United States v. Louis M. Darensbourg

520 F.2d 985, 1975 U.S. App. LEXIS 12416

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 10, 1975
• Docket: 74-2313
• Status: Published

Opinions

GEE, Circuit Judge:

This hard but simple case concerns the validity of a state search warrant, attacked on two grounds. The first questions whether the warrant “ . particularly describes] the place to be searched . . . . ” as commanded by the Fourth Amendment. The second attacks the affidavit upon which the warrant is based as defective for lack of an assertion in terms of the informant’s reliability. A search by authority of the warrant produced the weapons named in it: three revolvers and a sawed-off shotgun allegedly used in the armed robbery of a drive-in grocery. But the district court suppressed this evidence because it found the warrant did not sufficiently describe the apartment searched, and perhaps on the second ground, also. The United States appeals, and we reverse.

The Description of the Premises

“Apartment # 70, located at 3101 Highland Rd., in the City of Baton Rouge” was the description. The apartment intended by it was located in a large, four-building complex which bordered on both July Street and Highland Road and contained approximately 450 apartments. The apartment searched was the only one in the complex numbered 70. But it was in fact located on July Street, not at 3101 Highland Road, which was the address of the business office of the complex. In ascertaining the address for purposes of applying for the warrant, the officers had consulted the telephone directory, which carried the address of the business office as that of the complex. Apartment 70 sits about 300 yards from the business office, in a separate building. A canal divides the two locations so that moving from one to the other requires traveling several city blocks and departing some distance from the premises of the complex,

The classic statement of the standard to be applied in examining the sufficiency of a warrant’s identification of the place to be searched appears in Steele v. U. S.: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925).¹ The test is one of reasonableness, and “[tjechnical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” U. S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Problems such as we here face are not akin to those of conveyancing.² Many courts, in many cases, have recognized that a minor error in a portion of the description of premises to be searched does not necessarily invalidate the search. For example, in Steele, supra, the Supreme Court upheld the search of 609 West 46th Street under a warrant authorizing the search of 611 West 46th, the building being a large warehouse having these two numbers and only partly partitioned. In United States v. Melancon, 462 F.2d 82 (5th Cir. 1972), we upheld the search of a man’s residence at Route 2, Box 622 under a warrant describing his next-door business “at Route 2, Box 623 . . .” Judge Cabot, in his exhaustive and definitive opinion in United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla.1971), upheld the search of apartment 310 on the third floor of a building under a warrant describing it as being on the second. Among the cases collected in that opinion (at 319-320) are the following, in each of which the validity of the search was upheld: United States v. Contee, 170 F.Supp. 26 (D.C.1959) (warrant described premises as “entire Apt. A”— apartment searched was the basement apartment at the correct address but was not designated “Apt. A”); United States v. Joseph, 174 F.Supp. 539 (E.D. Pa.1959), aff’d, 278 F.2d 504 (3rd Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960) (warrant listed address to be searched as “209 Court Terrace,” address searched was “209 Minersville Street,” evidence showed Court Terrace was a continuation of Minersville Street); United States v. Pisano, 191 F.Supp. 861 (S.D.N.Y.1961)(warrant listed “a grocery store known as Esta’s located on the ground floor of a building at 129 West Third Street, Mount Vernon, New York”; correct address was 109 West Third); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970) (address listed as 517 Conkey Street, premises searched was actually 519 Conkey Street); and Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969) (warrant for 1419 and 1421 North Park; one of the apartments searched was 1419a). Speaking of these decisions, Judge Cabot observes, correctly, we think:

The foregoing decisions illustrate the principle that the determining factor as to whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant.

Applying these criteria to the instant case, I hold that the error in describing Apartment 310 as being on the second rather than the third floor of Building Number 3 was of such a minor nature as not to invalidate the search warrant. There was only one apartment in that building with the Numerals 310 on the door, and the F.B.I. Agents searched that apartment. There was little possibility under the facts of this case that an apartment not intended to be searched could have been searched through mistake. One Agent had already viewed the door to that apartment, although he did not take part in the search. The key to Apartment 310 given to the Agent by the manager unlocked the door.

United States v. Sklaroff, 323 F.Supp., at 321.

Applying the same criteria to our case, we conclude that since, as in Sklaroff, there was only one apartment in the complex bearing the number written in the warrant, there was little likelihood that the wrong premises would be searched — as indeed they were not. And we conclude as well that a reasonable effort on the part of the executing officer — such as going to the address given in the warrant and asking the manager for the keys to apartment 70 and how to get to it — would suffice to locate and identify the premises authorized to be searched. The decision of the district court suppressing the evidence on this ground is clearly erroneous.

The Affidavit’s Lack of an Assertion that the Informant is Known to be Reliable

The district court also observed, or arguably held as an alternate ground for invalidating the warrant, that the affidavit upon which the warrant was based was probably insufficient also as failing to attest in terms the reliability of the informant. We disagree. It is true that the affidavit did not describe the named informant, a fifteen year-old boy, as previously reliable, or as having given information in the past resulting in successful prosecutions, etc. It did, however, provide the name and address of the juvenile informant³ and thus lay the spectre of the anonymous troublemaker. In addition, it gave detailed information about the guns,⁴ what robbery they were used in, and where they were located. Such detail may base an inference that the informant gained his information in a reliable way, Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 644 (1969), and so satisfy the alternative test under Aguilar’s second prong: “ ... or his information ‘reliable.’ ” See United States v. Acosta, 501 F.2d 1330, 1335 (5th Cir. 1974) (dissent), opinion vacated 509 F.2d 539, 5 Cir., (1975) (en banc).

Indeed, we do not think that the district court, in this case of actual observance of the prohibited weapon by a named, nonprofessional informant, was bound to an iron application of the Aguilar-Spinelli rule. The Second Circuit has very recently been called on to consider just such an objection to an informant’s affidavit in a case strikingly similar to ours. Responding to a contention that the warrant was defective for want of a recital in the affidavit that the informant was known to be reliable, as Aguilar-Spinelli was claimed to require, it held:

Apart from the question of the precise standing of Spinelli after U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 . . ., there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime. Indeed any other view would mean that, despite the 1972 amendment to F.R.Crim.P. 41(c) to the effect that “[t]he finding of probable cause may be based upon hearsay evidence in whole or in part,” it would generally be impossible to use hearsay statements of victims or witnesses since ordinarily they would not be previously known to the police.

Viewed in the light of these decisions, the affidavit was sufficient; it made evident that Thompson had been in the bedroom of Burke’s apartment and had talked with Burke about the gun, or at least that he had said so. To be sure, it would have been better if the affidavit had recited how Thompson had come to see and hear what he did and still better if there had been an affidavit by Thompson himself . . . but it is clear to us that the magistrate had “a ‘substantial basis’ for crediting the hearsay.” U. S. v. Harris, 403 U.S. [573] at 581, 91 S.Ct. 2075, 29 L.Ed.2d 723 . . . (plurality opinion). U. S. v. Sultan, 463 F.2d [1066] at 1069. It is true also that Thompson could have been lying to the affiants, that the affiants could have been lying to the judge, or both. But such risks are inherent in any system allowing, as it must, that search warrants may be issued on something less than a full trial of the existence of probable cause.

United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975).

This circuit’s equivalent of Burke is United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), which, like Burke, stands for the general proposition “ . . . that Aguilar and Spinelli requirements are limited to the informant situation only.” 457 F.2d, at 1239.⁵ To decide this case, we need not restrict Aguilar-Spinelli to the professional informant. For the matter in hand — an identified nonprofessional — a line drawn at anonymity suffices, and we find significant Chief Justice Burger’s statement that the Aguilar informant-reliability rule applies to “an affidavit based solely on the hearsay report of an unidentified informant” (emphasis added). United States v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 2078 (1971).

Under the dissent’s treatment of Burke and Bell, no victim of or witness to a crime could cause a warrant to issue unless he chanced to be a person of established credibility. Thus, for example, under the rule advanced by the dissent, persons of dubious credibility — or even of unknown reputation, like the adolescent witness in this case — might be victimized at will without fear that their information could precipitate a search. Whatever the law may be, we doubt it is this.

The dissent’s painfully-extracted distinctions of Bell are too elaborate for application in the real world. A more bright-line rule is needed if police are to apply it day by day and if we are to pass on their good faith in doing so, as Peltier indicates we must:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374, 384 (1975).

The evidence found in this search should not have been suppressed.

Reversed.

1 . In this federal prosecution the validity of this search warrant, although executed by state officers, must of course be examined under federal standards. U. S. v. Melancon, 462 F.2d 82, 91-92 (5th Cir. 1972), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487.

2 . Indeed, our case derives a certain fey air from the fact that the officers who applied for and executed the warrant evidently knew the correct address and location of the apartment and obtained the anomalous address in a well-meaning effort to be letter-perfect.

3 . Unlike the affidavits considered in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

4 . Not all of which proved accurate in the event.

5 . Cf. United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir. 1971); McCreary v. Sigler, 406 F.2d 1264, 1268-69 (8th Cir. 1969).