U.S. v. Williams

• Citation: 605 F.2d 495
• Decision Date: 29 October 1979
• Docket Number: No. 78-1229,78-1229
• Parties: UNITED STATES of America, Appellee, v. Matthew WILLIAMS, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 495

605 F.2d 495

UNITED STATES of America, Appellee, v. Matthew WILLIAMS, Jr., Appellant.

No. 78-1229.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 16, 1979.

Decided July 17, 1979.

Rehearing Denied Aug. 20, 1979.

Certiorari Denied Oct. 29, 1979. See 100 S.Ct. 276.

Scott H. Robinson, of Gerash & Springer, Denver, Colo., for appellant.

Donald M. Hoerl, Asst. U. S. Atty., Denver, Colo., (Joseph F. Dolan, U. S. Atty., Denver, Colo., with him on the brief), for appellee.

Before SETH, Chief Judge, and McWILLIAMS and DOYLE, Circuit Judges.

SETH, Chief Judge.

Matthew Williams, Jr. was convicted of robbing a branch of the Denver Midland Federal Savings and Loan Company in violation of 18 U.S.C. § 2113(d). He has taken this appeal and raises four reasons for a reversal.

Defendant urges that testimony as to photo identifications by the defendant's stepchildren was the fruit of an illegal search; that in-court identifications by two witnesses were impermissible because of pretrial suggestive confrontation; that rebuttal testimony by a Government witness was collateral; and that several witnesses discussed their testimony in violation of the trial court's sequestration instruction. Each issue was raised by motion before the trial court and evidentiary hearings were held on each motion except that concerning the rebuttal testimony.

We have reviewed the record, and must conclude that the trial judge did not commit prejudicial error, nor abuse his discretion.

At the time of the robbery, several customers, tellers, and the branch manager were present. They described the robber as a black, about 5'10 , fairly young, slender, and wearing a nylon stocking mask with a fishing type hat that had a colored band around the brim. A surveillance camera recorded the event. The developed photos showed a man generally fitting the witnesses' descriptions. The following day FBI agents arrested three men in Las Vegas who were in possession of some of the traveler's checks taken at the robbery.

Matthew Williams became a suspect shortly thereafter on an informant's tip. Also, the defendant appeared in several surveillance photos taken at another bank wearing a hat similar to the one worn by the robber. FBI agents obtained a search warrant for the defendant's house to locate bait money, the clothes worn by the robber, and a gun. Two of the defendant's stepchildren were present at the house during the search. The agents testified that the children identified the defendant from the surveillance photos taken during the robbery. Matthew Williams was arrested seven months later.

The Government's case thus rested solely on identifications as the Government did not offer any other evidence linking defendant to the crime. Four bank employees identified him as the robber. The defendant took the stand and denied robbing the branch.

Prior to trial, the defendant moved to suppress the testimony relating to the children's identification of the surveillance photos. This was denied, and the agents testified that the children identified defendant from the photos. The defendant here argues that the affidavit in support of the search warrant is insufficient under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; that the search was thus illegal, and urges that the testimony as to the stepchildren's identification was inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Thus the admissibility of this testimony is argued on the issue of whether the search was valid, and thus on whether the affidavit supporting the warrant was sufficient. We will consider the matter in the same context since the parties have so presented it. The defendant states in his brief that the situation at the house was coercive of the children. The trial court found otherwise and we have no reason to disagree.

Probable cause for a search warrant is nothing more than a reasonable belief that the evidence sought is located at the place indicated by the law enforcement officer's affidavit. Affidavits, therefore, must be viewed with common sense and not subjected to hypertechnical scrutiny. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; United States v. Haala, 532 F.2d 1324 (10th Cir.); United States v. Neal, 500 F.2d 305 (10th Cir.). Accordingly, the affidavit must set forth facts and circumstances within the officer's knowledge supported by reasonably trustworthy information from which a magistrate may reasonably conclude the items sought are connected to the crime and located at the place indicated. Confidential informants are obviously important sources of information in many instances, and their identity cannot be disclosed. Thus Aguilar requires an indication of the informant's reliability and the circumstances supporting the informant's tip. If this information is insufficient, then Spinelli permits the magistrate to consider other facts and circumstances which corroborate the informant's tip. In this way, "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, 393 U.S. at 416, 89 S.Ct. at 589; United States v. Sherman, 576 F.2d 292 (10th Cir.); United States v. McCoy, 478 F.2d 176 (10th Cir.).

The affidavit in question is clearly sufficient under these standards. The search was to be at a particular place for items of clothing identified from the surveillance photo, a gun, and stolen traveler's checks, and bait money. The affidavit also explained the affiant's independent verification that Matthew Williams lived at the designated address. One, or possibly two, informants provided information linking the defendant to the items sought. An informant was personally acquainted with the defendant, knew where he lived, and allegedly saw an identical hat and handgun at the defendant's house. The affiant independently verified that the defendant lived at that address. Past reliability is alleged, and corroborating information supports the informant's tip. Probable cause was presented by the affidavit. The warrant was valid and the search was legal. The identification testimony was admissible.

The defendant maintains that two in-court identifications were inadmissible because of suggestive pretrial confrontation. This concerns the identification testimony by two bank employees who observed the defendant at the pretrial suppression hearing. The pretrial hearing was concerned with whether an in-court identification would be proper. The two employees were not asked to identify the defendant at this hearing. The...