United States v. Sellers

• Decision Date: 07 November 1973
• Docket Number: No. 72-3733.,72-3733.
• Citation: 483 F.2d 37
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles E. SELLERS, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 37 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Charles E. SELLERS, Jr., et al., Defendants-Appellants.

No. 72-3733.

United States Court of Appeals, Fifth Circuit.

July 26, 1973.

Rehearing and Rehearing Denied November 7, 1973.

COPYRIGHT MATERIAL OMITTED

Calvin M. Whitesell, William R. Gordon, Montgomery, Ala., for Sellers & Sexton.

Joseph D. Phelps, Philip H. Butler, Montgomery, Ala., for Carr.

Ira DeMent, U. S. Atty., D. Broward Segrest, David B. Byrne, Jr., Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 7, 1973.

CLARK, Circuit Judge:

Sellers, Sexton, and Carr appeal from their convictions for the use of a wire communication facility for the transmission in interstate commerce of wagering information in violation of 18 U.S.C. § 1084(a). We find no merit in any of the contentions raised on this appeal and therefore affirm the convictions.

Validity of the Search Warrant

The Unidentified Informer's Tip — The appellants first urge that the warrant authorizing the search of the premises on which the gambling operations were conducted did not comply with the standards set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and further explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). These cases hold that an affidavit based solely upon an unidentified informer's tip may provide the probable cause basis for the issuance of a search warrant if the affidavit contains sufficient objective assertions from which a detached magistrate may reasonably conclude that the hearsay should be credited. In these rulings the Supreme Court established a two-prong test for assaying affiants' hearsay statements: (1) the affidavit must present sufficient objective evidence to enable the magistrate to conclude that the unnamed informant is credible or that his information is reliable, and (2) the affidavit must set forth some underlying circumstances which reveal the source of the informer's information pertaining to the criminal activity.

The appellants here do not challenge the sufficiency of the instant affidavit¹ to meet prong (1) — the reliability of the unidentified informer. Rather, they contend that the affidavit in this case fails to satisfy prong (2) — the requirement that the warrant disclose the underlying circumstances from which the informant drew his conclusion of criminal activity so as to enable independent magisterial evaluation.

The face of the affidavit in the case at bar does not expressly state any source for the informer's information. The government, however, contends that a reading of the entire affidavit discloses sufficient detail to satisfy the alternative prong (2) standard enunciated in Spinelli because the affidavit describes the criminal activity "in sufficient detail that the magistrate may know he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.

Though appellants quarrel somewhat with the Spinelli premise that a sufficiently detailed affidavit may support the inference that the informant gained his information in a reliable way, their principal argument is that the affidavit in this case does not meet that standard. They contend that the affidavit here is little more detailed than the one found defective in Spinelli and that the objective facts set out do not support the requisite inference. We disagree. As did the affiant in Spinelli, the affiant here, Mr. Painter, asserted that two telephones were located on the premises to be searched and that an informer who had proven to be exceptionally reliable had stated that the suspects were operating a gambling enterprise. Unlike the affiant in Spinelli, however, Mr. Painter did not content himself with a mere conclusory statement that the defendants were conducting a gambling operation. Instead, he went on to outline the administrative hierarchy of the bookmaking operation to the magistrate by swearing that he had been told that two of the individuals furnished "the line" to and "handled layoffs" for the third, and that the third individual disseminated "the line" locally. These detailed statements relating to the organizational procedures of the gambling operation provided a basis from which a detached judicial officer could reasonably infer that the informant must have had specific and direct knowledge of this particular bookmaking operation. In addition, Mr. Painter disclosed to the magistrate that he was advised that two telephones were maintained at each of two other specified addresses and that frequent long distance toll calls were made between all three addresses. He also stated that the telephone service at one of the addresses was in the name of Michael Canon, and opined that Canon was a known gambler. A magistrate could have reasonably inferred from his wealth of detail as to the inter-use of these telephones that the information was the product of the informer's personal knowledge or that the informer had access to and had examined telephone survey records.

Moreover, common sense impells the conclusion that when a confidential informer is shown to be unusually reliable, the magistrate may place added credibility in such information in the affidavit as reveals the precise source of the informer's knowledge. The affidavit before us here recites that the informant had furnished reliable information on more than one hundred occasions.² In cases where the affidavit presents such cogent assertions of reliability the quantum of underlying circumstances which reveal the source of the informer's knowledge necessary to sustain the affidavit is clearly less than in cases where the indicia of informer reliability is less dramatic. In sum, either of the two objective standards from which the magistrate is to judge the worth of the hearsay may support, although it may not displace, the other. See United States v. Crawford, 462 F.2d 597 (9th Cir. 1972); cf. United States v. Roth, 391 F.2d 507, 511 n.5 (7th Cir. 1967). While the instant case is both a unique and close one, on these facts we hold that the face of the affidavit properly permitted the magistrate to infer that sufficient probable cause was shown to justify the issuance of a search warrant.

It is not the intent of the Aguilar and Spinelli decisions to make it difficult for a policeman to get a warrant if in fact he has probable cause. On the contrary, the cases contemplate that an affiant with some basic understanding of the law can get a warrant if he has probable cause and simply sits down and explains why. Accordingly, we have evaluated the warrants in this case not under technical requirements but against the benchmark cases that the Supreme Court has indicated we should use. In doing so, we have construed the preference for searches under warrants to imply that the benchmark cases are concerned with practical inferences that may be taken from the facts as a whole.

Gonzales v. Beto, 425 F.2d 963, 970 (5th Cir. 1970) (footnote omitted).

State Search Warrants and Federal Rule 41 — Relying on this court's recent opinion in United States v. Brouillette, 478 F.2d 1171 (5th Cir. 1973), which held that a warrant may be issued by a United States Commissioner to federal officers only upon a showing of probable cause to believe that a federal crime has been committed, the appellants mount a second, more technical, attack on the state court search warrant. They contend that the fruits of the search, conducted under authority of the warrant issued by an Alabama judge on a probable cause showing of a breach of Alabama law, but not federal law, are not admissible in a federal prosecution. This somewhat startling contention is based on the premise that the federal involvement in this particular search made it equivalent to a federal search and thus subjected it to the technical requirements of Rule 41 of the Federal Rules of Criminal Procedure,³ including the Brouillette requirement that the warrant only issue upon a showing sufficient to establish probable cause to belive a federal crime has been committed.

Despite the government's contention that the fact is otherwise, we assume for the purpose of this decision that there was sufficient federal involvement to require that the search be treated as a federal search.⁴

At the same time we note that there is no suggestion that the state participation in the search was not a bona fide effort to secure evidence of a violation of state law for use in a state prosecution.

In Navarro v. United States, 400 F.2d 315 (5th Cir. 1968) (hereinafter Navarro I),⁵ this court held that the fruits of a search conducted jointly by federal and state officers pursuant to a state warrant were improperly admitted into evidence in a federal prosecution since the warrant was not issued by a "court of record" as then required by Rule 41.⁶ The question presented here, where the search was conducted by federal and state officers under the authority of a warrant issued by a state court on the affidavit of a state officer which averred that evidence of a state crime might be found, is whether Navarro I requires the suppression of the fruits of that search in a federal prosecution because the warrant was not secured through procedures which complied in all respects with the requirements of Rule 41.

Properly read, Rule 41 grants the authority to designated judicial officers, federal and state, to issue federal search warrants. The authority granted to state courts under this rule is in addition to the state-vested power of those courts to issue a warrant upon a showing that probable cause exists to believe a violation of state law has occurred. While Rule 41 sets out the procedure to be followed in issuing a...