# Petition — Cook v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 983

## Text

FILE

MICHAEL RODAK, JR_CLERK CLERK |

[treme Come |

7

Supreme Court
United States

OCTOBER TERM, 1976

am. No.vw6-1090

MARIANNE COOK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEAL FOR THE FIFTH CIRCUIT

MICHAEL J. OSMAN, ESQUIRE
BIERMAN, SONNETT, BEILEY,
SHOAAT & OSMAN, P.A.
Attorneys for Petitioner

600 Roberts Building

28 W. Flagler Street

Miami, Florida 33130

MIAMI REVIEW — 371-4853 — 377-3721

We Semel w -

INDEX
RSI Ane RTS Ee
I i inccssisiiabibtehcclesthnsnphcdbitihdendapieeinhaveeunetetilindisi
QUESTIONS PRESENTED FOR REVIEW ____
sername PROVISION INVOLVED _
STATEMENT OF THE CASE...
REASONS FOR GRANTING THE WRIT

CONCLUSION ... sei erialieliieenitelesateannionplap

ir
TABLE OF CITATIONS

Case Page

AGNELLO -v- UNITED STATES,

269 U.S. 20, 32-33, 46 S.Ct. 4, 70 L.Ed. 145

CHAPMAN -v- UNITED STATES,
365 U.S. 610, 615, 81 S.Ct. 776, 779 5 L.Ed. 436 15

CHIMEL -v- CALIFORNIA,

) f 6) See eae
COOLIDGE -v- NEW HAMPSHIRE,

403 U.S. 448, 468 (1971) . oe ke
DORMAN -v- UNITED STATES,

435 F.2d 385 (D.C. Cir.1970) == t—(ité‘iYs
GOVERNMENT OF VIRGIN ISLANDS -v-
GEREAU,

502 F.2d 914 (8rd Cir. 1974) 9, 20

JOHNSON -v- UNITED STATES,
333 U.S. 10,14 (1948) 13, 15, 16

JONES -v- UNITED STATES,
857 U.S. 493, 498, 788 S.Ct. 1253,
2 L.Ed.2d 1514 (1958) cas? ae
McDONALD -v- UNITED STATES,
335 U.S. at 454,69S.Ct.at192. 0s 14, 15

Ill
TABLE OF CITATIONS (cont.)

Case

McGEEHAN -v- WAINWRIGHT,
526 F.2d 397 (5th Cir. 1976) _..------.----------

RICE -v- WOLFE,
518 F.2d 1280 (8th Cir. 1975) —-.-..--------.

RODRIGUEZ -v- JONES,
473 F.2d 599, 605-06, (5th Cir.) cert. den., 412
U.S. 953, 98 S.Ct. 30238, 37 L.Ed.2d 1007

ee i lieciioateeibitednads
SCHMERBER -v- CALIFORNIA,

384 U.S. 757, 770-771, 86 S.Ct. 1826, 1835-

1836, 16 L.Ed.2d 908 _ pee LA SA

STONE -v- POWELL,
__ US. —, 96 S.Ct. 3037 (1976) __....------------

UNITED STATES -v- CRAVERO,

Appendix Page __........-----.-.-.------------ 9, 10, 11,

UNITED STATES -v- ERWIN,
507 F.ed 937 (5th Cir. 1974) -.

UNITED STATES -v- JAMES,
528 F.2d 999, 1017 (5th Cir. 1976)

UNITED STATES -v- JEFFERS,
243 US. at 62, 72.8.Ct. at 96

17

19

12

15

17

IV

TABLE OF CITATIONS (cont.)
Case
UNITE) STATES -v- LOONEY,

481 F.2d 31, 33 (6th Cir.) cert. den.
414 U.S. 1070 (1978)

UNITED STATES -v- SMITH,
515 F.2d 1028 (5th Cir. 1975)

UNITED STATES -v- UNITED STATES
DISTRICT COURT,
407 U.S. 297 (1972)

UNITED STATES -v- WATSON,
— U.S. — 96 S.Ct. 820 (1976) _...

VALE -v- LOUISIANA,
oe SE OF) ee

WARDEN -v- HAYDEN,
387 U.S. 294, 298-299, 87 S.Ct. 1642, 1645-
1646, 18 L.Ed.2d 782 ine 52 *

ZAP -v- UNITED STATES,
328 U.S. 624, 628, 66 S.Ct. 1277, 1279,
90 L.Ed. 1477 sntionciaeiiaele

17

17

13

21

14

15

14

in the
Supreme Court
of the
Anited States

OCTOBER TERM, 1976

MISC. NO.

MARIANNE COOK,
Petitioner,

v8.

TED STATES OF AMERICA,
— Respondent.

RI

PETITION FOR WRIT OF CERTIORA
TO THE UNITED STATES COURT

OF APPEAL FOR THE FIFTH CIRCUIT

The Petitioner, MARIANNE COOK, by undersigned

it of Certiorari
nsel, respectfully requests that a Wri

ios to review the Judgment of the United States Court
of Appeals for the Fifth Circuit and original opinion and
opinion on rehearing entered on August 6, 1976 and

January 7, 1977 respectively.

2
OPINION BELOW

The original opinion and the opinion on rehearing of
the Court of Appeals are not yet reported. Copies of the
original opinion, the opinion on rehearing and judgment
are included in the Appendix to this Petition.

JURISDICTION

The original opinion and Judgment of the Court of
Appeals was originally entered on August 6, 1976. The
Court’s order on rehearing was entered on J anuary 7
1977. On January 19, 1977 the Fifth Circuit entered an
Order staying its mandate as to the Petitioner, COOK
to and including February 6, 1977. This Petition was
timely filed. The jurisdiction of this Court is bazed upon
Title 28, United States Code Section 1254 (1).

QUESTIONS PRESENTED FOR REVIEW
I

DOES THE FOURTH AMENDMENT PRO-
HIBIT A POLICE OFFICER FROM ENTER-
ING THE RESIDENCE OF AN INNOCENT
THIRD PARTY TO EXECUTE AN ARREST
WARRANT FOR A SUBJECT THE OFFICER
REASONABLY BELIEVES IS WITHIN UN-
LESS EITHER (1) ENTRY IS MADE PUR-
SUANT TO A SEARCH WARRANT OR (2)
EXIGENT CIRCUMSTANCES MAKE THE
DELAY INCIDENT TO OBTAINING A
SEARCH WARRANT UNREASONABLE

3
I

ASSUMING, ARGUENDO, THAT A LAWFUL
ARREST WAS MADE IN THE LIVING ROOM
AREA OF PETITIONER’S RESIDENCE, WAS
THE SUBSEQUENT SEARCH OF THE MAS-
TER BATHROOM AREA BEYOND THE
SCOPE PERMITTED BY THE FOURTH
AMENDMENT WHEN THE RECORD ESTAB-
LISHES THAT THE ONLY STATED PUR-
POSE FOR SAID SEARCH WAS TO LOCATE
A SUSPECT FOR WHOM AN ARREST
WARRANT WAS THEN OUTSTANDING
WHERE THE OFFICERS LACKED PROB-
ABLE CAUSE OR REASON TO BELIEVE
THAT THE SUSPECT WAS WITHIN THE
PREMISES SEARCHED.

CONSTITUTIONAL PROVISION
INVOLVED

AMENDMENT IV

“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 affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.

4
STATEMENT OF THE CASE

In late March, 1974, the Drug Enforcement Ad-
ministration (hereinafter referred to as the DEA)
commenced an extensive investigation into the narcotic
activites of one Richard Cravero and his associates. The
DEA utilized a boat captain by the name of William Orr
as an informant in this investigation. During the latter
part of June, 1974, the DEA received information from
Orr that Cravero and his associates had successfully im-
ported a substantial quantity of cocaine into the South
Florida area by boat. After receiving this information
from Orr, the DEA decided to utilize Orr’s relationship
with Cravero in an attempt to learn where Cravero and
his associates had stashed the cocaine.

Pursuant to this plan, at approximately 7:00 p.m. on
July 14, 1974, agents of the DEA, assisted by local police
officers, surveilled a meeting of Cravero, Ronald Chandler
and Sharon Willets, (co-defendants of the Petitioner’s)
and Orr at a res...urant in Broward County, Florida.

After this meeting the police followed Cravero
Chandler and Willets, who had departed by automobile.
At approximately 9:00 p.m. this vehicle, followed by the
police, arrived at the residence of the Petitioner. Four
persons were observed by the police to exit this vehicle
and enter Petitioner’s residence. Cravero, Chandler and
Willets were positively identified by the police as being
in this vehicle just prior to the time it arrived at Petition-
er’s residence. The fourth person could not be identified at
that time. Up until the time this vehicle arrived at Peti-
tioner’s residence the DEA had no evidence linking the
Petitioner Cook to Cravero or any of his associates,

5

despite almost daily surveillance of all known associates
of Cravero from the commencement of the investigation.
Although the police were then in possession of arrest war-
rants for Cravero and Chandler,' no attempt was made to
execute any of the warrants from the time they were
issued and significantly between the time the meeting was
surveilled and the time this vehicle arrived at Petitioner’s
residence despite numerous safe opportunities to do so.
Execution of the arrest warrants was delayed allegedly
because an arrest would have disclosed the identity of the
informant Orr, and would have thwarted any chance the
officers had to utilize Orr to locate the cocaine.

Almost immediately after the vehicle arrived at the
Petitioner’s residence her home was completely surrounded
by approximately fifteen police officers. No attempt was
made by the officers to enter the Petitioner’s residence
upon their arrival. At 11:20 p.m. that same evening,
Cravero spoke by telephone from the Petitioner’s residence
to the informant Orr. Orr relayed his conversations with
Cravero to the officers on surveillance. As a result thereof,
the officers then became convinced that Cravero was
already aware of Orr’s role as an informant. Because Orr
could no longer be utilized as a source of information
that could lead to the location of the cocaine, a decision
was made to execute the arrest warrants that evening.
Entry of the Petitioner’s residence for the stated purpose
of executing the arrest warrants was delayed, however,
for approximately two more hours after the 11:20 p.m.

The arrest warrant for Cravero was a state warrant issued on
July 10, 1974 charging kim with possession of marijuana which had
been seized from a burning vessel on July 2, 1974. The arrest warrant
for Chandler stemmed from a totally unrelated federal narcotics indict-

ment.

phone conversation between Cravero and Orr. Despite the
fact that Petitioner’s residence was completely surround-
ed,? at no time did the police even consider obtaining
a search warrant authorizing their entry for the purpose
of searching for Cravero and Chandler. Neither was any
attempt made to order Cravero and Chandler to come out-
side so that the arrests could be effected without a
search warrantless entry of Petitioner’s residence. Instead,
at approximately 1:20 a.m. during the early morning
hours of July 15, 1974, when it became obvious that
Cravero and Chandler were going to stay at the Petitioner’s
premises indefinitely, the police decided to enter Peti-
tioner’s residence. Whea Petitioner opened the front door,
the officers announced they had arrest warrants; immedi-
ately were able to observe Cravero in the living room
area and Chandler near a doorway that leads to the
master bedroom; and without Petitioner’s consent, nor
any request for it, rushed into the house to arrest them.
After Cravero and Chandler were handcuffed, the officers
proceeded towards the master bedroom. As they approached
the bedroom door, Petitioner inquired whether the officers
had a search warrant to search her house. DEA agent
Fitzgerald advised the Petitioner that they were looking
for another suspect they had an arrest warrant for named
Donald Troise.’ When Petitioner refused to give her con-

*The Fifth Circuit Court of Appeals concluded that there were no
exigent circumstances present in this case that could make the delay
incident to obtaining a search warrant unreasonable. See, U.S. v. Cra-
vero, footnote 24, Appendix pg. 13.

*Troise had been observed in the company of Cravero earlier that
same evening in the vehicle that Cravero, Chandler and Willets entered
after the meeting with Orr at the restaurant in Broward County. The
search for Troise was the only reason proffered by the government at
the Motion to Suppress hearing and the trial for the officers’ search
of the master bathroom after the arrests of Cravero and Chandler in

7

sent to allow the officers to enter her master bedroom
she was arrested for, “obstruction of justice”.

The officers then entered the master bedroom. Once
inside the master bedroom they heard rustling sounds
emanating from inside a closed doorway which leads to
the master bathroom. No attempt was made to order any
person who may have been inside the master bathroom
to come out therefrom. Instead, the officers rushed into
the bathroom and there observed Sharon Willets leaning
down next to the shower stall. When the officers ap-
proached Sharon Willets they observed approximatelf a
kilo of cocaine in a metal tray inside the shower stall.
This cocaine and other paraphernalia was then seized
from the master bathroom area. A search of the entire
residence disclosed that Donald Troise was not in the

Petitioner’s home.

The Petitioner was subsequently arrested and charged
with conspiracy to import and possess the cocaine seized
from the master bathroom with the intention to distribute
same, and with actual possession of the cocaine with the
intent to distribute same.

The District Court concluded, after a Motion to Sup-
press hearing, that the officers were not required to obtain
a search warrant before they entered Petitioner’s residence
and, that the subsequent search of the master bedroom
and bathroom was reasonable. :

"a *,* ’ the
iving room area. The Petitioner contends that at the moment
olficess ome the master bedroom, before entry of pag he wre
they did not have probable cause or reason to believe that Troise
was anywhere within the Petitioner's residence. The facts to ha gor
this contention are set out in detail under the discussion infra o

REASONS FOR GRANTING THE WRIT.

8

After a non-jury trial, the Petitioner, who had re-
ceived a severance from her co-defendants, was acquitted
on the charge of conspiracy to import and possess cocaine
but convicted on the charge of possession of cocaine with
intent to distribute same. The evidence seized from the
master bathroom of her residence was introduced at her
trial over her objection.

The Petitioner appealed her conviction to the Fifth
Circuit Court of Appeals. In its original opinion, the F: “h
Circuit concluded that under the circumstances of the
instant case, the officers search warrantless entry of the
Petitioner’s residence violated her Fourth Amendment

rights. In reaching this conclusion, the Fifth Circuit stated
as follows:

“We are unable to see a distinction valid for
fourth amendment purposes between entry to
search for .. . an object and entry to apprehend
a guest. Consequently, logic demands that the
rules governing searches should apply with equal
force to an arrest entry into a third party's home.
If the policeman has probable cause to believe that
a suspect he wishes to arrest is inside the home.
he can demonstrate this to a magistrate and
obtain a search warrant for the suspect. If he
fails to obtain a warrant, then an arrest entry
without a search warrant will be permissible
only if exigent circumstances or some other estab-
lished exception to the warrant requirement
obtained. Any other result raises the spectre of
police circumvention of the search warrant re-
quirement by using an arrest warrant as carte

9

blanche to search any and every home in which
they can claim probable cause to believe a suspect
may be concealed. Furthermore, a requirement
of exigent circumstances will not unduly burden
law enforcement officials or create additional
danger, since such factors are given considerable
weight in the exigent circumstances determi-

nation.”

United States -v- Cravero, Appendix pg. 16-17
(Emphasis added).

In reaching this conclusion, the Fifth Circuit rejected
the notion that the existence of an arrest warrant for a
suspect who the police have probable cause to believe me
wandered into a third party’s home can, for Fourt
Amendment purposes, be an acceptable substitute for a
search warrant authorizing entry of the third party's

home to search for the suspect:

“because in the nature of the things, nothing
in the process of procurring an arrest warrant
for A considers or affords any protection to the
entirely distinct Fourth Amendment right of
B, into whose premises A may wander — per-
haps after the arrest warrant issues — not to
have B’s premises invaded and ransacked for A
without either a warrant or one of the customary
excuses for its absence. As a general rule, before
entering a specific place to conduct a search for
‘objects,’ police officers must obtain a search
warrant, Agnello -v- United States, 269 USS. 20,
39.33( 46 S.Ct. 4, 70 L.Ed, 145 (1925), which

10

thereby insures a prior judicial determination
that there is probable cause to believe that the
object sought is within the place to be searched,
Jones -v- United States, 357 U.S. 493, 498, 78
S.Ct., 1253, 2 L.Ed. 2nd 1514 (1958). In con-
trast, no such determination need be made before
an arrest warrant issues. Such a warrant requires
only a judicial determination that there is prob-
able cause to arrest a named person for a certain
offense, without consideration the place in which
the arrest is to be made. An arrest warrant,
therefore, in and of itself, imposes few or no
limitations on the power of police to enter private
homes in search of suspects.” United States v.
Cravero, Appendix pg. 14-15.

Despite its original opinion that the search war-
rantless entry of the Petitioner’s residence violated her
Fourth Amendment rights, the Court, in what later on
rehearing was termed a “seeming paradox”, concluded
that the evidence seized from her home was properly
admitted into evidence at her trial. The Court’s reasoning
was as follows:

“Possession of the arrest warrants was a com-
pletely self-validating justification for the
arrest regardless of the circumstances under
which the police reached the located where they
served the warrants. ... Thus, the arrests are
valid, though the method of effecting them be
not.” Id., at Appendix pg. 18.

After concluding that the arrests of Cravero and
Chandler were legal, the Court upheld the police officers’

11

search of the master bedroom and bathroom of Petitioner’s
residence as, “a protective sweep to avoid threats from
unknown persons.” The Court then concluded that the
officers having obtained entry into the master bathroom
lawfully, properly seized the incriminating evidence ob-
served there in plain view.

Petitioner Cook moved the Court for a rehearing
suggesting that once the Court had concluded that vo
entry of her residence violated her Fourth fear ger
rights, the evidence subsequently seized could not be ad-
mitted into evidence against her.

In its opinion on rehearing, the Court admitted that
the logic of its original opinion created a “seeming
paradox”. This admission, however, did not benefit the
Petitioner because rather than correcting the paradox the
Court concluded that it had erred in its original opinion
when it held that under the circumstances of this case
the officers were required by the Fourth Amendment te
obtain a search warrant before they entered Petitioner's

residence.

The Court concluded:
/
“Upon reconsideration of this seeming paradox,
we find that we erregl in requiring probable cause
plus exigent circumstances to validate the entry
without a search warrant...
/

/

j

12

The law of this circuit, which our panel opinion
overlooked, is that when an officer holds a valid
arrest warrant and reasonably believes that its
subject is within premises belonging to a third
party, he need not obtain a search warrant to
enter for the purpose of arresting the suspect.
United States -v- James, 528 F.2d 999, 1017 5th
Cir. 1976) ; Rodriguez -v- Jones, 473 F.2d 599
605-06 (5th Cir.), cert. den., 412 U.S. 953, 93
S.Ct. 3028, 37 L.Ed.2d 1007, (1973).

United States -v- Cravero, Opinion on Rehearing,
Appendix Pg. 29-30.

This Petition for Writ of Certiorari seeks review of
the Fifth Circuit conclusions (1) that the existence of an
arrest warrant and reasonable belief by a police officer
that the suspect is within the residence of a third party
satisfies Fourth Amendment requirements for a search
warrantless search of that residence for the suspect; and
(2) that the warrantless search of the master bathroom of
Petitioner’s residence after the arrests of Cravero and
Chandler in the living room area, was reasonable under
the Fourth Amendment.

13
REASONS FOR GRANTING THE WRIT
I

THE DECISION BELOW PRESENTS AN IM-
PORTANT ISSUE OF CONSTITUTIONAL
LAW WHICH AFFECTS THE RIGHTS OF
ALL PERSONS ENTITLED TO THE PRO-
TECTION OF THE FOURTH AMENDMENT
AND THE OBLIGATIONS OF GOVERN-
MENTAL ENTITIES TO PROTECT THOSE

RIGHTS.

The importance of the issues presented in this case
cannot be over emphasized when one recognizes that they
involve the right of police officers to thrust themselves into
a home which Justice Jackson lon, ago characterized as,
“ a grave concern, not only to the individual but to a
society which chooses to dwell in reasonable security and
freedom from surveillance.” Johnson -v- United States, 333

U.S. 10, 14 (1948).

All inhabitants of our country are affected by a de-
cision regarding when a police officer rather than a magis-
trate can determine whether the right of privacy in one’s
dwelling must yield to the right of police officers to search.
The instant case involves just such a decision.

There can be no dispute with the proposition that
arbitrary invasion by government of the privacy of one’s
home or dwelling is what the Fourth Amendment was de-
signed to safeguard against. United States -v- United
States District Court, 407 U.S. 297 (1972). The search
warrant requirement of the Fourth Amendment was inter-

14

posed by the Framers because of the belief that the deci-
sion whether a citizen’s right of privacy should yield to a
policeman’s right to enter and search should rest with a
neutral judicial officer and not with the policeman.

Only in certain carefully defined exceptions, has this
Court permitted the policeman rather than the magistrate
to decide when the citizen’s right to privacy should be
invaded. These exceptions have been characterized fre-
quently as “exigent circumstances”.*

As stated by the Fifth Circuit in its original opinion,

“This preference for a prior judicial determina-
tion should control a contemplated entry of a third
party’s home, regardless of what is sought. While
the ultimate objective of an arrest entry is an
arrest, the arrest can only be effected if the sub-
ject is first found, and thus, a search is a neces-
sary factual prerequisite to the possible arrest.”
United States -v- Cravero, Appendix pg. —.

None of the well recognized exceptions to the search
warrant requirement’ are present in the instant case. In-

*Terms like “exigent circumstances” are useful in underscoring
the heavy burden on the police to show that there was a need that
could not brook the delay incident to obtaining a warrant and that
it is only in the light of those circumstances and that need, that the
warrantless search meets the ultimate test of avoiding condemnation
under the Fourth Amendment as “unreasonable.” Dorman v United

States, 435 F.2d 385 (D.C. Cir. 1970).

*In Vale -v- Louisiana, 399 U.S. 30 (1970), this Court had occa-
sion to note most of these exceptions to the search warrant requirement:

“There is no suggestion that anyone consented to the search.
Cf. Zap -v- United States, 328 U.S. 624, 628, 66 S.Ct. 1277,
1279, 90 L.Ed. 1477. The officers were not responding to an
emergency. United States -v- Jeffers, supra, 243 U.S. at 52,
72 S.Ct. at 95; McDonald -v- United States, supra, 335 U.S.

15

deed, the Fifth Circuit, as already noted, so found. The
Petitioner’s house was surrounded by at least fifteen police
officers for approximately four and a half hours prior to
the time entry was made. There was absolutely no possi-
bility of escape. The four and a half hour delay between
the time the police arrived at Petitioner’s residence and the
time they entered, makes it crystal clear that the need to
arrest Cravero and Chandler was not exigent. There was
absolutely no valid reason presented by the facts of this
case to justify the failure to obtain a judicial etinmaagaaare
prior to entry of Petitioner’s residence that there was pro

able cause or reason to believe that Cravero, Chandler or

Troise was present within.

Admittedly, the officers had an extremely high degree
of probable cause to believe that Cravero and Chandler
were within the Petitioner’s residence. This, however, can
never be justification for a warrantless search absent

exigent circumstances.

«|. no amount of probable cause can justify a
warrantless search or seizure absent ‘exigent cir-
cumstances.’ Incontrovertible testimony of the
senses that an incriminating object is on premises

in hot pursuit of a

at 454, 69 S.Ct. at 192. They were not in Pp
= felon. Warden -v- Hayden, 387 U.S. 294, 4 he
S.Ct. 1642, 1645-1646, 18 L.Ed. 2d 782; Chapman -v- .~
States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed. 436.
oods ultimately seized were not in the process of ——_
anoter v- California, 384 U.S. 757, 770-771, 86 S.Ct.
1826, 1835-1836, 16 L.Ed.2d 908; United States -v- Jeffers,
supra; McDonald -v- United States, supra, 335 U.S. at =
69 S.Ct. at 193. Nor were they about to be removed e
jurisdiction. Chapman -v- United States, supra; Jo re -v-
United States, supra; United States -v- Jeffers, supra.” Id. at
34.

16

belonging to a criminal suspect may establish the
fullest measure of probable cause. But even where
the object is contraband, this Court has repeatedly
stated and enforced the rule that the police may
not enter and make a warrantless seizure.”

Coolidge -v- New Hampshire, 403
ror , 403 U.S. 443, 468

Absent exigent circumstances, there is id di
Unetion under the Fourth Amendment eh Alar dh of
one’s privacy to search for an object or to search for a
guest in the home of a third party. The decision of the
Fifth Circuit on this issue violates the principle of the
Fourth Amendment, “. . . which often is not grasped b
zealous officers ...” Johnson -v- United States supra, m4
13, i.e., inferences which reasonable men aree from evi-
dence must be drawn by a neutral magistrate instead of

being judged by the officer en
gaged in f t .
ous efforts to ferret out crime. a

Assuming arguendo, that the arrests
, of Cravero and
Chandler were lawfully executed, the officers por
rere of the master bathroom area of the Petitioner’s
a ae was clearly beyond the scope permitted by the
rinciples enunciated by thie Court in Chimel -v- }
nia, 395 U.S. 752 (1965). gies

The Fifth Circui’: did not consider Petitioner’s con-
tention that there was no probable cause or reason to be-
lieve that Donald Troise was within the Petitioner’s home
but upheld the search, “. . . because [the officers’) bath.
es entry can survive as a protective sweep to avoid
threats from unknown persons.” The Court relied upon a
recent series of Fifth Circuit cases which have carved out

17

an exception to the Chimel principle limiting the scope of
searches incident to arrest. United States -v- Looney, 481
F.2d 31, 33 (5th Cir.) cert. den., 414 U.S. 1070 (1973) ;
McGeehan -v- Wainwright, 526 F.2d 397 (5th Cir. 1976) ;
United States -v- Smith, 515 F.2d 1028 (5th Cir. 1975);
United States -v- Erwin, 507 F.2d 937 (5th Cir. 1974).

The instant case is clearly distinguished from the
“protective sweep” cases cited by the Fifth Circuit for the
simple reason that the record unequivocally establishes
that the only reason proffered by the government at the
Motion to Suppress hearing and the trial to justify the
police officers’ entry into the Petitioner’s master bedroom
and bathroom was to search for the fugitive Donald Troise.
There is no evidence in the record of the instant case that
the officers searched the master bedroom because they
reasonably believed, “that at serious threat to safety [was]
presented.” United States -v- Smith, supra, at 1031. The
Fifth Circuit has, thus, applied their “protective sweep”
exception to Chimel when the record has failed to demon-
strate that a serious demonstrable threat to the officers
safety was present and where the only proffered justifica-
tion for the search was the hunt for Troise. The result,
therefore, is that the Fifth Circuit has carved out an abso-
lute rule that whenever entry of a residence is made for
the purpose of effecting an arrest, the residence may be
completely sweeped (searched) to look for persons that
may pose a threat to the safety of an officer without any

evidentiary support therefor.

The record reveals the following with regard to
whether the officers at the moment of entry of the master
bedroom of Petitioner’s residence had probable cause to
believe Troise was within Petitioner’s residence:

18

When Cravero, Chandler and Willets left the restau-
rant in Broward County, Florida on the evening of July
14, 1974, they were positively identified entering a brown
Oldsmobile which the evidence showed was owned by a
co-defendant named Philip Siegel. The vehicle was fol-
lowed to a parking lot at a Howard Johnson’s Motel in
North Miami Beach. Four agents testified that between
the restaurant in Broward County and the Howard John-
son’s parking lot, the vehicle was occupied by four persons.
Two other agents testified that they observed five individ-
uals in this vehicle during this same period. A total of five
different persons were positively identified by the sur-
veilling officers as having been in the vehicle at that time,
i.e., Cravero, Chandler, Willets, Troise and Siegel.

When the vehicle arrived at the Howard Johnson’s
parking lot the undisputed testimony was that all of the
occupants exited the vehicle. When it subsequently left the
Howard Johnson’s parking lot and proceeded to Petitioner’s
residence, Cravero, Chandler and Willets were positively
identified as occupants of the vehicle at that time by two
officers. Other testimony by officers Havens and an aerial
surveillance officer named Riggio, established that there
were only four occupants in the vehicle when it arrived at
the Petitioner’s residence. Four persons were observed
exiting the vehicle and entering Petitioner’s residence. The
evidence also unequivocally established that Philip Siegel,
the owner of the brown Oldsmobile, who was previously
identified as having been in that vehicle when it left the
restaurant in Broward County, was positively identified
leaving the Petitioner’s residence and driving off in the
brown Oldsmobile shortly after that vehicle arrived at the
Petitioner’s residence that evening.

19

The inescapable conclusion to be drawn from this
uncontroverted evidence, known by the officers before they
entered Petitioner’s residence, is, therefore, that the four
occupants of the brown Oldsmobile that arrived at the
Petitioner’s residence that night were Cravero, Chandler,
Willets and Siegel. Troise had exited the vehicle at the
Howard Johnson’s parking lot which fact was obviously
known to the officers when they arrived at the Cook resi-
dence because two officers were immediately assigned to
return to the Howard Johnson’s parking lot to search for

Troise.

There was simply no legitimate reason for the officers
to enter and search the master bedroom and bathroom of
the Petitioner’s residence after Cravero and Chandler were

arrested and handcuffed in the living room area. No evi-
dence of danger was even proffered. The officers knew

from all available information that Donald Troise was not
present within the Petitioner’s home.

II

THE DECISION BELOW CONFLICTS WITH
THE OPINIONS OF THE THIRD CIRCUIT IN
GOVERNMENT OF THE VIRGIN ISLANDS
-v- GEREAU, 502 F.2d 914 (3rd Cir. 1974) AND
THE EIGHTH CIRCUIT IN RICE -v- WOLFF,
513 F.2d 1280 (8th Cir. 1975), AFF’D SUB.
NOM. STONE -v- POWELL, _—— US. ——_,

96 S.Ct. 3037 (1976).

In Rice -v- Wolff, 513 F.2d 1280 (8th Cir. 1975), the
Eighth Circuit stated:

20

“Police entry into a private dwelling without a
search warrant in search of a suspect for whom
an arrest warrant has been issued carries pre-
cisely the same fourth amendment implications
as entry into a dwelling to make a warrantless
search for tangible property. Citizens sre entitled
to the same constitutional protection from un-
reasonable searches and seizures when the police
are seeking a suspect for arrest as when they are
seeking some contraband for evidence, Thus, ‘ar-
rest warrants are not substitutes for search war-
rants.’ ” Jd. at 1291-1292

Also in Government of Virgin Island -v- Gereau, 502
F.2d 914 (3rd Cir. 1974), the Third Circuit stated:

“The Government claims that its entry was law-
ful because the search was intended to find per-
sons for whom the Government possessed arrest
warrants, the two Puerto Ricans implicated by
Smith and Gereau. This Court has made clear,
however, that arrest warrants are not substitutes
for search warrants. * * * Although police have
warrants for the arrest of suspects, they may en-
ter premises, at least of third persons, to search
for those suspects only in exigent circumstances
where the police officers also have probable cause
to believe that the suspects may be within.” (Em-
phasis added) Jd. at 298.

—EE a 7

The Fifth Circuit has now as a result of their opinion
on rehearing in the instant case, placed themselves dia-

metrically opposed to the views of the Third and the Eighth
Circuit in Rice and Gereax.

21
Il

THE DECISION BELOW PRESENTS IMPOR-
TANT CONSTITUTIONAL ISSUES WHICH
HAVE NOT BEEN, BUT SHOULD BE, DE-
CIDED BY THIS COURT.

This Court has never before dealt with the significant
issues presented by the instant case. As the Fifth Circuit
stated in its original opinion, “... what requirements must
be satisfied before policemen without a search warrant
may conduct a search of a third person’s private home for
a suspect for whom they have a valid arrest warrant are
unsettled.” United States v. Cravero, Appendix pg. 12-13.

In United States v Watson, ___. U.S. ____, 96 S.Ct.
820 (1976) the concurring opinions of Justices Stewart and
Powell noted that this Court clearly has left open the ques-
tion of whether or when the police can lawfully make a
warrantless arrest in a private place. Identical constitu-
tional considerations relevant to the issue left open in
Watson are applicable to the search warrant issue pre-
sented in the instant case insofar as the Petitioner Cook
is concerned. This is so because nothing in the process of
obtaining arrest warrants for Cravero and Chandler pro-
vided any protection whatsoever to the entirely distinct
Fourth Amendment right of the Petitioner Cook not to
have her privacy invaded without a search warrant or one
of the customary excuses for its absence.

Additionally, the Fifth Circuit’s application of its
“protective sweep” exception to Chimel in this case is
totally unwarranted and represents an intention in that
Circuit to carve out an absolute exception to Chimel re-

yt

22

gardless of whether the record supports justification there-
for. This Court should utilize the instant case as an oppor-
tunity to clarify the principles previously enunciated in
Chimel ; to determine whether the “protective sweep” theory
is compatible with those principles; and, if so, to set forth
proper guidelines for application of this exception.

For the foregoing reasons, Petitioner requests that

23

CONCLUSION

the Court grant this Petition for Writ of Certiorari.

February, 1977

Respectfully submitted,

BIERMAN, SONNETT, BEILEY
SHOHAT & OSMAN, P.A.

BY

MICHAEL J. OSMAN
Counsel for Petitioner

APPENDIX

United States Court of Appeals,
Fifth Circuit,

No. 75-2718.

UNITED STATES of America,
Plaintiff-Appellee,
v.

Richard Douglas CRAVERO, a/k/a “Ricky,” Sharon Wil-
lets, Marianne Cook, Phillip Siegal, Ronald Clifford
Chandler, and Bobby Eugene Miller, Defendants-
Appellants.

Aug. 6, 1976.

Before BROWN, Chief Judge, TUTTLE and GEE,
Circuit Judges.

GEE, Circuit Judge:

One or more of appellants challenge their convictions
for various narcotics-related offenses' on each of the fol-

'The indictment charged, inter alia, conspiracy to import and
possess cocaine and marijuana with intent to distribute, in violation of
21 U.S.C. §§846, 963 (1970) (Count I); importation of cocaine and
marijuana in violation of 18 U.S.C. §2 (1970) and 21 U.S.C. §952(a)
(1970) (Count II); possession of cocaine with intent to distribute, in
violation of 18 U.S.C. §2 (1970) and 21 U.S.C. §841(a)(1) (1970)
(Count IV) ; and engaging in a continuing criminal enterprise, in viola-
tion of 21 U.S.C. §848 (170) (Count V). Appellants were convicted
as follows: Cravero, Counts I, II, IV, and V (consecutive sentences on
the first three counts; concurrent sentence on Count V); Chandler,
Counts I, II, IV, and V (same as Cravero); Willets, Counts I, II, and
IV (concurrent sentences); Siegal, Counts I and II (concurrent
sentences); Miller, Counts I and II (concurrent sentences) ; and Cook,
Count IV.

App. 2

lowing grounds: (1) the indictments should have been
quashed because the Department of Justice Strike Force
attorney who obtained them was not appointed directly by
the Attorney General, and his blanket authorization to
prosecute violations of federal criminal] statutes failed to
provide the statutorily-required specific designation of au-
thority to conduct the grand jury inquiry; (2) the “con-
tinuing criminal enterprise” statute, 21 U.S.C. $848
(1970), which formed the basis of one count in the indict-
ment, is unconstitutionally vague; (3) each appellant’s
motion for a judgment of acquittal on all counts should
have been granted because the evidence fails to support the
convictions on any count; (4) appellants Siegal and Miller
should have been granted a severance; (5) the narcotics
and related paraphernalia introduced at trial were illegally
seized and should have been suppressed; (6) the hearsay
declarations of an indicted co-conspirator who had pre-
viously been acquitted should not have been admitted; (7)
the prosecutor improperly cross-examined a defense wit-
ness; and (8) newly discovered evidence justifies a new
trial for appellant Cook. We state the facts pertinent to
each point as we discuss it. The convictions are affirmed.

I. Prosecuting Attorney’s Authorization to Conduct
Grand Jury Inquiry

[1,2] All appellants contend that the Department of
Justice Organized Crime Strike Force attorney who pre-
sented the case to the grand jury was neither “specially
appointed” nor “specifically directed” by the Attorney Gen-
eral to conduct the grand jury inquiry as required by 28

App. 3

U.S.C. $515(a) (1970),? because he was appointed by an
Assistant Attorney General and because his letter of au-
thorization failed to designate the type of case to be pros-
ecuted. Both grounds of attack fail. First, 28 U.S.C. $510
(1970) permits the Attorney General to delegate to any
other Department of Justice official “any function of the
Attorney General,” which includes the power to appoint
special attorneys under section 515(a).’ And by regulation
C.F.R. $$0.55, 0.60 (1974), the Attorney General delegated
to the Assistant Attorney General in charge of the Crimi-
nal Division, who signed the authorization here, the power
to designate attorneys to present evidence to grand juries
in all cases under his control. See In re Persico, 522 F.2d
41, 67 (2d Cir. 1975). Second, the letter of authorization,
which “specia!ly authorized and directed” the special attor-
ney to investigate “violations of Federal Criminal Statutes
by persons whose identities are unknown” in the Southern
District of Florida and other judicial districts and “to
conduct . . . any kind of legal proceedings, . . . including
Grand Jury Procecdings ... , which United States attorneys
are authorized to conduct,” is identical in language to the
authorization that we recently upheld in United States v.
Morris, 532 F.2d 436, 439-40 (5th Cir. 1976). We adhere

2Which reads as follows:

(a) The Attorney General »» any other officer of the Depart-
ment of Justice, or any attorney specially appointed by the
Attorney General under law, may, when specifically directed
by the Attorney General, conduct any kind of legal proceed-
ing, civil or criminal, including grand jury proceedings and
proceedings before committing magistrates, which United States
attorneys are authorized by law to conduct, whether or not he
is a resident of the district in which the proceeding is brought.
(emphasis added)

3Accord, United States v. Agrusa, 520 F.2d 370, 371-72 (8th Cir.
1975).

App. 4

to Morris and hold that the avthorization need not mention
the parties or the particular federal statutes* under which
the indictment was sought.

II. Unconstitutional Vagueness of the Continuing Con-
spiracy Statute

[3] Appellants Chandler and Cravero argue that the
“continuing criminal enterprise” statute, 21 U.S.C. §848
(b) (2) (1970), which makes a crime any violation of the
statute if

(2) such violation is a part of a continuing
series of violations of this subchapter or subchap-
ter II of this chapter—

(A) which are undertaken by such person in
concert with five or more other persons with re-
spect to whom such person occupies a position of
organizer, a supervisory position, or any other
position of management, and

(B) from which such person obtains substan-
tial income or resources [, |

is unconstitutionally vague in using the terms (1) “a con-
tinuing series of violations,” (2) “a position of organizer,
a supervisory position, or any other position of manage-
ment,” and (3) “substantial income or resources.” The
Second and Sixth Circuits have upheld the statute against
precisely this attack in United States v. Manfredi, 488
F.2d 588, 602-03 (2d Cir. 1973), cert. denied, 417 U.S.
936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), and United

*Morris dealt only with failure te specify the statutes, but its
language, rationale, and supporting authority extend to parties as well,
and we so hold.

App. 5

States v. Coin.., 493 F.2d 327 (6th Cir.), cert. denied,
419 U.S. 831, 95 S.Ct. 56, 42 L.Ed.2d 57 (1974) (quoting
Manfredi as the sole basis for its decision) .’ We agree with
these decisions on the grounds stated in Manfredi:

The conduct reached is only that which the viola-
tor knows is wrongful and contrary to law. See
Screws v. United States, 325 U.S. 91, 102, 65
S.Ct. 1031, 1935, 89 L.Ed. 1495 (1945). ...

...- Here... the statute might have been more
artfully drawn, but no language has occurred or
has been suggested to us that better expresses the
congressional purpose. To sustain [appellant’s]
position would force us to hold that words cannot
be devised to make it an offense to engage in the
continuous sale and trafficking in heroin with a
number of other people and with substantial sums
of money changing hands; we feel that not to be
the case and that, as applied to the conduct with
which [appellant] was charged . . . the statute is
not unconstitutionally vague.

488 F.2d at 602-03.

‘Defendants would distinguish these decisions on the grounds that
in those cases there was sufficient proof of other violations and sub-
stantial income derived from those violations. But there is adequate
proof that defendants in this case were “in a supervisory position,”
that they derived substantial income from these operations, and that
there were continuing violations. Furthermore, whether there is proof
of these elements concerns sufficiency of the evidence, not vagueness
of the statute.

App. 6
III. Sufficiency of the Evidence

[4] All appellants challenge the sufficiency of the
evidence to support their convictions on each count and
claim that the lower court erred in refusing to grant any
of their frequent motions for judgment of acquittal. But
the evidence on each count so easily satisfies this circuit’s
test of sufficiency in reviewing a lower court’s denying a
motion for judgment of acquittal—that reasonable minds
could conclude that the evidence is inconsistent with the
hypothesis of innocence, see, e.g., United States v. Prout,
526 F.2d 380, 384 (5th Cir. 1976)—that we feel obliged
to discuss only Cook’s argument that the prosecution proved
no more than her presence on the scene. Although “[m]Jere
presence at the scene of a crime... is not enough to prove
participation in it,” United States v. James, 528 F.2d 999,
1013 (5th Cir. 1976), Cook ignores not only evidence of the
substantial nature of the narcotics-processing operation in
her home, but also the presence of her fingerprints on most
of the processing paraphernalia found in her bathroom and
the discovery* of a number of packets containing cocaine
and marijuana cigarettes in her bathroom, master bed-
room, and living room. Viewing all this evidence and
reasonable inferences therefrom in a light most favorable
to the government, see Glasser v. United States, 315 U.S.
60, 80, 62 S.Ct. 457, 469, 86 L.Ed.2d 680, 704 (1942), we
think that the government sufficiently proved constructive
possession under section 841 (a) (1).’

*By police officers acting pursuant to a search warrant obtained
several hours after the arrest.

"Cf. United States v. Garza, 531 F.2d 309, 310-11 (Sth Cir. 1976)
(section 841(a) is violated by constructive possession, which may be
shared with other and proved by circumstantial evidence). See also
United States v. Harold, 531 F.2d 704 (Sth Cir. 1976) (per curiam).

App. 7
IV. Denial of Severance

[5,6] Appellants Siegal and Miller, charged only
with importation and conspiracy to import and possess
with intent to distribute, object to the lower court’s refusal
to sever them from Cravero, who was charged additionally
with possession and a continuing criminal enterprise.’ But
they were properly joined with Cravero under Fed.R.Crim.
P. 8(b),° since all were charged with participating in “the
same series of acts or transactions constituting an offense
or offenses.” Having been properly joined, th*ir motion
for severance was committed to the trial court’s sound dis-
cretion, and denial of a severance will not be reversed un-
less appellants meet the heavy burden of demonstrating
clear prejudice. See, e.g., United States vy. Crockett, 514
F.2d 64, 70 (5th Cir. 1975). Their claim is that they were
prejudiced by the introduction of evidence aimed solely at
proving Cravero’s guilt on the two additional counts, by
Cravero’s notoriety, by an inability to call other co-defend-
ants as witnesses, and by the general strategic inferiority
of a joint trial. But they proved no such prejudice. First,
while some evidence was introduced soiely to prove Cra-
vero’s guilt on the additional counts, neither appellant dem-
onstrated either a “clear likelihood of confusion on the part
of the jury to his prejudice,” see Gordon v. United States,
438 F.2d 858, 879 (5th Cir.), cert. denied, 404 U.S. 828,

8See note 1 supra.

°Which reads as follows:

Two or more defendants may be charged in the same indict-
ment or information if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses. Such defend-

ants may be charged in one or more counts together or sep-
arately and all of the defendants need not be charged in each

count. (emphasis added)

-, -_— =

App. 8

92 S.Ct. 63, 30 L.Ed.2d 56 (1971) (citing cases), or an
antagonistic defense, see United States v. Johnson, 478
F.2d 1129, 1131-34 (5th Cir. 1972) ; United States v. Wil-
son, 451 F.2d 209, 215 (5th Cir. 1971).'° Second, although
local newspapers published several potentially prejudicial
news stories before and during trial, appellants have dem-
onstrated no inherent prejudice in the trial setting or ac-
tual prejudice from the jury selection process, see Murphy
v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589
(1975), and the lower court took every possible measure to
safeguard appellants, repeatedly warning the jurors to
avoid all news sources and carefully examining the jury
members to insure that his instructions had been followed.
See United States v. Scallion, 533 F.2d 903, (5th Cir.
1976) ; United States v. Edwards, 488 F.2d 1154, 1160 (5th
Cir. 1974). Third, appellants’ objection to their inability to
call other co-defendants as witnesses fails because they did
not meet the requirements outlined in United States v.
Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419
U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975):

(1) the testimony must be exculpatory in effect;
(2) the testimony must be more than purely cu-
mulative, or of negligible weight or probative
value; and (3) there must be a likelihood that
the co-defendant[s] will be willing to testify if
the [defendants are] tried separately.

Id. at 392, citing Byrd v. Wainwright, 428 F.2d 1017,
1020-21 (5th Cir. 1970). Finally, “that a separate trial

“The trial judge carefully instructed the jury to consider sep-
arately the evidence concerning each defendant on each count. Further-
more, he advised the jury during trial and in final instructions about
the limitations on the use of co-conspirators’ hearsay declarations.

App. 9

might have offered [appellants] a strategic advantage over
a joint trial does not suffice to demonstrate the unfairness
of the joint trial.” United States v. Clark, 480 F.2d 1249,
1253 (5th Cir.), cert. denied, 414 U.S. 978, 94 S.Ct. 301,
38 L.Ed.2d 222 (1973); see United States v. Perez, 489
F.2d 51, 67 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94
S.Ct. 3067, 41 L.Ed.2d 664 (1974).

V. Search and Seizure of Narcotics During Arrest

On July 14, 1974, acting on information supplied by
a goverment informant, federal agents observed Chandler
and Cravero, for whom arrest warrants were then out-
standing," and Willets arrive at a restaurant at 7:00 p.m.
for a meeting with the informant. After the meeting,
Chandler, Cravero, and Willets left the restaurant and
drove to Cook’s house. Agents followed them and placed
the house under surveillance beginning at approximately
9:30 p.m, At 1:15 a.m., two agents with arrest warrants
for Chandler, Cravero, and a third man named Troise,
knocked on the front door of Cook’s house, identified them-
selves, and announced that they had arrest warrants. A
short time later, Cook opened the door; and after a short
exchange she shouted, “Hey, you guys, the police.” The
agents immediately entered, without permission, saw
Cravero in the living room, and arrested him. They also
noticed Chandler standing in the doorway to the master
bedroom within reach of a pistol. As they arrested Chand-
ler and confiscated the pistol, they heard scuffling sounds
coming from an adjacent bathroom. Cook sought to prevent
the agents from entering the bathroom without a search
warrant, but they announced that they had an arrest

This was the first time that the agents had located them since
obtaining the warrants.

App. 10

warrant for Troise, a fugitive whom they claimed to be-
lieve to be hiding in the house. Entering the bathroom
with weapons drawn,” the agents first observed Willets
leaning into the shower stall and then saw a metal tray
containing a large quantity of white powder that proved
to be cocaine on the shower floor in plain view and para-
phernalia used in the processing and packaging of nar-
cotics’® on the counter next to the sink. After checking the
shower stall unsuccessfully for Troise, the agents seized
the cocaine and paraphernalia.

Cook, Chandler, Cravero, and Willets challenge this
seizure’* on the following grounds: (1) the police un-
reasonably delayed execution of their arrest warrants so
as to use them as a pretext to search Cook’s house at a
time when narcotics were to be found; (2) absent exigent
circumstances, the police could not execute arrest warrants
at the residence of a third party not named in the war-
rants even if there was probable cause to believe that the
subjects of the warrants were on the premises; and (3)
the police conducted an improper housewide exploratory
search after arresting Cravero and Chandler, there being

12Since Troise had a reputation for violen d rted]
heavily armed. , sieisietlhiaililaatsiitaad

'3Much of which bore cocaine residue.

__\*Appellants Siegal and Miller also object to the seizure, but since
neither was present at the home at the time of the seizure and neither
claimed ownership or possession of the confiscated narcotics and para-
phernalia, we agree with the lower court that neither had the reasonable
expectation of freedom from government intrusion on the premises
necessary to give either standing to challenge the search and seizure.
See Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 33
L.Ed.2d 308 (1972); United States v. Hunt, 505 F.2d 931, 934-40 (5th
Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466
ts — States v. Colbert, 474 F.2d 174, 176-77 (Sth Cir 1973)

en banc).

App. 11

no probable cause to believe either that (a) the third
person named in the arrest warrants, Troise, was present
at Cook’s house, or that (b) any unknown third person
poised a threat to the agents’ physical safety.

(1) Unreasonable delay in executing the arrest war-
rant.

[7] First, appellants complain that the police had
numerous opportunities to arrest Cravero and Chandler
before their arrival at Cook’s house and arguably could
have waited again until after they left the house. This
circuit has held, however, relying on Hoffa v. United
States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374
(1966), that a suspect has no constitutional right to be
arrested earlier than the police choose, since the authori-
ties may not be forced to halt an investigation once they
have probable cause to arrest but before they have evi-
dence necessary to support a conviction. United States v.
Palazzo, 488 F.2d 942, 948 (5th Cir. 1974); Koran v.
United States, 469 F.2d 1071 (5th Cir. 1972) (per cu-
riam).'’ While delaying an arrest as a pretext to appre-
hend a suspect when he has evidence in his possession may
be constitutionally questionable,"* we need not reach that

1SAlthough both Palazzo and Koran concerned pre-warrant arrests,
the distinction is not critical. See generally United States v. Watson, —
U.S. ___., 96 S.Ct. 820, 46 L.Ed.2d 598, 613-14 & nn. 4-5 (1976)
(Powell, J., concurring).

16See United States v. Palmer( 435 F.2d 653, 655 (1st Cir. 1970)
(dicta) (by implication); Amador-Gonzalez v. United States, 391
F.2d 308, 314-15 (5th Cir. 1968) (impermissible for narcotics officers
to make traffic arrest as pretext to search defendant’s car incident to
arrest). But cf. United States v. Frick, 490 F.2d 666, 670-71 (Sth Cir.
1973), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974)
(suggesting that a “staged arrest” after indictment to apprehend de-
fendant when he has evidence in his possession is permissible so long
as the arrest occurs within a reasonable time after indictment, but
noting that the evidence failed to show that the arrest was staged).

App. 12

issue since no evidence of pretext is present here. The
agents justifiably refrained—to protect their informant’s
identity—from arresting Chandler and Cravero at the
restaurant. They did not know appellants’ destination
after the group left the restaurant. Nor had the officers
especial reason to expect to find cocaine in Cook’s house.’’
The agents entered to execute their warrants only after
realizing that Cravero suspected the informant’s true role"
and concluding that the suspects intended to remain inside
indefinitely.” Thus, the delay was reasonable and fully
justified.

(2) Execution of arrest warrant on premises of
third party.

[8] Second, appellants insist that the police could
not execute their arrest warrants on Cravero and Chandler
by entering Cook’s residence. As the Eighth Circuit recent-
ly noted in Rice v. Wolff, 513 F.2d 1280, 1292 n. 7 (8th
Cir.), aff’d sub nom. Stone v. Powell, __ U.S. __, 96 S.Ct.
3037, 48 L.Ed.2d __ (1976), what requirements must be
satisfied before policemen without a search warrant may
conduct a search of a third person’s private home for a
suspect for whom they have a valid arrest warrant are

"The informant had never ascertained the hiding place of the

cocaine.

'’Based on a phone conversation at 11:20 that night in which
Cravero told the informant that he had detected the presence of surveil-
lance units at the restaurant and intimated that he was aware of the
informant’s duplicity.

‘Moreover, it seems that had the officers intended an exploratory
search, they would have shut off the house water supply before entering,
a common measure against disposal of contraband.

App. 138

unsettled.” All circuits that have considered the ques-
tion,”” including this one,” agree that at minimum there
must be probable cause to believe that the suspect is within
the dwelling, but whether there must be exigent circum-
stances as well is an open question.”* Since no exigent cir-
cumstances are present in this case,** we must now address
that issue.

20Cf. United States v. Watson, U.S. ____., 96 S.Ct. 820, 46
L.Ed.2d 598, 614 (1976) (Stewart, J., concurring); id. at 614 & n. 7
96 S.Ct. 820 (Powell, J., concurring); Rodriguez v. Jones, 473 F.2d
599, 605-06 (Sth Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37
L.Ed.2d 1007 (1973) (dicta) action for damages under §1983; exigent
circumstances present). See also United States v. Watson, supra
US. 96 S.Ct. 820, 48 L.Ed.2d at 605 n. 6.

21Rice v. Wolff, 513 F.2d 1280, 1292 (8th Cir.), aff'd sub nom.
Stone v. Powell, __ U.S. __, 96 S.Ct. 3037, 48 L.Ed.2d __ (1976);
Fisher v. Volz, 496 F.2d 333, 338-42 (3d Cir. 1974); United States
v. Brown, 151 U.S.App. D.C. 365, 467 F.2d 419, 423-24 (D.C.Cir.
1972); United States v. McKinney, 379 F2d 259, 263 (6th Cir. 1967) ;
Lankford v. Gelston, 361 F.2d 197, 202-03 n. 6 (4th Cir. 1966) (en
banc) (citing cases). See also United States v. Phillips, 497 F.2d 1131,
1135 (9th Cir. 1974) (warrantless entry).

22F. g., United States v. James, 528 F.2d 999, 1017 (5th Cir. 1976).

23In United States v. James, 528 F.2d 999 (5th Cir. 1976), after
appearing to answer this question in the negative, the court recognized
the presence of exigent circumstances in denying the petition for
rehearing.

2#The government argues that the possibility of escape, the grave
nature of the offense, and the suspects’ propensity for violence supplied
the requisite exceptional circumstances. But Chandler and Cravero
were pent in a house surrounded by police. And danger to third persons
cannot support the entry here because there was no proof of danger;
furthermore, all three suspects named in the warrant had been together
and much more vulnerable both at the restaurant and in the car. The
police correctly suggest that the delay in executing the warrants was
necessary to protect their informant’s identity; but while this justifies
the initial delay, it does not make exigent the need to arrest Chandler
and Cravero while they remained inside the house. Although the arrest
may also have been delayed—and understandably so—to give the
informant time to determine the location of the cocaine, this could not

(Footnotes Continued on Next Page)

App. 14

[9] The opinions of other circuits that have faced this
issue do not speak with one voice.*> We think it clear, how-
ever, that in addition to probable cause to believe that the
suspect is inside, there must be exigent circumstances to
support an entry to make a warranted arrest in a third
party’s home. We think so because in the nature of things
nothing in the process of procuring an arrest warrant for
A considers or affords any protection to the entirely dis-
tinct fourth amendment right of B, into whose premises A
may wander—perhaps after the arrest warrant issues—
not to have B’s premises invaded and ransacked for A

(Footnotes Continued From Previous Page)

supply sufficient justification for the police entering Cook’s house when
they did, unless perhaps they had feared that evidence was threatened
with destruction. See Schmerber v. California, 384 U.S. 757, 770-71,
86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). That —— dangerous felons
who are guests in a private home suspect earlier salen surveillance is
not enough to present exigent circumstances when the suspects are un-
aware of current police presence.

25The Third Circuit requires probable cause and exigent circum-
stances. Government of the Virgin Islands v. Gereau, 502 F.2d 914,
928-29 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42
L.Ed.2d 839 (1975) ; see Fisher v. Volz, 496 F.2d 333, 338-39 (3rd Cir.
1974). The Fourth Circuit has approached but avoided the issue.
Lankford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966). The District
of Columbia Circuit (per Justice Clark) in United States v. Brown, 151
U.S.App.D.C. 365, 467 F.2d 419, 423-24 (1972), a holding that prob-
able cause to believe the suspect inside a third party’s dwelling is
sufficient, makes no explicit reference to exigent circumstances; but a
Third Circuit decision correctly points out that “[Brown’s] discussion
reveals that such circumstances were considered in determining the
existence of probable cause,” Fisher v. Volz, supra at 341 n.12. The
Sixth Circuit in United States v. McKinney, 379 F.2d 259, 263 (6th
Cir. 1967), declared that “there is good reason to hold that the issuance
of an arrest warrant is itself an exceptional circumstance,” but this
statement must be considered in context since the police there had
looked unsuccessfully for the suspect before having probable cause to
believe him present in someone else’s house. And the court implied that
more than mere presence is required. Id. at 263 n.3. See also Note. The
Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev.
995 (1971) (concerned mainly with warrantless arrests) .

App. 15

without either a warrant or one of the customary excuses
for its absence. As a general rule, before entering a specific
place to conduct a search for “objects,” police officers must
obtain a search warrant, Agnello v. United States, 269
U.S. 20, 32-33, 46 S.Ct. 4, 70 L.Ed. 145 (1925), which
thereby insures a prior judicial] determination that there is
probable cause to believe that the object sought is within
the place to be searched, Jones v. United States, 357 U.S.
493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). In con-
trast, no such determination need be made before an arrest
warrant issues. Such a warrant requires only a judicial
determination that there is probable cause to arrest a
named person for a certain offense, without consideration
of the place in which the arrest is to be made.” An arrest
warrant, therefore, in and of itself imposes few or no limi-
tations on the power of police to enter private homes in
search of suspects.

{10,11} But arbitrary invasion of the privacy of
the home or dwelling is the “chief evil” to which the fourth
amendment is directed.”” To prevent such invasions, the
Framers interposed a search warrant requirement between
private citizens and the police, reflecting a belief that, ab-

26See, e. g., Fed.R.Crim.P 4(a): “If it appears from the com-
plaint . . . that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, a warrant for
the arrest of the defendant shall issue to any officer authorized by law
to execute it.”

A warrantless arrest in a public place of one suspected of a felony
requires a similar determination, but only by a police officer. See
United States v. Watson, US. ___., 96 S.Ct. 820, 46 L.Ed.2d
598, 603-09 (1976). See also Carroll v. United States, 267 U.S. 132,
45 S.Ct. 280, 69 L.Ed. 534 (1925).

27United States v. United States District Court, 407 U.S. 297, 313,
92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see Johnson v. United States,
333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

App 16

sent special circumstances, the decision whether the right
of privacy should yield to a right to enter and search a par-
ticular place shouid rest not with the policeman, but with
a disinterested judicial officer whose approval for a search
could apply only to a particular place and after a showing
of probable cause.** Only in certain carefully-defined
classes of cases is a warrantless search permitted.” This
preference for a prior judicial determination should con-
trol a contemplated entry of a third party’s home, regard-
less of what is sought. While the ultimate objective of an
arrest entry is an arrest, the arrest can only be effected
if the subject is first found, and thus a search is a neces-
sary factual prerequisite to the possible arrest. A search
warrant would be required, in the normal case and absent
some exception, to enter a residence to search for a stolen
pet or other object seen carried into it. We are unable to
see a distinction valid for fourth amendment purposes be-
tween entry to search for such an object and entry to ap-
prehend a guest. Consequently, logic demands that the
_ 28McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191,
93 L.Ed. 153 (1948). As Justice Jackson noted in Johnson v. United
States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed 436 (1948) :
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law enforce-
ment 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 society
which chooses to dwell in reasonable security and freedom
from surveillance. When the right of privacy must reasonably

yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or Government enforce-

ment agent.

29E.g., Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968).

App. 17

rules governing searches should apply with equal force
to an arrest entry into a third party’s home. If the police-
man has probable cause to believe that a suspect he wishes
to arrest is inside the home, he can demonstrate this to a
magistrate and obtain a search warrant for the suspect.
If he fails to obtain a warrant, then an arrest entry with-
out a search warrant will be permissible only if exigent
circumstances*® or some other established exception to the
warrant requirement obtains. Any other result raises the
spectre of police circumvention of the search warrant re-
quirement by using an arrest warrant as carte blanche to
search any and every home in which they can claim prob-
able cause to believe a suspect may be concealed.*' Further-
more, a requirement of exigent circumstances wil] not un-
duly burden law enforcement officials or create additional
danger, since such factors are given considerable weight
in the exigent circumstances determination.*”

39An obvious example of which would be entry by one believed
dangerous into the home of another believed by the police not to be in
league with him. Another, since objects do not act and people do, would
be a reasonable fear by the police that the suspect in the house might
be summoning reinforcements by telephone or other means of com-
munication, or ordering retaliation on an informer or other criminal
activity by such means.

31Cf. Chimel v. California, 395 U.S. 752, 767, 89 S.Ct. 2034, 23
L.E.d.2d 685 (1969).

32Cf. Dorman v. United States, 140 U.S..App. D.C. 313, 435 F.2d
385, 392-93 (1970) (en banc) (giving examples of exigent circum-
stances). We need not decide here whether our concern for balancing
the needs of effective law enforcement with the potential for police abuse
requires a similar rule governing an arrest entry into the home of a
person named in a warrant, although we have previously implied that
mere probable cause to believe the suspect present justifies such an
entry. United States v. Jones, 475 F.2d 723, 729 (Sth Cir. 1973) (dicta)
(defendant conceded that arrest was lawful and challenged only the
search inclent to his arrest). See rally United States v. Watson,
____ U.S. ____, 96 $.Ct. 820, 46 L.Ed.2d 598, 605 n.6 (1976).

App. 18

[12] Although we thus agree with appellants that
the entry was illegal, their conclusion that the subsequently
seized drugs and paraphernalia must be suppressed does
not follow ineluctably from the illegality of the entry. Ob-
viously, an illegal entry does not vitiate the arrests pursu-
ant to concededly valid arrest warrants. If the arrests
here had been illegal—e.g., without a warrant or probable
cause—then use of the fruits of those arrests would have
entitled appellants to invoke the exclusionary rule, See
Edwards v. Swenson, 454 F.2d 1106, 1111 (8th Cir.), cert.
denied, 406 U.S. 909, 92 S.Ct. 1619, 31 L.Ed.2d 820 (1972)
(citing Fifth Circuit and other cases). But the arrests, if
not the entry, were proper. The arrest warrants represent
judicial sanction of the deprivations of the suspects’ liber-
ties. Possession of the warrants was a completely self- val-
idating justification for the arrests regardless of the cir-
cumstances under which the police reached the location
where they served the warrants, To hold otherwise would
mean that a suspected felon could claim what amounts to
temporary sanctuary in the home of another and would
require us to contemplate with equanimity the prospect of
a section 1983 suit by him against the officers who ar-
rested him on a valid warrant, which seems self-evidently
absurd. Thus, the arrests are valid, though the method of
effecting them be not.*

[13] The Supreme Court has held that items seized
in warrantless searches incident to lawful arrests are ad-
missible. Such searches are considered “reasonable” in
fourth amendment terms because they are necessary to
protect the arresting officers’ safety and prevent the con-
cealment or destruction of evidence, See Chimel v. Califor-

ee United States v. Cisneros, 448 F.2d 298, 303 n.6 (9th Cir.

App. 19

nia, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d 685
(1969). But the admissibility of items seized pursuant to
other warrantless search exceptions, such as the “plain
view” or “hot pursuit” doctrines, has turned on “an ex-
traneous valid reason for the officer’s presence.” Coolidge
v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039,
29 L.Ed.2d 564 (1971).** See also id. at 465-66, 91 S.Ct.
2022. Thus, we must examine the reason for the officers’
presence in the place where they made the seizures because
the admissibility of evidence obtained in the warrantless
search depends on whether the items were seized incident
to the valid arrest or merely as part of an exploratory
search of the premises after the illegal entry.

(3) Exploratory search.

[14,15) Although Chandler does not seek suppres-
sion of the pistol found on his person,’ all appellants object
to the drugs and paraphernalia found in plain view after
the officers’ charge on the bathroom. The police attempt
to justify their presence in the bathroom on two grounds:

4A planned, warrantless intrusion to seize items hoped to be found
in plain view, fear of which motivates us to require the presence of
exigent circumstances for the entry, has never been permitted. Coolidge,
403 U.S. at 469-71 nn.26-27, 91 S.Ct. 2022.

3SThe seizure of Chandler’s ready-to-hand pistol was entirely rea-
sonable; indeed, a failure to do so would have been ludicrous. This
seizure is the paradigm of why a warrantless search incident to a legal
arrest is acceptable. To rule the pistol inadmissible had we been asked
to do so would require us to hold either that the arrest itself was invalid
because the officers who made it on a proper warrant were where they
should not have been when they executed it or to hold that though they
had a “right” to seize the pistol pursuant to a valid arrest and in reason
could have done nothing less, still the pistol must be suppressed as evi-
dence because it was a fruit of the original improper entry. Neither
holding seems to us one appropriate to the real world, and we would
decline to make either.

App. 20

that they had probable cause to believe that Troise, the
third suspect named in their arrest warrants, was present
in the house, and that they needed to conduct a safety
search to prevent danger to the arresting officers. We
need not consider their belief in Troise’s presence, be-
cause their bathroom entry can survive as a protective
sweep to avoid threats from unknown persons. The Supreme
Court in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1965), declared that although an
arresting officer can search the suspect’s person for weap-
ons and evidence that could be destroyed, as well as the
immediate area where the arrestee could grab a weapon,
the policeman cannot routinely search other rooms absent
some exception to the search warrant requirement. This
circuit has recognized such an exception in a housewide
search after a proper arrest for the purpose of making a
cursory safety check when “the circumstances [provide],
at the least, probable cause to believe that a serious threat
to safety [is] presented.” United States v. Smith, 515 F.2d
1028, 1031 (5th Cir. 1975) (per curiam) (“a serious and
demonstrable potentiality for danger’’).*’? The heinous na-
ture of the crimes, the lateness of the hour, the arrests of
Cravero and of Chandler in possession of a loaded pistol.
and the suspicious noises coming from the bathroom more

36Even were we to agree with the government that the officers had
probable cause to believe Troise present, this would not cure the illegal
entry, although the subsequent seizure would still be permissible—
based not on the plain-view doctrine, since without exigent circum-
stances the officers were still not properly in the bathroom, cf. note 38
infra, but on the ground that the items were in possession of a person
the officers observed in the process of committing a crime. Compare
text at note 39 infra. .

- 37Accord, McGeehan v. Wainwright, 526 F.2d 397, 399-400 5th
Cir. 1976) (per curiam) ‘surveying cases); United States v. Looney,
481 F.2d 31, 33 (Sth Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581,
38 L.Ed.2d 476 (1973) (in addition to a threat to safety, the agents
must be looking for dangerous people, not things).

App. 21

than justified the agents’ cursory search to secure the im-
mediate area and to insure their own physical safety.
Since the agents were properly inside the bathroom, their
seizure of the cocaine and paraphernalia can be justified
on two separate and independent grounds. First, the offi-
cers observed the items in “plain view” in a room that they
had properly entered.** Second, they observed Willets in
the process of committing the crime of possession of nar-
cotics, which gave them grounds to arrest her and seize
the items here in question since they were in an area with-
in her control.*? Thus, the items were properly admitted,
despite the illegal entry.

(4) The limits of our holding.

Having said so much, we do not think it amiss to indi-
cate something of what we do not hold.

[161 We do not countenance the original, warrant-
less entry of Cook’s residence, nor would we suffer admis-
sion of the fruits of an unlimited, warrantless search of
her residence: matter discovered, for example, in a room
remote from the scene of the arrests or as a result of ran-

i a a

ee ee ee ee re

38Something found in the living room in plain view would not have
been admissible because the officers’ presence there was improper. Only
the legal arrest of Cravero and Chandler, followed by scuffling sounds,
created the “extraneous valid reason” that in turn validated the safety

check of the bathroom.

39See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23
L.Ed.2d 685 (1969); United States v. Jones, 475 F.2d 723, 727-28
(Sth Cir. 1973). Since the security-search rationale permits us to
approve the bathroom entry, we need not consider here the broader
issue that the concurring opinions in United States v. Watson, US.
____., 96 S.Ct. 820, 46 L.Ed.2d 598, 614 (1976) Stewart and Powell,
JJ., concurring in separate opinions), assert was left open by the
majority opinion: whether or when the police can lawf-lly make a
warrantless arrest in a private place.

App. 22

sacking bureau drawers, or the like. But being unable to
find the arrests by warrant of Chandler and Cravero in-
valid, we are likewise unable to condemn as evidence items
seized as a result of reasonable and appropriate actions
taken by the police occasioned by and directly resulting
from these valid arrests.

We do, in other words, no bold work here. Rather, we
seek to lay course between the overhanging absurdity of
the sporting theory of justice on the one side and the men-
ace of police irruption into residences on the other.

VI. Hearsay Declarations of the Previously
Acquitted Co-Conspirator

[17,18] Appellants Chandler and Willets attack as
hearsay a witness’ damaging account of statements made
by an alleged co-conspirator who had been acquitted in an
earlier trial of this conspiracy. A witness can testify to
declarations made to him by a co-conspirator only if the
government by independent evidence establishes a prima
facie case of the existence of a conspiracy and introduces
at least “slight evidence” to connect with the conspiracy
both the declarant and the defendant against whom the
statement is introduced, which requires “a showing of a
likelihood of an illicit association between the declarant
and the defendant,” United States v. Lawson, 523 F.2d
804, 806 (5th Cir. 1975) ; Park v. Huff, 506 F.2d 849, 859
(5th Cir.) (en banc), cert. denied, 423 U. S. 824, 96 S.Ct.
38, 46 L.Ed.2d 40 (1975) ; see United States v Oliva, 497
F.2d 130, 132-33 (5th Cir. 1974). Appellants, who concede
that the prosecution met its initial burden, argue that an
alleged co-conspirator’s prior acquittal deprives the trial
judge of any right to find that the government has made
the requisite showing of that person’s participation in the

App. 23

conspiracy. Other circuits have held, and we agree, that
after the government has made the requisite showings, the
admission of testimony under the co-conspirator exception
to the hearsay rule is not rendered retroactively improper
by subsequent acquittal of the alleged co-conspirator. See
United States v. Jacobs, 475 F.2d 270, 284 n.28 (2d Cir.),
cert. denied, 414 U.S, 821, 94 S.Ct. 116, 38 L.Ed.2d 53
(1973) ; Kamansuke-Yuge v. United States, 127 F.2d 683,
689 (9th Cir.), cert. denied, 317 U.S. 648, 63 S.Ct. 43, 87
L.Ed. 522 (1942).

[19] Wesee no reason for a differing rule when ac-
quittal occurs before the hearsay testimony is admitted. The
earlier acquittal signifies that the government failed to
prove the declarant a participant in the conspiracy beyond
a reasonable doubt; this circumstance in no way forecloses
the government, in a subsequent case, from establishing by
slight or even preponderant evidence the declarants’ par-
ticipation. The independent “slight evidence” necessary to
meet the threshold admissibility requirement means only
that the evidence would be sufficient to support a finding
by the jury that the declarant was a co-conspirator,’ ob-
viously not inconsistent with an earlier jury’s inability to
so determine beyond a reasonable doubt.*' The problem is at
bottom one of judicial estoppel. The declarant’s earlier
acquittal, to be sure, forecloses a redetermination of his
guilt because of considerations of double jeopardy and may
also properly be said to establish finally that he cannot
be found beyond reasonable doubt to have been a conspira-

40Cf. United States v. Nixon, 418 U.S. 683, 701 & n.14, 94 S.Ct.
3090, 41 L.Ed.2d 1039 (1974).

*1Appellants’ additional argument that some of the acquitted co-
conspirator’s statements were themselves hearsay is inconsequential
since all statements were originally uttered and repeated by participants
of the conspiracy in furtherance of it.

App. 24

tor. But it no more forecloses a determination, even by a
preponderance of the evidence,** that he was one than a
subsequent acquittal, and this is more than is required for
admission of his declaration.

VII. Prosecutor’s Cross-Examination of Defense Witness

[20, 21] Appellant Siegal objects that the prosecu-
tion improperly attacked Siegal’s character by eliciting
from a defense witness that he had once represented Siegal.
But neither the question nor the witness’ response—that he
had represented Siegal “‘[o]ne time that stands out in my
mind” and also possibly in traffic court—in any way sug-
gests representation in a criminal manner or prior criminal
activity. Furthermore, the questions were obviously aimed
at revealing possible bias because of a prior business rela-
tionship. “Partiality, or any acts, relationships or motives
reasonably likely to produce it, may be proved to impeach
credibility.” C. McCormick, Handbook of the Law of Evi-
dence §40, at 78 (2d ed. E. Cleary 1972) ; see Aetna Insur-
ance Co. v. Paddock, 301 F.2d 807, 812 (5th Cir. 1962),
quoted in Ellis v. Capps, 500 F.2d 225, 227 Cir. 1974).

VUI. New Trial

[22] Appellant Cook requests a new trial*? based on
testimony given in an unrelated case seven months after her
trial by one Andries, a government informer-witness who
there asserted that federal agents wanted him to give false
testimony by saying that Cook knew that the cocaine was
being brought to her house the night of the arrests when in

*2See generally 50 C.J.S. Judgments §752, at 272-73 (1947).

**We consolidated with the main cause Cook’s appeal from the
lower court's denial of her motion for a new trial.

—

App. 25

fact she neither knew nor consented. As we noted in United
States a. Jacquillon, 469 F.2d 380 (5th Cir. 1972), cert.
denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604 (1973),
in order to justify a new trial on the ground of newly dis-
covered evidence.

the rule is that the evidence must in fact be newly
discovered and that the movant must have exercised
due diligence in discovering the evidence. It must not
be merely cumulative or impeaching. Furthermore, the
new evidence must be material and be such that it
would probably produce an acquittal in a new trial.

Id. at 388. Cook fails to meet these requirements because
this “evidence” is not newly discovered. Appellant’s coun-
sel admits in his brief that eight months previously he had
spoken by telephone to Andries, who at the time was in the
protective custody of the United States Marshall,** and ob-
tained the same information. He insists that this evidence
is nonetheless newly discovered because only after he re-
ceived a copy of Andries’ sworn testimony in the later trial
for use as possible impeachment evidence did he have the
opportunity to insure that Andries, if called as a defense
witness, would testify to the same story he had previously
related by telephone.** But we cannot agree that lack of
assurance that a potential witness will testify as planned

“The prosecution at one point apparently intended to call Andries
as a witness in Cook’s trial but did not do so.

+SAlthough Cook’s counsel had taped the telephone conversation,
he claimed that he could not use transcripts of the taping to impeach
Andries for fear of being prosecuted under a Florida statute, Fla.Stat.
Ann. §934.03 (1973), that appears to prohibit one not a law-enforce-
ment official from taping a telephone conversation without the consent
of all parties to the conversation. Andries testified, however, that ‘ve

had consented to the taping.

App. 26

makes the expected testimony newly discovered evidence
once that assurance is received. The requirements for a

nw trial based on newly discovered evidence are clear, and
Cook has failed to meet them.

[23] Cook also demands a new trial based on a
claimed violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), by the prosecution’s
failure to reveal prior to Cook’s trial a statement by An-
dries to the prosecutor that the information Andries had
previously furnished the government about Cook was false.
But appellant’s attorney conceded that he had obtained
the same information prior to trial], so the prosecutor can
hardly be charged with suppressing it. In the context of
the Brady requirement, “any allegation of suppression boils
down to an assessment of what the State knows.at trial in
comparison to the knowledge held by the defense.” Giles v.
Maryland, 386 U.S. 66, 96, 87 S.Ct. 793, 808, 17 L.Ed.2d
737 (1967) (White, J., concurring). The purpose of Brady
is to assure that the accused will not be denied access to
exculpatory evidence known to the government but un-
known to him. Irrespective of whether the statement here
was exculpatory evidence under Brady, a question we do
not reach, there is no Brady violation when the accused or
his counsel knows before trial about the allegedly exculpa-
tory information and makes no effort to obtain its
production.**

*6Accord, Maglaya v. Buchkoe, 515 F.2d 265, 268 (6th Cir.), cert.
denied, 423 U.S. 931, 96 S.Ct. 282, 46 L.Ed.2d 260 (1975); United
States v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S.
939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973).

RA ane

" Ts Cie tie

6 aa ES CE Rt tn NS Ac

App. 27

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 75-2718

D. C. Docket No. FL-74-91-CR-PF

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

RICHARD DOUGLAS CRAVERA, a/k/a “Ricky’ ,
SHARON WILLETS, MARIANNE COOK, PHILLIP

SIEGAL, RONALD CLIFFORD CHANDLER, and
BOBBY EUGENE MILLER,
Defendants-Appellants.

Appeals from the United States District Court for the
Southern District of Florida

Before BROWN, Chief Judge, TUTTLE and GEE, Cir-
cuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of
the record from the United States District Court for the
Southern District of Florida, and was argued by counsel;

App. 28

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be, and the same is
hereby, affirmed.

August 6, 1976

Issued as Mandate:

re ne ee ee

vs em i ne a es tnt ys math ans Phot

App. 29
[TITLE OMITTED]
Jan. 7, 1977.

ON PETITIONS FOR REHEARING AND PETITIONS
FOR REHEARING EN BANC

(Opinion August 6, 1976, 5 Cir., 1976, __ F.2d __).

Before BROWN, Chief Judge, and TUTTLE and
GEE, Circuit Judges.

GEE, Circuit Judge:

In their petitions for rehearing, appellants Cook, Cra-
vero, Chandler and Willets have questioned the logic of our
panel’s holding that the arrests made after an illegal entry
of Ms. Cook’s home were somehow made legal because of
valid arrest warrants, Upon reconsideration of this seem-
ing paradox, we find that we erred in requiring probable
cause plus exigent circumstances to validate the entry
without a search warrant.

As early as Agnello v. United States, 269 U.S. 20, 46
S.Ct. 4, 70 L.Ed. 145 (1925), the Supreme Court recognized
that an entry to execute an arrest warrant is an exception
to the requirement of a search warrant to intrude into a
home. See also United States v. Jeffers, 342 U.S. 48, 72
S.Ct. 93, 96 L.Ed. 59 (1957) ; United States v. Rabinowitz,
339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In Ker v.
California, the Court quoted with approval Justice Tray-
nor’s opinion in People v. Maddox, 46 Cal.2d 301, 306, 294
P.2d 6, cert. denied, 352 U.S. 858, 77 S.Ct. 81, 1 L.Ed.2d
65 (1956) :

App. 30

“{W]hen an officer has reasonable cause to enter
a dwelling to make an arrest and as incident to
that arrest is authorized to make a reasonable
search, his entry and his search are not unreason-
able.”

374 U.S. 23, 39, 83 S.Ct. 1623, 1633, 10 L.Ed.2d 726
(1963).

[1,2] The law of this circuit, which our panel opin-
ion overlooked, is that when an officer holds a valid arrest
warrant and reasonably believes that its subject is within
premises belonging to a third party, he need not obtain a
search warrant to enter for the purpose of arresting the
suspect. United States v. James, 528 F.2d 999, 1017 (5th
Cir. 1976) ; Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th
Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d
1007 (1973). The test is properly framed in terms of rea-
sonable belief. Probable cause is essentially a concept of
reasonableness, but it has become a term of art in that it
must always be determined by a magistrate unless exigent
circumstances excuse a search warrant. When one says
“probable cause,” therefore, one also says either “magis-
trate” or “exigent circumstances.” Reasonable belief em-
bodies the same standards of reasonableness but allows the
officer, who has already been to the magistrate to secure
an arrest warrant, to determine that the suspect is prob-
ably within certain premises without an additional trip to

App. 31

the magistrate and without exigent circumstances.' Accord
United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d
419 (1972) ; United States v. McKinney, 379 F.2d 259 (6th
Cir. 1967). The reasonableness of the officer’s judgment
is always subject to judicial review, of course.

{[3] Because entry to execute an arrest warrant is
treated by this court as an exception to the requirement
of a search warrant,’ we withdraw that portion of our
panel opinion which held the entry into Ms. Cook’s home
illegal. Having personally observed Cravero and Chandler
enter the Cook residence, the officers’ belief that the sus-
pects were within those premises was clearly reasonable,
and their entry to execute arrest warrants on those two
individuals was therefore legal and the arrests valid. The
protective sweep incident to the arrests was permissible
for the reasons noted in our earlier opinion.

The petition for rehearing is DENIED, and no mem-
ber of this panel nor judge in regular active service on the
court having requested that the court be polled on rehearing
en banc (Rule 35, Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 12), the petition for rehearing en
banc is DENIED.

‘One explanation for not requiring a search warrant to enter a
third person’s home to execute an arrest is that there is no need to par-
ticularize the search—the arrest warrant has already done that. There
is not the same danger of the “general writ” which is the reason for
requiring that a search warrant describe what specific items police
are allowed to search for.

?The exception is limited to protect against a general police can-
vassing of the homes of all of the suspect’s acquaintances. There must be
a reasonable belief that the person named in the arrest warrant is in-
side; furthermore, the entry is valid only for the purpose of executing
the arrest and not for conducting a general search.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1219%3A1. Public record. Not legal advice.