U.S. v. Harrick

• Citation: 582 F.2d 329
• Decision Date: 07 September 1978
• Docket Number: No. 78-5009,78-5009
• Parties: UNITED STATES of America, Appellant, v. Major J. HARRICK, Eddie Ahwash, Phillip Asseff, Joseph Andrew Sadd, Harry Edgar Whittington, George William McClaski, Henry Austin Drury, Fayes Howard Moses, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 329

582 F.2d 329

UNITED STATES of America, Appellant, v. Major J. HARRICK, Eddie Ahwash, Phillip Asseff, Joseph Andrew Sadd, Harry Edgar Whittington, George William McClaski, Henry Austin Drury Fayes Howard Moses, Appellees.

No. 78-5009.

United States Court of Appeals Fourth Circuit.

Argued July 19, 1978.

Decided Sept. 7, 1978.

Robert B. King, U. S. Atty., Charleston, W. Va. (James S. Arnold, Charleston, W. Va., Mary S. Feinberg, Asst. U. S. Attys., Roanoke, Va., on brief), for appellant.

James B. McIntyre, Charleston, W. Va., for appellees.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

The United States takes this interlocutory appeal as authorized by 18 U.S.C. § 3731 from the district court's pre-trial order suppressing evidence on the ground that the affidavit accompanying the application for a search warrant was insufficient to justify the magistrate's issuance of the warrant. We reverse.

I

The defendants were indicted on three counts relating to illegal gambling activities in violation of 18 U.S.C. §§ 371, 1952(a)(3), 1955, and 2. At their trial, the government planned to introduce gambling paraphernalia seized at a pool room during a search by officers of the Charleston, West Virginia, police department under a warrant issued by a judge of the Charleston Municipal Court.

Evidence presented at the suppression hearing disclosed that Samuel Elmore, a Charleston police officer, applied for the search warrant. In support of his application, he executed an affidavit on oath before a municipal judge. The affidavit alleged violations of the code of the City of Charleston and specified that "Tip Tickets, Tip Books, Monies, and other Gambling Paraphernalia" were concealed at The Diamond Billiards, the location of which was precisely described. As the basis for its allegations, the affidavit recited:

. . . That an agent working under the supervision of Samuel Elmore, a Charleston City Police Officer on the 4th day of February 1977, did enter the Diamond Billiards, described above and while inside did purchase tip tickets being sold by Robert Legg, contrary to the City Ordinances of the City of Charleston, Kanawha County West Virginia.

In addition, Officer Elmore furnished the city magistrate an unsworn statement prepared by the undercover agent mentioned in the affidavit. ¹ This agent was also present at the magistrate's office.

After the magistrate received the statement, he administered an oath to the agent as a witness, but before the agent testified, Officer Elmore left the room to speak to someone else. Subsequently, the magistrate issued the warrant.

At the suppression hearing, the government, without objection, represented to the court that the magistrate had no independent recollection of the application for the warrant but that he could testify that he always personally examined undercover agents before issuing warrants on the basis of information supplied by them. The government declined to call the agent to testify because it wished to keep his identity secret. Therefore, no evidence was presented at the suppression hearing about the agent's testimony before the magistrate.

Granting the motion to suppress, the district court ruled that the government had failed to show that the magistrate possessed a sufficient basis, obtained under oath or affirmation, for crediting the information offered in support of the issuance of the warrant. The court also ruled that the affidavit did not contain a sufficient basis for concluding that the seller of the tickets possessed a proprietary interest in the premises to be searched or that others on those premises knew of the sale or were engaged in similar activity.

II

An affidavit offered to show probable cause for the issuance of a search warrant may be based on hearsay when there is "substantial basis for crediting the hearsay." Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). This basis can be established by affidavits which disclose to the magistrate the underlying circumstances that (1) caused the informant to conclude that the objects of the search are in the premises to be searched, and (2) caused the affiant to believe that the informant is credible or his information is reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements of Aguilar can be met by corroborating evidence of which the affiant has personal not hearsay knowledge or by reasonable inferences that establish a substantial basis for relying on the hearsay evidence furnished by the informant. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 580-81, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The standards formulated by these cases derive from the fourth amendment's essential requirement that sufficient underlying information be presented to allow a "neutral and detached" magistrate, not the police officer seeking the warrant, to draw the necessary inferences to find probable cause. ² See Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. 1509.

Aguilar, Spinelli, and Harris dealt with situations where only the police officer, not the informant, appeared before the magistrate. Nevertheless, we believe that their basic principles can be applied to sustain the warrant in this case.

III

There can be no doubt that there was a literal compliance with the fourth amendment's requirement that evidence offered to show probable cause for the issuance of a search warrant must be supported by "oath or affirmation." The magistrate administered oaths to Officer Elmore and the undercover agent before the warrant was issued.

There can also be no question about the sufficiency of information furnished the magistrate concerning the reasons why the undercover agent believed...