Mapp v. Warden, New York State Correctional Institution for Women
Opinion of the Court
Dollree Mapp and Alan Lyons, each convicted of a State narcotics offense, sought a writ of habeas corpus in the District Court for the Eastern District of New York, primarily on the ground that certain evidence introduced at their joint trial was the product of an unconstitutional search. They appeal from the dismissal of their petition by Judge Walter Bruchhausen. We affirm.
As the result of information supplied by a confidential informant as well as their own
Appellants contend that this evidence was seized in violation of the Fourth Amendment. They say that the hearsay statements of a confidential informant in the search warrant application
When an informant’s tip is relied upon to establish probable cause, these
Although the informant did not have a previous track record of reliability,
Appellant Mapp
Mapp next contends that, even if the search warrant permitted the initial intrusion at Nashville Boulevard, seizure of the rent receipts could not be justified under the plain view doctrine. “[Wjhere the police know in advance the location of the evidence and intend to seize it,” discovery is not inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564, 585 (1971). However, despite thé fact that the searching officers knew that appellants had received rent receipts for the North Conduit Avenue apartment under the name Smalls, there is nothing to indicate they had prior knowledge that the receipts were at Nashville Boulevard, or any intent to seize them before their discovery. Rollins, supra, 522 F.2d at 166 (dictum). They were found in the course of a search for narcotics in a drawer in which drugs might easily have been secreted. Id. When an officer noticed the name Smalls, the receipts naturally caught his attention. It took no detailed examination to make this discovery, and we see no reason to upset the State court’s presumptively correct
Appellants also assert that the Bergersen affidavit contained misrepresentations which, they contend, mandate reversal of their convictions, see United States v. Gonzalez, 488 F.2d 833, 837-38 (2d Cir. 1973), or, at minimum, a hearing. They make much of the conflict between the statement in the affidavit that the North Conduit Avenue apartment was being used on October 6, 1969, to package narcotics, and defense testimony that the project in which the apartment was located was not open for occupancy until November 1969. This apparent inconsistency merely challenges the accuracy of the information furnished by the informant.
Appellants’ other claimed discrepancies merit but passing comment. Bergersen’s inability to recall at a suppression hearing whether he saw appellants actually enter the North Conduit Avenue apartment on February 1, and his lack of memory of the dates on which he received the informant’s messages set forth in the affidavit in no way belie his statements in the affidavit, made when his memory was fresher. Though Bergersen admitted he did not personally know that the informant had spoken to Mapp during the November 6 telephone conversation, the affidavit contained no representation that he did know. Appellants have not made the initial showing of falsehood prerequisite to a hearing on the veracity of the affidavit, United States v. Steinberg, 525 F.2d 1126, 1130-31 (2d Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3439 (Jan. 22, 1976); United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970), and have failed to demonstrate any basis for invalidating the search.
Finally, appellants contend that, because the information supplied by the informant was essential to the establishment of probable cause, the State court’s refusal to compel disclosure of his identity was error. The District Judge properly rejected this claim because his review of state criminal proceedings under 28 U.S.C. § 2254 is limited to errors of constitutional magnitude, Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102, 44 U.S.L.W. 3205 (Oct. 6,1975); and where the issue is one of probable cause disclosure of “the identity of an informer is not constitutionally required even though his information is the sole basis for probable cause.” United States v. Comissiong, 429 F.2d 834, 837 (2d Cir. 1970). See also United States ex rel. Coffey v. Fay, 344 F.2d 625, 633 (2d Cir. 1965), aff’d after remand, 356 F.2d 460 (2d Cir. 1966) (per curiam).
Moreover, it is settled in this Circuit that an informant must be produced only when his story constitutes “ ‘the essence or core or main bulk’ of the evidence brought forth which would otherwise establish probable cause.” United States v. Tucker, 380 F.2d 206, 212 (2d Cir. 1967). See Comissiong, supra, 429 F.2d at 838-39; United States v. Johnson, 467 F.2d 630, 639-40 (2d Cir. 1972), cert. denied, 410 U.S. 932, 93 S.Ct. 1382, 35 L.Ed.2d 595 (1973). Though the informant’s statements were a major factor in the finding of probable cause, there was substantial independent evidence which corroborated key elements of the tip. “The independent evidence . . . constitutes a sufficient voucher against fabrication, although obviously not a complete one.” Comissiong, supra, 429 F.2d at 839. See United States v. Carneglia, 468 F.2d 1084, 1088-89 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1391, 35 L.Ed.2d 611 (1973).
Finding no constitutional defect in the searches involved in this case, we affirm the dismissal of the petition for \yrit of habeas corpus.
. The substantive portions of the affidavit of Detective John Bergersen read as follows:
“(A) On October 6, 1969 a confidential informant who has not proven reliable in the past, told your deponent that Dollree Mapp, B # 1478934 100, and Alan Lyons B # 182475 # 8359755 are packaging and selling narcotic drugs, to wit: heroin, and are processing and cutting and packaging such drugs in premises 155-15 North Conduit Avenue, Queens, New York, Apt. 2R. The confidential informant further states- that Mapp and Lyons were storing such packaged drugs in premises 118-46 Nashville Blvd., Queens, New York, in the part of the house occupied by them (first floor and basement).
“(B) Said confidential informant further stated that on Feb. 1, 1970, Dollree Mapp told the informant that she and Alan Lyons were going to ‘bag-up’ all day and could be reached at telephone # 723-1387. A check of the records of the New York Telephone Co. reveals that telephone # 723-1387 is listed to one Harold Smalls Apt. 2R, 155-15 North Conduit Ave., Queens, New York. On Feb. 1, 1970, at approximately 8:15 A.M. your deponent followed Dollree Mapp and Alan Lyons from premises 118-46 Nashville Blvd., Queens, New York to premises 155-15 North Conduit Ave., Queens, New York, wherein both Mapp and Lyons entered Apt. 2R.
“(C) Said confidential informant further stated that on Feb. 5, 1970, Dollree Mapp told the confidential informant that she and Alan Lyons were going to ‘bag-up’ all day Sunday Feb. 8, 1970. On Feb. 8, 1970, your deponent, at approximately 8:20 A.M., followed Dollree Mapp and Alan Lyons from premises 118-46 Nashville Blvd., Queens, New York, to premises 155-15 North Conduit Avenue, Queens, New York. While inside said premises your deponent overheard Dollree Mapp say to Alan Lyons, ‘We’re going to have to bust our m[.....] f[.....] a[. . ,]to get this s[. . .] bagged up by tomorrow.’ Mapp and Lyons then entered Apt. 2R at which time your deponent left the premises.
“(D) On Feb. 9, 1970 your deponent showed a photograph of Dollree Mapp to the secretary of Mr. Rose, the sales and management agent of the building 155-15 North Conduit Ave., Queens, New York, and she identified Mapp as being the person who paid the rental fee for Apt. 2R, 155-15 North Conduit Ave., Queens, New York.
“(E) The confidential informant further stated that Dollree Mapp and Alan Lyons ‘bag-up’ heroin and marijuana, at premises 118 — 46 Nashville Blvd., Queens, New York. On November 6, 1969 at approximately 8:00 P.M., Det. Sylvan Topel, Sh. # 1828, New York City Police Dep’t. Narcotics Division, Special Investigating Unit called telephone instrument number LA 7-2994 located at premises 118-46 Nashville Blvd., Queens, New York, and listed to Maudell Mapp and listened in while the aforementioned confidential informant spoke to Dollree Mapp. In the course of the conversation, Dollree Mapp indicated that she had a quantity of narcotics in her house at that time.
“(F) On January 13, 1970 at approximately 4:40 P.M. Alan Lyons sold a quantity of heroin to John Doe, a police officer for a sum of U.S. currency in New York County.”
. The face of the affidavit demonstrates the informant’s familiarity with appellants’ operation. Mapp trusted the informant with the telephone number at her “business” address and knew him well enough to discuss narcotics over the telephone. Affidavit, ffll B, E. The fact that she felt it necessary to keep the informant posted as to her whereabouts indicates that she was in more or less regular contact with him. See United States v. Pond, 523 F.2d 210, 213 (2d Cir. 1975).
. The parties agree that the statement in fl A of the affidavit that the informant had “not proven reliable in the past” should be construed to mean that the informant’s reliability was untested, not that he had actually been untrustworthy on prior occasions.
. Appellant Lyons has no standing to contest the seizure of the rent receipts at the Nasvhille Boulevard residence. He was not present at the time of the search, and he has alleged no proprietary interest in the apartment or in the rent receipts. Brown v. United States, 411 U.S. 223, 225-26, 228, 229, 93 S.Ct. 1565, 1567-69, 36 L.Ed.2d 208, 211-14 (1973); Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965-66, 22 L.Ed.2d 176, 185-86 (1969).
. Mapp urges that there is no proof that she was the speaker, but the magistrate could infer both from the data relating to the telephone number, and the informant’s familiarity with Mapp that her voice was in fact overheard.
. 28 U.S.C. § 2254(d). United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 51 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102, 44 U.S.L.W. 3205 (Oct. 6, 1975).
. It is not at all clear that the informant’s statement was inaccurate. The same defense witness indicated that the project would have opened in September but for an elevator strike, and that the first Smalls rent receipt was dated August 26, 1969. The apartment on the second floor was accessible via the stairs and was sparsely furnished when searched in February. Even if the official opening was delayed until November, it appears that on October 6, 1969, there was little to prevent appellants from us
. Although Mapp concedes that she has neither exhausted available State appellate remedies, 28 U.S.C. § 2254(b); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974), nor properly presented the point below, United States ex rel. Fein v. Deegan, 410 F.2d 13 (2d
Reference
- Full Case Name
- Dollree MAPP and Alan Lyons v. WARDEN, NEW YORK STATE CORRECTIONAL INSTITUTION FOR WOMEN, BEDFORD HILLS, NEW YORK, and Warden, Great Meadow Correctional Facility, Comstock, New York
- Cited By
- 15 cases
- Status
- Published