Petition — Gilmore v. United States

IN THE re ane eee

SUPREME COURT OF THE UNITED STATES

OCTOBER RM, 197

No. uv” Q 6 2 4

GARY MELVIN GILMORE,

PETITIONER,

decdiais

UNITED STATES OF AMERICA,

RESPONDENT.

DONALD DAY BROWN,

PETITIONER,

ee

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Law Offices of PATRICK J. BRIGG

PHILIP A, DEMASSA ‘4arrington, Waddell &

A Professional Corporation Briggs

2150 First Avenue 520 West Ash Street

San Diego, California 92101 Suite 300

Telephone: (714) 236-0897 San Diego, California

92101

Telephone: (714)

238-1355

Attorney for Gilmore Attorney for Brown

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

GARY MELVIN GILMORE,

PETITIONER,

ne

UNITED STATES OF AMERICA,

RESPONDENT.

DONALD DAY BROWN,

PETITIONER,

waitin

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

INDEX

Table of Cases

Opinion Below

Jurisdiction

Questions Presented for Review

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting the Writ

I. The affirmation of a warrantless

arrest, the probable cause for

which is the corroboration of

innocent details provided by an

untested informant, is offensive

to the warrant requirements of

the Fourth Amendment and

previous decisions of the

Supreme Court.

Il. Deciding that an arrest warrant

is mandated before entry into a

man's house to arrest him is

consistent with the basic principles

of the Fourth Amendment, but

affirmation of a finding that an

emergency created entirely by

officers' actions may constitute

an exigent circumstance

sufficient to excuse that mandate

would seriously undermine the

entire notion of the Fourth

Amendment warrant requirement.

Conclusion

Appendix A - Order Affirming

Appendix B - Order Denying Petition for

Rehearing and Request for

Hearing In Banc

i

10

17

27

Johnson v. United States, 333 U.S.

CD (ERD pe ccccccccccccccccece coccee 1,82

TABLE OF CASES

Cases: a

Ker v. California, 374 U.S. 23 (1963).. 22

Agnello v. United States, 269 U.S. 20

DC Caces sree ceeds pa nee eeeeneenes 18 Louie v. United States, 426 F.2d

398 (Oth Cir. ee 12,14

il . Texas, 378 U.S. 108 (1964)... 11,12,13 |

agetar™ _— s McDonald v. United States, 335 U.S.

Beck v. Ohio, 379 U.S. 89 (1964)....... 10 MEG E6G4SEE68 6540000600660 22,24

Brinegar v. United States, 338 U.S. Musgrove v. Eyman, 435 F.2d 1235

160 (1949)... -e eevee ccc ceccccees 10 C Tan I)» 16

; + Pulido v. United States, 425 F.2d

; ted States, 267 U.S. do v. | , .

om 1) Sepereereerr eee 10 TST (tH Cir. 1970). esse see eaees 14

Castillon v. United States, 298 F.2d Shuey v. Superior Court, 30 Cal.App.

256 (Sth Cir. 1962)..... S cerhieseenee 14 Sd 535 (1973)... eee eee we eee wiee 25

Chapman v. United States, 365 U.S. . Spinelli v. United States, 393 U.S. 11,12,14,

656s 5ssneaedeeeusessueenes 22 a) (et @ [- -\-) ee 16

Chimel v. California, 395 U.S. 752 Taylor v. United States, 285 U.S. 1

NG 6468 64464090 6060060800 0000005 19 (<> ee 22

Coolidge v. New Hampshire, 403 U.S. 18,19,20, ® United States v. Avila, 469 F.2d

SEs coos eccecececeesese genes 21,22,24 Pe NT Gs MPM co ccccsnscccess 13

& 26

United States v. Baginet, 462 F.2d

Dorman v. United States, 140 U.S. Wee (60) Clr. [B7E)eccccccccccccces 20

App.D.C. 313, 435 F.2d 385 (1970)... 19,21

e United States v. Bustamante-Gamez,

Draper v. United States, 358 U.S. 488 F.2d 4 (9th Cir. 1973)......... 23,25

T AGO) co ccccccccccceseces TrTTTTt 11,12,14

sili ' United States v. Curran, 498 F.2d

Gilbert v. United States, 366 F.2d oe ee cies fe

im. 1966). .cccccccccces seco Weegee

eT ; United States v. Davis, 461 F.2d

Henry v. United States, 361 U.S. 98 1026 (Sra Cir. 1972). coecececeeseves 19,24

(1959)... ce cececoeees WOTTTTTTTT TTT a.

United States v. Hamilton, 490 F.2d

ii. S40 COS) CP. 17S) ec ccc cccccccccces 13,15

iii.

United States v. Harris, 403 U.S.

S7S UT) ccccccccccccccsseccceeess 15

United States v. Jeffers, 342 U.S. 48

United States v. Larkin, 510 F.2d

14 (OH Cir. TWA) ccccccvccvccccces 13,15

United States v. Phillips, 497 F.2d

United States v. Scheffer, 463 F.2d

567 (5th Cir. 1972) cert. den.,

409 U. S. B74 (1973)... eee eevee 25

United States v. Smith, 503 F.2d

Uy Ct CU. UF Elcccocceeseueen 13

Vale v. Louisiana, 399 U. S. 30

[SOV Otes - 0006690000088 ene 21,22,24

Warden v. Hayden, 387 U.S. 294 (1957) 20,21

Whitely v. Warden, 401 U. S. 560 (1970) Il

Wong Sun v. United States, 371 U.S.

4s Ppeperyrrry ss ul

iv.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

GARY MELVIN GILMORE,

PETITIONER,

sities

UNITED STATES OF AMERICA,

RESPONDENT.

DONALD DAY BROWN,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL FOR

THE NINTH CIRCUIT

Petitioners, Gary Melvin Gilmore and Donald

Day Brown, respectively pray that a writ of

certiorari issue to review the judgment and

opinion of the United States Court of Appeals for

the Ninth Circuit entered May 29, 1975, rehearing

and request for hearing in banc denied

October 3, 1975.

OPINION BELOW

The Court of Appeals entered its unpublished

memorandum decision, No. 74-3380, on May 29,

1975. A copy of the opinion is attached as

Appendix A. Petition for Rehearing and Request

for Hearing in Banc were denied on October 3,

1975. A copy of the order denying the petition for

rehearing and request for hearing in banc is

attached as Appendix B.

JURISDICTION

On May 29, 1975, the United States Court of

Appeals affirmed the convicticn of petitioners for

conspiring to possess marijuana with intent to

distribute and for possessing marijuana wit

intent to distribute (Appendix A). Rehearing and

request for hearing in banc were denied on

October 3, 1975. The jurisdiction of this Court is

invoked under Title 28, United States Code,

Section 12541).

QUESTIONS PRESENTED FOR REVIEW

I. Whether the corroboration of innocent

details provided by an untested informant

constitutes probable cause for a warrantless

arrest?

Il. Whether an emergency created entirely by

officers’ actions may constitute an exigent

circumstance sufficient to excuse the necessity of

obtaining an arrest warrant, otherwise required

by the Fourth Amendment under the circumstances?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

"The right of the people to be secure

in their persons, houses, papers, and

effects against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but

upon probable cause, supported by

Oath or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized."

STATEMENT OF THE CASE

Around Marcn 20, 1974, DEA Agent Dersnam

received information from Connecticut State Police

that a John Mitchell had boarded a plane to San

Diego from Connecticut. An inspection of the

luggage he checked at the Connecticut Airport

revealed that it contained blocks of wood and

marijuana debris. This information was passed to

San Diego narcotics officers and a surveillance

was initiated upon Mitchell's arrival in San Diego.

Upon his arrival Mitchell took a cab to 4411

Saratoga, San Diego (Reporter's Transcript,

hereinafter referred to as "R.T." 5).

A check of San Diego Gas & Electric Company

indicated the residence belonged to appellant

Gilmore. A spot surveillance of the Saratoga

address was conducted between March 20 and April

6i4,. On April 6th information was received that

Mitchell had taken a cab from the residence with

more suitcases than when he arrived. The record

is silent as to where Mitchell went in the cab. The

information regarding Mitchell leaving the

Saratoga residence with a numer of suitcases was

forwarded to Connecticut State Police who at some

point arrested Mitchell with 160 pounds of marijuana

in Connecticut. (R.T. 6).

On April 30th Agent Dersham and Agent Flores

of San Diego Police Department Narcotic Division

talked to Mitchell upon his return to San Diego

regarding the marijuana dealings of appellant

Gilmore. (R.T. 6,7). The agents instructed

Mitchell to contact Gilmore for the purpose of

ordering marijuana for him. (R.T. 26-7).

The agents received general information

regarding Gilmore from the Department of Motor

Vehicles, the San Diego Police Department

information record division and conversations

with narcotics agents and neighbors beginning on

March 20, 1974. Prior to that date they had no

information on any illegal activities by appellant

Gilmore. (R.T. 7-19). Appellant Gilmore's

neighbors supplied information from March 20

onward regarding license plates and cars which

had been to appellant's house. The information

the agents received from other case reports or

agencies was used solely as a basis for the

amount of manpower to be used on the investiga-

tion. (R.T. 76-79). However, none of the

information from neighbors or other agencies

related to illegal activity. (R.T. 1l9-2l1,80-89).

The day after Mitchell's arrival, April 30,

he was taken by agents to an area a few blocks

away from 4411 Saratoga where he was let out of

the car and went on foot to the residence. The

day after that Mitcehll called Agent Dersham and

informed him of his contact with appellant Gilmore

and Gilmore's prior marijuana deliveries.

(R.T. 7-8). The record is silent as to whether

or not Mitchell was surveilled and in fact went to

the appellant's home during this period of time.

On May 2nd Mitchell informed Dersham that

Gilmore was trying to arrange a load for him

within a couple of days. (R.T. 8).

On May 4, 1974, Mitchell telephoned Dersham

to tell him that Dave McDonald and Donald Brown

nad brought a load of marijuana to the residence

and unloaded it in Gilmore's garage the night

before. Further, that Donald Brown had said

that another load was coming soon and as soon as

he received the phone call at his own house it

would be there. (R.T. "a The narcotics

agents learned the name Donald Brown through a

Department of Motor Vehicles check of a yellow

Volkswagen which was registered to him.

Mitchell did not give the agents Brown's name

although he did supply them with a physical

description on May 4. (R.T. 68-69).

At noon on May 5, 1974, Agent Dersham

received a phone call from Mitchell stating that

Brown had arrived at Gilmore's residence and

stated that a load, about 230 kilos, were in the

area in a camper and the driver would be bringing

them over any minute. Dersham contacted other

agents and proceeded to 4411 Saratoga where he

observed an older model black Ford pickup with a

white camper parked adjacent to the garage.

(R.T. 13-14).

After Agent Flores arrived that afternoon, he

spoke with Mitchell at the side of the residence.

Mitchell told him the load had been delivered in

the black pickup and was now in large boxes in the

garage. Further, Mitchell said he had secured

three kilos of marijuana from the load and was

going to use it as a sample and had toid Gilmore

he was going to contact his friends concerning the

load's arrival. (R.T. 103-04). Mitchell showed

Flores the bag containing a sample but Flores

did not see the sample itself. (R.T. 167-69).

Flores instructed Mitchell to make sure the load

was still in the general vicinity and to try to give

them some sign by which they would know

everything was all right so that the agents could

enter the residence. Flores advised the other

units they were to enter the residence and

instructed some of them to go to the rear and

guard against escape. (R.T. 105-06). Flores

had not examined tne vehicle and did not see any

marijuana or debris in it at any time. (R.T. I6l).

While Flores was speaking to Mitchell the

camper left and Dersham instructed other agents

5.

to follow it and return to the residence as quickly

as possible. (R.T. 16). Sgt. Corey and others

followed the camper truck, stopped it, arrested

the driver, secured the vehicle, did not search the

vehicle, did not ask the driver his name, and

returned the driver back to the residence. (R.T.

172-74, 186, 203-05).

When the agents returned, Dersham advised

that there were over 230 kilos in the garage and

two suspects and an informant in the residence and

that they were to secure the residence because there

was a possibility the informant was in danger of

being discovered and they believed that the marijuana

which was packaged in large boxes could easily be

moved out of the garage away from the residence

quickly therefore forever losing the contraband.

(R.T. 18-19). Dersham and approximately eight

other officers proceeded to secure the residence

and approach the front door. (R.T.19). Sergeants

Corey and Bailey positioned themselves in the back

yard between the garage and the house. A noise

was heard at the door of the garage and Bailey said

something to the effect of "don't come out" or

"stay inside". Corey then heard the large door of

the garage being opened and then a banging sound.

Since there was a vehicle parked in front of the

large garage door, Corey felt that the door had hit

the vehicle. (R.T. 174). Corey ran to the back

door of the garage where he knocked on the door

and asked the people inside to open up. He

observed two individuals in the garage try the side

door and saw movement. (R.T. 175-77). Corey

directed the person who opened the side door to get

against the wall and identified himself as a police

officer as he went into the garage. We did not

obtain consent from any individual to enter tre

garage and it was stipulated he had no warrant.

(R.T. 189-92). Upon entering the garage he

observed marijuana kilos on a bench and some

large carboard boxes. (R.T. 192).

6.

Agent Dersham checked the home for the

suspects and entered the garage. Approximately

230 kilos of marijuana were found there in four

large carboard boxes along with several loose

kilos on a workbench or mattress. (R.T. 20-23).

Flores also entered and advised Gilmore that

besides being under arrest for possession for sale

of marijuana that he had an order to search his

person and residence and showed a probation order

to him. The residence and garage was then search-

ed pursuant to the probation order. (R.T. 110-12).

Flores observed appellant Brown but did not find

any contraband in his physical possession or on

him. He found no contraband on Brown's vehicle

and does not know when Brown arrived at the

residence. (R.T. 147-49).

The next day a further search of the garage

revealed approximately nine kilos of marijuana

under a work bench. (R.T. 24-5).

On May 15, 1974, the November 1973 Grand

Jury for the Southern District of California

returned a two count indictment against

petitioners. The indictment alleged that petitioners

knowingly and intentionally combined and conspired

with each other to possess with intent to distribute

230 kilos of marijuana in violation of Title 2l

U.S.C. §84l(ay(l), a Schedule I controlled

substance.

The second count of the indictment charged

both appellants with intent to distribute 510 pounds

of marijuana, a Schedule I controlled substance,

in violation of Title 21 U.S.C. §841 (al).

(Clerk's Record on Appeal, hereinafter referred to

as "C.R." 1-3). The acts were allged to have

occurred up to and including May 5, 1974, in the

Southern District of California.

On June 24, 1974, defendant McDonald (not

petitioner herein) filed motions to suppress

7.

evidence and reveal identity of informant. (C.R.

15-29). Trial counsel for petitioner Gilmore and

petitioner Brown joined in this motion. (C.R. 30

3). Additionally, trial counsel for petitioner

Gilmore filed a motion to suppress evidence that

was obtained through the use of a probation order

on petitioner Gilmore. (C.R. 34-43).

On July 5, 1974, the government filed various

motions in opposition to the motions previously

filed by petitioners. (C.R. 44-58).

Sworn testimony on the motions to produce

the informant and to suppress evidence was held on

July 8, July 26 and August 16, 1974, (see

Reporter's Transcript). On August 16, 1974, after

argument by counsel, the court denied the motion

to suppress the evidence seized in the garage of

petitioner Gilmore in that the search was based

upon probable cause. (R.T. 222-24). A motion

to suppress evidence found as a result of a later

search pursuant to a probation order of petitioner

Gilmore was denied on the basis of the probation

order itself. (R.T. 226-27).

On September 20, 1974, petitioners Gilmore

and Brown executed "Waiver of Trial by Jury and

Waiver of Special Findings of Fact". (C.R. 66-7).

On Septemoer 25, 1974, a written Stipulation was

submitted on behalf of both petitioners and the

government. (C.R. 69-78). The various parties

agreed to proceed by way of stipulation in lieu of

trial so that the court could make a finding of guilt

or innocence upon the written stipulation. (R.T.

232-34). An additional stipulation was entered into

between the government and petitioner Brown that

a vehicle registered to Brown appeared at the

Gilmore residence on March 24, 1974, and on the

day of arrest. (R.T. 233). The court found both

petitioners guilty. (R.T. 236).

On November 25, 1974, the court sentenced

8.

petitioner Gilmore to the custody of the Attorney

General or his authorized representative for a term

of three years pursuant to 18 U.S.C. §4208(a)(2)

on each count, both counts to run concurrent with

each other. Additionally, a five year term of

special parole was prescribed under 2l U.S.C.

§841(b)(1\(B). Petitioner Gilmore filed notice of

appeal on Novemoer 26th and was allowed to remain

on the original bond which was previously set.

(C.R. 80-3).

On December 16, 1974, petitioner Brown

was committed to the custody of the Attorney

General or his authorized representative for a term

of 15 months pursuant to 18 U.S.C. §4208(a)\(2) and

ordered to serve a special parole term of three

years pursuant to 2l U.S.C. §84l(b)7)(B). A

notice of appeal was filed on December 16, 1974, and

petitioner was allowed to remain on original Dail

posted pending appeal. (C.R. 84-87).

On May 29, 1975, the United States Court of

Appeals for the Ninth Circuit rendered its decision

affirming the petitioners’ convictions (Appendix A)

aithough agreeing that evidence obtained through

use Of the probation order should have been

suppressed. A Petition for Rehearing and Request

for Hearing in Banc was denied on October 3, 1975.

(Appendix B).

REASONS FOR GRANTING THE WRIT

I

The affirmation of a warrantless

arrest, the probable cause for

which is the corroboration of

innocent details provided by an

untested informant, is offensive

to the warrant requirements of

the Fourth Amendment and

previous deci sions of he Supreme

Court.

It is fundamental that an arrest with or with-

out a warrant must stand upon a more substantial

basis than mere suspicion, Henry v. United

States, 361 U.S. 98 (1959), though, at the same

time, neither must the arresting officer have

sufficient evidence in hand to convict. Rather,

the officer must have the amount of information

which constitutes probable cause to arrest,

evidence would would "warrant a man of reasonable

caution in the belief" that the defendant had

committed or was committing an offense, Carrollv.

United States, 267 U.S. 132 (1925), and the

existence of probable cause must be measured by

the facts of the particular case. Beck v. Ohio,

379 U.S. 89 (1964).

The history of the use and abuse of the power

to arrest suggests that a relaxation of the

fundamental requirements of probable cause would

"Leave law-abiding citizens at the mercy of the

officers' whim or caprice." Brinegar v. United

States, 338 U.S. 160, 176 (1949). Thus, itis that

before an arrest warrant will issue, an officer

must make a showing of probable cause before an

impartial magistrate - and when no warrant is

sought, the standards applicable for assessing the

officer‘’s probable cause assertion at the time of the

challenged arrest and search are at least as

stringent as those ape tes by the magistrate,

Whitely v. Warden, 401 U.S. 560 (1970), lest the

incentive for obtaining warrants be destroyed.

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

(1959) established that, in a warrantless arrest

situation, probable cause may be established

based upon an informant's tip if there is

subsequent corroboration of the details of the tip

to insure reliability. Although in Draper the

informant had previously given accurate and

reliable information, he did not state the means by

which he obtained his information. Instead the

informant described in great detail the surrounding

facts and circumstances of the reported crime, and

upon On-the-scene corroboration by the officers,

the Court held probable cause had been established.

In Wong Sun v. United States, 371 U.S. 471

(1962), the known reliability, or lack thereof, of

the informant was shown to be a factor in

evaluating whether probable cause may be derived

from an informant's tip. Later, in Aguilar v.

Texas, 378 U.S. 108, 114 (1964), it was stated

thata tip, alone, could support a finding of

probable cause if both the underlying

circumstances supporting the credibility of the

informant and the underlying circumstances from

which the informant reached the conclusions

conveyed in the tip, could be shown by the

government.

Spinelli v. United States, 393 U.S. 410 (1969),

approved Draper and Aguilar, and summarized

the procedure to be used in evaluating an

informer's tip as the basis for probable cause:

The informer's report must first

be measured against Aguilar's

standards so that its probative

value can be assessed. If the tip

is found inadequate under Aguilar,

the other allegations which

corroborate the information

contained in the hearsay report

should then be considered. At

this stage as well, however, the

standards enunciated in Aguilar

must inform the magistrate's

decision. He must ask: Can it

fairly be said that the tip, even

when certain parts of it have

been corroborated by independent

sources, is as trustworthy asa

tip which would pass Aguilar's

tests without independent

corroboration?

393 U.S. at 415.

Thus, it may be seen that the central focus

in evaluating the reliability of an informant and the

informant's tip, absent underlying circumstances

related directly thereto, is to evaluate, given all

the facts and circumstances involved, whether the

tip is substantially trustworthy. Viewed in that

light, the Draper court found the corroborated

detail of the tip Of sufficient depth to be inherently

reliable, while in Spinelli it was found that too much

of the information was innocuous, not in and of

itself trustworthy evidence that a crime has been

committed.

That the Ninth Circuit has been scrupulous

in applying the tests set forth by the Supreme

Court for such cases is clear from a survey of its

decisions - until this case. The United States, in

its appellate brief, offered many examples of the

care taken by the Ninth Circuit to assure

reliability and corroboration. Among the factors

cited in finding probable cause despite failure to

fulfill the Aguilar requirements are declarations

against penal interest, (Louie v. United States,

426 F.2d 1398 [9th Cir. 1970]), statements made

without expectation of personal benefit due to

mortal iniury (Gilbert v. United States, 366 F.2d

l2.

923 [9th Cir. 1966]), corroboration of very detailed

information (United States v. Smith, 503 F.2d

1037 [9th Cir. 1974]) and corroboration based upon

personal observation of the actions of the accused

by the officers (United States v. Avila, 469 F.2d

276 [9th Cir. 1972]).

The demand for trustworthy evidence of crime

as a prerequisite when Aguilar is not met may also

be seen in the instances 1n which the finding of

probable cause has been overturned. Clearly, the

government must have more than "a statement

supported by nothing that was not open and

obvious to anyone." United States v. Hamilton,

490 F.2d 548 (Sth Cir. 1974). Importantly, the

major examples of such open and obvious detail

has come in cases where the government have

corroborated only information of car license

numbers and car movement, and the courts have

found such corroboration not sufficiently trust-

worthy as evidence of crime, as too innocuous.

See, e.g., United States v. Larkin, 510 F.2d

13 (9th Cir. 1974); United States v. Hamilton,

supra.

Furthermore, it has been widely recognized

that for one notably unreliable class of informants,

narcotics informants, even more detailed than

usual corroboration must be presented to assure

trustworthiness:

Weaver was unlike the usual

informer, most of whom are

encountered in narcotics. They

are usually witnessing to secret

transactions to which only they

and the accused were privy. They

are often informing for hire.

Commonly addicted themselves,

they are often motivated by hope

or promise of personal immunity

from prosecution or leniency in

13.

punishment. In consequence they

are "frequently 'monstrous liars.'"

Gilbert v. United States, supra, at 931 n.9,

distinguishing the informant there at hand. This

view has been often repeated and relied upon. See,

e.g., Louie v. United States, supraat140l; ~~

Pulido v. United States, 425 F.2d 1391 (Sth Cir.

1970), Castillon v. United States, 298 F.2d 256

(9th Cir. 1962).

That the court in the instant case erred by

misapplying its own standards, and, at the same

time, contradicted the major safeguards presented

and developed in the decisions of the Supreme

Court may be seen by an analysis of the facts.

Being an untested informant, Mitchell's

testimony, without corroboration or without other

adequate indicia of reliability, could not have

provided sufficient probable cause to arrest the

petitioners under the guidelines set out in

Draper v. United States, supra, and Spinelli v.

United States, supra. Therefore, both

corroboration, which was relied upon by the Court

of Appeals, and other factors to be considered in

evaluating reliability must be considered.

The officers never had any personal contact

with the defendants and did all of their alleged

negotiating through the previously untested

informant. It is uncertain whether, prior to May

5, 1974, the police even observed Mitchell go into

petitioner Gilmore's residence. Although a

utilities check indicated that Mr. Gilmore rented

the Saratoga residence, there is no indication in

the record that he was at that address during any of

the times the informant alleged he had met with

him.

The basic corroboration by the officers

appears to be that they kept the Gilmore residence

under surveillance. vw discovered through

reports of neighbors that cars frequently were

seen in the area of the residence, but the number

and rate of frequency are not particularized.

Several vehicles, alleged by the informant

to be carrying contraband, were spotted (one

before the information was received, one after),

but no exchange of contraband was ever

corroborated. On the day of the arrest, while

the residence was under surveillance, the officers

did not see the camper alleged to be making a

delivery of marijuana arrive and unload, although

they subsequently observed a camper leaving the

residence.

The sack in which the informant claimed to

have a sample of the marijuana was never

investigated, so even at this stage the presence

of contraband had not been corroborated. Thus,

in sum, corroboration existed only of vehicular

movement, that which hasbeen often before

rejected as a basis for probable cause on the

grounds that it is evidence which is too innocuous,

which is open and obvious to anyone. United

States v. Larkin, supra; United States v.

Hamilton, supra.

Furthermore, the inadequacy and innocence

of the corroborated evidence is heightened by the

absence of any indicia of reliability in the

informant or his information. Beyond the facts

that the informant was untested and that he was a

member of a notoriously unreliable class of

informants, narcotics informants seeking

leniency from the government, it is clear that any

other evidence of reliability and trustworthiness,

such as those relied upon in United States v.

Harris, 403 U.S. 573 (1971), was also missing.

The informant here was making no declaration

against penal interest in that he was supplying no

information about any crime in which he faced

criminal jeopardy. Rather, he was acting

15.

entirely for the government, having already

confessed participation in a crime entirely

unrelated to the matters at hand.

Moreover, in direct contrast to he state-

ment of the appellate court (Memorandum

Decision at page 2n. 1), the informant had every

expectation of personal benefit should he provide

any information, whether true or believeable but

false, since his sole reason for contacting Gilmore

was to secure lenient treatment from the

government. The informant's status, unable to

incriminate himself but able to benefit, certainly

adds no weight to his reliability or to the innocent

information corroborated by the officers.

That the appellate court's decision is at great

variance not only with the prior holdings of the

Ninth Circuit but also with the decisions of the

Supreme Court may best be seen by contrasting

the instant case with that upon which the appellate

court placed greatest reliance, Musgrove v. Eyman,

435 F.2d 1235 (9th Cir. 1971). The informant in

Musgrove provided information against his penal

interest about a crime in which he participated,

very detailed infar mation which corresponded

with that already known to the officers about the

crime in question, and it was upon these two

factors, neither of which may be found in the

instant case, that the finding of probable cause

was upheld. Moreover, the Musgrove court placed

major emphasis upon the fact that the informant

was not a narcotics offender, a category dismissed

as "notoriously unreliable source(s)" (Id. at 1238);

of course, the case here presented does involve

a narcotics offender. Clearly Musgrove, which

fully adheres to the guidelines set by he Supreme

Court, offers little support for the decision

reached by the appellate court here.

The situation seems, instead, to be within

the finding of the court in Spinelli v. United States,

supra at 418:

16.

...we find nothing alleged which

would permit the suspicions

engendered by the informant's

report to ripen into a judgment

that a crime was probably being

committed. As we have already

seen, the allegations detailing

the FBI's surveillance of Spinelli

and its investigation of the telephone

company records contain no suggestion

of criminal conduct when taken by

themselves - and they are not

endowed wit? an aura of suspicion

by virtue of the informer's tip.

The decision of the Court of Appeals here is

not only at variance with other rulings within the

circuit, but — in its finding probable cause from

the corroboration of innocent details provided by

an untested unreliable informant, which

information and details were never subject to the

scrutiny of a disinterested judicial officer - it also

is without support in the guidelines established

by the Supreme Court, is in fact well outside

those guidelines, and represents a major dilution

of the important safeguards and guarantees of

trustworthiness that the court has constructed to

assure fulfillment of the Fourth Amendment

protections.

II

Deciding that an arrest warrant

is mandated before entry into a

man's house to arrest him is

consistent with the basic principles

of the Fourth Amendment, but

affirmation of a finding that an

emergency created entirely by

officers' actions may constitute

an exigent circumstance sufficient

to excuse that mandate would

17.

seriously undermine the entire

notion of the Fourth Amendment

requirement.

Although the Supreme Court has never

specifically ruled on the question of whether an

arrest is mandated before entry into a man's

house to arrest him, freedom from intrustion

into the house or dwelling has long been

considered fundamental to the privacy protections

of the Fourth Amendment. See, e.g., Agnello v.

United States, 269 U.S. 20 (1925). For example,

a warrantless search of a house is per se

unreasonable under the Fourth Amendment.

Coolidge v. New Hampshire, 403 U.S. 443,

444-445 1971).

The requirement of a warrant rests

primarily on the conception that itis fora

judicial officer, and not the prosecution or police,

to determine whether the security of the community

requires that the right of privacy of one's house-

hold must yield to a right of entry, search and

seizure. As stated in Johnson v. United States,

333 U.S. 10, 13-14 (1948):

The point of the Fourth Amendment ,

which often is not grasped by

zealous officers, is not that it

denies law enforcement the support

of the usual inferences which

reasonable men draw from evidence.

Its protection consists in requiring

that those inferences be drawn by a

neutral and detached magistrate

instead of being judged by the

officer engaged in the often

competitive enterprise of

ferreting out crime... The right

of officers to thrust themselves

into a home is...a grave concern,

not only to the individual but to a

18.

society which chooses to dwell

in reasonable security and

freedom from surveillance.

When the right of privacy must

reasonably yield to the rignt of

search is, as a rule, to be

decided by a judicial officer, not

by a policeman or Government

enforcement agent.

The general need for and importance of a

warrant in Fourth Amendment issues may be seen

by the continuing attention given such matters by

the Supreme Court. See, e.g., Chimel v.

California, 395 U.S. 752 (1969); Coolidge v.

New Hampshire, supra. And, in considering

whether to impose a general requirement of a

warrant as a condition for entry into a house for

the purpose of making an arrest, the District

of Columbia Circuit, in Dorman v. United

States, 140 U.S. App.D.C. SIS, 435 F.ad 385,

390 (1970), reflected these concerns, stating:

...the basic principle, the

constitutional safeguard that,

with room for exceptions,

assures citizens the privacy and

security of their homes unless

a judicial officer determines

that it must be overridden, is

applicable not only in case of

entry to search for property,

but also in case of entry in order

to arrest a suspect.

The requirement of an arrest warrant before

entry into a house to make an arrest has been

adopted by several other circuits. See, e.g.,

United States v. Phillips, 497 F.2d ISI (9th Cir.

1974); United States v. Davis, 461 F.2d 1026

(8rd Cir. 1972). —

19.

The Supreme Court has never directly ruled

on the existence or scope of such an arrest

warrant requirement, leaving the matter ina

somewhat uncertain state. See, United States v.

Baginet, 462 F.2d 982, 987 (8th Cir. 1972).

However, as stated in Coolidge v. New Hampshire,

supra at 480, Warden v. Hayden, 387 U.S. 2594

(1967), where the court emphasized a "hot

pursuit" justification for the police entry into

defendant's house without a warrant for his arrest,

clearly stands by negative implication for the

concept that an arrest warrant is required in the

absence of exigent circumstances.

In Coolidge a persuasive argument was

advanced in favor of an arrest warrant require-

ment before entry into a suspect's house. After

noting the traditional distinction made between

searches and seizures that take place on a man's

property and those carried out elsewhere, the

Court stated, 403 U.S. at 477-478:

It is clear, then, that the notion

that the warrantless entry of a

man's house in order to arrest

him on probable cause is per se

legitimate is in fundamental

conflict with the basic principle

of Fourth Amendment law that

searches and seizures inside a

man's house without warrant

are per se unreasonable in the

absence of some one of a number

of well defined "exigent

circumstances."

The court reasoned, without deciding in favor

of the converse, that if this "fundamental conflict"

were resolved by declaring per se reasonableness

of both warrantless arrests and searches, given

probable cause, "we would simply have read the

Fourth Amendment ~~: - the Constitution. Id.

at 480.

The clear implication of Coolidge, Warden,

the rules adapted by the several circuits, and

the basic principles underlying the Fourth

Amendment is that, absent exigent circumstances,

an arrest warrant must be required before entry

into a man's home for the purpose of arresting

him. Assuming, pro arguendo, that probable

cause to arrest may ‘e found, the arrest warrant

requirement certainiy should have applied in the

instant case in light of the officers' warrantless

entry into petitioner Gilmore's home,

warrantless despite the fact that they believed

for several days prior to the entry that illegal

activity was being conducted therein. The

validity of the warrant requirement here was

impliedly recognized by the Court of Appeals'

ciscussion of exigent circumstances

(Memorandum Decision at page 2), and such

recognition was proper.

Thus, the question of whether exigent

circumstances, sufficient to excuse the arrest

warrant requirement were in existence must be

considered. It seems apparent that should an

arrest warrant requirements be recognized,

exceptions to the requirement in cases of exigent

circumstances would similarly be recognized;

in fact, circuits which have adopted an arrest

warrant requirement have so ruled. See, e.g.,

Dorman v. United States, supra at 391. While

the scope of the exigent circumstances available

to excuse an arrest warrant may vary from

warrantless search situations, the same general

guidelines should apply due to the similarity of

purpose and underlying principles.

Absent a warrant, there are only a few well

established and defined situations where a

warrantless search will be excused. Valev.

Louisiana, 399 U.S. 30, 341970). The

exceptions to the warrant requirements are

jealously and carfully dravm and there must bea

showing by those seeking the exemption that the

exigencies of the situation made that course

imperative. Coolidge v. New Hampshire, supra

at 455.

Vale v. Louisiana, supra at 34-35, discusses

the various circumstances considered to be exigent,

including consent searches, response to an

emergency, hot pursuit of a fleeing felon, goods

in the process of destruction or goods about to be

removed from the jurisdiction.

Although raised by the government, below,

the Court of Appeals rightly did not rely upon

either of the latter two grounds. The cases cited

in Vale well demonstrate that unless the government

can show a real, as Opposed to an assumed,

possibility of immediate destruction or removal

under these rationales, the failure to obtain a

warrant will not be.upheld. United States v.

Jeffers, 342 U.S. 48 (1951); Chapmanv. United

States, 365 U.S. 610 (1961); Johnson v. United

States, 333 U.S. 10 (1948). The fact of prior

surveillance and opportunity to obtain a warrant

before the alleged "exigency" has often been stated

to render the absence of a warrant inexcusable,

despite "new" developments immediately preceding

the entry. McDonald v. United States, 335 U.S.

451 (1948); Ker v. California, 374 U.S. 23, 42

(1963). As stated in Johnson v. United States,

supra at15, citing Taylor v. United States,

285 U.S. 1 (1932):

No reason is given for not

obtaining a search warrant except

the inconvenience to the officers

and some slight delay necessary

to prepare the papers and present

evidence to a magistrate. These

are never very convincing reasons

and, in these circumstances,

22.

certainly are not enough to

by-pass the constitutional

requirement. No suspect was

fleeing or likely to take flight.

The search was of permanent

premises, not of a moveable

vehicle. No evidence or contraband

was threatened with removal or

destruction, except for the fumes

which we suppose in time would

disappear.

The agents in the instant case likewise had no

valid reason for failure to obtain a warrant,

especially if possible destruction or removal of the

contraband is offered as an excuse therefor. The

agents had five or six days, prior to the alleged

"sudden" arrival of the last marijuana shipment,

in which their informant had told them of illegal

transactions occuring in, and illegal contraband

resting in, petitioner Gilmore's home, during

which time they surely could have tested their

information for probable cause before a

disinterested magistrate. Furthermore, there was

never any suggestion that the petitioners suspected

Mitchell of duplicity at the time of the entry -

rather, it is entirely reasonable to believe that

the purported sellers of contraband were prepared

to wait for the expected buyers, and to not move the

marijuana from the house.

Clearly, the officers had more than

sufficient time to request a warrant and this,

especially when considered with the unlikely

prospect of destruction or removal of the

contraband, makes failure to obtain a warrant

inexcusable on these grounds. These factors

clearly distinguish the instant case from United

States v. Bustamante-Gamez, 488 F.2d 4 (9th

Cr. 1973), the only case cited by the Court of

Appeals as an applicable example of exigent

circumstances, which was expressly stated to not

23.

be a situation in which probable cause was obtained

through normal investigative procedures, where a

warrant must be obtained. Id. at 8. In the instant

case, if probable cause was found at all, it was

through such procedures, time was not of the

essence - at least with regard to the contraband -

and the warrant requirement could not be excused.

These same factors also distinguish this case

from the many cases in which the lower courts have

almost automatically found exigent circumstances in

narcotics violations. See United States v. Davis,

461 F.2d 1026, 1031-1032 (3rd Cir. 1972). Such

cases, rather than narrowly drawing exceptions to

the warrant requirements, as mandated by

Coolidge, seem to replace the exception for the

rule, are contrary to Supreme Court guidelines

and the protection guaranteed by the Fourth

Amendment, and should not be controlling here.

Similarly, the exception to the warrant

requirement which was relied upon by the Court of

Appeals here, that the requirement of a warrant is

excused in the case of an emergency, should not be

applicable here. Furthermore, to approve the

application of the exception as developed here would

dangerously undermine much of the protection

provided by the Fourth Amendment.

The emergency exception contemplated in

Vale v. Louisiana, supra, is that described in

McDonald v. United States, supra at 454, "a case

where the officers, passing by on the street, hear

a shot and a cry for help and demand entrance in

the name of the law." Just as the Court in

McDonald rejected the claim of emergency due to

the fact that the officers had more than adequate

time prior to the so-called emergency to obtain a

warrant, so it should be rejected here.

But a further, and more important, reason

exists for rejecting the emergency exception in this

24.

case. The alleged emergency, that "[I]f the agents

had moved in quickly, the informant would have

been endangered" (Memorandum Decision at page

2). was created entirely by the actions of the

officers. Had the officers suggested any other plan

to the informant, such as telling the parties in the

house that he was going to meet his "business

partners" and would return with the money in

several hours, the emergency would have been

avoided —- and the agents would have had sufficient

time to obtain a warrant. Instead, the one plan

which would endanger the informant and create an

"emergency" was selected: to tell the parties in

the house that they could expect delivery of the

money immediately. In that manner the informant

became "endangered" should there be any delay,

and the warrantless entry was sustained. The

approval of such actions as exceptions to the

Fourth Amendment amounts very nearly to the

sanctioning of warrantless searches and arrests.

The lower courts have rejected claims of

exigent circumstances which are the direct result

of officers’ actions. In United States v.

Bustamante - Gamez, supra at 8 n.4 it was stated:

"We have no doubt that the officers were making a

good faith atternpt to locate the car; they were not

creating exigent circumstances. A different case

would be presented if there were the possibility of

abuse." Similarly, in cases in which the exigent

circumstance, the possibility of destruction of

evidence, is due entirely to the presence of officers

who would otherwise have required a warrant, it

has been held that "[I]f exigency arises because of

unreasonable and deliberate delay by officers, itis

not an exigent circumstance capable of dispensing

with the requirement of a warrant." United States v.

Curran, 498 F.2d 30, 34 (Sth Cir. 1974). Accord,

Shuey v. Superior Court, 30 Cal.App.3d 535

(1973); United States v. Scheffer, 463 F .2d 567

(Sth Cir. 1972), cert. den., 409 U.S. 984 (1973).

Such was the case here.

25.

In considering the almost automatic

exceptions to the warrant requirements in

narcotics cases, and similar exceptions in

officer created exigencies, the statement of the

Court in Coolidge v. New Hampshire, supra at

481 should be noted:

[The warrant requirement] is not

an inconvenience to be somehow

"weighed" against the claims of

police efficiency. It is, or

should be, an important working

part of our machinery of govern-

ment, operating as a matter of

course to check the "well -

intended but mistakenly over-

zealous executive officers" who

are a part of any system of law

enforcement. If itis to bea

true guide to constitutional police

action rather than just a pious

phrase, then "the exceptions

cannot be enthroned into the

rule."

Should the Court decide that an arrest

warrant is mandated before entry into a man's

house to arrest him is consistent with the basic

principles of the Fourth Amendment, but then

affirm or let stand a finding that an emergency

created entirely by officers’ actions may

constitute an exigent circumstance sufficient to

excuse that mandate would be to seriously

undermine prior Supreme Court decisions as well

as the entire notion of the Fourth Amendment

warrant requirement.

26.

CONCLUSION

For the foregoing reasons, the petitioners,

Gary Melvin Gilmore and Donald Day Brown,

respectively pray that a writ of certiorari issue

to review the decision below.

DATED: October 3l, 1975

. Ve S

Attorney for Gilmore

PATR J +F

Attorney for Brown

27.

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unitep STATES OF AMERICA,

Plaintiff-Appellee, No. 74-3380

= 75-1113

Gary MeLvin GILMore,

DoxaLp Day Brown

’ \ . .

Defendants-Appellants. [EMORANDUM

[May 29, 1975]

Appeal from the United States District Court

for the Southern District of California

Before: CHAMBERS, MOORE,*® and HUFSTEDLER,

Cireuit Judges

Defendants appeal from their convictions for conspiring to pos-

sess marijuana with intent to distribute and for possessing mari-

juana with intent to distribute (21 U.S.C. §§ 841(a) (1), 846). The

district court found defendants guilty on the basis of stipulated

facts. Defendants’ contentions concern the validity of the seizures

of marijuana.

Defendants’ first contention is that the agents lacked probable

cause to arrest. We disagree. The probable cause to arrest was

based on information supplied by the informant. While it is true

that the informant had not been used by the Government before

and hence was “untested,” the agents independently verified sev-

eral significant details of the informant’s story; the details cer-

tainly were not “innocuous.” (£.g., Musgrove v. Eymen (9th Cir.

*Honorable Leonard P. Moore, Senior Circuit Judge, 2d Circuit,

sitting by designation.

APPENDIX A

3 United States of America vs. Gary Melvin Gilmore, et al.

1971) 435 F.2d 1235, 1238; compare United States v. Larkin (9th

Cir. 1974) 510 F.2d 13 (verification of “innocuous” details not

corroborative) .' “Exigent circumstances” justified the agents’ war-

rantless entry of the garage to arrest defendants. (See United

States v. Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 7-9.) The

transaction commenced earlicr than the agents had anticipated. If

the agents had not moved in quickly, the informant would have

been endangered. He had promised the defendants that his (non-

existent) “business partners,” to whom he supposediy had just

placed a phone call (in fact, he had phoned the agents) would

arrive momentarily, and any delay could have placed him in seri-

ous Jeopardy. The marijuana in the garage was in plain view of

the agents when they entered to arrest defendants and therefore

was subject to immediate seizure.

Defendants’ second contention is that the search of Cilmore’s

house, pursuant to a condition of probation, was unlawful. We

agree. The search was not effected by or even with the authoriza-

tion of Gilmore's probation officer for a probation-related objective.

(See United States v. Consuelo-Gonzalez (9th Cir. en bance 1975)

F.2d... [Slip Op’n No. 73-2122].) We are convineed, however,

that the error was harmless because the bulk of the marijuana was

seized in the garage prior to the search of the house. There was

more than sufficient admissible evidence to sustain the convictions.

AFFIRMED.

1The informant was cooperating with the Government in an effort to

secure lenient treatment in a state (Connecticut) drug case, related to the

matters herein. Thus, the informant had little interest in communicating

false information to the agents.

VERNAU-WALSH PRINTING CO., SAN FRANCISCO 6-3-75—400

1 UNITED STATES COURT OF APPEALS

» 2 FOR THE NINTH CIRCUIT

3 we

‘ f UNITED STATES OF AMERICA, ) .

5 Plaintiff-Appellee, ; No. 74-3380

) No. 75-1113

6 Vv. )

7 f GARY MELVIN GILDORE, }

s DONALD DAY BROWN, ; ORDER

. Defendants -Appellants. ;

10

n Before: CHAMBERS, MOORE,* and HUFSTEDLER, Circuit Judges

i2

13 The pecition for rehearing is denied.

4 The full Court has been advised of the suggestion

15 for an en banc hearing. No judge in active seryjce has

16 voted to take the case en banc. The en banc supgestion is

7 denied.

18

19

20

21

22

23

24

25

26

27

28

2

30 =

zu *Honorable Leonard P. Moore, U.S. Circuit Judge for

32 the Second Circuit, sitting by designation.

APPENDIX B

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