Petition — United States v. Watson

No.

In the Supreme Gourt of the Wnited States

OcTOBER TERM, 1974

UNITED STATES OF AMERICA, PETITIONER

Vv.

Henry OGLE Watson

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

JEROME M. FEIT,

PETER B. KRAUSER,

Attorneys,

Department of Justice,

Washington, D.C. 20580.

INDEX

Page

ee 1

a i eniedihaeee l

cone pemibnnbbiedmbieie 2

Constitutional provision involved_____-__.------ 2

hh a aE a 2

Reasons for granting the writ___-._.__._-__---- 5

LL: AP Pan eee Ee a aE ee 14

EE Cite cbt wecdeiiciwesewsseheseusneen 1A

RE scan dcacdundcecndenncteseuckscuunee 9A

DE Cikndccncevdddunvencseaddsesdundnete 10A

EE Gicint 0 00csntsdasennwéeesiacehsduns 11A

CITATIONS

Cases:

Brown v. Illinois, No. 73-6650, certiorari

granted October 21, 1974_____..-----.-_- 13

Carroll v. United States, 267 U.S. 132________ 7

Coolidge v. New Hampshire, 403 U.S. 443____ 6,7,8

Dorman v. United States, 435 I’. 2d 385______ S-9

Godfrey v. United States, 358 F’. 2d 850____ _- 9

Henry v. United States, 361 U.S. 98________- 7

Hoffa v. United States, 385 U.S. 293________- 9

Manning v. Jarnigan, 501 F. 2d 408_______- 13

Niro v. United States, 388 I. 2d 535__.._____- 8

Schnecklotg v. Bustamonte, 412 U.S. 219_____- 12, 13

United States v. Bazinet, 462 I. 2d 982______ 8

United States v. Heimforth, 493 I. 2d 970__ _- 11

United States v. Miles, 468 I’. 2d 482________ 8

United States v. Morris, 477 F. 2d 657______-_ 9

Vale v. Louisiana, 399 U.S. 30__-..._-__-____- 10

(1)

562-225—74——-1

II

Constitution:

United States Constitution:

Fourth Amendment-____..__--_---___-

Sixth Amendment... -....-...-.---_--

Statutes:

oe ee oe a ac

GE | a ER, SE eer Ree em, eS Re

Miscellaneous:

Barrett, Personal Rights, Property Rights, and

the Fourth Amendment, 1960 Sup. Ct. Rev.

SR oe ee ae aeape See MM Mn ed A

Coke, Fourth Institute of the Laws of England

gg) te ERE Pe eee

Wilgus, Arrest Without a Warrant, 22 Mich. L.

Ae EE Cs LO Ra et

In the Supreme Court of the Gnited States

OcToBER ‘TERM, 1974

No.

Unirep STATES OF AMERICA, PETITIONER

v.

Henry OGLE Watson

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra)

is not yet reported.

JURISDICTION

The court filed an opinion (App. D, mfra) on De-

cember 12, 1973. The government filed a timely peti-

tion for rehearing with a suggestion for rehearing ev

banc, whereupon the court withdrew its original opin-

ion. A new opinion (App. A, infra) was issued on

March 20, 1974, and the judgment of the court of ap-

peals was entered the same day (App. B, infra). The

(1)

2

government again filed a timely petition for rehearing

with a suggestion for rehearing en banc. It was denied

on September 5, 1974 (App. C, infra). By order of

October 2, 1974, Mr. Justice Douglas extended the

time for filing a petition for a writ of certiorari to

and including November 4, 1974. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether an arrest warrant is required in order

to make an arrest in a public place.

2. Whether a person unlawfully in custody is capa-

ble of giving a voluntary consent to a search of his

automobile.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT

On August 17,1972, Awad Khoury, an informant who

had provided reliable information on at least five prior

occasions (Tr. 10-14, 27-28),' telephoned Postal In-

spector Frank L. Barbarick. Khoury related that he was

going to receive from respondent a stolen Bank of Amer-

'«Tr.” refers to the transcript of the trial proceedings.

3

ica credit card in the name of Syed T. Ahmad. Later

that day Khoury brought Barbarick the credit card he

had deseribed. The inspector ascertained from the Bank

of America that the credit ecard had heen mailed on

August 14, 1972, but had not been received by the in-

tended customer. Khoury told Barharick that respond-

ent gave him the ecard with instructions to purchase

airline tickets in specified names and addresses, and

he showed Barbarick a list of the names and addresses.

When Khoury said that he could obtain more credit

cards from respondent, Barbarick instructed him to

meet with respondent to obtain them (Tr. 14-17). A

meeting was arranged, but it was postponed several

times.

Barbarick instructed Khoury to find out at the

meeting whether respondent had additional credit

cards. If he did, Khoury was to light a cigarette as a

signal to surveilling agents. The meeting finally took

place at noon on August 25, 1972, in a public restau-

rant (Tr. 19, 21). After learning that respondent had

stolen credit cards in his car, Khoury gave the prear-

ranged signal (Tr. 246). Postal inspectors entered the

restaurant, arrested respondent, and searched him.

They did not, however, find any stolen eredit cards.’

They escorted him out of the crowded restaurant and

gave him Miranda warnings. Respondent stated:

“Frank [Barbarick], | understand my rights”* (Tr.

22-23, 162).

* Khoury did not tell the inspectors at the scene that the cards

were in respondent's car.

* Respondent and Barbarick knew each other. Respondent had

been arrested by Barbarick in 1971 for mail theft and subse-

i

4

Barbarick asked respondent whether he could look

in respondent’s car. Respondent replied, **Go ahead.”’

Before beginning the search Barbarick warned: ** You

know, if I find anything, it is going to go against

yvou.’’ Nevertheless respondent reaffirmed his consent,

stating: *‘Go ahead, there is nothing in there”’ (Tr.

23-24). Using keys furnished by respondent, the

postal inspectors searched the car. Under the floor-

mat they found two stolen credit cards, which, together

with the card provided by Khoury, formed the basis

of the criminal charges against respondent (Tr. 24-

25).

Respondent moved to suppress the stolen credit

cards. The district court denied his motion from the

bench (Tr. 60-61), and respondent was subsequently

convicted of possessing the two stolen eredit cards

found in his automobile. He was acquitted on a third

count charging him with possessing the stolen card

provided by informant Khoury.

A divided panel of the court of appeals reversed.

The court ruled that the information gathered on

August 17, including the physical receipt of a stolen

credit card, provided probable cause to arrest re-

spondent. The majority believed that Inspector Bar-

barick should have obtained a warrant on August 17

for respondent’s arrest, and because it could find **no

reason for the failure to present the question to a

detached magistrate to obtain an arrest warrant’’

(App. A, dafra, p. 5A), it concluded that the warrant-

quently had acted as his informant (Tr. 69, 169-170). The

charge was dismissed after respondent furnished postal authori-

ties with important information (Tr, 49-50).

5

less arrest on August 23 was unconstitutional. Pro-

ceeding on the conclusion that respondent was under

unconstitutional arrest, the majority found that the

consent to search the car was defective. Rather than

hold that the consent was a *‘fruit’’ of an unconstitu-

tional act, the court found that the consent was in-

voluntary because respondent *‘was in custody in vio-

lation of the Fourth Amendment” (App. A, infra, p.

7A). Therefore, although respondent had been given

Miranda warnings, had been told that any evidence

found in the car would be used against him, and was

on a first-name basis with the arresting inspector, and

no circumstances suggesting coercion were present,

the court ordered the credit cards found in the consent

search suppressed.

The dissenting judge concluded that officers are not

required to procure an arrest warrant as soon as thev

acquire probable cause, but may instead continue their

investigation. Here, he found, their suspicions were

reinforced by Khoury’s signal at the restaurant, and

the ensuing arrest was lawful (App. A, iufra, pp.

TA-8A).

REASONS FOR GRANTING THE WRIT

This case presents two important and related ques-

tions concerning the procedure law enforcement

agents should follow when making a felony arrest on

probable cause. The first question deals with the neces-

sity of obtaining a warrant even though the arrest is

made in a public place where the officers would have

every right to be without a warrant. The second is

6

whether one under unlawful arrest may nevertheless

give an effective consent to search.

If the Court holds, as we believe precedent and logic

compel, that there is no need to secure a warrant to

make such an arrest, then the predicate for the court

of appeals’ decision to suppress the evidence dis-

appears, and it would be unnecessary to reach the

second question. Conversely, the Court might assume

that the arrest was unconstitutional and decide, as we

believe would be required in the circumstances here

presented, that the consent was nevertheless effective.

Both issues are sufficiently important to the adminis-

tration of the criminal justice system that they should

he decided by this Court.

1. It has been until now the unquestioned rule that

an arrest for a felony may be made with probable

cause but without a warrant. The court of appeals,

relying upon what it believed were implications in the

plurality opinion in Coolidge v. New Hampshire, 403

U.S. 443, 476-481, has abruptly set aside that under-

standing. If the decision of the court of appeals is

permitted to stand, it will be necessary for law en-

forcement agents substantially to change the proce-

dures they use in investigating crime and arresting

suspects. This Court should reverse the court of ap-

peals and reaffirm the rule that has been under a cloud

since Coolidge.

a. The rule that a warrant is unnecessary to make

an arrest for a felony on probable cause is an ancient

one with its roots in the common law of England,

where arrests with warrants were viewed with intense

7

suspicion.’ As this Court stated the principle in Car-

roll v. United States, 267 U.S. 132, 156-157:

[A] police officer may arrest without warrant

one believed by the officer upon reasonable

cause to have been guilty of a felony, and * * *

he may only arrest without a warrant one guilty

of a misdemeanor if committed in his presence.

Since Carroll, this Court has many times reaffirmed

the rule, often in the context of state or federal

statutes granting to officers the power to arrest with-

out a warrant. See, e.g., Henry v. United States, 361

U.S. 98, 100.° The decision below disregards these

precedents. If the court of appeals is correct, not only

standard law enforcement procedure but also numer-

ous federal statutes permitting arrest without a war-

rant would be called into question."

The court of appeals believed its result to be sup-

ported by the plurality opinion in Coolidge v. New

Hampshire, supra. The arrest in Coolidge took place

in aiprivate home that ordinarily could not be entered

‘Coke. Fourth Institute of the Laws of England V7 (I%

ed.). See generally Wilgus. Arvest Without a Warrant, 22

Mich. L. Rev. 541 (1924): Barrett, Personal Rights, Property

Rights, and the Fourth Amendment, 1960 Sup. Ct. Rev. 46.

°18 U.S.C. 3052 provides for warrantless arrests when an

offense is committed in an officer's presence or when an officer

has “reasonable grounds to believe that the person to be arrested

has committed or is committing” a felony. The Court found

in JIcenry that this section “states the constitutional standard.”

361 ULS. at 100.

*The following federal statutes, all upheld by decisions of

one or more courts of appeais, permit federal agents to arrest

without a warrant under certain circumstances: 18 U.S.C. 3052

(F.B.1.): 18 U.S.C. 3056 (Secret Service); 21 U.S.C. 878

(Bureau of Narcotics and Dangerous Drugs; by substitution,

Drug Enforcement Agency); 26 U.S.C, 7607 (Customs Service ).

62-223-—-74——_ -2

8

without a warrant. The arrest was then used as justi-

fication for a search of the entire premises. In the

instant case, however, the arrest took place in a res-

taurant where the officers, even without a warrant or

probable cause to arrest, were entitled to be. There

was no exhaustive search using the pretext of an

arrest;' respondent's person was searched, and_ his

consent was obtained before searching his car. The

Coolidge plurality carefully restricted its discussion

to the propriety of warrantless entry into a house

for the purpose of making an arrest. 403 U.S. at

476, 477, 480.

Although Coolidge therefore does not support the

result reached below, its discussion of the law of arrest

has injected an clement of uncertainty into what was

before a settled point of law. Litigation in the lower

federal courts over the propriety of an arrest with-

out a warrant has been increasing since Coolidye was

decided. The decision below, which is the first of which

Wwe are aware that requires a warrant for an arrest

in a public place, conflicts with several recent court.

of appeals decisions holding that Coolidge did not

create such a requirement. See United States v. Miles,

408 F. 2d 482, 486 (C_A. 3); United States vy. Bazinet,

462 F. 2d 982 (CLA. 8); Dorman v. United States, 435

‘The arrest of respondent coukl not have been a pretext

to avoid the need for a search warrant. Until informant

Khoury gave the signal in the restaurant the inspectors had

no probable cause to believe respondent was in the immediate

possession of stolen credit cards, and they therefore could not

have obtained a warrant to search his person or his automobile.

‘Vive v. United States, 388 F. 2d 535 (CLA. 1), arguably

supports the result reached below,

q)

F. 2d 385, 389-391 (C.A.D.C.) (en bane); United

States v. Morris, 477 F. 2d 657 (C.A. 5). This conflict

among the circuits should be resolved by this Court.

b. The decision below will seriously hamper effec-

tive law enforcement without providing significant

protection to the individual's interests, It exposes

officials to the dilemma rejected—in the Sixth Amend-

ment context—in Hoffa v. United States, 385 U.S, 293,

310. Police will be required to ascertain at their peril

the exact moment that the courts will later hold that

they acquired probable cause to arrest, and there-

ipon to secure a warrant without delay, If they fail

to recognize that they had probable cause, they risk

suppression of their later discoveries. If, on the other

hand, officers obtain the warrant required by the deci-

sion below but delay execution in order to gather the

evidence necessary to convict, they may be criticized

for deliberately postponing execution for the purpose

of “prejudicing” the defendant, a practice seme

courts have forbidden. See, e.g., Godfrey Vv. Uinited

States, 358 F. 2d 850 (C.A.D.C.). They risk a viola-

tion of the Fourth Amendment if they act too soon,

and a violation of the Fourth Amendment if they

wait too long.

Moreover, as Hoffa vecognized, to require a warrant

as soon as probable cause has been detected may

force the officers to cut off an investigation before

they have secured sufficient evidence to couvict—a sit-

uation forcefully illustrated here by the acquittal of

respondent on the count charging him with posses-

sion of the credit card that the informant, Khoury,

gave to inspector Barbarick and that furnished the

10

initial probable cause. And to the extent the officers

delay execution while gathering additional evidence,

they continue to intrude on the suspect’s privacy, so

that the warrant will have provided him no shield.

The ironic result of the reasoning of the majority

helow is that police may be best off should the mag-

istrate decline to issue a warrant when first ap-

proached. The officers then would be free to continue

their investigation. As in the instant case, they could

arrange for the gathering of additional evidence and

arrest (without a warrant) on the basis of the new

evidence plus exigent circumstances. For example,

it could have been argued that the arrest of respond-

ent was based on such exigent circumstances; had he

left the restaurant without being arrested, he might

have secreted the stolen credit cards or disposed of

them."

In short, the decision below on the arrest issue 1s

contrary to existing precedent and revolutionary in

its implications. It will not provide additional protec-

tion to individual interests, but it will hamper the en-

forcement of the laws and discourage the very kind

of police work—such as that engaged in here by postal

authorities—that sound Fourth Amendment policy

should encourage.

2. If it is assumed or concluded that respondent was

improperly arrested, it is then necessary to determine

*Of course, exigent circumstances at the moment of arrest

would not be a satisfactory answer to the court of appeals’

theory (if that theory is correct) that the inspectors should

have sought a warrant six days previously, and that it would

have been obtained if sought. Cf. Vale v. Louisiana, 399 U.S.

,

th,

ee ee ee a a ae Eee eae ne ee

11

whether that precluded an effective consent to the

search of his car. Although the court of appeals pur-

ported to consider the *‘totality’’ of the circumstances,

we submit that it did not do so and instead elevated

the legal status of the arrest into a single and deter-

ininative factor.

The essential facts were undisputed. Immediately

after his arrest, respondent was given Miranda warn-

ings; he knew that he was under no obligation to

converse further with the arresting officers. Respond-

ent was not a neophyte at these procedures; he had

heen arrested before and had served as an informant

for Inspector Barbarick, with whom he was on a first

name basis (Tr. 23, 69). Respondent was familiar with

his constitutional rights, including the right not to

speak, and at one point after his arrest even sug-

gested to Inspector Barbarick that he not bother to

explain these rights again (Tr. 23). Finally, respond-

ent was informed, after he gave his initial consent to

the search, that if anything were found it would be

used against him; he then reaffirmed his consent with

the remark that there was nothing in the car (Tr.

23-24). We submit that this record contains over-

whelming evidence that respondent fully understood

his rights and voluntarily agreed to the search of his

car. The only pertinent reason suggested by the court

** Another panel of the Ninth Circuit has joined several other

courts in holding that evidence that a person was given J//r-

anda warnings is also strong evidence that his consent was

voluntary. United States v. Heimforth, 493 F. 2d 970.

12

of appeals for drawing a contrary conclusion is that

respondent was under unconstitutional arrest.”

Ly directing its investigation to the conduct of the

arresting officers, the court was injecting irrelevant

factors into the voluntariness analysis of Schneckloth

v. Busta monte, 412 U.S. 219, 227, which focuses on the

knowledge and intent of the person giving that con-

sent and the totality of eirenmastances affecting his

decision. Instead of undertaking this essentially sub-

jective inquiry, however, the majority here considered

as determinative the legality of the earlier conduct of

the officers.

The illegality of the arrest depended upon what the

officers had failed to do six days previously; none

of the eonduct constituting the failure to obtain a

warrant took place in respondent’s presence, and he

cannot have known about it. He did not know that

Khoury had informed on him six days previously.

He did not knew that no warrant had been obtained.

Neither he nor the officers knew that the court of

appeals would suddenly reverse many years of prece-

dent and require a warrant for his arrest. Because

The court of appeals also noted that respondent had not

explicitly been advised of his right to refuse his consent. How-

ever, this advice is fairly implicit in the J/iranda warnings and

in Inspector Barbarick’s warning after respondent’s initial con-

sent. In any event, Schneckloth v. Bustamonte, 412 U.S. 219, has

held that lack of such knowledge is not determinative; the court

of appeals here found not lack of knowledge but lack of express

advice and therefore failed to make a finding that would be perti-

nent under Schneckloth. To the extent the court was relying on

failure to warn (rather than failure to know), it was considering

an extraneous factor for the reasons stated é fra.

13

none of these things entered respondent’s conscious-

ness, they cannot have affected his decision to consent

to a search of his ear.

We believe that the correct approach—that the only

proper focus of inquiry in a consent search case is

on what the consenter knows—is implicit in Schneck-

loth. The court below has simply considered irrelevant

material; the way in which it did so, however, is

seductive.”’ Consideration of such extraneous materia!

by the court below and by other circuits will seriously

deform the Schneckloth test and discourage law en-

forcement agents from relying on consents, even

though procurement of voluntary consent is a tech-

nique less intrusive than others, including warrants,

to which officials would be forced to turn were con-

sents made less attractive and less reliable once ob-

tained.”

Irrelevant as part of any voluntariness formula. The ille-

gality of the arvest might be pertinent under a “fruit of the

poisonous tree” argument of the sort raised in Brown vy. L/linois,

No, 73-6650, certiorari granted October 21, 1974, but the court

below did not use this analysis, nor do we believe that. it

would change the outcome.

% And contagious. See Manning v. Jarnigan, 501 F, 2d 408

(C.A. 6). See our petition for a writ of certiorari in Uu/ted

States v. Cooks, No, 74-333, presenting a related consent search

issue.

™ This case is in several respects a counterpart of Brown v.

TIlinois, No, 73-6650, certiorari granted October 21, 1974. Brown

presents a situation in which an arrest is presumed illegal,

and what follows the arrest is a confession rather than a consent.

If this Court decides in Brown that the statement is admissible.

then the consent in the instant case should be effective. On the

other hand, if the statement in Brown must be suppressed, it will

become even more urgent to consider our contentions here that a

14

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Rospert H. Bork,

: Solicitor General.

/ Henry E. PETERSEN,

/ Assistant Attorney General.

Frank H. EASTERBROOK,

Assistant to the Solicitor General.

JEROME M. FEIT,

Perer LB. KRAUSER,

Attorneys.

Nos EMBER 1974.

/ , :

warrantless arrest is proper, and that effective consent to search,

which involves considerations materially different from those re-

rding confessions, may be given even by those under unconstl-

utional arrest.

a eee

APPENDIX A

United States Court of Appeals for the Ninth Circuit

No. 73-1539

Untrep States oF AMERICA, PLAINTIFF-APPELLEE

v.

Henry OGLE WATSON, DEFENDANT-APPELLANT

[March 20, 1974}

Appeal from the United States District Court for the

Central District of California

Before Ery and Goopwin, Cireuit Judges, and

Murray,” District Judge

Murray, District Judge: An indictment was filed

against the appellant on September 11, 1972, alleging

a four count violation of 18 U.S.C. § 1708 (stealing

from the mails). Count 1 alleged a violation on Au-

gust 23, 1972; Count 2 alleged a violation on Au-

gust 17, 1972; Count 3 alleged a_ violation on

August 23, 1972; and Count 4 alleged a violation on

May 28, 1971. The appellant was ultimately tried on

Counts 1, 2 and 3. Count 4 was dismissed. The jury

returned a verdict of guilty as to Counts 1 and 3, and

not guilty as to Count 2.

“The Honorable W. D. Murray. United States District Judge

for the District of Montana, sitting by designation.

(1A)

12-22% -74----2

2A

On the day of the trial, the district court heard mo-

tions to suppress evidence pursuant to Rule 41(¢)

Federa! Rules of Criminal Procedure and a motion to

determine the voluntariness of any post-arrest state-

ments pursuant to Jackson vy. Denno, 378 U.S. 368

(1964). In response to these motions, the government

ealled Frank L. Barharick, a U.S. Postal Inspector,

as a witness. Inspector Barbarick testified that he was

contacted on the telephone by one Awad Khoury on

August 17, 1972. He knew Khoury as Tony and had

previous contacts with him from five to ten times, In

the course of these prior contacts, Khoury related in-

formation concerning appellant Watson and his as-

sociates. This information was found to be reliable by

Inspector Barbarick.

In the August 17, 1972, phone call, Khoury advised

the Inspector that he, Khoury, was going to receive

a Bank of America credit card from appellant Wat-

son. The card was in the name of Sved T. Ahmad.

Barbarick told Khoury to bring the eredit card to

Barbarick’s office when he received it from Watson.

Later on that day, Khoury brought the credit card

into Barbarick’s office. Khoury said that he had re-

ceived this card from appellant and that appellant

wanted him to purchase TWA airline tickets. Khoury

also showed Inspector Barbarick a slip of paper that

gave names and addresses for the airline tickets to be

purchased. Inspector Barbarick told Khoury to ar-

range a meeting with appellant Watson. Khoury ad-

vised Barbarick that a meeting was scheduled for

August 22, 1972, but this ‘neeting did not take place.

A meeting with Watson on August 23 similarly did

not take place. Finally, a meeting between Khoury

and Watson was set up for noon on the 23rd of Au-

gust at Ship’s Restaurant in Los Angeles. Barbarick

testified that he told Khoury to determine at the

-——-——E

3A

meeting whether Watson had any additional credit

cards in his possession. If Watson did have some ad-

ditional ecards, Khoury was to light a cigarette as a

signal to Postal Inspectors inside the restaurant. These

inspectors would then activate a signal alerting In-

spector Barbarick outside the restaurant. Upon re-

ceiving the prearranged signal Barbarick and other

inspectors entered the restaurant and placed the de-

fendant under arrest, advising him that he was under

arrest for possession of stolen mail. Inspector Bar-

harick then asked Watson if he could look in his car.

Watson said “Go ahead.’’ Using the key to the car

which Watson had turned over, Barbarick opened the

ear and searched. Under the floormat on the driver's

side he recovered an envelope. Inspector Barbarick’s

later testimony indicated that the envelope which he

discovered was not opened until he returned to his

office in downtown Los Angeles. At that time he found

that two smaller envelopes were contained inside the

larger envelope and that it was these two envelopes

which contained the credit cards which are the source

of the allegations in Counts 1 and 2 [sie]. In making

the arrest the inspector testified he was relying on the

evidence aequired on August 17, 1972, which was six

days prior to arrest.

In his initial argument, appellant raises the strictly

technical point that a stipulation ' which his attorney

' The stipulation read as follows: “That on or about August

14th of 1972, BankAmericard Corporation sent through the

mails three credit cards in separate envelopes, with separate ad-

dresses on them. That these three separate and distinct credit

cards and envelopes were addressed to, number one, a Marlene

M. Steinberg, at 12407 Ohio Avenue in Los Angeles. And that

her credit card number was 4024 681 187 691. In addition,

another credit card on or about August 14, was sent by Bank-

Americard to one Syed T. Ahmad. And that was sent to 1502

4A

and the United States Attorney intended to introduce

was never affirmatively or competently entered into

or accepted by the court and that, consequently there

is an absence of proof.

The record reveals that both parties, the court and

the jury all were under the impression that the stipu-

lation had been entered in the record. The agreement

to stipulate was communicated to the court prior to

the empanelling of the jury. The stipulation was read

to the jury in the government’s opening statement. The

defense counsel referred to the stipulation during his

eross-examination. The appellant himself made refer-

ence to the stipulation. Since all parties concerned

were under the impression that the stipulation had

heen entered in the record, the. defendant-appellant

eannot be allowed to benefit from a purely technical

error, if in fact there was error.

Appellant next contends that (A) the hearing on

the motion to suppress failed to establish that the in-

formant’s reliability was sufficient to warrant use of

his ‘‘tip’’: (B) he contends that the failure to obtain

an arrest warrant vitiates the arrest and subsequent

seizure: and (C) he contends that a consent to search

cannot be acquired during an illegal detention and

that his consent was not shown to be voluntary and

knowledgeable.

As to appellant's first contention, the Judge at the

suppression hearing found that the informant’s re-

liability had heen established by the testimony of Tn-

Wellesley Avenue, in West Los Angeles. His credit card num-

ber was 4024 682 059 676. Another credit card was sent by

BankAmericard through the mails to one Kenneth Sorensen of

12118 Ohio Avenue, in West Los Angeles. His credit card num-

ber was 4024 688 038 351." It was further stipulated that the

individuals to whom these credit cards were addressed never

received the credit card in question.

5A

spector Barbarick and that the reliability standards

of Aguilar, 378 U.S. 108, and Spinelli, 393 U.S. 410,

had been met. Inspector Barbarick testified that he

had been contacted by Informant Khoury prior to

August 17, 1972, on five to ten occasions and that

Khoury had related information concerning appellant

Watson and his associates and that the information

supplied helped in knowing the whereabouts of people

that were involved in mail theft throughout the Los

Angeles area. There is sufficient evidence to support

the trial judge’s finding that Khoury was “reliable”.

Consequently, on August 17, 1972, when Khoury gave

Barbarick the eredit card which he said he had re-

ceived from Watson, probable cause existed to arrest

appellant Watson fo¥ mail theft.

Appellant’s second contention has merit, i.e. the

failure to obtain an arrest warrant vitiates the arrest.

As stated above, Inspector Barharick had probable

cause to arrest appellant on the 17th of August, 1972.

However, the arrest was not made until six days

later—on the 23rd of August. There appears to be no

reason for the failure to present the question to a de-

tached magistrate to obtain an arrest warrant.

“The case of Warden vy. Hayden, [387 U.S. 294]

where the Court elaborated a ‘hot pursuit’ justifica-

tion for the police entry into the defendant’s house

without a warrant for his arrest, certainly stands by

negative implication for the proposition that an arrest

warrant is required in the absence of exigent circum-

stances.”’ Coolidge v. New Hampshire, 403 U.S. 480.

‘The warrant requirement is not an inconvenience to

he somehow ‘weighed’ against the claims of police ef-

ficiency. It is, or should be, an important working part

of our machinery of government, operating as a mat-

ter of course to check the well-intentioned but mis-

takenly over-zealous executive officers who are a part

OA

of any system of law enforcement.” C ‘oolidge, supra

at 481. The government in this case has shown no

“exigent” circumstances which would justify not ob-

taining an arrest warrant during the six day interim

period between the 17th of August and the day of the

actual arrest. The arrest of the appellant was in

violation of the 4th Amendment to the U.S. Con-

stitution.

Thirdly, appellant attacks the voluntariness of his

consent to search. At the time appellant consented to

the search, he was under arrest. Nothing in the record

indicates that he knew of or was advised of his right

not to consent to the search of his automohile.

At the time of the consent to the search of this ear,

the law of the Ninth Cireuit required a showing that

the defendant knew he could withhold his consent and

a showing as to whether any consent was coerced or

uncoerced. Schoepfin v. United States, 391 F. 2d 380

(9th Cir. 1968). However, in Schneckloth v. Busta-

monte, 412 U.S. 219 (1973), the Supreme Court, re-

versing an earlier decision by this court, 448 F. 2d 699

(9th Cir. 1971), held that:

** * * Voluntariness is a question of fact to

be determined from all of the circumstances,

and while the subject’s knowledge of a right

to refuse is a factor to be taken into account,

the prosecution is not required to demonstrate

such knowledge as a prerequisite to establishing

a voluntary consent. * * *”

Recently, in United States v. Rothman, 492 F. 2d

1260 (9th Cir., Nov. 27, 1973), this court, conceding

that Sehneckloth is limited by its facts to cases in

which the consenting party is not in custody, observed

that we have never applied a different test for consent

* searches on the basis of the pre-consent arrest of the

consenting party and held that “arrest is but one

7A

factor, albeit a critical one, in determining whether

or not the consent was voluntary.”* 492 F. 2d at 1264,

n. 1. Henee, the Supreme Court's “totality of cireum-

stances” test applies to all consent search situations,

whether or not the consenting party is under arrest.

Here, we find that the totality of cireumstances

strongly: suggests coercion. Appellant had been placed

under arrest and was in custody at the time that he

gave the officers permission to search his ear.

“* * * Ty looking at the factual issue of vol-

untariness, the court must be aware of the ‘vul-

nerable subjective state’ of the defendant as

well as the possibility of ‘subtly coercive police

questions.” NSchneckloth v. Bustamonte, supra,

412 U.S. at 229, and the inherently coercive

nature of custodial interrogation, 7d. at 247.”

lpited States vy. Rothman, 492 F. 2d at 1265.

Not only was appellant Watson in custody, he was in

custody in violation of the Fourth Amendment, since

the agents had failed to obtain an arrest warrant.

Moreover, in Rothman, where we held that the de-

fendant had not properly consented to a search, the

defendant admitted that he knew that he had a right

to refuse. Here, nothing indicates that Watson knew

or Was advised of his right not to consent to the search

of his automobile. Hence, in light of Schneckloth and

Rothman, we hold that the in-custody search of the

appellant was invalid, and the fruits of the search

should have been suppressed.

In light of the above it is not necessary to discuss

other issues raised,

REVERSED. ~

Goopwtx, Circuit Judge, dissenting: I would affirm.

I agree that the agents could have obtained an arrest

warrant as early as six days before they arrested

Watson, but it by no means follows that the arrest

SA

without a warrant was not lawful. I know of no case

which holds that officers must make an arrest the

moment they come into possession of enough evidence

to cause a magistrate to issue a warrant. United States

v. Leon, 460 F. 2d 299, 300 (9th Cir. 1972). There are

many times when good law enforcement commends

further investigation. At the time of Watson’s arrest,

a pre-arranged signal gave the officers new knowledge

that Watson was then in possession of additional

stolen credit ecards. This information alone would

have justified a warrantless arrest at the time it was

made,

Given a lawful arrest, the only basis Watson urged

in the trial court for his motion to suppress the evi-

dence collapses. I do not join in the majority's dis-

cussion of Schneckloth v. Bustamonte, 412 U.S, 219

(1973), as it is not responsive to any issue raised

helow or in the briefs and arguments on appeal.

APPENDIN Bb

JUDGMENT

United States Court of Appeals For the Ninth Circuit

No. 73-1539 (D.C, No, 11056) ALS

UNtrep STATES OF AMERICA, DEFENDANT/APPELL QPEL

ie

Henry OGLE Watson, DEFENDANT APPELLANT

[March 20, 1974]

Appeal from the United States District Court for

the Centrai District of California.

This cause came on to be heard on the Transcript

of the Reeord from the United States District Court

for the Central District of California and was duly

submitted,

On consideration whereof, It is now here order J

and adjudged by this Court, that the judgment of the

said District Court in this Cause be, and hereby is

reversed, ,

A true copy, attest:

October 24, 1974.

Emi FE. Mevret, Jr., Clerk.

I Mary Turiey, Deputy.

we

"A

OA

APPENDIX C

United States Court of Appeals for the Ninth Circuit

No. 73-1539

Unirrp States OF AMERICA, APPELLEE

U.

Hexry OGLE WATSON, APPELLANT

[September 5, 1974]

Before ELy and Goopwty, Circuit Judges, and

Murray, District Judge*

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the

suggestion for a rehearing en bane. |

The full court has been advised of the suggestion

for an en bane hearing, and no judge of the court

has requested a vote on the suggestion for rehearing

en bane. Fed. R. App. P. 35(b).

The petition for rehearing 1s denied and the sug-

cestion for a rehearing en banc is rejected.

“The Honorable William D. Murray, Senior United States

District Judge for the District of Montana, sitting by desig-

nation.

104A

APPENDIX D

United States Court of Appeals for the Ninth Circuit

No. 73-1539

UNrrep STATES OF AMERICA, PLAINTIFF-APPELLEE

Uv.

Henry OGLE WATSON, DEFENDANT-APPELLANT

[December 12, 1973

Appeal from the United States District Court

for the Central District of California

Before Evy and Goopwin, Cireuit Judges, and

Murray,* District Judge

Murray, District Judge: An indictment was filed

against the appellant on September 11, 1972, alleging a

four count violation of 18 U.S.C. § 1708 (stealing from

the mails). Count 1 alleged a violation on Angust 22,

1972; Count 2 alleged a violation on August 17, 1972:

Count 3 alleged a violation on August 23, 1972: and

Count 4 alleged a violation on May 28, 1971. The ap-

pellant was ultimately tried on Counts 1, 2 and 3.

Count 4 was dismissed. The jury returned a verdict of

euilty as to Counts 1 and 3, and not guilty as to Count 2.

On the day of the trial, the district court heard

motions to suppress evidence pursuant to Rule 41(¢)

Federal Rules of Criminal Procedure and a motion

to determine the voluntariness of any post-arrest state-

*The Honorable W. D. Murray, United States District Judge

for the District of Montana, sitting by designation.

lla

12a

ments pursuant to Jackson v. Denno, 318 U.S. 368

(1964). In response to these motions, the government

called Frank L. Barbarick, a U.S. Postal Inspector,

as a witness. Inspector Barbarick testified that he was

contacted on the telephone by one Awad Khoury on

August 17, 1972. He knew Khoury as Tony and had

previous contacts with him from five to ten times. In

the course of these prior contacts, Khoury related in-

formation concerning appellant Watson and his asso-

ciates. This information was found to be reliable by

Inspector Barbarick.

In the Angust 17, 1972, phone call, Khoury advised

the Inspector that he, Khoury, was going to recelve a

Bank of America credit card from appellant Watson.

The card was in the name of Syed T. Ahmad, Bar-

harick told Khoury to bring the credit card to Bar-

barick’s effice when he received it from Watson. Later

on that day, Khoury brought the credit card into Bar-

havick’s office. Khoury said that he had received this

card from appellant and that appellant wanted him

to purchase TWA airline tickets. Khoury also showed

Inspector Barbarick a slip of paper that gave names

and addresses for the airline tickets to be purchased.

Inspector Barbarick told Khoury to arrange a meet-

ing with appellan: Watson. Khoury advised Bar-

harick that a meeting was scheduled for August 22,

1972. but this meeting did not take place. A meeting

with Watson on August 23 similarly did not take

place. Finally, a meeting between Khoury and Watson

was set up for noon on the 23rd of August at Ship’s

Restaurant in Los Angeles. Barbarick testified that

he told Khoury to determine at the meeting whether

Watson had any additional credit cards in his posses-

sion. If Watson did have some additional cards,

Khoury was to light a cigarette as a signal to Postal

Inspectors inside the restaurant. These inspectors

would then activate a signal alerting Inspector Bar-

13a

barick outside the restaurant. Upon receiving the pre-

arranged signal Barbarick and other inspectors en-

tered the restaurant and placed the defendant under

arrest, advising him that he was under arrest for posses-

sion of stolen mail. Inspector Barbarick then asked

Watson if he could look in his car. Watson said “Go

ahead.’’ Using the key to the car which Watson had

turned over, Barbarick opened the car and searched.

Under the floormat on the driver’s side he recovered an

envelope. Inspector Barbarick’s later testimony indi-

cated that the envelope which he discovered was not

opened until he returned to his office in downtown Los

Angeles. At that time he found that two smaller enve-

lopes were contained inside the larger envelope and that

it was these two envelopes which contained the credit

cards which are the source of the allegations in Counts

1 and 2. In making the arrest the inspector testified he

was relying on the evidence acquired on August 17, 1972,

which was six days prior to arrest.

In his initial argument, appellant raises the strictly

technical point that a stipulation * which his attorney

and the U.S. Attorney intended to introduce was never

‘The stipulation read as follows: “That on or about August

14th of 1972, BankAmericard Corporation sent through the

mails three credit cards in separate envelopes, with separate

addresses on them. That these three separate and distinct credit

cards and envelopes were addressed to, number one, a Mar-

lene M. Steinberg, at 12407 Ohio Avenue in Los Angeles. And

that her eredit card number was 4024 681 187 691. In addition,

another credit card on or about August 14, was sent by Bank-

Americard to one Syed T. Ahmed. And that was sent to 1502

Wellesley Avenue, in West Los Angeles. His credit card num-

ber was 4024 682 059 676. Another credit card was sent by Bank-

Americard through the mails to one Kenneth Sorensen of 12118

Ohio Avenue, in West Los Angeles. His credit card number was

4024 688 038 351.” It was further stipulated that the individuals

to whom these credit cards were addressed never :eceived the

credit card in question.

14a

affirmatively or competently entered into or accepted

by the court and that, consequently there is an absence

of proof.

The record reveals that both parties, the court and

the jury all were under the impression that the stipu-

lation had been entered in the record. The agreement

to stipulate was communicated to the court prior to

the empanelling of the jury. The stipulation was read

to the jury in the government’s opening statement.

The defense counsel referred to the stipulation during

his cross-examination. The appellant himself made

reference to the stipulation. Since all parties concerned

were under the impression that the stipulation had

heen entered in the record, the defendant-appellant

cannot be allowed to benefit from a purely technical

error, if in fact there was error.

Appellant next contends that (A) the hearing on

the motion to suppress failed to establish that the

informant’s reliability was sufficient to warrant use

of his “tip”; (B) he contends that the failure to ob-

tain an arrest warrant vitiates the arrest and subse-

quent seizure; and (C) he contends that a consent to

search cannot be acquired during an illegal detention

and that his consent was now [sic] shown to be volun-

tary and knowledgeable.

As to appellant’s first contention, the Judge at the

suppression hearing found that the informant’s re-

liability had been established by the testimony of In-

spector Barbarick and that the reliability standards

of Ayuilar, 378 U.S. 108, and Spinelli, 593 U.S. 410,

had heen met. Inspector Barbarick testified that he

had been contacted by informant Khoury prior to

August 17, 1972, on five to ten occasions and that

Khoury had related information concerning appellant

Watson and his associates and that the information

supplied helped in knowing the whereabouts of people

that were involved in mail theft throughout the Los

15A

Angeles area. There is sufficient evidence to support

the trial judge’s finding that Khoury was ‘' reliable”.

Consequently, on August 17, 1972, when Khoury gave

Barbarick the credit card which he said he had re-

ceived from Watson, probable cause existed to arrest

appellant Watson for mail theft.

Appellant’s second contention has merit, Le. the

failure to obtain an arrest warrant vitiates the arrest.

As stated above, Inspector Barbarick had probable

‘ause to arrest appellant on the 17th day of August,

1972. However, the arrest was not made until six days

later—on the 23rd of August. There appears to he no

reason for the failure to present the question to a

detached magistrate to obtain an arrest warrant.

“The case of Warden v. Hayden, [387 U.S. 294]

where the Court elaborated a ‘hot pursuit’ justification

for the police entry into the defendant’s house without

a warrant for his arrest, certainly stands by negative

implication for the proposition that an arrest warrant

is required in the absence of exigent circumstances.”

Coolidge v. New Hampshire, 403 U.S. 480. **The war-

rant requirement is not an inconvenience to be some-

how ‘weighed’ against the claims of police efficiency.

It is, or should be, an important working part of our

machinery of government, operating as a matter of

course to check the well-intentioned but mistakenly

over-zealous executive officers who are a part of any

system of law en! orcement.”’ Coolidge, supra at 481. The

covernment in this case has shown no “exigent”’ circum-

stances which would justify not obtaining an arrest war-

rant during the six day interim period between the 17th

of August and the day of the actual arrest. The arrest

of the appellant was in violation of the 4th Amendment

to the U.S. Constitution.

Thirdiy, appellant attacks the voluntariness of the

consent to search. At the time appellant consented to

the search, he was under arrest. Nothing in the record

16a

indicates that he knew of or was advised of his right

not to consent to the search of his automobile, At the

time of the consent of the search of this ear, the law

of the Ninth Cireuit required a showing that the de-

fendant knew he could withhold his consent and a

showing as to whether any consent was coerced or un-

coerced. Schoepflin v. U.S., 391 F. 2d 390 (1968). The

record in the Schoepflin case was similar to the record

in the case at hand in that “there is not a word of

testimony in the record to indicate that Smith was

aware of the fact that he could refuse to permit the

requested search of his apartment.” Schoepflin, supra

at 399. The Supreme Court has since partially over-

ruled this Ninth Circuit requirement. In the decision

of NSchneckloth v. Bustamonte, 41 US.L.W. 4726

(1973), the court held that “when the subject of a

search is not in custody and the state attempts to jus-

tify a search on the basis of his consent” there is no

necessity of showing that the defendant knew or was

advised of his right not to submit to the search. The

Ninth Circuit requirement of a showing of knowledge

of the right to refuse has been overruled only in the con-

text of out-of-eustody searches. The court in Selneck-

loth yeiterates the Miranda holding that custodial in-

terrogations by the police are inherently coercive and

consequently, detailed warnings are required, Not only

was appellant Watson in custody, he was in custody

in violation of the 4th Amendment since the agents

had failed to obtain an arrest warrant. The totality

of the circumstances certainly suggests coercion. In

light of the Ninth Circuit law at the time of the con-

sent, Schoepflin, and the Schneckloth ease, the in-cus-

tody search without appropriate warnings must he

declared invalid. The fruits of the search should have

heen suppressed.

The case at hand is distinguishable from U.S. Vv.

Tron and Lyon (9th Cir. 472-2595 and 2596) decided

ee ——L—

17A

by this court on July 26, 1973. In the Jron decision,

the consent to search was made prior to any arrest.

It was an out-of-custody consent and thus, under

Schneckloth, the prosecution was not required to dem-

onstrate knowledge of a right to refuse.

In the Jron decision, U.S. v. Page, 302 F. 2d 81, 84

(9th Cir. 1962) was cited for the proposition that ap-

pellate courts usually sustain a trial court’s finding

that there was consent to a search, even though the

consent was obtained under authority of the badge,

and the government must show that there was no coer-

cion in fact. It should be noted, however, that in Page

we went on to say, “The government’s burden is

greater where consent is claimed to have been given

while the defendant is under arrest.” Page at 84. We

hold that in an in-custody situation, the prosecution

must show that a defendant either knew of, or was

advised of his right to refuse to consent to a search.

In view of the above it is not necessary to discuss

other issues raised.

REVERSED.

Goopwtx, Circuit Judge, dissenting: T would affirm.

I agree that the agents could have obtained an arrest

warrant as early as six days before they arrested Wat-

son, but it by no means follows that the arrest without

a warrant was not lawful. [ know of no ease which

holds that officers must make an arrest the moment

they come into possession of enough evidence to cause

a magistrate to issue a warrant. There are many times

when good law enforcement commends further inves-

tigation. At the time of Watson’s arrest, a_pre-

arranged signal gave the officers new knowledge that

Watson was then in possession of additional stolen

eredit cards. This information alone would have justi-

fied a warrantless arrest at the time it was made.

Given a lawful arrest, Watson’s only basis for his

motion to suppress the evidence collapses.

US. GOVERNMENT PRINTING OFFICE. torTe