United States v. Arms, 18243.
Decision Date | 05 April 1968 |
Docket Number | No. 18243.,18243. |
Citation | 392 F.2d 300 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eddie Earl ARMS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Dale Quillen, Nashville, Tenn., John F. Dugger, Morristown, Tenn., on brief, for appellant.
John H. Cary, Asst. U. S. Atty., Knoxville, Tenn., J. H. Reddy, U. S. Atty., Knoxville, Tenn., on brief, for appellee.
Before O'SULLIVAN and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
This is an appeal from conviction of possession of non-taxpaid whiskey. The only question presented is whether the affidavit for the search warrant which was authorized to be and was in fact executed at night was "positive that the property was in the place to be searched."1
The pertinent part of the affidavit, made by a special investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service, is as follows:
The contention that the affiant's knowledge must be personal has been answered in this circuit in United States v. Plemmons, 336 F.2d 731 (1964) where the sufficiency of an affidavit for a night search was upheld even though it contained hearsay from an identified investigator.
Rule 41(c) does not require the magistrate to find positively that the property is in the place to be searched, but that the affidavit discloses sufficient facts to warrant the affiant in asserting a positive belief. Such facts...
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