United States v. Alfonso Acosta ( 1974 )

TUTTLE, Circuit Judge:

Alfonso Acosta was found guilty in a non-jury trial of possessing, with intent to distribute, heroin, a schedule I controlled substance, in violation of 21 U.S. C. § 841(a)(1). Agents of the Drug Enforcement Administration obtained a search warrant for 7143 Alameda, El Paso, Texas, trailer space #11 on August 30, 1973 and there seized numerous packets of heroin weighing approximately one and one-fourth ounces. Appellant brings this appeal challenging the validity of the affidavit upon which this warrant was issued, as well as appealing the sentencing procedures used by the presiding judge. We reverse the conviction on the grounds that the warrant was improperly issued, and accordingly do not reach the question of sentencing. Reversed and remanded.

I.

The magistrate issued the search warrant, on the basis of an affidavit of federal Drug Enforcement Administration Agent Oscar Licon. The affidavit set out the following facts:

“On 8-30-73, at approx. 12:00 Noon, a confidential informant of Det. F. Maya stated to me that there was an ounce of heroin located at 7143 Alameda, Space #11, El Paso, Texas in the bathroom. The informant further stated that it belongs to Alfonso Acosta, a Mexican male, approx. 47 years of age, who resides at this trailer. The informant further stated that Acosta was in the act of cutting, diluting the heroin into small packets called papers for resale this same day. The informant stated that Acosta has done the same procedure in the trailer on at least 32 occasions after he has purchased large quantities of heroin. The informant has on another occasion assisted Federal Agents in initiating cases. The informant states positively that on August 30, 1973 at approximately 10:00 p. m. she observed the said heroin in the bathroom of said premises described above and that she knows it is heroin and that it is still present in said premises.”

The last sentence of this recital was added at the magistrate’s suggestion, for as the affidavit was originally presented to him the magistrate believed “it was pot adequate to justify the issuance of a search warrant,” for “there was nothing in the affidavit indicating the prior reliability of the informant.” In addition to seeking to bolster the affidavit by the detailing of the informant’s personal observations, the magistrate questioned Agent Licon and learned the name of the informant. By chance, this informant had been the source of information which had been the basis for a previous warrant issued by the magistrate, and based on his own knowledge and his past experience with the informant, Magistrate Boyd issued the warrant under consideration today.

At the suppression hearing, Magistrate Boyd testified that

. . once I learned the name of the informant I immediately reviewed all of these details about the informant’s past reliability and on that basis, in addition to the information which Agent Licon said he would swear to under oath about the informant having said she had seen heroin there that day and knew it to be there, at that point I agreed to issue the search warrant. At that point I became convinced that this was a reliable informant and the search warrant should issue.”

The magistrate did not feel it necessary to transcribe a recitation of his own information concerning the informant’s reliability because it “involved my own knowledge and subjective state of mind.” This procedure does not meet the required standards.

II.

The affidavit on its face fails adequately to set out facts sufficient to enable an impartial magistrate to conclude that probable cause existed to permit issuance of a search warrant. The standards to be used in evaluating the facts set forth in the affidavit are well understood and certain. As this Court has recently stated:

“This test is typically referred to as ‘Aguilar’s two-pronged test.’ Spinelli v. United States, 1969, 393 U.S. 410, 413, 89 S.Ct. 584, 587, 21 L.Ed.2d 637, 642. See United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891; Gonzales v. Beto, 5 Cir. 1970, 425 F.2d 963; United States v. Marihart, 8 Cir. 1972, 472 F.2d 809, 811; Note, the Supreme Court — 1970 Term, 85 Harv.L.Rev. 40, 55 (1971). The first ‘prong’ requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person. The second requires specific facts or circumstances tending to demonstrate that the informant, in the instance in question, had gathered his information in a reliable manner.” United States v. Chavez, 482 F.2d 1268, 1270 (5th Cir. 1973).

While the second “prong” of the test is satisfied by the detailing of the personal observations' of the informant, thereby guaranteeing that the informant is relying on “something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation,” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L. Ed.2d 637 (1969), the first “prong” of the test is left unsatisfied. There is nothing in the affidavit which proves that the informant is reliable. The af-fiant himself had no personal knowledge as to the reliability of the informant; the fact that the informant had “on other occasions assisted Federal Agents in initiating cases” says nothing about whether the eases thus initiated were successfully prosecuted, whether they were based on information supplied by the informant, or if so, whether the information proved to be accurate. Finally, despite the fact that the affidavit identifies the informant as being “a confidential informant of Det. F. Maya,” there is no indication that Det. Maya regarded the informant as reliable, or whether he had past experience tending to show reliability. •

In United States v. Harris, 403 U.S. , 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 the Supreme Court held that where an affidavit supporting a search warrant fails to establish the reliability of the informant, certain corroborative details might be substituted for a statement on reliability. In Harris four factors were held together to adequately establish reliability.

Unlike Harris, the affiant here could make no statement concerning the trustworthiness of the informant, nor could he make a statement concerning the bad reputation of the defendant. Further, unlike the statement of the informant in Harris that he had conducted illicit transactions with the defendant, thus constituting declarations against penal interest, nothing in the affidavit here suggests that the informant made any statement against her penal interest. While the fact that the informant said she was speaking from firsthand observation, like the informant in Harris, lends support to the statements in the affidavit, we do not believe Harris stands for the proposition that a statement of firsthand observation alone is a substitute for reliability in evaluating the worth of an informant’s statements. In Harris this factor was combined with three others, the cumulative effect of which was to offset the failure of the officer to establish the credibility and reliability of the informant. That cumulative effect is lacking here.

III.

We further find that the magistrate’s personal information cannot be used to save a defective affidavit. Rule 41(c) of the Federal Rules of Criminal Procedure states specifically:

“A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. . . . Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit.”

This rule seems clearly to require that any evidence relied upon by the magistrate be recorded and made a part of the affidavit. While there was some divergence in views between the Circuits prior to the October 1972 amendment to Rule 41(c) as to whether this requirement of recording oral testimony supplementing an affidavit was required to salvage an otherwise invalid affidavit, this Court has now concluded that such recording of supplementary testimony was not required. See United States v. Hill, 5 Cir., 1974, 500 F.2d 315 (No. 73-1098) where this Court, construing the unamended Rule 41(c) which did not prescribe the manner in which oral testimony was to be taken or used by a magistrate in issuing a warrant, held in accord with Eighth and Tenth Circuit decisions that such non-transeribed, oral supplementation to an otherwise invalid affidavit, was proper under the Fourth Amendment and Rule 41(c). See alsot United States v. Beasley, 485 F.2d 60 (10th Cir. 1973); United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) (en banc) petition for cert. filed, 42 L.W. 3611 (Apr. 8, 1974); Leeper v. United States, 446 F.2d 281 (10th Cir. 1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1971); United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970); Lopez v. United States, 370 F.2d 8 (5th Cir. 1966).¹

We are, of course, bound by the decision in the Hill case, which deals with search warrants issued before the amendment. There is no conflict between our decision today and the Hill decision, for in Hill this Court specifically stated: “We of course note that under the amended rule such interrogation and the affiant’s responses must be recorded and made a part of the affidavit.” United States v. Hill, supra, 500 F.2d at 322, n. 3. Under the amended rule as quoted above there can be no doubt that any oral additions to the affidavit must be recorded and made a part of the affidavit.

Beyond the literal language of Rule 41(c), it has been held that the requirement of the Fourth Amendment that information relied upon to establish probable cause be “supported by oath or affirmation” requires that any information relied upon by a magistrate be taken under oath and that this must be shown in the record. Tabasko v. Barton, 6 Cir. 1972, 472 F.2d 871. While we intimate no view on this question as it applies to state courts, we believe the weight of authority clearly is that any information relied upon by a federal magistrate in determining whether prob'able cause exists must be made a part of the affidavit or affidavits supporting the warrant. While the precise problem presented in this case has not previously occurred, where it is the magistrate himself who supplies the additional information necessary to constitute probable cause, we do not believe Rule 41(c) provides an exception for this situation.

While one rationale for this requirement that all evidence be part of the affidavit is to ensure that the magistrate has all the information necessary to arrive at a decision, another important rationale is to guarantee that the record is preserved for later review in such a way that new information, either newly discovered or remembered, cannot be used to validate a warrant after it has been issued. The requirement that all facts relied upon by the magistrate be in a written affidavit insures that “the reviewing court may determine whether the constitutional requirements have been met without reliance upon faded and often confused memories.” United States v. Anderson, supra, 453 F.2d at 177. This important requirement has not been satisfied in this case and accordingly we must find that the affidavit supporting the search warrant was inadequate and the evidence seized under that warrant must be suppressed.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.²

1 . The First, Second, Third, Fourth, Sixth, Seventh and Ninth Circuits were in apparent disagreement with this use of untranscribed, oral testimony to supplement an affidavit. See United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973) ; United States v. Hatcher, 473 F.2d 321 (6th Cir. 1973) ; United States v. Bailey, 458 F.2d 408 (9th Cir. 1972) ; United States v. Anderson, 453 F.2d 174 (9th Cir. 1971) ; United States v. Cobb, 432 F.2d 716 (4th Cir. 1970) ; United States v. Melvin, 419 F.2d 136 (4th Cir. 1969) ; United States v. Sterling, 369 F.2d 799 (3rd Cir. 1966) ; United States v. Pinkerman, 374 F. 2d 988 (4th Cir. 1967) ; Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966) ; United States v. Freeman, 358 F.2d 459 (2d Cir. 1966), cert. denied, 385 UÍS. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966) ; see also Poldo v. United States, 55 F.2d 866 (9th Cir. 1932) ; United States v. Casino, 286 F. 976 (S.D.N.Y.1923).

2 . We normally refrain from commenting on dissenting opinions, but due to the extreme novelty of the view espoused by the dissent that the exclusionary rule is to be balanced against police misconduct on a case-by-case basis, we feel obliged to make a brief comment.

Many have criticized the utility of the exclusionary rule. These criticisms are familiar and need not be discussed more fully. There can be no doubt that Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643 (1961) control this case. There is no suggestion in either of these two landmark decisions that the exclusionary rule can be ignored if in the opinion of the reviewing court the police conduct was neither wilful nor negligent. The exclusionary rule is a per se, prophylactic measure designed to prohibit the use of evidence seized in violation of the Fourth Amendment. There is no authority for the proposition that the exclusionary rule is to be balanced against the deterrent effect that exclusion might have on police misconduct in an individual case. The dissent cites no authority for its reliance upon this novel approach.

The dissent refers to United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) which declined to extend the exclusionary rule to grand jury proceedings, and Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), which used a balancing approach in determining the admissibility of statements made by the defendant to police prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the police had failed to give the defendant the warnings Miranda later held to be required. The dissent i)roperly does not argue that these cases are authority for balancing exclusion of illegally seized evidence.

Rather the dissent refers to United States v. Hill, 500 F.2d 315 (No. 73-1098, 5 Cir. 1974) as apparent authority for balancing the exclusion of evidence obtained on an invalid affidavit. As we discussed earlier, Hill does not stand as authority for this approach for in Hill this Court faced a situation where the warrant was issued prior to the October, 1972 Amendments to Rule 41(c) and the Court concluded the warrant was issued properly because the affidavit was proper under the then existing Rule 41(c). In this case, as the dissent agrees, the affidavit is facially invalid, for Rule 41(c) does not permit oral testimony to supplement it. Hill in no way suggests that an otherwise invalid warrant can justify the admission of illegally seized evidence if the police acted in good faith.

The good faith of the police has never previously been used to overrule the requirements of the exclusionary rule. The Supreme Court has not modified the exclusionary rule, and accordingly we cannot understand how our dissenting brother can urge that we do so on our own authority.