U.S. v. Schauble, 79-2022

• Decision Date: 05 June 1981
• Docket Number: No. 79-2022,79-2022
• Citation: 647 F.2d 113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry W. SCHAUBLE II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 113

647 F.2d 113

UNITED STATES of America, Plaintiff-Appellee, v. Henry W. SCHAUBLE II, Defendant-Appellant.

No. 79-2022.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Dec. 16, 1980.

Decided April 14, 1981.

Rehearing Denied June 5, 1981.

Emerson B. Semple, Denver, Colo. (Joseph Saint-Veltri, Denver, Colo., with him on the brief), for defendant-appellant.

Vernon E. Lewis, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., John Oliver Martin, Asst. U. S. Atty., Kansas City, Kan., on the brief), for plaintiff-appellee.

Before HOLLOWAY, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Henry W. Schauble II was convicted of possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Schauble appeals this conviction on the ground that the district court erred in denying his motion to suppress evidence obtained from a search of his premises pursuant to a warrant. Specifically, Schauble contends that the affidavit supporting the warrant was insufficient to show probable cause and that he should have been granted an evidentiary hearing to establish that the affiant knowingly or with reckless disregard of the truth included material false statements in the affidavit. We affirm.

On February 13, 1979, Roy Miller, Squad Commander of the City-County Investigative Squad of Johnson County, Kansas, submitted an affidavit in support of an application for a warrant to search the residence at 5227 Riggs in Mission, Kansas. The affidavit stated that the objective of the search was to seize "a quantity of marihuana." Rec., vol. I, at 58. As probable cause for the search, the affidavit stated that the affiant had been "contacted by a reliable informant" who said that "in the last 48 hours" the informant had been "at the residence at 5227 Riggs and that while at the residence" the informant "observed a quantity of green leafy vegetation," which the informant "believes to be marihuana, in the residence at 5227 Riggs " Id. The affidavit related that the informant said "the belief that the green leafy vegetation is marihuana is based on prior observation and usage of the substance." Id. In support of the informant's reliability, the affiant said that the informant had given information in the last year leading to at least three search warrants and the subsequent seizure of controlled substances, and to arrests or arrest warrants.

A search warrant was issued, and the search was executed the same day. A number of items were seized including a quantity of opium, approximately 100 pounds of marijuana, one gallon of hashish oil, 71/2 pounds of hashish, 33 grams of cocaine, scales, $200 in cash, and a notebook containing a record of transactions. No member of the residence was present at the time of the search, but Schauble later admitted 5227 Riggs was his residence.

Schauble was indicted on five counts of violation of 21 U.S.C. § 841(a)(1), each count relating to a different controlled substance. Prior to trial, Schauble filed a motion to suppress the evidence seized in the search, contending the affidavit failed to satisfy the test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In the alternative, Schauble sought the opportunity to cross-examine the confidential informant as to the truthfulness of the factual statements made in the affidavit or to compel the confidential informant to appear for an in camera examination by the court to answer questions supplied by the defendant. The intended purpose of the questioning was to establish that the affiant had intentionally or with reckless disregard for the truth included false statements of the informant in the affidavit.

The district court denied the motion. Schauble then entered into a stipulation of facts with the Government. The district court found Schauble guilty as to count three of the indictment for possession of marijuana with intent to distribute. The remaining counts were dismissed. Schauble was sentenced to two years' imprisonment and a special parole term of two years.

I. Facial Sufficiency of the Affidavit

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), established a two-prong test for determining whether an affidavit whose essential information consists of statements of an informant establishes probable cause for the issuance of a search warrant.

"(T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant was 'credible' or his information 'reliable' "

Id. at 114, 84 S.Ct. at 1513-14. In Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969), the Supreme Court further described the first prong:

"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation."

The second prong goes to the past reliability of the informant. See United States v. Hittle, 575 F.2d 799, 801 (10th Cir. 1978). The first prong relates to whether the informant's information in the particular case is accurate. Id.

Schauble argues the affidavit failed to satisfy the first prong of the Aguilar test for two reasons. The first basis is alleged to be the failure to set forth in sufficient detail the alleged criminal activity and the underlying circumstances from which the affiant concluded the informant's information was gathered in a reliable manner. The second is said to be failure to set forth sufficient facts demonstrating that probable cause, if it ever existed, was still present at the time the warrant issued. We cannot agree with either contention.

The affidavit provides the underlying circumstances from which the informant concluded that drugs were on the Riggs premises in sufficient detail that a magistrate could determine the informant had a reasonable ground for his belief and was not relying upon rumor, general reputation, whim, or suspicion. The affidavit told the magistrate that the informant had been at the residence at 5227 Riggs within the last 48 hours and while there had personally observed a substance he believed to be marijuana. Thus, personal observation was the basis for the informant's belief.

We concur with Schauble's position that "the element of time is crucial to the concept of probable cause." United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). But "the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit." Id. In resolving the question of staleness, the nature of the alleged criminal activity and the property to be seized must be considered. See, id.; United States v. Sherman, 576 F.2d 292, 295-96 (10th Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 284, 58 L.Ed.2d 259 (1978). "Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time." Johnson, 461 F.2d at 287. This is particularly true if the property to be seized can be easily transported or consumed. On the other hand, "where the affidavit properly recites facts indicating activity of a protracted and continuous nature the passage of time becomes less significant," and facts otherwise remote in time may retain...