United States v. John Chafin, 622 F.2d 927

United States v. John Chafin

622 F.2d 927

6th Cir.

1980

Check Treatment

*2 third Dillon brother who BROWN, and deputy Before KENNEDY was a sher- deputy iff. called Judges. Circuit The the Kentucky State Police, trooper a met him and at the en- BROWN, Judge. BAILEY mine gate property. trance to the As the against A federal was filed down indictment two officers traveled the mine road Chafin, Dis- appellant, in Eastern guardhouse, toward the encountered a charging tipple. him with know- near The Kentucky, pickup trict of truck truck occupied by interstate was Chafin as well as ingly transporting firearms Diamond, with cause to believe James who were commerce reasonable and la- The trooper state of “Wanton Endan- ter indicted with Chafin. ob- that the offense case, Dеgree,” felony appeared a un- which germent long gun the First served a to law, filled, of Kentucky was to committed in the back the cab. The der three during trial, to leave. them. and men were then allowed Federal with Prior to subsequently searched area suppress agents moved rifles seized from ATF Chafin and shell cas- guardhouse house on that the of the recovered ground his affidavit weapons. and .22 calibre ings 30.06 used to obtain warrant to search for the court de- rifles was defective. The district County, a West January Mingo On Chafin, who was found nied the motion. was the Sher- Virginia warrant only guilty by appealed. The jury, dwell- iffs Office there search Chafin’s requires raised that dis- by Chafin upon basеd ing at Nolan. The warrant was validity is the of the search and cussion containing given an produced that the rifles. seizure sheriff, Childress, by A. W. deputy dwelling pro- of Background Runyon. A search Chafin’s were in evidence that admitted duced rifles against January, a strike trial. Mining was in Company progress Lizann filed operated January officials tipple company a coal On state against and Hatfield, complaint Chafin tipple criminal Kentucky. is located others, felony state River, them with the Big charging Tug Sandy near Fork First De- Endangerment in the of Wanton Kentucky between which forms the border was dismissed. A gree. charge later town of Nolan is Virginia. and West was filed Chafin river, federal indictment side Virginia оn the West 13, 1978, on and the others November tipple. Union mem- sight within the coal with violation of 18 U.S.C. charging them a bonfire in the gathered nightly bers 924(b): firearms knowingly transporting § town, picket known as “the became reasonable interstate commerce at the bonfire on present line.” Chafin was state offense of to believe that 5-6, 1978. night January Degrеe, Endangerment Wanton in the First P.M. eve- At 10:00 that approximately law, was to be Kentucky a felony under ning, guardhouse Chafin went to the at the Chaf- juryA found committed with them. tipple. guards, He Billy informed the guilty. in and Diamond Dillon, Edgar he had heard that the The Search Warrant guardhouse going shot-up was to be night suggested the Dillons not that the search Chafin contends wаs defective and stay in the the rifles building. approximately At 1:00 used to seize admitting the rifles erred A.M. on court January the Dillons saw a vehi- pre-trial appears that a approach cle It guardhouse, stop and turn in evidence. held, suppress the motion to lights. off its began hearing then hit the Bullets advisement, appointed heard, building, and were one was under two firearms taken to file being louder Chafin ordered than the other. The Dillons counsel for guardhouse remained on memorandum motion. the floor of done, building, and the court did while the hit the one of This was not bullets but prior to phone suppress the men was rule the motion to able to reach to call on trial. trial, however, objected states, At counsel complaint affidavit and inter rifles, alia, admission of which was over- that: “on the 6 day January, 1978, government prior making complaint, ruled. The does not contend of this County Pike, objection by that Chafin had waived his his State of Kentucky, James “Hoss” Diamond and John counsel’s failure to file a memorandum Chafins *3 unlаwfully (and did feloniously) government at- [sic] motion. The tempt Billy to murder Dillon Edgar simply contends that the search warrant Dillon, security guards for Liz Ann Mining adequately supported. was Before discuss- by Company shooting at said security ing the contents of war- the affidavit and guards with a .22 calibre rifle and a 30.06 rant, we general will first to some point rifle, then and with there intent to kill and principles govern our must resolution murder Billy the said Dillon Edgar of the validity of this warrant. Dillon, and that the affiant has cause to (Evi- believe that property and does believe dispute, Without the warrant here crime) namely dence of a a .22 calibre rifle was solely hearsay based on information and a 30.06 rifle is conceаled in a certain 2 affiant, Childress, from Ru story white block house belonging to John warrant, however, nyon. A may properly then precise Chafins describes lo- [sic] [and (Jones be only hearsay based on v. United cation of and the facts for such house] 257, 271, 725, 736, 362 80 4 U.S. S.Ct. Runyon, belief one K. are: Carroll who was (1960)) L.Ed.2d 697 if the affidavit discloses said with the James “Hoss” Diamond and magistrate the underlying facts that [sic], John Chafins before and after (a) caused the informant to conclude that commission said crimes and believes that objects premises search are in the the rifles are now located and at said to be (b) searched and caused affiant dwelling complaint house.” The and affi- believe that the informant is credible or his signed davit by deputy was Childress and Texas, information is reliable. v. sworn to before the on January 108, 114, 1509, 1513, 12 12, 1978. (1964). hand, L.Ed.2d 723 On the other as out, The search pointed warrant itself contains Goldberg Mr. Justice prefer foregoing except states, that it ence should be accorded searches under a cause, grounds prоbable as the follow- warrant, case a doubtful a search which, seen, ing, gives as will be additional under a warrant being sustained as K. Runyon information: “one who supported by cause where without “Hoss” said James Diamond warrant search would be invalid [sic], and John Chafins before and after the failure to show such cause. United States crimes, сommission of said states that 102, 106, Ventresca, v. 380 85 U.S. S.Ct. procured said John Chafins said rifles [sic] 744, 13 (1965), Jones, citing 684 from dwelling said house before the com- supra, 362 U.S. at 80 S.Ct. 735. The mission of said crimes and believes that the requirement of the Fourth Amendment rifles now located in said dwelling this area is “practical and not abstract” and house.” affidavits are to be interprеted by magis trates a “eommonsense and realistic fash Below foregoing information on the Ventresca, ion.” 380 85 U.S. at S.Ct. is the signature again of the affi- “A grudging negative ant, Childress, Further: or and, following the authoriza- attitude reviewing search, courts towards war tion to signature magis- of rants will discourage police tend to officers trate. submitting their to а judicial evidence Since the facts stated in the warrant acting.”

officer before Id. are somewhat than fuller stated in facts mind, With principles these we turn to affidavit, the complaint and we must first question whether the seizure of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍determine whether we can consider the ad case rifles this was valid. ditional facts set warrant. Clear- other- to view the matter appears reason no such additional could not consider

ly we 41(c), if Rule out in the warrant facts set wise.

Fed.R.Cr.P., since such infor applicable United States aby court was not “taken down mation equipment and made recording or reporter declaration that a it was held However, as part оf the affidavit.” accept ais reason to interest penal Barton, 472 F.2d out in Tabasko v. pointed informant. of an as truthful a statement denied, cert. a crime and admit “People lightly do not 2288, 36 L.Ed.2d 974 in the hands place critical evidence is not one of consti requirement admissions.” in the form of their police whether dimension. tutional аt 2082. also 583, 91 See Harris additional information can con United States cause issue on sidered on the turns *4 1115, denied, 439 1978), cert. U.S. (6th Cir. such, assuming of state law allows whether (1979), 1019, 73 59 L.Ed.2d in course, the warrant that the statement 1032, 1035-36 Salisbury, 492 F.2d Armour v. to be a sworn statement. can be considered fairly it cannot (6th 1974). Here Cir. at 874. Tabasko informant, Runyon, admitted said that (W.Va.Code Virginia statute The West of at of the crime ingredients of the all 62-1A-3) altogether is not clear as to § did, however, admit tempted murder. He affidavit whether information not the at principals before being with the support of can be considered in the warrant. when tempted murder However, Harrick, v. 582 United States and was with Chafin’s house rifles from (4th F.2d 329 Cir. involved fedеral Certainly that attempt. them after suppress prosecution which motion to admission, one was, Runyon, dangerous raised the whether sworn state- make, lightly not that he would magistrate, a West Virginia ment to not in evidence in doing placing he was critical so but made time the affidavit are, ac issued, prosecutors. We warrant was cоuld be considered hands opinion of the warrant. The Fourth Circuit the affidavit that cordingly, held that such sworn statement not in the sufficient indicia of truthful contains affidavit be considered and held that could Runyon’s statement. ness of was valid. search ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the affidavit and We also conclude shows that the affi- Since the affidavit sufficient circumstancеs warrant disclosed ant, Childress, under oath placed magistrate that caused the informant to the warrant, magistrate and since the the rifles were Chafin’s to conclude that signature also contains the affiant’s under informant, Runyon, stated that The house. cause,” “grounds he with Chafin and Diamond affidavit, it been have executed after murder in which attempted and after the fairly statement be inferred used, that the rifles were the rifles were was like- affiant made in the warrant house and that he procured from Chafin’s made wise under oath. they were in house. Since believed Chafin’s respect credibility With to the Runyon both before and was with Chafin Runyon, to the gave who the information was a rеasonable in- shooting, it after the affiant, we note at outset position was in a ference that named, informant is in the cases whereas house. rifles were Chafin’s know that the dealing with the question whether affi Chafin contentions advanced Other davit shows was credi informant and do not completely without merit ble, always the informant almost warrant discussion. Nevertheless, named. apply we same is af- judgment of the district court testing standard here in we this affidavit as if would the informant firmed. was unnamed since

931 Judge, NATHANIEL R. at the time the warrant was issued. Nei- dissenting. ther nor the affidavit the warrant provides details of the informant’s activities with I Because believe the information set Chafin subsequent shoоting incident forth in- warrant was or immediately prior to the search. See magis- sufficient for a neutral and detached 573, United States v. 403 U.S. 575 trate find justifying 579, 2078, 91 S.Ct. 29 firearms, search defendant’s home for (1970); 723 L.Ed.2d Jones v. United respectfully dissent. 725, 734-735, 362 80 (1960); 4 L.Ed.2d 697 United States v. Hat- I. field, 599 (6th 1979); F.2d Cir. Texas, principles Aguilar stated in v. United States 119- 1978). guide must this Court’s determina- quite point majority is correct tion of the constitutionality search Ventresca, United States warrant. holds that the issuing a search warrant must informed requires that: underlying leading po- circumstances Affidavits ... be tested and inter- lice officers to believe that a search would preted by courts, magistrates and in com- be fruitful and that an informant was cred- mon sense and realistic fashion . ible. 84 S.Ct. at 1513. The *5 [and], the resolution of doubtful or mar- majority’s decision eviscerates the rule in ginal cases largely in this area should be Aguilar consequence, and as reinterprets preference the determined to ac- be the probability standard of the Fourth to corded warrants. plausibility Amendment into a standard of 85 S.Ct. at 746. or possibility.1 Hatfield, See also United F.2d Aguilar requires an affidavit to disclose (6th 1979). However, Cir. is this circumstances or facts to support a belief marginal not a “doubtful or case” in which that evidence of crime probably will be magistrate’s the pur- review fulfilled found in place to be searched. pose of Fourth Amendment. United presented The information to the magis- Giacalore, (6th States v. trate this case simply states: 1976). Cir. One subsequently in- [a Indeed, this Ventresca reaffirms Court’s dicted who was said co-defendant] duty to scrutinize an affidavit its adher- Chafin, James “Hoss” Diamond John require- ence to the Amendment’s Fourth before and after the commission of said set Aguilar: ments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍forth in crimes, states pro- Chafins [sic] say probable is not to cause cured said dwelling rifles from said house pure- which are be affidavits made crimes, commission of said only the or ly conclusory, stating affiant’s believes that rifles are now located probable ex- informer’s belief that dwelling and at said house. ists . . Recital some . of of indisputable It is that the only circumstancе underlying circumstances in or proffered fact aid in magistrate’s to magistrate is if the is per- essential to determination of probable cause was that his detached function and form not serve allegedly rifles were obtained from merely stamp as a rubber for the police. days prior Chafin’s home six the shooting to at 85 S.Ct. at 746. incident аnd the search of his home. The affidavit and warrant are of any void facts apply these well settled principles or circumstances to make a belief to presented hold that to that the rifles were stored at magistrate Chafin’s home grossly inadequate provides: 1. The Fourth Amendment “No war- issue, upon probable rant shall but сause.” and the nar- persons above mentioned sup- to lacking specificity in factual

utterly in the above secrated cotics were finding of cause. port [sic] 267- 362 U.S. at places. Id. mentioned 2,n. 80 S.Ct. 725. II. Id. 91 S.Ct. also the disclosure to the requires upon of which the parallel circumstances Recent decisions credi- informant was rе- Supreme

affiant concluded the decisions above-cited Court as ble his information reliable. 378 U.S. to crime or to admit quiring an informant majority relies This informant credibility. his an indicia of Harris, re- upon having United States v. supra, admitted Columbia, South $10,000 to travel to ceived cocaine, that a “declara- which he did. proposition purchase America to penal tion interest is a reason to F.2d 1032 Salisbury, In Armour of an infor- hav- accept as truthful a statement admitted the informant . hold- home to be Assuming arguendo mant.” at the narcotics ing purchased states,2 ing majority they is the hold- of Harris as the extends majority searched. not fall case do concede the faсts ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of this of and the decisions ing of They state holding of Harris. within the situations Barone Armour Circuit in infor- said that the fairly suspicion it cannot his “here reveals in which an informant ingredients ail mant, Runyon, admitted might a crime committed. (em- attempted murder.” the crime However, the phasis added). informant did III. ingredients of the any admit decision adheres majority’s any оther attempted murder or crime interpret af- in Ventresca admonishment states he was Runyon merely crime. Ap- manner. “common sense” fidavits in a crime be- company principals aby motivated parently, majority allegedly fore and after committed negative attitude grudging that “a or fear *6 attempted murder. will courts warrants by rеviewing towards prior facts in deci- An examination of the from sub- police discourage tend to officers insignificance judicial sions demonstrates officer to a mitting their evidence case. informant’s “admission” acting.” 380 Harris, a search was issued on the However, act their police 746. officers stated, part: an which judicial bаsis of offi- by to a peril failing submit finding proba- cer knowledge of evidence person personal has warrant. The from ble cause to issue search purchased whiskey illicit States, 389 U.S. described, peri- decision in Katz United within residence recent- years, of more than 2 and most od constitutional rule: stated the basic weeks.

ly past within the two judicial outside the conducted Searches at 2078. Harris approval without process, prior decision quotes Supreme from Court’s se magistrate, per unreason- judge or the affiant Jones v. where United sub- the Fourth Amendment able under revealed: established a few ject only specified, goes on to The source the information well-developed exceptions. source relate that on occasions the many Therefore, 88 S.Ct. at 514. apart- gone of information has to said apply- from majority not be deterred should purchased drugs ment and narcotic However, Jus- holding 5—4. precedential was decided vote of 2. in Unit- value III Section ticе Stewart ed did concur majority, 2075, 2081-2083, Burger’s opinion for the Chief Justice an issue. admission of crime is a sufficient discussed itself credibility questionable. indicia of Harris ing Aguilar by police a fear that officers

will conduct warrantless searches.

Accordingly, judg- vacate

ment the district court remand the

case for a new trial.

In re GRAND JURY SUBPOENA

DATED NOVEMBER 1979.

No. 80-5079. Appeals,

United States Court of

Sixth Circuit.

Argued March

Decided June *7 Fuller, McDaniels,

Vincent J. E. William Simon, Barry B. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Gregory Craig, S. Williams C., Connolly, & D. Nathan B. Washington, Goodnow, Gossett, Dykema, Spencer, Good- Detroit, Mich., Trigg, appellant. now & Robinson, Atty., Detroit, James K. U. S. Mich., Powers, III, Fein, E. John J. Bruce Justice, C., Dept, Washington, D. appellee. BROWN,

Before MARTIN Judges. PER CURIAM.

The United compel moved to Grossi, X. Esquire, ques- Francis to answer