United States v. Jones, Crim. No. 72-0592-N.

• Decision Date: 07 May 1973
• Docket Number: Crim. No. 72-0592-N.
• Citation: 359 F. Supp. 1268
• Parties: UNITED STATES of America v. John Edward JONES also known as "Liddy".
• Court: U.S. District Court — District of Maryland

359 F. Supp. 1268

UNITED STATES of America v. John Edward JONES also known as "Liddy".

Crim. No. 72-0592-N.

United States District Court, D. Maryland.

May 7, 1973.

George Beall, U. S. Atty., D. Md., and Charles L. Weintraub, Baltimore Strike Force, U. S. Dept. of Justice, for plaintiff.

Gerald Kroop, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

NORTHROP, Chief Judge.

John Edward Jones, also known as "Liddy" Jones (hereinafter referred to as "Liddy"), has been charged with receipt of a firearm by a convicted felon in violation of 18 U.S.C. Appendix § 1202(a)(1). He has filed a Motion to Suppress and Exclude Evidence. As grounds therefor, defendant alleges that the affidavit in support of the search warrant does not show probable cause, in that:

(a) it fails to demonstrate the reliability of the informant, and

(b) fails to properly state the underlying circumstances from which the informant concluded that criminal activity was taking place.

The parties have stipulated that the Court consider defendant's Motion on the basis of the respective affidavits and legal memoranda without a hearing.¹

The affidavit which defendant challenges reveals that two experienced detectives, especially trained in detecting violations of the narcotics laws observed certain activities and obtained information from "reliable informants," which led the detectives (who are the affiants) to believe that Liddy was engaging in the sale and distribution of contraband narcotics. One informant (# 241) had, on a prior occasion, furnished information which led to the seizure of $53,000 worth of heroin. The informant had been addicted to heroin for a period in excess of five years and is apparently familiar with its distribution, manufacture, and use. Informant # 241 revealed that Liddy will rarely handle any drugs, but is present when the heroin is being "cut" (adulterated), and that it is usually stored in the homes of Liddy's female associates.

At one point, while the affiants were watching Liddy on the street, he noticed them and then approached them and said: "You got all my stuff that last bust. You guys are smarter than I thought you were. I'm moving my whole organization to Baltimore County."

The affiants, after some investigation, came to believe that Liddy's brother's home at 18 Kittridge Court, Randallstown, Maryland, was property owned by Liddy. Another "reliable informant" (# 255) informed the affiants that Liddy will often park his white 1972 Cadillac at 3319 Ripple Road, his purported address, and then use another car to give the impression that he is located where the Cadillac is parked, but that he really lived at 18 Kittridge Court, Randallstown, Maryland. Although the home had been purchased in the name of Liddy's brother, the latter had never been observed at the premises during affiants' entire investigation. Informant # 255 had readily admitted "a prior involvement in the upper echelon of the heroin trafficking in Baltimore City, in the past six years." Some of his information was corroborated by the affiants' personal observation.² Informant # 255 told the affiants that Liddy keeps a supply of cocaine at 18 Kittridge Court for his own use, where he observed Liddy snorting cocaine. The informants' information, coupled with affiants' personal surveillance and observation of defendant's activities, and in particular his suspicious attempt to create the impression of not living at 18 Kittridge Court, led to the issuance of a search warrant to search those premises.

The question of informants' reliability and information in an affidavit to justify a finding of probable cause by a Magistrate has been expounded upon by the Supreme Court of the United States in the Aguilar-Spinelli-Harris trilogy. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968); United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L.Ed.2d 723 (1971). The affidavit in question must be analyzed under these decisions.

I.

In Aguilar v. State of Texas, supra, a search warrant was issued on the basis of the following affidavit:

Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law. 378 U.S. at 109, 84 S.Ct. at 1511.

The affidavit did not recite that the affiant had any personal knowledge of the activities reported. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), had already established that an affidavit cannot be based upon "a mere affirmation of suspicion and belief without any statement of adequate supporting facts." 290 U.S. at 44, 54 S.Ct. at 13. As in Nathanson, no supporting facts were presented in the affidavit in Aguilar, and the high Court found it insufficient:

The vice in the present affidavit is at least as great as in Nathanson . . .. Here the "mere conclusion" that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein," it does not even contain an "affirmative allegation" that the affiant's unidentified source "spoke with personal knowledge." For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession. The magistrate here certainly could not "judge for himself the persuasiveness of the facts relied on * * * to show probable cause." He necessarily accepted "without question" the informant's "suspicion," "belief" or "mere conclusion." 378 U.S. at 113-114, 84 S.Ct. at 1513-1514.

Thus, the majority in Aguilar viewed the affidavit there presented as a Nathanson-type affidavit.³ The Court set up a standard to determine the sufficiency of an affidavit, which has subsequently become known as the two-pronged test:

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, whose identity need not be disclosed . . . was "credible" or his information "reliable." 378 U.S. at 114, 84 S.Ct. at 1514.

The Supreme Court thus promulgated a twofold requirement as criteria: first, the basis for the informant's conclusion must be stated; and second, the reliability of the informant must be shown.

"Believing it desirable that the principles of Aguilar should be further explicated," Spinelli v. United States, supra, 393 U.S. at 412, 89 S.Ct. at 587 (1969), the Supreme Court amplified the Aguilar test in the Spinelli decision. There, a search warrant was issued on the basis of an affidavit which stated that 1) the FBI had been informed by a confidential reliable informant that Spinelli was conducting illegal gambling activities by means of two specified telephones, and 2) the FBI observed Spinelli check in and out of the apartment in which these telephones were located. The affidavit further stated that Spinelli was a known bookmaker. The Court applied the Aguilar criteria to test this affidavit and found it insufficient. First, the majority concluded that "though the affiant swore that his confidant was `reliable,' he offered the magistrate no reason in support of this conclusion." 393 U.S. at 416, 89 S. Ct. 589. Second, the majority concluded that "the tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation." Thus, the Court reaffirmed Aguilar and found that the twofold requirement was not met; the basis for the informant's conclusion of criminal activity was not given and the informant's reliability was not established. The high Court found that the Aguilar test was not met and could have simply rested its decision on that ground. Yet, the Court went on to further explicate upon Aguilar. The Court declared:

If the tip is found inadequate under Aguilar, the other allegations which corroborate the information . . . should then be considered. 393 U.S. at 415, 89 S.Ct. at 588.

It was held, in effect, that a warrant affidavit found defective under Aguilar might nevertheless pass constitutional muster, if supporting information in the affidavit buttress an otherwise unacceptable informant's tip. Examining the supporting information in the Spinelli affidavit, the Court concluded that,

the allegations detailing the FBI's surveillance of Spinelli and its investigation . . . contain no suggestion of criminal conduct when taken by themselves—and they are not endowed with an aura of suspicion by virtue of the informer's tip. 393 U. S. at 418, 89 S.Ct. at 590.

Although the Court found the Spinelli affidavit insufficient, it amplified Aguilar by providing that independent information, in an affidavit which fails to meet the Aguilar test, may cure the defective affidavit if the information provides independent corroboration of the criminal activity.⁴ The significance of that amplification lay not so much in a new and broader standard of probable cause to issue a search warrant, but in demonstrating that the Supreme Court was itself still conducting a search—a search for a meaningful standard. The Court could have rested its decision on the finding that the Spinelli affidavit failed to meet the Aguilar criteria. Yet the Court chose to further explicate upon Aguilar.

That the high Court was searching for a meaningful standard became apparent in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). There, the Court granted certiorari,

to consider the recurring question of what showing is constitutionally

...