Petition — Robinson v. United States

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Please return to: |

Office of the Solicitor

Room 5614

IN THE

SUPREME COURT OF THE UNITED STATES

JUNE TERM, 1976

wo. 75 -/F3)

AUBREY LEE ROBINSON,

DAWNA WINKLES ROBINSON,

WILLIE ALDORA WINKLES,

PETITIONERS,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

~ KNOX JONES

‘ Attorney at Law

/f 817 Pecan

iS McAllen, Texas 78501

512/686-1119

Attorney for the

Petitioners

SUBJECT INDEX

SUPREME COURT OF THE UNITED STATES TABLE OF AUTHORITIES, ,........ ii

JUNE TERM, 197! OPINIONS DION. .« sc cc cvcseenses kee

No. | red 0 a a rr

QUESTIONS PRESENTED FOR REVIEW. ... 3=5

—_—_— — —— ee

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED. .... . 5=6

AUBREY LEE ROBINSON, STATEMENT OF THE CASE. ...... . 6-10

DAWNA WINKLES ROBINSON,

WILLIE ALDORA WINKLES, ; REASONS FOR GRANTING THE WRIT... .10-17

PETITIONERS,

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UNITED STATES OF AMERIC

NDENT. APPENDIX B. . + eee eves evevese &

APPENDIX C. . © © es © © © © © © 8 © 0@aeZR

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

KNOX JONES ‘

Attorney at Law

817 Pecan

McAllen, Texas 78501

512/686-1119

~ s 2 .

Petitioners

TABLE OF AUTHORITIES

CASES

Aguilar v. State of Texas,

84 S Ct 1509 (1964), 378 U.S. 108

Draper v. United States

358 U.S. 307 (1959)

N.L.R.B. v. Amalgamated Clothing

Workers of America, 1970,

430 F 2d 966

Roviaro v. United States,

353 U.S. 53, 77 S Ct 623

Scher v. United States,

305 U.S. 251, 59 S Ct 174

Spinelli v. United States,

89 S Ct 584 (1969), 393 U.S. 410

Whitely v. Warden,

401 U.S. 560, 9 S Ct 1031 (1971)

United States v. Cantu,

(Sth Circ., 1975) 504 F 2d 387

United States v. Impson,

482 * 24 197 (5th Cire., 1975)

UNITED STATES CONSTITUTION

Fourth Amendment

Sixth Amendment

UNITED STATES STATUTES

21 usc 8841 (a) (1)

28 u Sc 81254 (1)

ii

11, 12-

13, 16

IN THE

SUPREME COURT OF THE UNITED STATES

JUNE TERM, 1976

No.

AUBREY LEE ROBINSON,

DAWNA WINKLES ROBINSON,

WILLIE ALDORA WINKLES, |

PETITIONERS,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

— —

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petiticners AUBREY LEE ROBINSON, DAWNA

WINKLES ROBINSON and WILLIE ALDORA WINKLES

respectfully pray that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Fifth Circuit entered on May 21, 1976.

OPINIONS BELOW

The Fifth Circuit Court of Appeals

rendered its opinion on May 21, 1976 by and

its overruling of Petitioners' Motion for Re-

hearing, said judgment being filed on the

same date. Said opinion may be found in

Appendix A annexed hereto. In overruling

said Petitioners' Motion for Rehearing, no

authority was cited by the Fifth Circuit;

however, in its original denial of relief

dated April 27, 1976, the Fifth Circuit

affirmed per curiam, citing N. L. R. B. v.

Amalgamated Clothing Workers of America,

1970, 430 F. 2d 966. (See Appendix B). A

Memorandum Opinion, written by the United

States District Judge, the Honorable Owen

D. Cox, after the trial in this case is

also attached hereto as Appendix C.

JURISDICTION

On April 27, 1976, the Fift: Circuit

Court of Appeals entered judgment affirming

the criminal convi.tions of the respective

Petitioners for pos ‘sion with intent to

distribute approximateiy 154 pounds of

marihuana in violation of 21 United States

Code, Section 841 (a) (1). (Appendix B).

ole

The jurisdiction of this Court is invoked

under Title 28, United States Code, Section

1254 (1).

QUESTIONS PRESENTED YOR REVIEW

1. Whether the Fifth Circuit Court of

Appeals correctly decided that the rights of

the respective Petitioners under the Sixth

Amendment of the United States Constitution

had not been violated by rendering its per

curiam affirmance. Restated, whether the

failure of the Trial Judge to sustain

Petitioner's Motion to Disclose the Identity

of the informant was in violation of the

Sixth Amendment right of the respective

Defendants to be confronted with the wit-

nesses against him, where the information

provided by the informant was hearsay upon

hearsay, and where the probable cause for

the search in question was based solely upon

said hearsay information and was not corrob-

orated by the arresting officers.

2. Did the Fifth Circuit Court of

Appeals err in its affirmance of Petitioner's

a%e

respective convictions where the Record

clearly shows that the failure to sustain

Petitioners' Motion to Suppress the subject

evidence in question was in violation of,

Petitioners’ Fourth Amendment rights, pro-

tecting them against unreasonable searches

and seizures? Restated, did the Fifth

Circuit Court of Appeals commit error where

the search and seizure in question was made

without a warrant and was predicated solely

upon the hearsay information of a so-called

reliable informant, where it is admitted and

the Record clearly shows that said informant

did not have personal knowledge about the

information he gave?

3. Did the Fifth Circuit Court of

Appeals err by and through their per curiam

affirmance of the Trial Court's adjudication

of ruilt as to the passengers in the auto-

mobile in question, to-wit: AWNA WINKLES

ROBINSON and AUBREY LEE ROBINSON, where the

Record is devoid of evidence to exclude the

hypothesis that the driver was the sole

possessor of the contraband in question?

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The Sixth Amendment to the United States

Constitution is pertinent hereto which reads

as follows:

"In all criminal prosecutions, the

accused shall enjoy the right to 4a

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed, which district

shall have been previously ascer-

tained by law, and to be informed

of the nature and cause of the

accusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining

,

witnesses in his favor, and to have

the Assistance of Counsel for his

defense." (Emphasis supplied).

The Fourth Amendment to the Constitution

of the United States is likewise pertinent to

this case and reads as follows:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

oSe

unreasonable searches and told this agent that there was a man by the

seizures, shall not be violated, name of Aubrey Robinson and three other

and no Warrants shall issue, but 7

persons at the Palm View Motel in McAllen,

upon probable cause, supported .

exas in Rooms 209 and 210. This f t

by Oath or affirmation, and : his informant

particularly describing the place further stated that the people in the motel

to be searched, and the persons were there for the purpose of transporting

"

or things to be seized. a quantity of marihuana to the state of

. oh sc t 84 9

As aforesaid, 21 US C, Section 841 (a) Alabama. A car description was given, as

(1) is also pertinent hereto and reads as well as the license plate. Government

follows: agents set u :

gents set up surveillance and one of the

" + ( | .

Except as authorized by this agents was subsequently notified that four

sub-chapter, it shall be unlawful

persons had left the motel in the subject

for any person to knowingly or

intentionally (1) to manufacture,

distribute, or dispense, or direction near Expressway 83, McAllen, Texas.

e

~ »

automobile and were proceeding in an easterly

ossess with intent to manufacture ; ;

, ; The initial surveillance was subsequently

distribute, or dispense, a con-

" lost; however, at approximately six o'clock

trolled substance;

STATEMENT OF THE CASE pem., this same government agent was again

The facts of this case, as testified to contacted via radio and informed that the

by witnesses for the Government, reveal that subject automobile was proceeding north on

the investigation of the case began about Highway 281 towards San Antonio, Texas.

three o'clock in the afternoon on September This agent was further informed that the

11, 1974 when one of the agents received a surveilling officer could see only three

phone call from an informant. The informant occupants in the automobile. The subject

-6- ~ oo

automobile continued north on Highway 281 and

passed through the Border Patrol Checkpoint

located approximately 10 miles south of

‘slfurrias, Texas unmolested due to the fact

that the checkpoint was not operating at that

time. Assistance from other government

+

acents was subsequently requested anda the

at which time the vehicle was stopped. At

trial, one of the government agents testified

that the reason the vehicle was stopped was

because he discovered that there were four

occupants in the auomobile. Apparently, this

factor constituted the sole corroboration ol

the hearsay information which had been

2ceived by the government's informant.

A search was conducted, the back seat

of the vehicle was removed revealing marihuana

in the vehicle. The Record indicates that the

entire initial conversation between the

rovernment agents and the Petitioners took

ithinr sec s di ich time

place within 30 seconds during which

mY:

the search was initiated. Petitioners were

then placed under arrest and subsequently

indicted “or violation of 21 U S C, Section

841 (a) (1) (supra).

At trial on the merits, tn United States

District Court, it became apparent that the

subject informant was not relying on any

information which he knew of his own personal

knowledge but, to the contrary, was relying

on hearsay information that he had been told

by an unknown third party. At the outset of

cross-examination, the following colliquy

takes place:

"Q Okay, and going back to the

exact information that was relayed

to you by this reliable informant,

Mr. Murray, could you tell me how

your informant received your

information?

A My informant was told that

there was a narcotics transaction

occurring and who was participating

in it." (emphasis supplied)

Further cross-examination amplified the

fact that the informant's information was

o9e

totally based on hearsay:

"A The information tha*t the

informant passed to me, he had

received from another party.

Q From another party, period?

A Yes." ia

The Record further reveals that ‘he

Petitioner, WILLIE ALDORA WINKLES, was the

iriver of the auomobile and that the Peti-

Vv

y

tioners, DAWNA WINKLES ROBINSON and AUBRE

LEE ROBINSON, were passengers in said auto-

mobile.

Petitioners were nevertheless convicted

for violation of 21 US C, Section 841 (a)

(1) (supra).

REASONS FOR GRANTING THE WRIT

Petitioners and the undersigned counsel

recognize that a petition for writ of

certiorari is a matter of sound discretion

of this Honorable Court and that they will

not be afforded any further relief as a

matter of right. Petitioners respectfully

assert that the Honorable Fifth Circuit

Court of Appeals has misapplied the

elite

substantive law in the instant case, denying

Petitioners both their constitutional rights

to have confrontation in a criminal proceeding

and, further, to be free of unreasonable

searches and seizures.

The predicate upon which the Government

relied to admit the foregoing hearsay testi-

mony of the informant does not meet the twoe

pronged test of either Aguilar v. State of

Texas, 84 S Ct 1509 (1964), 378 U S 108, or

Spinelli v. United States, 89 S Ct 584 (1969),

393 U S 410. Petitioners respectfully assert

that the instant case should be governed by

the case of Whitely v. Warden, 401 U S 560,

9 S Ct 1031 (1971). In Whitely, a sheriff

received a tip upon which he swore out a

complaint. Subsequently, a police radio

bulletin alerted area officers to be on the

lookout for the individuals described.

Another sheriff arrested Whitely on the basis

of the radio bulletin. This Court stated

that the underlying information must be

examined in order to determine if probable

attic

cause existed. The following quotation is

germane:

"But the additional information

acquired by the arresting officers

must in some sense be corroborative

of the informer's tip that the

arrestees committed the felony or

as in Draper were in the process

of committing the felony."

(emphasis supplied).

The following language from Whitely

clearly provides the mandate for the instant

case:

"In the present case, the very

most the additional information

tended to show is that either

Sheriff Ogburn, or his informant,

or both of them knew Daley and

Whitely and the kind of car they

drove; the record is devoid of

any information at any stage of

the proceeding from the time of

the burglary to the event of the

arrest and search that would support

either the reliability of the

informant or the informant's conclusion

nite

that these men were connected

with the crime."

The above quotation is directly analogous

to the instant case ana the facts herein are

even more graphic, in that the Record conclu-

sively establishes *hat the informant who made

the telephone call to the government agents

had no personal knowledge whatsoever of any

of the information that he supplied to the

agent. Furthermore, the only information

that the Drug Enforcement agents had, which

was hearsay on hearsay, was to the effect

that a described automobile with four occu-

pants would be leaving the Rio Grande Valley.

There is no evidence whatsoever to show or

even suggest the actual informant's reli-

ability.

In United States v. Impson, 482 F 2d 197

(Sth Circ., 1973), the Fifth Circuit specif-

ically held:

"But if that (the information

received) is the sole cause for

the detention and resulting

search - as it apparently was

oi3<

here - then the Government has

the burden of showing that the

information on which the action

was based itself had a reason-

able foundation." (emphasis

supplied by the Court)

Petitioners respectfully assert that this

incumbent burden upon the Government was

totally lacking in the case predicating this

petition for writ of certiorari. The Trial

Court's Memorandum and Order (Appendix C)

found that there was "probable cause" to

conduct the search in question. This finding

was predicated solely on the information

furnished by the alleged "reliable informant".

Specifically, the Trial Court held:

"This conclusion is based upon

the Court's determination that

the information (furnished by

the informant) which Murray had

was sufficient to warrant the

surveillance, and such informa-

tion gave the DEA agents the

probable cause needed."

(emphasis supplied)

atte

Petitioners submit that in fact there is

no evidence in the Record to establish

"probable cause", save that of the information

provided by the alleged "reliable informant".

Petitioners accordingly submit that the Fifth

Circuit Court of Appeals erred by their

affirmance of the Trial Court's failure to

require the disclosure of the identity of the

informant, requested by motion of Petitioners.

Petitioners were thereby denied their right of

confrontation as guaranteed by the Sixth

Amendment of the United States Constitution.

It is a well-established principle of law that

the Government is required to disclose the

identity of the informant when there is a lack

of independent evidence to otherwise establish

probable cause. Roviaro v. United States, 353

U. S. 53, 77 S Ct 623; Scher v. United States,

305 U. S. 251, 59 S Ct 174.

The Trial Court has placed heavy reliance

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

(1959). Petitioners respectfully assert that

there is no correlation between Draper and

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CONCLUSION

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Rar the fr are [ ac - “hie Peat it

ror the foregoing reasons, this Petition

for Writ of Certiorari should be rranted in

order ¢ resol e® import t xth and

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Petitioners’ re 2 lv indi ent

_ s

IN THE UNITED STATES COURT OF APPEALS

‘ FOR THE FIFTH CIRCUIT

U. S. COURT OF

APPEALS

FILED

MAY 21, 1976

No. 75-3221

EDWARD W. WADSWORTH

CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V.

AUBREY LEE ROBINSON,

WILLIE ALDORA WINKLES, and

DAWNA WINKLES ROBINSON,

Defendants-Appellant

Appeals from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

May 21, 1976

Before BROWN, Chief Judge, JONES and GOLDBERG,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for re-

hearing filed in the above entitled and

numbered cause be and the same is hereby

DENIED.

(Appendix A)

-19-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FiFTH CIRCUIT

DO NOT

PUBLISH

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V.

AUBREY LEE ROBINSON,

WILLIE ALDORA WINKLES,, and

DAUNA WINKLES ROBINSON,

Defendants-Appellants

Appeals from the United States District Court

for the Southern District of Texas

(April 27, 1976)

Before BROWN, Chief Judge, JONES and GOLDBERG,

Circuit Judges.

l/

PER CURIAM: AFFIRMED. See Local Rule ei.

~R.B. v. Amalgamated Clothing

of America, 1970, 430 F. 2d 966.

(Appendix B)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

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AITRBEY tree paorire

\UBREY ~ _ROBINSON,

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DAWNA WINKLES ROBINSON,

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AND NILLIE ALDORA WINKLES

Wiad it ca = VilA A SS PSS SPT eS)

MEMORANDUM AND ORDER

Pa)

me

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at ocies -_

be . i

me Wak s /s/Sue MeCall

none c an? , : le ) TT

pounds / . may ihuan la, in Violation Ol ea weWeWwes

S841 (a)(1).

On the 2lst day of April, 1975, at doc

call, all three Def endants, all being represe

by the same attorneys, appeared before the

Court. Each Defendant waived a jury trial

executing a formal written waiver of jury,

(Appendix C - Page 1)

atie

by

which was consented to by the United States

in writing and approved by the Court. The

g

And -« T1 59 O7¢

on nday, June 23, 1975

- - a : —

These Defendants had previously led

on + ~ a a ler

a TOLINU (oh omit nN ae suppress ana 24 0U 1 yin

the identity of an informer. At the commence-

ment of this trial, the Court announced that

it proposed to carry the motion to suppress

and also the motion to di the identity

of Yr ormer al ng with ase on +he

At this point, the Court wishes to point

out that the Defendants contend their motion

to suppress the 154 pounds of marihuana should

be granted because the seizure on the United

States Highway 44 near Robstown, Texas, was

unlawful, there was no warrant for an arrest,

no probable cause for the arrest, and no

probable cause for the search of the vehicle

and the seizure of the contraband.

(Appendix C - Page 2)

afte

Further, the Defendant -have based their

motion to disclose the identity of an informer

on the representation that the testimony of

the informer would be vital to the defense of

these Defendants, that this evidence which the

informant could give would relate to the

government's attempt to establish probable

cause from the information received from the

informer; and further that the informer was

an active participant in the transaction

In view of the importance of these two

motions to the final decision in this case,

the Court will first make findings of fact

and consider them in the light of said

motions.

The first witness called by the govern-

ment was Murray, an agent of the Drug Enforce-

ment Agency who had been working in the Valley

for about four years. He had received a call

from an informant at approximately 3:00 p.m.

on September 11, 1974. Murray testified this

informant had previously given reliable infor-

mation to him in about fifteen cases involving

(Appendix C - Page 3)

223

criminal matters. The informant told Agent Powell, another agent. Powell went to the

Murray that he had been told Aubrey Robinson motel parking area. He observed the Plymouth

and three other persons were staying in Rooms leaving the motel and he saw only three people

209 and 210 at the Palm View Hotel in McAllen, ’ in it. He lost sight of the vehicle, however,

Texas; that they had a 1972 Plymouth with on the interstate highway frontage road, and

Alabama license plates, IC 4529, and they had radioed this information to Murray. Powell

available another vehicle with a license then set up surveillance on U.S. Highway 83

plate KKX 498. The informant further stated near Alamo, Texas. Special Agent Moore over-

that these individuals were going to "import heard the radio conversations between Powell

juantity of marihuana”™ back to Alabama. and Murray about the Alabama Plymouth, and he

This language implies the load to be more offered to help. He was asked to maintain

than a few cigarettes. surveillance (1st north of Edinburg on U.S.

Based on this information, Agent Murray Highway 281 in the event the Alabama Plymouth

went to the motel and he saw the Alabama car took that route out of the Valley.

in the parking area near the rooms in which Subsequently, that evening about 6:00

the individuals were reportedly staying. He p.m., the DEA office in San Antonio relayed

verified that the hotel rooms 209 and 210 information to Murray from Moore that he had

had been signed for by Robinson. The Texas- ‘ seen the Plymouth and it was heading north

licensed vehicle was never observed by him on from Edinburg. When Moore saw the Plymouth

that occasion or on any other occasion. just north of Edinburg, it was on said Highway

Agent Murray then returned to the DEA 281 and there were only three people visible

office. He explained the information he had in tne car. He followed the Plymouth for

and enlisted surveillance help from John about ten miles. Agent Wilkins was also on

(Appendix C = Page 4)

othe. (Appendix C — 5)

surveillance north of Edinburg, but he was

traveling behind Moore.

TLlhes ’ - - pe 7 £ ~ - : A 1a mo

When the agent following the Aiabdama

Plymouth could only see three persons ir he

car as it proceeded toward Falfurrias, Murray

testified they decided not to stop thé hicle

but to wait and see if the fourth member f

the group would join the other tnre 1t son

point up the road. 0; Moore itinued tc

follow the car norwn from Edinburg. As the

} : fr + : ’ Mi; ra aetonne = a

the side of the highway. "“oote stopped his

e e . P ie F . s ~, , . + . +’

vehicle about one-half to three-quarters 04 2

4 ¥ Y Y Oe

mile back le observed the people in vile

D 7 - ‘ien ) qarnc aYN Ati read +hnea

Plymouth through binoculars and noticed tne

~ * vn ‘

two in the front sea } he

) - - avs

person in the back seat ana appeared to D

talking, and the one in the back seat

out of the rear window. Then, the Alabama

Y

-

.

\

Plymouth took off at a high rate of speed

and Moore Was unable to follow close behind.

He lost sight of the car. He increased his

speed to about 110 mph and when he again

- Page 6)

|

4

-26-

(Appendix

sighted the car it was travelling about 50-55

mph. He followed them on to Alice and then

over toward Robstown. There were four persons

section of IH 37 and Highway 77, and there

stopped the Plymouth. By this time, Agents

jointly by them and Murray.

Agent Dracoulis approa

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Alabama Plymouth first and then the other

officers moved in. Mrs. Winkles had beer

driving and Robinson was in the front seat

with her; the other two were in the back

seat. When the agents reached the Plymouth,

all of the occupants got out of the car and

Agent Dracoulis asked for the car keys. The

driver gave him the ignition key and said

the other keys had been stolen. She explained

they had left the keys in the car while they

were loading and they were taken but they had

a spare ignition key in a hide-a-key container.

(Appendix C - Page 7)

afte

f 1 in tr by the Willie! ]

_ - pw 4 q rr) { nN yy i ‘ J 71 ie a rwiirena +hare wwac - Kn + 4 - Ante atn’ -

No such conta ner was touna 4 Willie's purse tnere Was a Dottie convailinill}

>

‘ . ‘es . : ° 9 . on _

pp 4 O of the ag s went into the hlac : = nreacertihed for Dawn: ,

; officers. One of the a env ; black pills prescribed for Vawna, ana Unel

t and opened it

; - ca U - ~ ~ . a | o a : . ‘rT. > *s

anil 9 - + be k ¢ a e me ten mand’ hiuan: titmneanmtnweaea 4 ’

Crunk Phrougn the ac sea s t were ,ls0o0 marinuana Sweepinges Lj2 was i ¢

- i

° } an ay A er sack e + 28 : " . . .

es ~ -ed burl bas d paper ac nlre wet 2 at sha elaime $ —— 7 oe ,

ne discovere Dur a ags ai A VDUL SES 5 WiliCll of sLlaimed \ Ww 1s HivoU , @

along with several : .

Qe _ - h the ™ "i al ¢ 7 | © b Wivii oVwv\ ¢ tT + alata ce y* Lraneo +har ‘ . $ ir + +

filled with the marihuana, aiOng he front seat were other piiisS iik 1OS*

, nm} Cr) this

a + . r .

nieces of lugeage in the trunk. On nis Found 3 Jillte's purse

HLeECEesS lL UBBCS~ 9 i J+ \As aA A i wie to " ) Ai J .

_ ——e Le a

: - N ala sae anid OV 1S v Lit \ + + c V1 5 ¢" : r le

-casion, mrs Winkles saia »oviouUusily At the conciusion C vn yvernment' s

=)

+

’ 2 : . = we rAtuwre)e an et -~

—- , he etolen TNE car KEYS Na 40+ ¥ 14 c¢ »} fFandant mov : >4 y

Der s Ti whe naa a Ne A 4 Wad 7 . A | AU ad UC Cliisiaisv Vv } Ne A

my . =~ + ¢ mor” Tt

. - . r n747 Cc . Te ¢ 1 . 5 . . "

SW ana Be Tne TYrUuUNA LA s4iw pla v Yormoayr * , m1niI9a TT eZ , ‘ ~Y + +" :

the marinuana Lr) ull LUDUIN. s .) “aU ler L 1 JUL i J Ud. A | 218 L A

+ } ao, + -

» + o Were nay,

wWaQac ) r nrTreer stat emer made . nel Av A ¢° T } bal rarnmoan?t T ‘ + * mi ; y Tt Wheé $A 4 ,

Wa »y volunteer vv [ ne yvernmen OL1SN nN Va Livy

2 +

7 . . anh eat nd 2 " v * °

& 2m- ar} ¢ n + } QO 1ren S were hE ie ADwo saiiP mel: ° + P — ala: 7 ow +hno r _ +} y - } re

CL 1me Wc Ul C aa . A & A wha i + i A a4 LA 4 * A

. + ta?“

‘ " A AY ° yY ra . 2

ari niwuana amone t hemselves ° ‘ Jia AL UVE Wal , j on al. mmnrTrranangda: Tr ) 14+ g Tr Y T

iarinualiada Liik I 4 a4 4 P| LAWVaAssA gy wad 4 A y 4 s

=

1 4 —eamin ont

4 nts In mrnineces we yY’ € read J cawvidi 4+ +) T - y | r+ . y ; . a“ +

@' iiranda WwW 17°c a bss ee) WOol & . » Y si L/¢t i < MA 5 1iiuA » et > \ a> \A L8G

—————

. mT} Lone caveral suite —_—

4- } — NMatonniar ? 2 inere Wo ls wuwv + & 7 ‘ vw , oF I re . + + = tre y, + 14 , - ‘ —

nese VeLlchiudisvers ‘ ‘= ™ Ai + AL ; ad v i A ha A vA .< ial .

} pe ee n

. +} ywr1Y 4 QY 7d late Yy° Ori at tne ) ic > ~, ° al $n ft yor y) + ee | ry f + T

E - os , re! I ’ > rb vy e b }

1Sesk Ly) ei. 1 ALIN Aid A > s ii , i iaaa , Wail Wii i 2 i Dy ¥ r A

P . - wm fe UF cQ : . . : °

° “ TY _ Cnt AY r,eomMmen>r c Cy the ra TT RY T Y > Ariat? + ¥ *’ Y y r ; ]

the Drug Enforce t Agency, stten the riginal infor Lo! bou h

O28 yw 4 A ul Plot! Ine

ry Sas i: ~ + ~ 4 IpY + 4 f 1ea h pas 5wn Saw Y Lili, « Ty msa (tan my Cc \ “a ni r +» ? ry | y al

ve en ari = Uciivast + Liiwave VA sso eo AL 5 4 ¥ 4 A 1 a4

> y?

- — a _ nerson ove! ° r . . °

_ . & } Sy Y) r n is >) +) |) 4 y lian t a a) ~ 4s Ane ,434 +} + + as

Defendant R WW psiwoss 1aa Wad a4 Bele We © ANA iii / 4 vs Jiar ‘. 4 Li y 4 I l

a» ati : sa 4 @ea » ¢ Aan’ ~ $ nat 4 + + a> Ff r +

$1,000 in cash. Li Ci € 5 1eny x 1id me j yr) a ; ne Lili rie

.

+ 4 c Dé Wr)

+ _ tng the PONePrCLES of iwtlida : y . nf « s + Ac $ } T rc

in se —rrcning cne pl yperri jud men Ol —23cquittai was aeniea. ine yern=

s } b i ine YUUT > navineg now revie wed do I

114 arih » cigarettes; in — :' ee 3

used in rolling marihuana cigaretver; the facts in the case, has neluded the

/ nZ 124 = .

(Appendix C = rage 9)

motions were properly denied and the contraband

is properly in evidence. This conclusion is

based upon the Court's determination that the

information which Murray had was sufficient to

warrant the surveillance, and such information

gave the DEA agents the probable cause needed.

Other activities of Defendants, after they

bo

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ct

ry

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Palm View Motel, supported the

probable cause. The exigent circumstances

required stopping the vehicle, arresting

these Defendants, searching the vehicle, and

seizing the contraband. Carroll v. United

States, 267 U.S. 132, 153-162; Chambers v.

Maroney, 399 U.S. 42, 47-51; United States v.

MeCann, 465 F. 2d 147 (5th Cir. 1972); United

States v. Horton, 488 F. 2d 374 (1973).

Further, there was no evidence which

indicated the name of the informant should

have been divulged. The Defendants obviously

wanted to try the informant and his informant

and to make an issue of their credibility,

but the Court considered such procedure

unjustified. The informant's information

(Appendix C = Page 10)

-30-

proved accurate, as is attested to by the cor-

roboration of various items of information which

he supplied and by the seizure of the contraband

marihuana. There was no testimony which sug-

gested the informant ad any information which

might have provided the Defendants with leads

to assist with their defense. The informant

had bought none of the contraband, had not

participated in the negotiations for the pur-

chase of the contraband, had not been actively

involved in surveillance of these Defendants.

He was not present when the Defendants were

arrested. This informant was nothing more

than an informer, and no disclosure of his

identity is required. United States v. James

Thomas Clark, 482 F. 2d 103 (5th Cir. 1973);

United States v. Mathew McGruder, et al, No.

74-3903, United States Court of Appeals,

Fifth Circuit, June 23, 1975.

The Defendants make much of the hearsay

aspects of the information which was given to

Agent Murray by the informant. These facts

had been told to said informant by someone

(Appendix C = Page 11)

a%ie«

else. So, they were not within the ieformant's and its license number, (2) the name of Robinson

actual knowledge. Because of this state of as one of the persons involved, (3) the Palm

affairs, the Court has reviewed the rules for View Hotel, and (4) the numbered rooms which

testing informer information which the Su

upreme , had been signed for by Robinson, the reliability

Court of the United States has provided in of the informant's sourse is certainly apparent.

Aguilar v. Texas, 378 U.S. 108, and Spinelli ! It is obvious that the person who gave such

v. United States, 393 U.S. 410. But the fol- hearsay to the informant was not relying on

lowing language of Spinelli, particularly, "casual rumor" or "an individual's general

which says the informant must rely on “some- reputation". Further, we point out Alabama

thing more substantial than a casual rumor people in McAllen, Texas, getting ready to

circulating in the underworld or an accusation haul contraband, would not likely be the

based merely on an individual's general reputa- principal characters in a casual rumor or have

tion" is not at all applicable to our case | a general reputation in the area as dealers

here We conclude the particular circumstances in contraband.

before this Court more nearly fit those in The Fifth Circuit Court of Appeals, in

Draper v. United States, 358 U.S. 307 (1959), United States v. Anderson, 500 F. 2d 1311

and it should be a starting point for us here. (Sth Cir. 1974), at page 1316, says, in a

It says hearsay information is not bad, per se, ; case with facts very similar to those with

and it can be relied upon in determining which we are hereby concerned:

probable cause if it comes from an informant "We believe that this corroboration

who has proved to be reliable. evinced a knowledge of the inner

> el Ww n the ellants' tem

After considering the accuracy of the orkings of the appellants’ syste

sufficient to dispel any believe

information about (1) the Alabama automobile

—— (Appendix C - Page 13)

(Appendix Cc - Page 12) i

-32-

the contraband

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[It is also ORDERED that the motion of

+ Not rts that the ae FP £ynFA t b

ats > : nA Y > > y mo mY)

Vise vetend Ristvw LUnav Vv 2¢ —AME Ol intormanv e

74+ cr ¢ ) } Ar + > ~ ryitr a)

Jivulged be. and it is hereby, aenied.

rT 4 : ra) »4 na ORNERET me + 4nn nt

Lt as urtne IRDERED tTnatv movion Ol

wh ¢ ic ~ + } . ca + ~ ¢ 7 -~fe -

made at the close of the government's case,

r > ne 5 + i neayre t de sf 2d

WO 5 Aisa Lv iw Sloss OV; nie .

. . " Ta i —_ tT ra) iaqanta }

All three of these Defendants nave

‘ ~ , 2 7 +4 +

+ +7 14 + a Qn , _ aa Yr) oc

been found guilty on all counts, as previously

Awmner ,Y) + [+ Le ~ *y ED + ¢

i 1no ynced Lr pen cour “94 4 i. ORDERE that

~ -£ » 4 - aa + aank + 7 +brioe T\o ff’ co Ae =

sentencins 1s to eacn one Ol -nese Detendants

} aA 44 to aa? hes i12e4 | 1 < c ¢

VO, wind itv iS, stl + ‘ly AUBZUSYL 4.5 1975, it

ordered to appear at such time.

Copies of this memorandum and order

shall be furnished to appropriate counsel.

SIGNED this 9th day of July, 1975.

/s/ Owen D. Cox - a

United States District Judge