U.S. v. Spach

• Decision Date: 16 July 1975
• Docket Number: No. 74-1648,74-1648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Charles SPACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 866

518 F.2d 866

UNITED STATES of America, Plaintiff-Appellee, v. Roy Charles SPACH, Defendant-Appellant.

No. 74-1648.

United States Court of Appeals Seventh Circuit.

Argued Jan. 7, 1975.

Decided July 16, 1975.

Frederick H. Miller, Madison, Wis., for defendant-appellant.

David C. Mebane, U. S. Atty., John Byrnes, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.

Before PELL and TONE, Circuit Judges, and PERRY, Senior District Judge. ^*

PELL, Circuit Judge.

This is a direct appeal by Spach who was convicted of violating 18 U.S.C. § 1951 by "threatening physical violence to persons to obtain property controlled by Hilldale State Bank, in furtherance of plan of extortion. . . . " The only issues presented by appellant are whether the district court erred in denying defendant's motions to suppress evidence obtained during the search of defendant's house and car. The searches were pursuant to warrants, but appellant alleges that the affidavits which were the bases for the issuance of these warrants were insufficient.

I. The Affidavits

A. For House Search Warrant

The affidavit supporting the warrant for the search of defendant's house was made by Henry W. Curran, Jr., an F.B.I. agent. Curran first relates the facts disclosed to him in an interview with Mrs. David Mergen of Madison, Wisconsin. She advised him that a man wearing an Afro-style wig and sunglasses forced his way into her residence brandishing a firearm. He caused her to tape her brother to a chair and then telephone her husband, the vice-president of the Hilldale State Bank. The individual required her to explain to her husband that she and her brother were being held captive. Curran then states that he had been advised by David E. Templeton, another F.B.I. agent, that Templeton interviewed Mr. David Mergen. Mr. Mergen told him that his wife telephoned and said she and her brother were being held captive by a man with a gun. He then said he spoke to a man who told him to take $10,000 in $20.00 bills and deliver them to a particular spot. The man on the phone also told him that he was being watched. Mr. Mergen told Templeton that he complied with these orders by taking $10,000 of bank funds and that when he was depositing the money in the location indicated, he saw a 1963 or 1964 gray or green Chevrolet. After dropping off the money, he telephoned the police.

Curran next relates that Thomas Madden, another F.B.I. agent, advised him that he talked with Richard Lewis, who stated that he is personally acquainted with Roy C. Spach (the defendant) and Donald Westbury. The affidavit continues:

"That Spach resides at 4385 Doncaster Drive with two children and that Westbury stays at that address on occasion and takes care of Spach's two children. That some time last week, Westbury told Lewis that Spach was intending to rob a bank. That this morning, Lewis again talked to Westbury and Westbury told Lewis that Spach had informed him that Spach had done the job referring to the account of the robbery of the Hilldale State Bank through the extortion device referred to above and that at the time of the discussion was prominent in the morning newspaper. He further advised him that they had gone to Jack White Ford, Inc., Mayfair Road, in Milwaukee, Wisconsin, and had purchased a 1972 Dodge Charger for approximately $3,000 and had paid for it in $20 bills. Affiant has been advised by the F.B.I. office in Milwaukee that Jack White Ford, Inc. did sell a 1972 Dodge in the evening of October 3, and that it was paid for by $20 bills totaling $2,960 plus other denominations. That affiant has been advised by Gregg B. Hunter, whom he knows to be a Special Agent of the F.B.I., that Roy C. Spach resides at 4385 Doncaster Drive and that he knows this because he went to that address and interviewed Spach this afternoon. That the description of the premises contained in the caption of this document was provided affiant by Hunter. That affiant has talked with Detective Captain Stanley Davenport of the Madison Police Department who advised him that he has been provided information by an unnamed informant who he knows to be a reliable person and who has provided him information in the past. Davenport said that Spach has the proceeds of the robbery hidden in three locations within the described premises, specifically, in a potted plant near the French door, in the compartment of the freezer in the refrigerator, and underneath the refrigerator. That Davenport advises that all of this information was obtained from the above-mentioned unnamed informant who he knows to be a reliable person."

B. For Car Search

The affidavit supporting the warrant for the car search is substantially identical except it relates that a clerk at the Wisconsin Department of Transportation indicated that the car to be searched was titled in the name of Roy C. Spach, Madison, Wisconsin, and it relates that money with the same serial numbers as that taken from the bank was found when searching the house but that certain items had not been located.

II. Hearsay in Affidavits

It is undisputed that hearsay may be used in affidavits supporting the issuance of search warrants. See, e. g., Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). When hearsay is used the magistrate must be informed of some underlying circumstances from which the informer drew his conclusions and some underlying circumstances from which the officer could conclude that the informer was credible and that his information was reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Appellant argues that long chains of hearsay are suspect, relying in part on United States v. Pearce, 275 F.2d 318 (7th Cir. 1960); but the issue is not the length of the chain but rather whether both prongs of the Aguilar test are met at each level. United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973); United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62. As will be discussed in more detail below, even where an affidavit does not fully meet the Aguilar tests, it may be sufficient if circumstances show that it is likely to be as reliable as one which does meet the tests. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

III. House Affidavit Without Unnamed Informer's Tip

The district court did not find it necessary to rely on the unnamed informer's tip in upholding the search warrant. Spach argues that without the informer's tip the affidavit is deficient first because it is insufficient to link the defendant to the crime, and second because even if it links defendant to the crime, it is insufficient to show probable cause that any fruits of the crime or evidence were in defendant's house.

A. The Defendant and the Crime

According to the defendant only two statements in the affidavit link the defendant to the crime other than the statements of the unnamed informer. The first is the statement of Westbury that defendant was intending to rob a bank. Defendant argues that this statement cannot be credited because 1) there is no information in the affidavit on how Westbury obtained this information and 2) the affidavit contains no facts showing Westbury to be reliable. The second statement to which defendant refers is the statement Westbury attributed to the defendant to the effect that he had "done the job." Defendant argues that this statement cannot be credited because 1) no showing was made that " job" referred to the crime and 2) the conclusion drawn that "job" refers to the crime is unsupported by facts. Additionally, defendant argues that nothing referred to in the Westbury-Lewis-Madden-Curran chain (hereinafter Westbury chain) can be credited because the affidavit contains no facts whereby the magistrate could conclude Lewis was credible. ¹

The Government counters these arguments by arguing that even though there is no showing in the affidavit that Lewis is credible, we may rely on him because he is named and therefore the problems inherent in the use of unnamed informers are not present. In addition his statements are specific and are not of the type that might be a casual rumor. Next the Government argues that Westbury's statements are against his penal interest and therefore may be credited. Finally the Government argues that there is sufficient corroboration of the Westbury chain so that all of Westbury's statements may be credited.

Cases involving unnamed or paid informers are distinguishable from cases involving informers who are victims of crimes or citizens with no apparent motive to falsify information. Where such a person provides information, the affidavit should set forth facts so that the magistrate and reviewing courts can understand this. This was done in cases where we have upheld affidavits based on information supplied by such persons. United States v. Wilson, 479 F.2d 936 (7th Cir. 1973); United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973). That a person is named is not alone sufficient grounds on which to credit an informer, but it is one factor which may be weighed in determining the sufficiency of an affidavit.

The Government is correct that an admission against penal interest may support the reliability of an informant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Carmichael,supra.

The statements allegedly made by Lewis reasonably raise the inference that he was subject to being charged as an accessory to the crime and that the information possessed by him would be the basis of guilt of misprision of felony. We therefore cannot exclude the against-penal-interest syndrome from our consideration even though for the other reasons developed in this opinion we would need to place no reliance upon this factor.

When an informer provides information which is...