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UNITED STATES v. KEMP

October 27, 1976

UNITED STATES of America
v.
John Dewey KEMP



The opinion of the court was delivered by: WEBER

 Defendant in the above-entitled case has been indicted for unlawful possession, with intent to distribute, of heroin under 21 U.S.C. 841(a)(1). Defendant has moved to suppress evidence found during a search, pursuant to a search warrant, on the grounds that the affidavit presented to the magistrate in support of the search warrant issued for defendant's residence does not on its face disclose the existence of probable cause for the search.

 The affidavit in this case was prepared by a local police officer and presented to a state magistrate. Nevertheless, if the United States wishes to present it in a federal prosecution, it must meet federal standards for admissibility. While the affidavit in this case would not withstand the scrutiny of a case note editor of a law review, we do not believe that this is the standard to be applied. Magistrates in the state court system, unlike federal Magistrates, are not required to be learned in the law. It is contemplated in the system, however, that they perform the function of a disinterested party interposed between the police and object of police action in order that there be some independent determination of whether the police have probable cause to take action. Therefore, the probable cause determination of the magistrate should be paid some deference by reviewing courts because of the importance of their function in the enforcement of the criminal law. Jones v. United States, 362 U.S. 257, 270-271, 80 S. Ct. 725, 4 L. Ed. 2d 697 [1960].

 A standard for the construction of search warrants has been supplied by the Supreme Court:

 
[The] Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 [1965], cited with approval in United States v. Harris, 403 U.S. 573, 577, 91 S. Ct. 2075, 29 L. Ed. 2d 723 [1971].

 Applications for search warrants are usually made by police officers based upon information that they have gathered either through their own observation or which has been related to them by some third party. Probable cause may be established by hearsay evidence. Fed.R. of Crim.P. 41(c); United States v. Rugendorf, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 [1964]; United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 [1965]. To find probable cause from hearsay statements, the magistrate in the first instance must consider whether "a substantial basis for crediting the hearsay is presented." Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 735, 4 L. Ed. 2d 697 [1960]. The Supreme Court has set the standards for this determination in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [1964], where it held that "the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.'" (p. 114, 84 S. Ct. p. 1514)

 In this case the affidavit for the search warrant made by a police officer recites information supplied through several intermediary police officers whose reliability is not here in question. The information was supplied by one "Source", whose identity was unknown to the police officers and whose reliability cannot be established other than by independent verification of the details he provided and two Informants who had each allegedly proven to be reliable in the past and whose reliability is thus established.

 The unidentified Source provides a great wealth of detail about the involvement of the defendant in the heroin trade, and is obviously the result of the personal knowledge of the Source. If credible, this information is fully sufficient to support this warrant.

 This anonymous Source details defendant's travels and activities in the heroin trade and consists primarily of personal observations by the Source, including observations of the various hiding places of the heroin in a bar supposedly owned by defendant. The police checked all the easily verified facts supplied by this Source and found them to be accurate. These verified statements, however, are only such facts as are in the public domain, such as the defendant's name, address, ownership or possession of automobiles, and ownership of a bar. However, the incriminating information given by Source is largely, if not entirely, unverified by any other reliable source. Those items of information which have been verified could have been known by any casual acquaintance of the defendant and are, in themselves, completely innocent.

 The government argues that the reliability of Source's information is corroborated by information from two Informants. Informant number I who is averred to be "both true and correct as far as narcotic activity in the City of Pittsburgh has again come forward with information as to a one JOHN KEMP and his wife JANICE KEMP . . .". Nothing further in the affidavit indicates what Informant number I said, although the affidavit continues as follows: "With the information received from this informant and from other sources, state that this actor and his wife are very heavily involved in the Heroin traffick from Los Angeles, Calif, to Pgh. Pa. where these illicit narcotics are then dispensed, after being cut and packaged by these above named actors." (sic). The weakness of this alleged corroborative evidence is that the affiant fails to state exactly what Informant number I told him and whether the information came from Informant's personal knowledge or was merely a statement of his knowledge of defendant's reputation in the community.

 Nevertheless, this reference to this Informant and other sources indicate police knowledge of a subject's reputation, a factor to be given weight:

 
"We cannot conclude that a policeman's knowledge of a suspect's reputation -- something that policemen frequently know and a factor that impressed such a 'legal technician' as Mr. Justice Frankfurter -- is not a 'practical consideration of everyday life' upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer's knowledge of a suspect's reputation." United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2081, 29 L. Ed. 2d 723 [1971] Burger, C.J., plurality opinion.

 The affidavit also refers to a statement from Informant number II who is termed "reliable". Informant number II's reliability is supported by a statement that he had "in the past provided information which resulted in the arrest of (another named person) and the seizure of drug evidence." This is a sufficient allegation of reliability. See United States v. Cummings, 507 F.2d 324 [8th Cir. 1974]. The information supplied by Informant number II was that on January 27, 1976, the defendant had arrived in Pittsburgh with a large quantity of heroin in his possession. No details are supplied to indicate whether Informant number II's information came from personal knowledge or from rumor.

 The government makes several arguments in support of the reliability of the evidence given by the Source. First, the great amount of detail given by the anonymous Source is claimed as an indication of its validity. However, Aguilar appears to require that there be sufficient facts in the affidavit from which the magistrate can make an independent evaluation of the reliability of the information. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 [1969], allows the consideration of information from an anonymous tip when certain parts have been corroborated by independent sources. Our question becomes one of whether the kind of details in the Source's account, here verified, are sufficient to establish reliability without any other evidence of such reliability. The incriminating parts of Source's story which may be considered verified are his statement that Kemp had on January 26 and 27, 1976, returned from California to Pittsburgh with some heroin. This verification, however, consists of a statement of Informant number I that Kemp was heavily involved in narcotics traffic from Los Angeles to Pittsburgh and by the statement of Informant number II on January 27, 1976, that Kemp had just arrived in Pittsburgh with a large quantity of ...


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