United States v. McCoy, No. 72-1646.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSETH, McWILLIAMS and BARRETT, Circuit
Citation478 F.2d 176
Docket NumberNo. 72-1646.
Decision Date07 May 1973
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Floyd McCOY, Jr., Defendant-Appellant.

478 F.2d 176 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Floyd McCOY, Jr., Defendant-Appellant.

No. 72-1646.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted February 21, 1973.

Decided May 7, 1973.


478 F.2d 177

James M. Dunn, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., on the brief), for plaintiff-appellee.

David K. Winder, Salt Lake City, Utah, for defendant-appellant.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

Richard Floyd McCoy, Jr., was convicted by a jury of aircraft piracy under 49 U.S.C. § 1472(i)(1) and he now appeals his sentence of forty-five years. The only point raised on appeal concerns the validity of a search warrant which purported to authorize a search of McCoy's home. In view of the narrow issue presented to us for review, background facts need not be developed in detail.

A United Airlines plane en route from Denver, Colorado, to Los Angeles, California, was taken over by a so-called sky-jacker who by virtue of threats caused the pilot to change his course and land in San Francisco, California. There, the passengers were permitted to deplane and, pursuant to further direction of the sky-jacker, $500,000 in currency and several parachutes were brought aboard the plane. Still acting under threats from the sky-jacker, the pilot then flew the plane back to Utah, with the sky-jacker apparently bailing out near Provo, Utah, taking the $500,000 with him.

Two days after the sky-jacking, McCoy was arrested at his home in Provo, Utah. McCoy was immediately taken before a magistrate who advised him of his various constitutional rights. At the same time and place an FBI agent named William J. Geiermann presented his affidavit to the magistrate and asked for the issuance of a warrant to search McCoy's residence. The magistrate determined that probable cause was shown by Geiermann's affidavit,

478 F.2d 178
and issued a search warrant. However, the warrant signed by the magistrate, through someone's error or oversight, mistakenly identified the affiant as one Lote Kinney, Jr., also an FBI agent, instead of Geiermann. As indicated, Geiermann was the only one who had presented an affidavit to the magistrate in support of the request for a search warrant. The warrant itself was directed to Kinney, and he and others operating under his direction conducted the ensuing search of McCoy's residence. The search disclosed, among other things, $499,970 in currency, parachute and harness, grenade, gun and ammunition, and the like

Four days prior to trial, counsel for McCoy filed a motion to suppress the various articles taken in the search of McCoy's home, alleging that the affidavit did not show "probable cause" for the issuance of a search warrant and that the search warrant itself was "insufficient on its face."

The motion to suppress came on for hearing at the commencement of the trial proper. At the conclusion of the relatively short hearing, the trial court stated that it would defer its ruling till the matter came up during the course of the trial. In the course of the trial, then, the circumstances surrounding the issuance of the search warrant were fully explored, initially out of the presence of the jury, and the trial court then denied the motion to suppress. Accordingly, the articles seized in McCoy's home by the FBI agents were received into evidence. As indicated, the only matter urged in this court concerns the propriety of the trial court's denial of McCoy's motion to suppress.

I.

As indicated, the affidavit upon which the issuance of the search warrant was based was that of agent Geiermann. McCoy's complaint about the sufficiency of the affidavit relates to the fact that the statements contained therein were all based on information acquired by Geiermann from others. In other words, Geiermann himself had no so-called firsthand information, and his statements were all based on what he had been told by other FBI agents who in turn had themselves acquired their information from others. The affidavit, then, according to counsel, is one based on double hearsay, if not indeed triple hearsay, and for that reason alone was insufficient to permit a finding by the magistrate that probable cause did exist for the issuance of the search warrant. Let us examine the affidavit a bit more closely.

In his affidavit, Geiermann stated that he had been advised by a fellow FBI agent from San Francisco that a passenger aboard the hijacked plane had been interviewed and that this passenger had viewed a number of photographs presented to him by the FBI and had identified a picture of McCoy as being a picture of the sky-jacker.

Geiermann in his affidavit also stated that he had been advised by a fellow FBI agent who had interviewed a stewardess aboard the sky-jacked plane that he had...

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53 practice notes
  • People v. Superior Court (Bingham)
    • United States
    • California Court of Appeals
    • April 3, 1979
    ...considered by the Magistrate." The same rule will sometimes even be applied to "triple hearsay." (United States v. McCoy (10th Cir. 1973) 478 F.2d 176, 179, [91 Cal.App.3d 474] cert. den., 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62; Roach v. Parratt (D.Neb.1976) 407 F.Supp. 703, 706, revd. on......
  • Olsen v. Layton Hills Mall, No. 01-4130.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 11, 2002
    ...King was double hearsay, an officer can rely on such information if each level of hearsay was itself reliable. See United States v. McCoy, 478 F.2d 176, 179 (10th Cir.1973). Here, both levels of hearsay were reliable. The initial report was by the store clerk, an identified citizen with no ......
  • U.S. v. Melvin, No. 78-1437
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 1979
    ...v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), Cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. McCoy, 478 F.2d 176, 179 (10th Cir.), Cert. denied, 414 U.S. 828 (1973). The considerations that produced the Aguilar and Spinelli formulation in the case of an in......
  • People v. Greene
    • United States
    • New York Supreme Court Appellate Division
    • February 13, 1990
    ...F.2d 1183, cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753; United States v. McCoy, 10th Cir., 478 F.2d 176, cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62; United States v. Fiorella, 2nd Cir., 468 F.2d 688, cert. denied 417 U.S. 917, 94 S.......
  • Request a trial to view additional results
53 cases
  • People v. Superior Court (Bingham)
    • United States
    • California Court of Appeals
    • April 3, 1979
    ...considered by the Magistrate." The same rule will sometimes even be applied to "triple hearsay." (United States v. McCoy (10th Cir. 1973) 478 F.2d 176, 179, [91 Cal.App.3d 474] cert. den., 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62; Roach v. Parratt (D.Neb.1976) 407 F.Supp. 703, 706, revd. on......
  • Olsen v. Layton Hills Mall, No. 01-4130.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 11, 2002
    ...King was double hearsay, an officer can rely on such information if each level of hearsay was itself reliable. See United States v. McCoy, 478 F.2d 176, 179 (10th Cir.1973). Here, both levels of hearsay were reliable. The initial report was by the store clerk, an identified citizen with no ......
  • People v. Greene
    • United States
    • New York Supreme Court Appellate Division
    • February 13, 1990
    ...F.2d 1183, cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753; United States v. McCoy, 10th Cir., 478 F.2d 176, cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62; United States v. Fiorella, 2nd Cir., 468 F.2d 688, cert. denied 417 U.S. 917, 94 S.......
  • State v. Rose
    • United States
    • Supreme Court of Connecticut
    • June 24, 1975
    ...States v. Mulligan, 488 F.2d 732, 735 (9th Cir.), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233; United States v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d It has been held that a mere recital in the affidavit that the informant ha......
  • Request a trial to view additional results

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