U.S. v. Hill

• Citation: 500 F.2d 315
• Decision Date: 30 August 1974
• Docket Number: No. 73-1098,73-1098
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence HILL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 315

500 F.2d 315

UNITED STATES of America, Plaintiff-Appellee, v. Clarence HILL, Defendant-Appellant.

No. 73-1098.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1974.

James O. Manning, Metairie, La. (Court-appointed), Clarence Hill, Atlanta, Ga., for defendant-appellant.

Gerald J. Gallinghouse, Mary Williams Cazalas, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The validity of Clarence Hill's conviction for possession with intent to distribute heroin turns upon the constitutional correctness of searches of his residence and automobile. Our appellate task is to determine whether oral testimony before the issuing magistrate was properly employed to bolster an otherwise deficient affidavit for a search warrant, whether a warrantless search of Hill's automobile was Fourth Amendment-reasonable, and whether his sentence violated the equal protection clause. Under the unique facts of this case, we find the searches viable and affirm Hill's conviction and sentence.

I. The Residential Search

On July 1, 1972, John Henry Phillips, Jr., an agent of the Bureau of Narcotics and Dangerous Drugs (BNDD), appeared before United States Magistrate Morey L. Sear to request a search warrant for the premises at 2363 N. Robertson Street, the New Orleans home of defendant Clarence Hill. Phillips' affidavit related his belief that Hill was concealing heroin there in violation of 21 U.S.C. 841(a)(1). To demonstrate probable cause a lengthy memorandum was attached to his affidavit. The attachment set out tips obtained from four confidential informants and from an anonymous phone caller together with related intelligence gathered by law enforcement officials.

Confidential source one had stated that during the month of June Hill had consigned three bundles of heroin to him for sale by revealing where the contraband was hidden, and that Hill, who was also known as 'Hip Cat,' was the brother-in-law of a convicted trafficker in heroin. Source two had observed Julius Wilkerson, also known as 'Moon,' and another man (not Hill) in Hill's 1971 white Buick handling six bundles of heroin as he spoke to them about a purchase of the illicit white powder. Source three had reported that Wilkerson was a 'big time heroin pusher' with whom he had discussed the purchase of heroin on several occasions. Source four had told a fellow agent that during the previous month he had obtained heroin from a black male at Hill's address and had taken other persons there to purchase heroin. The continuing BNDD investigation of Hill had also uncovered the fact that another known heroin trafficker, Floyd Dupart, had been seen driving Hill's 1972 Plymouth and that in October of 1971 Wilkerson had sent Hill 1,350 dollars in New York City, which the agents surmised was to finance the purchase of heroin. Furthermore, Agent Phillips had been warned on June 30 by an anonymous female phone caller to 'look out for Julius Wilkerson and Clarence Hill Because they are selling dope,' which she stated was heroin hidden in Hill's residence.

Before he issued the warrant, Magistrate Sear interrogated Phillips under oath as to the basis upon which he had gauged the reliability of each confidential source. Convinced that probable cause existed, the magistrate noted on the affidavit that he had asked the agent further questions and obtained additional information about the informers. As supplemented, he concluded that the affidavit authorized the issuance of a search warrant. Phillips, accompanied by other federal agents and New Orleans police detectives, executed the warrant by searching Hill's residence that afternoon and seized two bundles of heroin and other narcotics paraphernalia.

At the outset, Hill urges error in the district court's failure to suppress the seized evidence at a pretrial hearing, contending that Phillips' affidavit was a deficient predicate for the magistrate's adjudication of probable cause to search because (1) it did not disclose sufficient underlying circumstances to support the conclusion that Hill was a trafficker and possessor of heroin, and (2) it did not contain sufficient information from which the magistrate could determine that the confidential informants were reliable.

The fourth of our Bill of Rights secures people, houses, persons and effects from unreasonable governmental intrusion in terms which are eloquent in their simplicity.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A judicial officer '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.' Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). '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.' United States v. Melancon, 462 F.2d 82, 89 (5th Cir. 1972), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1973) quoting United States v. Rich, 407 F.2d 934, 936 (5th Cir.), cert. denied, 395 U.S. 922, 89 S.Ct. 1775, 23 L.Ed.2d 239 (1969); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Whether a fact and circumstance matrix validly demonstrates probable cause is a determination committed to a neutral and detached magistrate. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is fundamental that judicial review of his determination must be strictly confined to the information which was brought to his attention. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

In his consideration of an affidavit, the issuing magistrate may rely on information to establish probable cause which does not reflect the personal knowledge of the affiant if 'a substantial basis for crediting the hearsay is presented.' Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). In Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), the Supreme Court propounded a two-pronged standard by which to judge whether an affidavit reciting the tip of an unnamed informer permits the magistrate, rather than the tipster or the investigating police officer, to draw the crucial inferences necessary to establish probable cause from the hearsay facts. He must be informed of the underlying facts and circumstances (1) from which the informant has concluded that the person to be searched is engaged in criminal activities, and (2) from which the affiant has concluded that the informant is credible or his information reliable. United States v. Chavez, 482 F.2d 1268 (5th Cir. 1973).

In the event the hearsay fails to pass muster under Aguilar, it may yet be introduced into the probable cause calculus if the magistrate can fairly state that 'the tip, . . . when certain parts have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's test without independent corroboration.' Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); see, e.g., United States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir. 1974); United States v. Summerville,477 F.2d 393 (5th Cir. 1973); United States v. Black, 476 F.2d 267 (5th Cir. 1973); United States v. McNally, 473 F.2d 934 (3rd Cir. 1973); United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) enbanc), petition for cert. filed, 42 U.S.L.W. 3611 (U.S. Apr. 8, 1974) (No. 73-1561); United States v. Star, 470 F.2d 1214 (9th Cir. 1972); United States v. Sultan, 463 F.2d 1066 (2d Cir. 1972); United States v. Fuller, 441 F.2d 755 (4th Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 74, 30 L.Ed.2d 59 (1971). Most recently, in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Court held that a cumulation of circumstances recited in an affidavit may be sufficient to support the conclusion that the confidential informant was credible so as to meet the second prong of Aguilar.

These (circumstances) were: (1) the allegation of the affiant that he regarded the informant as 'prudent'; (2) the detail provided in the tip; (3) the fact that the affidavit also alleged that the accused had a reputation for being a trafficker in nontaxpaid liquor; and (4) the fact that the information given, with the allegations of the informant's purchases, was a declaration against the informant's penal interest.

United States v. Chavez, supra, 482 F.2d at 1271.

Applying the Court's tests to the case before us, the threshold question is did Phillips make sufficient information of a reliable nature known to Magistrate Sear to warrant a prudent man in believing that the defendant had committed an offense? The personal knowledge of source one connected Hill directly with the sale of heroin and revealed a modus operandi. Source four, with specificity, personally established Hill's residence as the scene of numerous transactions in heroin. The information provided by the other confidential sources principally described Hill's associates as dope pushers but this, as well as the warning provided by the anonymous phone caller, provided some corroborative support for the information supplied by sources one and four.

Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); affidavits of probable...