U.S. v. Etley

• Citation: 574 F.2d 850
• Decision Date: 08 June 1978
• Docket Number: No. 77-5613,77-5613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin Eugene ETLEY and Joyce Ann Read, Defendants-Appellants. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 850

574 F.2d 850

UNITED STATES of America, Plaintiff-Appellee, v. Calvin Eugene ETLEY and Joyce Ann Read, Defendants-Appellants.

No. 77-5613

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

June 8, 1978.

Rehearing and Rehearing En Banc Denied July 28, 1978.

Melvyn Carson Bruder, Dallas, Tex., for defendants-appellants, Etley and read.

Jamie C. Boyd, U. S. Atty., Le Roy Morgan Jahn, Ronald P. Guyer, Archie C. Pierce, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before RONEY, GEE and FAY, Circuit Judges.

RONEY, Circuit Judge:

Defendants Calvin Etley and Joyce Read were convicted of conspiracy to make and possess counterfeit currency and possession thereof, in violation of 18 U.S.C.A. §§ 371, 471 & 472. Much of the evidence against them was obtained from a search of defendant Etley's automobile. Defendants appeal the district court's denial of their motion to suppress the evidence, alleging the warrant affidavit provided an insufficient basis for the warrant's issuance. Defendants also allege error in the admission of evidence regarding the passing of counterfeit money by other people. Defendant Etley contends that the evidence against him was insufficient. Finding these contentions to be without merit, we affirm.

The counterfeit money in question was made in Austin, Texas, by defendant Read's ex-husband, Billy Brown, who operated a camera shop. Read's position in the scheme was to locate a buyer for Brown's counterfeits. She sold them to Mack Cotton, a co-indictee who was tried separately. Cotton was caught while passing a counterfeit $50 bill in Dallas, but he convinced the Secret Service that he was an innocent holder of the bill. However, after other counterfeit bills appeared in El Paso at a time when Cotton was there, the Secret Service became suspicious. They had an informer arrange to buy $3,000 in counterfeit bills from Cotton for $1,000. The buy was made at the Cottage Lounge in Dallas with ten marked $100 bills.

Cotton and defendants Etley and Read then left the Cottage Lounge under surveillance of Secret Service agents. They drove to Austin, and registered at a Ramada Inn. Defendant Read left the motel, went to Brown's camera shop, and returned with a small gray projector case. Three minutes later, defendant Etley left the motel room with the gray case and put it in the trunk of his car. Shortly thereafter, they all left the motel in defendant Etley's car, the car was stopped by the agents, and its occupants arrested. Two of the marked $100 bills used for the purchase from Cotton were found in Etley's possession. The agents obtained a warrant to search the car. The gray case, containing approximately $150,000 in counterfeit bills, among other items of evidence, was seized.

Sufficiency of Warrant Application

The warrant application recited the following facts: Cotton had passed a counterfeit $50 bill in Dallas. Cotton had been in El Paso when similar bills were passed. An undercover agent overheard Cotton and Etley talking at the Cottage Lounge about taking a trip. They left the Lounge in Etley's car and proceeded to Austin. Houston Secret Service agents arrested a man attempting to pass similar counterfeit bills who named Brown as his source, and gave the address of Brown's camera store. He then called Brown, who said that he had more counterfeit money available. Agents kept Brown's store and the Ramada Inn under surveillance. Agents saw a "white female" (defendant Read) leave Brown's shop carrying a small case, and other agents saw her enter a motel room at the Ramada Inn carrying the gray case. Minutes later, the agents saw one of the "white males" under surveillance from Dallas (defendant Etley) leave that same room and put the case in the trunk of his car. The agents stopped the car when it left the motel and arrested its occupants. An agent identified one of the car's occupants as Cotton.

Contrary to defendants' contention this information supplied sufficient probable cause for the magistrate to issue the warrant.

There can be no doubt as to the reliability of the facts related in the warrant. Almost all of the information related in the application was observed by the affiant or other Government agents. The Supreme Court has held that "(o)bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965). The only information in the application not from a Government agent was that of the man arrested in Houston. The application detailed facts showing that his identification of Brown as the source of the bogus bills was based on personal knowledge, confirmed by Government agents when the man telephoned Brown and Brown said he would have more counterfeit money available. Thus, the reliability of the information in the warrant application is adequately established. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The only issue, then, is whether the information in the application was sufficient for a magistrate to conclude there was probable cause to believe defendant Etley's car contained counterfeit money. The Supreme Court has held that an affidavit for a search warrant is to be interpreted in a commonsense and realistic manner, and the magistrate's finding of probable cause should be sustained in doubtful or marginal cases. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). An affidavit need not provide absolute certainty a search will reveal the objects sought. It is only necessary that "the facts and circumstances described in the affidavit would warrant a man of reasonable caution to believe that the articles sought were located at the place where it was proposed to search." United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977).

Interpreting the affidavit in a commonsense and realistic manner, it clearly contains ample information. The magistrate could conclude that Cotton was involved in a counterfeiting scheme; he traveled to Austin, where one of his companions went to the shop of the source of the counterfeit bills; she left the shop with a case, which was put in the trunk...