U.S. v. Button, 80-1498

• Decision Date: 06 July 1981
• Docket Number: No. 80-1498,80-1498
• Citation: 653 F.2d 319
• Parties: UNITED STATES of America, Appellee, v. Robert BUTTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 319

653 F.2d 319

UNITED STATES of America, Appellee, v. Robert BUTTON, Appellant.

No. 80-1498.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1980.

Decided July 6, 1981.

Earl P. Gray, St. Paul, Minn. (argued), Mark W. Peterson, Minneapolis, Minn., for appellant.

Thomas K. Berg, U. S. Atty., Daniel W. Schermer (argued), Asst. U. S. Atty., District of Minnesota, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and PORTER, District Judge. ^*

DONALD J. PORTER, District Judge.

Defendant was charged in a one-count indictment with possession with intent to distribute phencyclidine (commonly known as "PCP" or "angel dust") in violation of 21 U.S.C. § 841(a)(1). The indictment was based upon items seized in a search of a single-family dwelling in Bloomington, Minnesota, under a search warrant issued by the state district court. The warrant was authorized by a state district judge, based upon the affidavit of a Minneapolis police officer. Before trial, defendant moved to suppress the evidence seized on the ground that the warrant was issued without probable cause. After a hearing before a United States magistrate, the magistrate filed a report and recommendation upholding the validity of the warrant and denying the motion to suppress the items seized. Thereafter, the United States District Court overruled defendant's exceptions to the magistrate's report, and adopted the report and recommendation of the magistrate holding the warrant valid. The court denied the motion to suppress certain items later received in evidence at trial. After jury trial, defendant was convicted of the offense charged, and now brings this appeal. For the reasons stated in this opinion, we hold that the affidavit is insufficient to show probable cause and thus the warrant should not have been issued and all evidence seized under the warrant should have been suppressed.

I. HEARSAY AS PROBABLE CAUSE

We are properly committed to accept some, but not all, hearsay to establish probable cause. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The issue in this case is whether the unsworn declarations of the non-appearing, unnamed declarants, contained in the affidavit for a search warrant, meet Fourth Amendment ¹ probable cause standards.

Basic to search warrant protections is the requirement of probable cause. Its function is to guarantee a substantial probability that the invasions involved in the search will be justified by discovery of offending items. Two conclusions necessary to the issuance of the warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. ²

The search warrant here was issued upon the information contained in the affidavit of a police officer. Most of the officer's affidavit was hearsay information since it came to him secondhand from two unnamed informants. Whether the information in the affidavit was sufficient to meet the Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, ... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was "credible" or his information "reliable".

probable cause requirement of the Fourth Amendment must be determined under the test formulated by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964):

378 U.S. at 114-15, 84 S.Ct. at 1514 (citations and footnotes omitted). ³ See also United States v. Holmes, 594 F.2d 1167, 1170 (8th Cir. 1979); Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). ⁴

The challenged affidavit is set forth verbatim in the margin. ⁵ The affidavit was

subscribed and sworn to by the affiant before the state district judge on January 28, 1980. The search warrant was issued and executed the same date.

II BASIS OF KNOWLEDGE

We first consider whether the affidavit meets the "basis of knowledge" requirement. In writing concerning the "basis of knowledge" prong of Aguilar, Professor LaFave quotes from Justice Moylan's perceptive analysis in Stanley v. State, supra :

The "basis of knowledge" test is not concerned one whit with an informant's honesty or "veracity." It is concerned, rather, with conclusionary validity. Even assuming "credibility" amounting to sainthood, the judge still may not accept the bare conclusion of that "credible" informant any more than he may accept the bare conclusion of a sworn and known and trusted police-affiant.... To do so would be an unconstitutional delegation of the decisionmaking function which the Fourth Amendment lodges exclusively in the judge himself.

The "basis of knowledge" prong assumes an informant's "veracity," and then proceeds to probe and test his conclusion: ("What are the raw facts upon which the informant based his conclusion?" "How did the informant obtain those facts?" "What precisely did he see or hear or smell or touch firsthand?" "If he heard the facts from someone else, what makes that third person 'credible' and how did that third person come by the knowledge?"). The judge must ascertain the source for the raw data the product of someone's senses and then weigh that data for himself. He is concerned not with that part of an affidavit or testimony which provides information about the informant but with the recitation of the story coming from the informant.

313 A.2d at 861 (footnote and citations omitted), quoted with approval in 1 W. LaFave, supra, § 3.3 at 536.

In Aguilar, Justice Goldberg, writing for the majority, quoted from Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933): "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." (Emphasis added in Aguilar, supra, 378 U.S. at 112, 84 S.Ct. at 1512).

Reviewing the affidavit, it can be seen that the second informant, referred to in the second paragraph, does not implicate either defendant or the residence. Also, affiant's warrantless search of the garbage contents revealed nothing involving "angel dust" and thus would have no probative value on the issue of whether angel dust was then stored in the residence. The affidavit must stand or fall on the information The informant stated that the informant has seen a large quanity (sic ) of white powder that was repesented (sic ) to be Angel Dust that the informant had observed to have come from the residence at 9236 10th Ave. So.

supplied by the first informant. With but one exception, the first informant gave information which does not incriminate defendant or the residence, or gave simply conclusory statements and beliefs. The one exception is the statement:

No underlying circumstances are given, nor any date or time of day or night. Informant does not state he was in the residence, nor the circumstances (if he knew, which is left unanswered) under which the white powder came from the residence, nor what took place inside the residence in that regard. Defendant is not mentioned. In stating the white powder was angel dust the first informant relied on an unidentified source for informant's conclusion that the powder was angel dust. No underlying circumstances are given from which the magistrate could independently determine the "basis of knowledge" of either the first informant or the first informant's source. ⁶ As Justice White wrote in his separate concurrence in Spinelli, supra, 393 U.S. at 426, 89 S.Ct. at 594:

(I)t seems that if it may be so easily inferred from the affidavit that the informant has himself observed the facts or has them from an actor in the event, no possible harm could come from requiring a statement to that effect, thereby removing the difficult and recurring questions which arise in such situations.

We conclude the affidavit fails the "basis of knowledge" prong of Aguilar. See United States v. Taylor, 599 F.2d 832 (8th Cir. 1979).

III STALE PROBABLE CAUSE

"It is axiomatic by now that under the fourth amendment the probable cause upon which a valid search warrant must be based must exist at the time at which the warrant was issued, not at some earlier time." United States v. Steeves, 525 F.2d 33, 37 (8th Cir. 1975).

The only specific date in the affidavit in this case is that given by the police officer affiant. He avers that he searched the garbage on January 28, 1980, the date on which the warrant was issued. The information he received from the first informant came to him "over the past six months" (prior to January 28, 1980). Another court, faced with a similar affidavit, wrote:

The Commonwealth would have us believe that the transactions occurred continuously "within the last two months." If that were the case it would have been very easy for the specific dates and times to be included in the affidavit. This would have eliminated any doubt as to when the transactions occurred. Since this was not done we are now forced to make an assumption as to when the transactions occurred. Generally when the courts are forced to make an assumption as to when transactions occurred "within" a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is Although no factual underlying circumstances are offered to support his conclusion, the first informant is reported as having stated that defendant "is currently supplying Angel Dust to the person...