U.S. v. Swihart

Decision Date27 April 1977
Docket NumberNo. 76-2357,76-2357
Citation554 F.2d 264
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Richard L. SWIHART, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Frederick M. Coleman, U. S. Atty., James D. Jensen, Toledo, Ohio, for plaintiff-appellant.

Harland M. Britz, Britz & Zemmelman, Toledo, Ohio (Court-appointed), for defendant-appellee.

Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.

WEICK, Circuit Judge.

The Government has appealed from an order of the District Court granting appellee Swihart's motion to suppress evidence seized pursuant to a search warrant issued by a United States Magistrate. The evidence suppressed was a large quantity of Dupont smokeless gun powder. Its seizure resulted in an indictment charging Swihart in six separate counts of a twenty-six count indictment, which indictment also charged three other persons with similar offenses. Swihart was charged with transporting and receiving stolen ammunition moving in interstate commerce, in violation of 18 U.S.C. §§ 922(i), 922(j), and 924(a), and with failing to maintain required records, in violation of 18 U.S.C. §§ 922(m) and 924(a).

The sole issue on this appeal is whether the affidavit upon which the search warrant was issued was defective because it allegedly failed to state facts from which the affiant, Special Agent Louis M. Halkias of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department, and also the magistrate to whom the affidavit for the search warrant was submitted, could conclude that the informant, Mr. Paul E. Davis, was " 'credible' or his information 'reliable'." Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The District Court, in granting the motion to suppress, held that the affidavit was defective. We reverse.

The affidavit for the search warrant, 1 sworn to by Agent Halkias, stated that on February 26, 1976 he received a telephone call from Paul Davis, president and owner of Davis Explosives Company located in Findlay, Ohio. Davis told Agent Halkias that he, with the help of his (Davis') secretary, checked his inventory, and that the check revealed that there was missing about 800 pounds of gun powder which he had stored in his magazine, and, in particular, a 20-pound keg of Dupont IMR, 30-31 smokeless gun powder, Lot number P76JA09B-1353, which keg Davis knew that he had had the previous day.

Davis stated that he remembered that earlier in the week he had received a telephone call from a Mr. Swihart who had a gun store in Fostoria, Ohio, in which call Swihart asked Davis about the price, quantity, and availability of Dupont gun powder. Swihart also told Davis that he was sorry that he had not bought some gun powder which an individual had once offered him at a price so "ridiculous" that he thought the powder was stolen. He further informed Davis that he planned to travel to Georgia to "split a ton of powder" with some friends.

Davis told Agent Halkias that on February 27, 1976 2 he went to see Swihart's gun store because he (Davis) knew all of his own customers and therefore he was curious as to how it happened that he was not aware of a gun dealer (Swihart), located only fifteen miles away, who sold a large amount of smokeless gun powder. In Swihart's store, while waiting to be served, Davis observed various kegs and boxes of Dupont smokeless gun powder, a quantity which he estimated to Agent Halkias to be about 300 to 500 pounds. He saw in a small adjoining room a 20-pound keg of Dupont IMR, 30-31 smokeless gun powder and he wrote down the lot number of the powder, P76JA09B-1353, which lot number was identical with the lot number of his missing keg. 3 Swihart told Davis, who posed as a regular customer, that he got a "deal" on the 20-pound keg of Dupont 30-31 smokeless gun powder, and that he would sell it to Davis for $65.00, plus tax. Davis indicated to Swihart that he would consider the price; he then left the store and notified Sheriff Bell of Hancock County and Agent Halkias of what he had seen in Swihart's shop.

Davis informed Agent Halkias that $65.00 was the same price at which he sold IMR, 30-31 gun powder to wholesalers in ton lots, and that the retail price for such powder as stated in a certain supply catalog was $105.85. The following day Agent Halkias telephoned two area gun stores and inquired as to the retail price of a 20-pound keg of Dupont IMR, 30-31 smokeless gun powder. One store stated that the retail price was $82.36; the other store informed Agent Halkias that the price was between $85.00 and $90.00. Agent Halkias and another Special Agent also drove past Swihart's store and obtained a physical description of the outside of the store, garage, and warehouse.

On February 29, 1976 Agent Halkias received a signed and sworn statement from Davis, which statement was subsequently attached to the affidavit for the search warrant. At that time he and Davis checked Davis' inventory. Agent Halkias discovered that 982 pounds of Dupont smokeless gun powder had been "stolen", which powder was valued at Davis' cost to be $2,897. Davis' records also indicated that since February 9, 1976, the date when Davis received his only three 20-pound kegs of Dupont IMR, 30-31 smokeless gun powder, Lot number P76JA09B-1353, he had not sold any IMR, 30-31 smokeless powder, and the check revealed that Davis was now missing one 20-pound keg.

The affidavit for the search warrant further recited in pertinent part:

Mr. Davis also told me that he is one of nine distributors of Dupont Smokeless gun powder in the country, and that he has been in business for twelve years. He said that he handles approximately 75% of the distribution of Dupont smokeless gun powder east of the Mississippi River, and that he prides himself in knowing all of the people that he sells powder to. Mr. Davis told me that after he left Swihart's store he went to Sheriff Bell of Hancock County and they both went to his magazine and took the lot numbers of the powder stock that the missing powder was taken from. At that time, he checked the lot number that he saw at Swihart's and it matched with the two kegs of 30-31 powder that he still had in his magazine, which was P76JA09B-1353. 4

It is clear, of course, that a magistrate may rely on hearsay information which the affiant received from an informant. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Edmond, 548 F.2d 1256, 1258 (6th Cir. 1977).

The appellee, however, contends that the affidavit for the search warrant did not satisfy the "two-pronged" standard for testing the sufficiency of affidavits for search warrants as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

This Court, in United States v. Jenkins, 525 F.2d 819, 822 (6th Cir. 1975), explained the two-pronged test as follows:

The first prong requires that the magistrate be informed of some of the underlying circumstances on which the informant's conclusion was based, and the second prong requires that the affidavit show some of the underlying circumstances from which the affiant concluded that the informant (who need not be identified) was credible or his information reliable. 378 U.S. at 114, 84 S.Ct. 1509. And the latter case, Spinelli, supra, teaches generally that when an informer's tip is found wanting under Aguilar, the other allegations in the affidavit which corroborate the hearsay report should be considered, and the affidavit is to be deemed sufficient if it can fairly be said that the tip ". . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." 393 U.S. at 415, 89 S.Ct. at 588.

The District Court held that although the first requirement of the test was met by Davis' "detailed description of his observations" at Swihart's gun shop, the second requirement was "not met by any recital of facts that would support the credibility of the informant." We concur with the finding of the District Court that the affidavit recited the underlying circumstances upon which the informant based his conclusions, but we disagree with the Court's holding that the affidavit did not establish the general reliability of the informant or of his information.

We are not faced here with a situation where some of the more common methods of supporting the credibility of the informant were present, e. g., that the affiant had received reliable law enforcement information from the informant previously, Jones v. United States, supra ; United States v. Jenkins, supra, at 823; that the informant's declaration was against his penal interest, United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Gardner, 537 F.2d 861, 862 (6th Cir. 1976); United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir.), cert. denied --- U.S. ---, 97 S.Ct. 2920, 53 L.Ed.2d 1060, or that the affiant had knowledge of the suspect's background, reputation, and/or prior activities, United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. 2075. We are of the opinion, however, that there were other indicia of reliability in the affidavit in the present case from which the magistrate could conclude that Davis was credible or his information was reliable.

The Government argues that the Aguilar-Spinelli test was meant to deal only with search warrants issued on the basis of hearsay information received from unidentified and/or professional informants, relying on United States v. Darensbourg, 520 F.2d 985 (5th Cir.), modified, 524 F.2d 233 (1975), and United States v. Burke, 517 F.2d 377 (2d Cir. 1975), and that, therefore, a strict application of the dual Aguilar-Spinelli requirements is not appropriate.

In Burke the...

To continue reading

Request your trial
53 cases
  • People v. Superior Court (Bingham)
    • United States
    • California Court of Appeals Court of Appeals
    • April 3, 1979
    ...in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime.' " (United States v. Swihart (6th Cir. 1977) 554 F.2d 264, 268.) And: " 'The essence of reliability may be found in an informant's statement of facts rather than an allegation of mere c......
  • United States v. La Monte
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 3, 1978
    ...observations have "built-in" indicia of reliability. United States v. Hunley, 567 F.2d 822, 825 (8th Cir. 1977); United States v. Swihart, 554 F.2d 264, 268-69 (6th Cir. 1977); United States v. Simmons, 444 F.Supp. 500, 505 (E.D.Pa. 1978); see United States v. Darensbourg, 520 F.2d 985, 988......
  • United States v. Stephenson
    • United States
    • U.S. District Court — Western District of Michigan
    • October 22, 1979
    ...considered inherently credible since, to date, the Sixth Circuit has not addressed this question. It does suggest, however, that United States v. Swihart39 "has adopted a sliding scale view of inherent credibility" by choosing not to apply Aquilar-Spinelli in a wooden fashion. This point is......
  • U.S. v. Calandrella
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 31, 1979
    ...be upheld unless it was "arbitrarily exercised." E. g., United States v. Lee, 581 F.2d 1173, 1177 (6th Cir. 1978); United States v. Swihart, 554 F.2d 264, 270 (6th Cir. 1977); United States v. Giacalone, 541 F.2d 508, 513-14 (6th Cir. 1976) (en banc). Thus even where alternative readings of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT