Miller v. Sigler

• Decision Date: 20 December 1965
• Docket Number: No. 17981.,17981.
• Citation: 353 F.2d 424
• Parties: Dutton R. MILLER, Appellant, v. Maurice H. SIGLER, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

353 F.2d 424 (1965)

Dutton R. MILLER, Appellant, v. Maurice H. SIGLER, Warden, Appellee.

No. 17981.

United States Court of Appeals Eighth Circuit.

December 20, 1965.

Dutton R. Miller, filed typewritten brief.

Clarence A. H. Meyer, Atty. Gen., and C.C. Sheldon, Asst. Atty. Gen., for the State of Nebraska, Lincoln, Neb., filed typewritten response to brief of appellant.

Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.

GIBSON, Circuit Judge.

This is an appeal from the United States District Court, District of Nebraska in which Judge Van Pelt, after a full evidentiary hearing, denied petitioner a writ of habeas corpus. A certificate of probable cause was subsequently granted and petitioner now appeals the denial of the writ to this Court.

Petitioner is an inmate of the Nebraska State Penitentiary serving a sentence for violation of the state narcotics law. After a plea of not guilty, petitioner was tried before a jury and convicted. Introduced at the trial was a bottle containing vegetable substance identified as marijuana. Petitioner contends that the introduction of this evidence violated his rights under the Fourth Amendment prohibition against unreasonable search and seizure as applied to the states through the Fourteenth Amendment. Even though the search uncovering the incriminating evidence was conducted pursuant to a search warrant, petitioner claims the search warrant was not based upon probable cause as required by the Constitution and the application of its relevant provisions as set forth in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The facts of the case are not complicated. Petitioner was arrested by two officers, one Officer McAdams of the Omaha Police Department Vice Squad and the other, Federal Agent Cox of the Bureau of Narcotics. Prior to the arrest of petitioner, Officer McAdams went before a local magistrate requesting a search warrant. Officer McAdams, in support thereof, presented his own affidavit which stated, "Complaint and information have been received by said complainant of the possession and/or sale of narcotics from the above described property." The magistrate thereafter questioned Officer McAdams as to what was the basis for his belief. According to McAdams he informed the magistrate that he had received information from a reliable source and that he had made several trips to the described apartments and the odor of marijuana was readily apparent outside the door of petitioner's room. The warrant was then issued, the officers searched the room, found the bottle containing marijuana and arrested petitioner.

Petitioner's main claim is that the affidavit and the statement of Officer McAdams to the magistrate is not enough evidence to support a finding of probable cause to issue the search warrant. The District Court held that the affidavit in support of the application was insufficient on its face to support the warrant. There is no doubt that this holding is correct. Aguilar v. State of Texas, supra, condemned the issuance of a warrant on the basis of an affidavit more complete than the one herein. This mere recital by Officer McAdams that he had received information that narcotics were being possessed or sold on the described premises is surely not sufficient evidence to allow the magistrate to make the required independent determination of probable cause. 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. We feel as did the trial court, that this information before the magistrate justified the issuance of the search warrant. When this information is coupled with the affidavit indicating that the officer has additional outside information, presumably from an informer, there can be no doubt but that sufficient probable cause exists to issue the warrant.

Petitioner points to the case of Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L.Ed. 436 (1948), but that case gives him little support. Federal officers with information from an informant went to a hotel. From the hall they could smell opium. Without a warrant they entered the room. The Court held that there was not sufficient probable cause to arrest, but stated at page 13, 68 S.Ct. at p. 368, "At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant."

It is clear from this pronouncement that "probable cause" which would justify the issuance of a search warrant is much less than the "probable cause" required to legally arrest without a warrant. See Aguilar v. State of Texas, supra. Furthermore, this case is a clear indication from the Supreme Court that observation of the odor of recognizable narcotics by police officers is evidence which would fully justify the magistrate in issuing a search warrant. In the words of the Court, "Indeed it might very well be found to be evidence of most persuasive character." To hold otherwise would be to ignore realities, place a protective cloak around obvious narcotic offenders, and further hamper enforcement officials in protecting society by limiting effective police operation.

Petitioner complains there was no showing before the magistrate that Officer McAdams was competent to identify the odor of marijuana. This contention is likewise without merit. If the officer presented hearsay evidence to the effect that someone else had smelled marijuana, perhaps some indication of this person's competence might be...