U.S. v. Taylor, 78-1724

• Decision Date: 15 May 1979
• Docket Number: No. 78-1724,78-1724
• Citation: 599 F.2d 832
• Parties: UNITED STATES of America, Appellee, v. James Lee TAYLOR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 832

599 F.2d 832

UNITED STATES of America, Appellee, v. James Lee TAYLOR, Appellant.

No. 78-1724.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1979.

Decided April 18, 1979.

Rehearing Denied May 15, 1979.

James J. Knappenberger of Shaw, Howlett & Schwartz, Clayton, Mo., for appellant.

Mark A. Helfers, Asst. U. S. Atty. (argued), and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.

Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, ^* District Judge.

SCHATZ, District Judge.

This is an appeal from a criminal conviction on eleven counts of firearms violations. The appellant, James Lee Taylor, was indicted and convicted of the following: in Counts I, III and XI of knowingly possessing unregistered firearms in violation of 26 U.S.C. § 5861(d) and § 5871; in Counts II and IV of knowingly transferring unregistered firearms in violation of 26 U.S.C. § 5861(e) and § 5871; in Count V of conspiracy to deal in firearms without a license, in violation of 18 U.S.C. § 371, § 922(a)(1) and 26 U.S.C. § 5861(e); in Count VI of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1) and § 924(a); and in Counts VII, VIII, IX and X of knowingly receiving firearms while under indictment for burglary in violation of 18 U.S.C. § 922(h)(1) and § 924(a).

The appellant was sentenced to a period of six years in each of Counts I, II, III, IV and XI and for five years in each of Counts V, VI, VII, VIII and IX, all sentences to run concurrently with each other; on Count X the defendant's sentence was suspended and he was placed on probation for a period of five years to commence on completion of the terms of imprisonment.

The existence of the firearms transactions in question here first surfaced when one Douglas Gilmore, a reserve deputy sheriff, Poplar Bluffs, Missouri, who was also a licensed firearms dealer, heard a rumor that one Clifford Worley had access to a machine gun. After arranging to inspect the gun, Gilmore contacted agents of the Bureau of Alcohol, Tobacco and Firearms (hereinafter ATF), Victor Herbert, Roger Moen and Jim Bowen. Agent Herbert accompanied Deputy Gilmore to meet Worley in the parking lot of a shopping center in Poplar Bluffs. Herbert purchased a thirty caliber carbine machine gun with an attached M-2 conversion kit for $350. At that time, Herbert asked Worley if he had any other firearms for sale but Worley indicated that he had a partner with whom he had to consult before arranging any further sales. The receiving and transfer of this firearm forms the basis for Counts I and III of the indictment.

On June 29, Gilmore and Herbert again met with Worley in order to purchase additional firearms. Worley requested that they drop him off at 1728 Seiferts Drive (hereinafter 1728) indicating that he would meet them later on in Bacon Park with the weapon. When Herbert and Worley arrived at that address a green Baracuda automobile was parked in the driveway. Several agents surveilled the area around 1728 and the area around Bacon Park during the time of the transaction. One agent, Dennis Becker, who was seated in an automobile nearby, saw Worley approach the house but did not see him enter the house. Some minutes later Becker saw the green Baracuda on the road and had an opportunity to look at the driver, who was later identified as James Taylor. ATF agents also surveilled the area from a helicopter. Though the entrance to the house was somewhat obscured from view, the agents did see two men appear at the side of the house and get into the green Baracuda. One man was carrying a package. The Baracuda stopped at Bacon Park and Worley alighted from the car carrying a package. Worley sold three guns to agent Herbert: a Llama 9 millimeter semi-automatic pistol; a Star, model PD .45 caliber semi-automatic pistol and a Sterling, model 400, .380 caliber semi-automatic pistol. Herbert paid $270 for all three guns. It was later determined that these weapons had been stolen from the 303 Package Liquor and Sporting Goods Store. The sale of these weapons forms the basis for Counts V and VI.

On July 13, 1978, Agent Herbert purchased from Worley an Inland Arms M-1 .30 caliber U.S. carbine with an attached M-2 kit for $350. Once again, agents surveilled the transaction. Agent Moen watched Agent Herbert drop off Worley at 1728. Worley walked to the entrance of the house and knocked. The record is silent as to whether Worley entered the house. Worley and another white male were later seen driving off in a green Baracuda. At Bacon Park, Worley got out of the Baracuda carrying a brown paper bag. The Baracuda returned to 1728. The possession and transfer of this firearm forms the basis for Counts II and IV of the indictment.

The ATF agents secured search warrants on July 20, 1978, and searched the house at 1728 Seiferts Drive and the green Baracuda. Immediately after the agents entered the house, Mr. Taylor was read his Miranda rights and placed under arrest. Several guns were found inside the house, including a A.M.T. .45 caliber semi-automatic pistol, a .22 caliber Stoeger, Luger model semi-automatic pistol, a .9 millimeter caliber Walther model P-38 semi-automatic pistol, a .22 magnum caliber high standard Derringer, a Japanese 7.7 millimeter type 97 machine gun and a .22 caliber bolt action sawed-off rifle of unknown brand. In addition, the agents found numerous pamphlets and manuals concerning weapons. Following the search of the house, Mr. Taylor was transported to Cape Girardeau, Missouri. The possession of these weapons forms the basis for Counts VII, VIII, IX, X and XI of the indictment.

At no time during any of the transactions did Clifford Worley refer to his supplier by name. However, Worley did indicate on June 29 that the driver of the green Baracuda was his supplier. As stated in the affidavit for the search warrant:

During their discussion, Worley told Special Agent Herbert that the three handguns were "very hot." Worley also told Special Agent Herbert that the man that dropped him at the entrance to the park was "his main man," that he was the individual who supplied the "machine guns," that he (Herbert) had previously purchased, that he is the individual that orders parts to make the "machine guns," and that he is probably the "biggest gun dealer" in Poplar Bluff, Missouri.

In this appeal James Taylor asserts that the trial court committed several prejudicial errors, each of which will be discussed in turn.

As his first assignment of error, the appellant challenges the trial court's failure to grant his motion to suppress the evidence obtained pursuant to the search warrant. The trial court, following a hearing on the motion to suppress, denied the motion and evidence was later offered and received during trial over the defendant's objection. The firearms seized comprised the sole and only basis for the convictions under Counts VII, VIII, IX, X and XI.

In our view the affidavit in question was defective and fatally so. (The affidavit in its entirety appears as an appendix to this opinion.) There is no question that the affidavit is long and detailed. It meticulously recites many minute and rather obscure facts developed in the investigation of the defendant. At first blush, the affidavit seems to be ample and constitutionally sound to show probable cause that firearms were present inside the house at 1728. However, on close scrutiny, the affidavit bears a fatal flaw. Nowhere in the affidavit is it set forth that the surveilling officer saw Worley on any occasion enter the house at 1728 or exit the premises. Nowhere in the affidavit is it set forth that the surveilling officers observed the defendant on any occasion either entering or exiting said house. In regard to the surveillance on June 29, 1978, the most that can be said is that the affidavit discloses that "Worley got out of the vehicle (and) he was observed Walking toward the southwest corner of the residence." (Emphasis supplied.) Some time later, Worley was observed, along with another unknown white male, getting into the green Baracuda parked in the driveway at 1728. Therefore, at that point, it was a conclusion, based on mere suspicion of the surveilling agents, that the house in question contained the firearms. Consequently, the official who issued the warrant relied on that same conclusion.

In regard to the surveillance on July 13, 1978, the most that can be said from the affidavit is that the surveilling agent observed Worley walk To the entrance of the residence and knock. From that point on, the affidavit is completely silent as to whether Worley actually entered the residence and silent as to whether he ever exited said house. Following the observation of Worley walking to the entrance of the residence, the affidavit states that Worley and another white male, believed to be James Taylor, were seen riding in the same green Baracuda. Again, we have a conclusion based on mere suspicion that either Worley or the defendant actually entered or exited the house in question.

We recognize that the affidavit need only establish the probability of criminal activity and the concealment of evidence on specific premises. Proof beyond a reasonable doubt is not required. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Jones, 545 F.2d 1112 (8th Cir. 1976). However, it is elementary that the magistrate or other official who issues a search warrant on the basis of an affidavit cannot rely on facts set forth in the affidavit which raise a mere suspicion or conclusion which he equates to a proper finding of probable cause. Gillespie v. United States, 368 F.2d 1, 4 (8th Cir. 1966). The affidavit here falls short of the standards set forth in Draper, supra, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and other Supreme Court deci...