Memorandum — Cook v. United States

, 5 Supreme Court, 2.3. a

‘jee BLL LD

No. 76-1090 _ APR 19 3° |

ICHAEL RODAK, JR. CLERK

In the Supreme Court of the ; Tnited States

OCTOBER TERM, 1976

‘ MARIANNE COOK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

Wave H. McCRreE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

RoBERT J. ERICKSON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

TABLE OF CONTENTS

Page

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SIIIIIIEY -ciiiitinstidiansplanbetiensistindgbodiividediesenantesedumpenaiiiieiens 2

EERE en Sea ee AEE eee ae 6

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CITATIONS

Cases:

Adams v. Williams, 407 U.S. 143 ...........ccccce cece ee eee 10

Dorman v. United States, 435 F. 2d 385 ............. 8-9

. sg eo © |e 6 ee eee 8

Government of Virgin Islands v. Gereau, 502

F. 2d 914, certiorari denied, 420 U.S. 909 .......... 8

Harris v. United States, 390 U.S. 234 wo... 10

Lankford v. Gelston, 364 F. 2d 197 ........cec cece eeeee. 8

Rice v. Wolff, 513 F. 2d 1280, reversed on

other grounds sub nom. Stone v. Powell, No.

F4-1222, GectGed July 6, 1976 ......ccccccccccrcsessessoees 8

Salvador v. United States, 505 F. 2d 1348 ............. 8

United States v. Basurto, 497 F. 2d 781 ................ 1]

United States v. Blake, 484 F. 2d 50, cer-

tiorart dented, 417 U.S. 949 ................cccccccssseeees 11

United States v. Brown, 467 F. 2d 419 ................... 8

United States v. Carter, 522 F. 2d 666 .................. lI

il | iil

Page Page

Cases continued: | Miscellaneous:

United States v. Cooks, 493 F. 2d 668, cer- ALI, A Model Code of Pre-Arraignment Pro-

tiorari denied, 420 U.S. 996... eeeeeeeeeeenen I | eo

United States v. Fernandez, 480 F. 2d 726 ............. y

United Statesv. Hobson, 519 F. 2d 765, cer-

SROINS GIGI, GERD Tied. DPE ceckccsecdecdsecctccsecscnccces 1] |

United States v. James, 528 F. 2d 999 ooo... 8

United States v. Johnson, C.A. D.C., No.

73-2221, decided January 12, 1977, petition

for a writ of certiorari pending, No. 76-6366 ...... 9 |

United States v. McKinney, 379 F. 2d 259 ..ccce.coe- 8 |

United States v. Miller, 449 F. 2d 974 ..........0.0002.. 1] |

United States v. Rodriguez, 532 F. 2d 8364 ............ 11

United States v. Santana, 427 U.S. 38 .........cc cece 6

United States v. Shve, 492 F. 2d 886 ............0c...00e 8

United States v. Smith, 515 F. 2d 1028, cer-

tiorari denied, 424 U.S. 917 woe. cececeeeeeeeees 11 |

United States v. Watson, 423 U.S. 411 wo... eee. 6

United States ex rel. Wright v. Woods, 432 |

Fue ETE suisiciuiningsaucibicsineinantiiesditiiainigentanbtapeeaiiies 9

Vance v. North Carolina, 432 F. 2d 984 ...........0.... 8

Warden v. Hayden, 387 U.S. 294 oo..ccccccccccccceeeeeeees 10

Statute and rule: '

Seat Pane: SPIE cdccdtsedscahctsscheshssninncibiceciedasesinniindelilsaiindinids 2

Pe is SERED Wo. GID Gusetniccisbitensiseiiesniebenettbleimmasialings 8 |

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 76-1090

MARIANNE COOK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-26),

as modified by its opinion denying rehearing (Pet. App.

29-31), is reported at 545 F. 2d 406.

JURISDICTION

The judgment of the court of appeals (Pet. App. 27-

28) was entered on August 6, 1976. A petition for re-

hearing was denied on January 7, 1977 (Pet. App. 31). The

petition for a writ of certiorari was filed on February

5, 1977. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether an arrest warrant authorizes law enforce-

ment officers to enter the house of a third party, to make

(1)

2

the arrest, where they are certain that the person named

in the warrant is in the house.

2. Whether officers, once properly in a house, may

quickly examine their surroundings to guard against

the possibility that persons elsewhere in the house

might endanger their safety.

STATEMENT

Following a jury-waived trial in the United States District

Court for the Southern District of Florida, petitioner was

convicted of possessing cocaine with intent to distribute that

drug, in violation of 2! U.S.C. 84l(a)(1).' She was

sentenced to four years’ imprisonment, to be followed by

three years’ special parole.

1. In late June 1974 a narcotics organization headed by

Richard Cravero imported a large quantity of cocaine and

marijuana into the United States by boat. To facilitate this

operation, Cravero hired William Orr, an informant, to

pilot one of the boats. After the drugs had been imported

into this country, Cravero was unable to pay for Orr’s

services. Orr and Cravero arranged to meet in the early

evening hours of July 14, 1974, at a restaurant, to discuss

this problem.

Federal agents outside the restaurant observed Orr meet

with Cravero, Ronald Chandler and Sharon Willets (S. Tr.

'Petitioner also was charged, together with Richard Cravero, Ronald

Chandler, Sharon Willets, Bobby Miller, Phillip Siegal, and others with

conspiring to import and possess narcotics. She was found not guilty of

the conspiracy. Cravero, Chandler, Willets, Miller and Siegal were

convicted. Miller's petition for a writ of certiorari (No. 76-5582) was

denied on February 22, 1977. Cravero, Chandler, and Willets also have

filed a petition (No. 76-1267); that petition does not present any issue in

common with those involved here.

3

65-66, 213-214, 402-403, 446-447).2 The agents possessed

warrants to arrest both Cravero and Chandler for narcotics

crimes that the court of appeals described as of a “heinous

nature” (Pet. App. 20). The officers also had information

that the two men were heavily armed and had been involved

in a murder (S. Tr. 164-165). Their appearance at’ the

restaurant was the first time the agents had been able to

locate them since the issuance of the warrants (S. Tr. 204,

466-470, 548, 584, 766-768).

The agents did not attempt to arrest Cravero and Chand-

ler at the restaurant. They wished to avoid compromising

Orr’s role as an informant and to protect Orr and his family

from possible reprisal (S. Tr. 113-114, 616-617, 628-629).

The agents watched as Cravero, Chandler, and Wiiiets left

the restaurant, got into a car driven by Donaid Troise

(another person named in an outstanding arrest warrant)

(S. Tr. 994)), and drove off (S. Tr. 86-88, 221-226, 404-406,

452-453, 480, 486-487, 498, Sy, 909-913, 916-917, 921-922,

931, 933, 942).3

The agents followed the car to a Miami motel, where the

occupants lingered for several minutes before driving away

again, having dropped off one of the original passengers (S.

Tr. 86-88, 100-101, 227).4 The car went to petitioner’s house,

and its passengers went inside (S.4r. 105, 487, 494-495, 499,

*“S. Tr.” refers to the transcript at the pretrial suppression hearing.

‘The agents could not identify a fifth person they saw in the car (S. Tr.

486-487, 733).

‘The car then contained Cravero, Chandler, Willets and an unidenti-

fied fourth person. The agents were unable to tell whether any occupant

of the car had remained at the motel (S. Tr. 407). Some of the agents

conducted an investigation to determine if Troise had remained, but

they did not find him there (S. Tr. 914-915); they notified the other

agents of this (S. Tr. 940-941).

4

502-504, 643-644). Shortly after 9:00 p.m. numerous agents

surrounded the house.°*

About four hours later the agents, having concluded that

Chandler and Cravero would not soon leave petitioner's

house, decided to enter the house and execute the arrest

warrants (S. Tr. 120-121). Before the agents decided to make

the arrest, they had learned that Cravero had telephoned

Orr and indicated that he was aware of Orr’s role as an

informant (see Pet. App. 12 n. 18).

While other agents surrounded the house, two agents

knocked on the door, identified themselves, and announced

that they had arrest warrants for persons inside (S. Tr. 126,

410-411, 514-515, 650). After approximately one minute,

petitioner opened the door and exclaimed: “Hey, you guys,

the cops are here” (S. Tr. 412, 515, 650-653). The agents

promptly entered; they found Cravero in the living room

and arrested him (S. Tr. 413-414, 418, 516-517, 653). They

immediately saw Chandler standing in the doorway of the

master bedroom, next to a television set on which there was

a pistol (S. Tr. 131, 138, 415-416, 427-430, 522-527, 653-656,

719). They arrested Chandler and seized the gun.

The officer who seized the pistol heard “rustling noises”

or the sound of someone “scuffling around” in the adjacent

bathroom (S. Tr. 431, 528, 658). Expecting to find Troise,

who had a reputation for violence and who was reported to

be heavily armed (S. Tr. 164-165, 722, 913, 933), three

officers entered the bathroom with weapons drawn (S. Tr.

427, 431, 533, 666, 719-722). They found not Troise but

Willets, leaning over the shower stall (S. Tr. 421-426, 534,

‘The agents saw Phillip Siegal. but no one else. leave petitioner's

house (S. Tr. 511-513, 586-587). Siegal drove off in the same car that had

been used by the group when they left the restaurant earlier in the

evening.

5

671-672). When Willets stood up, an agent saw a metal tray

containing a large quantity of white powder (later

determined to be cocaine) on the floor of the shower (S. Tr.

677, 687-688, 720, 724), and he also noticed, on the counter

next to the sink, paraphernalia used in the processing of

narcotics (S. Tr. 717-718). The officers then looked in the

closed portion of the shower stall and in a full-length closet,

both places where a man could hide, but did not find Troise

or anyone else (S. Tr. 537, 541, 572).

The cocaine and the processing paraphernalia were

introduced into evidence at petitioner’s trial.

2. The court of appeals initially heid that the arrest

warrants did not authorize an entry into petitioner’s house

(Pet. App. 14-18). The court concluded that an entry into a

third person's dwelling to make an arrest required a search

warrant, based on probable cause to believe that the person

to be arrested was within. It explained that an entry into a

third party’s home without a search warrant “[would] be

permissible only if exigent circumstances or some other

established exception to the warrant requirement obtains”

(Pet. App. 16-17; footnote omitted).

The court held that no exigent circumstances supported

the entry into petitioner's house (Pet. App. 13-14and n. 24).

It upheld the introduction of the evidence, however,

reasoning that it had been seized as a fruit of the arrests

rather than as a fruit of the illegal entry (Pet. App. 18-26).

The agents were entitled to arrest Cravero and Chandler, it

explained, and the contraband © as inadvertently discovered

in plain view during a protective sweep of the house for

other dangerous persons.

On petition for rehearing, the court of appeals receded

from its original analysis and held that “an entry to execute

an arrest warrant is an exception to the requirement of a

6

search warrant to intrude into a home” (Pet. App. 29). The

court wrote that the arrest warrant serves the same role as a

search warrant by particularizing the search (id. at 31 n. 1)

and that officers with an arrest warrant may properly enter a

residence, even that of a third party, if they have probable

cause to believe the suspect will be found inside (id. at 30-

31). It therefore denied the petition for rehearing.

DISCUSSION

1. There are two important unresolved issues

concerning the propriety, under the Fourth Amend-

ment, of entries to make arrests on probable cause. The

first is whether a warrant, of any type, is necessary io

enter a suspect’s own dwelling® to arrest him on prob-

able cause to believe that he has committed a felony.

The second is whether a search warrant is necessary to

enter the dwelling of a third person to arrest a person

who is lawfully subject to arrest and who there is probable

cause to believe can be found there. See United States

v. Santana, 427 U.S. 38, 43-44 (White, J., concurring), 45

(Marshall, J.. dissenting); United States v. Watson, 423

U.S. 411, 432-433 and n. 7 (Powell, J.. concurring). 433

(Stewart, J.. concurring). This case presents the second

of these questions.

We have argued that neither an arrest warrant nor a

search warrant is necessary to enter the dwelling of a

suspect to arrest him on probable cause to believe that he

has committed a felony.’ If that argument is correct, or

‘We use “dwelling” to mean a private place in which the person

resides. It would include a hotel or motel room rented by a

transient.

"See pages 30-46 of our brief in United States \. Santana, No. 75-

19. October Term. 1975.

7

if an arrest warrant alone is sufficient, then the ev-

idence seized in petitioner’s house could be used at trial

against Cravero and Chandler, for they surely could have

no greater expectation of privacy or right to be free of

arrest in petitioner’s house than they would have had in

their own. The arrest warrants issued for Cravero and

Chandler, moreover, amounted to judicial authorization

to deprive them of their liberty, and they would not be

entitled to complain that this deprivation was effected

in one place rather than another; they had no legitimate

expectation of privacy in their surroundings, because they

had no legitimate entitlement to remain at liberty.

Furthermore, because persons are highly mobile, an ar-

rest warrant need not state the place at which the arrest

is to take place—the suspects might move from one place

to another even as the warrants are being obtained.

For these and other reasons, it is appropriate to con-

clude that a person arrested pursuant to an arrest warrant in

the dwelling of a third party cannot complain about the

seizure of evidence during the entry and arrest. It does not

follow from this, however, that the evidence also may be

introduced against the third party. Petitioner had a

legitimate expectation of privacy in her dwelling; that

expectation was not diminished in this case by probable

cause to arrest her, and there was no prior judicial

determination that it was proper to search petitioner's house

for Cravero and Chandler.

The courts of appeals are in conflict on the question

whether an arrest warrant is sufficient to authorize officers

to enter the dwellings of third parties to look for the suspect

named in the warrant. Some courts of appeals—

cmphasizing historical practices, the transience of persons

who are not at home, the fact that the arrest warrant already

has particularized the search, and the fact that a search for

8

persons is not as intrusive as a search for chattels—have held

that evidence found in an entry pursuant to an arrest

warrant may be introduced against the third party whose

home has been entered.* The Third Circuit has disagreed,

and it has required either a search warrant or exigent

circumstances as a precondition to the entry of a dwelling of

a third party.° Still other courts do not appear to distinguish

between entries into the suspect's dwelling and entries intoa

third party’s dwelling; many of these courts appear to

require a search warrant for any arrest entry.'®

*In addition to the instant case, see United States v. McKinney, 379 F.

2d 259, 262-263 (C.A. 6) (issuance of an arrest warrant is an “exceptional

circumstance” authorizing search, in light of the mobility of the

suspect), and United States v. James, 528 F. 2d 999, 1017 (C.A. 5). See

also United States v. Brown, 467 F. 2d 419 (C.A.D.C.) (announcing a

general rule that an arrest warrant authorizes entry anywhere that the

officers have probable cause to believe that the suspect may be found,

and upholding introduction of evidence against the person named in the

warrant). An arrest warrant authorizes the apprehension of the suspect

“at any place within the jurisdiction of the United States” (Fed. R. Crim.

P. 4(d)(2)), and these courts hold that this authorization is

constitutionally adequate.

"Government of the Virgin Islands v. Gereau, 502 F. 2d 914, 928-930

(C.A. 3), certiorari denied, 420 U.S. 909 (admitting evidence in light of

exigent circumstances); Fisher v. Volz, 496 F. 2d 333, 338-342

(C.A. 3) (dictum).

Petitioner contends (Pet. 19-20) that Rice v. Wolff. 513 F. 2d 1280,

1292 (C.A. 8), reversed on other grounds sub nom. Stone v. Powell, No.

74-1222, decided July 6, 1976, also requires a search warrant or exigent

circumstances as a condition to an arrest entry. This is incorrect. Rice

held only that officers executing an arrest warrant on the premises of a

third party must at least have probable cause to believe that the suspect

is there; the court explicitly reserved the question whether a search

warrant is necessary. See also Lankford v. Gelston, 364 F. 2d 197, 202-

203 and n. 6 (C.A. 4) (en banc) (reserving question).

"See Vance v. North Carolina, 432 F. 2d 984(C.A. 4); United States

v. Shve, 492 F. 2d 886(C.A. 6): Salvador v. United States, 505 F. 2d 1348

(C.A. 8). All of these courts rely upon Dorman v. United States, 435 F.

9

The question whether officers should obtain a search

warrant, in addition to an arrest warrant, before entering a

place other than the residence of the suspect is important to

the administration of the criminal justice system. Officers

should know what is expected of them in this regard, so that

evidence of crime is not needlessly suppressed. The question

has never received the attention of this Court. We therefore

believe that the Court should grant review here. The court of

appeals held that the entry of petitioner’s house was not re-

quired by exigent circumstances (Pet. App. 13-14 and n.

24)'!' and was not a pretextual entry to gain an opportunity

2d 385 (C.A. D.C.) (en banc), for the proposition that a warrant or

exigent circumstances ordinarily are required to enter a private place to

make an arrest. Neither Dorman nor the cases following it distinguish

between arrest and search warrants or between entries into the suspect's

house and the house of a third party. But each of the courts following

Dorman, including the District of Columbia Circuit, has made such a

distinction in another case. See notes 8 and 9, supra. See also United

States v. Johnson, C.A. D.C., No. 73-2221, decided January 12, 1977

(en banc), petition for a writ of certiorari pending, No. 76-6366

(officers may enter without a warrant to arrest persons seen inside.

in plain view, committing a crime).

On the other hand, at least two courts of appeals have indicated that

probable cause alone ordinarily is sufficient to support an arrest entry.

See United States v. Fernandez. 480 F. 2d 726, 740 n. 20(C.A. 2): United

States ex rel. Wright v. Woods, 432 F. 2d 1143 (C.A. 7). The American

Law Institute also does not distinguish between arrests on the suspect's

premises and arrests in some other place. Its proposed ru.e would allow

arrests in any place, on probable cause, without a warrant. The Institute

would, however, require an arrest warrant or exigent circumstances for

a nighttime arrest. ALI, A Model Code of Pre-Arraignment Procedure

$120.6 and pp. 306-314 (1975).

''The prosecution argued in the court of appeals that the entry was

justified by exigent circumstances. This argument was supported by the

holdings of a number of courts, following Dorman vy. United States,

supra, that create a balancing test considering a large number of

factors that might justify a warrantless arrest entry. Some of these

factors, including the seriousness of the crime, the fact that the suspects

were armed, and so on, indicated the appropriateness of a prompt arrest

in this case. The courts of appeals have held that a combination of a

10

to search the house (id. at 11-12 and nn. 17-19). This case

therefore presents the question clearly, and we see no reason

for the Court to postpone addressing it.

2. If the agents were properly in petitioner's house to

arrest Cravero and Chandler, then they were entitled to

glance into the bathroom to ensure their personal safety; the

contraband found in plain view in those circumstances

could lawfully be seized.'? The agents’ brief inspection was

justified by ordinary principles of exigent circumstances.

The agents had converged near the bathroom to arrest

Chandler, seized a gun, and heard noises in the bathroom

that might well have been caused by another armed person.

Their decision to open the bathroom door was justified not

only by what they had seen and heard but also because they

suspected that Troise, whom they had a -varrant to arrest

and who was known to be armed and dangerous, was in the

house. The officers saw Troise earlier in the car and had not

since located him; they were entitled to take reasonable steps

both to find him in order to arrest him and to protect

themselves from him. See Adams v. Williams, 407 U.S. 143,

146; Warden v. Hayden, 387 U.S. 294, 299. The agents also

knew that persons in addition to Cravero and Chandler

were in the house—if not Troise, then Willets or others—

and these persons constituted a possible danger against

which the officers were entitled to protect themselves.

number of these factors amounts to “exigent circumstances” justifying

prompt entry. We do not make an exigent circumstances argument here,

however, because one factor strongly indicates the absence of a need for

haste: the agents had surrounded petitioner's house, waited patiently for

more than four hours, and decided to enter only when it became clear

that nothing significant was happening and that Cravero and Chandler

were not likely to emerge. This consideration seems to be the antithesis

of exigency.

'?Harris v. United States, 390 U.S. 234, 236.

The court of appeals held that the inspection of the

bathroom was justified as a “prospective sweep” by

officers entitled to be within the house (Pet. App. 19-

21). Petitioner contends (Pet. 16-19) that this justifica-

tion is insufficient. But whether or not the officers

would have been justified in conducting a “protective

sweep” in the absence of reason to believe that there

were persons inside the bathroom, they were entitled

to proceed as they did here in light of their reasonable

suspicion that someone was in the bathroom and might

pose a danger to them. The Court therefore need not

consider in this case whether, in general, law enforce-

ment officers may quickly glance intc other rooms of

a house in which they have made an arrest in the ab-

sence of specific and articulable reasons to believe that

they may be in danger.'?

¢

There is conflict among the circuits on this question. Compare

United States v. Smith, 515 F. 2d 1028 (C.A. 5), certiorari

denied, 424 U.S. 917, and United States v. Blake, 484 F. 2d

50 (C.A. 8), certiorari denied, 417 U.S. 949, which hold that such

inspections are permitted, with United States v. Cooks, 493 F.

2d 668 (C.A. 7), certiorari denied, 420 U.S. 996, and United States

v. Rodriguez, 532 F. 2d 834 (C.A. 2) (by implication), which

conclude that they are not. Some courts of appeals are internally

divided on the question. Compare United States v. Carter, 522

F. 2d 666 (C.A. D.C.) (protective sweeps are impermissible), with

United States v. Miller, 449 F. 2d 974, 977 (C.A. D.C.) (protective

sweeps are a reasonable precaution); compare United States v.

Basurto, 497 F. 2d 781, 787-790 (C.A. 9) (impermissible), with

United States v. Hobson, 519 F. 2d 765, 776 (C.A. 9), certiorari

denied, 423 U.S. 931 (permissible). We believe that the propriety

of protective sweeps is an important question that should be ad-

dressed in an appropriate case. The present case, however, does

not squarely present the question that has divided the courts of

appeals.

12

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WapbeE H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

ROBERT J. ERICKSON,

Attorneys.

APRIL 1977.

DOJ-1977-04