Christopher Boyer v. State of Arizona and Frank Eyman, Warden of Arizona State Prison

Christopher Boyer, an Arizona prisoner, appeals the District Court’s denial of his petition for habeas corpus. His sole contention is that the search warrant under which he was stopped, his car searched, and marijuana found in his possession seized was issued without probable cause. 1 The evidence thus seized was instrumental in his conviction of violation of Arizona Revised Statutes, §§ 36-1002.05 and 36-1002.07, subsec. A, possession and transportation of marijuana. The District Court found that while the written affidavit submitted to the Arizona magistrate did not set forth probable cause, 2 sufficient facts to constitute probable cause were supplied to the magistrate through oral testimony from the affiant officer. We agree and affirm.

On January 3, 1969, Officer Walter Hinson sought a warrant to search Boyer’s car from Justice of the Peace James F. Brierley. He was accompanied by Officer Lloyd Jewell. Judge Brierley immediately placed Hinson under oath, and was told that a warrant was desired against Boyer’s car because extensive personal surveillance by Hinson and Jewell indicated that Boyer was involved *806 in selling marijuana and an informant had told Hinson that Boyer…

(dissenting):

I respectfully dissent. 1 To me, the manner in which the majority disposes of a highly significant constitutional issue is unacceptable.

In Sherriek v. Eyman, 389 F.2d 648 (9th Cir. 1968), we reviewed the Arizona search warrant issuance procedure that was here employed. I dissented from the majority opinion in that case because it held that certain unspecified oral “information,” given to the magistrate by the affiant police officer at the time the warrant was requested could and, in fact, did “cure” the inadequacy of the officer’s written affidavit. It was my opinion that the challenged procedure thwarted subsequent, independent, and adequate review of the basis for the issuance of a search warrant and was constitutionally infirm. 389 F.2d at 654 . I wrote:

I still strongly adhere to that position. I do not believe that the constitutional requirements imposed upon government officers seeking warrants, see, e. g., Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), can be, in effect, overborne by the operation of state procedural law. That, however, is what the majority herein allows.

The shortcoming in the present case is not as egregious as…

455 F.2d 804 Christopher BOYER, Petitioner-Appellant, v. STATE OF ARIZONA and Frank Eyman, Warden of Arizona State Prison, Respondents-Appellees. No. 26673. United States Court of Appeals, Ninth Circuit. Feb. 9, 1972. Harold Cole (argued), Joseph H. Soble, Soble & Cole, Tucson, Ariz., for petitioner-appellant. William P. Dixon, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondents-appellees. Before ELY and CHOY, Circuit Judges, and BYRNE, Sr. * , District Judge. CHOY, Circuit Judge. 1 Christopher Boyer, an Arizona prisoner, appeals the District Court's denial of his petition for habeas corpus. His sole contention is that the search warrant under which he was stopped, his car searched, and marijuana found in his possession seized was issued without probable cause. 1 The evidence thus seized was instrumental in his conviction of violation of Arizona Revised Statutes, Secs. 36-1002.05 and 36-1002.07, subsec. A, possession and transportation of marijuana. The District Court found that while the written affidavit submitted to the Arizona magistrate did not set forth probable cause, 2 sufficient facts to constitute probable cause were supplied to the…