Appeal from the United States District Court for the Western District of Wisconsin No. 73-CR-88 JAMES E. DOYLE, Judge.
Pell and Tone, Circuit Judges, and Perry, Senior District Judge.*fn*
This is a direct appeal by Spach who was convicted of violating 18 U.S.C. § 1951 by "threatening physical violence to persons to obtain property controlled by Hilldale State Bank, in furtherance of plan of extortion. . . ." The only issues presented by appellant are whether the district court erred in denying defendant's motions to suppress evidence obtained during the search of defendant's house and car. The searches were pursuant to warrants, but appellant alleges that the affidavits which were the bases for the issuance of these warrants were insufficient.
A. For House Search Warrant
The affidavit supporting the warrant for the search of defendant's house was made by Henry W. Curran, Jr., an F.B.I. agent. Curran first relates the facts disclosed to him in an interview with Mrs. David Mergen of Madison, Wisconsin. She advised him that a man wearing an Afro-style wig and sunglasses forced his way into her residence brandishing a firearm. He caused her to tape her brother to a chair and then telephone her husband, the vice-president of the Hilldale State Bank. The individual required her to explain to her husband that she and her brother were being held captive. Curran then states that he had been advised by David E. Templeton, another F.B.I. agent, that Templeton interviewed Mr. David Mergen. Mr. Mergen told him that his wife telephoned and said she and her brother were being held captive by a man with a gun. He then said he spoke to a man who told him to take $10,000 in $20.00 bills and deliver them to a particular spot. The man on the phone also told him that he was being watched. Mr. Mergen told Templeton that he complied with these orders by taking $10,000 of bank funds and that when he was depositing the money in the location indicated, he saw a 1963 or 1964 gray or green Chevrolet. After dropping off the money, he telephoned the police.
Curran next relates that Thomas Madden, another F.B.I. agent, advised him that he talked with Richard Lewis, who stated that he is personally acquainted with Roy C. Spach (the defendant) and Donald Westbury. The affidavit continues:
"That Spach resides at 4385 Doncaster Drive with two children and that Westbury stays at that address on occasion and takes care of Spach's two children. That some time last week, Westbury told Lewis that Spach was intending to rob a bank. That this morning, Lewis again talked to Westbury and Westbury told Lewis that Spach had informed him that Spach had 'done the job' referring to the account of the robbery of the Hilldale State Bank through the extortion device referred to above and that at the time of the discussion was prominent in the morning newspaper. He further advised him that they had gone to Jack White Ford, Inc., Mayfair Road, in Milwaukee, Wisconsin, and had purchased a 1972 Dodge Charger for approximately $3,000 and had paid for it in $20 bills. Affiant has been advised by the F.B.I. office in Milwaukee that Jack White Ford, Inc. did sell a 1972 Dodge in the evening of October 3, and that it was paid for by $20 bills totaling $2,960 plus other denominations. That affiant has been advised by Gregg B. Hunter, whom he knows to be a Special Agent of the F.B.I., that Roy C. Spach resides at 4385 Doncaster Drive and that he knows this because he went to that address and interviewed Spach this afternoon. That the description of the premises contained in the caption of this document was provided affiant by Hunter. That affiant has talked with Detective Captain Stanley Davenport of the Madison Police Department who advised him that he has been provided information by an unnamed informant who he knows to be a reliable person and who has provided him information in the past. Davenport said that Spach has the proceeds of the robbery hidden in three locations within the described premises, specifically, in a potted plant near the French door, in the compartment of the freezer in the refrigerator, and underneath the refrigerator. That Davenport advises that all of this information was obtained from the above-mentioned unnamed informant who he knows to be a reliable person."
The affidavit supporting the warrant for the car search is substantially identical except it relates that a clerk at the Wisconsin Department of Transportation indicated that the car to be searched was titled in the name of Roy C. Spach, Madison, Wisconsin, and it relates that money with the same serial numbers as that taken from the bank was found when searching the house but that certain items had not been located.
II. Hearsay in Affidavits
It is undisputed that hearsay may be used in affidavits supporting the issuance of search warrants. See, e.g., Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960). When hearsay is used the magistrate must be informed of some underlying circumstances from which the informer drew his conclusions and some underlying circumstances from which the officer could conclude that the informer was credible and that his information was reliable. Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). Appellant argues that long chains of hearsay are suspect, relying in part on United States v. Pearce, 275 F.2d 318 (7th Cir. 1960); but the issue is not the length of the chain but rather whether both prongs of the Aguilar test are met at each level. United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973); United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied, 414 U.S. 828, 38 L. Ed. 2d 62, 94 S. Ct. 53. As will be discussed in more detail below, ...