U.S. v. Martin

• Citation: 615 F.2d 318
• Decision Date: 10 April 1980
• Docket Number: No. 79-5097,79-5097
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John MARTIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

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615 F.2d 318 UNITED STATES of America, Plaintiff-Appellee,
v.
John MARTIN, Defendant-Appellant. No. 79-5097. United States Court of Appeals,
Fifth Circuit. April 10, 1980.

Page 320

Joel Kaplan, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Linda Collins Hertz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.

GOLDBERG, Circuit Judge:

Would you buy a used car from these men ?

So defense counsel asked the jury, not entirely rhetorically, in his closing argument in this case, after having attempted to show that two important government witnesses, John Kral and Ismael Rodriquez, were not credible or reliable. Nevertheless, the jury bought; it convicted John Martin under 18 U.S.C. § 2113(a) for the robbery of the Atlantic Federal Savings and Loan in Boca Raton, Florida.

On appeal, Martin asks a related question: Did the affidavit which was submitted to the United States Magistrate and which consisted solely of hearsay accounts of information received from Kral, Rodriquez, and Martin's brother Jeffrey contain allegations from which the magistrate could constitutionally determine there was probable cause to believe that these men did in fact have a car to sell? That is, could the magistrate credit their information and determine that the affidavit established probable cause for Martin's arrest? On the basis of the affidavit submitted, the magistrate determined that there was probable cause to believe that Martin had committed the crime, and issued a warrant for his arrest. At the pretrial suppression hearing, the district court agreed that the affidavit established probable cause for arrest and held that the evidence seized pursuant to the warrant was admissible at trial. ¹ Martin raises both facial and subfacial challenges to the validity of the affidavit and argues that the evidence was wrongfully admitted. Because we believe that the tip from Rodriquez, read in the context of the entire affidavit, supported the magistrate's decision, we affirm the judgment of the district court.

I.

On June 14, 1978, a white male with dark, shoulder-length hair, wearing a ski mask and carrying a snub-nosed revolver, robbed the Atlantic Federal Savings and Loan in Boca Teeca Shopping Plaza in Boca Raton. After secreting approximately $4,293.00 in a brown paper bag, the robber left the bank and headed north. Several individuals testified at trial that they had seen a maskless white male with dark, shoulder-length hair, running from the direction of the bank and carrying a brown paper bag. While all the eyewitnesses to the activities of the robber/runner provided essentially consistent descriptions of his general physical characteristics (though estimates of his height, for

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example, ranged from 5'8 to 6'0 ), none of them ever claimed to be able to identify him. Furthermore, the Government presented no information from these witnesses to the magistrate who made the probable cause determination.

The Government's evidence at the suppression hearing showed that in July 1979, while the F.B.I. was investigating charges against another individual in connection with the robbery of Atlantic Federal, ² it received information that John Martin's brother Jeffrey had told an undercover agent for the Boca Raton Police Department that John Martin had committed the robbery. Upon the request of the Boca Raton Police, the F.B.I. stayed its investigation of John Martin until the local undercover operation was over. On October 24, 1978, F.B.I. Agent Lee Kizer followed up the lead regarding John Martin by contacting and questioning Kral and Rodriquez, who, according to Jeffrey Martin, had first-hand knowledge of John Martin's activities. Agent Kizer then obtained from Kral and Rodriquez signed statements implicating John Martin in the robbery.

On October 24, 1979, Agent Kizer prepared an affidavit based on the statements from Kral and Rodriquez and on information he had received from the Boca Raton Police regarding a statement made to them by Jeffrey Martin. This affidavit, set out in the margin, ³ he attached to a signed complaint which he presented to Magistrate Patricia Kyle in support of his request for an arrest warrant. He presented no other information. The arrest warrant issued and, pursuant to it, John Martin was taken into custody, and certain evidence procured.

At the suppression hearing in the district court, Martin argued that the affidavit would not support the issuance of the arrest warrant. He argued first that the affidavit was insufficient on its face to establish probable cause for his arrest because it contained no indication that the informants who supplied the hearsay information in the affidavit were reliable. Second, he argued

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that the affiant withheld from the magistrate information material to the determination of probable cause and thus that the affidavit could not support Martin's arrest. After hearing evidence and argument on both these theories, the court denied Martin's motion to suppress. ⁴

On appeal, Martin urges these same theories in his attack on the validity of the arrest warrant. We consider both the facial sufficiency of Agent Kizer's affidavit and the claim that information material to the determination of probable cause was omitted from the affidavit.

II.

The Fourth Amendment to the Constitution of the United States provides:

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.

In this amendment resides one of the principle pillars of the liberty of the individual in the Republic: "the right to be let alone the most comprehensive of rights and the right most valued by civilized men." Olmsted v. United States, 277 U.S. 438, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). Yet this right is not absolute, as the limitation of the prohibition on searches and seizures to those which are "unreasonable" implies. The balance struck by the Framers between the need for protection of individual liberty and privacy and the need for effective enforcement of our laws is perhaps best reflected in the requirement that there be "probable cause, supported by Oath or affirmation," before a warrant may be issued. ⁵ As has recently been affirmed, "(t)he bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search." Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). Justice Jackson made clear the elemental values behind this requirement:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.

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When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (footnotes omitted).

The meaning of the Fourth Amendment's protections resides only in the individual decisions which implement them. The grand conceptions of "reasonableness" and "probable cause" acquire definition through their application to concrete sets of facts. When courts decide, as we must in this case, what police activities are proper and what are not; what circumstances are sufficient to subject an individual's privacy to the state's needs in the enforcement of its laws; then the accommodations they make signpost the boundaries of the rights of the citizenry to be "secure in their persons, houses, papers, and effects . . . ." The general terrain we must now cover has already been well-mapped. We proceed forthwith to our destination.

A. A Topographical Exercise: The Facial Sufficiency of the Affidavit

The affidavit supporting the arrest warrant in this case consisted solely of hearsay accounts of information given to police officials by Jeffrey Martin, John Kral, and Ismael Rodriquez. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the Supreme Court set out the standards for evaluating the sufficiency of hearsay affidavits to establish probable cause. In finding that the affidavit present there could not constitutionally support the magistrate's probable cause determination, the court held:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed...