United States v. Roman

• Decision Date: 17 November 1971
• Docket Number: No. 71-1280.,71-1280.
• Citation: 451 F.2d 579
• Parties: UNITED STATES of America, Appellant, v. Eugene H. ROMAN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

451 F.2d 579 (1971)

UNITED STATES of America, Appellant, v. Eugene H. ROMAN, Appellee.

No. 71-1280.

United States Court of Appeals, Fourth Circuit.

Argued June 11, 1971.

Decided November 17, 1971.

Certiorari Denied February 28, 1972.

James F. Companion, Asst. U. S. Atty. (Paul C. Camilletti, U. S. Atty., on the brief), for appellant.

Jolyon W. McCamic, Wheeling, W. Va. (McCamic & McCamic, Wheeling, W. Va., on the brief), for appellee.

Before BRYAN, WINTER and RUSSELL, Circuit Judges.

Certiorari Denied February 28, 1972. See 92 S.Ct. 1171.

ALBERT V. BRYAN, Circuit Judge:

A warrant directed to an FBI agent for a search of the garage and basement of appellant Eugene H. Roman's home in Wheeling, West Virginia for a stolen automobile was quashed, and the car seized under the warrant was rejected as proof in the prosecution of Roman for interstate auto theft under 18 U.S.C. § 2313. The ruling followed from the conclusion that the FBI agent's affidavit for the warrant, when judged under the Fourth Amendment's requirement of "probable cause", was insufficient to support the writ. We see the warrant as adequately grounded and vacate its dismissal.

The affidavit as pertinent reads:

"The undersigned being duly sworn deposes and says:

"That he has reason to believe that on the premises known as the garage and basement of a two-story frame house located at 889 Ivy Avenue, Wheeling, Ohio County, West Virginia, in the Northern Judicial District of West Virginia, there is now being concealed a certain property, namely, a 1970 Chevrolet automobile, VIN 1363-70A119308, reportedly stolen from James Bertuca, 4713 Hatfield Street, Pittsburgh, Pennsylvania, which is property constituting evidence of a federal crime, namely violation of Title 18, Section 2313, United States Code.

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

"The aforesaid 1970 Chevrolet automobile, VIN 136370A119308, was reported stolen in Pittsburgh, Pennsylvania, on or about March 17 or 18, 1970.

"In July, 1970, a responsible citizen reported to an agent of the Federal Bureau of Investigation, Cincinnati office, that one Gene Roman endeavored to obtain an Ohio Certificate of Title for the 1970 Chevrolet automobile, VIN 136370A119308, reported stolen as stated aforesaid.

"An officer of the Police Department of the City of Wheeling, Ohio County, West Virginia, reported that he saw the back end of a 1970 Chevrolet automobile in the garage of the house located at 889 Ivy Avenue, Wheeling, West Virginia.

"The Wheeling City Directory lists that Eugene H. Roman is a resident of the premises situated at 889 Ivy Avenue, Wheeling, West Virginia."

The Fourth Amendment's exactions of the affidavit for a search warrant are set forth precisely in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964). Cf. United States v. Ross, 424 F.2d 1016 (4 Cir. 1970). When based solely on the hearsay report of an unidentified informant, the affidavit must under the tenets of Aguilar recite "some of the underlying circumstances from which the officer concluded that the informant * * * was `credible' or his information `reliable'", 378 U.S. at 114, 84 S.Ct. at 1514. See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Presently the United States concedes that the affidavit's form does not "meet the Aguilar standard" in that it fails to supply the grounds for the veracity accorded the informer. Nonetheless, it vigorously emphasizes that the very circumstances detailed in the affidavit inherently give credence to belief in Roman's guilt. See Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. 584. To us this is the inescapable impartation of the affidavit — its very essence. In sum, the internal content of the affidavit intrinsically proves the truth of the "responsible" citizen's word.

Notably, informant's report to the agent about application for the car's titling described the vehicle by the precise engine number. He would not have had this information without intimate knowledge of the application document — a fact which forcefully enhances the probity of the affidavit. Significance of the informer's knowledge of the car number is questioned by Roman in that...