United States v. Harwood

• Decision Date: 18 December 1972
• Docket Number: No. 72-1498.,72-1498.
• Citation: 470 F.2d 322
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Paul HARWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

470 F.2d 322 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Paul HARWOOD, Defendant-Appellant.

No. 72-1498.

United States Court of Appeals, Tenth Circuit.

December 18, 1972.

Jerry Cord Wilson, Asst. U. S. Atty., (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.

Mac Oyler, Oklahoma City, Okl., for defendant-appellant.

Before BREITENSTEIN and McWILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge.

McWILLIAMS, Circuit Judge.

Gerald Paul Harwood was charged in a one count indictment with knowingly and unlawfully possessing six automatic firearms not registered to him in violation of 26 U.S.C. §§ 5845(b) and 5861(d). Thereafter, Harwood filed a motion to suppress the use as evidence of the six firearms which formed the basis for the indictment on the grounds that such were obtained in an unlawful search and seizure. Upon hearing, the trial court, apparently without comment, simply denied the motion to suppress.

Trial by jury before a judge other than the one who denied the motion to suppress resulted in a guilty verdict and Harwood now appeals. The only issue presented to us is the correctness of the trial court's denial of the motion to suppress. We conclude that the trial court erred and under the circumstances should have granted the motion to suppress the use as evidence of the six weapons in question. The evidence adduced at the hearing on the motion to suppress is all important and we shall review it in some detail.

The search in question was pursuant to a warrant issued on the basis of the affidavit of one James P. Wheeler, a special investigator for the Alcohol, Tobacco and Firearms Division of the United States Treasury. The facts alleged in the affidavit as grounds for the issuance of a search warrant are set forth below.¹ The italicized portion of the factual recital was penned in, with the balance of the recital being in typewritten form.

At the hearing on the motion to suppress, it developed that an informer had called the police chief for Midwest, Oklahoma, on November 21, 1971, concerning some automatic weapons. The police chief testified that although he had prior acquaintance with the informer, he had no occasion to ever use any of the informer's information as the basis for any criminal investigation.

Wheeler, whose affidavit formed the basis for the issuance of the search warrant, testified at the hearing on the motion to suppress that he first learned about the matter when he was called by the police chief on November 22, 1971, and that later that same evening he conferred with the police chief and the informer. Wheeler went on to testify that he had no prior acquaintance with the informer and that accordingly he had no occasion to ever use any information given him by the informer, let alone that such information had resulted in two convictions.

The search warrant issued on Wheeler's affidavit authorized a search of a one-story frame dwelling house, all appurtenances and all outbuildings located at 1228 SE 20th Street, in Oklahoma City, Oklahoma. These premises were occupied by one David Leon Harvey, who testified that sometime in September 1971 he had given Harwood permission to store some containers in the attic of his garage. The weapons in question were later found in these containers stored in the attic of Harvey's garage. Harvey further testified that he gave Harwood permission "to come and go in regard to these containers" and that Harwood had on at least one occasion checked the containers in question.

The search warrant was issued by a United States Commissioner at 6:30 A. M. on November 23, 1971, and, as indicated, a search of the premises described in the search warrant about an hour after the issuance of the warrant disclosed the six automatic firearms packed in containers stored in the attic of the Harvey garage.

It was on this general state of the record that the trial court denied the motion to suppress, notwithstanding the fact that the testimony of Wheeler was patently at odds with the recitals in his affidavit. In our view of the matter, when it came to the attention of the trial court that the recitals in the affidavit upon which the search warrant had been issued were incorrect in significant particulars, the trial court should have promptly granted the motion to suppress. In support of our conclusion, see such cases as United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810; United States v. Roth, 391 F.2d 507 (7th Cir. 1968); and United States v. Pearce, 275 F.2d 318 (7th Cir. 1960).

In Upshaw appears the following pertinent comment:

"Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit\'s showing of probable cause, the court was required to grant the motion to suppress. * * *"

To like effect, in Roth it was stated:

"At the hearing on the motion to suppress in the instant case, testimony was elicited which exposed a fatal flaw in the affidavit. The affiant, Morrison, testified that the confidential informant told him, `there was a load of Hamilton Beach products that were stored in a grocery store out on the 6500 block of Calumet Avenue in Hammond, Indiana.\' In contrast, Morrison\'s affidavit stated that the informant told him that `the said electric blenders the stolen items\' were on the defendant\'s premises. (Emphases added.) When Morrison\'s testimony is compared with his statement in the affidavit, a contradiction is disclosed, glaring enough to require the trial court to find the affidavit insufficient as a matter of law."

And in Pearce it was held that in a hearing on the defendant's motion to suppress it was proper for the court to hear evidence bearing on the asserted falsity of recitals in the affidavit and when such falsity was demonstrated the evidence obtained in the search should be suppressed.

In the instant case, it was demonstrated beyond any question that the recitals made by Wheeler in his affidavit...