SON, Before SIMPSON, Circuit *2 GEWIN, Judges. Circuit GODBOLD and SIMP- Judge: involved in the case that he had received Agent Torres advised the other agents [*] # [*] [*] [*] [*] information from a David Terance credible Frank Christian source that two men appeal Brownsville, Oiler from convictions for were violations relating staying the federal laws at the Ramada marijuana.1 Inn in Rooms 113 appeal The basis of their 133. that the district These men were driving pick- judge improperly denied their up motions to truck with a camper, and a motor suppress home, evidence. and that they were here in the appellants charged 1. Both charged and convicted was also and convicted under one conspiring possess possessing grams under one count for mari- marijuana, count for distribute, juana, 21, U.S.Code, with intent in violation of in violation of Title Section 21, U.S.Code, 841(a)(1) Sections 844(a). Title possessing pounds and one count distribute, marijuana, intent in violation participated Morrison testified that he had 21, U.S.Code, 841(a)(1). Tuley of Title Section briefly January in the surveillance on transport a of mari- surveillance was quantity discontinued for Valley to day. Valley. north juana agent] D.E.A. Lofstrom Agent [another day, noon the next January About they had located me that advised agents and other resumed the sur- Morrison meeting description, both vehicles truck as it veillance moved *3 plates, at the Ramada with Oklahoma west, away from the Port Isabel area and driv- Inn, vehicles had also these and that McAllen, Texas. the direction As the Queen Island to the Padre en to South proceeded along Highway 83, vehicle near the the drivers of Inn where Isabella Mercedes, Texas, Morrison and two other entering observed had been vehicles truck, stopped pickup the agents which was Queen the Isabella 1 and Apartment by appellant Tuley and his occupied Dober- Inn. Pinscher. A pro- man search the vehicle that he advised me
Agent pistol Lofstrom duced .38 caliber under the front another marijuana information from and some had received seat debris in the Apart- point, area. At that camper Tuley that renter of D.E.A. office was Inn, Queen 2 of Isabella under arrest and advised placed ment 1 and of his con- Muller,3 rights. was Tuley involved in trans- was Robert stitutional then taken marijuana quantities of office porting large process- Brownsville district for area ing. to the from border Oklahoma
City Area. office, Tuley At Brownsville told on agents the other Janu- Morrison Agents Morrison and and Lofstrom that he was ' a Chevrolet truck ary persons unknown followed hired Oklahoma and a camper, Champion motor come to Brownsville City with a and Port Isa- Queen area, Texas, Isabella Inn to assist in bel, from the transporting home a large Isabel, marijuana Inn in Port Ramada quantity motel, Brownsville, Texas. At four Later he told the City agents area. vehicles, marijuana went people left the into room was in a motor home situat- placed from that and took articles room and ed on South Padre Island Beach. A search the pickup home,4 in the rear of truck. The was issued them warrant motor Isabel, shortly marijuana pounds two vehicles returned to-Port and 546 were found charged in the indict- 3. Muller was also same Tuley The Court: Had received earlier. But relat- ment with violations federal laws you himself had told is ain ing marijuana and additional offenses. His home on South Padre motor Island. it Was granted, for severance was and he was motion same that was motor home seen at the appeal separately, An tried convicted. Inn? Ramada as No. from his conviction docketed here Sir, Yes A. it was the same motor home. 75-4045. However, Tuley the information that told us concerning marijuana being in the motor testimony of 4. The Morrison indicates uncer- was included home warrant as he tainty as to whether the information received portion of us of that advised Tuley part of the the search basis for preparation of the after warrant. of the motor home: warrant IV, Appeal (R.App.), pp. on Vol. Record 8-9. [by what Then counsel]: Government Q. . . . The [defense]: search Q. you happened were told the mari- after about Champion motor home then did not take juana being the motor on South home out anything place Tuley as a result of Mr. told Padre Island? officers? Agent I assisted Lofstrom in A. [Morrison]: A. The search [Morrison]: of the motor preparing warrant a search for this motor place took as a result home of a warrant home. any I’m not sure if information that a warrant issued? Was Q. relayed Tuley Yes, Mr. contained in the it was. warrant A. mainly was based on what That or not. I don’t remember. The Court: you IV, when he arrested? R.App., p. told Vol. 18. warrant was based A. Yes Sir. The Agent Torres had and the information received earlier. 153, 155-156, followed, U.S. at on the ba- 285- arrest S.Ct. at Oiler’s therein. See Almeida-Sanchez home.5 marijuana found in the motor sis of States, 266, 269, 413 U.S. “per se A warrantless search is 2535, 2537, 596; 37 L.Ed.2d Chambers v. unreasonable, police can show unless the Maroney, 42, 49, 399 U.S. carefully 1975,1980, 419; of a falls within one it Potter v. pres exceptions based on set Cir. defined Coolidge ‘exigent’ circumstances.” ence of Thus, to justify stop and search 474- Hampshire, v. New a warrant of the vehicle driven 564. An 475, 91 S.Ct. case, present Tuley in the we must find that of a mov exists as to the search exception had probable the officers cause to believe vehicle, when cause exists ing it contained contraband. Probable as to war The seminal case such a search. *4 if “the exists cause and circumstances searches of vehicles Carroll v. is rantless are before the officer such as to warrant a 132, States, 1925, 267 45 U.S. S.Ct. United prudence of caution believing man in 453, 280, L.Ed. where the held: 69 Court has been that the offence being] is com [or “ Stacey . 1878, mitted . v. Emery, guaranty . . that the of freedom . 645, 24 642, 97 U.S. L.Ed. 1035. Spinelli seizures unreasonable searches and from States, 1969, 410, 419, v. United 393 89 Fourth been con- U.S. Amendment has by the 590, 584, 637; 21 Ohio, L.Ed.2d S.Ct. Beck v. strued, practically beginning since the of 1964, 89, 91, 379 U.S. 13 recognizing as a neces- government, 142; Henry v. States, 1959, L.Ed.2d between of a difference a search sary 168, 171, 4 134; 80 S.Ct. L.Ed.2d house, store, dwelling or structure Brinegar respect proper of which a official war- in 175-176, 1302, 1310-1311, S.Ct. may be obtained and a readily rant L.Ed. 1879. boat, ship, wagon, motor or of a search where goods, for contraband automobile Squella-Avendano, United States v. warrant, practicable to secure it is not Cir. this Court quickly the vehicle can be moved because on the commented composite Agui test of locality jurisdiction or in which out of States, 1964, lar v. United sought. must be the warrant Spinelli, supra1. “Having contra- thus established that “First, goods illegally concealed and trans- if is provided
band particularity’ in an automobile or other vehicle such ‘detail’ ‘minute ported magistrate, warrant, when be that ‘a confronted with may searched for without detail, could reasonably such infer that now to consider under what we come gained the informant his information be made. may such search circumstances way,’ report, in a reliable then if * * * * * * sufficiently incriminating, may, without legality a seizure measure of of such more, grounds for finding be probable seizing that the officer shall Secondly, cause. less detailed informa- probable reasonable or cause for from a reliable source may tion used believing that which he the automobile for a grounds finding probable as of and seizes had stops liquor independent contraband investigation if by cause law being transport- agencies illegally yields which therein enforcement sufficient ed.” verification corroboration of the infor- quarters involving charges against warrant for Muller’s at the 5. A search indictment Muller procured Queen cuted, resulting Inn then and exe- Isabella separately. tried are were severed We discovery of a small appeal only legality with the concerned on marijuana, amphetamine of tablets searches, amount not the first search of weapons, arrest. and Muller’s and numerous quarters. Muller’s indicated, 3, supra, the counts N. As ‘apparent to make it report plates), mant’s license and further fabricating had not been question Oiler) the informant the men in (Tuley and report of whole cloth.’ Corrobora- transport large quantities about mari- report ‘of the sort tion must render juana out the Rio Valley Grande to Okla- experience may be rec- in common which agents, through homa. The surveillance having been obtained in a reli- ognized investigation, were able to corroborate Thirdly, report way.’ even that is able essentials of this information. In addi- the above two standards suffi- not under significance, tion and the agents had probable cient of itself establish cause received information from another DEA the magistrate’s count in determina- may apartments that the appellants agent which cause, but probable as one of tion of observed visiting had been at Queen Isabel- of other factors ‘further a number were rented one Inn la Robert Muller tending support’ show cause. agent reported to be “involved in satisfactory sup- Examples of ‘further transporting large quantities marijuana given Spinelli involved law en- port’ the border area to the Oklahoma City knowledge of inde- agencies’ forcement area.” suggest which con- pendent facts criminal Thus, it seems reasonable to or of facts which take on an con duct aura light clude that while these tip.” matters considered suspicion informant’s separately might not be a sufficient basis here the source of the informer’s While *5 cause, probable agents when the con revealed, was nor how the information effect, their sidered combined cumulative gathered, was information detailed probable sufficient cause was present. It relayed agents and corrobo- coupled was necessary exigent cir nature, them were of such a in rated cumstances, moving vehicle, a Carroll v. surrounding circumstances, light all the States, supra, headed on way its reasonably the district court could the Rio Grande Valley. A warrantless have inferred the informer obtained camper Tuley of the search was operating “in his information a reliable manner and constitutionally permissible. See evidence on which to base had substantial Warden, Whiteley 1971,401 v. U.S. the Defendants his conclusion were 1031, 1036, 306; Draper engaged activity”. probably criminal States, 1959, 358 S.Ct. Memorandum Order of the District 327; Potter v. United Court, 9.p. 5 Cir. 362 F.2d 497-498. Brennan, 5 Cir. 711, 720, this “an Court noted that following The search of Oiler’s conforming accumulation of innocent detail permissible. motor home likewise original tip” may significant to the of the search camper results of the added to agents corroborative value. The prior knowledge provided a sufficient informed, by case had been in- present an for issuance basis of a search warrant. credible, a former said to as to number This is so whether or not the statements particulars regarding Tu- appellants by Tuley when made he was arrested were Oiler, including ley they where were magistrate or were not related to the who (motel staying numbers), and room the search issued warrant.6 Oklahoma, they were from physical a de- of appellants convictions are scription they of the us- vehicles would be ing (which vehicles were found to have AFFIRMED. 4, supra. Assuming legality (a)
6. See footnote
brief refers to the successive searches
of the
camper,
(b)
camper,
(c)
of the initial search
the fruits of
of the motor home and
of Mul-
properly
premises
“piggy-backed” upon
pre-
that search were
used to establish
ler’s
subsequent
ceding
cause in a
search.
searches.
States, 1963,
Tuley
urges
Appellant
trial
Wong
also
court
Sun
v. United
by refusing
government
erred
allow
to call his
It is
adds additional
tip
Officer
to state
Torres from an
information to the
The
calculus —that
the mari-
informant,
said
Torres to
juana was to be
transported to the
of unidentified
State
source,” even if
(rather
we consider its
north
a “credible
than
described,
incorrectly
to be as
contents
fails
valley)
that the two vehicles had Okla-
Agui-
test
prongs
of the
established in
plates.
both
homa license
search)
(for
concerning
which Morrison
home
the affidavit
the mobile
No one testified
typed.
not introduced.
It was
he
said
1271
of the
read Brennan’s illumination
kind
108,
1509,
84
12
v.
378 U.S.
S.Ct.
lar
required by Draper
corroboration
v. United
(1964).2 Aguilar requires that
723
L.Ed.2d
States,
S.Ct.
3 L.Ed.
agents
(1)
tipster’s report inform
(1959),
Spinelli
v.
2d
United
underlying
which
of the
circumstances
some
393 U.S.
1272
number,
(CA5, 1973),
was “patently
denied,
tail
insufficient
cert.
993,
416 U.S.
94
;
precisely
type
2405,
of
inno
40
S.Ct.
L.Ed.2d
(1974)
772
(tipster
gave
detail held to be of insufficient
physical
cent
corrob
descriptions
suspects,
of
sites
Spinelli
origin
arrival,
itself.”
value in
538 F.2d at
of
orative
model and license of
car;
Similarly,
police
we
Draper-type
720.
have no
corroborated these details and
Indeed,
through
have
also
extensive
here.
we
even less of it
surveillance
detail
discov
driving
ered a
pattern
in Brennan. These are the
not “in
than
external
the manner
or
typical
businessmen”);
of
tourists
by Judge
and observations described
events
Sellers,
v.
37,
(CA5,
States
483
(1)
F.2d
41
Simpson as corroborative:
The described
denied,
1973),
908,
cert.
417
Inn;
U.S.
94 S.Ct.
were indeed at
Ramada
vehicles
2604,
(1974)
1273 414, 588, at 89 pra, 393 U.S. S.Ct. at 21 an accu- facts from occurrences, or receives 642; Moylan, Hearsay L.Ed.2d at and on, is of relays them source rate Aguilar Spinelli An Cause: that it tends Probable extent to the significance Primer, (1974). 25 Mercer.L.Rev. 741 reliability of his conclusion prove e., suspect is com- score, that i. critical (footnote omitted). 720 F.2d at 538 cir- is The corroboration crime. mitting a problem of inferring probable The cause reliability as a his of evidence cumstantial criminality from that not details do tend of of- criminal particular of describer criminality perhaps lurking is be to show reliability as a His concern. fense(s) of opinions suggest hind several which that abstract, reporter or as a describer Draper’s although “minute particularity” Tues- today that is sky is blue that detail, “criminal” not be need it should be Aguilar Spinelli what really not is day, private of comprised tending facts at least with. concerned are that the informant has per some to show an the notion that with uneasy I am suspect’s scheme, to the pipeline rath sonal details can be “innocent”6 of accumulation “public” than information er available to bridge to an an intellectual employed large. at world See United con- cause of criminal of 866, (CA7, inference 1975) (“It F.2d 871 Spaeh, 518 is concurrence, Justice Spinelli In duct. that [Draper-type] relevant less about uneasiness a similar voiced White wholly innocent in itself than with cor is embracing a sub- tipain credence placing of an conclusions informer’s so roboration readily are facts that of number pub stantial information is not common long as the fact, large.7 public to the Larkin, available knowledge”); United States v. lic that the best noted in Brennan Judge Clark 13, (CA9, 1974) (information 15 510 F.2d is corroboration corroboration type readily by any bystander obtained “could be “incriminating” details. observing the vehicle on the road from El Angeles”); to Los United States v. consensus on the Centro is no
Although there
Hamilton,
(CA9),
601
cert.
corrobo-
required to
of information
type
denied,
tip,
generally
it is
informant’s
an
rate
(1974) (tip
probative,
held not
practice is to ob- L.Ed.2d
the better
agreed
supported by nothing
“statement
incriminating
given
de-
a
corroboration
tain
open
anyone”).
not
and obvious to
su-
that was
Spinelli v. United
tails. See
accurate,
historically
tively
an
but also
for is that
of the tenth and
truthful
existence
easily duped
information-gatherer
mere
not
sufficiently probable
is made
critical fact
Sellers,
Cf.
rumors.
barroom
by verifying
justify
aof
the issuance
warrant
denied,
1973),
(CA5,
cert.
coming from the same
facts
nine other
(1974)
L.Ed.2d 212
source,
my
about
that case.
I have
doubts
very reliable informant such
(suggesting
a
proposition
place,
is not
“In the first
on the
agent
for less evidence
allows
FBI
as an
may
logically
inferred
tenth fact
source-of-knowledge
prong).
or that
the tenth fact is
the other nine
course,
prior
of 50 out of
record
Of
conjunction
usually
with the other
found
average,
batting
good
would be
perhaps a
while
suggest
just anyone
No one
nine.
investigatory
only questionable
evidence
Draper
getting
train dressed as
off the 10:30
point
have no de-
is that we
here
skill.
carrying
zipper
was,
a brisk walk
with
us
scription
that can reassure
this informant
carrying
criminality
bag,
narcot-
He
be arrested
was afoot.
should
his belief
about
anonymity.
Draper
paradigm of
thrust of
ics. The
is a
independent
significance
verified
delicately due to
somewhat
this word
I treat
proof
argu-
respect
tenth. The
Rebell,
problems of characterization.
reliability
relates
ment
instead
Amend-
and the Fourth
Informant
Undisclosed
Standards,
right
Meaningful
informant
about
because an
source:
A Search
ment:
right
probably
things,
n. 82
he is more
about
719 &
Yale L.J.
some
critical,
facts, usually the
unverified
arrival
“Unquestionably,
verification
facts.”
honesty
dress,
time,
gait reinforced the
426-27,
even reputation, of Muller’s knowledge
officer’s opinion in Part II of the referred
as Harris, v. (1971).8 If there America, UNITED STATES report basis for the such a indeed Plaintiff-Appellee, office, unre City it was Oklahoma alone, the mere fact that Standing vealed. SMITH, Defendant-Appellant. Carol the in officials transmit enforcement law reliability. its cannot corroborate formation No. 76-1421. Morrison, could have example, Officer Appeals, Court of Phoenix, DEA third to a relayed office— Fifth Circuit. his office Arizona, say let us —the Torres, dis through Officer received had 14, 1977. Feb. report through Passing above. cussed chords, Mor office, of Officer and vocal nothing to its could add Phoenix rison passing more than reliability, any
unknown through gave Torres it au original tip manner, passing the same
thenticity. In through about Muller “information” reliability it gave office no City original tip. corroborative
as evidence Warden, Whiteley did not Significantly, Garza report as corroboration. this
rely upon we see surveillance which this case nor neither sufficient detail
corroborates (or even suggestion of criminal
sufficient to make the infor- behavior so as
suspicious) described) (even incorrectly
mant’s The mere observation one.
probative same same motel rooms and
two men opinion asserting tion of the Justice’s Chief with the informant-credibili- dealt 8. Harris personal knowledge Aguilar; what affiant officer’s ty prong it never considered that the adequate satisfy information-reliability suspect satisfy might former factors solely personally prong represented tipster his views and those of prong observed since whiskey. por- Black and Blackmun. purchased Justices illicit indeed