U.S. v. Jackson

• Decision Date: 20 May 1987
• Docket Number: No. 86-2435,86-2435
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hunter Keith JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

818 F.2d 345

UNITED STATES of America, Plaintiff-Appellee, v. Hunter Keith JACKSON, Defendant-Appellant.

No. 86-2435.

United States Court of Appeals, Fifth Circuit.

May 20, 1987.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

Susan L. Yarbrough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, REAVLEY and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Hunter Keith Jackson appeals his conviction for illegal receipt of a firearm under 18 U.S.C. Secs. 922(h)(1) and 924(a). He contends that the warrant for his arrest was defective, that the gun was therefore the fruit of an illegal arrest, and that consequently this evidence should have been suppressed. We agree and reverse.

I

On July 1, 1981, Jackson was convicted in Harris County, Texas, of unlawful delivery of methamphetamine, a felony punishable by imprisonment exceeding one year, and sentenced to five years probation. Jackson's probation officer stated that he explained the Gun Control Act to Jackson and informed him that written permission from Washington, D.C., was required to remove the firearm disabilities related to his conviction. ¹ When Jackson was released from probation in March 1983, he received from the sentencing court an order which stated in part:

It is therefore the order of the Court that the defendant be and he is hereby permitted to withdraw his plea of guilty, the indictment against the defendant be and the same is hereby dismissed and the Judgment of Conviction be hereby set aside as provided by law.

Soon after, Jackson sought the advice of his attorney, Jim Coate, concerning whether Jackson could purchase a firearm. Coate informed him that the state court order had dismissed the conviction, making him eligible to possess a firearm. ²

On March 9, 1984 Jackson purchased an AMT, Model Backup, .380 (9mm Kurz) caliber semi-automatic pistol (the pistol) from Bissonet Pawn Shop in Bissonet, Texas. At the same time, he completed A.T.F. form 4473, answering "no" to the following question:

Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter--a "yes" answer is necessary if the judge could have given a sentence of more than one year. Also, a "yes" answer is required if a conviction has been discharged, set aside, or dismissed pursuant to an expungement or rehabilitation statute. However, a crime punishable by imprisonment for a term exceeding one year does not include a conviction which has been set aside under the Federal Youth Corrections Act.)

It was not long before Jackson found himself involved with law enforcement officials once again. On March 24, 1984, Officer John Russell, of the Stafford, Texas, Police Department, charged Jackson with the crime of "theft by exercising control." He obtained a warrant for Jackson's arrest. The affidavit that supported the warrant for arrest described in specific terms the stolen property and went on to say:

Affiant, J. Russell, a peace officer with the Stafford Police Department has in his possession a written signed and sworn statement by Doyle Alton Dunbar Jr. in which he admits burglarizing the building owned by William Rao. Dunbar further states that Hunter Jackson knew that he was going to burglarize Mr. Rao's building, and that when he was attempting to leave he got "stuck in a cement slab" and that Hunter Jackson arrived and pushed him back onto the Roadway and upon arrival at Hunter Jackson's apartment they unloaded the stolen property.

Jackson had the subject pistol in his possession when he was arrested on the warrant.

Jackson was indicted on six counts of violations of 18 U.S.C. Secs. 922 and 924. ³ Prior to trial, Jackson moved to suppress much of the evidence against him. Granting the motion in part, the district court dismissed all counts against Jackson except count 2, ⁴ which alleges that Jackson possessed the subject pistol in violation of sections 922(h)(1) and 924(a). Jackson was tried on Count 2 in a bench trial. The district court found that the pistol had traveled in interstate commerce before Jackson purchased it; that Jackson possessed the gun when he was arrested on March 24; and that Jackson had been read his Miranda rights. The court then found beyond a reasonable doubt that Jackson had committed the acts alleged in Count 2 and that he was therefore guilty of violating 18 U.S.C. Sec. 922(h)(1), 647 F.Supp. 995. Jackson was sentenced to three years of supervised parole.

II

Jackson contends that the district court erred in refusing to suppress the pistol obtained at Jackson's arrest. According to Jackson, the affidavit supporting the arrest warrant was insufficient as a basis for probable cause. The district court disagreed, holding that "the judge who issued the warrant had a substantial basis for concluding that probable cause existed." Although the district court declined to reach the issue of whether the arresting officer was objectively reasonable in relying on the judge's determination, it noted in an aside that it was "inclined to find good faith by the officers who relied on the [ ] warrant."

III

A.

We begin our consideration of whether the affidavit will support the arrest warrant by looking to the Supreme Court's recent pronouncement on the subject.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), the Supreme Court adopted the "totality of the circumstances" test for determining whether a warrant is supported by probable cause. Under Gates:

The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed."

Id., 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). In reviewing a warrant, therefore, we consider the informant's veracity, reliability and basis of knowledge as important factors; however, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 2329.

On appeal, "we construe the sufficiency of ... [the] affidavit independently of the district court," and are not limited by the "clearly erroneous" standard of review. United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982). Like the district court, however, we do owe "deference to the magistrate's determination of probable cause, and we must construe the affidavit in a common sense manner." United States v. McKinney, 758 F.2d 1036, 1042 (5th Cir.1985).

B.

We first address the extent to which the affidavit demonstrates the "veracity [and] reliability" of the informant. ⁵ The reliability of an informant may be established in a number of ways. United States v. Phillips, 727 F.2d 392, 396 (5th Cir.1984). The need to establish reliability may be satisfied by showing that the informant is an identified bystander or victim-eyewitness. Phillips, 727 F.2d at 397. This is so because such informants are not likely to have personal reasons to give inaccurate information to law enforcement officials. Id. The affidavit may state that the informant has previously given tips that have proved to be correct. Id. Additionally, an informant's reliability can be demonstrated by corroboration of other information given. Gates, 103 S.Ct. at 2335.

These considerations are not applicable here because the affidavit makes clear that Dunbar was not a bystander or victim-eyewitness; instead, Dunbar, the informant, as an admitted perpetrator of the crime in question, had reason to shade any information he gave in order to exculpate himself or to curry favor with officials. See id. Additionally, the affidavit does not indicate that Dunbar had given previous tips or that his reliability was established by corroboration. Dunbar's reliability must therefore be established, if at all, by some other means.

The affidavit does reflect two characteristics of reliability that have been addressed in our previous cases. First, Dunbar's statement was sworn. ⁶ See Phillips, 727 F.2d at 398. In Phillips we held that a sworn statement made by an informant who was aware that she would be subject to prosecution for making a false statement, was sufficiently reliable. Whether an informant is aware of possible liability for a false sworn statement determines the weight to be given the statement. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Here, however, the record and briefs are silent as to whether there were any consequences that Dunbar might have suffered for giving a false statement. Thus, it follows that we do not know whether Dunbar was aware of any consequences for providing false information. Without such information, a sworn statement from an admitted criminal is hardly more reliable than a statement that is only signed. That Dunbar's statement is sworn, then, is not of sufficient weight to alter our determination that the affidavit lacks adequate indicia of reliability.

Second, in his statement, Dunbar incriminated himself by admitting the burglary. This factor is not entitled to significant weight as it relates to Jackson, however, because even though Dunbar confessed to the crime, his information regarding Jackson's participation is not the part of the...