Appeal from the United States District Court for the Northern District of Indiana, Hammond Division No. H CR 74-19, ALLEN SHARP, Judge.
Swygert and Tone, Circuit Judges, and Joseph Sam Perry, Senior District Judge.*fn*
The principal issues in this case concern the adequacy of an affidavit by a federal agent to establish probable cause for the issuance of a search warrant; the sufficiency of the evidence with respect to defendant-appellant Janet DiNovo; and the sufficiency of the evidence with respect to the defendants' intent to distribute the drugs found in their home.
Defendants-appellants Myron DiNovo and Janet DiNovo were convicted after a jury trial of possession with intent to distribute a mixture containing heroin in violation of 21 U.S.C. § 841(a)(1). Myron DiNovo was sentenced to a term of twenty-five years imprisonment and a special parole term of six years. In addition he was fined $25,000. Janet DiNovo was sentenced to a term of twenty-five years imprisonment pursuant to 18 U.S.C. § 4208(a)(2).
On February 1, 1974 various police officers, including agents of the Drug Enforcement Administration traveled to a house trailer located on Trailer Lot 24, 3601 Sheffield, Hammond, Indiana to execute a federal search warrant. Upon arriving the narcotics officers placed the residence under surveillance. Myron DiNovo was observed leaving the trailer and getting into a white Pontiac automobile which he drove across the street and parked alongside the trailer. Janet DiNovo then left the trailer and got into this car. An agent pulled up behind the white car, got out of his automobile and announced to the defendants that he was a police officer, whereupon the defendants' car sped away. After the automobile avoided a different police car and another announced police officer, a high speed chase took place. Eventually the defendants' car slowed down and the defendants were arrested. Janet DiNovo was identified as having been the passenger in the car.
Pursuant to the search warrant the Lot 24 house trailer was searched. In the middle drawer of a bedroom dresser an agent found a paper bag in which there were thirty-nine prophylactics containing approximately two pounds of 7.5 percent pure heroin. In the living room the agents found a briefcase which had fourteen thousand dollars in currency and a brown paper bag containing nine foil packets of heroin. Also in the living room on top of a coffee table were found seven hypodermic syringes, six of which contained heroin, a few empty packets of tinfoil, and an open tinfoil packet that contained heroin. Finally agents found in the bedroom closet two scales, one of which was accurate to twenty-eight hundredths of an ounce and was of the type used for rapid weighing.
Both defendants challenge the constitutionality of the issuance of the search warrant. First they contend that the affidavit in support of the warrant contained multiple hearsay which did not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). We have included the affidavit as an appendix to this opinion. We find no problem with the hearsay statements of the informant in paragraph 4-A. An affidavit for a search warrant can properly include hearsay based on hearsay provided it contains information "relating to (1) the reliability of the informant and (2) some knowledge of the underlying facts to support the conclusion that a crime had been committed." United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973). Sufficient underlying facts are set forth and the informant's reliability is adequately shown in paragraph 4-B. The reliability of the crucial information contained in paragraph 4-G was established by the personal observations of agent Pastrick also contained in that paragraph. Finally there is the question of the reliability of the informant referred to in paragraph 4-D. It could be argued that the statement is a declaration against penal interest and thus an exception to the hearsay rule. We do not decide this issue since, as is evident from our later discussion, we do not believe this informant's statement need be considered to find sufficient probable cause.
Defendants also contend that the warrant was invalid because it was based on an affidavit in which there were material misrepresentations of fact. A full hearing was held on this issue in the district court pursuant to United States v. Carmichael. It was stipulated that the information in paragraph 4-C was incorrect. Although defendants contend that this was an intentional misrepresentation, the district court found that that agent had not even acted recklessly in regard to the matter and this finding is not clearly erroneous. Therefore there was no basis for suppression under Carmichael. Defendants also claim that agent Pastrick's statement in paragraph 4-G was a misrepresentation of what was actually observed. The district court questioned the credibility of Valerie Wild who gave contradictory testimony. Based on the testimony of agent Pastrick we accept the lower court's finding of no misrepresentation.
Finally defendants attack the affidavit on the ground that it was insufficient to show probable cause to search the trailer. In view of our previous discussion, we are confronted with evaluating the question of probable cause on the basis of the following facts: During the week of January 7, 1974 two large plastic bags containing a brown powder were observed in a house at 226 Highland, Hammond, Indiana and Myron DiNovo represented that they contained seven pounds of heroin; as of January 21, 1974 the telephone number for the house at 226 Highland, Hammond, Indiana was listed in the name of Myron DiNovo; this house was vacated shortly after that date; on January 21, 1974 Myron DiNovo was observed leaving and returning to a house trailer on Lot No. 24 at Sheffield Estates, 3601 Sheffield Avenue, Hammond, Indiana; on February 1, 1974 Myron DiNovo drove from a parking lot where he had just delivered a foil packet of opiate content and received $250 to the house trailer on Lot 24, Sheffield Estates; as of January 25, 1974 the telephone listed in the name of Myron DiNovo was listed for the address at 3601 Sheffield; as of January 25, 1974 the utilities for Lot 24, 3601 Sheffield were listed in the name of Myron DiNovo; as of January, 1974 Myron DiNovo was to receive thirty pounds of heroin; Myron DiNovo had previously been convicted of importing heroin into the United States. The question is whether these facts support a search warrant for the Lot No. 24 trailer.
A problem arises because there are no factual assertions in the affidavit that directly indicate that narcotics or narcotics paraphernalia were being kept at the premises to be searched. There was probable cause to assume that Myron DiNovo was "dealing" in narcotics and had control of heroin someplace. The affidavit was also sufficient to allow the conclusion that this trailer was Myron DiNovo's residence. But there was still the difficult question of whether the mere fact that an individual is selling drugs and has possession of a large quantity of drugs someplace is sufficient probable cause to search his residence. One court has apparently determined that under such circumstances there is probable cause. Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962); cf. United States v. Klapholz, 17 F.R.D. 18 (S.D. N.Y. 1955). But cf. United States v. Flanagan, 423 F.2d 745 (5th Cir. 1970). In the instant case there are factual assertions in the affidavit which dissipate the critical nature of the problem. From the affidavit it was proper to conclude that Myron DiNovo had been living at 226 Highland and had kept his supply of heroin there. Also there was a basis to believe that when the affidavit was filed Myron DiNovo was no longer living at 226 Highland but instead was living in the trailer on Lot No. 24 in Sheffield Estates. Thus the issue becomes whether there was probable cause to assume that a drug seller who had previously kept drugs in his former residence and was seen returning to his current residence after making a drug sale was still storing narcotics in his residence. We think these additional facts and inferences constituted sufficient probable cause and hold that the warrant was properly issued.
Defendant-appellant Janet DiNovo contends that the evidence was insufficient to prove her knowing possession of the heroin. The Government's case is based on the theory of constructive possession, which "means being in a position to exercise dominion or control over a thing." United States v. Holland, 144 U.S. App. D.C. 225, 445 F.2d 701, 703 (D.C. Cir. 1971). "Such dominion and control need not be exclusive but may be shared with others." United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). Still, "mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession." Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962) (footnotes omitted). Our task, which ...