home but away "capping heroin."

The question is whether probable cause existed for a belief that "Cueball" Irby, or others in his home, were violating the law. An appellate court must approach the issue mindful of, although not bound to accept in all cases, the presumptions of regularity which attend the action of the United States Commissioner. Moreover, the Commissioner, as any magistrate experienced in these matters, is entitled to draw inferences from acts which to the uninitiated and unskilled would be innocent acts. Judge Weick for the 6th Circuit, while noting the inartful draftsmanship of a challenged warrant affidavit, held that the Commissioner's "determination of probable cause is conclusive, unless his judgment is arbitrarily exercised." United States v. Spears, 287 F.2d 7, 9 (6th Cir. 1961). The burden is on the movant to show that the issuance of the warrant was an abuse of discretion. See Evans v. United States, 242 F.2d 534, 536 (6th Cir. 1957). Similarly the Second Circuit, Judge Waterman writing, pointed out that the application for a search warrant need not reveal all the information known to police:

"In close cases such as the present one the very fact that the Commissioner found probable cause is itself a substantial factor tending to uphold the validity of the warrant. * * *" United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

The reasonable ground or probable cause which will support a warrant thus falls far short of legal evidence. The warrant hearing is ex parte and is in no way to be equated to a criminal trial. It requires only that showing which would lead a cautious and prudent judicial officer to act; it can and usually is based on hearsay. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Our own holding in Ward v. United States, 108 U.S.App.D.C. 282, 283, 281 F.2d 917, 918 (1960), cert. denied, 365 U.S. 837, 81 S.Ct. 751, 5 L.Ed.2d 746 (1961), summarized the standards:

"The issue at the warrant stage is not whether the information or evidence would sustain a conviction or even a charge, but whether Officer Wilson and his colleagues were `fully warranted * * * as men of reasonable caution in believing that an offense against the narcotics laws had been and was being committed.\'"

In Draper v. United States, 358 U.S. 307, 323, 79 S.Ct. 329, 338, 3 L.Ed.2d 327 (1959), the Supreme Court expressly validated the use of hearsay as support for a search warrant and the dissent of Mr. Justice Douglas agreed that hearsay could sustain a warrant:

"The Court is quite correct in saying that proof of `reasonable grounds\' for believing a crime was being committed need not be proof admissible at the trial. It could be inferences from suspicious acts, e. g., consort with known peddlers, the surreptitious passing of a package, an intercepted message suggesting criminal activities, or any number of such events coming to the knowledge of the officer."

See Brandon v. United States, 106 U.S. App.D.C. 118, 270 F.2d 311 (1959) (en banc.)

As we see it the officer was compelled to seek a warrant once he had this information. That he could have secured or might well have recited more information or otherwise prepared a more artful application is not the issue; policemen cannot be expected to draft documents as skillfully as lawyers or judges.^*

The judgment of the District Court is

Affirmed.

WRIGHT, Circuit Judge (dissenting).

The predicate for this prosecution is evidence obtained from the search of an apartment pursuant to a search warrant based solely on an affidavit signed by two officers of the Metropolitan Police Narcotic Squad. The question presented is whether the affidavit constitutes probable cause for the issuance of the warrant.

I think not.

The affidavit and the warrant were dated August 2, 1961, and the warrant was executed August 4, 1961. The affidavit¹ outlines two incidents on which the Government relies for probable cause. One incident, on June 16, 1961, involved the purchase of six capsules of heroin by an unidentified police informant on the corner of 17th and Corcoran Streets, N. W., the informant having been duly searched and provided beforehand with Government funds to make the purchase. The affidavit alleges that after taking the informant's money, as well as that of several other addicts on the corner, "Little Eddie," a person apparently unknown to the police, walked to 1742 Corcoran Street, N. W., first floor apartment, remained a short time, and returned to the corner and handed a small white package, later disclosed to contain heroin, to the informant. The affidavit further alleges that one James Irby, known to the narcotic office as a narcotic peddler, occupied the premises searched, 1742 Corcoran Street, N. W., first floor apartment.

The second incident is alleged to have occurred July 26, 1961. This allegation is merely the hearsay statement of the informant that he went to the premises described and bought "5 gelatin capsules each containing a white powder" from a white female known as "Sweetie." This second incident admittedly is entirely uncorroborated. Nor is it even alleged that the unidentified informant is reliable or that the "white powder" was contraband of any kind. Whether...