United States ex rel. Rigsbee v. Parkinson, Civ. 75-4072.

• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
• Writing for the Court: NICHOL
• Citation: 407 F. Supp. 1019
• Parties: UNITED STATES of America ex rel. William Alton RIGSBEE, Jr., Petitioner, v. J. D. PARKINSON, Warden, South Dakota Penitentiary, Sioux Falls, South Dakota, Respondent.
• Docket Number: No. Civ. 75-4072.,Civ. 75-4072.
• Decision Date: 19 February 1976

407 F. Supp. 1019

UNITED STATES of America ex rel. William Alton RIGSBEE, Jr., Petitioner,
v.
J. D. PARKINSON, Warden, South Dakota Penitentiary, Sioux Falls, South Dakota, Respondent.

No. Civ. 75-4072.

United States District Court, D. South Dakota, S. D.

February 19, 1976.

407 F. Supp. 1020

COPYRIGHT MATERIAL OMITTED

407 F. Supp. 1021

Keith Strange, Sioux Falls, S. D., for petitioner

Marc Weber Tobias, Asst. Atty. Gen., Pierre, S. D., for respondent.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Petitioner has applied for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 (1970). He presently is confined in the South Dakota Penitentiary by order of the Circuit Court, Third Judicial Circuit, Codington County, South Dakota. A sentence of two years was imposed upon his conviction of possession of marijuana in an amount greater than one ounce.

The circumstances leading to this petition may be briefly summarized. Officer Durham of the Watertown police department received a telephone tip from a confidential informant between 5:00 and 5:30 p. m. on March 16, 1973. The information imparted included (1) that Petitioner had marijuana or a controlled substance in his vehicle, and (2) that Petitioner normally went to the Club 20 between 6:20 and 7:00 p. m. (Suppression Hearing transcript p. 36). Officer Durham also testified ". . . and I had received information that he had been selling out there." Acting on this tip, Officer Durham and Officer Witt undertook surveillance of Petitioner's house. They observed Petitioner leaving his house at approximately 7:10 p. m. After following Petitioner a short distance, the officers observed Petitioner turning onto Highway 20 away from the direction of Club 20.¹ It was at this time that the

407 F. Supp. 1022

officers stopped Petitioner and informed him that there was information which led them to believe that he had marijuana in his vehicle. When asked by Officer Durham if he would consent to a search of his car, Petitioner refused. Officer Durham then advised Petitioner that unless he consented to a search, a search warrant would have to be obtained. Petitioner was then placed in the police vehicle, advised of his "Miranda" rights, and again asked if he would consent to a search of the vehicle. Petitioner again refused and he was subsequently transported to the police station. Petitioner's vehicle was driven to the police station by Officer Durham and parked in the police garage. The evidence is conflicting as to what next transpired at the police station. Officer Durham testified that as Petitioner was exiting from the police car he stated, "You don't need a search warrant, I will get the stuff for you." Petitioner testified that he was taken to an interrogation room and asked to consent to a search of his vehicle and told that "if you don't get the stuff for us, we will get a search warrant and tear your car apart looking for it." Regardless of which version is true, Petitioner was permitted to reach into the glove compartment of his vehicle where he retrieved three bags of "stuff". Following additional questioning Petitioner advised the officers that another bag was located in the rear compartment of the vehicle. This bag was retrieved from the vehicle without Petitioner's assistance, according to Petitioner. Officer Durham testified that the Petitioner also retrieved this bag of "stuff"

A motion to suppress the evidence found in the four bags was denied at a suppression hearing held before trial. Petitioner was convicted in a trial without a jury and the conviction and sentence were affirmed by the South Dakota Supreme Court. State v. Rigsbee, S.D., 233 N.W.2d 312 (1975).

I. NO PROBABLE CAUSE TO ARREST.

Petitioner alleges that the officers had insufficient probable cause to arrest and subsequently search his vehicle. The standard to be applied to the issue of probable cause was enunciated in United States v. Peep, 490 F.2d 903, 906-907 (8th Cir. 1974), and expressly reaffirmed in Kelley v. Swenson, 510 F.2d 264, 266 (8th Cir. 1975).

We assess probable cause in terms of the eyes of a reasonably cautious and prudent peace officer in the circumstances of the moment. . . . Probable cause to arrest depends "upon whether, at the moment the arrest was made, * * * the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). . . . And in making this assessment we do not isolate for independent analysis each factual circumstance, but rather we view the action of the arresting officers on the basis of the cumulative effect of such facts in the totality of the circumstances. . . . (Citations omitted.)

The facts and circumstances within the knowledge of Officers Durham and Witt were the product of a confidential tip from an unidentified informant. The standard for establishing the trustworthiness of an informer's tip was laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States,

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376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 was "credible" or his information "reliable." 378 U.S. at 114, 84 S.Ct. at 1514 (emphasis added).

This standard has been used to determine if probable cause existed where there was an arrest without a warrant based upon information supplied to a police officer by a confidential informant. Whitely v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); United States v. Regan, 525 F.2d 1121 (8th Cir. 1975).

Applying the Aguilar test to the present case, this Court must examine the sufficiency of the showing made at the suppression hearing of (1) the underlying circumstances showing the credibility of the informer or the reliability of his information, and (2) the underlying circumstances from which the informer reached the conclusions he conveyed in the tip. This Court concludes that the first prong was met. Officer Durham testified that the informant had furnished information to him on previous occasions and that the information had been reliable. The fact that an informant has given previously accurate information may be a sufficient test of his reliability. United States v. Cummings, 507 F.2d 324, 328 (8th Cir. 1974), rehearing denied Dec. 18, 1974. The second prong of Aguilar was not met because Officer Durham revealed nothing that would indicate the basis for the informer's conclusion that Petitioner had marijuana or a controlled substance in his vehicle. The information conveyed to Officer Durham amounted to a bald conclusion of the informant wholly lacking any detail as to the manner in which the information was gathered. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Even though a tip is found inadequate under the standard laid down in Aguilar, the information may be sufficient to establish probable cause if it is sufficiently detailed, or sufficiently corroborated, to supply as much trustworthiness as does the test in Aguilar. Spinelli 393 U.S. 410 at 415-417, 89 S.Ct. at 588; United States v. Marihart, 472 F.2d 809, 813 (8th Cir. 1972).

In the absence of a statement detailing the manner in which the information was gathered, 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.

The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark. Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.

In Draper, an informant had reported that the accused had recently taken up abode at a stated address and was peddling narcotics to several addicts. Four days later, the informant told the agent that Draper had gone to Chicago, that he was going to bring back three ounces of heroin, and that he would return to Denver by train on the morning of either the 8th or 9th of September. The informant also gave a detailed description of Draper's physical appearance and the clothing he was wearing, said that Draper would be carrying a tan zipper bag and that Draper habitually walked "real fast." On the morning of the 9th, the agent arrested Draper without a warrant. Justice Whittaker, writing for the majority, commented on the corroboration of such detailed information.

And when, in pursuing that information, he (drug agent) saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford (informant) had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a "fast" pace toward the station exit, Marsh (drug agent) had personally verified every facet of the information given him by Hereford

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except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had "reasonable grounds" to believe that the remaining unverified bit of Hereford's information —

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