United States v. Hall, TY-78-28-CR.

• Decision Date: 09 February 1979
• Docket Number: No. TY-78-28-CR.,TY-78-28-CR.
• Citation: 468 F. Supp. 123
• Parties: UNITED STATES of America v. Alvin HALL.
• Court: U.S. District Court — Eastern District of Texas

468 F. Supp. 123

UNITED STATES of America v. Alvin HALL.

No. TY-78-28-CR.

United States District Court, E. D. Texas, Tyler Division.

February 9, 1979.

John H. Hannah, Jr., U.S. Atty., E.D. Tex., Dane H. Smith, Asst. U.S. Atty., Tyler, Tex., for the United States.

Woodrow M. Roark, Tyler, Tex., for defendant.

MEMORANDUM OPINION

JUSTICE, District Judge.

Defendant Alvin Hall is charged pursuant to 18 U.S.C. sections 922(h), 924(a), and 26 U.S.C. sections 5861(d), (f), (i), and 5871, with receiving and possessing an illegal firearm, namely, a shotgun, seized by deputies of the Anderson County Sheriff's Department and turned over by them to an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF). The defendant has moved to suppress the shotgun as the fruit of an illegal arrest. Before the merits of the defendant's claim are addressed, a brief sketch of the circumstances leading to the discovery and seizure of the illegal weapon by the deputies will be set out.

FACTS

On December 13, 1977, the Sheriff's Department of Anderson County received a tip from an informant concerning the robbery of a Kentucky Fried Chicken restaurant on the previous day. The informant divulged his information at the Department office in the presence of both Sheriff Roy Herrington and Deputy Sheriff J. J. Carpenter. At the instruction of Herrington and as a consequence of the information then received, Carpenter sought and obtained a warrant for the arrest of Alvin Hall from a magistrate, Justice of the Peace Charles C. Lee.¹ The evidence reveals that Carpenter and Deputy James Todd proceeded to the home of Mrs. Ola Fay Pinson, to effect the arrest, between 4:00 and 5:00 a. m. on December 14, 1977, and that they eventually gained entry to the house.² After Todd stepped into the house, Hall emerged from the bathroom, where he had been flushing the toilet repeatedly, and was arrested and handcuffed by Todd.³ Thereafter, Deputy Carpenter observed the shotgun lying on the couch in the living room. A discussion ensued concerning the shotgun's ownership and barrel length, and it was seized by the officers. Hall was taken from the house to the County Jail at approximately 5:00 a. m. His unrefuted testimony was that after his arrest, he readily agreed to take a polygraph test regarding the Kentucky Fried Chicken robbery, that the test was never administered, and that he was not questioned about the robbery again. Later that morning, Hall was placed in a line-up with six or eight other people. Subsequently, he was brought before the Justice of the Peace who informed Hall of his rights and set the amount of bail. It is to be noted that the only infraction mentioned at this hearing was the federal offense of possession of an illegal firearm.

Although Hall was almost immediately able to post bail, Herrington and Carpenter told him that he would be held in the jail until he had talked with a man from Tyler, i. e., Special Agent F. L. Ellsworth of the ATF. Ellsworth arrived at the jail at approximately noon on December 14th and interviewed Hall for one to two hours. Hall signed a waiver of counsel form supplied by Special Agent Ellsworth, which also acknowledged that he had received the Miranda⁴ warnings. According to the agent's testimony, the defendant thereupon made incriminating statements regarding the illegal firearm. The testimony was conflicting as to the content of the statements and the conditions under which they were made. The Government offered Special Agent Ellsworth's written summary of the interview but no confession signed by the defendant.

ARREST

A.

The manner in which the warrant for the arrest of the defendant was obtained in this case — revealed with commendable frankness by the magistrate in his testimony — shows utter disregard by both the Sheriff's Department and the magistrate for the requirements of the Fourth Amendment.⁵

The magistrate testified that Deputy Carpenter telephoned him from the Sheriff's Department and stated that Alvin Hall was wanted for armed robbery. Carpenter was directed by the magistrate to make out an arrest warrant and present it to him for his signature. The testimony shows that the warrant was fully prepared, except for the signature, by someone other than the magistrate. When Carpenter arrived at the magistrate's home, he raised his hand, on his own volition, and stated to the magistrate that he swore that he had probable cause for arresting Alvin Hall. The only facts submitted to the magistrate by the deputy to show probable cause were that an armed robbery had been reported to the Sheriff's office and that an informant had named a suspect.

The magistrate's uncontradicted testimony was also to the effect that the warrant was issued before any affidavits were presented to him, and that he had no knowledge of any such affidavits on file elsewhere. The magistrate added that, in Anderson County, it is the frequent practice and general policy that an arrest warrant be filled out by someone in the Sheriff's Department and presented to the Justice of the Peace for the latter's signature. The supporting information on which a warrant is based, usually a general complaint form, is frequently, but not always, presented to the magistrate only after the warrant has been issued.⁶

In this regard, the Supreme Court has unambiguously stated that

the decisions of this Court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.

Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971). The magistrate in the instant case asked only a perfunctory, "Is your informant or caller reliable?", to which Carpenter gave an affirmative answer. The deputy did not go further and give the magistrate the substance of the tip conveyed to the Sheriff's Department or the basis for his belief in the informant's reliability; indeed, the magistrate was not even told what premises had been robbed or when the robbery occurred.

Whiteley condemned a state arrest warrant because it had been issued pursuant to a complaint that consisted of "nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense . . ." 401 U.S. at 565, 91 S.Ct. at 1035. The warrant here at issue, resting wholly on the deputy's unsubstantiated assertion of probable cause and based on the conclusory suspicions of an informant, is equally offensive to the Fourth Amendment.

B.

An invalid warrant, however, does not necessarily undermine an otherwise lawful arrest: while the validity of a warrant turns only on the facts presented to the magistrate, the validity of an arrest itself is judged by all the facts known to the law enforcement officials. Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1968); United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653 (1950); United States v. Rose, 541 F.2d 750 (8th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1178, 51 L.Ed.2d 584 (1977). Unlike a warrantless search, which is presumptively invalid absent exigent circumstances, Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a warrantless arrest in a public place can be validated by probable cause alone, and exigent circumstances need not be shown. United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).⁷ The Fifth Circuit, in United States v. Morris, 477 F.2d 657, 663 (5th Cir.), cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973), held that an arrest was lawful "in spite of the invalid warrants if at the time . . . the police entered the defendant's apartment they had probable cause to believe that the defendants . . . had committed or were committing a crime. Footnote omitted."⁸

Nonetheless, in this case, the quantum of information adduced at the suppression hearing and within the collective knowledge of the Sheriff's Department, United States v. Ashley, 569 F.2d 975, 983 (5th Cir. 1978), prior to the arrest of the defendant, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), did not constitute probable cause for the defendant's arrest. Long ago, the Supreme Court articulated a definition of probable cause that has been consistently reaffirmed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As subsequently restated in Beck,

whether that arrest was constitutionally valid depends . . . upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. (Citations omitted.)

379 U.S. at 91, 85 S.Ct. at 225. See also Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

The Government relies here on the information supplied to the Department by a confidential informant. The Supreme Court has established criteria for determining the sufficiency of an informant's tip as the basis for probable cause. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).⁹ Citing Aguilar's two-pronged test, the Fifth Circuit stated in Weeks v. Estelle, 531 F.2d 780, 781 (5th Cir. 1976):

In order for an informer's tip to serve as the sole basis for probable cause it must reveal (1) how the informer obtained his information and (2) why the police believed that the informer was a

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