United States v. Berry

463 F.2d 1278
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 1, 1972
DocketNos. 71-1135 and 71-1231 to 71-1234
StatusPublished
Cited by10 cases

This text of 463 F.2d 1278 (United States v. Berry) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Berry, 463 F.2d 1278 (D.C. Cir. 1972).

Opinion

MATTHEWS, Senior District Judge:

In a prosecution under a multiple count indictment appellants were convicted of violating the gambling laws. Appellants Sherman A. Berry and Rudolph E. Somers were convicted of operating a lottery in violation of 22 D.C.Code § 1501. They were also convicted, along with appellants Paul Gray and Shirley F. Spearman, of maintaining gambling premises at 3416 Eads Street, N.E., Washington, D.C., in violation of 22 D.C. Code § 1505. Appellant Bessie L. Berry and all of the heretofore named appellants were convicted of possessing num[1280]*1280bers slips in violation of 22 D.C.Code § 1502. The appeals from these convictions have been consolidated.

Prior to trial appellants moved to suppress evidence seized from them on the ground that there was not probable cause for the issuance of the warrants and hence that the searches and seizures were unlawful. The motion was denied.

The sole issue on appeal is whether the district court erred in finding the affidavit in support of the search warrants sufficient to constitute probable cause for the searches and seizures.

Having received information that “Rudolph E. Somers was picking up numbers . . . and taking them to 3416-Eads Street N.E., which is the numbers office of Sherman A. Berry, who is a well known area gambler,” two officers of the Metropolitan Police Gambling Squad initiated an investigation entailing daily surveillance of the address, 3416 Eads Street, Northeast, from Wednesday, October 15, through Wednesday, October 22, 1969, excluding the intervening weekend. On October 23, search warrants for the Eads Street address and for 721 46th Street, Southeast were obtained, the premises were entered, the defendants were arrested, and certain gambling paraphernalia were seized as physical evidence.

Appellants have challenged the validity of the search warrants on the ground that the affidavit in support of the warrants is lacking in the fundamental requirements enunciated in Aguilar v. Texas,1 Spinelli v. United States,2 and United States v. Long3 in that (1) the affidavit failed to set forth factual circumstances from which a magistrate could appraise the informant’s credibility; (2) the affidavit did not sufficiently state the underlying circumstances upon which the informant based his conclusion; and (3) the informant did not describe the accused’s criminal activity in sufficient detail to show the magistrate that he is relying on something more than rumor. Further, appellants contend that, viewed in the entirety, the affidavit falls short of the standards of probable cause enunciated by the Supreme Court in its decisions in this field.

Appellants have seized upon the first paragraph of the affidavit, which is reproduced in full in the Appendix to this opinion, which states:

“During the month of October 1969, information was received in the office of the Gambling Squad, Morals Division, Metropolitan Police Dept., that Rudolph E. Somers was picking up numbers in the District of Columbia and then taking them to 3416-Eads Street N.E., which is the numbers office of Sherman A. Berry, who is a well known area gambler. As a result of this information Pic. Matthew C. Rettew and Officer George A. Woo were assigned to conduct an investigation.”

Finding nothing regarding the credibility of the informant, no statement of underlying circumstances upon which informant based his conclusions, and no description by informant of the accused's criminal activity in sufficient detail to show that he was relying on something more substantial than rumor, appellants contend that the affidavit, according to the teaching of Aguilar, Spinelli and Long, is fatally deficient.

In the Aguilar affidavit the informant’s tip alone was intended to provide the basis for probable cause. In such a situation, the Supreme Court held it essential that the affiant state some of the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s conclusion as well as the affiant’s conclusion that the informant was “credible” or his information “reliable.” The rationale here is that if the magistrate is not to become a “rubber stamp” for the [1281]*1281police, he must have a basis for assessing the probabilities of truth as to a purely hearsay statement made by a person unknown to him.

That these requirements regarding an informant could be mitigated, depending upon other facts which might be included in the affidavit, such as corroboration of the tip by police investigation, is implicit in the Court’s statement that

“If the fact and results of such a surveillance had been appropriately presented to the magistrate, this would, of course, present an entirely different case.” 378 U.S. at 109, note 1, 84 S.Ct. at 1511.

The Spinelli affidavit relied upon an informant’s tip, but it also included the results of an FBI surveillance in an effort to corroborate the tip, thus presenting the question as to how the Aguilar test was to be applied in such a situation.

Although United States v. Long, supra, had not been decided at the time the district court denied the motion to suppress, it lends no support to appellants’ contentions. The Long affidavit relied on information from the “personal knowledge” of two confidential informants and an independent FBI surveillance report. Finding this situation quite similar to SpineUi, we followed its guidelines in deciding Long.

Clearly these decisions are grounded on affidavits where the basis for probable cause lies primarily on the informant’s information. However, we find nothing in the aforesaid cases to support a conclusion that an independent police investigation could not make a sufficient showing of probable cause, even where the investigation began with a tip from an anonymous informant whose credibility, reliability and source of information were questionable or unknown. In DiPiazza v. United States,4 the Sixth Circuit pointed out that

“Spinelli is no authority for the proposition that the search warrant is invalid because an investigation is begun as a result of a tip. Weak, anonymous and even untrustworthy information may serve as the opening clue to uncovering criminal acts.”

We also agree with the District Judge who first considered appellants’ argument on their motion to suppress and concluded “this is surely not the teaching of SpineUi and Aguilar for it would lead to absurd results in cases such as this.”

The affidavit before us does not depend on the tip as the basis for probable cause. The impact of the first paragraph is that the “information received” triggered the investigation by Pic. Rettew and Officer Woo. These officers then set out in nine full paragraphs the details and results of their investigation. It is primarily from this data that probable cause will stand or fall.

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463 F.2d 1278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-berry-cadc-1972.