United States v. Johnson

Citation461 F.2d 285
Decision Date14 June 1972
Docket NumberNo. 71-1783.,71-1783.
PartiesUNITED STATES of America, Appellee, v. Warren G. JOHNSON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Bruce Green, Muskogee, Okl., for appellant.

Robert D. McDonald, Asst. U. S. Atty. (Richard A. Pyle, U. S. Atty., with him on the brief), for appellee.

Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

This is a direct appeal from a conviction of selling and conspiracy to possess and sell non-taxpaid distilled spirits.

Appellant was charged in three counts. In Count One he was charged with selling distilled spirits on August 22, 1970. Count Four charged possession of distilled spirits on October 25, 1970, and Count Eight charged conspiracy to possess and sell non-taxpaid distilled spirits from August 22, 1970, to October 25, 1970. Appellant was acquitted on Count Four.

On October 23, 1970, an affidavit for a warrant to search appellant's residence was filed with the United States Commissioner. The facts therein stated as tending to establish that appellant was concealing non-taxpaid distilled spirits were the following: (1) During the week of August 2, 1970, an Alcohol, Tobacco and Firearms Agent learned from a reliable informant that he had purchased three gallons of whiskey from Mr. Johnson, the whiskey having been concealed in Johnson's garage; (2) that on August 22, 1970, an undercover policeman purchased six gallons of whiskey from Mr. Johnson; (3) that during June 1970, an undercover agent talked with Johnson and learned that Johnson was temporarily out of whiskey but would have some more available for sale in about a week, and that Johnson had recently lost a car and two of his drivers had been arrested; (4) that appellant had been convicted of possession of illicit whiskey in 1962; and (5) that during the week of September 30, 1970, the affiant learned from a reliable informant that Johnson was concealing non-taxpaid distilled spirits in his residence in Boley, Oklahoma. The affidavit was filed three weeks after it was executed and the search was conducted two days later on October 25, 1970. Two agents found one half-gallon of whiskey in a bedroom of appellant's house, another outside in a pickup camper, and a half pint in a closet; these items formed the basis of Count Four, upon which appellant was acquitted, and one of the overt acts in the Count Eight conspiracy charge. A sizeable cache of empty bottles was also discovered which, unrelated to the charge of possession, bears upon the broader conspiracy charge.

Appellant testified that he had been in the whiskey business in the past but had given it up. With regard to the whiskey found in his home pursuant to the warrant he stated that he did not know that it was there, and that his son and some of his friends may have left it there. A Government agent testified as to conversations he had had with appellant during which appellant mentioned that "he had been busted before and that he was a little too smart to be caught anymore."

Appellant asserts two propositions. First, it is urged that the facts relied upon in the affidavit for the warrant were too remote in time to justify a finding of probable cause, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Secondly, appellant urges that the agent's testimony concerning prior arrests was inadmissible and prejudicial.

Regarding the sufficiency of the affidavit the Government argues that the issue is moot because the appellant was not found guilty of possession under Count Four and the jury accordingly would not have relied upon possession as an overt act under the conspiracy charge. Alternatively, it is argued that...

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203 cases
  • United States v. Giresi, Crim. No. 79-331.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 18, 1980
    ...of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant." United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), quoted in United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973); cf. United States v. Townsend, 394 F.Supp. 736, 745......
  • State v. Novembrino
    • United States
    • United States State Supreme Court (New Jersey)
    • January 7, 1987
    ......         STEIN, J. .         Since 1961, when the United States Supreme Court decided Mapp v. Ohio, 367 [519 A.2d 822] U.S. 643, 81 ...at 486, 78 S.Ct. at 1250, 2 L.Ed.2d at 1509 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 ......
  • State v. Amerman, s. 715
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1990
    ...passage of time becomes less significant.' " (Footnote omitted). See also J. Hall, Search and Seizure 153-154 (1982); United States v. Johnson, 461 F.2d 285 (10th Cir.1972); and People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389 (1953). See also Mapp v. Warden, 531 F.2d 1167 (2d Cir.1976), cert......
  • United States v. La Monte, Crim. No. 77-438.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 3, 1978
    ...or continuous conduct, time is of less significance." Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973). Cf. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). In the instant case the magistrate could readily infer that all the information in the affidavit was acquired on o......
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1 books & journal articles
  • Probable Cause in Child Pornography Cases: Does It Mean the Same Thing?
    • United States
    • Military Law Review No. 209, September 2011
    • September 1, 2011
    ...203 F.3d 833 (9th Cir. 1999) (holding that a search fifteen days after a controlled buy was not stale). 178 United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (“Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles......

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