U.S. v. Hunley

• Decision Date: 21 December 1977
• Docket Number: No. 77-1530,77-1530
• Citation: 567 F.2d 822
• Parties: UNITED STATES of America, Appellee, v. Bert William HUNLEY, III, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 822

567 F.2d 822

UNITED STATES of America, Appellee, v. Bert William HUNLEY, III, Appellant.

No. 77-1530.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 10, 1977.

Decided Dec. 21, 1977.

L. Gene Worsham, Little Rock, Ark., for appellant. He also filed brief for appellant.

Don N. Curdie, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dillahunty, U. S. Atty., Little Rock, Ark., on the brief.

Before LAY, HEANEY and ROSS, Circuit Judges.

LAY, Circuit Judge.

Bert William Hunley, III, was found guilty on stipulated facts of possession of a controlled substance with intent to deliver in violation of21 U.S.C. § 841(a). He was sentenced to four years imprisonment, six months to be served in "a jail-type or treatment institution" and the balance suspended with a two-year parole term. On appeal defendant challenges the district court's denial of his motion to suppress evidence and attacks the sentence as excessive. We affirm. ¹

On January 12, 1975, a search warrant was issued by a state magistrate authorizing the search of Hunley's residence in North Little Rock, Arkansas, and a quantity of drugs was seized pursuant to the search. Probable cause for issuance of the warrant was based on the affidavit of Johnnie Franklin Miller, who had been arrested on a drug charge at about 6:00 P.M. on January 12, 1975, immediately after leaving defendant's home. Defendant was earlier prosecuted by the State of Arkansas but in July of 1975 the state circuit court held that the search warrant was invalidly issued and suppressed the evidence obtained. Although the record is not clear, it would appear that the state trial judge held the affidavit upon which the warrant was based inadequate to establish probable cause because of the possibility that Miller was under the influence of drugs at the time that he executed the affidavit.

Federal charges were thereafter brought against the defendant. After an evidentiary hearing the federal district judge overruled defendant's motion to suppress, finding that Miller was coherent and competent at the time he executed his affidavit. This finding was based on testimony given by the issuing magistrate that he examined Miller at the time and that Miller answered all questions coherently and appeared at all times to be competent. A police officer verified that at the time of arrest Miller talked in a normal and understandable manner. Miller testified that he had taken drugs some six hours before executing his affidavit, but stated that at the time he executed the affidavit he knew where he was and what he was doing. Under the overall circumstances, we sustain the federal district court's finding that Miller made a knowing and voluntary affidavit. Cf. United States v. Damitz, 495 F.2d 50, 56 (9th Cir. 1974).

The defendant urges that Miller was promised a break if he cooperated with the police and that he gave the information because he felt the defendant had set him up. This testimony does not invalidate Miller's affidavit as a matter of law. Cf. United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Miller's testimony may explain his motivation in providing the tip but it does not necessarily lessen his credibility. See United States v. Copeland, 538 F.2d 639, 642 (5th Cir. 1976).

Defendant's basic contention is that the affidavit upon which the warrant issued is deficient under the second prong of the Aguilar test ² relating to a factual disclosure of the reliability of the informant. He contends that there is no showing that Miller was known to the police or had ever given information before. Defendant argues that the absence of these facts, along with the evidence that Miller later proved to be a self-confessed burglar, compels us to set aside the warrant. Under the facts presented we disagree.

It is well established that a warrant based on an affidavit reciting that an undisclosed informant had given reliable information to police in the past is sufficient to establish reliability. See United States v. Bridges, 419 F.2d 963, 966 (8th Cir. 1969). In cases where the affidavit does not contain sufficient information as to the reliability of the informant, other factors have been held to provide a substantial basis for crediting the hearsay. The informant's reliability may be established by the fact that the tip includes a statement against the informant's penal interest. See United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. 2075; United States v. Long, 449 F.2d 288, 293 (8th Cir. 1971), cert. denied, Tocco v. United States, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972); United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). Independent corroboration of the informant's tip may also provide a basis for finding probable cause where the reliability prong of the Aguilar test is not otherwise met. See United States v. Brand, 556 F.2d 1312, 1318 (5th Cir. 1977); United States v. Fluker,543 F.2d 709, 714 (9th Cir. 1976). Under certain circumstances, there may also be "built-in" credibility of the informant when a victim's or other innocent eyewitness' account of a crime provides the basis for a finding of reliability of the informant by the magistrate. See Cundiff v. United States,501 F.2d 188, 190 (8th Cir. 1974); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). See also United States v. Swihart, 554 F.2d 264, 268-69 (6th Cir. 1977); United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972); United States v. Mahler, 442 F.2d 1172, 1174 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971).

The affidavit in the present case contains none of the above described circumstances. Although the informant Miller was being held on felony charges there is nothing within the four corners of the affidavit which can be construed as an admission against penal interest. ³ No corroborating circumstances ascertained by police officers were disclosed to the magistrate to substantiate Miller's statement. ⁴ The informant was not a victim of the crime nor does the government aver that Miller was an innocent eyewitness to his information. The defendant argues that since the informant was charged with a felony and was a known miscreant corroboration of his statement became essential to a finding of probable cause. This is not a spurious contention. It has been authoritatively suggested that when the informant is associated with the alleged criminals additional police corroboration should be required. See Mr. Justice Harlan's dissent in United States v. Harris, 403 U.S. at 595, 598-99, 91 S.Ct. 2075. See also United States v. Bell, supra at 1238. ⁵ In fact, in evaluating the reliability of an undisclosed informant who was an eyewitness "victim" of a crime, we have suggested that corroboration by police officers may be necessary to sustain a finding of reliability of the informant. See McCreary v. Sigler, supra at 1269. But see United States v. Burke, supra at 380-81. ⁶

Notwithstanding the lack of corroboration and the absence of factors within the affidavit factually establishing reliability of the informant, we deem the finding of probable cause by the magistrate sufficient under the facts presented. Defendant's literal reliance on the two-prong test of Aguilar is misplaced as to the facts existing here. Aguilar and its progeny were concerned with the prohibition of the issuance of warrants upon hearsay. ⁷ In setting out the tests in Aguilar Mr. Justice Goldberg observed:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, (80 S.Ct. 725, 4 L.Ed.2d 697), the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, (84 S.Ct. 825, 11 L.Ed.2d 887), was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra, (357 U.S. 480), at 486, (78 S.Ct. 1245, 2 L.Ed.2d 1503); Johnson v. United States, supra, (333 U.S. 10), at 14, (68 S.Ct. 367, 92 L.Ed. 436), or, as in this case, by an unidentified informant.

378 U.S. at 114, 84 S.Ct. at 1514 (footnote omitted).

In the present case the informant's identity was not only disclosed, but as the affiant he personally appeared under oath before the magistrate and gave an eyewitness account of facts providing reasonable grounds to believe contraband was present on the defendant's premises. These circumstances do not require independent corroboration of the trustworthiness of the informant's statement. The affidavit is not based on hearsay and there is no necessity for an officer-affiant to otherwise vouch for the reliability of the informant. ⁸

Another significant factor here, notwithstanding the fact that the informant appears to be a person of questionable integrity, is drawn from the fact that the magistrate testified that he had orally examined the informant for approximately 30 minutes before accepting his affidavit. The magistrate testified that when he became "convinced . . . that he (Miller) did know what he was talking about" he then placed Miller under oath and received his affidavit. Although we do not attach any substantive significance to the unrecorded oral testimony before the magistrate, we do find that...