UNITED STATES of America, Appellee, v. Edward DUNNINGS, Appellant.
No. 191, Docket 32527
United States Court of Appeals Second Circuit
Decided Nov. 17, 1969
Argued Oct. 2, 1969. Certiorari Denied March 23, 1970. See 90 S.Ct. 1149.
We find it unnecessary to attempt to forecast whether the Supreme Court will differentiate between the situations of the father and of the mother.4 In Levy and Glona the Court had no problem of defeating reasonable expectations that any party had entertained in the past. It held merely that the illegitimacy of the plaintiff or the decedent was not a constitutionally adequate defense to a wrongful death action. Obviously the defendants in those cases had not killed Mrs. Levy or Mr. Glona in reliance on their relatives being illegitimate. We deal here with a transaction carried out between the defendant and Mrs. Higgins twenty years ago when no one would have supposed Mary Ann Booker had any expectancy in the renewal of her father‘s copyright. We do not undertake to say precisely what degree of retroactive application, if any, Levy and Glona, may ultimately be given. We do say that, in light of the practical approach the Supreme Court has recently been taking with respect to the effect of novel constitutional doctrine, in the civil as well as in the criminal field, see Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Simpson v. Union Oil Co., 377 U.S. 13, 24, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), but see 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed. 2d 13 (1969); cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), it will not apply Levy and Glona so as partially to invalidate a commercial transaction carried out in good faith in the 1940‘s. It would hardly be suggested that if Higgins had died intestate and all his property had been distributed to his widow in 1937, Mary Ann Booker could now claim a share of the estate. We see no reason for a different result with respect to the copyright renewal right.
Affirmed.
Theodore Krieger, New York City, for appellant.
Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.
FRIENDLY, Circuit Judge:
Executing a search warrant issued by a United States Commissioner, five Federal narcotics agents knocked on the door of Apartment A-1 at 143 West 119th Street in Manhattan leased to one
Dunnings was indicted in the District Court for the Southern District of New York for concealing heroin in violation of
Raugh‘s affidavit seeking the issuance of a search warrant stated his belief that a quantity of heroin was being concealed in Apartment A-1 and set forth the following facts as tending to establish this:
An informant of the Bureau of Narcotics who has previously furnished reliable and accurate information on approximately 20 occasions over the past four years has informed your deponent that the above described premises are presently being occupied by Edward Dunnings a/k/a “Shirts“. The informant states that on a number of previous occasions within the past month he has been present with Dunnings in the above described apartment. This informant further states that on June 13, 1966, he had a conversation with Dunnings and Dunnings informed him that he has just returned from out of town. Dunnings further stated to the informant that he had just obtained a quantity of heroin which he was keeping in the above mentioned apartment. Dunnings stated to the informant that he planned to package the heroin this afternoon, that is, the afternoon of June 13, 1966, and that he would be available for business later in the day.
Your deponent has checked the records and files of the Bureau of Narcotics and has determined that Edward Dunnings a/k/a “Shirts” has previously been convicted of violation of the Federal Narcotics Laws on August 8, 1960. In addition, Edward Dunnings a/k/a “Shirts” is mentioned in nine separate recent investigations conducted by agents of the Bureau of Narcotics. Dunnings is alleged to be the source of supply for the Narcotics in most of these investigations.
Your deponent has received information from approximately five reliable informants to the effect that Dunning was in fact recently out of town. In addition, two reliable informants have provided information that Dunnings returned from out of town this weekend. All of the above described reliable informants have stated that Edward Dunnings a/k/a “Shirts” is presently engaged in the business of selling heroin.
Before the first trial, counsel for Dunnings moved to suppress, alleging that the affidavit was “insufficient in law to establish probable cause,” that it “states no facts sufficient to establish probable cause,” and that the warrant “was issued on the basis of an insufficient affidavit for search warrant and solely upon the belief of the affiant who made said affidavit and certain unsupported hearsay.” At the beginning of the first trial, Dunnings’ counsel requested a hearing with respect to the legality of the search warrant, to which he considered Dunnings entitled even in the absence of any facts discrediting the affidavit. Judge Tyler declined to conduct a hearing and denied the motion to suppress.
When we compare Raugh‘s affidavit with that in the most demanding Supreme Court decision yet rendered with respect to sufficiency, that of a sharply divided Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), it becomes plain that Dunnings was not entitled to suppression on the ground that the affidavit was insufficient as a matter of law. The informant‘s “tip” there stated in the most general terms that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136,” 393 U.S. at 414, 89 S.Ct. at 588---a report which “could easily have been obtained from an offhand remark heard at a neighborhood bar,” 393 U.S. at 417, 89 S.Ct. at 589. Here the informant stated with great specificity that he had been present with Dunnings in the apartment on several recent occasions and that Dunnings had reported he had just returned from out of town, had just obtained a quantity of heroin which he was keeping in the apartment and planned to package that afternoon, and would be available for business later. Dunnings’ recent absence was corroborated by five and his return by two reliable informants. The requirement of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that the affidavit set forth the “underlying circumstances” necessary to enable the magistrate to judge of the validity of the informant‘s conclusion thus was fully met. To be sure there was not the corroboration which the defendant‘s own acts had provided in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), but, despite Spinelli‘s reference to Draper as “a suitable benchmark,” 393 U.S. at 416, 89 S.Ct. 584, we do not read Spinelli as deciding that such corroboration is vital when, as here, the affidavit reveals how the informant received his information, see id. The only criticism that remains is that Raugh did not supply more details why he considered the informant to be reliable, e. g., by saying that the information so furnished had led to convictions. But here the admonition in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), against reading such affidavits with undue technicality comes into play. An allegation that the informant had “furnished reliable and accurate information on approximately 20 occasions over the past four years” is good enough. Cf. United States v. Perry, 380 F.2d 356, 357 (2 Cir. 1967), cert. denied, 389 U.S. 943, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967); United States v. Ramos, 380 F.2d 717, 719 (2 Cir. 1967).
Once the legal sufficiency of the affidavit is recognized, appellant‘s position necessarily becomes that, even so, a defendant is entitled to a hearing where he can probe whether the averred statements were in fact made to the af
Appellant‘s second point is this:
Raugh‘s testimony that the heroin “may or may not” have been in the apartment when Dunnings was not there does not indicate doubt that probable cause existed either when he made the affidavit or when he made the search but rather that he doubted his ability to execute the warrant as directed except when he knew that Dunnings was present. Under these circumstances we see nothing wrong with his waiting to execute the warrant until he determined that Dunnings had returned and he believed that the facts stated in the affidavit again obtained, assuming that all this occurred within ten days. To permit agents to make the judgment that the averments of the affidavit are again satisfied, after a period of doubt, does not undercut the policy requiring an independent judicial determination of the existence of probable cause. The commissioner had already concluded that the
Even if we were to think that the sole reason for the delay was to effectuate Dunnings’ arrest, it would not follow that the search was invalid. It is by no means clear that the “forthwith” phrase in
The court has received a letter from Mr. Dunnings which it has treated as a supplemental brief. The only point calling for comment is his assertion that he did not receive the effective assistance of counsel in the proceeding that led to his earlier conviction. No such claim was made below and the record sheds no light upon it.
Affirmed.
J. JOSEPH SMITH, Circuit Judge (concurring in the result):
I agree that the warrant was properly issued here. The only matter which gives me concern is the failure to obey the command that it be executed “forthwith.” Orders for the invasion of homes should not be loosely construed. See Judge Bazelon‘s concurring opinion in Mitchell v. United States, 103 U.S.App.D.C. 341, 258 F.2d 435 (1958). However, in the absence of any apparent prejudice here from the nine day delay (as the opinion points out, there is nothing to indicate that the heroin seized was not that which was there on June 13), I concur in the affirmance of the conviction. Cf. House v. United States, 411 F.2d 725 (D.C.Cir.1969).