U.S. v. Colon

• Decision Date: 03 October 1977
• Docket Number: No. 76-3292,76-3292
• Citation: U.S. v. Colon, 559 F.2d 1380 (5th Cir. 1977)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul Ortiz COLON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1380

559 F.2d 1380

UNITED STATES of America, Plaintiff-Appellee, v.Raul Ortiz COLON, Defendant-Appellant.

No. 76-3292.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1977.

Marion T. Carson, Charles J. Lieck, Jr., San Antonio, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK and GEE, Circuit Judges, and MARKEY, ^* Chief Judge.

MARKEY, Chief Judge:

Following an investigation by agents of the Drug Enforcement Administration (D.E.A.), appellant Colon and Oscar Espinoza were arrested and charged with violation of the federal narcotics laws in a three-count indictment.

Count One charged the pair with conspiracy to distribute heroin, a Schedule I controlled substance, over the period October 8 to 16, 1975, in violation of 21 U.S.C. §§ 841(a)(1)and846.In Counts Two and Three, Colon was charged with aiding and abetting the distribution of heroin on October 8 and 16, 1975, respectively, in violation of 18 U.S.C. § 2, and Espinoza was charged with distribution of heroin on the same dates, in violation of 21 U.S.C. § 841(a)(1).

Espinoza pleaded guilty as charged and testified against Colon.

The jury found Colon guilty on Counts One and Three and not guilty on Count Two.Colon was sentenced to 15 years imprisonment with a special parole term of 15 years on the conspiracy charge and to five years imprisonment with a special parole term of 10 years on the aiding and abetting charge, the sentences to be served consecutively.

On January 29, 1976, two weeks after Colon's arrest, D.E.A. agents, acting upon an informant's tip, executed a search warrant upon an apartment in San Antonio, Texas, in which they found and seized seven grams (approximately one-half ounce) of heroin and paraphernalia usable in the processing of heroin.That evidence was introduced at trial for the purpose of proving Colon's intent with respect to the violations charged.

ISSUE

The dispositive issue is whether the trial court erred in denying Colon's motion to suppress the evidence obtained during execution of the search warrant.¹Colon contends that the warrant was issued on the basis of an affidavit insufficient to establish probable cause and thus in contravention of the Fourth Amendment.²After careful review, we find the affidavit defective and the search warrant therefore void.

OPINION

As was stated in Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159(1933):

Under the Fourth Amendment, (a magistrate) 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.

Probable cause is deemed to exist

where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.

Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040(1967).

The affidavit at bar contained the following allegations, purporting to establish probable cause:

1.Checking the records of the San Antonio City Public Service Board, D.E.A. agents found that Raul Lopez Colon paid the utility bills for apartment # 7, 555 Club Drive, San Antonio; that the application for utility service stated that he was the operator of the Caribe Club in San Antonio, and that he had formerly resided in New York, N.Y.

2.Appellant, Raul Ortiz Colon, stated at the time of his arrest that he operated the Caribe Club and formerly resided in New York; his domicile was 533 W. Mistletoe, San Antonio.

3.At the time of Colon's arrest, a confidential informant, proven reliable on several occasions, told the agent in charge of the investigation that Colon had just received a large quantity of heroin.

4.The same informant also stated that Colon told him that he(Colon) never kept heroin at the house on Mistletoe.

5.The San Antonio police executed "at least one" prior search warrant at Colon's house on Mistletoe, the results of which were negative.

6.Surveillance by D.E.A. agents indicated that no one had entered apartment # 7 since Colon's arrest.

7.Colon had a reputation among law enforcement agencies of violating narcotics laws, had been arrested for such violations in the past, and was presently under arrest for violation of narcotics laws.

The affidavit is, of course, subject to the two-pronged test developed in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964), requiring a determination of whether the magistrate had been informed of underlying circumstances from which (1) the informant concluded that criminal activity was being conducted as alleged, and (2) the affiant concluded that the informant was credible or his information reliable.The inquiry is concerned with facts supporting the informant's conclusion, the manner in which knowledge of those facts was acquired, and the basis for reasonable reliance on the informant's veracity.

Should the affidavit fail to pass muster under Aguilar, allegations tending to corroborate the informant's report may nonetheless support a finding of probable cause.In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969), the informant's tip that Spinelli was bookmaking in an apartment was held insufficient to support a finding of probable cause, even though the informant had supplied Spinelli's phone numbers and the agents had confirmed them with the phone company.Nevertheless, the Court recognized that an informant's tip which fails to communicate the manner in which his information was gathered may still support a finding of probable cause if it describes the accused's activity in such detail as to be, in effect, self-verifying.³Moreover, an affiant's independent investigation may corroborate details supplied by the informant, and thus provide some verification of an informant's veracity.⁴And a trustworthy informant's tip may be considered in conjunction with an affiant's independent investigation where that investigation reveals abnormal or suspicious activity.Cf.McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, rehearing denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616(1967).⁵

In the case before us, the informant's tip consists only of the statement that Colon had received a large quantity of heroin (with no indication of how the informant knew that "fact"), and that Colon had told him no heroin was kept in his Mistletoe residence.The informant did not identify the searched apartment as the place where incriminating evidence might be found, or report any facts which might point to that, or any other, apartment.The agents, employing their own investigative methods, learned that a Raul Lopez Colon paid utility bills for an apartment # 7 on Club Drive."Putting two and two together," the D.E.A. agents reasoned that if Colon had "just received" a large quantity of heroin, he must have secreted it somewhere other than at the house on Mistletoe, and concluded that the searched apartment must be a hiding place for heroin.Though the diligence and efficiency with which the D.E.A. agents pursued their task may be admired, such considerations cannot substitute for the necessary establishment of probable cause for issuance of the search warrant.

The informant's tip simply fails to meet the requirement in Aguilar that the magistrate be informed of the basis for the informant's conclusion that criminal activity is involved.That portion of the informant's report relating that Colon had received a large quantity of heroin, being the sole allegation of criminal activity, must be considered the linchpin of the affidavit.But the statement is one of ultimate fact, providing no underlying facts from which it may have been derived.No magistrate could possibly determine from the affidavit whether the allegation rested on the informant's observation or on some other reliable foundation.For all that appears, it might have originated as "a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation."Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589.Moreover, the informant's report is devoid of the sort of detail (as in Draper ) from which "a magistrate . . . could reasonably infer that the informant had gained his information in a reliable way."Id. at 417, 89 S.Ct. at 589.Disintegration of the tip regarding Colon's receipt of heroin causes the entire structure supporting the warrant to crumble.

The allegation that Colon told the informant that he never kept heroin at his house is not, of course, an allegation of criminal activity.Nor may it serve in support of a finding of probable cause to search the apartment here involved.Even if it be assumed that the naked report of receipt of heroin is acceptable without more, the indication of one place where heroin is not kept left open the entire world and did not in itself implicate the searched apartment as the place where heroin was stored at the time the search warrant was issued.Moreover, the affidavit is silent regarding the circumstances under which Colon's alleged statement concerning his house on Mistletoe was made.The magistrate could not have learned from the affidavit whether the statement was made by a narcotics dealer (Colon) to a prospective buyer (informant) under circumstances providing some measure of trustworthiness (cf.United States v. Dunnings, 425 F.2d 836(2d Cir.1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412(1970)), or in response to questioning, or to a casual acquaintance under circumstances indicating it was made in jest.

The flaw in...