U.S. v. Bentley
| Decision Date | 02 June 1983 |
| Docket Number | 82-2337,Nos. 82-1696,s. 82-1696 |
| Citation | 706 F.2d 1498 |
| Parties | 13 Fed. R. Evid. Serv. 152 UNITED STATES of America, Appellee, v. Tillman J. BENTLEY, Appellant. UNITED STATES of America, Appellee, v. Nathan PLATT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas E. Dittmeier, U.S. Atty., Richard L. Poehling and David M. Rosen, Asst. U.S. Attys., St. Louis, Mo., for appellee.
Norman S. London, Jayne E. Knobbe, London, Greenberg & Pleban, St. Louis, Mo., for appellant Bentley.
Norman Alan Lubin, Alan Bryant Chambers, Memphis, Tenn., for appellant Platt.
Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.
In these consolidated appeals, Tillman J. Bentley and Nathan Platt challenge their convictions for certain drug-related offenses. We affirm.
From the evidence adduced at trial, the background of these cases may be briefly reconstructed as follows. In August of 1981 the president of Advance Engineering, a St. Louis company engaged in the manufacture of pharmaceutical punches and dies, contacted the Drug Enforcement Agency (DEA) concerning an unusual inquiry he had received in connection with the purchase of a tablet press. While negotiations continued with respect to the purchase, the DEA initiated an investigation and began surveillance of the company premises. Prior to the consummation of the sale, agency officials secured the approval of a United States Magistrate for the installation and monitoring of an electronic tracking device, 1 which was placed in a wooden pallet connected to the tablet press.
In addition to the press, tooling designed with the name "Lemmon 714," the imprint of a pharmaceutical company which produced methaqualone, a controlled substance, was also to be purchased. This tooling had been selected by appellant Nathan Platt during negotiations for the sale of the tablet press, and was subsequently installed in the machine.
On August 26 Platt and Ralph Reff arrived at Advance Engineering to pay the balance of the purchase price and pick up the press. Platt placed the equipment in a pickup truck and departed; Reff subsequently left in a separate vehicle.
Utilizing the electronic tracking device as well as visual surveillance, DEA agents followed Platt, who eventually took the tablet press to the rural property of appellant Tillman Bentley, a physician. There, the machine was unloaded and placed in a shed. Surveillance continued uneventfully until September 14, when the press was moved to another location. While tracking this move, the agents lost the signal from the transmitting device in a rural area. In attempting to relocate the signal and tablet press on foot, they purportedly inadvertently entered the property of Gary Black, 2 where the press was discovered in the pickup truck, which had been backed into a small barn.
The press was not moved again until September 30, when it was taken to the property of Gary Combs. Shortly after this move, the agents began to experience difficulties with the tracking device. After obtaining a search warrant, they entered Combs's property to ascertain the feasibility of replacing the device. When this examination indicated that replacement was possible, the agents sought and received a second warrant which authorized the placement of two new tracking devices, one in the pallet and the other on the undercarriage of the truck. Following the installation of the devices, a court order permitting continued surveillance was issued.
On November 5 DEA agents received warrants for the seizure of the tablet press and the arrest of Gary Combs. Also on this date the agents were notified by Advance Engineering that an inquiry had been made concerning the return of the machine. After the issuance of the warrants, Combs was arrested and the press seized. Combs agreed to cooperate with the authorities, and with his consent two telephone calls and a meeting with Gary Black were subsequently recorded.
The investigation culminated with indictments against Black, Bentley and Platt. Both Platt and Bentley were charged with conspiracy to manufacture methaqualone, in violation of 21 U.S.C. Sec. 841(a)(1), and, in separate counts, with possession of punches and dies designed to imprint a pharmaceutical company marking for methaqualone, in violation of 21 U.S.C. Sec. 843(a)(5). Platt's motion for severance was granted, and following a joint jury trial both Bentley and Black were convicted. Platt was convicted in a subsequent jury trial. These appeals followed.
Both Bentley and Platt initially contest the propriety of the judicially authorized electronic surveillance and the resulting seizure of the tablet press. Specifically, appellants urge (a) that the warrants which originally permitted the surveillance were unlawful because they were not supported by probable cause; and (b) that the warrants issued subsequent to the agents' entry onto the property of Gary Black were unlawful because the agents had entered that property illegally. We examine these contentions in turn.
In challenging the propriety of the warrants that sanctioned the electronic surveillance, appellants focus upon information supplied to the authorities by a confidential informant, 3 which served as the primary basis for the original affidavit and search warrant request. They contend that the affidavit did not sufficiently demonstrate probable cause, that the surveillance was therefore unlawful and that any evidence obtained incident to the warrants' execution consequently should be suppressed. Although we find that a close question may be presented, we conclude that the challenged affidavit adequately established probable cause.
The original warrant was issued on the basis of information contained in an affidavit signed by Anton Wagner, a St. Louis police detective assigned to DEA work. In essence, the affidavit recited the following: In August of 1981 Wagner received information from a confidential informant concerning the purchase of a tablet press. This informant had provided information on prior occasions concerning violations of state and federal controlled substance laws. On each of these occasions, Wagner or other DEA agents had verified the information's accuracy, and the tips have resulted in the arrest of at least four persons, with cases pending. The information received in August of 1981 indicated that individuals using the names "R. Reff" and "Irv Fischer" had ordered a tablet manufacturing press from Advance Engineering and Manufacturing Company in St. Louis County, Missouri. The informant further stated that in addition to the press, these individuals had also ordered a set of punches and dies bearing the marking "Lemmon 714"; this mark was recognized by Wagner as a pharmaceutical identification for tablets of methaqualone, a controlled substance. Based on the information Wagner had received, the DEA conducted an investigation which revealed that neither "R. Reff" nor "Irv Fischer" was a licensed registrant with the agency for the manufacture of methaqualone and verified the existence and legitimacy of Advance Engineering.
On the basis of this information, Wagner sought judicial authorization to install the electronic tracking device and to monitor the movement of the press. This authorization was granted by a United States Magistrate on August 18, 1981.
Our evaluation of the adequacy of this affidavit is guided by the principles delineated by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In order to adequately establish probable cause, an affidavit based upon information provided by an undisclosed informant must (1) set forth some of the underlying circumstances necessary to enable the judicial officer to independently judge the validity of the informant's conclusions, and (2) reveal facts sufficient to allow a determination of either the credibility of the informant or the reliability of his information. Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514; see also, e.g., United States v. Carlson, 697 F.2d 231, 237 (8th Cir.1983). In the absence of circumstances indicating the basis of the information, a tip may satisfy the first prong of the Aguilar standard if it describes the "criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.
We are also mindful of the fact that courts "evince a strong preference for searches made pursuant to warrant, and, in some instances, may sustain them where warrantless searches based on a police officer's evaluation of probable cause might fail." Carlson, 697 F.2d at 237 (quoting United States v. Brown, 584 F.2d 252, 256 (8th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979)). Further, "reviewing courts should interpret affidavits for search warrants in a commonsense and realistic fashion, and deference is to be accorded an issuing magistrate's determination of probable cause." Id. (quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983)).
Applying these principles to the present case, we are satisfied that the affidavit in question provided a sufficient basis for the magistrate's finding of probable cause. Appellants' primary contention is that many of the facts recited in the affidavit reflect actions which do not alone constitute criminal activity. As we recently noted, however,
[the] observation of apparently innocent acts "can be significant to a trained officer" and ... the officer is "entitled to assess probable cause in light of his...
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