The opinion of the court was delivered by: GASCH
On December 22, 1967, the United States Commissioner issued a search warrant for 5333 MacArthur Boulevard, N.W.
During the resulting search, quantities of marihuana, LSD and paraphernalia were found and seized. Judith D. Kuch was subsequently indicted on five counts charging violations of United States and District of Columbia law.
Defendant now moves to suppress the evidence seized on the grounds that: (I) there was no probable cause for the issuance of the warrant; (II) there were impermissible delays, both between the report of the informer and the application for the warrant, and between the issuance of the warrant and its execution; and (III) the execution of the warrant was faulty.
Paragraph two of the affidavit supporting the issuance of the warrant now before this Court states that a reliable informant had told the affiants that marihuana and hashish were being kept and sold on the premises described as 5333 MacArthur Boulevard, N.W., that the informer had seen marihuana and LSD on the premises and that large groups of people came to the premises and used drugs there.
Defendant argues that there is no evidence in that statement (paragraph two) to indicate the informant was reliable and that, therefore, there were no facts from which a neutral and impartial magistrate could conclude this information was reliable. The Court agrees that this paragraph alone could not provide the magistrate with the requisite probable cause since it relates no corroborating facts. Defendant, however, unnecessarily limits the possibilities for corroboration.
The first paragraph of the affidavit states that another informant - more fully described as one whose information in the past had proved reliable and had led to the arrest of persons for violating the narcotics laws and the seizure of LSD and marihuana - told the affiants that J. D. Kuch had moved into a house on MacArthur Boulevard near the District line and was setting up a laboratory nearby to manufacture dangerous drugs.
In subsequent paragraphs, the affiants swear that they conducted surveillance of the premises and as verification of their information ascertained that J. D. Kuch was known to be a user of marihuana and LSD and that she was living on the premises described by the informer. Their surveillance indicated that large groups in "hippie" attire frequented the premises, that autmobiles parked in front of the premises were registered to known users of marihuana, that activities in the house did not begin until late at night or early in the morning and that at least one male visitor spent some time "bending over" a clump of grass.
Defendant vigorously attacks each of these statements arguing that they have no legal significance, no probative value or that in some cases they are merely observations of the sometimes bizarre behavior of young people. Defendant's assertions are in part correct. No single paragraph of this affidavit is legally sufficient to justify the issuance of a warrant and viewed separately, some of the statements appear irrelevant. By dissecting the affidavit paragraph by paragraph, sentence by sentence, defendant seeks to avoid the totality of the instrument. By this method, the defendant obfuscated the very test she asserts the affidavit fails to meet.
As the defendant has noted, the duty of the Court on this motion is to determine whether there was sufficient information before the United States Commissioner so that he, as a man of reasonable prudence, could properly have concluded that LSD and marihuana were probably being kept for use and sale on the premises described.
The Supreme Court has described both the quantity and the quality of evidence which it deems "sufficient" both to justify the issuance of a search warrant and correspondingly to insure that constitutional rights are protected by having licenses to search constitutionally secured areas issued only upon the decision of an independent magistrate.
Quantitatively, the information must be that from which a reasonable man could conclude that there probably are illicit paraphernalia on the premises to be searched.
Logically this is less evidence than that required to convict.
Qualitatively, since affidavits are not drafted by expert lexicographers, they should be read as a whole with the common sense implicit in the reasonable man standard.
Similarly, information they contain may consist entirely of hearsay, as long as there are some facts which would indicate to an independent commissioner that there is reason to believe the hearsay is reliable.
In this regard, defendant has directed the Court's attention to the standards and affidavits in Aguilar and Ventresca.10 The Court agrees that those are the appropriate standards but notes that the affidavits they examine are near the poles of the law chartered for search warrants. The Supreme Court's opinion concerning the affidavit in Jones v. United States is more helpful to the instant case.
There a warrant underpinned by an affidavit based solely on hearsay was sustained because there was some basis upon which it could be determined that the hearsay was trustworthy.
It is not suggested that the Commissioner doubted Didone's [the affiant's] word. Thus we may assume that Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant's story. The informant had previously given accurate information. His story was ...