Opposition — Gardner v. United States

No. 77-416

Iu the Supreme Court of the H

OCTOBER TERM, 1977

JOSEPH MICHAEL GARDNER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCree, Jr.,

Solicitor General,

BENJAMIN T. CIVILETTI,

Assistant Attorney General,

JosePH S. DAvieEs, JR.,

CAROLYN GAINES,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1977

No. 77-416

JOSEPH MICHAEL GARDNER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

reported at 553 F. 2d 946.

JURISDICTION

The judgment of the court of appeals was entered on

June 10, 1977. A petition for rehearing was denied on

August 16, 1977 (Pet. App. 10). The petition for a writ of

certiorari was filed on September 15, 1977. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether exigent - circumstances supported the

warrantless entry of petitioner's house.

2. Whether petitioner voluntarily consented to a search

of a kitchen cabinet after the officers entered.

(1)

2

3. Whether petitioner met the burden of introducing

enough evidence to call for resolution of his contention

that the officers did not announce their purpose and

authority before entering his house.

STATEMENT

Following a bench trial in the United States District

Court for the Southern District of Florida, petitioner was

convicted of possessing cocaine and marijuana, with

intent to distribute those substances, in violation of 21 —

U.S.C. 841(a)(1). He was sentenced to concurrent terms of

seven and three years’ imprisonment and was fined

$5,000.

On July 2, 1975, Ronald Gunn, an informant for the

Drug Enforcement Administration, arranged by telephone

a drug transaction with petitioner (Tr. 13).! Gunn and

federal agents flew from Atlanta to Fort Lauderdale (Tr.

13). A meeting was arranged, and the agents followed

Gunn to the meeting place; they saw petitioner and Gunn

leave in petitioner’s car (Tr. 14), which they lost in the

traffic (Tr. 15). Other agents had been watching

petitioner’s house, because they thought a kilogram of

cocaine might be hidden there; those agents saw petitioner

arrive accompanied by Gunn, and they notified the agents

who had been trying to locate the pair (Tr. 16).

Petitioner and Gunn stayed in the house for ap-

proximately 20 minutes. When they emerged, Gunn gave

a signal indicating that cocaine was in the house (Tr. 16).

The agents, driving at least five cars, promptly moved in

and arrested petitioner (Tr. 17, 52, 55, 57).

‘Gunn previously had been arrested after selling cocaine, which, he

told the agents, he had obtained from petitioner's wife (Pet. App. 4).

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Petitioner stated: “It’s all over,” and Gunn told one of

the agents that a woman was still inside the house (Tr. 19,

20, 69). Petitioner and several agents entered the house,

where they found petitioner’s wife (Tr. 20). After

petitioner had been read Miranda warnings and told that

a warrant could be obtained to authorize a search (Tr. 21-

22), he informed the agents to look for the cocaine in the

kitchen cabinet. The agents found the cocaine there (Tr.

22).

ARGUMENT

1. Petitioner contends that the agents should have

obtained a warrant before entering his house. The court

of appeals properly held, however, that pressing cir-

cumstances justified immediate entry. The agents had

easons to believe a person was still in the house, and,

having been made aware of the agents’ presence by

petitioner’s arrest, might attempt to destroy the evidence.

As the court of appeals stated (Pet. App. 6-7):

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 logically have

suspected that anyone inside the house would be well

aware of the five police cars ringing the premises and

the arrest of [petitioner] 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,

[petitioner’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).

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This is not a case in which agents deterred obtaining a

warrant only to “ manufacture” exigent circumstances.

The agents did not acquire probable cause to search the

house and hence could not have obtained a warrant—

until Gunn gave his signal. They then acted promptly.

Petitioner's real complaint is that they acted too promptly

and should have retired to seek a warrant, but the

reasonableness of a search under exigent circumstances Is

not diminished by the fact that the officers might have

acted in some other way. United States v. Santana, 427

U.S. 38: Cardwell vy. Lewis, 417 U.S. 583, 595-596 (plu-

rality opinion); United States v. Mitchell, 538 F. 2d 1230,

1237 (C.A. 5) (en banc).

Vale vy. Louisiana, 399 U.S. 30, on which petitioner

relies (Pet. 12), does not support his position. Vale held

that the search of a house after “the arresting officers

[had] satisfied themselves that no one else was in the

house” (399 U.S. at 34), was not based on exigent

circumstances, and it does not stand for the proposition

that in order to justify a warrantless entry there must be a

showing that the items to be seized are in the process of

destruction. The Court observed in Vale that this

circumstance, which would establish exigency, was absent;

it did not hold that ongoing destruction of evidence is an

essential part of exigency. See McDonald v. United

-According to petitioner's own testimony, the cocaine was not in

his howe on July 2, 1975, when Gunn first telephoned him (Tr. 78).

Although the agents thought that petitioner might have had the drugs

at his house, this was simply an informed suspicion not based on

reliable information.

‘The Court observed in ba/e that the officers already had obtained

two warrants for Vale's arrest and easily could have obtained a

warrant to search his house (399 U.S. at 35). Here. by contrast, the

officers could not have obtained a warrant of any sort until the

informant gave his signal, and they then acted expeditiously.

—_— >

=n §

5

States, 335 U.S. 451, 455, which indicates that exigency

exists when “the property [is] in the process of destruction

[or] * * * likely to be destroyed.”4

2. After the agents had entered petitioner's house,

petitioner consented to a search of his kitchen cabinet for

cocaine. His contention that the consent was involuntary

is not supported by the evidence.

Petitioner testified that he “volunteered the informa-

tion” about the location of the cocaine because he was

scared and feared the agents would harm his wife or

himself (Tr. 73). But the agents never threatened

petitioner (Tr. 72), they made no promises to him, and

there is no indication of more subtle forms of coercion.

Petitioner consented in his own home, rather than in the

more coercive confines of a police station. Petitioner had

received Miranda warnings. Petitioner's consent—like his

earlier statement “[iJt’s all over’—was no more than a

recognition that he had been caught red-handed and that

it was pointless to require the agents to procure a warrant

that would have allowed them to search the entire house.

The consent narrowed the search to one kitchen cabinet.

It was voluntary in light of the totality of the cir-

*United States v. Rosselli, 506 F. 2d 627 (C.A. 7), held that a

warrantless entry into an apartment was not justified by the risk that

a third party might make a warning call to the defendant. The court

concluded that the risk of the call could have been avoided by leaving

an agent with the third party while a warrant was being secured. The

agents lacked a similar option here. because they did not have

probable cause to arrest petitioner until Gunn gave his signal. and

once the arrest had been made the agents could “ ‘reasonably con-

clude that the evidence * * * [would] be destroyed or removed be-

fore they * * * [could] secure a warrant’ ™ (id. at 630).

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cumstances. Schneckloth v. Bustamonte, 412 U.S. 218:

United States v. Watson, 423 U.S. 411.5

3. Petitioner finally contends (Pet. 23-24) that the

cocaine should have been suppressed because the

government failed to prove that the agents announced

their purpose and authority before they entered his home.

The court of appeals held, however, that petitioner had

failed to meet his burden of establishing a prima facie case

by presenting at least “some testimony which establishes

the factual basis for a claim that [18 U.S.C. 3109] has

been violated” (Pet. App. 9).

The court did not err by requiring petitioner to

introduce at least some evidence to demonstrate non-

compliance with the statute before the government is

required to justify its agents’ conduct. As the court of

appeals noted (Pet. App. 9), the movant’s burden is “not

great, and parallels the necessity 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.”

Petitioner contends that Agent Brown’s testimony made

out a prime facie showing that the agents did not

announce their purpose or authority before entering.

Agent Brown, however, was asked only whether Agent

‘Petitioner's reliance (Pet. 20) on United States v. Calhoun, 542 F.

2d 1094 (C.A. 9). is unwarranted. In Calhoun the defendant

maintained that there were no narcotics in his house prior to the

search, the search occurred in the middle of the night. and his

innocent wife was handcuffed. The court held that a consent to a

general search had been coerced. In the present case. by contrast,

petitioner's consent was preceded by an incriminatory statement, his

wife was arrested as an active participant in the drug trade, the search

was conducted in the middle of the day. no threats of force were

made. and the consent was particularized.

pm a = en ee -

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Andrejko had made an announcement; Agent Brown

testified that “[h]e could have, but I don’t know” (Tr. 36).

Agent Brown did not discuss announcements made by

other agents, and the evidence did not show whether he

was in a position to have heard any announcement. As

the court of appeals stated (Pet. App. 9): “Neither Agent

Brown, nor [petitioner], nor [petitioner’s] neighbor, all of

whom were present at the scene, testified that the agent

failed to give the required announcement. Positive

testimony showed that he knocked.” Petitioner was

present when the entry took place; his failure to testify

that the agents did not knock and announce their

authority is a telling omission.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCree, Jr.,

Solicitor General.

BENJAMIN T. CIVILETTI,

Assistant Attorney General.

JosePH S. Davies, JR.,

CAROLYN GAINES,

Attorneys.

DECEMBER 1977.

DOJ-1977-12