Thomas v. United States

• Decision Date: 27 April 1967
• Docket Number: No. 23700.,23700.
• Citation: 376 F.2d 564
• Parties: Eugene THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 564 (1967)

Eugene THOMAS, Appellant, v. UNITED STATES of America, Appellee.

No. 23700.

United States Court of Appeals Fifth Circuit.

April 27, 1967.

Fred Blanton, Arthur J. Hanes, Birmingham, Ala., for appellant.

R. Macey Taylor, Asst. U. S. Atty., Birmingham, Ala., Theodore George Gilinsky, Atty., Dept. of Justice, Washington, D. C., Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellee.

Before COLEMAN and DYER, Circuit Judges, and ESTES, District Judge.

COLEMAN, Circuit Judge:

The appellant was convicted of a violation of Section 5811, Title 26 U.S.C.¹ The sentence was to two years imprisonment, to run consecutively to the ten year sentence imposed in No. 23,289, this day affirmed.

The sawed off shotgun was produced as the result of a search of appellant's home. The District Court denied a timely motion to suppress this evidence. The appellant says that the search warrant was invalid and the search was unreasonable. This is the sole issue on this appeal. The judgment of conviction will be reversed.

Our duty in regard to the validity of the affidavit for this search warrant was quite completely spelled out in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The general duty was described as follows:

"This Court is alert to invalidate unconstitutional searches and seizures whether with or without warrant. See Aguilar v. State of Texas, supra; Stanford v. Texas, 379 U.S. 476 85 S.Ct. 506, 13 L.Ed.2d 431; Preston v. United States, 376 U.S. 364 84 S.Ct. 881, 11 L.Ed.2d 777; Beck v. Ohio, 379 U.S. 89 85 S.Ct. 223, 13 L.Ed.2d 142. By doing so, it vindicates individual liberties and strengthens the administration of justice by promoting respect for law and order.

"This Court is equally concerned to uphold the actions of law enforcement officers consistently following the proper constitutional course. This is no less important to the administration of justice than the invalidation of convictions because of disregard of individual rights or official overreaching. * * *

"Affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

"This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant\'s or an informer\'s belief that probable cause exists without detailing any of the `underlying circumstances\' upon which that belief is based. See Aguilar v. State of Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. at 270, 80 S.Ct. 725, 4 L.Ed.2d at 707, 78 A.L.R. 2d 233. * * *

"The affidavit in this case Ventresca, if read in a commonsense way rather than technically, shows ample facts to establish probable cause and allow the Commissioner to issue the search warrant."

Omitting formal parts, the affidavit for the search warrant, sworn to by a special agent of the Federal Bureau of Investigation before a United States Commissioner, read as follows:

"The undersigned being duly sworn deposes and says: That he has reason to believe that on the premises known as the residence of Eugene Thomas, located at 1519 — 12th Avenue North, Bessemer, Alabama, and any automobile in the possession of Eugene Thomas in the Northern District of Alabama there is now being concealed certain property, namely guns, rifles, pistols, ammunition and various and sundry weapons which are believed to have been used in the shooting of Viola Luizzo on or about March 25, 1965 in the County of Lowndes, State of Alabama.

"And the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: a confidential source upon which affiant has relied on in the past and has found to be reliable, advised affiant that a vehicle operated by Eugene Thomas was observed proceeding to the scene where Viola Luizzo was shot at the time of said shooting. The confidential source further advised the affiant that he heard shots and based upon his observation and belief, believes that the aforesaid vehicle was the vehicle from which said shots were fired."

At the outset we encounter Rule 41 (b) (2) and (c) as follows:

"(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property * * (2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; * * *

"(c) Issuance and Contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant * * * (and) he shall issue a warrant identifying the property * * *"

In its written brief filed pursuant to a post argument inquiry propounded by the Court, the Government has answered as follows:

"We are persuaded that Rule 41 (b) (2) is directed to federal criminal offenses, i. e., that it authorizes search warrants for property believed to have been used or which is to be used as a means of committing a federal crime. See Conyer v. United States, 80 F.2d 292, 294 (C.A. 6) (dictum); United States v. Fulcher, 229 F.Supp. 456, 457 (D.Md.) (dictum); United States v. Office No. 508 Ricou-Brewster Bldg., 119 F.Supp. 24, 28 (W.D.La.) (by implication); Whitman, Federal Criminal Procedure 321 (1950). The history of Rule 41(b) shows that it was intended merely as a codification of existing law. See Notes of the Advisory Committee. The federal law relating to search warrants at the time consisted of 18 U.S.C. (1940 Ed.) § 611-626, which in turn were simply the provisions of Title XI of the

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