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UNITED STATES v. WILSON
March 30, 1978
UNITED STATES of America
David F. WILSON
The opinion of the court was delivered by: ROSENBERG
ROSENBERG, District Judge.
This matter is now before me on a motion and an amendment to the motion of the defendant, David F. Wilson, to suppress the search warrant and evidence. This defendant and another was charged with the violation of various federal firearms' statutes based upon alleged receipt and possession of a sawed-off shotgun.
Counsel for the parties stipulated at the hearing held on the motions that the shotgun was seized from a house trailer on April 29, 1976, pursuant to a search warrant issued by a Magistrate for the Commonwealth of Pennsylvania to a Pennsylvania State Trooper. An agent of the Bureau of Alcohol, Tobacco and Firearms accompanied the State Trooper in the execution of the warrant. Following the law enforcement officers' entry, the defendant Wilson made inculpatory statements to the officers.
The defendant contends that the affidavit for the search warrant fails to establish the reliability of the facts recited therein to establish probable cause for the search. At the hearing on the motions, the Government offered the search warrant in evidence and maintains that it is the "four corners" of the instrument which governs the determination of this case. United States v. Anderson, 453 F.2d 174, C.A. 9, 1971.
The attack is made upon the warrant because the defendant asserts that it was issued in violation of the principle laid down in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 1964, requiring a two-prong test to be made by the magistrate before the issuance of a warrant: First, that the defendant is entitled to have a neutral judge or magistrate determine that there are facts which support the affiant's reasonable belief that the informant is credible; and Second, that there are facts from which the affiant can form a reasonable belief that the crime has been committed.
The shortcoming of the information upon the warrant as issued, as the defendant asserts, is that it does not contain facts indicating how the informant came by his information and of the insufficient details to evidence "an inherent reliability of the information". The affidavit upon which the search warrant was issued includes the following:
"Identify items to be searched for and seized (be as specific as possible):
a sawed-off shotgun, Herrington & Richardson Topper Model 128, single barrel and a handgun of unknown calibre, but stated to be a. 38 calibre,"
"Specific description of premises and/or persons to be searched (Street and No., Apt. No., Vehicle, Safe Deposit Box, etc.):
A House trailer, light green in color, with aluminum top, located behind the Texaco Service Station and Garage operated by Emerick's, and located along route 31, Donegal Township, having a frame porch on the east side, Westmoreland County. Also a Red Chev Reg. No. 8B8308, registered in the name of Shirley A. Wilson, Box 86, Donegal, Pa. said vehicle has a black stripe on trunk lid."
"Probable cause belief is based on the following facts and circumstances:
On the 23rd day of April, 1976, the affiant received information from a reliable confidential informant who has furnished reliable information in the past that has led to three arrests and convictions on Burglary, Receiving Stolen Property, in the Courts of Westmoreland County. Said informant having stated that at the above described property location on the east side of the above rte and aforementioned description and most particularly within the Mobilhome, more specifically, under the sink, is located the one item, a sawed off shotgun, and also that in the aforementioned vehicle, the handgun is located, however, this search warrant is to include both the above described locations (trailer and Vehicle) and any and all curtilage. The aforementioned information was supplied by the informant on April 23, 1976 and again April 29th, 1976 whereas the informant stated that from the 23rd to the 29th day of April, 1976, the ...
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