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10/21/71 United States of America v. Charles J. Thornton

October 21, 1971






Tamm and Robinson, Circuit Judges, and Matthews,* Senior District Judge, United States District Court for the District of Columbia.


Appellant was convicted on a federal narcotic charge stemming from his possession of 20 capsules containing heroin. *fn1 The capsules were found in an envelope removed from his shirt pocket during a search incidental to his arrest *fn2 on a warrant charging another violation of the federal narcotic laws. *fn3 The arrest warrant had been issued by a United States Commissioner on the basis of an affidavit by Walter S. Fialkewicz, a special agent of the Bureau of Narcotics and Dangerous Drugs. *fn4 The affidavit, appendicized to this opinion, detailed information derived partly from an unnamed informant and partly from the agent's own experiences.

At the onset of trial, the court conducted a hearing on a defense motion to suppress the evidence pertaining to the discovery of the capsules on the ground that the arrest warrant had issued for insufficient cause. At that hearing, appellant's counsel sought but was denied leave to examine Agent Fialkewicz in an effort to elicit testimony as to the informant's previous reliability. *fn5 The sole contention on this appeal is that the trial judge erred in denying that request. We affirm in the view that whatever an accused's entitlement to such a probe might be under different circumstances, it did not exist under those obtaining here. I

In undertaking an exhibition of probable cause for appellant's arrest, Agent Fialkewicz comprehensively alleged in his affidavit the facts on which he counted. Those allegations we may profitably summarize. A confidential informant, "whose information has proven to be reliable in the past," *fn6 told two agents that Robert D. "Bobby" Long and our appellant, Charles J. "Boo" Thornton, were peddling narcotics from a designated room in a designated building. Orders could be placed by calling a certain telephone number and asking for either "Bobby" or "Boo," who would then arrange for and make delivery on the street. Agent Fialkewicz dialed the number and, getting an answer, handed the telephone to the informant who asked for "Bobby." He was told that "Bobby" was out and that he was speaking to "Boo." The informant ordered 25 "things," and was instructed to wait for "Bobby" on a nearby street corner. *fn7

A search of the informant had demonstrated that he possessed no drugs or money, and he had been furnished funds with which to consummate the purchase. As Agent Fialkewicz watched, "Bobby" Long emerged from the building and at the appointed street corner met the informant, who met or spoke to no one en route. There what appeared to be an exchange was made, after which Long left and reentered the building. Another search of the informant disclosed that he then had no money but instead had 25 capsules in which there was a white powder containing a later-identified opium derivative. The informant stated that he bought the capsules from Long with the money advanced, and positively identified both Long and appellant from police photographs. Each had a previous federal narcotic conviction; each was "well known to the affiants *fn8 as being involved in the illicit narcotic traffic in this area," and " well known by members of the MPD Narcotic Squad." *fn9

The detail of the affidavit does not obscure the fact that probable cause for believing that appellant participated in the drug sale Agent Fialkewicz witnessed had to rest heavily upon the informant's word. Much, then, depended Long's partner in the illicit scheme, and that appellant was the party with whom the observed sale had been telephonically arranged. The agent never saw appellant during the course of the events the affidavit described, nor is it clear that he heard the other end of the informant's telephone conversation producing the sale. *fn10 In sum, the only nexus between appellant and the drug transaction in question was that supplied by the informant's word. Much, then, defended on the informant's reliability, and our task is to determine whether appellant should have been permitted to interrogate Agent Fialkewicz in that regard.

We approach that task, as we must, step by step. In Part II of this opinion, we identify the legal principles forming the backdrop for consideration of appellant's request. In Part III, we analyze the situation portrayed by the affidavit in order to isolate the informant's role in the magistrate's determination of probable cause. In Part IV, viewing the trial judge's ruling in the perspective thus gained, we find insufficient reason to upset it. II

"The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . " These are inexorable commands of the Fourth Amendment, and they subserve fundamental objectives. "The informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests." *fn11 The probable cause requirement -- applicable to arrests as well as searches *fn12 -- is a shield against despotic utilization of governmental power. The Warrant Clause assures that the factual inferences undergirding a warrant "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." *fn13

Here Agent Fialkewicz pursued the commendable course of an arrest upon rather than without a warrant. As probable cause for appellant's arrest, he made oath to the informant's disclosures and to his own observations as well. The Commissioner to whom he made application issued the warrant, an action in which a finding of probable cause is implicit. Appellant does not contend, nor hardly could he, that probable cause for the arrest did not appear if the informant could be believed. *fn14 It is the reliability of the informant's story, and not its efficacy if trustworthy, that appellant wished to explore with the agent at the suppression hearing.

That the information upon which, in whole or in part, a warrant issues is hearsay to the officer-affiant, as distinguished from facts personally known to him, does not ipso facto negate the existence of probable cause. *fn15 If a "substantial basis for crediting the hearsay is presented," that constitutional mandate is met. *fn16 It is not enough, however, that the affiant himself is satisfied that the information and its source are credible. *fn17 As we have said, it is for the magistrate from whom the warrant is sought, and not the officer seeking it, to determine whether there is probable cause to issue it. *fn18

In order that the magistrate may intelligently make that determination, it is necessary that he be given the facts. For just to the extent that the magistrate is presented with conclusions instead of facts, it is the officer rather than the magistrate who makes the appraisal. And where probable cause in some wise depends upon the acceptability of hearsay, facts bearing on the reliability of the information and its source become very relevant. The magistrate must be sufficiently advised to make possible a valid judgment that more likely than not the informant is to be trusted and knew what he was talking about. *fn19

So it is that an affidavit for a warrant must set forth "some of the underlying circumstances from which the informant concluded" that there was a legal violation "and some of the underlying circumstances from which the officer concluded that the informant . . was 'credible' or his information 'reliable.'" *fn20 To provide probable cause, the affidavit must authorize a supportable "inference that the informer was generally trustworthy and that he made his charge against [the suspect] on the basis of information obtained in a reliable way." *fn21 "Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police." *fn22 For "the purpose of the [affidavit] . . . is to enable the appropriate magistrate to determine whether the 'probable cause' required to support a warrant exists. [He] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion." *fn23 And only through scrupulous observance of these requirements can the mandates of the Fourth Amendment be honored. *fn24

Such, then, is the magistrate's function, to be performed upon a construction of the affidavit "in a commonsense and realistic fashion." *fn25 Thereafter the magistrate's "determination of probable cause should be paid great deference by reviewing courts," *fn26 and sustained when "there was substantial basis for him to conclude" as he did. *fn27 And "when a search is based upon a magistrate's, rather than a police officer's determination of probable cause, the reviewing courts will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.'" *fn28 For "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." *fn29 "Where [the underlying] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the court should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." *fn30 III

Tested by governing constitutional criteria, the affidavit in suit was facially sufficient to adequately support the warrant for appellant's arrest. We reach this conclusion even assuming that no weight should be assigned to two of its purely conclusory allegations. *fn31 One is the unexplained assertion that appellant was "well known . . . as being involved in the illicit narcotic traffic in this area," and was "well known by" local police. *fn32 The other is the equally unelucidated claim that the informant's "information has proven to be reliable in the past." *fn33 Even if these statements are to be disregarded as surplusage, it is clear to us that Agent Fialkewicz' affidavit, standing alone, established the probable cause the Constitution requires.

We have already summarized the comprehensive allegations of the affidavit, *fn34 and we appendicize the affidavit in full. It suffices here to simply point out the several features of the affidavit we deem decisive on the probable cause issue. While initially the intelligence of the ongoing drug operation proceeded from the informant's mouth, the information he confided was corroborated in substantial degree by the agent's own observations prior to application for the warrant. The informant not only disclosed prior narcotics sales from a specified point but, very importantly, also described the modus operandi. The description included details as to the telephone number to be called, the persons to talk with, the placement and acceptance of orders for drugs, and the method by which delivery of the drugs would be accomplished. Perhaps the most significant single fact in this case is that the accuracy of each of these details was personally verified by the agent during the course of events transpiring.

The agent dialed the telephone number himself, after which a purchase of narcotics was arranged and consummated. The agent heard the informant ask for "Bobby," appellant's alleged companion in the operation, whether or not he heard the other side of the telephone conversation. *fn35 He also heard the informant place an order for 25 heroin capsules, and witnessed an exchange of 25 such capsules for money. *fn36 The circumstances left little or no room for doubting that the sale was made in consequence of the telephone call. A preliminary field test of ...

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