United States v. Anderson

• Decision Date: 20 December 1971
• Docket Number: No. 71-1646,71-1647.,71-1646
• Citation: 453 F.2d 174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas ANDERSON (aka Workman), Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Samuel LOVING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

453 F.2d 174 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas ANDERSON (aka Workman), Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Samuel LOVING, Defendant-Appellant.

Nos. 71-1646, 71-1647.

United States Court of Appeals, Ninth Circuit.

December 20, 1971.

Noel K. Dessaint (argued), of Harrison, Myers & Singer, Phoenix, Ariz., for Thomas Anderson.

Tom O'Toole (argued), Asst. Federal Public Defender, Tom Karas, Federal Public Defender, Phoenix, Ariz., for Samuel Loving.

Joseph Jenckes, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and WHELAN,^* District Judge.

CHOY, Circuit Judge:

This case poses an important problem in the evaluation of affidavits to determine probable cause for issuance of search warrants under the Fourth Amendment.¹ We hold that all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath. In so holding, we reverse the convictions of Thomas Anderson and Samuel L. Loving for theft of United States mail in violation of 18 U.S.C. § 1708.

On November 23, 1970 two post office stations in Phoenix, Arizona reported mail missing from mail trucks which had been standing unattended in the post office yards. In each case, witnesses reported seeing a negro male in a green Chevrolet with the license number MFK-012 in the yard before the theft was discovered. Anderson and a woman companion were arrested while driving this car later in the day.

The postal inspectors sought a warrant to search Room 165 at the Caravan Inn in Phoenix. While conceding that the affidavit given to the Commissioner fails to establish probable cause for the issuance of the search warrant,² the Government contends that other oral information given to the Commissioner by the affiant postal inspector prior to the latter's swearing to the insufficient affidavit provided the deficient elements necessary for probable cause. The inspector had told the Commissioner that the same person who had rented the green Chevrolet had rented Room 165, and that a motel maid had seen a Negro male, about six feet tall, wearing a shiny black jacket or vest in the room, which description fitted the driver of the Chevrolet.

Using the warrant, the postal inspectors searched Room 165, where they found and arrested Loving, and discovered mail trays and loose mail hidden under a bed and more loose mail secreted under the covers of another bed and in a pink suitcase. The inspectors also seized several plane tickets and clothes, too small to be Loving's. Largely on the basis of this evidence, the jury returned a verdict of guilty against both Anderson and Loving.

The warrant to search Room 165 was issued pursuant to Fed.R.Crim.P. 41(c), which states,

"A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant . . ." (emphasis added)

The Fourth Amendment and Rule 41(c) demand that all facts establishing probable cause be presented to the federal warrant-issuing official so that he may adequately perform his impartial function of determining probable cause upon a consideration of all facts. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The scope of judicial review of the validity of a warrant is equally narrow. "It is elementary that in passing on the validity of a warrant, the reviewing court map consider only information brought to the magistrate's attention." Aguilar, supra, at 109, n. 1, 84 S.Ct. at 1511. (emphasis in original). Thus, information known to the affiant which is not presented to the issuing officer is irrelevant to a determination of probable cause. See Durham v. United States, 403 F.2d 190, 194, n. 5 (9th Cir. 1968). As long ago as 1932, we held that a search warrant which was defective for lack of the time of observation could not be cured by oral testimony dehors the affidavit. Poldo v. United States, 55 F. 2d 866 (9th Cir. 1932). Quoting United States v. Casino, 286 F. 976 (S.D.N.Y. 1923), we said,

"The authorities are clear that the affidavit must be self-sufficient, and cannot be bolstered up by oral testimony . . . `It is not material that the other evidence is absent, which was before the commissioner and which may have induced him to deny quashal of the warrant. While under section 16 he must decide after hearing whether on all the facts there were reasonable grounds for the warrant, that does not dispense with the necessity for allegations in the affidavits themselves, which, if true, show a self-subsisting ground for the issuance of the warrant . . . Hence, if those allegations on their face be inadequate, the warrant can by no possibility be legal.\'" Poldo, supra, 55 F.2d at 868, quoting Casino, supra, 286 F. at 978. (emphasis omitted).

In reaffirming this "four corners" approach, we join those other federal courts which recognize that under Rule 41(c) the written affidavit presented to the federal issuing officer and to the reviewing court must alone establish that probable cause exists.³

The present case illustrates the dangers inherent in allowing a commissioner to base his determination of probable cause on oral statements not embodied in the affidavit. There is considerable confusion here as to what exactly happened at the meeting with Commissioner Van Doren.⁴ Postal Inspector Deyo testified that he believed he was under oath during the entire conference, while the Commissioner testified that he did not administer any oath until the affidavit was signed. Thus, the oath, when finally administered, covered only the truthfulness of the statements contained in the written affidavit and not the oral statements given to the Commissioner.⁵

It is clear that there was adequate time to include the oral statements in the written affidavit. While the inspector talked to the Commissioner, the Commissioner's wife (herself a commissioner) took down the affidavit in long-hand. The inspector read the rough draft, approved it, and it was typed. The inspector then took the oath, read the affidavit again, and signed it. The entire process of obtaining the warrants for the car and the room took more than 30 minutes, with 20 to 25 minutes required to xerox the affidavit. All the participants knew, especially the postal inspector who read the affidavit three times, that the affidavit did not include the inspector's entire statement. Although there was some need for speed, there was adequate time to correct and enlarge the affidavit. This was not done. Compare Naples v. Maxwell, 393 F.2d 615 (6th Cir. 1968), where the state magistrate, determining that there was not probable cause in the original affidavit, further questioned the affiant officer, and wrote additional facts which disclosed probable cause onto the affidavit.

We, therefore, reaffirm the requirement that all facts and circumstances relied upon for the issuance of a federal warrant be found in the written affidavit. This ensures that the commissioner may judge for himself the persuasiveness of the precise facts relied on to show probable cause and that the reviewing court may determine whether the constitutional requirements have been met without reliance upon faded and often confused memories. The District Court erred in denying appellants' motion to suppress the evidence seized in Room 165.⁶

We also reverse Loving's conviction because the evidence is inadequate to support a guilty verdict. In reviewing a guilty verdict, we must view all the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969). However, the evidence here does not provide a factual basis upon which a jury could base a verdict of guilty beyond a reasonable doubt.

At most the evidence introduced at trial indicated that Loving had been seen driving the green Chevrolet. He was arrested in Room 165, which was not his room. The inspectors came to the door, knocked, and announced they were from the hotel management and wished to discuss the room bill. Loving attempted to depart through a rear sliding door, where a postal inspector told him to return to the room, which he did. After the inspectors were admitted, a search of the room uncovered the mail trays, pieces of mail, and plane tickets.

All this evidence, even indulging a presumption that Loving's actions at the rear door of the room connotated flight, is not sufficient to prove Loving had possession of...