U.S. v. Neal

• Decision Date: 22 July 1974
• Docket Number: No. 73-1711,73-1711
• Citation: 500 F.2d 305
• Parties: UNITED STATES of America, Appellant, v. Jimmy Joy NEAL and C. W. Scott, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 305

500 F.2d 305

UNITED STATES of America, Appellant, v. Jimmy Joy NEAL and C. W. Scott, Appellees.

No. 73-1711.

United States Court of Appeals, Tenth Circuit.

July 22, 1974.

Robert D. McDonald, Asst. U.S. Atty., for the E.D. Okl. (Richard A. Pyle, U.S. Atty., with him on the brief), for appellant.

Albert R. Matthews of Bonds, Matthews, Bonds & Cartwright, Muskogee, Okl. (Faye Bancroft, Muskogee, Okl., with him on the brief), for appellee Neal.

K. D. Bailey of Bailey, Ash & Romine, Okmulgee, Okl., for appellee Scott.

Before PICKETT, HILL and BARRETT, Circuit Judges.

PICKETT, Circuit Judge.

On March 28, 1973, an indictment was returned in the United States District Court for the Eastern District of Oklahoma charging Neal and Scott in various counts with interstate transportation of motor vehicles knowing them to have been stolen. The indictment included a conspiracy count relating to their activities involving the trafficking in stolen automobiles. Prior to the indictment, warrants had been issued by a United States magistrate directing the search of the residences of Neal and Scott, and also a garage building operated by Neal. Relying primarily on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the trial court in sustaining pretrial motions to suppress, held that the information in affidavits filed by F.B.I. agents was insufficient to establish probable cause for the issuance of the warrants. The United States has appealed.

The question of sufficiency of the showing of probable cause necessary to support a valid search warrant as restricted by the Fourth Amendment is constantly reoccurring. This is particularly true in cases where the factual basis of the supporting affidavits is based on a hearsay report of an informer.

It is generally recognized that probable cause is one of probabilities and a valid warrant may issue when the circumstances before a proper officer are such that a person of reasonable prudence would believe that a crime was being committed on the premises to be searched or evidence of a crime was being concealed there. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Garhart v. United States, 157 F.2d 777 (10th Cir. 1946). In United States v. Harris, 403 U.S. 573, 582, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971), quoting from Brinegar, the Court said:

. . . Trials are necessarily surrounded with evidentiary rules 'developed to safeguard men from dubious and unjust convictions.' Id., at 174 (of 338 U.S., 69 S.Ct. 1302, at 1310). But before the trial we deal only with probabilities that 'are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'

See also Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966). The Harris case reviewed the decisions on the subject and reiterated the approach to be utilized in evaluating the evidence produced to show the existence of probable cause by quoting from United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), as follows:

. . . 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 toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In United States v. Holliday, 474 F.2d 320, 321 (10th Cir. 1973), we said:

. . . It is apparent that affidavits for search warrants must be tested in a common sense and realistic manner, and warrants issued thereon should not be interpreted hypertechnically. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), United States v. Berry, 423 F.2d 142 (10th Cir.). Nevertheless the Fourth Amendment requires that the facts as set forth in the underlying affidavit be sufficient to allow a neutral magistrate to reasonably conclude that probable cause for the search exists.

It is now well settled that the facts and circumstances upon which a magistrate may find probable cause for the issuance of a search warrant may be based on reliable hearsay information of criminal activity furnished by an unidentified informer. United States v. Harris, supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Holliday, supra. It has also been held that a reviewing court should give substantial consideration to the determination of probable cause by a 'neutral and detached' magistrate. Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Ramirez, 279 F.2d 712 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

The three search warrants challenged in this case were supported by separate affidavits of F.B.I. agents. For the search of Neal's home the affidavit stated that concealed there were numerous articles from stolen automobiles or to be used and placed on stolen or altered automobiles and in obtaining titles to the same, 'which are fruits, instrumen-talities and evidence of the theft, alteration, sale and interstate transportation of stolen automobiles.' Attached to the affidavit is a signed supporting statement of another F.B.I. agent which reads:

That Lindsay Darrell Green advised Special Agent Norman C. Hope of the Federal Bureau of Investigation that since about November, 1970, to August, 1971, he had participated in the theft of approximately 50 automobiles and an undetermined number of these automobiles had been taken by him to a garage located near McAlester, Oklahoma, and operated by Joy Jimmy Neal where the serial numbers, VIN number plates and other identifying numbers were altered and changed. He stated that Neal obtained the VIN plates placed on the stolen automobiles together with titles corresponding to these VINs from the above-described apartment. As a result of the information furnished by Green three...