United States v. Noreikis

• Citation: 481 F.2d 1177
• Decision Date: 14 June 1973
• Docket Number: No. 72-1341.,72-1341.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert A. NOREIKIS et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

481 F.2d 1177 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert A. NOREIKIS et al., Defendants-Appellants.

No. 72-1341.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 1973.

Decided June 14, 1973.

Rehearing Denied July 13, 1973.

Jerome Rotenberg, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, Stephen J. Cloud, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

Defendants Noreikis, Hibma, and Rothrock appeal from their convictions for attempting to manufacture a quantity of Dimethyltryptamine (DMT), a schedule I controlled substance, in violation of 21 U.S.C. § 846. Their principal contentions on this appeal relate to an alleged deficiency in the affidavit supporting the request for a search warrant and to alleged improprieties in the manner in which the search pursuant to the warrant was executed. The defendants also challenge the sufficiency of the evidence. The search and seizure issues were raised at a pretrial hearing and the appropriate motions were denied by the district court without any findings of fact. The bench trial of the case followed immediately thereafter and a judgment of guilty was entered by the court, once again without findings of fact.¹

Appellants first contend that the affidavit for search warrant executed by John T. Peoples, Special Agent, BNDD (Bureau of Narcotics and Dangerous Drugs), was insufficient to allow the magistrate to make an independent determination that probable cause existed to issue the warrant. The application itself consists of two affidavits. The first, part of which is a standard printed form, sets forth that 13 different chemicals (all in specified amounts) were to be found at 436 West 118th Street, Chicago, and that these chemicals "are precursors and reagents of a schedule I(c) controlled drug and the possession of which is illegal pursuant to Title 21 U. S.C. 841(a)(1) & (2) when possessed with the intent to manufacture." The second affidavit of Special Agent Peoples traces four of the chemicals—lithium aluminum hydride, methanol, acetone, and ethyl ether—into the house, detailing how the BNDD agents had knowledge that these chemicals were in fact in the house at 436 West 118th Street. The affidavit ends with the statement: "13. That the above described chemicals are known to your affiant as the essential precursors and reagents necessary to produce the Schedule I Controlled Substance Dimethyltryptamine."

If the magistrate had relied only upon the second affidavit, the validity of the issuance of the warrant would have been questionable for three of the chemicals have substantial individual household uses—methanol, acetone, and ethyl ether —and the fourth, lithium aluminum hydride, although it might be a "red flag" which would merit suspicion, would not necessarily establish probable cause to believe illegal drugs were to be manufactured. United States v. Failla, 343 F. Supp. 831 (W.D.N.Y.1972). Although the agents were aware that the various chemicals were being purchased in a surreptitious manner, for some reason this fact was not adverted to in the affidavit. Cf. United States v. Moore, 452 F.2d 569 (6th Cir. 1971). However, the issue does not turn on the second affidavit alone for we have two affidavits which must be read in pari materia.

The purpose for requiring an affidavit for a warrant is to allow the magistrate to make an independent determination of whether there is probable cause to support the issuance of a warrant. The magistrate must be given the facts so that he can make an independent judgment and not rely on the mere conclusions of the officer. See Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). "All data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971). Cf. United States v. Harris, 403 U.S. 573, 580-581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We also must note, however, the admonition of the Supreme Court that "the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L. Ed.2d 684 (1965).

When we read the two affidavits together in a commonsense way, we agree with the result reached by the district court that the magistrate had a sufficient basis to find probable cause to support a search warrant. We reach this conclusion in part by analogy to the cases considering the sufficiency of affidavits which rely on tips from informers. In 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, 27 L.Ed.2d 637 (1969), the Court mandated a two-pronged test for such affidavits: the affidavit should set out, first, the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion that a crime was being committed, and, second, facts to support the above circumstances and show that they were credible and reliable. The first affidavit—in which the agent swore positively as to the presence of 13 chemicals on the premises of the house to be searched—satisfies the first prong of the test. A magistrate could conclude that one who had assembled or possessed those chemicals was in fact doing so with the intent to manufacture a controlled substance even though it did not include every essential chemical.² The second, and more detailed, affidavit then serves to meet the second prong of the test. It reflects the basis for the government agent's knowledge that some of the chemicals were on the premises, thus providing facts to support the credibility and reliability of the first affidavit. That the second affidavit traces into the house only four of the thirteen chemical agents named in the first affidavit does not make it insufficient. The government need not, in its affidavit, corroborate every detail, but there should be at least a representative number of the details in order to give suitable reliability for a warrant to issue. Here there was.

The agent was not relying on an informant's tip but rather on the investigative work of the BNDD agents when he swore that certain chemicals were on the premises; the corroborative background as to how this knowledge was obtained is necessary in such measure as to give the magistrate confidence in the reliability of the first affidavit. The situation is comparable to the revelation of past instances of reliable tips by an informant to demonstrate that his present tip should be credited. While upholding the issuance of the warrant in this case, we must also observe that better practice would be to err on the side of as much specificity as possible to avoid the possibility of a successful subsequent suppression attempt.

Appellants raise a second, and equally serious, challenge to the admission of the evidence seized at Hibma's house. Appellants contend that in executing the search warrant the agents violated 18 U.S.C. § 3109,³ in that they did not announce their purpose or authority nor did they wait until "refused admittance" before breaking open the doors to the house. The Supreme Court has held in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), that failure to comply with 18 U.S.C. § 3109 compels suppression of any evidence seized during the search. In both Miller and Sabbath the Court emphasized that 18 U.S.C. § 3109 was merely the codification of the common law rule which required officers of the law to give notice of both their authority and their purpose before forcing entry to a man's home. Procedures smacking of Gestapo tactics should have no place within the American system of law enforcement. There is no claim of "exigent circumstances" in the present case but the question is solely whether there was sufficient compliance with the statute to negate suppression.

The testimony on this issue at the pretrial hearing was somewhat contradictory. The appellants attempt to cast doubt upon the testimony of some of the agents as to what they did or did not do; however, we must look at the evidence in the light most favorable to the government, leaving the determination of credibility to the district court.

The Hibmas arrived home at approximately 11:30 p. m. At approximately the same time, if not somewhat before, Agent Peoples arrived with the search warrant. The house itself had been under surveillance since at least 6 p. m. that day. There were 14 persons in the raiding party, 3 of whom were government chemists who were to examine the evidence seized. After the Hibmas entered the house, the agents waited and, when the house was completely dark at about midnight, they split into groups and at a prearranged time began to knock at each of the house's three doors. At trial both sides seem to have agreed that the front door was the first one broken open. As to that door, Agent Skaggs testified that he thought he heard movement inside before he knocked and that he definitely heard a dog running and barking inside after he knocked. He stated that he was unable to find the doorbell and so knocked loudly, at the same time announcing his authority and purpose. He then knocked again and repeated his announcement. After waiting about 30 seconds without hearing any response, he kicked the door in. During...