Lopez v. United States

• Decision Date: 06 December 1966
• Docket Number: No. 23263.,23263.
• Parties: Melchor Tafoya LOPEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

370 F.2d 8 (1966)

Melchor Tafoya LOPEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 23263.

United States Court of Appeals Fifth Circuit.

December 6, 1966.

Richard B. Perrenot, El Paso, Tex., for appellant.

Harry Lee Hudspeth, Asst. U. S. Atty., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before JONES and DYER, Circuit Judges, and SPEARS, District Judge.

SPEARS, District Judge:

On December 6, 1965, appellant was convicted on four counts of an indictment, the first two of which charged him with the importation and concealment of heroin in violation of 21 U.S.C. Section 174, and the last two with having departed and entered the United States without registering as a narcotics user and addict in violation of 18 U.S.C. Section 1407. He was sentenced to ten years on each of the first two counts, and three years on each of the last two counts, with all sentences to run concurrently.

Appellant contends that the trial court erred in denying his motions (1) to suppress the narcotics seized from him, (2) to suppress his confession, (3) to compel the Government to disclose the identity of the informants, and (4) for acquittal. In addition, he complains of the Court's action in refusing to instruct the jury as to the necessity for corroborative evidence as requested by him. Finding no error, we affirm.

The primary attack made by appellant is upon the validity of the search warrant which resulted in the seizure of incriminating evidence against him. After reviewing the record, however, we are satisfied that the complaint upon which the warrant was issued, furnished a sufficient basis for a finding of probable cause, as required by the Fourth Amendment to the United States Constitution.

The record reflects that on or about May 29th, 1964, Detectives Avalos and Barba of the El Paso Police Department received information from an informer, who theretofore had proven to be reliable, to the effect that appellant had gone to Mexico to obtain heroin. Later the officers received information from a different source of proven reliability that appellant had returned to El Paso with heroin, and would be "pushing it out pretty soon".

Appellant's house was kept under surveillance for several days after the foregoing information was received, and prior to his arrest. He was first seen on June 6, 1964 as he left the house with one Francisco Rodriguez, a known narcotics addict. The two men entered appellant's car and left with appellant driving. For a portion of the first block he drove on the wrong side of the street. While still in the first block, appellant brought the car to a halt, made a throwing motion toward the street on the passenger's side of the automobile, and continued forward again. He then ran a stop sign and turned the corner. Detectives Avalos and Lavender, who had been watching the house, stopped appellant because of the traffic violations. Detective Avalos immediately returned to the area where the throwing motion had occurred. A little girl, approximately 10 to 15 years old, gave him the rubber tip of an eye-dropper she had found, containing a murky fluid, which upon being field tested, showed the presence of an opium derivative. Detective Avalos then called Detective Barba over the radio, gave him the foregoing information, and asked him to obtain a search warrant.

The testimony reveals that Detective Barba informed the Justice of the Peace who issued the search warrant that he had information concerning appellant from a "good source", one that had already made out "good cases"; that the informer had said that appellant had gone into the interior of Mexico to obtain a large quantity of heroin; that according to the informer, appellant had previously been pushing heroin, and that this heroin was for that purpose; that appellant's house had been under surveillance; and that appellant was in custody at the time with more heroin found on him. Detective Barba testified that he repeated to the Justice of the Peace the information given to him over the radio by Detective Avalos; and that the Justice of the Peace then prepared the complaint form, which he (Barba) swore to and signed.

In the complaint supporting the search warrant, the complaining officer stated his belief that appellant was in possession of heroin and paraphernalia at the address sought to be searched, based upon the following facts:

"I have been informed of the existence of the foregoing set out facts by reliable, credible, reputable and trustworthy citizen(s) of El Paso County, Texas, and further investigation".

Detectives Lavender and Avalos waited with appellant until Detective Barba and another detective arrived with the warrant. They then proceeded to appellant's house and searched it in his presence. Heroin, an eye-dropper, hypodermic needle, a ball of cotton wrapped in cloth, and a brown paper sack containing sugar, were found in an overcoat in a closet. When these items were discovered appellant exclaimed, "You found it". He was then taken to the police station where, after having been warned of his rights, he made a full confession, which was reduced to writing and signed by him.

The Supreme Court has on several occasions passed upon various problems relating to search and seizure, and the principles of law applicable to this case have been firmly established.¹

In reviewing the validity of a search warrant, this Court is limited to a consideration of the same information that was brought to the magistrate's attention.² While it is doubtful that the affidavit, based largely upon hearsay, alone could have supported a finding of probable cause, we are of the opinion, and so hold, that the information obtained through "further investigation", and brought to the attention of the magistrate in the form of oral statements made by the complaining officer, together with that contained in his affidavit, satisfies the legal requirements.³ The magistrate was told that the informant was a "good source" who...