# United States v. Thurlester Wilson > Court of Appeals for the Seventh Circuit · May 23, 1973 · 479 F.2d 936 URL: https://www.frixlaw.com/law-library/cases/9459568 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Thurlester WILSON, Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** May 23, 1973 - **Citations:** 479 F.2d 936; 1973 U.S. App. LEXIS 9798 - **Precedential status:** Published - **Opinion:** Dissent by Kiley - **Judges:** Kiley, Duffy, Swygert, Kil-Ey, Fairchild, Cummings, Pell, Stevens, Sprecher - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459568 ## Opinion text KILEY, Circuit Judge, with whom DUFFY, Senior Circuit Judge, joins (dissenting). I respectfully dissent. The focus in determining probable cause for arrest of Wilson is upon the information Mayhaus actually gave Sergeant Williams. Whiteley v. Warden, 401 U.S. 560, 568 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971). I agree that a reasonable inference from Trooper Williams’ testimony at the suppression hearing is that Sergeant Williams 1 was told by Mayhaus that the American Express Company was called. Otherwise the trooper could not have known that fact at the time of Wilson’s arrest. I agree also that if Sergeant Williams had sufficient information upon which to make the judgment that Wilson probably possessed a stolen credit card, the rule of Chambers v. Maroney, 399 U.S. 42, 51 , 90 S.Ct. 1975 , 26 L.Ed. 2d 419 (1970), applies to justify the war-rantless arrest. And finally I agree that the question of Sergeant Williams’ information of the theft of the card is the *943 vital point in determining whether probable cause existed. The majority opinion applies the two-prong Aguilar test — underlying circumstances and credibility and reliability' — in determining that the admitted hearsay-upon-hearsay information given to Sergeant Williams by Mayhaus was sufficient to render valid the otherwise per se unreasonable arrest. I think the opinion establishes that there is sufficient showing of underlying circumstances upon which Sergeant Williams could in part base his judgment of probability. My question is with respect to the opinion’s decision under the test of credibility and reliability. The majority bases its finding of reliability, first, on the basis of Brown v. United States, 125 U.S.App.D.C. 43 , 365 F.2d 976, 979 (1966), since “the victim’s report has the virtue of being based on personal observation. . . . ” In Brown the court apparently assumed, for the purpose of decision, that the informant was the victim of the armed robbery and that the informant personally observed the robbery and the criminal. Here Mayhaus testified at the hearing that he could not identify Wilson, did not serve him at the gas station or prepare a sales slip for the attempted purchase of merchandise exceeding $25.00. Nor was Mayhaus sure that he observed Wilson making a telephone call. The second basis for the court’s finding of reliability is the authority of United States v. Roman, 451 F.2d 579 , 581 (4th Cir. 1971), cert. denied, 405 U.S. 963 , 92 S.Ct. 1171 , 31 L.Ed.2d 239 (1972). The majority states that the “internal content” of Mayhaus’ call to Sergeant Williams “intrinsically prove [d] the truth of the ‘responsible’ citizen’s word.” In Roman, however, the statements of the affiant so clearly connected Roman with the stolen Chevrolet that it was not necessary that the affidavit state the experiential basis upon which the affiant established the reliability of the informant. Here there was of course no affidavit and no claim, at the suppression hearing, that the “internal content” of Mayhaus’ call to Sergeant Williams “intrinsically prove [d] the truth” of Mayhaus’ statement. I cannot find that the majority opinion meets the Aguilar test of reliability. The majority opinion rejects Wilson’s attack upon the reliability of the information furnished by American Express to Mayhaus. This is the admitted hearsay-upon-hearsay. The opinion considers first whether the American Express report was itself sufficiently credible under Aguilar, finding under the Spinelli rule “no difficulty” in rejecting the attack, because the unnamed, unidentified person to whom Mayhaus talked at American Express was “one functioning part of a large business mechanism,” the very purpose of which is gathering, processing and disseminating this type of information to business customers who regulate their affairs in reliance on the mechanism. I think at best this notion supports the value of the mechanism as reliable for business purposes. I am not persuaded it suffices for the purpose of overcoming the per se unreasonableness of a warrantless arrest of a human being. “[W]hen a search is based on a magistrate’s rather than a police officer’s determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ ” Aguilar supra at 111, citing Jones v. United States, 362 U.S. 257, 270 , 80 S.Ct. 725, 735 , 4 L.Ed.2d 697 (1960). The majority accepts the government’s argument that the hearsay of the American Express information meets the Aguilar test because it is comparable to the business records exception to the hearsay rule. I question the validity of the comparison. It is true that 28 U.S.C. § 1732 and Proposed Federal Rule of Evidence 406 both provide for the admissibility of cer *944 tain kinds of business records. 2 The records are admissible into evidence under either the statute or the rule, however, only if they meet certain prerequisites. One prerequisite of the rule for admissibility is that the information on which the records are based be supplied by a person acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of any business.” See Johnson v. Lutz, 253 N.Y. 124 , 170 N.E. 517 (1930); Palmer v. Hoffman, 318 U.S. 109, 111-115 , 63 S.Ct. 477 , 87 L.Ed. 645 (1943), rehearing denied, 318 U.S. 800 , 63 S.Ct. 757 , 87 L.Ed. 1163 ; Annot., 8 A.L.R. Fed. 919 (1971). The information compiled in whatever manner by American Express is not supplied by such persons as described above. Moreover, there is no evidence in this record that the information compiled by American Express has proved accurate or reliable in the past, but only that the information exists for whatever business purpose it may be desired. Neither is there anything to show that the information it gathers as to “stolen” credit cards is reliable. I recognize that after the Aguilar and Spinelli decisions the requirements for probable cause in the Supreme Court decisions in United States v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971), and Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) , appear less stringent than those in Aguilar and Spinelli. In Adams , however, the Court dealt with the question of reasonable cause for an officer to pat down a suspect, and did not deal with the question of probable cause. In Harris the Court found that the informant’s reliability was adequately established where the police knew the informant’s reputation and said so. Mayhaus, however, admitted that this was the first call he had ever made to the police headquarters. If we place upon personal privacy the value that we say we do, it is important that decisions with respect to warrant-less arrests and searches use great care in weighing the private interests of innocent persons at true value in determining probable cause questions. In retrospect, of course, Wilson was not a good man. Before his arrest, however, he was legally innocent. In my view, Wilson’s privacy interests are not adequately considered in the majority opinion. I conclude that there was not sufficient showing of reliability of the information that the credit card here was stolen, and for that reason I cannot join the majority. I would reverse. . Sergeant Williams did not testify at the hearing. . We are not talking of American Express Company’s records being introduced into evidence. We are talking of what someone at the Company’s office told Mayliaus was on a record. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459568. Public record. Not legal advice.