United States v. Holliday

• Decision Date: 27 February 1973
• Docket Number: No. 72-1603.,72-1603.
• Citation: 474 F.2d 320
• Parties: UNITED STATES of America, Appellee, v. Jerry Lee HOLLIDAY, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

474 F.2d 320 (1973)

UNITED STATES of America, Appellee, v. Jerry Lee HOLLIDAY, Appellant.

No. 72-1603.

United States Court of Appeals, Tenth Circuit.

Submitted January 9, 1973.

Decided February 27, 1973.

Joe Boatman, Muskogee, Okl., on the brief, for appellant.

Richard A. Pyle, U. S. Atty., and Robert D. McDonald, Asst. U. S. Atty., on the brief, for appellee.

Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

SETH, Circuit Judge.

Defendant appeals from a judgment of conviction entered on a jury verdict for possession of non-tax-paid distilled spirits in violation of 26 U.S.C. §§ 5205(a)(2) and 5604(a)(1).

Defendant raises two issues on appeal. The first concerns the validity of a search warrant, the execution of which resulted in the seizure of evidence used against him at trial. The second issue concerns the voluntariness of an oral confession made by defendant at the scene of the arrest.

On January 31, 1972, the search warrant in dispute was executed at the residence of the defendant and his wife. The search resulted in the discovery and seizure of forty-two gallons of non-taxpaid whiskey. Prior to trial, the defendant moved to have this evidence suppressed on the grounds that the affidavit underlying the search warrant was insufficient to support a finding of probable cause. The motion to suppress was denied and the evidence was introduced at trial.

The affidavit reads:

"On Friday, January 28, 1972, I received information from a confidential informant whom I believe and had been reliable in the past, that Jerry Holiday sic had an illicit distillery behind his residence at Counts, Oklahoma, and was a distributor of nontaxpaid distilled spirits at the residence. Jerry Holiday has a record and reputation with Alcohol, Tobacco and Firearms Investigators for being a violator of the internal revenue liquor laws. On Saturday, January 29, 1972, I received information from the same informant that a blue 1969 Ford pickup truck, Arizona license plate No. 6734, with a wood tool box in the back had picked up a load of nontaxpaid distilled spirits at the Jerry Holiday residence at Counts, Oklahoma, during the night of Friday, January 28, 1972, enroute to Oklahoma City. On Sunday, January 30, 1972, I received information from Special Investigator James Wheeler of the Oklahoma City Branch Office that the sic and other investigators had arrested Walter Gordon and seized a load of nontaxpaid distilled spirits which was contained in the above-described truck in Oklahoma City during the night of Saturday, January 29, 1972."

Defendant contends that the affidavit was insufficient because (1) it did not reveal the underlying circumstances under which the informant obtained his information; (2) it did not state the time or date on which the informant received the information, and (3) the affiant's knowledge of defendant's reputation, by itself, is insufficient to support a finding of probable cause.

At the outset, it is apparent that affidavits for search warrants must be tested in a common sense and realistic manner, and warrants issued thereon should not be interpreted hypertechnically. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Berry, 423 F. 2d 142 (10th Cir.). Nevertheless, the Fourth Amendment requires that the facts as set forth in the underlying affidavit be sufficient to allow a neutral magistrate to reasonably conclude that probable cause for the search exists.

The essential information in the present affidavit was obtained by the affiant through an unidentified informant. The rules to be followed in testing the validity of such information were announced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964):

"Although an affidavit may be based on hearsay information and need not reflect direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, . . . was `credible\' or his information `reliable.\' . . ."

Defendant properly concedes that the affidavit is sufficient to establish that the informant was "credible." However, defendant contends that the affidavit reveals no underlying circumstances from which to conclude that the informant's information in this case is accurate.

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), is relied upon by defendant for the proposition that an affidavit is insufficient if it does not state how the informant received his information, i. e., whether by personal observation or by some other person. This reliance is misplaced. Neither the Supreme Court's opinion in Spinelli nor the Constitution make this information an absolute requirement for a valid affidavit.

". . . In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused\'s criminal activity in sufficient detail that the magistrate may know that he is relying on

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