U.S. v. Hampton, 79-2002

• Decision Date: 26 January 1981
• Docket Number: No. 79-2002,79-2002
• Citation: 633 F.2d 927
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell Millard HAMPTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 927

633 F.2d 927

UNITED STATES of America, Plaintiff-Appellee, v. Russell Millard HAMPTON, Defendant-Appellant.

No. 79-2002.

United States Court of Appeals Tenth Circuit.

Argued Sept. 16, 1980.

Decided Oct. 24, 1980.

Certiorari Denied Jan. 26, 1981.

See 101 S.Ct. 950.

Roland J. Brumbaugh, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with him on brief), for plaintiff-appellee.

Patrick J. Burke, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with him on brief), for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a search and seizure case in a bank robbery setting. Russell Hampton was charged with robbing a federally insured bank in Colorado Springs, Colorado, in violation of 18 U.S.C. § 2113(a) and (d), and for aiding and abetting in such robbery, in violation of 18 U.S.C. § 2. Prior to trial, defense counsel filed a motion to suppress the use at trial of certain items seized in a search of Hampton's residence. The search was conducted by FBI agents under a search warrant issued by a United States Magistrate. After an evidentiary hearing, the motion to suppress was denied, and the items seized in the search of Hampton's home were later introduced in evidence at his trial. A jury acquitted Hampton of aggravated bank robbery, but convicted him of simple robbery. Hampton now appeals from his conviction and sentence entered thereon. On appeal, the only ground urged for reversal concerns the sufficiency of the affidavit which was the basis for the issuance of the search warrant by the United States Magistrate. We agree with the trial court that, under the circumstances, any inaccuracies in the affidavit were not fatal, and we therefore affirm.

On January 23, 1979, the Citadel Bank in Colorado Springs, Colorado was robbed of approximately $900 by two men wearing knit stocking caps as masks. Citadel was insured by the Federal Deposit Insurance Corporation. The Federal Bureau of Investigation investigated the robbery and on January 24, 1979, arrested Hampton, the defendant-appellant, and one Michael Lowell Waters. On January 24, 1979, Waters was interviewed by FBI Special Agent Don Cesare. In his interview with Agent Cesare, Waters was apparently uncommunicative.

Waters was again interviewed on January 25, 1979, by a different FBI agent, one Jeffrey Shandy. On this occasion Waters acknowledged his participation in the robbery of the Citadel Bank and also implicated Hampton. In addition to admitting his involvement in the actual robbery, Waters advised Agent Shandy that he believed the .25 calibre automatic pistol which Hampton used in the robbery, as well as a "large barrelled, large calibre western type gun," which he carried in the robbery, were located in Hampton's residence at 6060 Eaglesnest Drive, in Colorado Springs, Colorado. Waters further advised Agent Shandy that Hampton's share of the proceeds obtained in the robbery were secreted between the mattress and the frame of Hampton's waterbed in his residence on Eaglesnest Drive.

In addition to interviewing Waters, Agents Cesare and Shandy also interviewed two eyewitnesses to the robbery, as well as some four other persons, one of whom drove the getaway car for Hampton and Waters. Armed with all of this information, Agents Shandy and Cesare decided to obtain a warrant to search Hampton's residence.

The affidavit which was presented to the United States Magistrate, sitting in Denver, Colorado, on January 25, 1979, was prepared in about the same manner as was the affidavit in United States v. McCoy, 478 F.2d 176 (10th Cir. 1973). The affiant in the instant case was Agent Richard K. Lighthall, assigned to the Denver office of the FBI. Lighthall had no first-hand information of his own concerning the robbery of the Citadel Bank, but he had talked at length on the telephone with fellow agents Cesare and Shandy concerning their investigative efforts. Specifically, Agents Cesare and Shandy each dictated over the telephone the details of their several interrogations. This information was then transcribed and appended to the affidavit of Agent Lighthall in the form of a complaint. The latter consisted of some three pages of single-spaced typewriting, and summarized some seven separate interviews. Agent Lighthall then presented the affidavit, and supporting material incorporated therein, to the United States Magistrate in Denver, who issued a warrant to search the premises at 6060 Eaglesnest Drive in Colorado Springs, Colorado for money taken in the robbery of the Citadel Bank and for a .25 calibre automatic pistol and a large barrelled, large calibre western type gun.

The warrant was executed on the same day it had been issued. Some forty-one $10 Federal Reserve Notes were found in Hampton's waterbed. Two .25 calibre automatic pistols were found in the kitchen in Hampton's residence. However, the large barrelled, large calibre western style gun was apparently never located. During the course of the search FBI agents discovered, and seized, other items, some of which were introduced into...