Memorandum — Toliver v. United States

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In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-219

HAROLD VINCENT TOLIVER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner claims that the search of his vehicle was un-

lawful because it was made without a warrant and was

based upon information received from a informant who

“never personally had any dealings with the petitioner in

counterfeit or altered coins” (Pet. 6).

After a non-jury trial in the United States District Court

for the Middle District of Tennessee, petitioner was con-

victed of possessing counterfeit gold coins and altered

United States coins, in violation of 18 U.S.C. 485 and 331.

He was sentenced to concurrent terms of two and one-half

years’ imprisonment. The court of appeals affirmed (Pet.

App. A7).

(1)

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1. The evidence, adduced at trial and at a pre-trial hear-

ing On petitioner's motion to suppress, showed that on

December 14, 1972, undercover Secret Service Agent Mac-

Vean Sweazey entered an antique shop owned by Alva

Burchett, Jr., in Guthrie, Kentucky, and observed on dis-

play two gold coins. Burchett admitted to Sweazey that the

coins were counterfeit and asked if he was interested in

purchasing them. Sweazey replied that he was not but was

prepared to place an order for bogus coins at a later date

(Tr. 103-104).!

On December 27, Sweazey, accompanied by another un-

dercover agent, again visited Burc’ett’s store. This time

they saw ten United States coins in a showcase. Burchett

stated that all but two had been alte red. Sweazey made a

purchase of one counterfeit coin and one altered coin and

indicated that if he was satisfied with these, a larger or-

der would follow. Burchett disclosed that he could obtain

unlimited quantities of such coins within ten days to two

weeks of an order (Tr. 105-106, 205-206). On January 26,

1973, Sweazey placed an order for 107 counterfeit gold

coins (Tr. 107-108).

On February 6, 1973, a confidential informant reported

to Agent Russell Lasey that he had been told by Burchett

that petitioner would be making a delivery of counter-

feit coins to Guthrie from Manchester, Tennessee on the

morning of February 8 (Tr. 54-55; H. 20-21). Lasey and

other Secret Service agents mapped out the route most

likely to be taken on such a trip. On the morning of Feb-

ruary 8 he stationed men along the designated route. At

7:30 a.m. Lasey and Agent Harold Bibb observed peti-

tioner exit his house and place a black bag and several

'We are lodging with the Clerk of the Court the two-volume trans-

cript of trial (“Tr.”) and the one-volume transcript of the pre-trial

hearing (“H.”).

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cartons in his car (H. 24). Lasey, Bibb, and other agents

kept petitioner under constant surveillance as he left his

house at 8:00 a.m. and proceeded as expected along the

most direct route northwest from Manchester, in the mid-

dle of Tennessee, toward Guthrie, situated just across the

border with Kentucky. When petitioner stopped at a road-

side trash container, about five miles south of Guthrie,

the agents arrested him and conducted a search of his car.

They found therein the black case containing 185 counter-

feit gold coins and 18 altered pennies. In addition, the

agents discovered a coin book containing five counterfeit

gold coins and 39 altered pennies? and an address book

with an entry for Alva Burchett (Tr. 6-12, 38-39). Tele-

phone toll records reflected the fact that petitioner had

called Burchett frequently during December, January, and

February (Tr. 158-161).

2. Petitioner claims that the warrantless search of

his vehicle was unlawful because the agents relied upon

uncorroborated “information * * * from an undisclosed

source” (Pet. 6) who had no direct dealings with peti-

tioner in counterfeit or altered coins and because the

agents could have obtained a warrant to search the mov-

ing vehicle.

a. The informant had been associated with Agent Lasey

for only three months before petitioner’s arrest. Under-

standably, during that brief period no convictions had

resulted from the use of the information received from

the informant. However, the reliability of » confiden-

tial informant has never been deemed to depend neces-

sarily upon prior convictions resulting from his inform-

ation in the past. Here, according to Agent Lasey,.

“every piece of information received [from this inform-

?All of the pennies had been altered by the addition of a “mint

mark,” i.e., a letter placed next to the date on the coin, which cus-

tomarily enhanced its value (Tr. 125, 141).

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ant] was verified” (H. 29-30). Accordingly, when the

informant passed along his information regarding peti-

tioner and revealed that his own source was Burchett,

the Secret Service--which had long suspected petitioner

of dealing in counterfeit coins (H. 21-22) and knew from

independent personal observations that Burchett was so in-

volved--had ample reason to investigate. The surveillance

of the petitioner, which verified the informant’s informa-

tion, provided probable cause to believe that petitioner

was transporting counterfeit and altered coins to Burchett.

United States v. Harris, 403 U.S. 573; Spinelli vy. United

Staies, 393 U.S. 410; Aguilar v. Texas, 378 U.S. 108;

Draper v. United States, 358 U.S. 307; United States v.

Burch, 471 F.2d 1314 (C.A. 6).3

b. The information received from the informant before

it was verified by surveillance of petitioner was inad-

equate to support the issuance of a search warrant. It

was only after petitioner had been seen loading his

vehicle, departing at about the predicted time, and

traveling on the most direct course to Guthrie, that

the Secret Service agents clearly were justified in

believing that petitioner was committing an offense.

They were not required to wait until petitioner actual-

ly had arrived in Guthrie prior to stopping him, since

the requisite probable cause existed before the vehicle

reached its destination point. Nor were the agents

required to obtain a warrant before arresting petitioner

and searching his movable vehicle at the roadside five

‘In Burch the court of appeals set forth seven items known to the

police, including the confidential informant’s personal dealings with

the defendant, and concluded that in light of this information there

was probable cause to believe that the defendant was violating the nar-

cotics laws at the time of his arrest. The court did not indicate, as

petitioner suggests (Pet. 6), that probable cause would not have ex-

isted in Burch if there had been no direct dealings between the de-

fendant and the informant.

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miles from Guthrie. Chambers v. Maroney, 399 U.S. 42;

Brinegar v. United States, 338 U.S. 160; Carroll vy. Uni-

j ted States, 267 U.S. 132; see United States v. Summer-

ville, 477 F.2d 393 (C.A. 5).

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

NOVEMBER 1974.

10O5-1974-11

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