Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal 77-00077).
Opinion for the Court filed by Circuit Judge BAZELON.
Concurring opinion filed by Circuit Judge MacKINNON.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Appellant, William Morgan, was found guilty by a jury of possessing phenmetrazine with intent to distribute in violation of 21 U.S.C. 841(a) (1970). We agree with his contention that the trial judge erred in excluding certain evidence from the jury. I
On January 6, 1977, officers of the Metropolitan Police Department obtained a warrant to search for illegal drugs in a single-family dwelling in Northwest Washington, D.C. The warrant was issued upon the affidavit of Detective Mathis, stating that a reliable informant had advised him that a black male, age 22 to 24 and known as "Timmy," was selling drugs from inside the house; that "within the past 48 hours" Mathis had gone to the house with the informant and waited outside while the informant made a "controlled" buy; that upon rejoining Mathis, the informant handed him some pink pills, later identified as phenmetrazine; and that the informant said he had purchased these pills from Timmy.
When the officers arrived at the house at 10 p.m. to execute the warrant, they did not find Timmy but instead came across appellant and four other persons in the front hallway. Tr. 8, 250, 256. Appellant was holding the leash on a snarling German shepherd. According to the officers, appellant immediately reached in his pocket with his free hand, grabbed some pink pills, threw them on the floor, and started to mash them with his foot. Tr. 8. Detective Mathis managed to recover intact twelve of the pills, *fn1 which subsequently were determined to be phenmetrazine. A search of the basement resulted in seizure of seventy-seven additional such pills and $30 cash, found in a shaving kit secreted in a hole in the ceiling, Tr. 17; $4,280 cash, found in a fuse box, Tr. 42; $410 cash, found in a dresser drawer, Tr. 15; the birth certificate of a Kelsey Etheridge, found in an unidentified article of clothing on a chair, Tr. 265; and Etheridge's school identification, found on top of a television, Tr. 266. No fingerprints were taken from any of these particular items, Tr. 47-48, and no fingerprints were introduced at trial. Besides appellant, at least six other persons were in the house when the police arrived, Tr. 123-124, 250, including the four who were in the hallway.
At trial, the government sought to connect appellant not merely with the twelve pills seized from the floor in the hallway but also with the seventy-seven pills and $4,280 cash found in the basement. The owner of the house, Mrs. McKnight, testified that she had known appellant for about two years and that he came to her home daily to feed and exercise her dogs, which were chained in the basement. Tr. 57-62. Appellant, she said, was the only person regularly in the house who was not afraid of the dogs. Tr. 60. She also stated, however, that with the exception of Etheridge, who used the basement bathroom, no one had lived in the basement since October 1976. *fn2 Tr. 61-63.
Appellant testified that he resided in Southeast Washington with his sister and brother. Tr. 206. On the evening of the search, he had gone to Mrs. McKnight's house to invite one of the occupants, a William Taylor, to go with him to a party. *fn3 Tr. 206-207. He denied dropping any phenmetrazine, and claimed to have no knowledge of the drugs or money found in the basement. *fn4 Tr. 217-219, 240, 243. He admitted that he did take care of the dogs, however, and thus came to the house and entered the basement every other day. Tr. 213, 223.
Three times during the trial defense counsel sought to establish that Timmy, Mrs. McKnight's son, lived in the house and was selling drugs. *fn5 Counsel proffered as evidence of this fact the statements made by the informant to Detective Mathis that are contained in the affidavit supporting the search warrant. The trial judge excluded this evidence on grounds that it was irrelevant and was hearsay. *fn6 II
Morgan contends that the informant's statements were neither (a) irrelevant nor (b) hearsay under the Federal Rules of Evidence, and that ...