United States v. Freeman

• Decision Date: 07 April 1966
• Docket Number: Docket 29826.,No. 233,233
• Citation: 358 F.2d 459
• Parties: UNITED STATES of America, Appellee, v. Robert Sinclair FREEMAN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

358 F.2d 459 (1966)

UNITED STATES of America, Appellee, v. Robert Sinclair FREEMAN, Appellant.

No. 233, Docket 29826.

United States Court of Appeals Second Circuit.

Argued January 24, 1966.

Decided April 7, 1966.

Frank M. Tuerkheimer, Asst. U. S. Atty. for Southern District of New York (Robert M. Morgenthau, U. S. Atty., and Daniel R. Murdock, Asst. U. S. Atty., on the brief), for appellee.

Theodore Krieger, New York City, for appellant.

Before FRIENDLY and HAYS, Circuit Judges, and DOOLING, District Judge.^*

HAYS, Circuit Judge:

Appellant Freeman was indicted for unlawfully receiving, concealing, and facilitating the transportation and concealment of narcotic drugs, heroin and cocaine, in violation of 21 U.S.C. §§ 173 and 174. Judge Tenney, sitting without a jury, found Freeman guilty of the charge, insofar as it related to liquid cocaine.¹ On Freeman's appeal, we are presented with a difficult question concerning the constitutional requirements for obtaining a search warrant.

Prior to trial appellant moved, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure² to suppress the evidence, i. e. the narcotic drugs, seized by Federal agents, under the authority of a search warrant, at the time of arrest. Appellant argued that the "warrant was invalid because the affidavit on the strength of which it was issued failed to make a sufficient showing of probable cause." The motion was denied and appellant claims that this ruling was erroneous.

In January 1963, an informant told Agent Benjamin of the narcotics bureau that a man named Spooner and his partner, appellant Freeman, were selling large quantities of narcotics. The informant said that Spooner either lived or worked at 246 West 18th Street in New York City. Benjamin investigated and discovered that Spooner worked as a superintendent at 246 West 18th Street, and lived at 166 West 129th Street.

In early March 1963, Benjamin asked the informant to try to learn where Spooner and his partner kept their narcotics. On March 11, 1963, the informant told Benjamin that he had seen Spooner and the appellant "bagging up narcotics" on a bed in the apartment, previously found to have been Spooner's residence, at 166 West 129th Street.

The informant had been working with the narcotics bureau since 1958 and with Agent Benjamin for about a year. During this time he had provided Benjamin with information leading to eight prosecutions. On the basis of the informant's past activities, Benjamin and other federal agents considered him "reliable."

On March 13, 1963 Benjamin, in support of his application for a search warrant, submitted the following affidavit to a United States Commissioner:

"The facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: The heroin was seen within the premises on this date by an informant of previous reliability. On March 11, 1963, and March 12, 1963, the occupant of the premises was observed in meeting with known addicts and the aforesaid informant saw him transfer narcotics to known addicts."

The warrant was issued. The evidence which appellant moved to suppress was obtained during the search made pursuant to the warrant.

Appellant attacks the warrant on the ground that the affidavit of Agent Benjamin presented an insufficient basis to justify the Commissioner's determination that there was probable cause for the issuance of the warrant. The affidavit was not made upon personal knowledge and did "not contain any factual information independently corroborative of the hearsay contained therein."

The Fourth Amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Amendment's admonition against unreasonable searches and seizures is reflected in Rule 41(c) of the Federal Rules of Criminal Procedure, which provides:

"Issuance and Contents. 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 identifying the property and naming or describing the person or place to be searched. * * *"

There would be no doubt of the sufficiency of the affidavit if it were based on the personal observations of the affiant.³ The question as to the sufficiency of Agent Benjamin's affidavit arises from its being based on hearsay. The Supreme Court has held that an affidavit though based on hearsay is sufficient "so long as a substantial basis for crediting the hearsay is presented." Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). The issue for decision is whether or not the statement that the source of the hearsay was an "informant of previous reliability" offered such a "substantial basis."

The standard to be used in reaching a determination must not be so stringent nor so technical as to discourage the use of search warrants, since "the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers * * * who may happen to make arrests." United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877 (1932).

"If the teachings of the Court\'s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." (Emphasis added.) United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

When a search is based upon a judge's or commissioner's, rather than a police officer's, determination of probable cause, a reviewing court will accept evidence of a less "judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant." Jones v. United States, supra, 362 U.S. at 270, 80 S.Ct. at 736. See Aguilar v. State of Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

On the other hand, it is of critical importance that the judge or commissioner be provided with sufficient information to enable him to make a considered judicial determination as to whether the warrant should be issued. The proper performance of this function requires an affidavit which presents facts on which a finding of probable cause can reasonably be predicated. "Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. State of Texas, supra, 378 U.S. at 111, 84 S.Ct. at 1512; see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

In Jones v. United States, supra, the affiant stated that he believed an informant's statements because the informant had "given information to the undersigned on previous occasion and which was correct." The issue presented was "whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another." Id. 362 U.S. at 269, 80 S.Ct. at 735. In upholding the warrant the Court recognized that had the hearsay statement itself been the sole offering,

"it might not have been enough; but the agent * * * swore to a basis for accepting the informant\'s story. The informant had previously given accurate information." Id. 362 U.S. at 271, 80 S.Ct. at 736.

The Court concluded that "we cannot say that there was so little basis for accepting the hearsay here that the Commissioner acted improperly." Id. 362 U.S. at 271, 80 S.Ct. at 736.

It is true that in the Jones case the informant's story was corroborated by other sources of information, and in United States v. Ramirez, 279 F.2d 712, 715 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960) it was suggested that "Jones may require that the affidavit include some factual information independently corroborative of the hearsay report." We believe, however, that United States v. Ventresca, supra, Aguilar v. State of Texas, supra and Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), establish that such corroboration is not required where the affiant attests to the...