455 F.2d 804 | 9th Cir. | 1972
Lead Opinion
Christopher Boyer, an Arizona prisoner, appeals the District Court’s denial of his petition for habeas corpus. His sole contention is that the search warrant under which he was stopped, his car searched, and marijuana found in his possession seized was issued without probable cause.
On January 3, 1969, Officer Walter Hinson sought a warrant to search Boyer’s car from Justice of the Peace James F. Brierley. He was accompanied by Officer Lloyd Jewell. Judge Brierley immediately placed Hinson under oath, and was told that a warrant was desired against Boyer’s car because extensive personal surveillance by Hinson and Jewell indicated that Boyer was involved
Hinson also told the magistrate that the informer’s tip was based on personal knowledge and close association with Boyer. Finally, the magistrate learned that the informer had previously stolen marijuana from Boyer’s car, that he had personally bought marijuana from Boyer, and that he knew of others who had made similar purchases.
In determining probable cause for the issuance of a state warrant in Arizona, magistrates may consider not only the written affidavit but also any oral testimony given to them under oath by the affiant officer. Sherrick v. Eyman, 389 F.2d 648 (9th Cir. 1968); State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969). However, the standards laid down by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) are fully applicable. Since the informer’s tip here was a necessary element in the determination of probable cause, it must be examined to determine if it, alone, withstands the Aguilar tests. Spinelli, supra, at 415, 89 S.Ct. 584. “ . . . [T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was ‘credible’ or his information ‘reliable’.” Aguilar, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514. Both these tests have been met in this case.
First, the magistrate had sufficient information to determine independently the reliability of the informer. The af-fiant officer told him of the investigations and conviction which had resulted from another tip from the same informer. He knew that the informer had given accurate information describing Boyer and his car and identifying the house where the police knew pot parties had been held. The magistrate was not told the informer’s identity, or that the informer used marijuana while in jail at the time the warrant was issued. However, neither of these facts preclude a finding that the informer was “credible” and his information “reliable.”
Second, the magistrate was given a sufficient statement of the underlying circumstances from which the informer concluded that Boyer was running a marijuana business. He knew that the informer was a close personal acquaintance of Boyer and had stolen and purchased marijuana from him. Even absent a clear statement of the method by which the informer gathered his information, the information covered Boyer’s criminal activity in sufficient detail that the magistrate could “know that he [was] 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, supra, 393 U.S. at 416, 89 S.Ct. at 589.
We are not faced with a record devoid of the oral information which the af-fiant officer gave to the magistrate. It is clear that the magistrate was given enough information to make an independent determination that probable cause existed to issue the warrant.
Affirmed.
. The Supreme Court of Arizona considered and rejected his contention in State v. Boyer, 106 Ariz. 32, 470 P.2d 439 (1970).
. The written affidavit submitted to the magistrate read as follows:
IN THE JUSTICE COURT
Flagstaff Precinct, County of Coconino, State of Arizona
State of Arizona,
Plaintiff,
v.
1956 Ford 2 Dr. Sta. Wagon-Lie. HCA 924 (Ariz) registered to Chris Boyer,
Defendant.
AFFIDAVIT
Walt Hinson, being duly sworn, deposes and says that he has reason to believe, and does believe that a 1956 Ford 2 Dr. Sta. Wagon-Lie. HOA 924 (Ariz) registered to Chris Boyer has in possession upon those certain premises in said vehicle, with in Coconino County, Arizona certain property, with intent to use it as a means of committing a public offense, said property consisting of Marijuana, narcotics, any drugs and paraphernalia incidental thereto.
/s/ Walt Hinson
Subscribed and sworn to before me this 3rd day of January, A. D. 1969.
/s/ James F. Brierley
Justice of the Peace of said Precinct.
Dissenting Opinion
(dissenting):
I respectfully dissent.
In Sherriek v. Eyman, 389 F.2d 648 (9th Cir. 1968), we reviewed the Arizona search warrant issuance procedure that was here employed. I dissented from the majority opinion in that case because it held that certain unspecified oral “information,” given to the magistrate by the affiant police officer at the time the warrant was requested could and, in fact, did “cure” the inadequacy of the officer’s written affidavit. It was my opinion that the challenged procedure thwarted subsequent, independent, and adequate review of the basis for the issuance of a search warrant and was constitutionally infirm. 389 F.2d at 654. I wrote:
“It seems apparent to me that there could never be proper review as to whether there existed a ‘substantial basis’ for the magistrate’s ‘judicial determination’ unless somewhere, in some manner, the ‘basis,’ whether ‘substantial’ or insubstantial, appears upon the record.”
I still strongly adhere to that position. I do not believe that the constitutional requirements imposed upon government officers seeking warrants, see, e. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), can be, in effect, overborne by the operation of state procedural law. That, however, is what the majority herein allows.
The shortcoming in the present case is not as egregious as it was in Sherriek, since, marking an improvement, there is some evidence of what the affiant officers told the magistrate. The problem, ignored by the majority, is, simply, that that evidence is confused and unreliable. The majority opinion may be ready to imply that a transcript was made of the proceedings conducted when the warrant was requested. That is not the fact. The only evidence of what transpired when the warrant was issued is to be found in the transcript of Boyer’s trial. During the trial, which was conducted in July, 1969, almost seven months after the search was authorized, the police officers and the magistrate testified. They related, as best they could, their memories as to the events of the January 3d proceeding. It is from this, alone, that the majority concludes, in effect, that there was a substantial basis for the issuance of the warrant.
The problem inherent in relying upon belated oral testimony to find that the existence of probable cause was demonstrated at an earlier hearing is obvious. Memories are blurred by the passage of time and by the wisdom gained through hindsight. Critical facts may be forgotten, and the possible initial uncertainty of the affiant may vanish when the search proves to be fruitful. Inadvertent additions to the remembered conversation are not unlikely.
Here, the transcript, as presented to us,
The most significant aspect of the magistrate’s difficulties in recalling the incident is the fact that, on the record before us, as the magistrate remembered the oral information supplied to him by the police, it was insufficient under Harris, Spinelli, and Aguilar. Those cases hold that when an application for a warrant is based upon an informer’s tip, the existence of probable cause depends upon satisfaction of a two-part test. As the majority notes, the police must demonstrate to the magistrate
“some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information reliable.”
Aguilar, supra, 378 U.S. at 114, 84 S.Ct. at 1514.
“Prosecutor: Did [Officer Hinson] advise you of any other facts about the informant other than the informant being [sic] reliable and been used [sic] in another case ?
[The Magistrate]: No. All I had was the statement that he was a reliable informant, [Officer Hinson] gave me the facts as to the — as to his reliability and that was accepted by me.”
From this, it appears that, contrary to the majority’s interpretation of the record, the magistrate was not advised as to how the informer acquired his information. Nor was he advised that the informer was a close personal friend of Boyer who had detailed factual information which would lead the magistrate to “know that he [was] relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on [the suspect’s] general reputation.”
The significant discrepancies between the proffered versions of the January 3d proceedings clearly mark the evil promoted by the Arizona procedure. In some cases, as here, it will be obvious that there is confusion as to what ac
. If I could find adequate reliable evidence of the facts outlined in the majority opinion, I would readily concur with that opinion. The procedures followed in this case, however, trouble me greatly.
. Such possible additions are of critical importance, for “it is elementary that in passing on the validity of a warrant the reviewing court may consider only information brought to the magistrate’s attention.” (Emphasis in original.) Aguilar, supra, at 109, n. 1, 84 S.Ct. at 1511, citing Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509-1510 (1958).
. The record before this court of the testimony offered by the police officers and the magistrate is incomplete. It is, of course, the burden of the state to prove that there was sufficient evidence offered when the warrant was requested.
. This test is explicitly recognized in Harris and Spinelli.
. This is the test of “underlying circumstances” articulated in Spinelli, supra, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 643-644 (1969). It is irrelevant that the police could have supplied such information. They must have actually done so. See note 2, supra.
