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United States v. Ortiz
Factual and Procedural Background
Defendant Epifanio Alvarado Ortiz was indicted by a grand jury on charges of receiving, concealing, facilitating transportation and concealment of marihuana after importation in violation of 21 U.S.C. § 176a, and for being a transferee of marihuana without payment of the transfer tax in violation of 26 U.S.C. § 4744(a)(2).
The defendant moved to suppress evidence consisting of "128 cartuchos and three ounces of marihuana" seized at his residence pursuant to a search warrant issued by a United States commissioner for the Southern District of Texas on July 17, 1968, and executed the next day at approximately 8:15 a.m. The defendant contended the affidavit supporting the warrant was facially deficient, that there was no probable cause, and that his Fourth and Fifth Amendment rights were violated by issuance of the search warrant.
The affidavit was sworn by Customs Agent Thomas R. Gilbert and stated that (1) information had been received on July 16, 1968, that Alvarado was smuggling large quantities of marihuana, and (2) a confidential and reliable informant had seen a sizeable quantity of marihuana at the described residence. A hearing was held on the motion to suppress, during which Agent Gilbert explained additional facts to the commissioner and the court.
Legal Issues Presented
- Whether the affidavit supporting the search warrant was sufficient on its face to establish probable cause for issuance of the warrant.
- Whether the search and seizure violated the defendant's Fourth and Fifth Amendment rights because of an allegedly insufficient affidavit and illegal issuance of the warrant.
- Whether the execution of the warrant (which authorized day or night search) was illegal under the circumstances raised by the defendant.
Arguments of the Parties
Defendant's Arguments
- The affidavit upon which the search warrant was issued was deficient on its face.
- Because the affidavit was insufficient, there was no probable cause supporting issuance of the search warrant, violating the Fourth Amendment (and the defendant also alleged Fifth Amendment violations).
- The search warrant was illegally issued and/or executed (including an issue regarding authorization to search during day or night).
Respondent's (Government's) Presentation
- The affidavit was sworn by Customs Agent Thomas R. Gilbert and recited that an informant had personally seen a sizeable quantity of marihuana at the defendant's residence and that other information indicated the defendant had smuggled marihuana into the country.
- At the hearing Agent Gilbert informed the commissioner and the court that, following payment to the informant, the informant — after being searched to ensure he carried no contraband — was sent near the defendant's residence, purchased marihuana from the defendant, returned with the purchased marihuana and reported having seen a large quantity on the premises.
- The commissioner questioned Agent Gilbert about these matters before issuing the warrant, and the government relied on those facts to justify probable cause for the warrant and the ensuing search.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 | Affidavits for search warrants may be based upon hearsay information and need not reflect the direct personal observation of the affiant. | The court cited Jones to acknowledge that hearsay information in an affidavit can support a warrant and applied that principle to permit reliance on the informant's statements in the affidavit. |
| Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 | The magistrate must be informed of some of the underlying circumstances from which the informant concluded the contraband was where he claimed and of the circumstances showing the informant's credibility or the information's reliability. | The court applied Rugendorf's requirement and found that those requirements were met here because the informant had personally seen the marihuana and officers had other information (prior reports and the informant's previous correct information) supporting credibility; moreover, the commissioner questioned the affiant. |
Court's Reasoning and Analysis
The court first summarized the governing procedure: a warrant must issue only on a sworn affidavit that sets forth grounds for issuance so the issuing magistrate can determine whether probable cause exists. The opinion recognized longstanding questions about defining probable cause and the necessary quantity and quality of underlying facts to permit an independent magistrate evaluation rather than mere acceptance of the affiant's conclusions.
Applying precedent, the court stated that although an affidavit may be based on hearsay (citing Jones), the magistrate must be informed of underlying circumstances from which the informant concluded the contraband was at the described place and of circumstances from which the officers concluded the informant was credible (citing Rugendorf). The court examined the affidavit and the hearing testimony and concluded those requirements were satisfied: the informant had personally seen marihuana at the residence; officers had independent information that the defendant had smuggled marihuana; and the informant had a history of providing correct information. In addition, the commissioner did not rely solely on the written affidavit but questioned Agent Gilbert, who testified that the informant had been paid, searched, sent near the residence, purchased marihuana from the defendant, and returned with the purchased marihuana.
On the issue of execution (the warrant authorized day or night search), the defendant abandoned that contention at the hearing in view of 18 U.S.C. § 1405, which sets out procedure for execution of search warrants in narcotics cases. The court concluded there was "ample probable cause" for the issuance of the search warrant based on the information provided to the commissioner.
Holding and Implications
Holding: The Defendant's motion to suppress is denied.
Implications: As a direct consequence of this ruling, the marihuana seized pursuant to the July 18, 1968 search of the defendant's residence was not suppressed and remained available for use by the Government in the prosecution. The opinion does not announce or rely upon any novel or broader legal rule beyond applying established authority on hearsay-based affidavits and magistrate inquiry into informant reliability; no broader precedent was announced in this memorandum opinion.
Morton L. Susman, U.S. Atty., Houston, Tex., and Homer M. Lopez, Asst. U.S. Atty., Brownsville, Tex., for plaintiff-respondent.
Garcia & Warburton (O. B. Garcia), Brownsville, Tex., for defendant-petitioner.
MEMORANDUM ON MOTION TO SUPPRESS
GARZA, District Judge.
Defendant, Epifanio Alvarado Ortiz, stands charged by a grand jury indictment of receiving, concealing and facilitating and transportation and concealment of marihuana after it had been imported and brought into the United States contrary to law, violation of 21 U.S.C. § 176a, and of having been the transferee of said marihuana without having paid the transfer tax, violation of 26 U.S.C. § 4744(a)(2).
He has filed a motion to suppress certain evidence, to-wit, 128 cartuchos and three ounces of marihuana which was seized by Customs agents at his residence pursuant to a search warrant issued by a United States commissioner for the Southern District of Texas on the 17th day of July, 1968. The warrant, when executed on the following day at 8:15 a.m., resulted in the seizure of the marihuana in question.
The defendant alleges that the affidavit made the basis for the issuance of the search warrant was deficient on its face, and that his Fourth and Fifth Amendment rights were violated because there was no probable cause for the issuance of the search warrant since the affidavit made the basis thereof was insufficient on its face, and that the search warrant was illegally issued.
The affidavit presented to the Commissioner for issuance of the search warrant was signed by Customs Agent Thomas R. Gilbert, who stated:
'That he is positive that on the premises known as the residence of Epifanio Alvarado, a white frame house, blue trim, located in the same yard and to the rear and left side of the residence known as 247 Keith Lane, and legally described as Lot 23 of Block 6, Virginia Heights Addition, to the City of Brownsville, Texas, in the Southern District of Texas, there is now being concealed certain property, namely marihuana which are in violation of Section 176a, Title 21, U.S.C. And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: On July 16, 1968, information was received that Alvarado was smuggling large quantities of marihuana into this country. Subsequent to receipt of this information, a confidential and reliable informant saw a sizeable quantity of marihuana at the above-described residence.'
Only one of Defendant's points deserves lengthy mention.
The rules on issuance of search warrants say that a warrant shall issue only on a sworn affidavit presented to a judge or commissioner and should set forth the grounds for issuing the warrant; then if the judge or commissioner is satisfied that grounds for the application exists or that there is probable cause to believe that they exist, the warrant shall then issue.
Problems have arisen concerning the definition of probable cause and over the quantity and quality of the underlying facts which are supposed to enable the commissioner to make an independent evaluation instead of being a mere rubber-stamp for those requesting a search warrant.
The affidavit may be based upon hearsay information and need not reflect the direct personal observation of the affiant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. However, the magistrate or judge issuing the search warrant must be informed of some of the underlying circumstances from which the informant concluded that the narcotics or marihuana were where he claimed they were. The judge or magistrate issuing the search warrant must also be made aware of the circumstances from which the officers concluded that the informant was credible or his information reliable. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887.
As to the affidavit in this case, these requirements were met when the informant stated to the officers that he had personally seen the marihuana in the residence of the Defendant. The officers accepted this information as credible because other information had been received that the Defendant had recently smuggled marihuana into the country, and on the fact that the informant had previously given correct information.
While the affidavit could have been more explicit, I find that it was sufficient on its face for the issuance of the warrant.
The commissioner issuing the warrant did not rely solely, as is the case on most applications for a search warrant, on the affidavit itself, but questioned Customs Agent Gilbert about the matters stated in his affidavit.
The hearing held on the motion to suppress brought out the fact that Customs Agent Gilbert informed the United States Commissioner that he had received information sometime in June that the Petitioner-Defendant, Epifanio Alvarado Ortiz, was smuggling marihuana into this country. On July 16th another informant told Customs Agent Gilbert that Petitioner-Defendant had smuggled some marihuana into this country. The informant was given money, and after being searched to see that he did not have any marihuana, he was dropped near the residence of the Petitioner-Defendant, and he came back to the officers with the marihuana that he had purchased, and notified Customs Agent Gilbert that he had obtained the marihuana from Epifanio Alvarado Ortiz and had seen a large quantity of marihuana on the premises to be searched.
There is no question in my mind but that ample probable cause existed for the issuance of the search warrant on the information that was made available to the United States Commissioner.
The question of the illegal execution of the search warrant, which stated that the premises could be searched during the day or night, was abandoned by the Petitioner-Defendant at the hearing in view of Title 18 U.S.C. § 1405, which sets out the procedure for execution of search warrants in cases concerning narcotics.
The Defendant's motion to suppress is, therefore, denied.
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