United States v. Geldon

• Decision Date: 25 April 1973
• Docket Number: No. 73 Cr. 197.,73 Cr. 197.
• Citation: 357 F. Supp. 735
• Parties: UNITED STATES of America, Plaintiff, v. Karl GELDON, Defendant.
• Court: U.S. District Court — Northern District of Illinois

357 F. Supp. 735

UNITED STATES of America, Plaintiff, v. Karl GELDON, Defendant.

No. 73 Cr. 197.

United States District Court, N. D. Illinois, E. D.

April 25, 1973.

James R. Thompson, U. S. Atty., Donald C. Shine, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Richard T. Sikes, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

McLAREN, District Judge.

This matter is before the Court on defendant's motions for return of property and suppression of its use as evidence and for a bill of particulars. The motions are denied.

I.

Defendant has been charged in fourteen counts for unlawfully dealing in firearms and unlawfully making, possessing and transfering specified firearms. On December 18, 1972 a search of defendant's residence was conducted and approximately twenty-six firearms and other articles were seized. A warrant had been issued by a United States Magistrate for the search of these premises.

In support of the motion for return of property and suppression of evidence, defendant contends as follows: (1) probable cause for the warrant did not exist in that the informant's reliability was not sufficiently established by the affidavit upon which the warrant was issued; (2) certain property was seized for which there was no warrant; and (3) some of the seized property was not that which was described in the warrant. Although the motion is not clear on an additional point, it appears that at defendant's preliminary hearing defense counsel questioned the government agent whose affidavit was submitted for purposes of the warrant and based on that examination defendant now contends that certain statements in the affidavit were without factual basis.

The warrant was based upon an affidavit containing hearsay evidence from an informer. In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L. Ed.2d 723 (1965), the Supreme Court stated that in order to base an affidavit on hearsay information, the magistrate must have knowledge of (1) the underlying circumstances from which the informant concluded that the sought-after goods were where he claimed they were and (2) the underlying circumstances from which the officer concluded that the informant was reliable. The instant challenge is directed at the issue of informant's reliability.

The reliability of the informant was sufficiently corroborated to sustain the instant warrant. The test is whether a substantial basis existed for crediting the hearsay testimony of the informant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed. 723 (1971); Jones v. United States, 362 U. S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Here, the affidavit recited that on three separate occasions the informant had supplied reliable information to agents of the Bureau of Narcotics and Dangerous Drugs and that on each said occasion surveillance had corroborated his information. Defendant contends that affiant did not state he had personal knowledge and that he must have relied on the statements of other agents with respect to the reliability of informants. Granted that this is hearsay, the finding of probable cause may rest on evidence not legally competent in a criminal trial (United States v. Ventresca, 380 U.S. 102, 107-108, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965); Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)), and observations of fellow officers may be recited in an affidavit and provide a reliable basis for a warrant. Ventresca, supra, 380 U.S. at 111, 85 S.Ct. 741. In short, the magistrate may consider testimony that other officers had experienced the informant to be reliable. Contrary to defendant's assertion, it appears unnecessary to supply factual details upon which the conclusion of reliability is based. See Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960).

Additional circumstances were set forth in the affidavit that support affiant's conclusion that the informant was reliable. The affiant stated that while he had defendant's premises under surveillance the informant went there on November 30, 1972, purchased a sawed-off shotgun and delivered the same to affiant. The fact that affiant conducted his surveillance while stationed across the street from the premises and could not personally identify defendant Geldon at the preliminary hearing does not detract from that event as a corroborating circumstance. Furthermore, the informer delivered a white powder that allegedly was obtained from Geldon and contained barbituates. A field test of the substance established that it did contain barbituates. Such circumstances would certainly provide a substantial basis for relying upon the informer's statements.

Defendant's motion for return and suppression also rests upon the fact that approximately twenty-six firearms were seized when the search warrant lists only nine guns. The degree of specificity required when describing the goods to be seized varies according to the circumstances and the type of items to be seized. Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967),...