Porter v. United States

• Decision Date: 12 October 1964
• Docket Number: No. 19146.,19146.
• Citation: 335 F.2d 602
• Parties: Edward William PORTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

335 F.2d 602 (1964)

Edward William PORTER, Appellant, v. UNITED STATES of America, Appellee.

No. 19146.

United States Court of Appeals Ninth Circuit.

August 6, 1964.

Rehearing Denied October 12, 1964.

Jerry Sullivan, Sullivan & Glenn, Phoenix, Ariz., for appellant.

C. A. Muecke, U. S. Atty., Henry L. Zalut, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before MERRILL, Circuit Judge, MADDEN, Judge of the Court of Claims, and DUNIWAY, Circuit Judge.

MADDEN, Judge.

This is an appeal from a judgment of the United States District Court for the District of Arizona. The appellant Porter, after a jury trial, was adjudged guilty of two violations of Section 5851 of Title 26, United States Code. The violations were: (1) the unlawful possession of a sawed-off shotgun which had not been duly transferred to the defendant in pursuance of a written order from the defendant on an application form issued for that purpose by the Secretary of the Treasury or his delegate, as required by 26 U.S.Code § 5814, and (2) the unlawful possession of a firearm, to wit: one sawed-off shotgun, * * * said firearm not having been registered as required by 26 U.S.Code § 5841.

The sawed-off shotgun, the possession of which was the basis for each of the two convictions, was taken from the appellant's automobile in a search of his automobile pursuant to a search warrant. In this appeal he does not contend that he was not in possession of the shotgun, nor does he contend that his possession was not a violation of the cited statutes. His assignment of error is that the district court should have suppressed the evidence, the shotgun, on the basis of which he was convicted, and should have ordered the police officers who had seized it to return it to him. The appellant, before his trial, had made a motion to the trial court to suppress this evidence and to return the shotgun to the appellant, which motion the trial court had denied. If the motion had been granted, the appellant could not have been convicted, since the gun, and its having been found in the appellant's possession, was the principal evidence against him.

We now consider the reasons advanced by the appellant in the trial court and in this appeal, for the suppression of the evidence. The appellant says:

"(a) The trial court erred in not finding the affidavit on the basis of which the search warrant was issued insufficient on its face.

"(b) The trial court erred in not suppressing the evidence on the ground that said evidence was illegally seized."

We first discuss appellant's point (a). The officers who searched the appellant's automobile and found the shotgun had a search warrant issued by a United States Commissioner, one of whose functions is to issue such warrants in proper cases. The appellant says that the Commissioner did not have authority to issue the search warrant which he issued in this case, because the requirements of the Fourth Amendment of the Constitution of the United States were not complied with. The Fourth Amendment says:

"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."

The "oath or affirmation" which persuaded the United States Commissioner that there was probable cause for issuing the warrant was an affidavit presented on May 15, 1963, to the Commissioner by Special Agent Joseph R. Pyne of the Federal Bureau of Investigation. The affidavit requested a warrant to search a 1960 Oldsmobile convertible bearing 1963 Louisiana License 869-460, located at a named location. It stated that Pyne had reason to believe that a gun, .25 or .32 caliber, a cap, baseball or golf type, and a sport coat, gray in color, which were considered instrumentalities of a crime of bank robbery which was perpetrated on April 2, 1963, at the First National Bank of Arizona, 15th Street and McDowell Branch, were in the automobile. It stated that the facts tending to establish the foregoing grounds for the issuance of a warrant were:

"1. Above described items were allegedly used and worn by bank robber.

"2. Victim teller, Terry Lee Ford, identified Porter as person who perpetrated the robbery.

"3. Above described items were not in possession of Porter when arrested.

"4. Above described vehicle is allegedly property of Porter and registered in name of William Edwards.

"5. Porter advised Special Agent Walter E. Peters of the F.B.I. that the above described car is his property."

The appellant says that the Commissioner should have refused to issue the search warrant because Pyne's affidavit did not show probable cause for believing that the articles listed in it would be found in the described automobile. We think that, in the circumstances, the affidavit was sufficient. It disclosed that the automobile to be searched belonged to the person who had been identified as the robber by the bank teller who had faced the robber; that the automobile had been registered in another state under a fictitious name; that the gun and the clothing sought were not on the person of the owner of the automobile when he had been arrested for an offense other than the bank robbery, on the day preceding the presentation of the affidavit.

The identification of the owner of the automobile as the bank robber was evidence of the highest importance. Having that important break in the direction of the solution of an armed robbery, it was, of course, the high duty of the F.B.I. to take every legitimate step to confirm or rebut the identification. They had information from the teller that the robber wore the listed items of clothing. If those items could be found in the possession of the one who had been identified as the robber, that would be an important step toward the solution of the case. When that person had been arrested on another charge, he had not been wearing the clothing nor carrying the gun which the officers now were looking for. It would seem that the most promising place to look for these objects, considering the fact that the suspect was driving an automobile with a foreign license, which he had registered under an assumed name, would be in the automobile. If he had been a person settled in the community, there might well have been more promising places to look for the objects in question. In the circumstances, we think the F.B.I. agent had probable cause to apply for the warrant, and made an adequate statement to that effect in his affidavit.

We have no inclination to study the affidavit of a police officer, applying for a warrant, as if it were a pleading prepared by counsel in a lawsuit. The policeman makes his statement in his own unprofessional language, and the magistrate determines whether the substance of it shows probable cause for the search. The standard applied by the magistrate is not that of certainty that the objects sought will be found as a result of the search. In the comparable situation involving the question of reasonable cause for a search, in that case without a search warrant, the Supreme Court said, in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879, that where

"`the facts and circumstances within their the officers knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that\' an offense has been or is being committed"

there is reasonable cause.¹ The existence of probable cause does not require that the officers possess legal evidence sufficient to convict. Washington v. United States, 92 U.S.App.D.C. 31, 202 F.2d 214.

At the same time that the F.B.I. agent applied for the warrant to search the 1960 Oldsmobile automobile, he also applied for a warrant to search a 1959 Rambler automobile, said by the appellant to have been his property, but also registered in Louisiana in the name of a woman said by the appellant to be his wife. The appellant urges that the application for this second warrant is an indication that the search of each of the automobiles would be an exploratory search, comparable to a search pursuant to an historically disreputable "general warrant," and would therefore be unconstitutional. A warrant to search for three named and described articles, a gun, a cap and a coat is in no sense a general warrant. As to the significance of the fact that two warrants were issued, one for the Oldsmobile and the other for the Rambler, surely the fact that a suspect has two automobiles, or two residences, does not mean that neither one of them can be searched, because the suspect may have concealed the wanted evidence in the other one. And particularly in the case of two automobiles, both having foreign registration, it might be imprudent for the police to risk the possibility that the one which contained the evidence would be driven beyond reach while the other was being searched.

It is important to remember that the search here involved was not a search made by the police on their own initiative and authority. In some circumstances such a search would, of course, be lawful. But the submission, by the police, to a judicial officer, a magistrate, of their reasons for wanting to conduct a search, is usually necessary and is highly significant. A...