United States v. Rudolph Garcia
593 F.2d 77
8th Cir.
1979
Check Treatment

*2 LAY, BRIGHT, timе, Before HEANEY and neither any furtive, man exhibited Judges. Circuit suspicious evasive or behavior. luggage, the four should consider the picking up facts set forth in After main floor of walked back to the individuals as well as the facts set door, terminal, through an unmarked forth in Hopps’ affidavit. In doing so Mr. Peterson, Airlines crew defendant, into a Northwest Orient stated lounge not marked as a lounge. This the court: *3 point, area. At that restricted Well, guess the Court could assume agents arrest and other surveillance Hopps if Agent Hopps’ that werе to called testi- them and and asked for ed Brashear fy probably parrot affidavit, he would his two suitcases which identification. but his testimony at the preliminary well carrying, Brashear were as and Garcia hearing, areas, in some is inconsistent wore, were bags whiсh as shoulder with the facts which have been set forth and Brashear were detained seized. Garcia in his affidavit. a warrants were obtained and until search now appeal (1) contends on that executed.1 Three luggage of their search the officer did nоt have sufficient facts to of cocaine were found Garcia’s ounces constitute cause for Garcia’s ar- suitcase; containing an address book Brash- rest; alternatively, (2) and that the affida- was found in phone name and number ear’s vit of the warrаnt contained bag. his ‍‌​‌‌‌‌‌‌​​​​‌‌​​​​​​​‌​‌‌‌​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​‍shoulder intentional, reckless, or at least misrepre- submitted in Hopps affidavit which sentations which were material to es- the search warrant contained support of tablishment of reject cause. We which was not in- additional informаtion arguments. both preliminary testimony in his at cluded given The information to Agent affidavit, Hopps In his stated that hearing. Hopps by the reliable informant was suffi Brashear, description physical whose and ciently by verified Hopps and was further prior to record werе corroborated criminal corroborated the actions of Brashear and surveillance, “would be” accom- airport Garcia. Under the circumstances we con “Rudy;” that by a male named panied clude, court, as did the trial that the offi posses- be” in Rudy “Brashear and possessed probable cers justify cause to cocaine; and that Brashear and sion of Buckhanon, arrest. Cf. United States v. airport by met at a Rudy would be 505 F.2d 1079 Janice Nelson. Ac- white female named tip also cording Hopps’ to It is true that the description of Janice physical contained a preliminary hearing officers at the does not Nelson, and this matched one of go into detail as to the underlying facts met and the white females who However, leading to the arrest.2 the affi Hopps also stated that heard Brashear. amplifies davit those facts. This in itself female address the described fe- the other assumes, prove, as the defense that Janice, female, this latter male as and that the additional facts within the affidavit was the later identified as Janice Nelson were misrepresentations. reckless The de The affidavit who embraced Brashear. one stipulated fendant Hopps would accu- lengthy a recitation of also contains testify that the facts within the affidavit the infоrmant had information which rate upon were the facts which he acted to make given on other occasions. previously so, the arrest. If this is it remained incum stip- prove counsel bent on the defendant and defense these misrepresented. discussing the сourt facts were In ulated in the district court a properly magistrate During argument, sustained oral for at 5.1(a), hearing. arrest was made at stated that the Rule Fed.R. Government P.M., Crim.P., approximately governs pre- war- 11:00 and the search the conduct of the liminary hearing, objections hours later. rant was obtained four states that to un- lawful searches are not relevant at the ques- objection by the Government nary hearing. 2. The concerning the arrest and search were a 310-311, similar situation defendant’s burden in Franks v. Dela- the Court’s observations L.Ed.2d 327 ware, 2674, 57 L.Ed.2d If content of the tip informer’s here: (1978) appropriate are determined on the of Hopps’ basis testimo- is, course, presumption a of va- There ny it preliminary hearing, is clear lidity respect to the affidavit sup- agents lacked sufficient informa- warrant. porting the search To mandate to justify Garcia’s arrest. The evidentiary hearing, challenger’s an in Hopps’ testimony, stated contained conclusory be more than attack must allegation carry- Brashear would be supported by be more than a mere must ing cocaine, and that pos- Brashear “would There must desire cross-examine. sibly” accompanied by another male. allegations or of of deliberate falsehood allegation There was no that Brashear’s truth, disregard reckless possible traveling companion would be com- *4 allegations accompanied by be those must mitting a violation of the narcotics laws. They proof. point offer of should out tip The also contained no detailed informa- specifically portion the of the warrant pertaining possible this companion false; that is claimed to be affidavit support which would an inference that Gar- accompanied by be a they should state- cia was involved in activity. criminal Com- supporting ment of reasons. Affidavits pare Draper States, v. supra United at 312- or reliable or sworn otherwise statements 313, 79 presence S.Ct. 329. Mere at a crimi- furnished, should or their of witnesses be nal in public place, rendezvous a the where satisfactorily explained. Allеga- absence alleged substantive crime is one which does of negligence or innocent mistake necessarily not any involve act visibly crimi- falsity are insufficient. The deliberate or nal, supply probable cause for ar- disregard impeachment is reckless whose Re, rest. See United v. States Di 332 U.S. permitted today only is the affi- 593, 581, 222, 68 92 (1948); S.Ct. 210 L.Ed. ant, any nongovernmental not of infor- Barber, United v. 628, States 557 F.2d 632 mant. (8th 1977). Cir. Police corroboration of the Id. at 2685. tip details of the also failed to establish Clearly, has the burden to estab- probаble cause Garcia’s arrest. If infor- the lish falsehood of the affidavit. He has mation received from an sug- informant present not so on the record. done gests no basis ‍‌​‌‌‌‌‌‌​​​​‌‌​​​​​​​‌​‌‌‌​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​‍for the conclusion that an individual in activity, is involved criminal judgment The of conviction is affirmеd. police corroboration of the accuracy of that HEANEY, Judge, dissenting. suggest information will Circuit such involve- Whiteley Warden, ment either. See v. 401 question whether, The before us is at the 560, 567, 1031, 91 U.S. S.Ct. 28 306 L.Ed.2d arrest, arresting agents time of Garcia’s (1970); DeAngelo Yeager, 1012, v. 490 F.2d knowledge had suffiсient facts and cir (3d 1014 Nor Cir. were any facts give probable cumstances to them cause to gathered by independent police investiga- committed, believe that had was tion, such as furtive or evasive conduct committing, a violation of the narcotics Garcia, which, considered with tip, Ohio, 89, 91, Beck laws. 379 U.S. 85 S.Ct. agents would have given probable cause 223, (1964); 142 13 L.Ed.2d for his arrest. 38, Scott, 1976), 39 cert. denied, 1066, 796, hand, If, 429 97 on U.S. S.Ct. 50 the other the content of the (1977). arresting agents 784 tip L.Ed.2d If the is taken appears what in Hopps’ affidavit, all knowledge, question lacked such evidence which is much closer since tip, was as the illegal therein, obtained fruit of that as set specified forth suppressed. Wong arrest must be See Sun Brashear “would be” accompanied by a States, 407, v. United 371 S.Ct. and, 83 male named “Rudy,” critically, most (1963); Draper 9 441 v. United Rudy L.Ed.2d that “Brashear and pos- would be” in

81 rant, should be taken this Court as the (emphasis supplied). cocaine session therefore, arrest, hinges knowledge correct statement of his at the of Garcia’s legality time of the tip informant’s is arrest. version of the which in the officer’s tes- version stated used —the I believe that the content of the infor hearing or the timony at tip mant’s must determined on the basis in his affidavit. appearing version which was adduced since, under preliminary hearing. legally holds that In order mаjority Delaware, detain, 98 S.Ct. must Franks war (1978), prove a search existence of cause to L.Ed.2d 667 truthful believe that the arrestee has committed a presumed to be affidavit rant Marion, United See States v. otherwise, crime. we must assume proven until tip, U.S. 30 L.Ed.2d 468 of the informant’s the version Giordenello v. (1971); United cor is the appears which 480, 485-486, and, thus, arresting agents had U.S. 2 L.Ed.2d one rect aware, I disa arrest.1 cause for Garcia’s when it to submit the Franks dealt proba with the circum chose issue of gree. prelimi at ble cause for Garciа’s arrest ‍‌​‌‌‌‌‌‌​​​​‌‌​​​​​​​‌​‌‌‌​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​‍on the which a defendant under stances record, nary hearing to a facial the version of the pursuant a search executed tack appeared therein, informant’s grounds warrant on ly valid appeared of the war was different than thаt which affidavit the search warrant affidavit case did not ad which were perjured. That rant was *5 we are now sworn out some four hours after the arrest. with which the situation dress government merely the faced, an officer’s sworn affi namely, whether exhibit, however, made in davit as an at statements no testimony, or his sworn tempt war- the We after-acquired discrepancy.2 search to resolve can- of an support 1. The was submitted it, arrest. ported its the stated in the sel parts rately counsel conceded of this tion of issuе of the warrant or, equates ble cause for arrest issuance probable Mr. than the vit which was time of and to that extent consideration, stipulated preliminary record for the conclusion THE COURT: MR. PETERSON [Garcia’s MR. being this case it is that of majority Garcia’s refleсted comment that by [******] I find the record state as was an arrest PETERSON: Under case. his the affidavit at the arrest, the record. of the warrant cause for Mr. Scott in his luggage same. You don’t even question by arrest and also * * this the informant’s hearing is, that the I do not the prepаred Is Hopps implies because cause for the search? implication your I would as reflected in the affida- was before the court * government under the circumstances if the Court decides Mr. Although is testimony, of concommitant deten- illegal. do view that with the possessed something find that Garcia’s coun- follows: Garcia’s subsequent to the the circumstances brief, ‍‌​‌‌‌‌‌‌​​​​‌‌​​​​​​​‌​‌‌‌​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​‍not make, your time of Garcia’s that the defense any support tip. counsel]: see the affidavit as I believe he rather than more accu- quеstion of the issues cause for get an exhib- detention the Pertinent different unsup- proba- to the facts Hon- for 2. Transcript held on nary hearing, sis Garcia’s edge Hopps possessed arrest, Indeed, tained in the affidavit for the search warrant search could assume that arresting up stopped hearing, in brief. * * * called to affidavit, affidavit. to the time of the no him, Objection, your and its also not or. added). THE COURT: THE MR. PETERSON: Q MR. to the previous facts which and [Garcia’s [******] February SCOTT [Counsel warrant, COURT: them? testify but his officer had the information con- pоint some to ascertain correct? government Hearing objections information arresting attempted, counsel]: relevant, Well, there were additional testimony You have been set where it recites that Honor. areas, probably Well, guess on Motiоn to if at the time of Garcia’s can’t I assume that the point were sustained: Agent Hopps exactly Mr. is inconsistent with objected at I take it that nor during I That’s at direct, your that out in pp. the government]: 4-6 what knowl- forth in preliminary privileged, the Court parrot Suppress, whеnever (empha- you were facts prior Hon- your had his his of Hopps speculate as to what information his beyond by Joseph have had reflected SOLIEN, Regional H. Director of or testimony preliminary hearing, Region at the National Labor Rela Boаrd, failed to introduce tes- why government for and on behalf of the timony, hearing Board, at the either Appel National Labor Relations lant, hearings suppress, on the motion to at Hopps’ have af- which would substantiated York, New Sibron v. fidavit. Cf. UNITED STEELWORKERS OF AMERI 45-46, 20 L.Ed.2d CA, AFL-CIO-CLC, Appellee. (swоrn (1968) complaint bore little resem- No. 78-1411. suppression testimony to officer’s at

blance hearings; suppression United States of Appeals, Court controlling). It was deemed incumbent Eighth Circuit. precisely upon establish ‍‌​‌‌‌‌‌‌​​​​‌‌​​​​​​​‌​‌‌‌​​​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​‍Dec. Submitted 1978. arresting agents what information the had at the time of Garcia’s arrest Decided Feb. possessed proba- so

information constituted cannot, my

ble cause.

view, relieve itself this burden conflicting

mere submission of a affidavit.

Since the informant’s as reflected record, preliminary hearing failed to arrest, probable cause for

establish Garcia’s

any evidence which was in the found subse-

quent luggage search of Garcia’s should be Barber,

suppressed. See United States 632-633;

supra at Hell-

man, 1977); *6 Stoner, July

Transcript jection. that he was with Mr. Brashear? Objection. THE THE MR. Q [Garcia’s your [*] SCOTT MAGISTRATE: MAGISTRATE: It’s not [*] of Mr. [Counsel pp. counsel]: Preliminary Hearing, [*] relevant, I will Sustained. [*] What was the basis simply sustain the [*] government]: your the fact held [*] Honor. ob- which were nary hearing, and the two search warrants tions to unlawful however, Crim.P. preliminary hearing relevant at a vide a sufficient basis for the court’s only itself to blame. Garcia’s motion. to be As the 5.1(a). majority correctly now considers the record made at searches are To the extent hearing. exhibits, insufficient, points transcript generally out, See Fed.R. stipulated, ruling it has objec- of the pro- on