United States v. Chavez

• Decision Date: 01 August 1973
• Docket Number: No. 72-3726.,72-3726.
• Citation: 482 F.2d 1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo CHAVEZ et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 1268 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo CHAVEZ et al., Defendants-Appellants.

No. 72-3726.

United States Court of Appeals, Fifth Circuit.

August 1, 1973.

John L. Fashing, El Paso, Tex., on appeal for defendants-appellants.

Victor Arditti, El Paso, Tex., (Court-appointed) for Chavez.

Paul C. Moreno, El Paso, Tex., (Court-appointed) for Barraza-Acevedo.

Larry Victorson, El Paso, Tex., (Court-appointed) for Campos.

Joseph A. Calamia (Court-appointed), John L. Fashing, El Paso, Tex., for Escobedo.

William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, El Paso, Tex., Asst. U. S. Atty., for plaintiff-appellee.

Before WISDOM, GEWIN and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

This case concerns the sufficiency of an affidavit to support the issuance of a search warrant. The four defendants were convicted of possessing, with intent to distribute, marijuana, a schedule I controlled substance, in violation of 21 U.S.C. § 841 (a) (1). Customs agents found 526 pounds of marijuana during a search of defendant Jose Barraza-Acevedo's residence. The four defendants rest their appeal primarily on the ground that the affidavit on which the warrant authorizing this search was based was insufficient to show probable cause to search defendant Barraza-Acevedo's home. We agree that the affidavit was insufficient, and accordingly we reverse the convictions of the four defendants.

Some time on or before July 27, 1972, Agent Herbert P. Hailes of the U. S. Customs Agency had a conversation with a confidential informant which led him to place Barraza-Acevedo's residence at 7501 Acapulco Avenue in El Paso, Texas, under surveillance. On July 28, Agent Hailes obtained a warrant from a federal magistrate to search the premises at that address. This warrant was never executed, and was returned three days after it was issued. On the day following its return, August 1, Hailes had a second conversation with the informant. After this conversation, the federal agents sought and were issued a second search warrant for Barraza-Acevedo's residence. The affidavit for this warrant was sworn to by Special Agent Phillip DeHoyos of the Customs Agency. It alleged grounds for believing there was cause to search as follows:

Information received from a confidential source of proven reliability. The source of the information, stated below, previously has furnished information on four occasions and pursuant to the information furnished by the source, large quantities of Schedule I controlled substances were seized by law enforcement officers. As a result of the information furnished by the source on the previous occasions mentioned above, warrants of arrest for six defendants were issued by competent courts of jurisdiction. The source of the information, stated below, is familiar with traffickers in controlled substances within the El Paso area. The source of information has informed the affiant that a large quantity of a Schedule I controlled substance, namely marijuana, will be moved from the premises of 7507 Acapulco Avenue, El Paso, Texas, within the next twenty-four hours.

After the second warrant was issued, the agents placed the house under renewed surveillance. Then, at about 2:30 p. m. that same day, Hailes and DeHoyos, accompanied by at least seven other customs agents, went to 7507 Acapulco to execute the warrant. When the agents entered the house, they found five men—Ricardo Chavez, Ricardo Escobedo, Jose Barraza-Acevedo, Ignacio Campos, and Manuel Reyes—in the living room of the home.¹ They found 224 bricks of marijuana in the kitchen, two bricks in a storage room, and four more in a bedroom. In the course of their search they discovered and seized a number of other incriminating items later introduced into evidence at the trial. These included two fully loaded pistols and a fully loaded revolver, two marijuana roaches and one marijuana cigarette, a crumpled dollar bill in which a quarter gram of cocaine was wrapped, some cigarette wrapping paper, and a weighing scale.

After their indictment each of the five defendants filed a motion to suppress the evidence seized during the August 1 search. The trial judge denied these motions. The case was tried on Thursday, October 26. On October 30, the jury, after a day and a half of deliberation, returned with verdicts of guilty for the four defendants who are appealing here. The jury reported that it could not reach a verdict on the fifth defendant, Manuel Reyes. The four convicted defendants were sentenced on November 29.

The sole issue we need decide on this appeal is the sufficiency of Agent DeHoyos' affidavit. In a similar case, Chief Justice Burger has described the issue as "the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate," United States v. Harris, 1971, 403 U.S. 573, 575, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723, 729 (Burger, C. J., announcing judgment of the Court). To decide this case we look to three cases in which that "recurring question" was presented to the United States Supreme Court in the last decade.

Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is the first and most important of the three decisions. The affidavit in that case had recited merely that "Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates, and other narcotics . . . are being kept at the above described premises." 378 U.S. at 109, 84 S.Ct. at 1511. In holding this affidavit insufficient to support a magistrate's finding probable cause, the Court established what has become the basic standard for determining when a search warrant may issue on information received from a confidential informer. The Court said:

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, citations omitted, was `credible\' or his information `reliable\'.

378 U.S. at 114, 84 S.Ct. at 1514.

This test is typically referred to as "Aguilar's two-pronged test." Spinelli v. United States, 1969, 393 U.S. 410, 413, 89 S.Ct. 584, 587, 21 L.Ed.2d 637, 642. See United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891; Gonzalez v. Beto, 5 Cir. 1970, 425 F.2d 963; United States v. Marihart, 8 Cir. 1972, 472 F.2d 809, 811; Note, The Supreme Court—1970 Term, 85 Harv.L.Rev. 40, 55 (1971). The first "prong" requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person. The second requires specific facts or circumstances tending to demonstrate that the informant, in the instance in question, had gathered his information in a reliable manner. The theory underlying these twin requirements is that they are dictated by the long-standing principle that determinations of probable cause are to be made by "neutral and detached magistrates," rather than by "officers engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 2 L.Ed. 436, 440.² If a magistrate accepted an affidavit which did not meet the first prong of the test, the theory went, he would abandon to the officer his constitutional function of making an independent determination; for his determination would then be entirely dependent upon the officer's judgment of the informant's credibility. Similarly, if he accepted an affidavit not meeting the second prong, he would abandon his function to the informant; then his determination would depend entirely upon the informant's judgment about the facts of the case. See Aguilar v. Texas, 1964, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Harris, 403 U.S. 573, 590-591, 91 S.Ct. 2075, 2084, 29 L.Ed.2d 723, 738 (Harlan, J., dissenting).

This test was reaffirmed five years after Aguilar in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Spinelli involved the reversal of a conviction for travelling interstate with the intention of conducting gambling activities which violated state law. The description of the informant's tip was a bald statement that a confidential informant had told police that gambling paraphernalia would be found in the premises to be searched. That statement was of course no more detailed or illuminating than the one held inadequate in Aguilar. But the affidavit had detailed other supposedly corroborating information gathered by the independent investigative efforts of the police. The Court ruled that the tip, though in itself insufficient under Aguilar to constitute probable cause, might be assessed along with other allegations in the affidavit in evaluating the magistrate's finding. But it held that in the case before it there was nothing in the other parts of the application "which would permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed," 393 U.S. at 418, 89 S.Ct. at 590, and so struck down the defendant's conviction. The aspect of Spinelli most significant for our purposes is the stress it laid on the second prong of the Aguilar test, the requirement of details concerning the way the informant gathers his information. Justice Harlan's opinion for the Court suggested that this prong was if anything more important than the first. Justice Harlan repeatedly emphasized the need for the affidavit to provide either "a statement detailing the manner in which the information was gathered," or, failing that, a ...