United States v. Louis M. Darensbourg

GEE, Circuit Judge: This simple hard but case concerns the warrant, validity of state search at- grounds. on two The ques- tacked first “ whether warrant . tions particularly place to be describes] ” . . . searched as commanded by The the Fourth Amendment. second at- upon tacks the affidavit which the war- based as defective for rant is lack of an in assertion terms of the informant’s re- A liability. by search authority of the produced weapons warrant named in revolvers it: three and a sawed-off shot- allegedly gun used in the armed grocery. But of a drive-in the district suppressed court this evidence because it not found the did sufficiently apartment searched, describe on the perhaps ground, second also. The appeals, States and we reverse. Description The of the Premises “Apartment # located at 3101 Rd., Highland City in the of Baton was the Rouge” description. apart The ment intended it was located in a large, four-building complex which bor July both and Highland dered on Street Road and contained approximately 450 aрartments. searched complex one in was the num But it bered 70. was in fact located on Street, Highland not at July Road, which was address of the business complex. office of ascertaining purposes for of applying the address for warrant, officers had consulted telephone directory, which carried Gonzales, Douglas Atty., M. U. Rob- S. the address the business office as that Leake, U. Atty., ert S. Asst. S. Baton complex. Apartment 70 sits La., Rouge, plaintiff-appellant. yards office, about 300 from the business Wall, La., Alex W. Baton Rouge, separate building. in A canal divides defendant-appellee. locations so moving the two other requires traveling one to the sever blocks and city departing al some dis premises of the complex, tance from * Claims, by designation. sitting the U.S. Court Of apartment searched was the basement classic statement of the correct address but examining to be standard designated “Apt. A”); sufficiency of a warrant’s identification Joseph, 174 F.Supp. (E.D. appears to be searched placе aff’d, Pa.1959), (3rd Cir.), enough “It if the v. U. S.: Steele denied, cert. is such that the officer with description (1960)(warrant 52 L.Ed.2d listed can, address warrant with reasonable a search searched as “209 Terrace,” be Court identify place the ascertain effort address searched was “209 Minersville 498, 503, 45 intended.” S.Ct. Street,” evidence showed Court Terrace (1925).1 760 69 L.Ed. was continuation of Minersville reasonableness, test is one Street); United v. Pisano, 191 requirements of elaborate “[tjechnical F.Supp. (S.D.N.Y.1961)(warrant 861 list once exacted under common specificity grocery ed “a store known as Esta’s lo have no proper place in pleadings law ground cated on the floor of a Ventresca, building v. 380 this area.” U. S. U.S. Street, at 129 West Third Mount Vernon, 741, 746, 102, 108, 13 85 S.Ct. York”; New correct address was 109 684, 689 Third); West Goodman, States v. such as we here face F.Supp. Problems 556 (N.D.Ind.1970) (address conveyancing.2 those of akin to Street, are not listed as 517 Conkey premises cases, courts, many recog searched was Many actually 519 Conkey portion error in a Street); a minor Hanger nized v. States, premises description (8th 1968), F.2d 91 the Cir. denied, cert. necessarily invalidate does not searched Steele, example, (1969) (warrant For su

the search. 1419 and 1421 Park; Supreme upheld the North one of pra, apartments 1419a). 46th under a of West Street searched was decisions, Speaking search of these authorizing the search of 611 observes, warrant Cabot correct 46th, large building being ly, West we think: having these two numbers warehouse foregoing decisions illustrate the partitioned. In United only partly princiрle determining factor Melancon, (5th 462 F.2d 82 Cir. v. States 1972), to whether a search warrant de- upheld the search of a man’s premises to be scribes searched 2, Box 622 under a at Route residence particularity with sufficient is not describing his next-door busi description given whether is tech- 2, Box “at Route . .” ness every accurate in nically detail but Cabot, in his exhaustive and de description whether the rather suffi- in United opinion States v. Skla finitive roff, executing to enable the cient officer (S.D.Fla.1971), F.Supp. up identify premises locate with apartment 310 on the the search held effort, and whether there is reasonable building of a under a warrant third floor probability reasonable that anoth- being it as on the second. describing might be premises mistakenly er opin the cases collected in ‍​​‌​‌​​‌​‌‌​​‌​​​​​‌​​‌​‌‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌‌‌‍that Among which is not the one searched intended 319-320) are the following, in (at ion under the search war- to be searched validity which the of the search each of rant. Contee, United States v. upheld: (D.C.1959) (warrant F.Supp. de these criteria to the instаnt Applying Apt. as “entire A”— premises scribed I hold that the error in describ- Indeed, validity fey prosecution our case derives a certain air In this federal warrant, although from the fact that the officers who executed state of search ficers, evidently and executed the warrant under fed knew of course be examined must Melancon, apartment correct address location of the U. S. eral standards. 1972), denied, (5th and obtained the anomalous address in cert. a well- Cir. 91-92 meaning letter-perfeсt. effort to be 34 L.Ed.2d 487. informant, a year-old the named fifteen ing Apartment 310 as being on the reliable, previously having or as boy, as second rather than the third floor of past resulting information in the Building given Number 3 was of such a mi- did, prosecutions, in successful etc. It nor nature as not to invalidate the however, provide the name and address search warrant. There one juvenile lay in that informant3 and thus building with door, anonymous spectre Numerals 310 on the trouble and the addition, Agents gave detailed in apart- F.B.I. searched that maker. guns,4 ment. There was little formation about they what possibility un- in, der the of this were used and where facts case that were not intended detail base an infer to be located. Such searched gained could have been the informant his infor through searched ence that mis- way, Agent already take. One mation in a reliable viewed States, 410, 417, the door to that apartment, U.S. S.Ct. although 589, 637, 584, (1969), he did not take 21 L.Ed.2d part in the search. satisfy alternative test key Apartment 310 so under given to “ prong: second ... Agent by manager Aguilar’s unlocked ” the door. ‘reliable.’ his information See United Acosta, (5th Sklaroff, United States v. 323 F.Supp., 1974) (dissent), opinion vacated 509 Cir. at 321. 539, Cir., (1975) (en banc). Applying the same criteria to our since, we conclude that Sklaroff, as in Indeed, not think we do that the dis- there was one apartment in the court, trict in this case of actual observ- complex bearing the number written in prohibited weapon by ance of the warrant, there was little likelihood named, informant, nonprofessional wrong that premises would be apрlication Agui- bound to an iron of the searched—as indeed they were not. And rule. The lar-Spinelli Second Circuit has we conclude as well that a reasonable recently been called on to very consider part effort on the of the executing offi- objection such an to an informant’s just going cer—such as to the given address strikingly affidavit in a case similar to asking in the warrant and the manager Responding ours. a contention that keys for the 70 and how to defective for the warrant was want of a get to it—would suffice to locate and recital in the affidavit the infor- identify premises authorized to be reliable, Agui- was known to be mant searched. The decision of the district lar-Spinelli require, was claimed to it suppressing court the evidence on this held: ground clearly erroneous. question precise Apart from Spinelli standing of after U. S. v. Har-

The Affidavit’s Lack of an Assertion ris, U.S. that the Informant is Known to ., 723 . there has been be Reliable growing recognition the lan- Spinelli guage in was ad- The district observed, court also particular problem dressed to arguably held as an ground alternate professional informers and should not invalidating warrant, in a wooden fashion to upon affidavit which the warrant was cases where information comes probably based was insufficient also as alleged victim of or witness to failing to attest in terms the reliability a crime. Indeed other view would informant. We disagree. It is that, despite mean the 1972 amend- true that the affidavit did not describe 3. Unlike the affidavits considered in proved 4. Not all of which accurate in the Texas, 84 S.Ct. event. (1964) States, v. (1969). 89 S.Ct. 21 L.Ed.2d 637 fices, significant we find Chief Jus- 41(c) the effect to F.R.Crim.P. ‍​​‌​‌​​‌​‌‌​​‌​​​​​‌​​‌​‌‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌‌‌‍ment Burger’s statement that the tice cause finding probable

that “[t]he informant-reliability applies rule to “an hearsay evidence upon be based may solely on the hearsay based re- general- affidavit it would part,” or in whole (em- informant” port of an unidentified hearsay state- to use impossible ly be added). Harris, United States v. phasis since or- or witnesses victims ments 573, 576, previously would not be dinarily police. known in the sions, made the affidavit was gun, or how been better there hear what hearsay.” U. S. son us that stantial 723 ^[573] S. v. It Viewed in the is true himself Thompson at had been . evident Sultan, bedroom 581, at least talked . basis’ To be also that he did if the . . magistrate 463 an affidavit (plurality with Burke had come to see and . that he had said so. sure, affidavit light F.2d v. Thompson Burke’s . but it is clear to Harris, 2075, Thompson it would have ^[1066] crediting of these deci still better sufficient; had opinion). had recited by Thomp about the had been 403 “a at could ‘sub U.S. U. to a crime could this. information could precipitate a search. tablished timized at will without fear that unless he chanced to indicates we must: tinctions of Bell are too elaborate for persons of dubious credibility Burke and bright-line rule is needed apply cent application of unknown under the Whatever the law on their Under The dissent’s witness in this day by good credibility. Thus, the dissent’s rule Bell, in reputation, faith in the real world. A more day and if we are to pass advanced cause a no victim of or witness painfully-extracted case— doing be a be, like thе adoles- if treatment might we doubt it is so, for ‍​​‌​‌​​‌​‌‌​​‌​​​​​‌​​‌​‌‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌‌‌‍example, police —or as Peltier to issue dissent, be vic- are to of es- even dis- purpose If the affiants, exclusionary lying been that rule have police is to deter unlawful conduct, been lying the affiants then evidence obtained from But judge, or both. such risks are search suppressed only should be system it can allowing, as it be inherent said that the law must, enforcement may that search warrants is officer be knowledge, something properly less than a full trial be sued on charged with knowledge, probable the existence cause. search unconstitutional under the Burke, 377, v. 517 States 380 Fourth Amendment. 1975). (2d Cir. Peltier, United States v. 422 U.S. of Burke equivalent circuit’s This 531, 542, 2313, 2320, S.Ct. Bell, (5th 457 F.2d 1231 v. 374, (1975). Burke, which, stands for like 1972), Cir. “ The evidence found in this search . . proposition general should not have been suppressed. are requirements Spinelli Aguilar only.” situation informant Reversed. limited To decide this F.2d, 1239.5 at GODBOLD, Judge Circuit (dissenting): Aguilar-Spinelli restrict need For Texas, informant. 378 professional nonprofes identified (1964),1 S.Ct. L.Ed.2d 723 in hand —an matter anonymity suf- Supreme line drawn ruled that where proba- sional—a S., Spinelli Mahler, See also v. U. States v. 442 F.2d 5. Cf. United (1969); 1971); McCreary Sigler, S.Ct. 21 L.Ed.2d 637 (9th U. S. v. Har- Cir. 1174-75 ris, (8th 1969). 1268-69 L.Ed.2d 723 406 F.2d Cir. a search or ble cause for arrest fashion” “in a wooden makes this nelli through an go is established tip, informant’s Nor does Gee that far— clear. presented the affidavit to the that sometimes issuing says he rather (1) magistrate must show that Spinelli apply to victims and wit- infor- and don’t, (2) they mant is a credible that nesses and sometimes the inferences drawn are based on fact he draws a line at the “identi- this case and аre reasonable. nonprofessional.” This has the ad- fied convenience but little more vantage of case, a In the instant search warrant than that. issued on the basis of statements nonprofessional” victims “Identified emanating 15-year-old from a tipster. shapes, come in all sizes and witnesses presented magis- The affidavit to the circumstances, and so do the of- contained no evidence of trate the de- knowledge. of which declare fenses credibility. The majority clarant’s ex- by looking can best see this at Bell. We patent noncompliance cuse this with the case the arrest warrants were In that Aguilar’s requirements first of dual reciting on an affidavit informa- based reliance through purported on the lan- police by given per- tion three named of the Second Circuit in guage U. v.S. who had witnessed events sons immedi- Burke, (CA2, F.2d 377 1975), ately preceding following an armed growing has been a recognition “there robbery given and information the affi- language Aguilar three named officers that ant particular рroblem was addressed together tended to tie and corroborate informers and should not given by per- the information the three in wooden fashion at or near the sons scene. We where the information comes from an despite upheld the warrants the affida- alleged victim or witness to a crime.” failure to evidence vit’s declarants’ credi- join I am unable to in the majority Clark, bility. writing for the The decision of opinion. this court in U. court, to hold Spi- declined Bell, (CA5, 1972), S. v. applicable to the by- nelli “identified rеquires recognize us to that there can “victim-eyewitness” or the to stander” a person be circumstances in which a gives Following crime. 457 F.2d at 1238. to information which is used in he stated: obtaining a warrant but Many intimately informants are in- not applied. will be Burke does persons upon volved with informed not, however, fall within the circum- illegal hand, and with the conduct at stances set out in Bell. It carves out a this circumstance would also af- exception new and unfortunate that is credibility. None of fect these keeping оf with the underpinnings out of present eyewit- considerations in the Spinelli. Aguilar and Additionally, even present situation such as was ness correct, if Burke is treated as it is misap- observers are seldom here. Such in- facts plied to the of this case. volved with the miscreants or the (Footnote omitted.) crime. Taking point applica- the second first— Id. at 1238-39. Thus the decision does accepted as correct—I tion of Burke upon rest an overbroad decision not characteriza- say read that to dо not ambiguous status, tion of such as Spinelli standards are al- “wit- Aguilar and ness,” drawn precisely but criteria that limited to informers or ways reliability. to indicia of The infor- application to “vic- relate they never persons mants and the identified shared ap- “witnesses.” an tims” and Such from the apart no relation “actor-de- sweep broadly, would too too un- proach arising directly observer” roles discriminatingly, disregard and in tached robbery. ages The from the armed of Spinelli. of Burke rationale witness-informants wеre the three not purport go to that far —the ref- does not prefix “Mrs.,” given, but two bore so applying Spi- erence to not Barfield, in U. S. v. (CA5, F.2d 53 may infer that least these two 1975), which held sufficient addition, affidavit children. the num- were not disclosing information person from a willing able not persons supply to ber of stated be a reliable informer tips because identification tended corroborative person a was co-defendant reliability. possibility of and co- The to establish participant in the and his by police of information state received misuse against penal ment was his interest, remote arouse serious con- too supplied which indicia ‍​​‌​‌​​‌​‌‌​​‌​​​​​‌​​‌​‌‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌‌‌‍of reliability.3 cern. youth 15-year-old in the instant The opinion At least Gee’s “pure” nor has the was neither fortui case merit of candor. On other bystander, observing events with facts he tous might urge connection, no statement he had nor the of one which claiming nonprofessional to be a “victim-eyewitness” which Bell re victim he falls within of very Rather ferred. witness to an alleged offense4 may persons of which a class carefully Clark basis for warrant without showing excluded declarants there further of reliability, unless it person He was “involved affirmatively appears involved. from other re or the crime.” with the vealed information that the person miscreant[s] who He in sufficiently at 1239. gave the statement is not reliable—in by short, and trusted the defendant alone [or, volved status more accurately, allegedly defendant the extent claim carries its status] own creden participate him in a reliability, violent tials of prima invited which is facie successfully told him that he had felony, established unless and until other re job, off the and showed him a pulled vealed information casts doubt on relia bility. Thus, Barfield, His in of the loot. connection with portion supra, the sta was such that there was risk events tus the source co-defendant having tip’s been given co-participant his to excul made his self-inculpa curry police or to use pate tory sufficiently himself favor statement believable.5 he suspeсt Reliability the event became a also ful in be drawn from the accessory). person’s source (principal informa official status.6 How ever, gave police was not the facts here tion he corroborated do not permit appli theory others. Yet of a prima statements of his state cation facie reliabil ity sufficiently crucial put question. were the link establish ments person’s youth, cause for source ing probable warrant. his involvement alleged miscreant, reliability present оf the indicia with None his possible signs point self-exculpation, exists here. All in motive in Bell and the lack corroboration, direction.2 cast the other Under Burke’s doubt on his relia standards, Aguilar bility. Thus, Judge and must, should Gee does, and apply. position Gee’s mechanical take applica the [assertion of] by a as nonprofessional of case which its own terms status tion victim or wit applied merely to be is sufficient even not intended so ness if was other and re Bell what teaches us is the vealed information tends to circumvents show that reliability. indicia re the source is Thus, real nonreliable. issue— liability approach by was status is used court not merely [assertion of] Indeed, single professional 2. The the facts are in. factor tends to when make this tipster may gun is believable the fact been no offense at all. there thing where he said found it was. If one is Accord, Viggiano, S. v. 433 F.2d 716 U. 5. clear, it is that this discovered evidence cannot denied, (CA2), 401 U.S. 91 S.Ct. cert. validate warrant. Brown, (1971); S. v. 455 219 U. L.Ed.2d Compare 1972). present (CA9, tipster’s 3. case where the sеlf-exculpatory. statement is S., 390 U.S. v. U. Stone course, claiming nonprofes- (1968) (unnamed Special Agent one be a to Of may Service). witness an victim or offense sional Internal Revenue victim, prove to be neither witness nor non- put potential but conclusive. Or Harv.L.Rev. at 61. The facie for prima reliability power by is an way, irrelevant informants is abuse not re- another claiming paid tipsters. when stricted to Inducement to consideration [one be] victim or witness is the to embellish facts nonprofessional may invеnt or a I hope that we different as quantitatively paid of information. between source informants, a warrant based but it unpaid hold insufficient and is not would nec- distinct, from an identified non- essarily qualitatively nor is on information un- a who asserts he is victim or greater truthfulness demonstrated professional to be in those and is revealed either six incidence two classes. witness lesser drunk, old, standing dead years Bell was not a “victimless” crime but alleged miscreant that he from the yards identifies, by witnessed an armed num- pathologiсal or a fantasizer. willing persons able to ber identi- not validly issue a magistrate A fy assailants. Such is not a situation first-hand based on information warrant use of in which the informants is neces- officer if revealed facts police of a work, police or usual to sary unlike the doubt on its reliability. serious throw police or undercover passive work the less demanding cannot be for a The rule Aguilar. Court considered in Supreme upon hearsay. based Warden, Whiteley 1031, 28 L.Ed.2d (1971), 91 S.Ct. question first I turn to the —whether tip provided the imрetus informer’s premise correct in its is Burke arrest and the defendant’s search inci Spinelli were “addressed The complaint thereto. on dent which problem professional in- particular warrant was issued the arrest did not to me Agui- It seems that the formers.” the informer but refer to clusory rested on con larger was concerned with a court lar by the statements sheriff. The hardly which includes—but is problem held the Supreme complaint inade use of infor- to—the limited rejected a quate and also contention that attempting to regulate It was mants. description informer’s defendant investigation realities of complex e in which h the car arrested of “victimless” crimes prosecution warrantless, probable supported cause offenses. Where the for- possessory The status of the arrest. informer was consensual, victim, is act bidden inquired nor neither revealed into prosecution. seeks Where any, seldom Court, re-emphasized Aguilar which perpetrated solitude or the crime and there is Spinelli, nоthing suggest no there will be witness to come secrecy, not have been a bystander he could mere context, In such a and accuse. forward had witnessed the crime. who Yet the necessarily primary are the informants implication is that Court’s whatever the through which work is ac- vehicle status, informer’s Aguilar-Spinelli Note, The Supreme complished. See apply when standards either an arrest Term, Court, Harv.L.Rev. 59- probable warrant or a cause arrest has basis in an tip. its factual informer’s necessary, are Where informants Harris, Similarly, in U. S. prevarication, carries a risk of utilization (1973), informant be under such opinion nor the in- the affidavit neither supply feel such desire to pressure previously the informer was incriminating information that he will dicated police the as an to or used known embellish facts before he al- invent relied The Circuit on Sixth at his informer. to fail task. It was lows himself to the Spinelli hold affidavit and Aguilar the possibility even of such to eliminate Supreme the Had insufficient. power “make a abuse of —which establishing as decisions those viewed mockery process” of the warrant —that professional to applicable standards Spinelli were written. and informers, warranted at the Harris facts Court, Term, Note, Supreme The into the inform- inquiry an initial least (1969); see also 85 Harv.L.Rev. reliability tip- the 15-year-old of the to Instead the opinion status. acknowl- er’s ster. applicability of edged Spi- Judge affirm the noncompliance but rationalized with District nelli I would also misdescription. commands. is a Burger’s Chief Justice issue This on the еxplaining grant case-by-case the made on a language inquiry, certio- factual Harris Judge further evidences an District below a rari in- had' basis. nonprofessionals not be before him. He con- complete tent exclud- record plenary a matter Aguilar- Following from the matter twice. ed in sidered requirements. granted he hearing He defined to motion first involving as the government appealed. “informant suppress issue known police, government but not identified to the of the we re- request On purports who mаgistrate, to relate his in the District permit, manded to Court’s knowledge of personal discretion, receipt criminal evi- activity.” additional 91 S.Ct. at government. Id. at 29 L.Ed.2d at Dis- from dence description That nonpro- 729. includes admitted the additional evi- trict fessionals, bystanders, again granted and victims as the motion to dence and paid informers. well Even the He heard the testimony dis- suppress. senting opinion’s framing executing issue officers of the one acknowledge (who seems inclusion of defendant non- lived in brother of rulе, within the professionals referring defendant) 70 with the “unidentified purport informants who affidavit of the manager received criminal activity complex. of which He had before describe personal have they knowledge, diagram and a large a aerial him both it does not appear where that such infor- of the area. He is a resident photograph previously supplied mants Rouge. accurate In these Baton circumstances to law information enforcement was in offi- a much better thе District Id. at cers.” S.Ct. at reach a correct than decision position far removed judges from appellate regarding decision misde- scene. His Arguably these reject cases tend to plainly erroneous. scription was carving eyewitnesses out of and vic- and Spinelli. tims At dissent. respectfully least I show that the now distinction made professional between informers and oth- give who persons

er information to the apparent ‍​​‌​‌​​‌​‌‌​​‌​​​​​‌​​‌​‌‌‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌‌‌‍has not been to the Su- Court.

preme Nor was a such distinc- appаrent to this tion court in Texas v. MUZQUIZ al., Raymond et Gonzales, (CA5, 1968), Plaintiffs-Appellants, post-Aguilar where the search was based on tip that narcot- being peddled were particular ics at a al., SAN CITY OF ANTONIO et address informer seen a Defendants-Appellees. who lived at that pick address up No. 74-3177. package alley. a small from the With- indicating the out informer’s status as a Appeals, States Court of bystander witness, Fifth Circuit. invalid, the warrant held saying, “there 8, Oct. nothing suggest that the inform- er was reliable or that his tale was credi- 9, 1975. Banc Dec. Rehearing En Granted ble.” F.2d 1233. See 524 would affirm the I holding Dis- Judge who held the trict insuf- affidavit because it

ficient lacked information as

Case Details

Case Name: United States v. Louis M. Darensbourg

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 10, 1975

Citation: 520 F.2d 985

Docket Number: 74-2313

Court Abbreviation: 5th Cir.