U.S. v. Jenkins

• Decision Date: 12 November 1975
• Docket Number: No. 74--1033,74--1033
• Citation: 525 F.2d 819
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde Winton JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 819

525 F.2d 819

UNITED STATES of America, Plaintiff-Appellee, v. Clyde Winton JENKINS, Defendant-Appellant.

No. 74--1033.

United States Court of Appeals Sixth Circuit.

Argued Oct. 8, 1974.

Decided Nov. 12, 1975.

Jay Fred Friedman, Memphis, Tenn. (Court appointed--CJA), for defendant-appellant.

Thomas F. Turley, U.S. Atty., Larry E. Parrish, Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN, ^* Senior Circuit Judge.

PER CURIAM:

Defendant-Appellant Clyde Winton Jenkins appeals from his conviction by a jury on the first count of a two-count indictment ¹ which charged him with violation of 21 U.S.C. § 846, conspiracy to commit various offenses defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq.

Jenkins raises five claims of error, each of which is discussed below.

We affirm.

I. The Search Warrant

Appellant first asserts that the District Court erred in denying his motion to suppress two firearms obtained from his residence in Muskogee, Oklahoma in a search authorized by a United States magistrate. Specifically, it is said that the affidavit presented to the magistrate in support of the search warrant which he issued was insufficient to establish probable cause.

The document complained of was sworn to by Aaron C. Elliott, a Special Investigator of the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury on March 13, 1972, the same date on which the warrant issued and was executed. It first described the 'Clyde Jenkins Premises' as a specified address as well as three automobiles (including a 'black over white Pontiac bearing Okla 72 license MG 9593') said to be parked there, and then stated that the objects of the search were 'firearms,' naming 'a Colt Diamondback revolver and an M--1 Carbine with a pistol grip.' It further related as follows:

'Prior to March 1, 1972, I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins had a M--1 Carbine with a pistol grip in the trunk of his black and white Pontiac Grand Ville. Clyde Jenkins is a man known to me as a convicted felon who has been convicted of narcotics and liquor violations. On March 1, 72 I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins had an Enforcer (a .30 cal carbine with a pistol grip) in his possession and the informant further stated the gun came from a burglary in Kansas. During the week of March 6, 1972, I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins was armed and had access to a gun at all times. The informant further stated that Clyde sometimes had his wife Shirley carry his gun for him. On March 10, 1972, I received information from Asst. U.S. Atty. Larry Parrish in Memphis, Tennessee that Clyde Jenkins had been seen carrying a Colt Diamondback revolver in Memphis by a Federal Undercover Agent working under the direction of Mr. Parrish. Mr. Parrish said that he could provide a witness to testify as to Jenkin's (sic) possession of the gun. Mr. Parrish further stated that an arrest warrant would be issued for Jenkins on or about March 13, 1972 by the Federal District Court in Memphis, Tennessee.'

It is undisputed by the parties that in performing his obligation to make an independent assessment on the issue of probable cause, a magistrate may rely upon hearsay information received by an affiant from an informant. ² It is appellant's contention, however, that the above described affidavit is faulty because it does not meet the standards enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the former case, which concerned a warrant based wholly upon an informer's tip, the Supreme Court set forth a 'two-pronged' standard for testing the sufficiency of affidavits which contain such hearsay. The first prong requires that the magistrate be informed of some of the underlying circumstances on which the informant's conclusion was based, and the second prong requires that the affidavit show some of the underlying circumstances from which the affiant concluded that the informant (who need not be identified) was credible or his information reliable. 378 U.S. at 114, 84 S.Ct. 1509. And the latter case, Spinelli, supra, teaches generally that when an informer's tip is found wanting under Aguilar, the other allegations in the affidavit which corroborate the hearsay report should be considered, and the affidavit is to be deemed sufficient if it can fairly be said that the tip '. . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration'. 393 U.S. at 415, 89 S.Ct. at 588.

In the case at hand, the information within Elliott's personal knowledge was limited to the fact that Jenkins had previously been convicted of a felony. ³ All of the remaining information was provided to Elliott by others, to wit: (1) 'an informant' and (2) 'Asst U.S. Attny Larry Parrish.'

Examining these sources in sequence, and taking the tips from the informant as a group, it is evident that the statements which originated with the informant satisfy the second branch of the Aguilar test, for the general believability of such a source may be satisfactorily established before a magistrate by the affiant's declaration that the informant has in the past given accurate information. United States v. Kidd, 407 F.2d 1316, 1317 (6th Cir. 1969). And, while there is nothing explicit in this portion of the affidavit which could be construed as revealing to the magistrate the means by which the informant reached his conclusions, there is a significant amount of detail which suggests personal observation and from which an independent judicial officer 'could reasonably infer that the informant had gained his information in a reliable way.' ⁴ Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589.

We now turn to the tip first provided by a 'Federal Undercover Agent,' and relayed to the affiant by an Assistant United States Attorney in Memphis, Tennessee. In attacking this portion of the affidavit appellant's principal claim is that as 'double hearsay' it is somehow per se ineligible to be considered in a probable cause determination. We disagree, and hold that, subject to the Supreme Court's criteria outlined above, hearsay upon hearsay may be so considered by a magistrate. United States v. Kleve, 465 F.2d 187, 191--93 (8th Cir. 1972); United States v. Smith, 462 F.2d 456, 459--60 (8th Cir. 1972).

Alternatively, Jenkins asserts that the hearsay conveyed to the affiant by an Assistant U.S. Attorney did not meet constitutional standards with respect to the originator of the information. In our view, the declaration that the original source was an eyewitness to the event described provides a sufficient basis for validating the conclusion conveyed in the tip (the first branch of the Aguilar test). On the other hand, we recognize that the description of the original source as a 'Federal Undercover Agent working under the direction of Mr. Parrish,' is not a precise one and would not compel a magistrate to find in favor of the source's general believability (the second branch of the Aguilar test), but we believe that it could have a tendency to do so. ⁵

In light of this discussion, we do not hesitate to say that the affidavit here at issue is considerably less than ideal. However, in determining whether a search warrant should issue, the magistrate deals only with probabilities rather than certainties. Draper v. United States, supra, 358 U.S. at 313, 79 S.Ct 329, and deference is to be accorded an independent judicial officer's finding of probable cause, with doubtful cases governed largely by the preference which our legal system gives to warrants. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Ventresca, 380 U.S. 102, 108--109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States ex rel. Saiken v. Bensinger, 489 F.2d 865, 866 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Moreover, the Supreme Court has stated that its decisions in Aguilar, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and other cases on this subject

'. . . reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.' United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746.

We conclude that the tips here at issue adequately, if marginally, meet the standards expressed in Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as explicated in Spinelli v. United States, supra, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and were properly includable in the probable cause calculus along with the affiant's personal knowledge of Jenkins' felony record. And, mindful of our obligation to eschew the 'totality of the circumstances' approach to this problem condemned in Spinelli, supra, 393 U.S. at 415, 89 S.Ct....