Petition — Gardner v. United States

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OCTOBER TERM, 1977

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NO.

JOSEPH MICHAEL GARDNER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEORGE D. GOLD, ESQ., and

MORAN & GOLD, P.A.

950 Building

950 South Miami Avenue

Miami, Florida 33130

Telephone: (305) 373-5475

Attorneys for Petitioner

INDEX TO PETITION

Page

CITATIONS TO OPINION BELOW ............ 2

ID orn hs cee deadeabades 6sa0 bus 3

QUESTIONS PRESENTED FOR REVIEW ..... 4

CONSTITUTIONAL, STATUTORY AND RULE

ood 8 Bs A |) Re 6

BEA Teme CE Tee CAB once sc cccccccccen 8

REASONS RELIED UPON FOR GRANTING

OO re re ee rer rr ee 1]

SPE vinous (unaudheebuR ewes endececdas 25

mo yp fey Be ek ree 26

TABLE OF AUTHORITIES

Cases Page

Cardwell v. Lewis,

417 U.S. 583, 94 S.Ct. 2464, L.Ed.2d 325 (1974) 14

Culombe v. Connecticut,

367 U.S. 568, 81 S.Ct. 1860 (1961)........... 20

McDonald v. United States,

335 U.S. 451, 69 S.Ct. i91 (1948)....... i. tz &3

14, 18

Miller v. United States,

OST UF. Tee PO Ue. TERS (IBGE) ic ce scclices. 24

Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041 (1973)......... 16, 20

United States v. Brown,

2 ® & F fa Re. iy, ere 0

United States v. Calhoun,

— ee BF Fe 5 ee 0

United States v. Jeffers.

342 U.S. 48, 72 S.Ct. 93 (1951)............ 23, 24

United States v. Roselli,

_ Ee pocee Fo A. ee 17, 19

Vale v. Louisiana, }

399 U.S. 30, 90 S.Ct. 1969 (1970)............ 11

TABLE OF AUTHORITIES (Cont.)

Cases

UNITED STATES CONSTITUTION

Fourth Amendment

Fifth Amendment

UNITED STATES CODE

18 U.S.C. Section 3109

OTHER AUTHORITY

Rules of the Supreme Court of the United States

Rule 19(1)(b)

Page

in the

Supreme Court

of the

United States

OCTOBER TERM 1977

No.

JOSEPH MICHAEL GARDNER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, JOSEPH MICHAEL GARDNER, prays

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Fifth

Circuit entered in this matter on June 10, 1977. Petition for

Rehearing and Rehearing En Banc was denied on August

16, 1977.

/

CITATIONS TO OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is presently unreported, but does appear in

the Appendix hereto (App. A, pp. 1-9). The order denying

rehearing and rehearing en banc is presently unreported,

but is also included in the Appendix hereto (App. B, pp. 10-

11). The Fifth Circuit also granted Petitioner’s Motion for

Stay of Mandate and that order also appears in the Appen-

dix (App. C, pp. 12-13).

ty

JURISDICTION

The judgment, decision and opinion of the United

States Court of appeals for the Fifth Circuit sought to be

reviewed was entered on June 10, 1977 (App. A, pp. 1-9).

The date of the order denying rehearing is August 16, 1977

(App. B, p. 10).

The jurisdiction of this Court is invoked under Title 28,

U.S.C. Section 1254(1), and under Rule 19(1)(b). Petitioner

believes (i) that the Court of Appeals for the Fifth Circuit

has decided a federal question in a way which conflicts with

applicable decisions of this Court; (ii) that the Court of Ap-

peals for the Fifth Circuit has rendered a decision essential-

ly in conflict with decisions of the Courts of Appeal for the

Sixth, Seventh and Ninth Circuit on the same subject mat-

ter; and (ili) that the Court of Appeals for the Fifth Circuit

has decided an important aspect of the federal law on whose

burden it is to establish compliance with 18 U.S.C. §3109

which has not been, but should be, settled by this court.

QUESTIONS PRESENTED FOR REVIEW

A.

Does Vale v. Louisiana, 1970, 399 U.S. 30,

preclude a finding of “exigent circumstances”

where a Defendant is arrested outside his home

and the police have merely been apprised that

“someone” is still inside but are not otherwise in-

formed of the identity or complicity of the in-

dividual remaining, that person’s knowledge of

the whereabouts of drugs believed to be inside or

any objective facts indicating the imminent

destruction of the contraband believed to be

within?

Where a Drug Enforcement Agent testifies that he

and his fellow agents knew “‘for sure”’ that a quan-

tity of cocaine was in the Defendant’s home hours

before they arrived, is their failure to secure a

search warrant a violation of the Fourth Amend-

ment to the United States Constitution or may

such failure be excused under the principles enun-

ciated in Cardwell v. Lewis, 1974, 417 U.S. 583°?

C.

Does a Defendant have the burden of proving

drug agents’ failure to announce their purpose and

authority under §18 U.S.C. §3109, and, if so, has

a Defendant adequately discharged that burden

where defense counsel elicited, on cross, from an

agent who heard and observed a fellow agent

knock on the door, that he did not hear any an-

nouncement of authority or purpose?

D.

Does absence of proof of direct threats to a De-

fendant’s body preclude a finding of involun-

tariness of the Defendant’s confession where the

Defendant was threatened with destruction of his

home, harm to his wife and to his pets?

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

United States Constitution, Amendment Four:

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 affirma-

tion, and particularly describing the place to be

searched, and the person or things to be seized.

United States Constitution, Amendment Five:

No person . . . shall be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without

due process of law; ***

Title 18, United States Code, Section 3109:

§3/09. Breaking doors or windows for entry or

exil

The officer may break open any outer or in-

ner door or window of a house, or any part of a

house, or anything therein, to execute a search

warrant, if, after notice of his authority and pur-

pose, he is refused admittance or when necessary

to liberate himself or a person aiding him in the

execution of the warrant.

Rule 19(1)(b):

Where a court of appeals has rendered a deci-

sion in conflict with the decision of another court

of appeals on the same matter; or has decided an

important state or territorial question in a way in

conflict with applicable state or territorial law; or

has decided an important question of federal law

which has not been, but should be, settled by this

court; or has decided a federal question in a way

in conflict with applicable decisions of this court;

or has so far departed from the accepted and usual

course of judicial proceedings, or so far sanc-

tioned such a departure by a lower court, as to call

for an exercise of this court’s power of supervi-

sion.

Rules of the Supreme Court of the United States,

Revised, and as amended to November 15, 1975:

6

STATEMENT OF THE CASE

A Drug Enforcement Administration (D.E.A.) in-

formant and D.E.A. Agent Brown flew down to the Fort

Lauderdale International Airport on July 2, 1975, from

Atlanta, after the informant (Gunn) had spoken long dis-

tance to Petitioner respecting a purchase of cocaine. ' Gunn

and Agent Brown met with agents of the D.E.A.’s Miami

Regional Office to outline why they had flown down.

The next day, July 3, 1975, Gunn placed a second call

from his motel room to Petitioner at his home, and they

made arrangements for Gunn to take delivery of one kilo of

cocaine. Agent Brown testified that they knew “for sure”

that the cocaine was in Petitioner’s house even before Gunn

left the hotel to meet Petitioner at a local lounge from

which Petitioner would drive Gunn back to his house.

Indeed, hours later, Gunn met Petitioner at the El

Toro Lounge and then they departed in Petitioner’s car for

his home. Although surveilling agents lost sight of the car,

other agents were already in position all around Petitioner's

house even before the El Toro meeting, and were, of course,

watching as they arrived.

The two went inside Petitioner’s house and then came

back out about twenty (20) minutes later. Just before Gunn

entered Petitioner’s car, he gave a pre-arranged signal.

Upon observing it, the agents descended on foot and in cars

from all sides, firearms drawn, and arrested Petitioner and

feigned the arrest of Gunn.

‘Gunn, the informant, had purchased cocaine previously from

Petitioner's wife back in April, 1975.

Off to the side, Gunn told the agents on/y that

““someone”’ was still inside the house and that he had seen

the cocaine. Notwithstanding the presence at court of

almost all of the agents who participated in the arrest, the

Government called only Agent Brown. Brown confirmed on

direct examination, cross and redirect that Gunn merely

had made reference to someone else still inside the house.

Gunn did not further elaborate.

After talking with Gunn, and after advising Petitioner

of his rights, the agents walked up to the front door and

knocked. Agent Brown testified that he was right at the

front door when he saw and heard another agent knock.

Neither this agent, however, nor any other agent, an-

nounced who they were or what their purpose was in seek-

ing entry. They then unlocked the front door with

Petitioner’s keys (which they had seized) and entered.

Once inside, they found Petitioner's wife out on the sun

porch and otherwise secured the premises. Petitioner

testified without contradiction that, once inside, the agents

threw him (handcuffed) to the floor, kept he and his wife in

the living room at gunpoint, threatened to shoot his dogs

and to tear the house apart if he did not tell them where the

cocaine was. Getting no repsonse from Petitioner, he was

segregated from his wife and taken out to the sun porch.

Agent Brown recalled how Petitioner was led away so

another agent could “‘talk{ ] to him for a few minutes.”

He heard bits and pieces of the “‘talk.’’ One time he heard

the other agent say, ““We know there is a large quantity in

here and we can get a search warrant.’’ Another time he

heard Petitioner say, “No, I don’t want you tearing up my

house.”’

Petitioner testified that he was so scared and

frightened by what the agents had done to him and

threatened to do to his dogs and house that he capitulated,

and told them where the cocaine was hidden.

REASONS RELIED UPON FOR

GRANTING THE WRIT

THE FIFTH CIRCUIT’S DECISION

RESPECTING (1) WHAT CONSTITUTES A

SHOWING OF EXIGENT CIRCUM-

STANCES SUFFICIENT TO DISPENSE

WITH THE REQUIREMENT OF A SEARCH

WARRANT AND (2) WHAT CONSTITUTES

A SHOWING OF COERCION SUFFICIENT

TO ESTABLISH THE INVOLUNTARINESS

OF A CONFESSION CONFLICTS WITH

PRIOR DECISIONS OF THIS COURT ON

THE SAME SUBJECTS.

(1) What constitutes a showing of exigent cir-

cumstances sufficient to dispense with the require-

ment of a search warrant?

The decision below constitutes a clear departure from

this Court’s decisions in Vale v. Louisiana, 399 U.S. 30, 90

S.Ct. 1969 (1970) and McDonald v. United States, 335

U.S. 451, 69 S.Ct. 191 (1948).

In Vale v. Louisiana, supra, the Court rejected as in-

adequate to pass constitutional muster a showing of ‘‘ex-

igent circumstances” based on police officers’ generalized

fears that someone inside a house (outside of which another

occupant of the house has just been arrested) might destroy

the narcotics believed to be within. The Fifth Circuit’s

opinion on this issue is quite close to the Louisiana

Supreme Court’s opinion which this Court summarized as

follows:

“The Louisiana Supreme Court thought the

search independently supportable because it in-

volved narcotics, which are easily removed, hid-

den, or destroyed. It would be unreasonable, the

Louisiana Court concluded, ‘to require the of-

ficers under the facts of the case to first secure a

search warrant before searching the premises, as

time is of the essence inasmuch as the officers

never know whether there is anyone on the

premises to be searched who could very easily

destroy the evidence.’ * 399 U.S., at 34; 90 S.Ct.,

at 1972.

The Fifth Circuit engaged in virtually the same

speculation as that quoted above. This Court has simply

held that fear that “someone” inside might destroy the nar-

cotics is not enough to dispense with the warrant require-

ment. Rather, there has to be a showing that the goods

sought to be seized are “in the process of destruction.” Vale

v. Louisiana, 399 U.S., at 35; 90 S.Ct., at 1972. While the

underlying meaning of that phrase must surely permit, for

example, a showing of facts leading a reasonably prudent

man to believe that the goods are “in the process of destruc-

tion,” rather than requiring proof of actual knowledge that

they are being destroyed, the Fifth Circuit's opinion virtual-

ly dispenses with the whole requirement. It so dilutes the

standard that there need not even be a presentation of facts

from which it could be inferred that someone was destroy-

ing the cocaine. Intending no disparagement to the panel

who decided this case, sophistry now suffices.

The record shows that Gunn (who, we concede, did

know Petitioner's wife) did not say “Mrs. Gardner Is in-

side.”’ Nor did he report that she was present when he saw

the cocaine. The only reasonable inference to be drawn

}?

—

from Agent Brown's repeated insistence that Gunn merely

said ““someone”’ was still inside is that he was not referring

to someone he knew or to someone he would reasonably

have otherwise identified.

The significance of this whole issue really goes far

beyond the facts of this case. Historically, police officers’

actions are judged by what they knew (or did not know)

before seizure and the showing made on the record in the

trial court. The lower court's opinion says, in effect, “well,

regardless of the inadequacy of the showing made,

regardless of the fact that the police had no factual basis for

“believing either that an accomplice was inside or that the

person inside even knew where the cocaine was, we’ll in-

dulge official conjecture.” Apparently, then, it really is not

necessary for the Government to establish, by objective

proof, the so-called ‘jealously guarded exceptions to the

warrant requirement.”

In McDonald vy. United States, supra, the Court

scored the Government's failure to ventilate “‘all the cir-

cumstances bearing upon the necessity to make this search

without a warrant... .”” 335 U.S., at 455; 69 S.Ct., at

193. Petitioner does not now refer so much to the Govern-

ment’s failure to obtain a warrant as much as to its failure

to establish why it did not obtain one much earlier in the

day, right after Gunn’s telephone call to Petitioner permit-

ted Agent Brown to state that at that point they knew “for

sure” that the cocaine was in the house. The record below

literally fails to explain why no such effort was made.

Instead, the Government argued dehors the record why it

was impractical. The Fifth Circuit has too easily dispensed

with the necessity of the Government making the type of

showing which this Court has always required the Govern-

ment make before sustaining a warrantless search:

13

‘‘Where, as here, officers are not

responding to an emergency, there must be com-

pelling reasons to justify the absence of a search

warrant. A search without a warrant demands ex-

ceptional circumstances... . *** [AJll the cir-

cumstances bearing upon the necessity to make

this search without a warrant are absent from this

record.***

*** We cannot be true to that constitutional

requirement and excuse the absence of a search

warrant without a showing by those who seek ex-

emption from the constitutional mandate that the

exigencies of the situation made that course

imperative.” McDonald v. United States, 335

U.S., at 454, 455; 69 S.Ct., at 193.

While Petitioner believes that the record actually sup-

ports a finding that the agents had adequate time to apply

for and obtain a warrant (given probable cause to believe

the cocaine was in Petitioner’s house), the Government

wholly failed to make the opposite showing that it was

impractical to obtain one. Further underscoring

Petitioner's suggestion that the Fifth Circuit has truly

relaxed the requirement that agents make a “showing” ade-

quate to dispense with the warrant requirement, the Court

is invited to consider that the opinion appears to bottom its

approval of the agents’ warrantless entry (and the lack of an

adequate record) on Cardwell v. Lewis, 417 U.S. 583, 94

S.Ct. 2464, 41 L.Ed.2d 325 (1974), an automobile case. The

reasons for relaxing the warrant requirement in auto cases

should not have much bearing on cases involving houses.

(2) What constitutes a showing of coer-

cion sufficient to establish the involuntariness of a

confession?

Contrary to the Fifth Circuit's opinion that “*[bJoth

parties agree . . . that the defendant, upon being told a

warrant could be obtained to allow a thorough search, cor-

rectly informed the agents that cocaine could be found in a

kitchen cabinet,’ United States v. Gardner, F.2d :

slip opinion page 3680, Petitioner never made such a con-

cession in the trial court or on appeal. Indeed, the showing

Petitioner made went to establish ugly threats of bodily

harm to himself, his wife, his home and his pets, all under

the collective weaponry of a dozen D.E.A. agents, in addi-

tion to being physically thrown to the floor of his living

room while handcuffed.

The only reference in the whole record to the agents’

mentioning a search warrant, coupled with defendant’s ac-

quiescence shortly thereafter, came after the threats

described above and after agents removed Petitioner from

the presence of his wife to “talk” to him. And then, the only

testimony was that Petitioner cried out, “*No, don’t tear my

house up.”

The spectacle of drug agents segregating Petitioner

from his wife—physically taking him to another room of

his home—to interrogate him, followed by a cry of concern

in obvious response to a threat to tear his house apart, <on-

jures up admittedly dramatic comparisons with Gestapo or

KGB inquisitions, or worse. The Fifth Circuit seemed to

take solace in the fact that Petitioner never admitted that

the agents made a “direct threat of bodily harm,” slip

opinion, p. 3681, as if such an occurrence was the only way

to prove coercion.

15

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct.

2041 (1973) this Court said that “‘no matter how subtly the

coercion was applied,” its use in any form—‘“‘explicit or

implicit’ —vitiates the confession or consent obtained

thereby. /d., 412 U.S., at 728; 93 S.Ct., at 2048. Can it be

that threatening to destroy a man’s pets or to wreck his

home is all right so long as the agents do not threaten to

break the man’s ribs or some designated portion of his

anatomy?

The decision sought to be reviewed narrows the stan-

dard by which this Court has always measured volun-

tariness: “**** [I]f under all the circumstances it has ap-

peared that the consent was not given voluntarily—tiat it

was coerced by threats or force, or granted only in submis-

sion to a claim of lawful authority—then we have found the

consent invalid and the search unreasonable.” /d., 412

U.S., at 234; 93 S.Ct., at 2051. Amazingly, the Government

did not call any of the multitude of agents in attendance at

the hearing held below to rebut the shocking scenario of

what went on in Petitioner’s home.’

This record reeked of uncontradicted evidence of both

physical and psychological intimidation. Acquiescence

which is resignation is not that consent which constitutes a

free and intelligent waiver of a fundamental right.

‘Though it occurred after defendant told the agents where the

cocaine was, the following is representative of the conscienceless con-

duct of the DEA agents in this case: While Petitioner and his wife were

being transported to jail, the agents gruesomely described how lesbians

would attack and rape her in the local jail. Again, neither of the

transporting agents was called to respond to Petitioner's charge.

THE FIFTH CIRCUIT’S DECISION

RESPECTING (1) WHAT CONSTITUTES A

SHOWING OF EXIGENT CIRCUM-

STANCES SUFFICIENT TO DISPENSE

WITH THE REQUIREMENT OF A SEARCH

WARRANT AND (2) WHAT CONSTITUTES

A SHOWING OF COERCION SUFFICIENT

TO ESTABLISH THE INVOLUNTARINESS

OF A CONFESSION CONFLICTS WITH

DECISIONS OF OTHER COURTS OF AP-

PEAL ON THE SAME SUBJECTS.

(1) Inadequate showing of “exigent circum-

stances.”

In United States v. Roselli, 506 F.2d 627 (7th Cir.

1974), then Judge Stevens wrote an opinion quite at odds

with the opinion in the instant case. The decision bears both

upon the absence of an objective basis for finding ‘exigent

circumstances” in this record and upon the agents having

virtually caused the “exigencies” which they later tried to

hide behind. Briefly, the police believed that there was a

large cache of marijuana in Roselli’s apartment. When they

knocked on the door and announced their presence, they

then heard someone engaging the front door chain lock and

a voice call out, “Don’t open the door for anybody,” fol-

lowed by footsteps running from the door to the rear of the

apartment. /d., at 628. Fearing destruction of the contra-

band, the police entered without warrant.

Judge Stevens refused to confine his analysis solely to

the reasonableness of the officers’ conduct after the knock

on the door:

“*** (When the emergency justification is ad-

vanced, we believe it is appropriate to appraise the

agents’ conduct during the entire period after they

had a right to obtain a warrant and not merely

from the moment when they knocked. . . .” /d.,

at 630.

He noted also, as Petitioner has been urging, that “*[i]n this

case, the evidence does not adequately explain why no at-

tempt to obtain a warrant was made, ***” /bid. Further-

more, while the Seventh Circuit did not accuse the police of

contriving the emergency, the Court observed that “‘certain-

ly the emergency which did ensue was forseeable.”

“Moreover,” Judge Stevens wrote, “this type of conduct

may reoccur repeatedly and might lend itself to too

easy a by-pass of the constitutional requirement that

probable cause should generally be assessed by a...

magistrate... .” bid.

The point is that the Fifth Circuit refused to integrate

the period prior to the El Toro meeting with the events that

later occurred in#evaluating the reasonableness of the

agents’ failure to seek to secure a warrant. Additionally, no

consideration was given to the fact that the agents easily

could have waited until Petitioner and Gunn drove down

the street before arresting them. In other words, the

emergency the Government now points to was “certainly

forseeable™ and certainly created by its own imprudent ac-

tion.

Perhaps the issue here has to do with one’s view of just

how fundamental the warrant requirement is. Interestingly,

the last sentence of Judge Stevens’ opinion strikingly paral-

lels Justice Jackson's concurring opinion in McDonald v.

United States, supra. Both expressed greater concern for

the privacy of a person’s home than for society’s interest in

upholding the seizure of contraband. Justice Jackson said:

“*** While the enterprise of parting fools from

their money by the ‘numbers lottery’ is one that

ought to be suppressed, I do not think its suppres-

sion is more important to society than the security

of the people against unreasonable searches and

seizures. When an officer undertakes to act as his

own magistrate, he ought to be in a position to

justify it by pointing to some real immediate and

serious consequences if he postponed action to get

a warrant.” 335 U.S., at 460; 69 S.Ct., at 195.

Judge Stevens wrote:

“*** But when the emergency involves no grave

danger to the lives of the officers or others,'' and

when the event the officers were seeking to pre-

vent would itself remove the contraband ft 2m cir-

culation, society’s interest in upholding the seizure

weighs less heavily against the individual’s interest

in privacy than it might in other pressing circum-

stances.”’ 506 F.2d, at 631.

The question is where do the Court’s priorities lie: with

the Seventh Circuit's decision in United States v. Roselli,

supra, or the Fifth Circuit’s decision in the case sub judice.

Because, clearly, there were not present in the case at bar

even those minimal objective facts (lock engaging,

shouting, footsteps) found inadequate in Roselli to justify

dispensing with the warrant requirement.

‘footnote omitted

(2) “Coercion” is different in the Ninth and

Sixth Circuits than it is in the Fifth Circuit.

United States v. Calhoun, 542 F.2d 1094 (9 Cir. 1976)

applied the precepts of Schneckloth v. Bustamonte, supra,

in the broad sense obviously intended by this Court.

Wimbley, a co-defendant of Calhoun, was arrested in his

apartment. The agents asked for permission to search,

“telling Wimbley that either his permission or a search war-

rant would be required.” /d., at 1101. But, as in the case at

bar, there were additional factors present which caused the

Court to invalidate his consent:

‘Appellant was under arrest and handcuffed

and the request to search came during the middle

of the night. Before the arrest, Wimbley had faced

drawn guns of several officers. His wife was hand-

cuffed in an adjoining room and... the at-

mosphere in the apartment was tense.' ***

Viewing the ‘totality of the circumstances’

that surrounded the search request and Wimbley’s

response, we conclude that the district court’s

determination that Wimbley voluntarily con-

sented was clearly erroneous. . . .” /d., at 1101-

1102.

In United States v. Brown, 557 F.2d 541 (6th Cir.

1977), the Court opined that “[a]ppellate courts have a duty

to examine the entire record and make an independent

determination on the voluntariness of a confession.” /d.,

545-546. Agreeing with Justice Frankfurter’s approach in

Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860

‘footnote omitted

20

(1961) the Court broke its analysis down into three parts,

only one of which was concerned with whether the trial

court’s decision was clearly erroneous.

Even though the Court agreed with the District Court’s

findings with respect to whether the defendant was beaten

(which it found he was not), the Court decided that:

“*** On review of the record, we are in-

escapably led to the conclusion that the confession

was not voluntary, in the sense that it was not the

product of a free and rational choice, but was in-

duced by Appellant’s overwhelming fear that he

would be beaten by the police. ***” /d., at 548.

Compare the above decisions with Petitioner’s un-

disputed testimony:

“*** They threatened my dog, threw me on the

floor. ***

Q. Did you see guns drawn on your wife Susan?

A. Yes, there were. There were guns drawn on

her and myself.

Q. What was your state of mind then?

A. Still fear. Didn’t know what they were going

to do. They threw me on the floor. | was pretty

scared. I didn’t know what was going to happen. /

didn't know if I was going to be beat up, shot or

what.

21

1 felt bodily harm for all of us.

Q. And there were guns drawn in your house,

were there not?

A. There were, sir.

* * *

They told me if I didn’t tell them where it was,

that they would destroy the house and they would

find it. ***

* * *

Q. Tell us your state of mind, then, your reasons

for your acquiescing to their demands at that

time.

A. I felt that after the threatening of my dogs,

the gun to my old lady, that there was going to be

bodily harm. I was pushed to the floor. I was

afraid that both of us were going to get hurt

physically. | was already in a state of mental

shock. / told him where it was at simply to save

myself and my wife from any physically more

warm than had already come to us.”’ (TR. 71-72,

73, 76-77)

The Fifth Circuit's decision in the instant case does not

accord with the analysis or standards applied in the Ninth

and Sixth Circuits. In the Fifth Circuit the controlling con-

cern is basically whether a defendant received a “direct

threat of bodily harm.”

tv

tv

—

THE FIFTH CIRCUIT’S DECISION ON THE

BURDEN OF PROOF AND EXTENT OF

PROOF NECESSARY TO BE BORNE BY A

DEFENDANT RESPECTING AGENTS’

DISREGARD OF 18 U.S.C. §3109’s RE-

QUIREMENT OF ANNOUNCEMENT OF

“PURPOSE AND AUTHORITY” IS AN IM-

PORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN BUT SHOULD BE

DECIDED BY THIS COURT.

There are myriad decisions of this Court deciding that

in warrantless search cases the Government has the burden

of proving one of the exceptions to the warrant require-

ment. But this Court has never addressed the question of

whether the burden of proving official compliance with 18

U.S.C. §3109 is subsumed within the government's burden

of proving one or more of the exceptions. Petitioner urges

that when, as in the case at bar, the Government assumes

the burden of proving that its entry into Petitioner’s home

was legal (because both sides stipulated to the absence of a

warrant at the outset of the suppression hearing), the

Government bears the burden of proving that all aspects of

the entry were legal.

The decision below dissects the entry process and

limits the Government's burden of proof to showing merely

constitutional regularity and not statutory regularity. In

United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93 (1951),

though not entirely in point with this issue, the Court

decided that the events leading to the determination of the

legality of an entry, search and seizure are “not. . . easily

isolable.”* 342 U.S., at $2; 72 S.Ct., at 95, 96. “Rather,”’ the

Court said, “they are bound together by one sole purpose—

to locate and seize the narcotics of the respondent. ***”

Ibid. In other words, if the sole aim of the agents is to get

inside a person's home to seize drugs, everything they do

must be done legally. The burden the Government assumes

in the absence of a warrant is an all-inclusive burden.

Assuming arguendo, however, that the decision below is

correct, and that the Government need only prove that its

entry complied with constitutional requirements, has a

defendant not discharged his burden of proving statutory

non-compliance where, during cross-examination of a

Government agent, he elicits that, indeed, §3109 was not

heeded by the agents before entry? To hold that because the

defendant, himself, did not take the stand and repeat what

the agent had already admitted, to wit: that the agent who

knocked neither announced authority nor purpose, gives

less than “grudging application” to §3109. Miller v. United

States, 357 U.S. 301, 314, 78 S.Ct. 1190, 1198 (1958):

‘“*** The requirement of prior notice of authority

and purpose before forcing entry into a home is

deeply rooted in our heritage and should not be

given grudging application. Congress, codifying a

tradition embedded in Anglo-American law, has

declared in §3109 the reverence of the law for the

individual’s right of privacy in his house. ***”

Ibid.

The decision below permits “‘a quibbling distinction to

overturn a principle which was designed to protect a fun-

damental right.”’ United States v. Jeffers, supra, 342 US.,

at 52; 72 S.Ct., at 95-96.

24

CONCLUSION

_ For the above and foregoing reasons a writ of cer-

tiorari should issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

GEORGE D. GOLD, ESQ. and

MORAN & GOLD, P.A.

950 South Miami Avenue

Miami, Florida 33130

Attorneys for Petitioner

25

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that three copies of the within

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit has been mailed to the

Solicitor General, United States Department of Justice,

Washington, D.C. 20530, this day of September,

1977.

GEORGE D. GOLD

A a tee

Appendix A

Ebene wee mee = =

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Joseph Michael GARDNER,

Defendant-Appellant.

No.76-2291.

United States Court of Appeals,

Fifth Circuit.

June 10, 1977.

Defendant was convicted before the United States

District Court for the Southern District of Florida, at Fort

Lauderdale, Norman C. Roettger, J., of possession of both

cocaine and marijuana with intent to distribute, and he ap-

pealed. The Court of Appeals, Rouey, Circuit Judge, held

that: (1) warrantless intrusion into defendant’s home was

lawful under exigent circumstances exception to warrant re-

quirement and (2) defendant failed to sufficiently prove

violation of statutory knock and announce requirements to

obtain suppression of evidence seized after warrantless

entry.

Affirmed.

1. Drugs and Narcotics — 185

Where, although Drug Enforcement Administration

knew in advance that defendant and his wife were involved

in the drug trade, agents only anticipated that supply of

drugs would be at defendant’s home, at least some of

App. |

cocaine was thought to be stored in an automobile, and

premature raid would “tip the hand”’ of agents, Drug En-

forcement Administration was justified in not seeking

search warrant before informer, who had named defend-

ant’s wife, as his source, arrived in town.

2. Searches and Seizures — 3.2

Reasonableness of search under exigent circumstances

exception to warrant requirement is not foreclosed by

failure to obtain warrant at earliest practicable moment.

—

i

3. Drugs and Narcotics — 185

When informer, whose signal that cocaine was in house

provided ample probable cause for arrest of defendant, told

agents that someone was in house, immediate entry became

necessary to prevent disposal of cocaine, a powder that can

easily be flushed down a toilet, and thus warrantless entry

by agents, who could logically have suspected that anyone

inside house would be well aware of five police cars ringing

premises and arrest of defendant and who knew that person

in house might be defendant’s wife and partner in drug

trade, was justified to preserve evidence and was lawful un-

der exigent circumstances exception to warrant require-

ment. U.S.C.A.Const. Amend. 4.

4. Drugs and Narcotics — 185

Where, although evidence was conflicting, agent

testified that he read Miranda warnings to defendant,

threat to obtain warrant which would facilitate thorough

and perhaps disruptive search of premises was merely

threat to exercise rights granted agents by law, and record

did not show that threat, which was made after lawful war-

App.2

rantiess intrusion to preserve evidence, was misleading or

made groundlessly in bad faith, subsequent search by

agents, whose threat to obtain warrant did not demonstrate

either Fourth or Fifth Amendment violation, based on

statement by defendant, who indicated that he wanted to

avoid search, as to where cocaine was located was not in-

valid. U.S.C.A.Const. Amends. 4, 5.

5. Searches and Seizures — 3.3

Statute which provides that officer may break into

house to execute search warrant if, after notice of his

authority and purpose, he is refused admittance applies

whether or not officer acted pursuant to warrant. 18

U.S.C.A. § 3109.

6. Searches and Seizures — 3.8(1)

In asserting claim under statute providing that officer

may break into house to execute search warrant if, after

notice of his authority and purpose, he is refused admit-

tance, burden of establishing prima facie case rests on

defendant and, because of presumption of government

propriety, defendant should at least put into evidence some

testimony which establishes factual basis for claim that

statute has been violated. 18 U.S.C.A. § 3109.

7. Searches and Seizures — 3.8(1)

Where neither arresting officer, defendant nor de-

fendant’s neighbor, all of whom were present at scene,

testified that agent who unlocked door to defendant’s house

failed to give required announcement, and positive

testimony showed that agent knocked, defendant failed to

meet his burden of showing violation of knock and an-

App. 3

nounce requirements of statute which provides that officer

may break into house to execute search warrant if, after

notice of his authority and purpose, he is refused admit-

tance. 18 U.S.C.A. § 3109.

Appeal from the United States District Court for the

Southern District of Florida.

Before WISDOM, CLARK and RONEY, Circuit

Judges.

RONEY, Circuit Judge:

In this proceeding the defendant appeals his two count

conviction for possession of both cocaine and marijuana

with intent to distribute. 21 U.S.C.A. § 841 (a) (1). His sole

contention: the trial court erred in denying his motion to

suppress evidence seized after a warrantless entry into his

home. Finding the intrusion lawful under the exigent cir-

cumstances exception to the warrant requirement, and that

defendant failed to prove sufficiently a violation of the

knock and announce requirements of § 3109 to obtain sup-

pression of the evidence, we affirm.

In May 1975, Drug Enforcement Administration

(DEA) officials arrested Ronald Gunn in Georgia after

Gunn sold them cocaine. Gunn named defendant’s wife,

Susan Gardner, as his source. In hope of lenient treatment,

Gunn agreed to cooperate with DEA by working as an in-

former.

After a monitored phone call to the Gardner

household, Gunn flew to the Fort Lauderdale airport and

met defendant in a local bar. The two men then traveled to

defendant's home. DEA agents, who had been following

App.4

Gunn, tailed the pair as they left the bar, but lost them in

traffic. Other agents, however, had staked out defendant’s

home because they thought a kilogram of cocaine might be

hidden there. As a result, they were on the scene when

defendant and the informer arrived. After 15-20 minutes,

the two emerged from the home. The informer pulled out

his shirttail and wiped his glasses, a prearranged signal that

cocaine was in the house. Federal agents, in at least five

cars, promptly moved in with their guns drawn and arrested

both defendant and Gunn.

Gunn told the agents a female was in the house. The

agents took the defendant’s car keys, knocked on the door,

unlocked it, and entered. Inside they found the defendant’s

wife. The evidence concerning the conduct of the officers

upon gaining access to the house conflicts. Both parties

agree, however, that the defendant, upon being told a war-

rant could be obtained to allow a thorough search, correctly

informed the agents that cocaine could be found in a

kitchen cabinet.

The defendant claims the entry violated his Fourth

Amendment rights so that the fruits should be excludea

from evidence. He argues that the Government has not met

its burden of showing probable cause and “exigent circum-

stances” to justify the entry into his house without a war-

rant. See Coolidge v. New Hampshire, 403 U.S. 443, 455,

91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Walker v. United

States, 225 F.2d 447 (Sth Cir. 1955). The argument has two

prongs: first, there was no proof of an inadequate oppor-

tunity to obtain a search warrant; and second, there was in-

sufficient proof of imminent destruction of contraband.

[1, 2] Defendants argue that probable cause for a

search warrant existed so far in advance of the search that

App. 5

the agents’ failure to obtain a warrant was inexcusable. Mc-

Donald v. United States, 335 U.S. 451, 454-455, 69 S.Ct.

191, 93 L.&d. 153 (1948). Certainly the DEA knew in ad-

vance that the Gardners were involved in the drug trade. In

the language of the trial judge, however, the agents only

‘‘anticipated” that a supply of drugs would be in the house.

The defendant testified no cocaine was in the house when he

received the monitored phone call the defendant now says

should have established probable cause. The DEA at-

tempted to tail Gunn and the defendant from the airport,

presumably because they were uncertain where the illicit

transaction would take place. At least some of the

Gardners’ cocaine was thought to be stored in a “yellow

Jaguar.’ Because of those uncertainties, as well as the

danger that a premature raid would “tip the hand” of the

agents and the need to enforce high standards of probable

cause to protect the homes of citizens from unreasonable in-

trusions, the DEA was justified in not seeking a warrant

before Gunn arrived in town. In any event, the

reasonableness of a search under exigent circumstances 1s

not foreclosed by the failure to obtain a warrant at the

earliest practicable moment. Cardwell v. Lewis, 417 US.

583, 595-596, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); United

States v. Mitchell, 538 F.2d 1230, 1233 (Sth Cir. 1976) (en

banc).

[3] Defendant contends there was insufficient proof of

imminent destruction of contraband to satisfy the exigent

circumstances exception to the warrant requirement. The

district court’s finding of adequate justification for entry is

not clearly erroneous. Gunn’s signal provided ample

probable cause for arrest. When Gunn told the agents

someone was in the house, an immediate entry became

necessary to prevent disposal of the cocaine, a powder

which can easily be flushed down a toilet. The agents could

App. 6

logically have suspected that anyone inside the house would

be well aware of the five police cars ringing the premises

and the arrest of defendant and Gunn. The danger that

someone would dispose of the illicit drugs was especially

great in this case because the agents knew the person in the

house might be Susan Gardner, the defendant’s wife and

partner in the drug trade. Accordingly, the agents

justifiably acted “* ‘now or never’ to perserve the evidence of

the crime.’ Roaden v. Kentucky, 413 U.S. 496, 505, 93

S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973).

Defendant argues that only if the agents knew that his

wife was in the house could they rely on the imminent

danger of contraband destruction as an exigent circum-

Stance to justify a warrantless entry. Such sure knowledge

that the person in the house was Susan Gardner was not a

necessary prerequisite to entry. The agents could rely on the

reasonable forecast that anyone in the house at the time

defendant and Gunn were there might know cocaine was

present and, seeing the major arrest activity in front of the

house immediately upon their departure, might be expected

to try to dispose of it.

The defendant’s reliance on Vale v. Louisiana, 399

U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), to

foreclose a finding of exigent circumstances is misplaced. In

Vale, the Court held that police ignorance as to whether

anyone was inside a house known to contain drugs deprived

the situation of the emergency character necessary to justify

a warrantless search. In this case, however, the officers did

know someone was on the premises, and they could logical-

ly have concluded disposal of the contraband was immi-

nent. As a result, the facts of Vale are distinguishable, and

its holding does not control this decision.

App. 7

[4] The defendant further contends that once the

agents entered and secured the premises, thereby assuring

that any concealed evidence would not be destroyed, they

were required to seek a search warrant for the premises

before they could go back through the house and search for

contraband. United States v. Erwin, 507 F.2d 937, 938 (Sth

Cir. 1975); see also United States v. Looney, 481 F.2d 31

(Sth Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38

L.Ed.2d 476 (1973). Upon the threat that a search warrant

could be obtained, however, the defendant told the agents

where to find the cocaine, indicating that he wanted to

avoid a search. Defendant asserts that he was coerced, so

the subsequent search was invalid. Schneckloth v.

Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973). Although the evidence was conflicting, an agent

testified he read Miranda warnings to defendant and the

court so found. The threat to obtain a warrant which would

facilitate a thorough and perhaps disruptive search of the

premises was merely a threat by the officers to exercise

rights granted them by the law. The record does not show

the threat was misleading or made groundlessly in bad

faith. See Bivens v. Six Unknown Named Agents, 456 F.2d

1339 (2d Cir. 1972). The defendant conceded he could not

recall a “direct threat to my bodily person.” The trial judge

concluded the defendant was not under duress, and his

finding is not clearly erroneous. The record does not show

either a Fourth or Fifth Amendment violation.

[5] The defendant also seeks to exclude the same

evidence by asserting that the federal agents, by failing to

announce their “authority and purpose” before they un-

locked the door of defendant’s home, violated 18 U.S.C.A.

§ 3109. That statute provides: “‘[t}he officer may break

open any outer or inner door or window of a house, or any

part of a house, or anything therein, to execute a search

App.8

oo Ore oe =

warrant, if, after notice of his authority and purpose, he is

refused admittance . . . .”’ The statue applies whether or

not the officers acted pursuant to a warrant. Sabbath v.

United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20

L.Ed.2d 828 (1968).

We need not decide the effect of a violation on de-

fendant’s case. The defendant's being outside with the of-

ficers rather than in the building at the time of entry is not

relevant to this decision. The record does not show a § 3109

violation. DEA Agent James C. Brown, the arresting of-

ficer, when asked what the agent who had unlocked the

door had said, replied “I don’t know that he said anything

at all’ Neither Agent Brown, nor the defendant, nor the

defendant’s neighbor, all of whom were present at the

scene, testified that the agent failed to give the required an-

nouncement. Positive testimony showed that he knocked.

(6, 7] In asserting a § 3109 claim, the burden of es-

tablishing a prima facie case rests on the defendant. United

States v. Murrie, 534 F.2d 695, 698 (6th Cir. 1976). Because

of the presumption of Government propriety, the defendant

should at least put into evidence some testimony which es-

tablishes the factual basis for a claim that § 3109 has been

violated. See Rogers v. United States, 330 F.2d 535 (Sth

Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d

186 (1964). The burden is not great, and parallels the neces-

sity that a defendant assert a search was conducted without

a warrant before the Government is forced to prove the

search was reasonable within the confines of the Fourth

Amendment. In this case, the defendant has failed to meet

that burden, and his claim to relief under § 3109 must fail.

AFFIRMED.

App. 9

Appendix B

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH

CLERK

TEL 504—589-6514

600 CAMP STREET

NEW ORLEANS, LA. 70130

August 16, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-2291 - U.S.A. v. JOSEPH MICHAEL

GARDNER

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing**and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition ( ) for rehearing

en banc has also been denied.

App. 10

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By Brenda M. Hauck

Deputy Clerk

** on behalf of appellant, Joseph Michael Gardner,

cc: Mr. Peter F.K. Baraban

Mr. George D. Gold

Mr. C. Wesley G. Currier

App. Il

Appendix @

IN THE UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-2291

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOSEPH MICHAEL GARDNER,

Defendant-Appellant.

Appeal from the United States

District Court for the

Southern District of Florida

ORDER:

( ) The motion of APPELLANT for stay of the issuance

of the mandate pending petition for writ of certiorari

is DENIED. See Fifth Circuit Local Rule 15, as

amended January 11, 1972.

(/) The motion of APPELLANT for stay of the issuance

of the mandate pending petition for writ of certiorari

is GRANTED to and including September 15, 1977,

the stay to continue in force until the final disposition

of the case by the Supreme Court, provided that

within the period above mentioned there shall be filed

with the Clerk of this Court the certificate of the Clerk

of the Supreme Court that the certiorari petition has

been filed. The Clerk shail issue the mandate upon the

filing of a copy of an order of the Supreme Court

App. 12

denying the writ, or upon the expiration of the stay

granted herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within that

time.

i

( ) The motion for a further stay of the issuance of the

mandate is GRANTED to and including

, under the same conditions as set

forth in the preceding paragraph. |

( ) IT IS ORDERED that the motion for a further stay

of the issuance of the mandate is DENIED. :

/s/ Paul H. Roney

UNITED STATES CIRCUIT

JUDGE

Arp. 13