U.S. v. Sumpter

• Decision Date: 10 February 1982
• Docket Number: No. 81-1568,81-1568
• Citation: 669 F.2d 1215
• Parties: UNITED STATES of America, Appellee, v. Odell SUMPTER, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1215

669 F.2d 1215

UNITED STATES of America, Appellee, v. Odell SUMPTER, Jr., Appellant.

No. 81-1568.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1981.

Decided Feb. 10, 1982.

Joseph Friedberg (argued), Friedberg & Peterson, Mark W. Peterson, Minneapolis, Minn., for appellant.

John M. Lee, U. S. Atty., Janice M. Symchych, Asst. U. S. Atty. (argued), D. of Minn., Minneapolis, Minn., Gerald Weinrich, Legal Intern, for appellee.

Before ROSS and STEPHENSON, Circuit Judges, and HOWARD, District Judge. ^*

ROSS, Circuit Judge.

Odell Sumpter, Jr. appeals his conviction on April 27, 1981, in the district court ¹ for possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a) (1976). Appellant rests his appeal on the argument that the primary evidence offered against him at trial, a .22 caliber semi-automatic pistol, should have been suppressed. According to the appellant, this evidence was obtained in a search pursuant to a warrant which violated the fourth amendment because it was based on an affidavit insufficient to show probable cause. ² After careful review of the appellant's arguments, we affirm the judgment of the district court.

Background

On February 5, 1981, a Minneapolis Police Department officer filed an affidavit in support of an application for a warrant to search the residence of the appellant for narcotic drugs and controlled substances including cocaine and marijuana. The affidavit stated:

Your affiant is a Sergeant with the Minneapolis Police Narcotics Division and over the past year has been investigating the illegal drug activities of Odell Sumpter, Jr. who resides at 4850 Oakland Avenue South. Your affiant has over the past year talked with at least two confidential reliable informants, both of whom have made prior felony cases for the Police Department through their cooperation. These two informants independently have advised your affiant that Odell Sumpter, Jr. is selling Cocaine out of his residence at 4850 Oakland Ave. South. The informant stated that Odell is charging $275.00 for 1/8th ounce packages of Cocaine, and that Odell Sumpter takes in stolen merchandise specifically clothing in exchange for Cocaine. On 2/2/81 the Minneapolis Police Department Narcotics Division received a letter from a party stating they were nearby neighbors of 4850 Oakland Avenue South. This letter states that this neighbor and other parties in the neighborhood are upset about the large amount of short term traffic, entering and leaving 4850 Oakland at all hours. The neighbors strongly suspect drug traffic. The writer of the letter enclosed eight license numbers of vehicles that arrived at that residence and left after a very short stay from five to fifteen minutes. Your affiant obtained registrations of those vehicles and found the owner of one of the vehicles had a recent arrest for possession of Cocaine, a second vehicle registered to a party the Narcotics Division executed search warrants for Drug Trafficking at. In March of 1975 your affiant and other officers executed a search warrant at this same dwelling, 4850 Oakland Avenue South, and seized a large quantity of Heroin and stolen merchandise and arrested Odell Sumpter, Jr. who was subsequently convicted in Federal Court and sentenced to Federal Prison. On this date, your affiant met with the garbage pick up man for 4850 Oakland Avenue South and retrieved the garbage from that residence after the garbage carrier had picked the garbage up in a routine pick up date. In searching the garbage, your affiant found a plastic baggie which contained a green substance which was analyzed on this date and found to be marijuana. The garbage carrier stated that while they were going up the alley, they observed three cars stop and enter 4850 Oakland Avenue South and after a very short time leave. Parked in the front of 4850 Oakland Avenue South was a 1977 red Mercedes, MN. FHF 212 which registers to Odell Sumpter, Jr. at 4850 Oakland Avenue South. Because of the above information and investigation your affiant does believe that a continuous drug traffic business is being carried on at 4850 Oakland Avenue South by Odell Sumpter, Jr.

Based on the information contained in this affidavit the Hennepin County, Minnesota, District Court ³ authorized a warrant to search the appellant's residence for, inter alia, cocaine and marijuana. That same day, pursuant to this authorized search, a .22 caliber pistol was recovered from a closet in the appellant's residence. The appellant had a prior federal felony conviction on January 6, 1976, for use of a telephone to facilitate drug distribution.

Sufficiency of the Affidavit

In determining the sufficiency of an affidavit to establish probable cause for a search warrant, several basic principles must be kept in mind. Although we have noted that greater precision and care by affiants in drafting affidavits would substantially resolve the number of "close cases" concerning the sufficiency of search warrant affidavits, ⁴ it must be remembered that such affidavits "must be tested by 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." United States v. Ventresca, 380 U.S. 102, 103, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965).

Moreover, it is well established that

only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062 (18 L.Ed.2d 62) (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745 (13 L.Ed.2d 684) (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736 (4 L.Ed.2d 697) (1960).

Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). It is also axiomatic that, because of the myriad of unique factors that may go into a determination of probable cause, each case must be decided on its own facts; one decision seldom disposes of the next. See United States v. Button, 653 F.2d 319, 327 (8th Cir. 1981).

Essentially, the appellant attacks the affidavit using a piecemeal approach. He attempts to show that each element of the affidavit, when viewed independently, is insufficient to support a warrant. We cannot accept this approach. The determination of whether or not probable cause exists to issue a search warrant is to be "based upon a common-sense reading of the entire affidavit." Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588; United States v. Bamberger, 482 F.2d 166, 170 (9th Cir.), cert. denied, 414 U.S. 1041, 94 S.Ct. 543, 38 L.Ed.2d 332 (1973).

Much of the appellant's argument in this case has addressed the sufficiency of that portion of the affidavit concerning the hearsay allegations (1) provided by two unidentified informants to the effect that the appellant was selling cocaine from his residence, and (2) provided in the anonymous letter from an alleged neighbor concerning frequent short term automobile traffic at the appellant's home. ⁵ In support of his contention that the affidavit did not establish probable cause the defendant relies heavily on Spinelli v. United States, supra; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Schmidt, 662 F.2d 498 (8th Cir. 1981); United States v. Button, supra; United States v. Skramstad, 649 F.2d 1259 (8th Cir. 1981). These cases broadly rest on the Aguilar-Spinelli rule that where probable cause is based on a tip from an informant, the affidavit must set out some underlying circumstances which enable the magistrate to independently judge the validity of the informant's conclusions, and some of the underlying circumstances which support the reliability or credibility of the informant. In the absence of details as to the manner in which the informant gained the information, "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." Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589. See Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978); United States v. Strini, 658 F.2d 593, 597-98 (8th Cir. 1981); United States v. Holmes, 594 F.2d 1167, 1170 (8th Cir.), cert. denied, 444 U.S. 873, 100 S.Ct. 154, 62 L.Ed.2d 100 (1979).

We believe that these cases do not necessarily control the instant case and, therefore, that appellant's reliance is misplaced. Unlike the situation presented by the instant case, each of these cases dealt with situations in which an affidavit in support of a search warrant rested entirely on the informant's tip or the informant's tip was essential to finding probable cause. ⁶

The standard approach to determining if hearsay information obtained from a confidential informant supplies the necessary showing of probable cause is to first determine if the informant's report, standing alone, satisfies the Aguilar test that the affidavit aver sufficient underlying circumstances to establish that the informant's conclusion was valid and that the informant was credible or reliable. If the Aguilar test is...