United States v. Fuller

• Decision Date: 30 April 1971
• Docket Number: No. 14205,14375 and 14358.,14205
• Citation: 441 F.2d 755
• Parties: UNITED STATES of America, Appellee, v. Arthur FULLER, Appellant. UNITED STATES of America, Appellee, v. Thomas Lynn PORTER, Appellant. UNITED STATES of America, Appellee, v. Larry SPEARS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

441 F.2d 755 (1971)

UNITED STATES of America, Appellee, v. Arthur FULLER, Appellant.

UNITED STATES of America, Appellee, v. Thomas Lynn PORTER, Appellant.

UNITED STATES of America, Appellee, v. Larry SPEARS, Appellant.

Nos. 14205, 14375 and 14358.

United States Court of Appeals, Fourth Circuit.

Argued December 11, 1970.

Decided April 30, 1971.

COPYRIGHT MATERIAL OMITTED

Kale R. Alexander, Columbia, S. C. (David A. Fedor, Columbia, S. C., on brief), for appellants in Nos. 14,357 and 14,358, William H. Mills, Birmingham, Ala., for appellant in No. 14,205.

Joseph O. Rogers, Jr., U. S. Atty. (Thomas F. Batson and D. Gene Rickenbaker, Asst. U. S. Atty., on brief), for appellee.

Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Appellants, Arthur Fuller, Thomas Lynn Porter, and Larry Spears, were indicted along with a fourth codefendant, Clyde Troulias, on two counts of violations of federal statutes prohibiting the use of interstate telephone facilities for gambling activities and a third count of conspiring together to commit the crimes charged in the substantive counts. Porter and Spears are residents of Greenville, South Carolina, and Fuller and Troulias are residents of Birmingham, Alabama. FBI investigation in both locations produced evidence tending to show that book-making operations on sporting events were being operated by Porter and Spears out of two trailers they occupied in Greenville and by Fuller and Troulias out of Fuller's home in Birmingham. There was also indication that gambling information or bets were exchanged by the four defendants via long distance telephone calls made from pay telephones in Greenville to Fuller's residence and Troulias' sister's residence in Birmingham. Simultaneous searches were made of the trailers in Greenville and Fuller's home pursuant to search warrants. After a lengthy trial, the jury acquitted Troulias and found the appellants guilty on all three counts.

I.

Appellant Fuller argues that there was an insufficient showing of probable cause for the issuance of the warrant for the search of his home in Birmingham.¹ The government contends that the written affidavit submitted by an FBI agent, coupled with oral testimony given by the agent under oath before the United States Commissioner who issued the warrant, was sufficient. Fuller argues that Rule 41(c), Fed.R.Crim.P., requires probable cause to be based solely on a written affidavit and that supplemental oral testimony is proscribed. We need not decide whether oral testimony can be used to supplement a written affidavit under Rule 41(c) since we conclude that the written affidavit alone was sufficient. The affidavit contained the following statements:²

(1) An unidentified informant, who had provided reliable information in the past, told the affiant, FBI Agent Osborne, that "Clyde Troulias was the biggest bookie in the Birmingham area"; that he was taking bets on sporting events; and that he was working with Arthur Fuller in his booking operation.

(2) Agent Osborne telephoned Clyde Troulias at his sister\'s residence and was told that he could be reached at Arthur Fuller\'s residence. Agent Osborne telephoned Arthur Fuller\'s residence and Clyde Troulias answered the phone.

(3) Agent Osborne personally observed Clyde Troulias and Arthur Fuller in the company of known gamblers. FBI records showed Clyde Troulias was convicted of a gambling offense in 1960 and arrested for bookmaking in 1967 after a raid by state officers on the residence of his sister.

(4) Agent Osborne was informed by FBI Agent Haas, who was conducting a gambling investigation in Greenville, South Carolina, that an unidentified informant, who had given Agent Haas reliable information in the past, had observed Thomas Lynn Porter and Larry Spears taking bets and giving out line information at two trailers occupied by them in Greenville. The informant also told Agent Haas that Spears and Porter were receiving line information from Birmingham.

(5) Agent Haas and other FBI agents observed Porter and Spears in five different telephone booths in Greenville at times when four calls were placed to the residence of Clyde Troulias\' sister, Annie Lou Troulias, in Birmingham and five calls were placed to the residence of Arthur Fuller in Birmingham. The four calls to the Troulias\' residence were made in November and December of 1968. The five calls to the Fuller residence were made in January and February of 1969. A survey of subpoenaed telephone records for these same five telephone booths showed 259 calls from the booths in Greenville to one of two phones at the Birmingham residence of Troulias\' sister between August 1968 and January 20, 1969. The records also showed 75 calls from the five booths to the Birmingham residence of Arthur Fuller between January 18, 1969, and February 22, 1969.

A magistrate issuing a search warrant may rely on the hearsay information provided by an unidentified informant if "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). In order to show a substantial basis for crediting the hearsay, the affidavit must pass the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The magistrate must be informed of (1) the underlying circumstances on which the affiant concludes that the informant is credible and (2) the underlying circumstances on which the informant based his conclusion that the person whose residence is to be searched is engaged in criminal activity. If the informer's tip is found inadequate under Aguilar, the magistrate may yet find probable cause to believe the tip if it can "fairly be said that the tip * * * when * * * corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).

The affidavit in this case contains information supplied by two informants, one in Greenville and one in Birmingham. The Birmingham informant's tip is not supported by the circumstances on which the informant based his conclusion that "Clyde Troulias was the biggest bookie in the Birmingham area" and thus does not meet the Aguilar tests. It must, therefore, be disregarded. The Greenville informant's tip is another matter.

The credibility of the Greenville informant is supported by a statement that he had previously given Agent Haas reliable information. We think that a magistrate is entitled to infer that an informant who has provided information in the past which has proved to be accurate will probably continue to give accurate information in the future. We also think that the report of information from one named FBI agent to another agent who is the affiant, when both are working together on a joint investigation, is inherently credible. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The Greenville informant's statement that Porter and Spears were taking bets and giving out line information was based on his personal observation, and, thus, this portion of his information meets both of the Aguilar tests. The informant's statement that Porter and Spears were receiving their line information from Birmingham is not reported as being based on his personal observation. However, we feel that the statement regarding the large volume of phone calls made from five phone booths in Greenville to the Fuller and Troulias residences plus the statement that Porter on some occasions and Spears on others were seen in the phone booths when nine of these calls were placed supports an inference that the calls were made by Porter and Spears to Troulias and Fuller in connection with Porter and Spears' gambling activities. All of the calls before January 18 were made to the residence of Annie Lou Troulias and all of the calls after January 20 were made to the residence of Arthur Fuller. This supports Agent Osborne's conclusion in the affidavit that the Birmingham end of the gambling operation was transferred from the Troulias residence to the Fuller residence about January 19, 1969. During the period of January 18, 1969, to February 22, 1969, the calls from the five Greenville phone booths to the Fuller residence in Birmingham averaged more than two a day, which suggests something other than the casual conversation of friends.

Only probability and not a prima facie showing of criminal activity is required to sustain a search warrant. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964). A reviewing court is not to substitute its judgment as to probable cause, but only to determine whether there was a substantial basis for the magistrate's determination of probable cause. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). We conclude that, based on the written affidavit alone, there was a substantial basis for the magistrate to conclude that Porter and Spears were probably engaged in gambling activity, that they were probably assisted or joined in this activity by Clyde Troulias and Arthur Fuller in Birmingham, that the link between Greenville and Birmingham was probably made by long distance phone calls, that the locus of the Birmingham end of the operation was probably shifted from the Troulias residence to the Fuller residence, and that therefore gambling paraphernalia would probably be located at the Fuller residence.

II.

During the search of Fuller's residence, two FBI agents answered two telephones located in the bedroom. The agents answered the phones for 25 minutes. The callers identified themselves by number and asked for the "line".³ The agents, who had been prepared to do so, supplied the callers with the current "line" information. Testimony of the conversations was introduced into evidence.

Fuller argues that this was a seizure of the conversations...