U.S. v. Deggendorf, 79-1974

• Citation: 626 F.2d 47
• Decision Date: 30 July 1980
• Docket Number: No. 79-1974,79-1974
• Parties: 6 Fed. R. Evid. Serv. 746 UNITED STATES of America, Appellee, v. Mark Donald DEGGENDORF, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 47

626 F.2d 47

6 Fed. R. Evid. Serv. 746

UNITED STATES of America, Appellee, v. Mark Donald DEGGENDORF, Appellant.

No. 79-1974.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1980.

Decided July 1, 1980.

Rehearing and Rehearing en Banc Denied July 30, 1980.

Larry R. Townsley, Cofman, Townsley, Nissenholtz & Weinstein, St. Louis, Mo., argued; David M. Nissenholtz, St. Louis, Mo., on brief, for appellant.

Mitchell F. Stevens, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief.

Before BRIGHT, ROSS and ARNOLD, Circuit Judges.

BRIGHT, Circuit Judge.

Mark Donald Deggendorf appeals his conviction for possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1)(1976). Deggendorf claims that the district court ¹ erred 1) in denying his motions to quash a search warrant and to suppress evidence seized pursuant to that warrant; 2) in denying his motion for a change of venue or, in the alternative, a continuance; and 3) in admitting certain hearsay statements into evidence. We find no prejudicial error and accordingly affirm.

I. Background.

The story of Mark Deggendorf's arrest begins at an airport security checkpoint in Orlando, Florida, on the morning of September 14, 1979. A passenger bound for St. Louis, Missouri, approached the checkpoint carrying a brown Smith Corona typewriter case. The case caught the attention of a security officer because she was unable to discern any of its contents through the x-ray machine. The security officer asked the passenger to open the case and, after stating that the case just contained clothes, the passenger complied with the request. Upon inspecting the contents, the security officer found tennis shoes, clothing, and a large brown envelope.

The passenger claimed that the envelope also contained clothing, and attempted to retrieve it. The security officer ran the envelope back through the x-ray machine and determined that it did not contain clothing. At this point, an Orlando police officer on airport duty joined in the examination of the envelope. The officer picked up the envelope, squeezed and smelled it. The officer observed that the contents felt bendable or granular in nature. Informed that he could not board the airplane with the package in his possession, the passenger returned the envelope to the typewriter case and forwarded that case as baggage on the airplane.

Suspecting that the envelope contained drugs, the Orlando police officer called the local office of the Drug Enforcement Administration (DEA). The police officer gave a full account of the checkpoint incident including a description of the passenger and his destination. The Orlando DEA office in turn telephoned the St. Louis Office of the DEA. Meanwhile, the passenger made a telephone call and then boarded the plane.

At approximately 11:15 a. m. on the same date, DEA agents in St. Louis observed the passengers arriving from Orlando on the flight designated by the DEA agent in Florida. A man fitting the description given by the Florida agent walked from the gate to the main concourse and met another man. Two informants, who were accompanying the DEA agents, identified the passenger's companion as a cocaine user and dealer named Steven Schmidt.

The passenger and Schmidt walked to the luggage carousel, where a DEA agent moved in close enough to hear part of their conversation. The passenger indicated that he had been stopped in Orlando but felt he had "put one over on them." Schmidt replied: "When I got your call I didn't know what to think. * * * Well, we'll know if everything is all right when the bag gets here."

The passenger and Schmidt picked up two pieces of luggage at the baggage carousel: a brown Smith Corona typewriter case and a large suitcase. As the men headed for the airport exit, DEA Agents Fergus and Dunham and a St. Louis detective approached them. Agent Fergus identified himself, showed his badge, and asked the passenger and Schmidt to accompany him to the police room. Enroute, essentially the following interchange took place between Agent Fergus and the passenger:

Fergus: Do you have an airplane ticket?

Passenger: No.

Fergus: Do you have any identification?

Passenger: No.

Fergus: What is your name?

Passenger: Mark.

Fergus: Mark what?

Passenger: Mark Deggendorf.

After staying three to four minutes in the police room, the agents decided to bring the two men and the luggage to the United States Attorney's office and to apply for a warrant to open and search the typewriter case. While at that office, Agent Dunham saw Deggendorf attempt to discard baggage claim checks for the luggage. Deggendorf also peeled the name tag off the large suitcase and tried to discard it.

Before applying for a search warrant, the agents supplemented their investigation. The St. Louis detective and the two informants went from the airport to an address where, according to the informants, Schmidt resided. The detective ran a license check on the vehicle in the driveway and found that it was registered to Steven Schmidt at that address. DEA Agent Fergus ran the name Mark Donald Deggendorf through the Narcotics and Dangerous Drugs Information System (NADDIS) computer and learned that Deggendorf had been arrested in Bogota, Colombia, for conspiring to traffic in cocaine.

Agent Fergus incorporated the foregoing facts into an affidavit in support of a warrant to search the typewriter case. On the afternoon of the same day that Deggendorf arrived in St. Louis, a federal magistrate issued a search warrant. The resulting search of the envelope in the typewriter case disclosed two clear plastic bags containing what was subsequently determined to be 368.05 grams of cocaine. The cocaine was approximately seventy-five percent pure and had a wholesale value of $79,000 and a street value of $147,000.

Prior to trial, Deggendorf moved to suppress the cocaine on the ground that the facts alleged in the affidavit were insufficient to support the search warrant. In connection with this motion, Deggendorf asserted that some of the facts were tainted by his purportedly illegal arrest. The district judge adopted the recommendation of the magistrate who had heard Deggendorf's motion to suppress, and denied the motion.

Deggendorf now appeals the denial of his motion to suppress. In addition, Deggendorf appeals the district court's denial of two other motions: a request for a change of venue or, in the alternative, a continuance, based upon two potentially prejudicial newspaper articles published shortly before trial; and a motion to exclude a portion of Agent Fergus' testimony as hearsay. We discuss these motions separately.

II. The Motion to Suppress.

Deggendof claims that the trial court should have suppressed the cocaine because the affidavit did not state sufficient facts to establish probable cause to search. In support of this claim, Deggendorf argues that certain of the facts in the affidavit are tainted by the unreliability of the informants, and others by the illegality of his arrest.

In reviewing the sufficiency of an affidavit for a search warrant, we must assess the question of probable cause pragmatically. As the Supreme Court stated in United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

Where (the underlying) 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 common sense, manner.

See also United States v. House, 604 F.2d 1135, 1142 (8th Cir. 1979). Our basic inquiry is whether the affidavit established "the probability of criminal activity and the concealment of evidence on specific premises. Proof beyond a reasonable doubt is not required." United States v. Taylor, 599 F.2d 832, 836 (8th Cir. 1979) (citations omitted). With these guidelines in mind, we analyze the affidavit in this case.

Deggendorf first challenges the reliability of the informants who identified Schmidt as a cocaine dealer and user. The Supreme Court, in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), announced a two-prong test of the adequacy of a statement by an unidentified informant:

(T)he magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) 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." (Id. (citation and footnote omitted).)

Applied to this case, Aguilar requires that the affidavit state 1) sufficient underlying circumstances from which the informants could conclude that the man at the airport was Steven Schmidt and that Schmidt was a cocaine user and dealer; and 2) sufficient underlying circumstances from which the officers could conclude that these informants were credible or their information was reliable.

This court has consistently held that an informant's statement that he or she personally observed the alleged transaction satisfies the first prong of the Aguilar test. United States v. Holmes, 594 F.2d 1167, 1170 (8th Cir.), cert. denied, 100 S.Ct. 154, 62 L.Ed.2d 100 (1979); United States v. Wedelstedt, 589 F.2d 339, 348 (8th Cir. 1978), cert. denied, 442 U.S. 916, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); United States v. Gavic, 520 F.2d 1346, 1350 (8th Cir. 1975). ² In this case, the affidavit states that the informants personally observed Schmidt purchase and use cocaine. They also observed the man at the airport and identified him as Schmidt. Accordingly, we conclude that the affidavit meets the first requirement of Aguilar.

Aguilar 's second prong focuses on the credibility of the informant. This...