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United States v. Brown

decided: January 19, 1977.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BERNARD BROWN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 73 CR 637 - John F. Grady, Judge.

Hastings, Senior Circuit Judge, Swygert and Tone, Circuit Judges. Swygert, Circuit Judge.

Author: Tone

TONE, Circuit Judge.

Defendant Bernard Brown was convicted of possession of an unregistered firearm (a sawed-off shotgun) in violation of 26 U.S.C. ยง 5861(d). On appeal, he challenges the District Court's rulings denying his motion to suppress evidence and his motion for an in camera examination of an unknown informant, as well as a number of rulings precluding presentation of certain defense evidence and arguments. We affirm.

In April, 1972 agent Christ W. Heart of the Alcohol, Tobacco, and Firearms Division of the Treasury Department obtained a federal warrant to search defendant's produce market in Chicago. The affidavit supporting agent Heart's request for a warrant averred (1) that he had been told by an informant, who had seen the firearm, that there was a sawed-off shotgun at the market, (2) that other agents had told him that the informant was qualified to identify the weapon, and (3) that the informant was otherwise reliable in that he had in the past helped in solving three homicides and was currently working with the Chicago police in narcotics investigations. When the warrant was executed, a sawed-off shotgun was discovered and seized. At defendant's trial he did not deny possession of the weapon, but rather sought to introduce evidence that he needed the gun for protection from the Blackstone Rangers street gang. He also sought to uncover the identity of the informant in order to prove his theory that the informant was himself a gang member, who tipped off federal agents in order to disarm the defendant and thus further the gang's extortion attempts. The District Court ruled such evidence inadmissible and refused either to examine the informant in camera or to compel the government to reveal his identity.

On appeal, defendant's first argument is that the sawed-off shotgun must be suppressed because the affidavit described above was defective in two respects: first, in failing to establish probable cause for believing that the shotgun was unregistered and therefore failing to allege commission of a federal offense, and second, in failing to establish a substantial basis for crediting agent Heart's report on the informant's past reliability.

In United States v. Zeidman, 444 F.2d 1051, 1054 (7th Cir. 1971), this court held that agents are not required to determine whether or not a weapon is registered before seizing it. The court stated that once a weapon is identified as a "firearm" required by federal law to be registered, probable cause to believe that it is illegally possessed is established. Id. at 1053. Defendant argues that Zeidman and similar cases cited by the government are distinguishable from the case at bar. In Zeidman, there was evidence of a large-scale gun-selling operation; in the other cases, there was evidence of other types of criminal activity.*fn1 Defendant argues that, where a crime has recently been or is about to be committed and where a suspect is believed to possess a weapon such as a sawed-off shotgun, there is no time to check the records and indeed no need to do so, given the low probability that such a person would have a registered firearm. Absent these factors, however, defendant argues that there is no basis for assessing the probability that the gun is unregistered and no emergency precluding a records check that would establish such a basis. Thus, he contends, agents in the case at bar could easily have checked the National Firearms Registration and Transfer Record to determine whether there was a sawed-off shotgun registered to anyone who worked at the store before applying for a warrant.

We do not find defendant's argument persuasive. The distinguishing factors defendant points to were not relied upon by the court in Zeidman. Instead, the court in that case assumed that "possession of [the firearm] would ordinarily be illegal," id. at 1054, and therefore found that an allegation of possession would by itself establish the requisite probable cause, id. at 1053. As the Ninth Circuit has said, "[A] sawed-off shotgun is not an intrinsically innocent object. The possession of it is a serious crime, except under extraordinary circumstances." Porter v. United States, 335 F.2d 602, 607 (9th Cir. 1964), cert. denied, 379 U.S. 983, 13 L. Ed. 2d 574, 85 S. Ct. 695 (1965). See also United States v. Canestri, 518 F.2d 269, 275 (2d Cir. 1975), in which the court took judicial notice of the fact that in 1972 there were fewer than 15,000 registered sawed-off shotguns in the United States, and most of them were registered to government agencies.

We accordingly conclude that sufficient facts were alleged to show a violation of a federal statute. Although agent Heart never explicitly identified the crime involved as "possession of an unregistered firearm," his description of it as "unlawful possession of firearms; in violation of Title 18, [sic] U.S. Code, Section 5861(d)," was sufficient to inform the magistrate of its federal character.*fn2

The second part of defendant's suppression argument is that the affidavit was insufficient because it failed to disclose the source of agent Heart's information that the informant was "reliable in that [he] has worked for the Chicago Police Department for over two years . . . has assisted in the solving of three homicides . . . [and] is currently working with Chicago Police in solving numerous narcotic cases." Speculating that this report could have come, not from the Chicago police, but from neighborhood gossip or even from the informant himself, defendant argues that the magistrate did not have a "substantial basis" for crediting it and therefore had no basis for finding the informant reliable. United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971).

While we agree that the affidavit leaves much to be desired in this respect, we cannot, consistent with the rule of United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965), hold it insufficient. In Ventresca, as in this case, an agent's affidavit contained sufficient facts to establish probable cause, but failed to state whether those facts had been reported to him by other investigators. Reading the affidavit in a "commonsense" manner, the Court rejected the argument that the affidavit could have been based on the observations of totally anonymous sources. A number of factors were cited in support of this conclusion, including the failure of the affiant to mention any such unknown sources and his use in several instances of explicit references to the actions and observations of other agents.

In this case as well there is nothing on the face of the affidavit to indicate reliance by the affiant on an unofficial source to verify the informant's past record. Moreover, it seems unlikely that agent Heart would properly check out his informant's credentials with respect to firearms identification, but fail to do so with respect to his past reliability. Given these factors and the principle that "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants," United States v. Ventresca, supra, 380 U.S. at 109, we cannot find the affidavit in this case insufficient.

We add that, Ventresca aside, we would be compelled by this court's en banc decision in United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), to hold the affidavit sufficient. In Carmichael, the court held an unattributed statement that information given by the informant "in the past [had] led to the conviction of at least six people" sufficient to establish the informant's reliability. Id. at 984, 986. The statement in this case, while equally vague as to its source, provides more detail about the informant's record than the statement in Carmichael and thus, under the authority of that case, is necessarily sufficient to establish the informant's reliability.

Questions such as the one we have just decided would not arise if judicial officers considering requests for warrants would properly exercise their authority under Rule ...


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