U.S. v. Skramstad

• Decision Date: 08 June 1981
• Docket Number: No. 80-1941,80-1941
• Citation: 649 F.2d 1259
• Parties: 8 Fed. R. Evid. Serv. 679 UNITED STATES of America, Appellee, v. Bradley Gilbert SKRAMSTAD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1259

649 F.2d 1259

8 Fed. R. Evid. Serv. 679

UNITED STATES of America, Appellee, v. Bradley Gilbert SKRAMSTAD, Appellant.

No. 80-1941.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1981.

Decided June 8, 1981.

Meshbesher, Singer & Spence, Ltd., Kenneth Meshbesher, Carol Grant (argued), Minneapolis, Minn., for appellant.

Thomas K. Berg, U. S. Atty., by Ann D. Montgomery, Asst. U. S. Atty., Minneapolis, Minn., Michel Krug, Legal Intern, for appellee.

Before ROSS, HENLEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Bradley Gilbert Skramstad appeals from a final judgment entered in the District Court for the District of Minnesota ¹ upon a jury verdict finding him guilty of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced appellant to three years imprisonment plus a special parole term of three years.

For reversal appellant argues that the district court erred in (1) refusing to suppress evidence seized pursuant to a search warrant issued on the basis of an inadequate affidavit, (2) restricting cross-examination about the identity and reliability of the informant, and (3) admitting evidence of other crimes. For the reasons discussed below, we affirm the judgment of the district court.

Appellant was charged in a one-count indictment with possession with intent to distribute approximately 82 grams of cocaine. The cocaine was seized pursuant to a state search warrant, issued on the basis of an affidavit which provided in part:

Your affiant is a Hennepin County Deputy Sheriff assigned to the Narcotics Division. Along with your affiant's own investigation, information from a confidential reliable informant, who has within the past six-month period, given information to your affiant and other narcotics officers which has led to the arrest of several individuals for possession and sale of narcotics. The confidential reliable informant (CRI) has also given information on the activities of known narcotics traffickers, which has been corroborated by your affiant and information from the CRI and your affiant is as follows:

The CRI has been within the premises of 19725 Cottagewood Road, Deephaven, Minnesota within the last three-day period. On this occasion the CRI has observed a large quantity of marijuana which was represented to the CRI as marijuana by an unwitting party. The CRI has also observed white powder at the above residence which was represented to the CRI as cocaine by the unwitting party.

The CRI related to your affiant that the party at the address of 19725 Cottagewood Road, Deephaven, MN was selling large quantities of marijuana.

Your affiant has taken the CRI past the address of 19725 Cottagewood Road, Deephaven, MN at which time the CRI positively identified that address as the residence where the CRI had observed large quantities of marijuana inside the residence.

Your affiant through his own investigation has learned from Northern States Power Company that the utilities for 19725 Cottagewood Road, Deephaven, MN list to Bradley G. Skramstad.

Your affiant has also learned from other police agencies and other Hennepin County narcotics officers that they had received information in the past six months that Bradley G. Skramstad was dealing in narcotics.

Through your affiant's experience and information gathered, your affiant believes there to be a large quantity of marijuana at the address of 19725 Cottagewood Road, Deephaven, Minnesota.

In addition to approximately 82 grams of cocaine (25% purity), the police also seized less than 2 ounces of marijuana, 87 "Thai sticks," ² 50 peyote buttons, small amounts of hashish, a scale, an "ISO 2" machine, ³ and $1,430 in cash from appellant. Appellant's motion to suppress was denied by the federal magistrate and the district court. United States v. Skramstad, No. 3-80-CR-43 (D.Minn. Aug. 1, 1980) (order denying motion to suppress). The evidence seized pursuant to the search warrant was introduced at appellant's trial. The jury found appellant guilty of possession with intent to distribute cocaine. This appeal followed.

I. Motion to Suppress

Appellant first argues that the district court erred in refusing to suppress the evidence seized pursuant to the search warrant. Appellant argues the affidavit in support of the search warrant was inadequate because it failed to establish the informant's reliability and the basis of the informant's knowledge as required by 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). Like the district court, we find the present case a close one. We conclude, however, that the affidavit satisfies the minimum requirements ⁴ established in Aguilar and Spinelli. The affidavit in the present case disclosed that the informant's information was based upon recent personal observation or firsthand knowledge and that the informant had in the past supplied accurate information to the police. See, e. g., United States v. Brinkley, 623 F.2d 533, 534 (8th Cir. 1980) (per curiam); United States v. Fleming, 566 F.2d 623, 625 (8th Cir. 1977); United States v. Gavic, 520 F.2d 1346, 1350-51 (8th Cir. 1975).

Appellant specifically argues that the statement in the affidavit that information provided by the informant led to several arrests is insufficient. Appellant argues that in order to establish reliability the information supplied by the informant in the past must be shown to have resulted in successful prosecutions or convictions. See generally 1 W. LaFave, Search and Seizure § 3.3, at 514 (1978) ("The better view is that a bald assertion that the informant's prior information prompted the police to make one or more arrests will not suffice to establish the informer's credibility."). This position was rejected in United States v. Fleming, supra, 566 F.2d at 625. In Fleming

(t)he district court sustained defendant's motion to suppress because the affidavit did not purport to show that the informant's past tips resulted in convictions. In this the district court erred. The district court's holding has the practical effect of requiring proof of guilt in a separate case as a condition to obtaining a warrant. The affidavit need only show that criminal activity is probable, not that it exists beyond a reasonable doubt.

Id. (citations omitted).

Appellant further characterizes the reference in the affidavit that the "confidential reliable informant (CRI) has also given information on the activities of known narcotics traffickers, which has been corroborated by your affiant" is uninformative and conclusory. Appellant thus argues that such a general statement does little to establish the reliability of the informant. We agree with appellant's characterization of this reference and in particular with appellant's observation that neither the information supplied by the informant nor the corroboration provided by the affiant refers expressly to incriminating or illegal activities. In the present case, however, the informant's reliability has already been established by the reference to the informant's recent history of supplying information which led to the arrest of several individuals for narcotics offenses.

Appellant also argues that the affidavit failed to describe the underlying factual basis for the informant's conclusion that there was marijuana on the premises in question. Appellant incorrectly states that "the informant could not say that he (or she) had observed marijuana or cocaine." Brief for Appellant at 19. The affidavit indicates that the informant personally observed on the premises a large quantity of marijuana and a white powder. According to the informant, an "unwitting party" identified these substances to him as marijuana and cocaine, respectively. See United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971) ("personal and recent observations" by the informant); United States v. Fleming, supra, 566 F.2d at 625 ("firsthand knowledge" of the informant).

Appellant further argues that the informant relied upon the representations of an unidentified "unwitting party" to identify the substances as marijuana and cocaine, rather than the informant's personal knowledge that the substances in question were controlled substances. Appellant argues that the affidavit failed to establish the requisite probable cause for the issuance of the search warrant because the affidavit failed to establish the reliability of the second informant (the "unwitting party") and the underlying circumstances supporting the second informant's identification of the controlled substances. See Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. at 1514; United States v. Smith, 462 F.2d 456, 458-59 (8th Cir. 1972). For the purposes of this argument, appellant concedes that the affidavit sufficiently established the credibility of the first informant.

As noted in United States v. Smith,

(i)t is not unusual for an affidavit of a law enforcement officer to contain hearsay information from an informant, which, in turn, is based on other information gathered by that informant. Therefore, when a magistrate receives an affidavit which contains hearsay upon hearsay, (the magistrate) need not categorically reject this double hearsay information. Rather, (the magistrate) is called upon to evaluate this information as well as all other information in the affidavit in order to determine whether it can reasonably be inferred "that the informant had gained his information in a reliable way."

462 F.2d at 459 (citations omitted). "(H)earsay based on hearsay is acceptable in this instance as long as the affiant has 'sufficient information so that both levels of hearsay meet the two-pronged (Aguilar) test' relating to (1) the reliability of the informant and (2) some knowledge of the underlying facts " United States v. Carmichael, 489 F.2d 983, 986 (7th...