United States v. Berry

• Decision Date: 13 March 1970
• Docket Number: No. 520-69.,520-69.
• Citation: 423 F.2d 142
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Alvin BERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

423 F.2d 142 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Danny Alvin BERRY, Defendant-Appellant.

No. 520-69.

United States Court of Appeals, Tenth Circuit.

March 13, 1970.

John E. Green, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for appellee.

Max Moulton, Oklahoma City, Okl. (Don Winfrey, Oklahoma City, Okl., on the brief), for appellant.

Before BREITENSTEIN, SETH and HOLLOWAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The jury found defendant-appellant Berry guilty of violating 26 U.S.C. § 5861, unlawful possession of a firearm made in violation of 26 U.S.C. § 5822. He appeals from the sentence imposed.

Defendant was arrested by state officers and the car which he was driving was taken to the police headquarters. It was then locked and was not opened until the time of the search. A search warrant for the car had been issued before defendant's arrest and was executed about two hours after the arrest. Upon opening the trunk of the car, the searching officers saw a sawed-off shotgun which was plainly visible.

The government's proof was that the gun was found in defendant's car, that it was a firearm within the meaning of 26 U.S.C. § 5845(a), that no tax had been paid, and that no application of intention to make the firearm had been submitted as required by law. The only witness for the defendant was his wife, who testified that others than the defendant occasionally drove the car in which the gun was found. A pre-trial motion to suppress the evidence found in the car search was denied. Appropriate objections to the receipt of the gun in evidence were overruled.

The defendant claims that the affidavits submitted in support of the request for a state search warrant failed to show probable cause for the issuance of the warrant. Affiant Wayne Ross Connell swore that he, the defendant, and others had committed two burglaries; that defendant had told him that defendant's share of the loot was at specified locations; that defendant had told him that defendant had stolen a coin collection from an automobile and hidden it at a certain place; and that "merchandise from all the above burglaries is hauled in automobiles belonging to Danny Berry the defendant and Robert Copeland."

The affidavit of the county sheriff stated that the defendant was the owner of the described automobile; that the affiant was investigating certain identified burglaries; and that the property taken in the burglaries included listed items. The search warrant was issued by a state judge. It specifically described the items for which the search was to be made and did not include the sawed-off shotgun. The sheriff executed the search warrant in the presence of two other officers. None of the property listed in the warrant was found in the car. When they opened the trunk, the officers saw what they recognized as a sawed-off shotgun on the floor of the trunk and seized it.

The defendant argues that the affidavits show no probable cause for the issuance of the warrant. This is not a case like Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, where the supporting affidavit was based on assertedly reliable information from unidentified persons who were sworn to be credible. Also it differs from Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, where no underlying circumstances were shown to support the conclusion that the informant was reliable or to support the informant's conclusion of criminal activity. Here, the burglaries and the identification of the defendant as the owner of the car were established by the sheriff. He was supported by the affidavit of an admitted accomplice who detailed two burglaries in which he had participated, described the loot generally, swore that he had seen some of the stolen items at a certain location, and stated that the stolen merchandise "is hauled in automobiles" belonging to the defendant and another participant. Nothing was left to casual rumor, general reputation, or speculation.

Probable cause is something more than suspicion. Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479, and something less than evidence which would sustain a conviction, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134. Probable cause is concerned with probabilities, "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.

Affidavits for search...