# Memorandum — Cook v. United States

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## Record

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

## Text

, 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
I a | basins
EE ie A ae eee OR
I a sreeusibabienainll i
SIIIIIIEY -ciiiitinstidiansplanbetiensistindgbodiividediesenantesedumpenaiiiieiens 2
EERE en Sea ee AEE eee ae 6
REE a aan See NO Eee Meee ae eNO, oR Sen 12
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

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