United States v. Wylie

• Decision Date: 21 April 1983
• Docket Number: No. 82-5150.,82-5150.
• Citation: 705 F.2d 1388
• Parties: UNITED STATES of America, Appellee, v. Gilbert WYLIE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

705 F.2d 1388

UNITED STATES of America, Appellee, v. Gilbert WYLIE, Appellant.

No. 82-5150.

United States Court of Appeals, Fourth Circuit.

Argued January 14, 1983.

Decided April 21, 1983.

Thomas B. Hamilton, Deputy Federal Public Defender, Baltimore, Md. (Richard B. Bardos, Law Clerk on brief), for appellant.

James P. Ulwick, Asst. U.S. Atty., Newark, N.J. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before HALL, MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Gilbert Wylie was convicted at a bench trial on March 10, 1982 of possession with intent to distribute, conspiracy to distribute, and conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment had been based in part upon evidence seized from an apartment located on Garrison Street on May 22, 1982 pursuant to a search warrant issued on March 18, 1982. After his indictment but prior to trial, Wylie sought to have the evidence so seized suppressed, but after a hearing his motion was denied. Wylie now appeals from his conviction, arguing solely that his Motion to Suppress Tangible and Derivative Evidence was wrongly denied.

Wylie contends that there was an insufficient basis for the magistrate's finding of probable cause. The search warrant issued was based upon two affidavits sworn to by Drug Enforcement Administration special agent John F. Ryan. Within those affidavits, Agent Ryan refers frequently to information supplied to him by two anonymous informants, Source One and Source Two. The two informants in turn are quoted with some regularity as to information supplied or statements made to them by various other anonymous persons. Thus, the affidavits contain two layers of hearsay.

As the appellant acknowledges, hearsay is not in and of itself illegitimate in an affidavit offered in support of an application for a search warrant. As long as a "substantial basis for crediting the hearsay is presented," such hearsay may be sufficient to establish probable cause. Jones v. United States, 362 U.S. 257, 269, 271, 80 S.Ct. 725, 735, 736, 4 L.Ed.2d 697 (1960). There must be information offered to the magistrate from which he or she can independently assess the informant's reliability, credibility or veracity; and there must be a statement of the circumstances underlying the manner in which the information was gathered (or, at the very least, a detailed description of the accused's criminal activity) sufficient to allow the magistrate to conclude that there is before him or her "... something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1964); United States v. Harrick, 582 F.2d 329, 331 (4th Cir.1978).

In affidavits containing two layers of hearsay, the same two-prong test must be applied to each level of hearsay. However, double hearsay may satisfy the test. United States v. Welebir, 498 F.2d 346, 349 n. 2 (4th Cir.1974) ("... Hearsay, even `second hearsay', may provide a legal basis for a search warrant."); United States v. McCoy, 478 F.2d 176, 179 (10th Cir.1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973) ("That an affidavit for a search warrant may be based on hearsay is well established.... Indeed, such is usually the case. As concerns so-called double hearsay ... when a magistrate receives an affidavit which contains hearsay on hearsay, he need not summarily reject this double hearsay information, but is rather called on to evaluate such information as well as all other information in the affidavit in order to determine whether the informant gathered his information in a reliable way and from reliable sources."); United States v. Wilson, 479 F.2d 936, 941 (7th Cir.1973) (en banc) ("If hearsay information is acceptable in arriving at probable cause, and it is, ... then hearsay based on hearsay should be acceptable as long as the police officer or magistrate has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar." citation omitted); see also United States v. Skramstad, 649 F.2d 1259, 1263 (8th Cir.1981); United States v. Kleve, 465 F.2d 187, 191-92 (8th Cir.1972); and United States v. Smith, 462 F.2d 456, 459 (8th Cir.1972).

In the case at bar, appellant Wylie concedes that Sources One and Two meet the first prong of the Aguilar-Spinelli test, that of veracity or reliability. Wylie argues, however, that, because the anonymous informants from which Sources One and Two gathered certain portions of their information do not meet either prong of the test, and because Sources One and Two therefore do not meet the second prong of the test (that of establishing a basis for their statements beyond speculation or rumor), the information in the affidavits is not adequate to support the magistrate's finding of probable cause. Wylie therefore contends that the issuance of the warrant was in violation of the Fourth Amendment. Wylie further argues that, even if the disputed portions of the affidavits might legitimately be credited by the magistrate, probable cause is not established.

Upon a close review of the record, however, we conclude that, even ignoring those portions of the affidavits challenged by Wylie, there remain in the affidavits sufficient first-hand information and hearsay meeting both prongs of the Aguilar-Spinelli test to establish probable cause and satisfy the Fourth Amendment. We therefore do not reach the issue of whether the disputed portions of the affidavit meet the requirements of Aguilar and Spinelli.

Numerous unassailable pieces of information in the affidavits connected Wylie to heroin trafficking. The affiant, Agent Ryan, described how he had been familiar with Wylie for more than two years. In March of 1979 the execution of three search warrants led to Wylie's arrest for possession with intent to distribute heroin. Ryan, who was familiar with the investigation of that case, stated that the three warrants had been for searches of two apartments and a motel room. The three locations had been rented by two "girlfriends" of Wylie's, and the searches of the locations produced quantities of heroin, over $7,000.00 in cash, 16 pounds of quinine hydrochloride, twelve jars of lactose (both used to cut or adulterate heroin), and other drug paraphernalia. At the time of the swearing of the affidavits presently before us, Wylie was awaiting trial on the charges growing out of the earlier search warrants.

Source One (whose veracity is unchallenged) reported first-hand observation of heroin, quinine (used to cut heroin) and other drug paraphernalia at the Eagle Coal Company in a truck in May of 1981. Agent Ryan reported in the affidavit that the truck was later found to have been titled to the company by Wylie, who was registered as the legal owner of the company. After establishing surveillance of the Eagle Coal Company on May 7, 1981, Agent Ryan observed, in the course of one day, numerous people coming and going from the company office while Wylie was there, saw Wylie counting money which one man had delivered, and heard Wylie tell another man that the "package" (which Ryan knew to be a slang term for heroin) would be ready the next day. Ryan saw Wylie leave the coal company premises in a particular tan colored van; the same van was observed leaving the parking lot of the Garrison Street apartment later that same evening without Wylie in it. Finally, Ryan saw someone he knew as "Bucky" arrive at the coal company, see it was closed, and leave. Source Two (whose veracity is also unchallenged) subsequently told Ryan that Bucky was a heroin distributor and that Source Two had personally bought heroin from Bucky.

Source One had told Ryan that Wylie could be reached at a particular phone number, which proved to be that of a woman living in the Garrison Street apartment. Source One also told Ryan that Wylie was in fact at the Garrison Street apartment...