U.S. v. Marbury, 83-4117

• Decision Date: 03 May 1984
• Docket Number: No. 83-4117,83-4117
• Citation: 732 F.2d 390
• Parties: 15 Fed. R. Evid. Serv. 993 UNITED STATES of America, Plaintiff-Appellee, v. John D. MARBURY and Louis E. Doherty, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 390

732 F.2d 390

15 Fed. R. Evid. Serv. 993

UNITED STATES of America, Plaintiff-Appellee, v. John D. MARBURY and Louis E. Doherty, Jr., Defendants-Appellants.

No. 83-4117.

United States Court of Appeals, Fifth Circuit.

May 3, 1984.

Frank J. Gremillion, Baton Rouge, La., for Marbury.

Nathan S. Fisher, Baton Rouge, La., for Doherty.

Pshon Barrett, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REAVLEY and GARWOOD, Circuit Judges ^*.

GARWOOD, Circuit Judge:

Defendants John Marbury and Louis Doherty appeal their convictions for transporting, receiving, and concealing stolen equipment transported in interstate commerce, and for conspiracy to do so. They challenge the warrants authorizing searches of Doherty's property and appeal the denial of their motions to suppress the evidence found in these searches. In addition, they claim that the district court erred in admitting the hearsay statements of alleged coconspirators, in limiting the scope of cross-examination, and in giving certain instructions. We affirm both convictions.

In April or May of 1981, Louisiana law officers received information from the Mississippi State Police that a large Brockway truck, a trailer, and a bulldozer had been stolen on April 10, 1981 from the Foshee Construction Company in Mississippi. On the afternoon of May 5, the sheriff's office in East Feliciana Parish, Louisiana received a tip from a citizen that he or she had seen, on April 12, equipment matching the description of that stolen from Foshee turning onto the large gravel pit tract leased and operated by Louis Doherty, who owned the Gravco Sand and Gravel Supply Company. A second informant told officers the equipment was still on the Gravco premises on May 5. Armed with these reports, officers filled out an affidavit and obtained a warrant to search Doherty's property. They began the search late on the afternoon of May 5 and located the Brockway truck in a metal shed on the property. However, they stopped searching before locating the two other items, primarily because of encroaching darkness and their unfamiliarity with the property, which comprised over a hundred acres and had dunes and holes caused by excavation work. The following day, May 6, officers flew over the property in a helicopter and thought they spotted the remaining two items from the air. They then obtained a second warrant and conducted another search. During this search, officers noticed still other equipment on the property and, suspecting these items might also be stolen, noted the identification numbers. After checking the numbers with a national service, they obtained a third warrant for two additional pieces of equipment. A third search was conducted on May 7. These three warrants were all issued by the same magistrate, a Louisiana district court judge. One officer made the May 5 affidavit, another the May 6 and 7 affidavits. Also on May 7, a search was conducted on property belonging to Lester Higginbotham, who worked for Doherty as his superintendent. This search resulted in the recovery of three additional pieces of stolen equipment. Four pieces were recovered during the three searches of Doherty's property. In addition, the bulldozer that was an object of the first search was later found on property adjoining Doherty's.

Doherty and Higginbotham were then indicted along with Marbury and several other defendants. Because the other defendants entered guilty pleas, only these three stood trial. Before trial, the defendants moved that the evidence seized during the four searches be suppressed. A hearing was held before a magistrate who filed a written report and recommended that the motion be denied. The district court adopted the magistrate's report and recommendation. During trial, two alleged coconspirators of the defendants, both of whom participated in the actual thefts, testified for the prosecution. Larry Jones testified that he had been paid by Marbury for the equipment but that he never met Doherty or Higginbotham. Doherty, however, testified that he had paid Jones but did not know that the equipment was stolen. James Crawford, implicated all three defendants, stating that all had been present at the delivery of stolen equipment and that he had been paid by Marbury. After considering the evidence, the jury acquitted Higginbotham but convicted the two appellants of conspiracy in violation of 18 U.S.C. Secs. 2, 371, 2314, and 2315. Marbury received a five-year term of imprisonment and a $5,000 fine; Doherty, a five-year term and a $10,000 fine. This appeal followed.

I. Validity of the Search Warrants

Appellants first contend that the district court erred in denying their motions to suppress the equipment seized during the three searches of Doherty's property. ¹

Before reviewing the merits of this contention, however, we must determine whether Marbury has "standing" to challenge the searches. We find that he does not. The record reflects that Marbury had no connection with the Gravco Sand and Gravel Supply Company or its premises. He had no ownership or similar interest in the company or its property nor was he an employee. Further, there is no indication in the record that Marbury was ever even present on the property. For these reasons, he lacked any reasonable expectation of privacy in the area searched, a status that is fatal to his Fourth Amendment claim. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Doherty alone, therefore, can challenge the validity of the searches.

The May 5 Search

The first search of the Gravco premises was conducted pursuant to a warrant on May 5 and resulted in recovery of a Brockway truck earlier reported stolen in Mississippi. Doherty argues that this search was invalid because probable cause was lacking. The affidavit supporting the warrant was signed by a Louisiana state police officer and reads in pertinent part:

"THAT probable cause does exist for the issuance of a search warrant authorizing the search of the grounds and sheds and other structures thereon, including a galvanized metal building, with sliding doors on front and 1 door on southwest corner facing LA. Hwy. 960, with 2 large caterpillar dozers sitting in front of building; owned by Plaquemine Sand and Gravel Company and leased to Lewis Doherty, at address of Gravco Sand and Gravel, Route 1, Box 213, Clinton, La. 70722, located 1.6 miles north of La. Hwy. 63 on La. Hwy. 960 on east side of highway, in Bluff Creek area, East Feliciana Parish, where certain stolen movable property, to-wit: one (1) burnt orange 1971 Brockway long nose diesel truck, Serial # 73913, bearing 1981 Miss. tag P/73-7675; one (1) yellow 1971 Hobbs lowboy trailer, Serial # F51502, bearing 1981 Miss. tag TL-16669, the said truck having the words 'Fooshee [sic ] Construction Co.' on both doors; and one (1) 1979 Caterpillar D6D dozer with 'Swamp' type tracks, Serial # 6X854, is (are) believed to be secreted or concealed, and such probable cause is based upon the following: Affiant has information from the Bureau of Criminal Investigation, Miss. Dept. of Public Safety, that the above described equipment was stolen in Jackson, Miss., from Foshee Construction Co., on Friday night, April 10, 1981. Affiant received information on May 5, 1981, at 3:00 P.M., at the East Feliciana Parish Sheriff's Office, from a citizen who is known by affiant to be reliable and truthful, who saw a truck and trailer fitting the above description, hauling a large bulldozer, followed closely by a small red pickup truck, on the evening of April 12, 1981, turning into the above described property. Informant was travelling on the highway in front of the property at that time. Another informant, also reliable, has informed affiant that a truck fitting above description is on the property at the present time."

In reviewing the sufficiency of this affidavit, we are mindful that probable cause exists to issue a search warrant when "the magistrate was provided with sufficient reliable information from which he could reasonably conclude that the items sought in the warrant were probably at the location sought to be searched." United States v. Morris, 647 F.2d 568, 573 (5th Cir.1981). While we may make an independent review of the sufficiency of the affidavit, we must also give great deference to the magistrate's determination that probable cause was shown. United States v. Fooladi, 703 F.2d 180, 183 (5th Cir.1983); United States v. Smith, 686 F.2d 234, 238 n. 3 (5th Cir.1982).

The Legal Standards: Aguilar-Spinelli/Gates

At the time of the search and the trial below, warrants supported by the hearsay statement of an informant, such as this one, were subject to review under the standards delineated by the Supreme Court 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). Aguilar and Spinelli express a two-part test for evaluating an affidavit based on an informant's tip: the affidavit has to provide the reviewing magistrate sufficient indicia of both the veracity or reliability of the informant and the basis of his knowledge. Under the test, an informant's tip that would otherwise be insufficient can be bolstered by evidence from the affiant of independent observations either corroborating details of the tip or revealing patterns of suspicious activity. United States v. Morisse, 660 F.2d 132, 135 (5th Cir.1981). The Aguilar-Spinelli formulation also allows corroboration of an informant's tip by a second informant. United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2081-82, 29 L.Ed.2d 723 (1971) (plurality opinion) (veracity of second informer shown because information was against his penal interest). Further, we have held that nonprofessional, identified informants need not satisfy the reliability prong, at...