# Petition — Gardner v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1011

## Text

ae

Suoreme Court, U,
SEP 15]
in the heats
Supreme Court”
of the
United States
OCTOBER TERM, 1977
@%"416
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2547%3A1. Public record. Not legal advice.