United States v. Plemmons

• Decision Date: 30 September 1964
• Docket Number: No. 15726.,15726.
• Citation: United States v. Plemmons, 336 F.2d 731 (6th Cir. 1964)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Leroy PLEMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

336 F.2d 731 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Donald Leroy PLEMMONS, Defendant-Appellant.

No. 15726.

United States Court of Appeals Sixth Circuit.

September 30, 1964.

William K. Hoskins, Cincinnati, Ohio (Court appointed), for appellant.

William E. Bowman, Asst. U. S. Atty., Knoxville, Tenn., for appellee.

John H. Reddy, U. S. Atty., Knoxville, Tenn., on the brief.

Before PHILLIPS and EDWARDS, Circuit Judges, and FOX, District Judge.

HARRY PHILLIPS, Circuit Judge.

The single question presented on this appeal is the sufficiency of the affidavit upon which a "John Doe" nighttime search warrant was issued in a moonshine liquor case. Defendant waived trial by jury. The District Judge found him guilty of all five counts of an indictment charging violations of a number of provisions of the Internal Revenue Code, sentenced him to one year on the third count, suspended sentence on the remaining four counts and placed defendant on probation for a period of three years, the period of probation to be consecutive with the term of imprisonment imposed under the third count. The District Court overruled defendant's timely motion to suppress the evidence, made pursuant to Rule 41(e) (2) and (5) of the Federal Rules of Criminal Procedure, challenging the sufficiency of the evidence upon which the Commissioner issued the search warrant. Reference is made to the opinion of the District Court for a more detailed statement of facts. 222 F. Supp. 853 (E.D.Tenn.).

The validity of the search warrant is attacked on the ground that the evidence before the Commissioner was insufficient to establish "probable cause" within the meaning of the Fourth Amendment, tested by the requirements for nighttime search warrants set forth in Rule 41(c) of the Federal Rules of Criminal Procedure;¹ that the affidavit was not "positive" that the distillery was upon the premises to be searched; and that a nighttime search warrant cannot be issued upon the basis of hearsay.

The pertinent parts of the affidavit, made by an investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service, are set forth in the margin.² The Commissioner had before him in support of the issuance of the search warrant information transmitted by radio to the affiant by an identified investigator to the effect that he was in a position to see inside the described residence and that a distillery was being operated therein; and that five days earlier affiant had smelled the odor of mash while positioned on a hill about 100 feet from the residence.

In Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032, the Supreme Court stated the law of probable cause relative to the issuance of search warrants as follows:

"In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." 268 U.S. at 441, 45 S.Ct. at 549.

To like effect see Lowrey v. United States, 161 F.2d 30, 35 (C.A. 8), cert. denied 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858, rehearing denied 332 U.S. 787, 68 S.Ct. 332, 92 L.Ed. 369; United States v. Malugin, 200 F.Supp. 764, 765 (M.D.Tenn.), aff'd 296 F.2d 741 (C.A. 6). Thus, "there is a difference in what is required to show probable cause for an arrest or search and what is required to prove guilt in a criminal case. Probable cause sufficient for the issuance of a search warrant deals with probabilities. Conviction in a criminal case requires proof beyond a reasonable doubt." United States v. Nicholson, 303 F.2d 330, 331 (C.A. 6), cert. denied 371 U.S. 823, 83 S.Ct. 43, 9 L.Ed.2d 63, citing Brinegar v. United States, 338 U.S. 160, 174, 175, 69 S.Ct. 1302, 93 L.Ed. 1879.

The existence of probable cause depends upon the facts and circumstances of each case. For this reason "many situations are more or less ambiguous, and a determination that probable cause exists should be accepted by this Court unless it is shown that the Commissioner's judgment was arbitrarily exercised." United States v. Nicholson, supra, 303 F.2d at 332; accord, Merritt v. United States, 249 F.2d 19, 20 (C.A. 6); Evans v. United States, 242 F.2d 534 (C.A. 6), cert. denied 353 U.S. 976, 77 S.Ct. 1059, 1 L.Ed.2d 1137. Further, in testing the sufficiency, the affidavit must be read as a whole. Lowrey v. United States, 161 F.2d 30, 33 (C.A. 8), supra. Even so "decided cases are helpful only in declaring the general rule, and are persuasive only insofar as they present similar facts." Garhart v. United States, 157 F.2d 777, 779 (C.A. 10); United States v. Ramirez, 279 F.2d 712, 714 (C.A. 2), cert. denied 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74.

An affidavit which sets out personal observations relating to the existence of probable cause to issue a search warrant is not insufficient by virtue of the fact that it contains observations made by another person, rather than the personal observations of the affiant, so long as "a substantial basis for crediting the hearsay is presented." Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697.

The limitations upon the unbridled use of hearsay as a basis of issuance of a search warrant are well recognized. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (June 15, 1964). As said in Jones v. United States, 362 U.S. 257, 270, 271, 80 S.Ct. 725:

"In a doubtful case, when the officer does not have clearly convincing evidence of the immediate need to search, it is most important that resort be had to a warrant, so that the evidence in the possession of the police may be weighed by an independent judicial officer, whose decision, not that of the police, may govern whether liberty or privacy is to be invaded.

"We conclude therefore that hearsay may be the basis for a warrant. * * * But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient."

Nothing in Jones v. United States forbids the use of hearsay as supporting evidence for the issuance of a nighttime search warrant. The record in this case discloses that the informer had direct and personal knowledge of the operation of the still on the premises to be searched; that he had contacted the affiant by radio from the scene immediately before issuance of the warrant, and had disclosed his observations in detail; and that the informant was an "investigator," the same title used by affiant when signing the affidavit, thus justifying the inference that the informant was a government agent. Where the hearsay evidence has been personally observed by federal officers and communicated directly to the affiant, this may constitute a substantial basis for crediting the hearsay.

In United States v. Tolomeo, 52 F. Supp. 737, 738 (W.D.Pa.), the court held that a night search warrant can be authorized upon an affidavit made upon information and belief. "If personal knowledge of the affiant is required few search warrants would authorize a night search * * *. The statute does require a direct, explicit declaration in the affidavit that the property, the object of the search, is on the property to be searched."

In addition, these hearsay statements are to be considered in conjunction with facts within the personal knowledge of the affiant. The affidavit states that five days earlier affiant had smelled the odor of mash within 100 feet of the residence and set forth his qualifications to detect the odor. The Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, held that odors can be sufficient evidence to constitute probable grounds for a search. Further, a search warrant is not invalid because the facts stated in the affidavit occurred several days before the warrant was issued. Nuckols v. United...