United States v. Marihart

• Decision Date: 06 March 1974
• Docket Number: 73-1327 and 73-1370.,No. 73-1326,73-1326
• Citation: 492 F.2d 897
• Parties: UNITED STATES of America, Appellee, v. James MARIHART et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

492 F.2d 897 (1974)

UNITED STATES of America, Appellee, v. James MARIHART et al., Appellants.

Nos. 73-1326, 73-1327 and 73-1370.

United States Court of Appeals, Eighth Circuit.

Submitted November 23, 1973.

Decided March 6, 1974.

Donald W. Sylvester, and Donald E. O'Brien, Sioux City, Iowa, for appellants.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The principal issue on this appeal concerns the extent to which inaccuracies or misrepresentations in an affidavit by a police official vitiates a search warrant issued pursuant thereto.

Defendants James Marihart, Edwin Kinsley and Michael Guerra were convicted by a jury verdict on four counts of violating 18 U.S.C. App. § 1202(a)(1), illegal possession of firearms by previously convicted felons. The defendants were sentenced to two years imprisonment on Counts I, II and III to be served consecutively, and two years imprisonment on Count IV, to run concurrently with the sentence on Count I.

This case was originally set for trial on April 26, 1972. Prior to the trial date, the defendants filed a motion to suppress evidence which was granted by the trial court. On appeal that order was vacated and the cause remanded pursuant to an en banc hearing before this court. United States v. Marihart, 472 F.2d 809 (8 Cir. 1972). Although a part of the factual background of the case is set forth in that opinion, we will recount the facts relevant to the issues presented for our determination on this appeal.

On the evening of October 16, 1971, George Lorenger's residence and firearms dealership was burglarized. Lorenger sold guns in Iowa, Nebraska, South Dakota and California. The four firearms which comprise the four counts of the indictment had been purchased from a dealer in Faribault, Minnesota. On October 17, F.B.I. Special Agent Oxler became apprised of the fact that the defendants might be involved in the Lorenger burglary and were driving a 1962 blue Ford station wagon. Oxler, at this time, was investigating a federal crime of possession of stolen money orders. On October 20, a vehicle matching the description given to Oxler pulled up to a residence and the occupants removed a large cardboard box from the rear of the automobile, which they had difficulty carrying into the residence. After they had vacated the premises, local police officers maintained a watch on the house for three to four hours. During the surveillance, Captain Frank O'Keefe of the Detective Bureau, Sioux City Police Department, based on the information supplied by Oxler and others, obtained a search warrant from a Sioux City Municipal Court Judge.¹ Upon breaking into the residence in execution of the search warrant the police found several rifles and shotguns, including the four guns upon which the indictment rests.

Appellants initially contend that the trial court erred in overruling their motion to suppress evidence. They allege that the affidavit and oral testimony presented by Captain O'Keefe to the issuing magistrate in support of affiant's request for a search warrant contained erroneous information.

Our earlier opinion disposed of the issue as to whether "probable cause" could be found based upon the information presented to the magistrate. We held that "probable cause" existed after applying the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

On this appeal, we are asked to scrutinize again the affidavit and the oral testimony and redetermine the "probable cause" issue in light of evidence adduced at the trial which the defendants allege raises some question as to the accuracy of the information supplied to the issuing magistrate.

During the course of the trial the court granted appellants a hearing on their renewed motion to suppress. They were allowed to present evidence (outside the jury's presence) testing the accuracy of Captain O'Keefe's affidavit and testimony. Special Agent Oxler and other law enforcement officials mentioned by Captain O'Keefe were examined exhaustively with respect to what information they had supplied Captain O'Keefe before his affidavit and testimony were supplied to the magistrate. After receiving the evidence the trial court denied appellants' renewed motion to suppress.

The government contends that since there was no initial showing of wilful misrepresentation or bad faith on the part of the affiant, the affidavit (and testimony) in support of the application for the search warrant was not subject to impeachment. Further, that since the trial court did permit appellants during the course of the trial to make inquiry into the accuracy of the affiant, and an examination of the record discloses no material discrepancies, appellants' claim is without merit.

Appellants contend that the record discloses material inaccuracies to such an extent that it can be said that the affiant did not have reasonable grounds for believing the truth of the allegations he made and therefore good faith is lacking. In the alternative they ask that we remand to the district court with directions to ascertain from affiant the exact state of his knowledge at the time of the signing of the affidavit.²

The Supreme Court has not passed on the extent to which a court may permit an examination with respect to the validity of a warrant facially valid and when the allegations of the underlying affidavits establish "probable cause." Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Kipperman, "Inaccurate Search Warrant Affidavits As a Ground for Suppressing Evidence," 84 Harv.L. Rev. 825 (1971). We have not taken a definitive position on this issue but have indicated that under appropriate circumstances such an inquiry may be made. United States v. Bridges, 419 F.2d 963, 966, n. 4 (CA8 1969); Hunt v. Swenson, 466 F.2d 863 (CA8 1972); Lowrey v. United States, 161 F.2d 30, 34 (CA8 1947).³

The trial court conducted a hearing in which appellants were permitted to examine into the truthfulness of Captain O'Keefe's affidavit and testimony. Thus we need not now delineate the showing necessary to obtain such a hearing. The trial court weighed the testimony allegedly in conflict with the affidavit and denied the renewed motion to suppress. We are satisfied that there is substantial evidence to support the conclusion reached and no mistake was made. Lowrey v. United States, supra; United States v. McNally, 485 F.2d 398, 406 (CA8 1973) Gullett v. United States, 387 F.2d 307 (CA8 1967).

We have not as yet delineated the standards to be applied in testing the validity of a warrant where a hearing has been granted. In United States v. Bridges, supra, 419 F.2d at 966 n. 4, we indicated that fraudulent intent and materiality were factors to be considered.

The Seventh Circuit in United States v. Carmichael, supra at 2129, 489 F.2d 983, 988, has held as follows:

* * * Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. * * * Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. * * * However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.

The rule we announce today is intended only to test the credibility of government agents whose affidavits or testimony are before the magistrate.

The Fifth Circuit in United States v. Thomas, 489 F.2d 664 (No. 73-1403, CA5 December 19, 1973), 42 LW 2369 has held that "affidavits containing misrepresentations are invalid if the error was (1) committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made non-intentionally, but the erroneous statement is material to the establishment of probable cause for the search." Accord, United States v. Bowling, 351 F.2d 236, 241-242 (CA6 1965).

We adopt the Seventh Circuit standards⁴ and apply them to the case at hand.

We now briefly review the substance of the affidavit and testimony submitted to the issuing magistrate by Captain O'Keefe with particular attention to those portions claimed by appellants to be so inaccurate as to be untruthful.

O'Keefe in his affidavit recited that: the Lorenger home had been burglarized on October 16, 1971 and thirty-three firearms taken; he had received information from a reliable confidential informant that appellants were involved; they were then driving a 1962 blue Ford station wagon, 1971 plates Iowa 47-4556 registered to Ray Magnusson; on October 20, 1971 (the date he obtained the search warrant) he was informed by Special Agent Oxler that the 1962 blue Ford station wagon had stopped at 1807 Jackson Street and three men believed to be the burglars previously named had unloaded a large pasteboard box which with difficulty was carried into the residence indicated. O'Keefe further testified that Special Agent Oxler and Sioux City Police Lieutenant Larson had received similar tips from the same informant; Sergeant Stewart, Sioux City Police, had received an identical tip from another informant. O'Keefe revealed the name of Oxler and Larson's informer to the judge. The judge recognized this informer as a person who had previously supplied reliable information upon which the judge had acted and which proved correct. He relied upon the informant's tip and made no effort to ascertain the credibility of Stewart's informer. The warrant was issued and executed by the police officers who found in the apartment at 1807 Jackson, described in the...