[DOWNLOAD] "Ledent v. Wolff" by United States Court of Appeals for the Eighth Circuit ~ Book PDF Kindle ePub Free
eBook details
- Title: Ledent v. Wolff
- Author : United States Court of Appeals for the Eighth Circuit
- Release Date : January 19, 1972
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 51 KB
Description
This matter comes before us on a denial of a writ of habeas corpus to a Nebraska state prisoner by the federal district court. 334 F. Supp. 64 (D.Neb. 1971). The petitioner was convicted in the Nebraska state court of unlawful possession of marijuana. His appeal to the Nebraska Supreme Court was affirmed. State v. LeDent, 185 Neb. 380, 176 N.W.2d 21 (1970), cert. denied 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157. In his petition for habeas corpus in the federal district court he raises issues identical to those he raised in his direct appeal before the Nebraska Supreme Court: (a) that the search warrant was wrongfully issued for lack of probable cause1 and (b) that he was wrongfully entrapped. However, in his federal petition petitioner asserts a new ground, that the affidavit of the police officer falsely recited that affiant had received other information from ""the reliable informant"" which coincided with information received from other reliable sources.2 This specific attack is materially distinct from the objections to the warrant passed upon in the state court. Cf. Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (March 22, 1972). The evidence conflicted on the issue of entrapment (185 Neb. at 383, 176 N.W.2d at 23) and thereby foreclosed the matter for collateral attack under 28 U.S.C. § 2254. Only the Fourth Amendment question on the search warrant remains for consideration here. In this regard, the Supreme Court of Nebraska viewed the police officer's affidavit as complying ""with constitutional requirements marginally."" 185 Neb. at 384, 176 N.W.2d at 24. The tests of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)3 are still controlling: whether the informant is reliable; the reasons why the affiant finds the informant to be reliable; and the underlying circumstances which support the informant's conclusions in showing how he knows what he claims. From this information the magistrate must independently determine whether probable cause exists to issue a search warrant. One of the critical and troublesome questions here is whether there exists sufficient corroboration of the reliability of the informant.4 A mere assertion that the informant is reliable is not enough. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Supreme Court seems to be of several minds on the quantum of corroboration which is necessary to sufficently demonstate that an informant is reliable. See United States v. Harris, supra (dissenting opinion of Mr. Justice Harlan, joined in by Justices Douglas, Brennan and Marshall, 403 U.S. at 586, 91 S. Ct. 2075).