United States v. Elmer Cummings

the state line. was his contention Atty., Larry Wald, Asst. U. S. Von that Sonsa was to meet at a Christensen D., appellee. Falls, Sioux S. stop Casper, Wyoming, truck near WEBSTER, LAY, Before ROSS direct him to Sonsa’s warehouse in Man- Judges. Circuit ville, Wyoming, where the slot machines storage. to were be unloaded for Sonsa Judge. ROSS, Circuit proceed was also to tell to Christensen court, Elmer Cum- a trial to the After Springs, Dakota, pick on to Hot South to mings counts of of two convicted was up player Cummings pianos two which transportation knowing of interstate purchasing from and from Sonsa gambling of U.S. in violation devices sup- there drive on to Sioux Falls. alleging appeals, that the He C. 1172. § port of his claim that he had no “know- suppressing cer- in not trial court erred ing” ship intent to the slot machines pur- had been seized tain evidence which pointed across state lines he to evidence finding warrant; in to a suant search originally that he and at- Sonsa had knowing to show a evidence sufficient tempted go to rent the trucks to to granting violation; to in continuance Douglas, Wyoming, agreed but had to government put on certain allow to rent them to Sioux Falls when the U- striking testimony in not and rebuttal agent Haul in had told them Riverton testimony af- from the record. We they must have an out-of-state destina- firm the conviction. tion. He on evidence that also relies Cummings Falls, South Da- is a Sioux stop James Christensen was told and to kota, operates a con- who businessman Casper wait for a in contact and jukeboxes various and cern which leases Sonsa did a warehouse in Manville have coin-operated ma- other amusement parts in which taken off the ma- trial facts adduced at the chines. The ultimately chines were stored. Addi- January, part in latter of reveal that willingly tionally, points he out that he Sonsa, Cummings and one Ernest approached law enforcement officers operates who a business similar to Cum- after learned that the machines had he mings Dakota, Springs, in Hot South Falls, been taken imme- to Sioux consummated a deal with one James diately any disclaimed intent to trans- sixty-odd purchase Wakefield to some port them and in commerce slot which Wakefield machines reputation and that he has a veracity truth for Wyo- Riverton, stored in a in warehouse community. in his ming. preparation transporting for government noted various incon- The machines, Cummings, these and Sonsa Cummings’ Prin- sistencies in version. removing them, Wakefield dismantled cipally, it was stressed Christensen Cummings reels; handles and in the had never been told what was trucks; Sonsa rented two Cum- U-Haul truck, way get pad- had no to into the mings and Wakefield loaded the first cargo it, area to unload had not locked ma- the two with dismantled slot trucks remaining importance of been told the arranged ; chines Wyoming until truck was unload- Falls, he knew Sioux brothers park to the truck ed and had been told Marlyn fly Christensen, James and to to parking near lot rather than in a bank Cummings’ separately Riverton to the trucks drive he arrived office when ready they The when to move. Also, James, the driver Falls. Sioux trucks, the slot first by truck, never told Cum- the first seized, driven machines were way mings Springs stop in Hot Riverton to James Christensen from Sioux Falls. Falls. Sioux judge, acting trial as the trier of the informant and that James Christen- fact, drew inference that all sen this se- had been identified as the driver along crecy Department with other inconsistencies Sioux Falls Police detec- Cummings’ joined version demonstrated the tive who had surveillance requisite city him per- intent and found that sonally. and who knew Chirstensen charge. Further, the affidavit indicated fact, did, truck arrive in

I. Sioux Falls that the informant had Department been Cummings’ argument used principal ap- of Crimi- Investigation previous- nal several peal times is that derived from evidence ly, having “always his information been of the first truck which con- search found to be reliable accurate.” tained the dismantled suppressed should have because the upon

affidavit which the is- There is no doubt but that an sued the search warrant was insufficient support affidavit which will issuance of hearsay probable “may establish cause as a matter a warrant be based on in sup- of law. The trial refused formation and need not reflect direct press personal after a had this evidence motion observations of the affiant.” suppression hearing Aguilar Texas, made and a 108, 114, v. 378 U.S. 84 held. 1509, 1514, (1964). S.Ct. 12 L.Ed.2d 723 And, course, magistrate may rely of appears municipal judge that a upon through information received an Sioux Falls issued the search warrant States, informant. Jones v. United allegations 362 solely based on the contained 257, 269, 725, U.S. 80 S.Ct. 4 L.Ed.2d Basically, in the affidavit. this affida- (1960). case, 697 The issue in this vit reliable, related that a unnamed in- therefore, magistrate is “whether the formant had contacted one of the offi- given crediting sufficient basis for Department of the Dakota cers South of tip,” the informer’s rihart, United States v. Ma Investigation during Criminal the morn- 809, (8th 1972) 472 F.2d 812 Cir. February 1973, 3, (the day of after (en banc), denied,-U.S.-, cert. 95 Riverton) Christensen left told 46, (1974); S.Ct. tip, 41 L.Ed.2d 51 for the being him that true, clearly provided if would have carried to the Sioux Falls area. This probable cause to conduct a of search informant described the truck in detail the truck. Marihart is this Court’s most orange as an and white rental U-Haul attempt problem recent to deal Oregon with plates, truck with license num- magistrate may rely of when a on a ber T266-954. He also stated the driver hearsay tip, problem informant’s Christensen, was James a resident of which has received considerable atten Sioux Falls. The affidavit went on to Supreme Having tion from the Court.1 affiant, Agent state that Donald subsequent Supreme been decided Department Gromer of the of Criminal opinion dealing Court’s latest issue, with this Investigation, had identified and fol- Harris, United States v. 403 U.S. lowed the truck as it traveled toward 2075, 573, 91 highway Sioux Falls on the during S.Ct. 29 L.Ed.2d 723 morning February 4, 1973, of (1971), we believe that Marihart's inter description given by it that matched the pretation principles of the involved is See United States v. Harris, 573, 403 Texas, U.S. 108, 1509, 378 U.S. 84 12 S.Ct. L.Ed. 2075, (1971) ; 91 S.Ct. 29 L.Ed.2d 723 (1964) ; Rugendorf States, 2d 723 v. United Whiteley Warden, 560, v. 401 91 U.S. 528, S.Ct. 825, 376 U.S. 84 11 S.Ct. L.Ed.2d 887 3031, (1971) ; Spinelli 28 L.Ed.2d 306 (1964) ; v. States, Jones v. United 362 U.S. States, 410, 584, United 393 U.S. 257, 89 S.Ct. 21 725, 80 S.Ct. 4 L.Ed.2d 697 (1969) ; McCray Illinois, L.Ed.2d 637 (1960) ; v. Draper 386 States, v. United 358 U.S. 300, 301-305, 1056, 87 307, 329, 18 L.Ed.2d (1959) ; 79 S.Ct. 3 L.Ed.2d 327 (1967) ; Ohio, 89, 62 Bock v. Henry 379 U.S. 85 98, S. v. United 361 U.S. 80 S. 223, (1964) ; Aguilar Ct. 13 L.Ed .2d 142 168, (1959). v. Ct. 4 L.Ed.2d 134 328 magistrate

controlling disposition of the information before if, be sufficient appeal. stant [Draper v. United Supreme Aguilar the Court 79 S.Ct. 327 3 L.Ed.2d two-pronged standard laid down testing (1959)], sufficiently detailed, credibility an informant’s sufficiently corroborated, supply magistrate tip upon is asked which a much as does trustworthiness given rely: (1) must Aguilar test. underlying circumstances some Marihart, supra, 472 United States concluded from which the affiant F.2d also at 813. States v. See United or that credible the informant was Lopez-Ortiz, Cir. reliable; information was 1974); Black, F.2d States v. United underlying given some must 1973); Cir. United States which the informant circumstances from (3d Gimelstob, 159-160 conveyed in the reached the conclusions Cir.), cert. Texas, supra, tip. L.Ed.2d 1509; States v. short, type of information re- Marihart, supra, F.2d at 812. upon Draper, pro- present, lied will The affidavit herein recited compliance vide an alternative to strict used several informant had been Aguilar. prongs both Department times before Particularly pertinent to the instant Investigation and had been Criminal appeal following language This and accurate. found to be reliable sufficiently Spinelli: prong of the the first meets In ing of a detail- the absence statement Aguilar that an inform test. The fact in informa- the manner which the given previously infor accurate ant has gathered, especially tion im- is his be test of mation a sufficient portant tip that the ac- describe the Sigler, reliability. McCreary F. v. 406 activity criminal in sufficient cused’s (8th Cir.), cert. 2d 1269 magistrate may detail that the know 2149, 23 L.Ed.2d 89 S.Ct. relying something that he is on more additionally, (1969). However, than a rumor circu- substantial casual magistrate here, the had within the affi lating in the or an accusa- underworld story of the davit some corroboration merely tion based on an individual’s by description the The told informant. general reputation. truck, and its of the its driver destina provided by inform- The detail the tion, by informant, had all related the States, Draper ant in v. United by independent police been corroborated U.S. L.Ed.2d [79 surveillance. The informant’s (1959), provides a suitable 327] McCreary was, therefore, established. Hereford, Gov- benchmark. While the Sigler, supra, at 1269. v. 406 F.2d case, ernment’s informer in that did Aguilar, prong of The second way ob- the in he had state hand, satisfied the other not been on has information, reported tained his noth the revealed here because affidavit gone Chicago Draper that had the reached his as to how the informant day by train he would before and that that truck contained slot conclusion the by return to Denver train three with however, not, end machines. This does speci- two ounces heroin one of Court, inquiry. In Marihart the mornings. Moreover, fied Hereford carefully Spinelli analyzing after describe, par- went on to minute States, 410, 89 S.Ct. ticularity, the clothes that (1969), concluded: 21 L.Ed.2d 637 wearing upon would be his arrival at squarely magistrate, Spinelli the the Denver station. A thus stands detail, two- proposition even when confronted with such that met, reasonably in- pronged is not could infer test of gained transport any gambling information formant [from device way. state to reliable another].” U.S.C. § (Emphasis supplied.) supra, Spinelli v. United (Footnote at 589. at omitted.) 89 S.Ct. determining In whether or not knowing there transpor such a Utilizing Draper we as a “benchmark” tation questions are relevant: herein the informant satisfied (1) Did the defendant know that he was activity in suf the criminal did describe transporting the devices tip’s assure the reliabili ficient detail to commerce? Did he know that ty. were machines He stated transported gambling de gave being transported and an estimated vices? United States Twelve Miami equipment. described He value of this Digger Machines, Slot 213 F.2d system. by by rental color truck 1954). Cir. He license number of indicated the dispute There is no over the answer correctly And he identified truck. question Cummings the second knew — truck. and the destination driver - gambling the slot machines were Certainly much detail and there devices. appeal He does contend Draper2 particularity here as dismantling changed them their key question which must asked purposes enforcing character for fairly is: “Can it statute. tip, even when certain said that question The first parts was answered corroborated of it have been trustworthy affirmative dependent sources, trial act is as ing as the Aguilar’s trier of pass fact. tests axiomatic tipa which would appeal that on from the verdict independent ?” corroboration without point we must supra, view evidence on this Spinelli v. United light gov most favorable instant at 588. “accept ernment and must as established the answer case we are convinced support all reasonable inferences to must be the affirmative. Gaskill, conviction.” United States speci- summary, think that the we 1974). Cir. See ficity inform- and corroboration also Nilva v. United support to the tip were sufficient ant’s 115, Cir.), cert. 348 U. magistrate’s was that it determination 825, (1954) S. 99 L.Ed. 650 therefore, probable was, There true. [application principle in a of this case warrant, and the search to issue cause involving transportation interstate of sup- properly to the refused trial court gambling devices]. press the evidence. A of careful review the record II. light that, of has convinced us alleges principle, judge’s Cummings the trial that there was conclusion Cummings support the trial that know that was to did evidence sufficient transporting a in inter had been the slot machines that there court’s conclusion supported knowing transportation ma- state suffi of commerce is the slot Cummings offered evi re- cient evidence. commerce as in interstate chines suggested strongly that the statute, provides dence which quired by which knowingly and stored devices were to unloaded be unlawful that be shall “[i]t information, quired Marihart, supra, lii.s talents a bis 2. In United States I>rognosticator. a combination of Thus stated : at n. this Court of fu- detail in Part III B and corroboration of As demonstrated x>ast incriminating opinion, will suffice. limit- ture conduct not believe we do tips degree reveals affidavit such the instant case the of detail of of future ed to the question activity. a “combination.” is the of ac- which the informer the method recog- (1972), Supreme Wyoming. inferences which 101 But the Court actions, ap- logically speedy from his nized trial cases must be can particularly be drawn hiring proached basis, of drivers on an ad hoc but did his version) identify (according his Falls to four factors which should to Sioux balancing points within utilized courts to make drive a truck between “Length delay, Wyoming, manner test each instance: of his secretive delay, James directions to the reason for the the defendant’s these drivers and his spe- right, prejudice the truck to a assertion drive to Christensen to of omitted.) (Footnote parking Falls without lot in the defendant.” cific Sioux go warning to into South him not ever recognize We that a seven week unloading the first Dakota without delay during the of the trial course strongly point know- truck, just to a presumptively could be considered to be transportation. Other prejudicial. However, reason for knowledge element facts from which original missing delay witness— —a (1) the disman- can be inferred are: justify appropriate de “should serve to machines, tling which could of the slot lay.” supra, Wingo, Barker preparatory to defense have at at 2192. gambling devices; longer they were no importantly, renting we do (2) to Most trucks of two U-Haul Cummings prejudiced by think that go was if it were when, even to Sioux Falls delay. Again in Cummings Barker the have two Court to true that desired up Springs identified interests pianos picked three of defendants player in Hot right only speedy Falls, which to trial was de delivered to Sioux signed protect: prevent op purpose; “(i) to to needed truck would be whereby pressive pretrial (ii) any incarceration; to lack means of anxiety cargo minimize cused; get of and concern of the ac area driver could into necessary (iii) possibility truck, limit to would be impaired.” Wyoming the defense will with- he to unload recognized Wingo, supra, Cummings present. Barker v. It is out (Footnote omitted.) not all 92 S.Ct. at in this that the evidence case these, only government. (ii) any Of relevance in favor of one-sided However, clearly However, ev- there indication here. no there sufficient support deprived employ idence intent ment, subjected public other verdict. scorn hampered by delay, wise which was

III. prolongation op not an indefinite Cummings urges pression being the district under indictment. Cf. granting Klopfer Carolina, North abused his discretion Sep- 221-222, 18 L.Ed.2d weeks a continuance seven any indication 21, 1973, Neither is there to November tember testimony government put rebuttal that the rebuttal wit to allow the testimony defend- in the trial ness was serious factor after the close grant- court’s decision.3 ant’s case. This continuance Cummings’ objection. ed over strenuous balance, then, On we conclude delay prejudiced It is asserted that right speedy that the to trial was vi Cummings sixth him his and denied justification here. olated There was right speedy trial. amendment to a delay, inordinately which was not lengthy, Wingo, there was no substantial In Barker v. 407 and Cummings. See, prejudice 514, 530, 2182, 2192, to United L.Ed.2d 92 33 S.Ct. see, Singer’s Judge really, testi- can’t where Mr. : Nichol stated mony very helpful agree Doyle frankly to the Gov- But I [a with Mr. ernment, why attorney] saying have had this defense I’m we should or —I’m just long delay bring testimony going necessarily it, I in. to strike to but

331 Judge LAY, (dissenting). Ackerson, F.2d 300 Circuit v. 502 States (8th 1974). Cir. 302-303 respectfully I dissent from Part I of majority opinion which holds that probable had cause to is- IV. legal ques- sue the search warrant. The argued that the court probable tion of when cause to issue a testimony refusing to strike the erred search recurring warrant exists is a Singer. witness, Louis of the rebuttal but, my judgment, legal principles evidence, prior involved inci This which crystallized. involved are now I believe compa in which or his dents they establish reasonable tests which are bought transported ny allegedly and objective relatively simple nature and gambling originally devices, admit application. knowledge. Evi ted to show intent and two-pronged Aguilar test of to of other is admissible dence crimes Texas, 378 84 they prove elements these when magis- requires L.Ed.2d 723 (1964), F.2d issue. Sears United find, trate to on the basis of the show- (8th 1974); Mc Cir. C. ing made, (1) underlying circumstances Cormick, (2d Law of Evidence ed. § credibility sufficient to demonstrate the 1972). of the informant or the of his However, during the course of the ex- information, (2) underlying and cir- it became clear amination of witness cumstances from which the informant that this evidence was not clear and con- reliably reached the conclusion that slight vincing probative that it had and activity criminal was involved. value. This Court has said that before present case, majority In the admitted: evidence other crimes is agrees part Agui that the second (1) must be shown an issue on lar test “has not been satisfied here be may re- which other crime evidence nothing cause the affidavit revealed prof- raised; (2) ceived is to how the informant reached his conclu is- fered evidence is relevant sion that the truck contained ma sue; (3) that the evidence clear placed chines.” Reliance is then on this pro- convincing; and and that the opinion court’s in United States v. Mari outweighs probable bative worth hart, 1972) (Lay 472 F.2d 809 Cir. prejudicial impact. Heaney, JJ., dissenting), in Clemons, United States v. probable dicates that cause still ex 1974). at 489 Cir. magis ist if the information before the sufficiently trate detailed, “is Nonetheless, we do not or suffi believe ciently corroborated, supply as much refusal strike calls for a re trustworthiness does the versal here. This trial was a court, test.” judge Id. at 813. The court Mari indicated he was hart Harris, relied on well United aware of the weakness of the testi States v. > mony. This, along complete 29 L.Ed.2d with the (1971), any absence of reference to the testimo ny opinion, in his memorandum demon 3 L. eonclusory upon However, Ed.2d review strates rec ognized testimony statements such as “sufficient detail” neither convincing explain probative “sufficient corroboration” fail to clear nor more reasoning prejudicial. the than behind the result in those No inferences were Marihart, Draper it, cases. Harris and drawn from and the verdict amply supported held, essentially, the factual basis the other evi for the dence in information in an affi the ease. contained davit need not be contained in the affi foregoing For the judg- reasons the davit the information disclosed is ment of only conviction is affirmed. such that it could have been the re- any way in indicate tion. This fails to and activ observation “firsthand suit of activity. knowledge Marihart, supra, of criminal firsthand ity” by the informant. agents Sig McCreary different from the This is no at F.2d 814. Cf. Spinelli Cir.), being defendant in told that 1264, ler, 1268-1269 410, 2149, 984, 393 U.S. 89 S.Ct. denied, 89 S.Ct. 395 U.S. cert. (1969), lived at a 21 L.Ed.2d 637 L.Ed.2d 773 apartment had un- certain and address Thus, Harris, in Jones v. United in telephone Verification listed numbers. 4 L. 80 S.Ct. 362 U.S. concerning the information (1969), affidavit recited Ed.2d 697 com- did no truck’s destination more personal observa- and recent . . . plete did than the affidavit this case informant tions an unidentified con- verification of the information showing activity factor criminal Spinelli’s readily cerning observable gained in a information had movements in that It is true case. serving manner, to distin- and reliable in- fact tended to corroborate guish tips that held insuffi- both tip, hardly min- formant’s but it reveals Spinelli, ... cient knowl- details from which firsthand ute edge explain how the affidavit failed to activity re- of the criminal could be by his information. informant came liably implied. It did not afford added.) (Emphasis degree of same level or corroboration at at 2080.1 403 U.S. Draper, held found in where the Court In Marihart the affidavit stated alleged description of that a detailed tip partially the informant’s had b'een grounds provided offender reasonable by police verified a officer who observed concerning believe that information large they three men as unloaded a activity criminal on first was based pasteboard box, believed to contain the hand observation. placed firearms, stolen and it in a va- Mitchell, In United States v. apartment. cant in Mari- The affidavit Cir.), cert. hart activity, described clandestine thus (1970), 91 S.Ct. 27 L.Ed.2d 90 borrowing (the from Harris observed Judge Draper Blackmun observed that (ex- activity), criminal and from judicial set turns on the same standard tensive corroboration of informant’s Aguilar Spinelli. forth in menting com tip). Draper, Supreme Court present In the there no ref- ease Spinelli: observed in any personal erence to observation of magistrate, A when confronted activity. nothing criminal There detail, reasonably infer such could what the affidavit related which indicat- gained that the informant had knowledge ed firsthand of criminal ac- way. . . formation in a . reliable tivity. supra. McCreary Sigler, Cf. patent merely a truck do we The affidavit described Nor believe correctly re- its license number and doubts raises as port’s reliability adequately driver, re- identified its owner and destina- recently years, 1. In Jones : than and most the affidavit read more knowledge past weeks, many occasions the source of within the two has [O]n infor whiskey gone apartment person purchased mation illicit has to said who house, purchased past days drugs within from the narcotic from the above- personal knowledge persons illicit mentioned and that the narcotics has purchasers whiskey consumed [sic] secreated the above men places. outbuilding being August as the tioned The last known as and utilized time hall,” Har- has 1957. “dance seen Roosevelt outbuilding, go at located 267-268 n. at ris to the other 734. yards residence, nu- Harris the affidavit read : about 50 from the whiskey person personal occasions, knowledge This has to obtain the of and merous purchased persons. whiskey person illicit and other from within for described, period at residence they profess by the alle- unless to be a solved gations dent, a consideration of mere conduit indepen- illegal detailing warrants, FBI’s issuance of must be require- legal easily investigative .... able to discern the efforts probable Draper provides again, a rele- ments of cause. This will nev- Once police Independent long comparison. premise er occur as vant as we lawful quantitative much work in that case corroborated searches standards only subjective analy- more than one small detail that had which turn on the provided by been of these sis officials. informant. upon meeting police, There, the governing the law If search and sei- on the second bound Denver train morning any clarity, princi- zure is to have specified informer Here- ples governing sufficiency probable ford, saw a man whose corre- dress objectively must A cause be defined. sponded precisely de- to Hereford’s conclusory valid search cannot turn on description. appar- tailed It then affidavits which contain neither an ex- ent that the informant had not been press implied an revelation of nor fabricating report of whole out underlying circumstances which the cloth; report since the the sort was of acquired. information is None was experience may in common shown here and the evidence should have recognized having been obtained in suppressed. been . way, perfectly a reliable it was clear probable cause had estab- (Emphasis added.) lished.

393 U.S. at 89 S.Ct. at 589. person going

Information that a (espe-

travel from town to another

cially if he lives in latter communi- hardly ty) is of the sort that common al., Plaintiffs-Appellees, James RHEM et logic experience, sense or un- finds so personal usual or indicative of knowl- Benjamin MALCOLM, J. Commissioner edge or observation that the City York, for the Correction of New allegations activity may of criminal al., et Defendants-Appellants, premised upon it. Preiser, Peter Commissioner of Correc exclusionary illegal- rule which tion of York, al., the State of New et ly seized evidence admissible at Defendants. by laymen trial is seldom understood No. Docket 74-2072. zealously law enforcement officials who attempt Appeals, United States Court of to rid crime-infested cities of Second Circuit. criminals. Emotional attacks con- tinually efficacy made its and con- Argued Sept. 25, 1974. tinuing viability. The Fourth Amend- DecidedNov. right, ment exclusionary which the rule protect, e., right enjoy seeks to i. sanctity privacy person of one’s govern-

and home free from unlawful is, intrusion, however,

mental fundamen- rights sepa- tal. It is one of the basic

rating all of us from a totalitarian state. importance, is of fundamental rights guaranteed by the Fourth inviolate,

Amendment are to remain fully

law compre- enforcement officials hend line of demarcation between a

legal illegal Magistrates, and an search.

Case Details

Case Name: United States v. Elmer Cummings

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 18, 1974

Citation: 507 F.2d 324

Docket Number: 74-1352

Court Abbreviation: 8th Cir.