United States v. Thornton, 23017.

Citation147 US App. DC 114,454 F.2d 957
Decision Date21 October 1971
Docket NumberNo. 23017.,23017.
PartiesUNITED STATES of America v. Charles J. THORNTON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. John A. Shorter, Jr., Washington, D. C., for appellant.

Mr. James L. Lyons, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before TAMM and ROBINSON, Circuit Judges, and MATTHEWS,* Senior District Judge, United States District Court for the District of Columbia.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was convicted on a federal narcotic charge stemming from his possession of 20 capsules containing heroin.1 The capsules were found in an envelope removed from his shirt pocket during a search incidental to his arrest2 on a warrant charging another violation of the federal narcotic laws.3 The arrest warrant had been issued by a United States Commissioner on the basis of an affidavit by Walter S. Fialkewicz, a special agent of the Bureau of Narcotics and Dangerous Drugs.4 The affidavit, appendicized to this opinion, detailed information derived partly from an unnamed informant and partly from the agent's own experiences.

At the onset of trial, the court conducted a hearing on a defense motion to suppress the evidence pertaining to the discovery of the capsules on the ground that the arrest warrant had issued for insufficient cause. At that hearing, appellant's counsel sought but was denied leave to examine Agent Fialkewicz in an effort to elicit testimony as to the informant's previous reliability.5 The sole contention on this appeal is that the trial judge erred in denying that request. We affirm in the view that whatever an accused's entitlement to such a probe might be under different circumstances, it did not exist under those obtaining here.

I

In undertaking an exhibition of probable cause for appellant's arrest, Agent Fialkewicz comprehensively alleged in his affidavit the facts on which he counted. Those allegations we may profitably summarize. A confidential informant, "whose information has proven to be reliable in the past,"6 told two agents that Robert D. "Bobby" Long and our appellant, Charles J. "Boo" Thornton, were peddling narcotics from a designated room in a designated building. Orders could be placed by calling a certain telephone number and asking for either "Bobby" or "Boo," who would then arrange for and make delivery on the street. Agent Fialkewicz dialed the number and, getting an answer, handed the telephone to the informant who asked for "Bobby." He was told that "Bobby" was out and that he was speaking to "Boo." The informant ordered 25 "things," and was instructed to wait for "Bobby" on a nearby street corner.7

A search of the informant had demonstrated that he possessed no drugs or money, and he had been furnished funds with which to consummate the purchase. As Agent Fialkewicz watched, "Bobby" Long emerged from the building and at the appointed street corner met the informant, who met or spoke to no one en route. There what appeared to be an exchange was made, after which Long left and reentered the building. Another search of the informant disclosed that he then had no money but instead had 25 capsules in which there was a white powder containing a later-identified opium derivative. The informant stated that he bought the capsules from Long with the money advanced, and positively identified both Long and appellant from police photographs. Each had a previous federal narcotic conviction; each was "well known to the affiants8 as being involved in the illicit narcotic traffic in this area," and "well known by members of the MPD Narcotic Squad."9

The detail of the affidavit does not obscure the fact that probable cause for believing that appellant participated in the drug sale Agent Fialkewicz witnessed had to rest heavily upon the informant's word. Much, then, depended Long's partner in the illicit scheme, and that appellant was the party with whom the observed sale had been telephonically arranged. The agent never saw appellant during the course of the events the affidavit described, nor is it clear that he heard the other end of the informant's telephone conversation producing the sale.10 In sum, the only nexus between appellant and the drug transaction in question was that supplied by the informant's word. Much, then, defended on the informant's reliability, and our task is to determine whether appellant should have been permitted to interrogate Agent Fialkewicz in that regard.

We approach that task, as we must, step by step. In Part II of this opinion, we identify the legal principles forming the backdrop for consideration of appellant's request. In Part III, we analyze the situation portrayed by the affidavit in order to isolate the informant's role in the magistrate's determination of probable cause. In Part IV, viewing the trial judge's ruling in the perspective thus gained, we find insufficient reason to upset it.

II

"The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ." These are inexorable commands of the Fourth Amendment, and they subserve fundamental objectives. "The informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests."11 The probable cause requirement —applicable to arrests as well as searches12—is a shield against despotic utilization of governmental power. The Warrant Clause assures that the factual inferences undergirding a warrant "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."13

Here Agent Fialkewicz pursued the commendable course of an arrest upon rather than without a warrant. As probable cause for appellant's arrest, he made oath to the informant's disclosures and to his own observations as well. The Commissioner to whom he made application issued the warrant, an action in which a finding of probable cause is implicit. Appellant does not contend, nor hardly could he, that probable cause for the arrest did not appear if the informant could be believed.14 It is the reliability of the informant's story, and not its efficacy if trustworthy, that appellant wished to explore with the agent at the suppression hearing.

That the information upon which, in whole or in part, a warrant issues is hearsay to the officer-affiant, as distinguished from facts personally known to him, does not ipso facto negate the existence of probable cause.15 If a "substantial basis for crediting the hearsay is presented," that constitutional mandate is met.16 It is not enough, however, that the affiant himself is satisfied that the information and its source are credible.17 As we have said, it is for the magistrate from whom the warrant is sought, and not the officer seeking it, to determine whether there is probable cause to issue it.18

In order that the magistrate may intelligently make that determination, it is necessary that he be given the facts. For just to the extent that the magistrate is presented with conclusions instead of facts, it is the officer rather than the magistrate who makes the appraisal. And where probable cause in some wise depends upon the acceptability of hearsay, facts bearing on the reliability of the information and its source become very relevant. The magistrate must be sufficiently advised to make possible a valid judgment that more likely than not the informant is to be trusted and knew what he was talking about.19

So it is that an affidavit for a warrant must set forth "some of the underlying circumstances from which the informant concluded" that there was a legal violation "and some of the underlying circumstances from which the officer concluded that the informant . . was `credible' or his information `reliable.'"20 To provide probable cause, the affidavit must authorize a supportable "inference that the informer was generally trustworthy and that he made his charge against the suspect on the basis of information obtained in a reliable way."21 "Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police."22 For "the purpose of the affidavit . . . is to enable the appropriate magistrate to determine whether the `probable cause' required to support a warrant exists. He must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion."23 And only through scrupulous observance of these requirements can the mandates of the Fourth Amendment be honored.24

Such, then, is the magistrate's function, to be performed upon a construction of the affidavit "in a commonsense and realistic fashion."25 Thereafter the magistrate's "determination of probable cause should be paid great deference by reviewing courts,"26 and sustained when "there was substantial basis for him to conclude" as he did.27 And "when a search is based upon a magistrate's, rather than a police officer's determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.'"28 For "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."29 "Where the underlying circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has...

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