Petition — Brand v. United States

preme Court, U. S.

FILED

' NOV $8 1977

MICHAEL RODAK, JR., CLERK

3u the

Supreme Court of the United States

OCTOBER TERM, 1977

a - GAG '

CHARLES D. BRAND

Petitioner

versus

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Kent Spriggs

324 West College Avenue

Tallahassee, Florida 32301

Counsel for Petitioner

SS OOOOOooOoOOONCC

A B Letter Service, Inc., 327 Chortres St., New Orleons, Le. (504) 581-5555

INDEX

PAGE NO.

I 6 ccd s buch eGuedceensunse ene 1

ee le eve gis 2

ec ca bedeneeds 2

Constitutional Provisions Involved ............ 3

os ic ebecseenns 4

Reasons Relied on for Granting the Writ........ 6

I. The Decision Below is in Conflict with

This Court’s Decisions Concerning Actual

Prejudice to a Defendant Caused by an

Unexplained Preindictment Delay......... 6

II. The Decision Below Raises Significant

Questions Concerning Fourth Amendment

Rights, Departs from this Court’s Hoidings

and Conflicts with Other Courts of Appeal . ll

III. The Decision Below Conflicts with Past

Rulings of this Court ........ccecceeee 13

EN ead cee n ees bee dd etaseenes 15

eg re 16

Appendix

ED +. ccteceueebhecedeedsasatieds A-1

ii

IN DE X (Continued)

PAGE NO.

pS , SPPrererrrrrrr rrr er rrr ree A-17

Bete Goo o.oo ccc cctevccnceseccsccegen: A-19

Re Ba oo ci cv ccseccccnssarecceececies A-20

yt eee em —

Citations

PAGE NO.

Aquilar v. Texas, 378 U.S. 108 (1964) ......... 13

G. M. Leasing Corp. v. U.S.,

_U.S.__97 S.Ct. 619, 50 L.Ed. 2d 530

ee a tad een ee cha ll

Katz v. United States, 389 U.S. 347 (1967) ..... ll

People v. Tyler, 250 N.W. 2d 467

Pes Ui cade ebuedibe dd0cer sdeay 12

Spinelli v. U.S., 393 U.S. 410 (1969) .......... 14

Steigler v. Anderson, 496 F.2d 793

(3rd Cir. 1974), cert. denied. 419 U.S.

DTicuhickddndeanenendessann bs beudss 12

U.S. v. Green, 474 F.2d 1985 (5th Cir. 1973)

cert. denied 419 U.S. 1002................ 12

U.S. v. Harris, 1971, 403 U.S.573 ............ 14

U.S. v. Lovasco, _U.S__ , 97 S.Ct. 2044

icin ccscvdddseutéedeseudheobcdees 10

U.S. v. Marion, 404 U. S. 307 (1971) .......... 10

U.S. v. McGough, 510 F.2d 598 (5th Cir.

es Per ere 9

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO.

CHARLES D. BRAND,

Petitioner

v.

UNITED STATES OF AMERICA,

4 Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner Charles D. Brand respectfully 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 proceeding on August 5, 1977.

OPINION BELOW

The opinion of the Court of Appeals for the Fifth Circuit

is reported at 556 F.2d 1312 (5th Cir. 1977) and it appears

in the Appendix hereto. Petitioner Brand was tried by a

jury and a judgment was entered in the United States Dis-

trict Court for the Northern District of Florida, Tallahassee

Division on July 29, 1976. The District Court Judgment

and sentence appears in the Appendix hereto. No written

opinion was rendered by the District Court.

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth Cir-

cuit was entered on August 5, 1977. A timely petition for

rehearing or for rehearing en banc was denied on October 4,

1977, and the denial appears in the Appendix hereto. This

petition for issuance of a writ of certiorari was filed within

30 days of the denial of the petition for rehearing. The

jurisdiction of the Supreme Court of the United States is

invoked under 38 U.S.C.$1254(1).

JURISDICTION OF THE DISTRICT COURT

Petitioner Brand was charged in a one-count indictment

returned by the grand jury on March 11, 1976 as follows:

That on or about July 23, 1974 in the Northern

District Court of Florida Charles Demetrios Brand

and Nannie Ruth Brand did knowingly and inten-

tionally possess with intent to distribute and did

aid and abet each other in the possession with

intent to distribute a Schedule II controlled sub-

stance, to wit: cocaine hydrochloride, in violation

of Title 21, United States Code, Section 841 (a)

(1) and Title 18, United States Code, Section 2.

QUESTIONS PRESENTED

I. Were Petitioner's Fifth Amendment due process rights

violated by a 20 month pre-indictment delay during which a

key defense witness died, where said witness was stipulated

by the Government to be an important witness for the de-

fense.

a

3

II. Once the exigent circumstances, which justified a

police officer’s entry into a home without probable cause or

search warrant, end may that officer remain in the house

and may other officers continue to enter the house without

warrant, probable cause, or exigent circumstances.

III. The affidavit in support of the search warrant was

insufficient on its face to establish probable cause.

CONSTITUTIONAL PROVISIONS INVOLVED

A. Amendment IV.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be searched,

and the persons or things to be seized.

B. Amendment V.

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a grand jury, except in cases arising in the land or

naval forces, or in the militia, when in actual service in time

of war or public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life or limb;

nor 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; nor shall private property be

taken for public use, without just compensation.

4

STATEMENT OF THE CASE

On July 23, 1974, the Tallahassee Memorial Hospital sent

an ambulance to 500 Laura Lee Drive'to assist a drug-over-

dose victim. The Tallahassee Police Department dispatched

Officer George Green to help the ambulance attendants.

When Green and the attendant entered the house, they

found petitioner, Charles Brand, lying unconscious on the

floor of the living room. Green testified that he saw mari-

juana butts, and several pills in the living room. There was

confusion in his testimony as to whether he additionally

saw hypodermic needles at the same time, although the

District Court made no finding concerning this.

Officer Wayne Crawley arrived at the house as Brand was

placed in the ambulance. Mrs. Brand and one of the Defen-

dant’s brothers went to the hospital. Another brother,

David Brand, remained at the house with the policemen.

Crawley also reported seeing hypodermic needles and pills

in the living room when he first entered. He and Officer

Green then apparently walked into one of the bedrooms

where they found more hypodermics, pills, powdered sub-

stance, and blood stains around the table and on the needle.

Crawley said he did not investigate the scene further but in-

stead called in Narcotics Investigator, Walter Beck, to the

scene.

Beck testified that numerous pills, pill bottles, injection

bottles, and syringes were on the table in the living room of

the house when he arrived. It was alleged that David Brand

stated to Officer Beck that there was a large amount of co-

caine located in the house that had been brought in from

South America. Beck then called Sgt. George Brand (no re-

ee

5

lation to Defendant) of the Tallahassee Vice Squad who di-

rected that the house be secured and that Beck obtain a

Search Warrant. Beck submitted the following affidavit

to the Magistrate to procure the warrant:

Your affiant received a call at home from the

police dispatcher at 3:18 a.m. in reference to a

drug overdose case at 500 Laura Lee Street.

When your affiant arrived at the above described

location he observed numberous (sic) items of

narcotics and dangerous drugs in plain view inside

the house. A variety of pills, prescription bottles,

syringes, and other narcotic paraphernalia were

also observed.

Your affiant talked to David Brand, a quest at the

above described house who advised that there was

a large amount of cocaine located in the house

that had been brought in from South America.

After the Magistrate issued the warrant, the police found

a pound to a pound and one-half of cocaine in a thermos

bottle in a clothes dryer. The police arrested petitioner,

Charles Brand, and his wife on July 23, 1974, for possession

of the cocaine in violation of state law. After a State Court

Judge suppressed that seized evidence, the prosecutor nolle

prossed the state charges. A federal investigation began dur-

ing the Autumn of 1975 and resulted in the return of an

indictment on March 11, 1976, more than 20 months after

the arrest under the state charges.

During the 20 months between the arrest by Tallahassee

police and the Federal indictment, David Brand, brother of

6

the defendant, died. David Brand was the only person pre-

sent during the search of the house who was not a law en-

forcement agent, and some of his alleged statements were

used by Officer Beck in his affidavit in support of the search

warrant application.

Defendant Charles Brand moved to dismiss the indict-

ment on the ground that the 20 month delay prejudiced

his ability to defend himself and that the death of a key de-

fense witness, his brother David, constituted actual pre-

judice. At the hearing on the motion, the Government

stipulated that David Brand would be an important witness

for the defense. The District Court denied the motion to

dismiss the indictment.

During the trial the District Court refused to suppress

the evidence seized under the warrant. At the conclusion of

the government’s case, the Court granted a motion for judg-

ment of acquittal in favor of Mrs. Brand. Her husband was

found guilty by the jury and later sentenced to 10 years in

prison.

REASONS RELIED ON FOR ALLOWANCE OF THE

WRIT

I. THE DECISION BELOW IS IN CONFLICT WITH THIS

COURT’S DECISIONS CONCERNING ACTUAL PRE-

JUDICE TO A DEFENDANT CAUSED BY AN UNEX-

PLAINED PREINDICTMENT DELAY.

Twenty months elapsed between the arrest of defendant

by Tallahassee police and his indictment. During this time,

a key witness, David Brand (brother of Defendant Charles

een oe nae

Brand) died.

The decision of the Fifth Circuit virtually ignores and in-

validates the stipulation of the Government that David

Brand would be an important witness for the defense.

At the hearing on Defendant’s Motion to Dismiss the in-

dictment the United States Attorney, Mr. Davis, stated as

follows:

....1 will stipulate that David Brand would be an

important witness for the Defense purposes. I

think it is obvious. (Pages 103 and 110-111 of

the transcript of hearing are included in the ap-

pendix hereto)

In its opinion however, the Fifth Circuit states only that

the Government stipulated that David Brand’s testimony

could be helpful to the defense, and the Court went on to

conclude that

...the defense is not prejudiced by the unavail-

ability of David and therefore by the preindict-

ment delay. Brand at pg 1317

The unreasonable delay of twenty (20) months between

the arrest of Petitioner Brand and his federal indictment

raises a substantial possibility of prejudice. This possibility

ripened into actual prejudice with the death of the key wit-

ness for the defense, David Brand, during the twenty-month

interval between arrest and indictment. The reasons for the

government’s stipulation as to the importance of David

Brand to the defense is readily apparent from the following

facts:

A. Certain hearsay statements allegedly made by David

Brand were recited in the Affidavit submitted in sup-

port of the Application for a Search Warrant, and it

is clear from the Fifth Circuit opinion that without

the alleged statements of David Brand, probable cause

for issuance of the warrant would not have existed.

B. David Brand was the only person not a law enforce-

ment officer who remained present on the premises

after the premises were entered by law enforcement

officers.

C. At the hearing on Defendant’s Motion to Dismiss

the Indictment, Petitioner’s wife testified that, prior

to his death, David Brand told her that police officers

searched the house prior to obtaining a search war-

rant. (pages 19 and 20 of the hearing transcript are

included in the Appendix hereto.)

David Brand's testimony was critically important to the

defense in regard to the totality of the circumstances in-

volved in the search of the premises and the subsequent

issuance of a search warrant. The Government’s stipulation

that David Brand would be an important witness for the de-

fense recognized and established the obvious - that the de-

fense was prejudiced by the unavilability, because of death,

of David Brand.

The purpose of a stipulation between the parties is to re-

move the need for proof of the fact stipulated to. The ef-

fect of the Government's stipulation in this case was to ob-

9

viate the need of Defendant Charles Brand’s counsel to put

on proof of the importance of David Brand’s testimony,

and hence the prejudice to the Defense resulting from its

absence. Defendant Brand reasonably relied upon the

Government's stipulation at the hearing on the motion to

dismiss the indictment and did not attempt to further es-

tablish the importance of the unavailable testimony. The

Government’s stipulation established that the defense was

prejudiced by the unavailability of a witness and therefore

by the twenty month preindictment delay during which the

witness died.

The Fifth Circuit’s decision, by substituting ‘‘could be

helpful to the defense”’ for the actual Government stipula-

tion that David Brand “would be an important witness for

the defense,” undoes the stipulation upon which Defendant

relied and allows the Court to hold that the defense was not

prejudiced by the unavailability of David.

The portion of the Fifth Circuit’s Brand opinion in which

United States v. McGough, 510 F.2d 298 (Sth Cir. 1975)

is cited is noteworthy and is quoted below:

In McGough, which is particularly applicable to

the present case, the defendant argued that the

death of six witnesses had prejudiced his cause.

He contended that several witnesses had firthand

knowledge of the transactions involved and that

others could impeach Government witnesses.

Although the Government vigorously contested

the asserted prejudice, the district court found a

due process violation. This Court remanded the

case because the district court had not considered

10

the factual dispute over whether the testimony of

the witnesses was actually important to the de-

fense.

In the instant case, however the actual prejudice to defen-

dant was established by the Government stipulation on the

record that David Brand would be an important defense

witness.

This Court should consider the Fifth Amendment due

process implications of an appellate court circumventing a

stipulation by the Government, upon which Defendant

relied, to conclude that the defense was not prejudiced by

absence of a key witness, and therefore a 20 month pre-

indictment delay also was not prejudicial.

The presence of actual prejudice to Defendant Brand in

this case means that the Fifth Circuit’s decision is in conflict

with this Court’s decisions in United States v. Marion,

404 U.S. 307, 30 L.Ed. 2d 468 (1971) and United States v.

Lovasco __U.S. __ , 52 L.Ed 2d 752, which establish that

where there is actual prejudice to a defendant a preindict-

ment delay can violate the due process clause of the fifth

amendment. Lovasco, Supra states that the due process

inquiry must consider the reasons for delay. In the instant

case, however, the record is silent, and the reasons for the

government’s 20 month delay from the date of the state

arrest to the date of the federal indictment is unexplained.

This Court should issue the writ of certiorari to consider

the question of whether a government stipulation as to the

importance of an unavailable witness is binding in the con-

text of an allegation that fifth amendment due process

ll

rights are violated by an unexplained preindictment delay

during which a key witness dies.

Il. THE DECISION BELOW RAISES SIGNIFICANT

QUESTIONS CONCERNING FOURTH AMENDMENT

RIGHTS, DEPARTS FROM THIS COURT’S HOLDINGS

AND CONFLICTS WITH OTHER COURTS OF APPEAL.

This question presents a most significant consideration of

Fourth Amendment rights. The Fifth Circuit Court of

Appeals in ruling that, once there was an initial intrusion

without traditional probable cause or warrant requirements

upon Fourth Amendment rights, due to exigent circum-

stances, finds those same rights may continue to be violated

without warrant or probable cause even after the exigencies

end. The opinion cites no authority from this Court to sup-

Port its proposition. The reasons for this is clear. The hold-

ing is a departure from this Court’s teachings in the area of

privacy rights related to the Fourth Amendment. (6.1/.

Leasing Corp. v. U.S. _U.S_—, 97 S.Ct. 619, 50 L.Ed. 2d

530 at 547 (1977), stands for the proposition that even if

there have existed exigent circumstances which would have

justified a search or seizure, once those exigencies end,

traditional Fourth Amendment standards requiring a search

warrant obtain.

The Fifth Circuit’s opinion is contrary to the principle in

G.M. Leasing (supra) and to Katz v. U. S., 389 U.S. 347

(1967). The Fourth Amendment protects, inter alia, the

right of privacy. There is no precedent in this Court that

once that privacy interest is invaded, due to a recognized

exception to the Fourth Amendment probable cause and

warrant requirement, that it may continue to be violated

12

after the exigency ends.

The Fifth Circuit’s holding in U.S. v. Green, 474 F.2d

1385 (5th Cir. 1973) cert. denied, 414 U.S. 829 relied upon

by the court’s ruling below, and the Third Circuit’s holding

in Steigler v. Anderson, 496 F.2d 793 (3rd Cir. 1974),

cert. denied, 419 U.S. 1002, conflict with the Second Cir-

cuit’s holding in U.S. v. Birrell 470 F.2d 113 (2nd Cir.

1972).

...The propriety of the first intrusion into [a

person's] privacy does not automatically sanction

a second. Even when a “major” intrusion falls

within a recognized exception to the Fourth

Amendment, the warrant requirement as to a

further “minor’’ intrusion is not . abrogated.

Further significance is added to this question by state

courts following the rule of Green. Bennett v. Common-

wealth, 188 S.E. 2d 215 (Va. 1972) holds that a warrant-

less search occurring a day after a fire is one that ‘‘the law

has traditionally upheld in emergency situations.’’ People

v. Tyler, 250 N.W. 2d 467 (Mich. 1977) rejects this pro-

position and Green. In Tyler the Michigan Supreme Court,

follow G. M. Leasing Corp. supra, and hold that

The exigent circumstances exception does not,

however, justify a search after the emergency no

longer obtains, and the justification for the ex-

ception had ceased to exist.

This is the correct interpretation of G. M. Leasing and

comports with earlier rulings of this Court. The signifi-

13

cance of this issue is clear. The Court should review this

issue to settle the conflict between its holdings and those of

the Courts of Appeal and State Courts departing from them.

III. THE DECISION BELOW CONFLICTS WITH PAST

RULINGS OF THIS COURT

The affidavit in support of the search warrant recites

basically three facts which could support a finding of pro-

bable cause by the Magistrate. Those facts were (1) the

hearsay statement that there had been a drug overdose at

the residence, (2) that the affiant had seen pills, marijuana

butts, and hypodermic needles in the living room at the resi-

dence, and (3) that David Brand, a guest in the house, ad-

vised that there was a large amount of cocaine located in

the house that had been brought in from South America.

The holding of the Circuit Court of Appeals in finding that

this did establish probable cause is contrary to established

Supreme Court law.

Aquilar v. Texas, 1964, 378 U.S. 108 established the two-

prong test for determining when a search warrant may issue

on information received from a confidential informer. The

Court required that:

The Magistrate must be informed of some of the

underlying circumstances from which the infor-

mant concluded that the narcotics were where he

claimed they were, and some of the underlying

circumstances from which the officer concluded

that the informant, whose identity need not be

disclosed was credible or his information reliable.

378 U.S. at 114.

14

Spinelli v. United States, 1969, 393 U.S. 410 further

clarified this area. This Court in Spinelli held that a tip of

an informant, though in itseif insufficient under Aquilar to

constitute probable cause, might be assessed along with

other allegations in the affidavit in evaluating the Magis-

trate’s findings. The Court in elaborating on the second-

prong of Aquilar emphasized the need for the affidavit to

provide either ‘‘a statement detailing the manner in which

the information was gathered,’’ or, failing that, ‘‘a descrip-

tion of the accused criminal activity in sufficient detail that

the Magistrate may know he is relying upon something more

substantial than a casual rumor circulating in the under-

world.” 393 U.S. at 416.

United States v. Harris, 1971, 403 U.S. 573 further

elaborated on Aquilar and Spinelli. This -Court in Harris

found that the first-prong of Aquilar, concerning the re-

quirement of detail supporting the conclusion that the in-

formant was credible could be supported by accumulation

of facts recited in the affidavit.

The Court of Appeals found that David Brand’s hearsay

assertion could not support the search warrant since it failed

to meet the standards of Aquilar. The Court of Appeals

further found that the corroboration gained by the observa-

tions of Officer Beck did not confirm the details of the tip.

They held, however, that the corroboration ‘‘does raise

independently an inference that narcotics were on the

premises. When combined with the tip, this inference pro-

vides the reasonable basis for the Magistrate to conclude

that the house probably contained cocaine.” 556 F. 2d at

1318.

15

Can the observation by Officer Beck of pills, marijuana

butts, and hypodermic needles corroborate, to the level of

probable cause, the statement which David Brand had made

concerning cocaine in the house? It appears that the Court

of Appeals went beyond the standards required by the

Aquilar, Spinelli, Harris trilogy and erred in finding prob-

able cause existed. The corroboration required must bear

on the statement which is being ocrroborated and here there

is no such nexus. The affidavit is insufficient.

The conflict justifies the grant of certiorari to review the

judgment below.

CONCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

KENT SPRIGGS

324 West College Avenue

Tallahassee, Florida 32301

Counsel for Petitioner

16

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of November,

1977, three copies of the Petition For Writ of Certiorari

were mailed, postage prepared to Nicholas P. Geeker,

United States Attorney, Post Office Bax 1308, Tallahassee,

Florida 32302 and to Wade McCree, Solicitor General of

the United States, Room 5143, Department of Justice,

Washington, D. C. 20530. I further certify that all parties

required to be served have been served.

KENT SPRIGGS

324 West College Avenue

Tallahassee, Florida 32301

Counsel for Petitioner

A-1

UNITED STATES of America,

Plaintiff-Appellee,

v.

Charles Demetrios BRAND,

Defendant-Appellant.

No. 76-3202.

United States Court of Appeals,

Fifth Circuit.

Aug. 5, 1977.

Appeal from the United States Dis-

trict Court for the Northern District of

Florida.

Before WISDOM, GEE and FAY, Cir-

cuit Judges.

WISDOM, Cirevit Judge:

Charles Demetrios Brand, the defend-

ant-appellant, challenges his conviction

after trial by jury for possession of co-

caine hydrochloride with the intent to

distribute the controiled substance in vi-

olation of 21 U.S.C. § 841. He contends

that a 20-month delay between his al-

legedly criminal act and the indictment

violated due process, as well as his statu-

tory and constitutional rights to a speedy

trial. He also argues that the district

court should have suppressed evidence

seized after the issuance of a search

warrant. We reject both contentions

and affirm the conviction.

I

On July 23, 1974, the Tallahassee Me-

morial Hospital sent an ambulance to

500 Laura Lee Drive to assist a drug

overdose victim. The Tallahassee Police

Department dispatched Officer George

Greene to help the ambulance attend-

ants. When Greene and the attendants

A-2

entered the house, they found George

Demetrios Brand lying unconscious on

the floor of the living room. Greene

testified that he saw hypodermic

needles,’ marijuana butts, and several!

pills in the living room. He also heard

the ambulance attendant ask Brand's

wife whether her husband was on drugs.

She reportedly responded that he had

taken hard drugs.

Officer Wayne Crawley arrived at the

house as Brand was placed in the ambu-

lance. Mrs. Brand and one of the de-

fendant’s brothers went to the hospital.

Another brother, David Brand, remained

at the house with the policemen. Craw-

ley also reported seeing hypodermic nee-

dles and pills in the living room when he

first entered. He and Officer Greene

then apparently walked into one of the

bedrooms where they found more hypo-

dermics, pills, powdered substances, and

blood stains around a table and on a

needle. Crawley said he did not investi-

gate the scene further but instead called

a narcotics investigator, Walter Beck to

the scene.

Beck testified that numerous pills, pill

bottles, injection bottles, and syringes

were on the table in the living room of

the house when he arrived. He spoke

with David Brand, who said that his

1. When Greene restated on cross examination

what he saw when he entered the house, he

omitted the needles. Given the flow of cross

examination and the testimony of Officer

Crawley who also saw hypodermic needles in

the living room, the omission by Officer

Greene is not significant.

A-3

brother had probably reacted to the co-

caine that they had been shooting.

David also reportedly said that the co-

caine was part of a shipment his brother

had just received and stored in the attic

of the house. Beck then called Sergeant

George Brand, who directed that the

house be secured and that Beck obtain a

search warrant. Beck submitted the fol-

lowing affidavit to the magistrate to

procure the warrant:

[Y}our Affiant received a call at home

from the police dispatcher at 3:48 a.

m. in reference to a drug overdose

case at 500 Laura Lee Street. When

your Affiant arrived at the above de-

scribed location, he observed number-

ous [sic] items of narcotics and danger-

ous drugs in plain view inside the

house. A variety of pills, prescription

bottles, syringes, and other narcotic

paraphernalia were also observed.

Your Affiant talked to David Brand,

a guest at the above described house,

who advised that there was a large

amount of cocaine located in the house

that had been brought in from South

America.

Beck explained on cross examination

that all of the items listed as in plain

view were in the living room of the

house, not in the bedroom. He asserted,

however, that the bedroom could be seen

from the living room?

2. Beck acknowledged that Officer Greene had

gone into the bedroom before Beck arrived.

According to Beck, David had taken Greene to

show him currency that was later seized pur-

suant to the search v.arrant.

A-4

After the magistrate issued the war-

rant, the police found a pound to a

pound and a half of cocaine in a thermos

bottle in a clothes dryer. They also

seized syringes, foreign currency, $10,670

in cash, and small quantities of cocaine.

The police arrested rand and

his wife on July 23, 1974, for possession

of the cocaine in violation of state law.

After a state court judge suppressed the

seized evidence, the prosecutor nolle

prossed the state charges. A federal in-

vestigation began during the autumn of

1975 and resulted in the return of an

indictment on March 11, 1976, more than

20 months after the arrest under the

state charges but within the period of

the applicable federal statute of limita-

tions.’

During the trial the district court re-

fused to suppress the evidence seized un-

der the warrant. The=cenrt—did—mt

-statetts-reasone—forthe-refusat. At the

conclusion of the Government’s case, the

court granted a motion for judgment of

acquittal in favor of Mrs. Brand. Her

husband was found guilty by the jury

and later sentenced to.10 years in prison.

3. 18 U.S.C. § 3282 (1970), which states: _

Except as otherwise provided by law, no

person shall be prosecuted, tried, or pun-

ished for any offense, not capital, unless the

indictment is found or the information is in-

stkuted within five years next after such of-

fense shall have been committed.

A-5

II.

Brand argues first that the 20-month

preindictment delay requires reversal of

his conviction and dismissal of the

charges against him under either Rule

48(b) of the Federal Rules of Criminal

Procedure‘ or the speedy trial provision

of the sixth amendment® or the due

process clause of the fifth amendment.‘

{1} Rule 48(b) applies only to a prein-

dictment delay that occurs after the de-

fendant “has been held to answer to the

district court”. In this case, however,

the defendant was not held to answer on

the charges for which he was convicted

in the district court until after the in-

4. Rule 48(b) states in part:

If there is unnecessary delay in presenting

the charge to a grand jury or in filing an

information against a defendant who has

been held to answer to the district court, or

if there is unnecessary delay in bringing a

defendant to trial, the court may dismiss the

indictment, information or complaint.

5S. The sixth amendment to the Constitution

States in part:

In all criminal prosecutions, the accused .

ee

trial . .

6. The fifth amendment to the Constitution

States in part:

No person shall be . . . deprived of

life, liberty, htiasetinas without due process

, Jr

A-6

dictment. The defendant did not face

arrest by federal authorities before the

indictment; the state arrest alone did

not trigger the Rule because it did not

require Brand to answer to the federal

district court. Thus, dismissal] is not re-

quired by Rule 48(b) when a federal ar-

rest has not occurred and the grand jury

has returned the indictment within the

period of the applicable statute of limita-

tions. United States v. Giacalone, 6 Cir.

1973, 477 F.2d 1278; United States v.

Grayson, 5 Cir. 1969, 416 F.2d 1073, cert.

denied, 1970, 396 U.S. 1059, 90 S.Ct. 754,

24 L.Ed.2d 753, rehearing denied, 397

U.S. 1003, 90 S.Ct. 1114, 25 L.Ed.2d 415,

and 399 U.S. 917, 90 S.Ct. 2191, 26

L.Ed.2d 576.

{2} The defendant's sixth amendment

claim also lacks merit because he was

not subjected to a federal arrest until

after the federal indictment. United

States v. Marion, 1971, 404 U.S. 307, 92

S.Ct. 455, 30 L.Ed.2d 468, held that the

speedy trial provision of the sixth

amendment provides a person no protec-

tion until he becomes an accused by ar-

rest or indictment. Accord, United

States v. Lovasco, — U.S. —, 97

S.Ct. 2044, 52 L.Ed.2d ——, 1977. The

Court recognized that any delay from

the date of the criminal act might impair

defense preparation. It might also prej-

udice the Government's case. Yet the

Court concluded that the amendment

was directed toward other interests:

A-7

[T}he major evils protected against by

the speedy trial guarantee exist quite

apart from actual or possible prejudice

to an accused’s defense. To legally

arrest and detain, the Government

must assert probable cause to believe

the arrestee has committed a crime.

Arrest is a public act that may serious-

ly interfere with the defendant's liber-

ty, whether he is free on bail or not,

and that may disrupt his employment,

drain his financial resources, curtail

his associations, subject him to public

obloquy and create anxiety in him, his

family and his friends.

404 U.S. at 320, 92 S.Ct. at 463.

Here the United States did not visit

the evils identified in Marion upon the

defendant until the return of the bill of

indictment. Consequently, the Govern-

ment did not infringe the defendant's

sixth amendment rights by waiting 20

months to charge him. See United

States v. Grayson, 5 Cir. 1969, 416 F.2d

1073, 1076~77.

{3} A preindictment delay can violate

the due process clause of the fifth

amendment even where the defendant

has not been arrested or otherwise ac-

cused before the indictment. In Marion

the Court recognized this possibility

when it noted the Government’s conces-

sion that due process would require dis-

missal when an intentional tactical delay

by a prosecutor substantially prejudiced

a defendant. United States v. Lovasco,

— US. , 97 S.Ct. 2044, 52 L.Ed.2d

——, 1977, recently reaffirmed the Mari-

on holding. In each case, however, the

A8

Court noted that the due process deter-

mination would vary from case to case.

Id. at , 97 S.Ct. 2044; United States

v. Marion, 404 U.S. at 324, 92 S.Ct. 455.

Brand argues in this case that the 20-

month delay substantially prejudiced his

ability to prepare his defense. In partic-

ular, he submits that the death of his

brother David, the only family member

who remained at the house during the

search, prevented an effective challenge

by the defense to the admission into evi-

dence of the seized cocaine.

The Supreme Court has held that Mar-

ion requires a showing of actual! preju-

dice. United States v. Lovasco, —— US.

at , 97 S.Ct. 2044; see United

States v. McGough, 5 Cir. 1975, 510 F.2d

598; United States v. Beckham, 5 Cir.

1975, 505 F.2d 1316, cert. denied, 421

U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104;

United States v. Zane, 5 Cir. 1973, 489

F.2d 269, cert. denied, 1974, 416 U.S. 959,

94 S.Ct. 1975, 40 LEd2d 310. In

McGough, which is particularly applica-

ble to the present case, the defendant

argued that the death of six witnesses

had prejudiced his cause. He contended

that several witnesses had firsthand

knowledge of the transactions involved

and that others could impeach Govern-

ment witnesses. Although the Govern-

ment vigorously contested the asserted

prejudice, the district court found a due

process violation. This Court remanded

the case because the district court had

not considervd the factual dispute over

whether the testimony of the witnesses

was actually important to the defense.

AY

{4,5} In this case the Government

stipulated before the district court that

David Brand’s testimony could be helpful

to the defense. On reviewing the rec-

ord, however, David's presence would not

seem to add significantly to the defend-

ant’s arguments. The conviction was

based primarily on the cocaine that the

police seized in Brand’s residence. Be-

cause David remained at the house dur-

ing the search, he could testify as to the

circumstances relating to the discovery

of the cocaine. His testimony could de-

feat the validity of the warrant only if

he could convince the district court that

he had not told Officer Beck about the

cocaine or that the marijuana butts, hy-

podermic needles, and pills were not in

plain view in the living room when Offi-

cers Greene and Crawley arrived. See

Section III of this opinion. But neither

factual proposition is disputed; there is

only uncertainty about whether David

consented to a search of the bedroom

and whether additional material from

the bedroom was taken to the living

room by the police before they procured

the warrant. Because the validity of the

warrant does not depend on material

that might have been found in the bed-

A-10

Ill.

The Tallahassee police seized the co-

caine and narcotics paraphernalia pursu-

ant to a search warrant. The validity of

the warrant, and therefore of the sei-

zure, depends on whether the police le-

gally entered the house before the war-

rant was issued and on whether the affi-

davit contains sufficient information to

support the finding of probable cause.

be found. The dispute is settled by United

States v. Lovasco, —- U.S. ——, 97 S.Ct.

2044, 52 L.Ed.2d ——, 1977, which holds that

prejudice alone “makes a due process claim

concrete and ripe for adjudication”. Jd. at

——, 97 S.Ct. at 2048. Whether the claim is

valid depends on the due process balancing

between the extent of the actual prejudice and

the governmental interests at stake. The opin-

ion does not indicate that governmental inter-

ests not amounting to an intentional tactical

delay will automatically justify prejudice to a

defendant. On the contrary, the Court en-

gages in a sensitive balancing of the govern-

ment’s need for an investigative delay in Lo-

vasco against the prejudice asserted by the

defendant.

The analysis in Lovasco is consistent with

most Fifth Circuit cases. See United States v.

McGough, 5 Cir. 1975, 510 F.2d 598; United

States v. Beckham, 5 Cir. 1975, 505 F.2d 1316;

United States v. Zane, 5 Cir. 1973, 489 F.2d

269. Only United States v. Butts, 5 Cir. 1975,

524 F.2d 975, seemed to require a showing of

both actual prejudice and intentional delay.

Lovasco indicates that such a requirement

misreads Marion, which stated:

We need not, and could not now, determine

when and in what circumstances actual prej-

udice resulting from preaccusation delay re-

quires the dismissal of the .

United States v. Marion, 1971, 404 U.S. 307,

324, 92 S.Ct. 455, 465, 30 L.Ed. 2d 468, 481.

According to the Supreme Court, that state-

ment remains true today. Lovasco, —— US.

at ——, 97 S.Ct. 2044. Clarity will come only

on a case-by-case basis.

A-11

The defendant argues first that only

Officer Greene entered the house legally.

When he assisted the ambulance attend-

ants, Greene’s presence in the house was

permitted by the exigent circumstance

of the medical emergency. According to

Brand, however, officers who entered

subsequently cannot justify their pres-

ences with the same exigent circum-

stance because the medical emergency

ended prior to their arrivals.* Conse-

quently, he suggests that Sergeant

Brand and Officers Beck and Crawley

illegally entered the house, thereby

tainting the information they gathered

for the probable cause affidavit.

[6,7] We reject the defendant's con-

tention because it misconceives the na-

ture of the fourth amendment interest

at stake. The amendment protects the

citizen against invasion of privacy. Once

that interest is invaded legally by an

official of the State, the citizen has lost

his reasonable expectation of privacy to

the extent of the invasion. As this

Court has held repeatedly, additional in-

vestigstors or officials may therefore en-

ter a citizen’s property after one official

A-12

has already intruded legally® E. g.

United States v. Green, 5 Cir. 1973, 474

F.2d 1385, 1390, cert. denied, 414 U.S.

829, 94 S.Ct. 55, 38 L.Ed.2d 68; United

States v. Herndon, S.D.Fla.1975, 390

F.Supp. 1017, aff'd, 5 Cir. 1976, 586 F.2d

1027; see Steigler v. Anderson, 3 Cir.

1974, 496 F.2d 793, 797-98, cert. denied,

419 U.S. 1002, 95 S.Ct. 320, 42 L.Ed.2d

277. Later arrivals may join their col-

leagues even though the exigent circum-

stances justifying the initial entry no

longer exist. Jd. Thus, the validity of

the affidavit is not vitiated by the late

entry of the affiant and the other police-

men.

[8] The defendant next argues that

the affidavit did not contain sufficient

information to justify a finding of prob-

able cause for the search. He pointed

out that the information as to the co-

caine in the house depends on the hear-

say assertion by David Brand that the

shipment from South America was locat-

ed there. The defendant submits that

the district court should not have relied

on this tip alone, because of its being

hearsay. Aguilar v. Texas, 1964, 378

U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

This point is well taken. The affidavit

contains no information with which the

magistrate could independently evaluate

the reliability of David, the informant.

A-13

See id. at 114, 84 S.Ct. 1509. The docu-

ment does not, for example, identify

David as the defendant's brother. The

magistrate could not then presume that

David would not falsely implicate a fam-

ily member in-a crime. The affidavit

also does not permit a finding that

David provided the tip against his own

penal interest. There is no indication

that David participated in any criminal

activity or illegally possessed the co-

caine; the document states only that he

was a guest in the house. Compare

United States v. Barfield, 5 Cir. 1975,

507 F.2d 53, cert. denied, 421 U.S. 950, 95

S.Ct. 1684, 44 L.Ed.2d 105; Ludwig v.

Wainwright, 5 Cir. 1970, 434 F.2d 1104.

Consequently, David’s hearsay assertion

cannot support the search warrant by

itself.

[9] Despite the inadequacy of the af-

fidavit, the district court properly issued

the warrant in this case because the

hearsay was corroborated by, indepen- it

, , “ee ‘Si —

dent police investigation. Spinelli v.

United States, 1969, 393 U.S. 410, 89

S.Ct. 584, 21 L.Ed.2d 687; Polanco v.

Estelle, 5 Cir. 1975, 507 F.2d 81, cert.

denied, 423 U.S. 854, 96 S.Ct. 101, 46

L.Ed.2d 78; Lopez v. United States, 5

Cir. 1966, 970 F.2d 8. As the Court ex-

plained in Gonzales v. Beto, 5 Cir. 1970,

425 F.2d 963, cert. denied, 400 US. 928,

91 S.Ct. 194, 27 L.Ed.2d 189, an inform-

er's tip may be buttressed either by inde-

pendent observations substantiating the

A-14

details of the tip or by independent ob-

servations of activity reasonably arous-

ing suspicion itself. Jd. at 969. Regard-

less of the approach, the tip and the

corroboration must constitute probable

cause to believe that the object of the

search was on the premises to be exam-

ined. The information must raise more

than a “reasonable suspicion” in the

magistrate’s mind to ensure an effective

check on the competitive zeal of law en-

forcement officials. Jd. at 968, quoting

Johnson v. United States, 1948, 333 U.S.

10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436,

440. Here, although the corroboration

does not confirm the details of the tip, it

does raise independently an inference

that narcotics were on the premises.

When combined with the tip, this infer-

ence provides a reasonable basis for the

magistrate to conclude that the house

probably contained cocaine.

{10} We have reached this conclusion

even though we omitted consideration of

several items of contraband listed in the

affidavit. By ecmparing the testimony

of Greene and Crawley with that of

Beck, the inference arises that the first

two officers brought several items into

the living room from the bedroom before

Beck arrived. Unless the materials in

A-15

the bedroom were in plain view from the

living room, however, their seizure was

illegal." The medical emergency justi-

fied the officers’ presence only in the

living room. Brand retained a reasona-

ble expectation of privacy in other areas

of the house. Infringement of that ex-

pectation requires the suppression of any

evidence acquired thereby, including its

use to secure a search warrant." Alder-

man v. United States, 1969, 394 U.S. 165,

178-79, 89 S.Ct. 961, 969, 22 L.Ed.2d 176,

190, rehearing denied, Ivanov vy. U. S.,

894 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d

475. Consequently, we have considered

only the items that Greene and Crawley

said were in plain view when they en-

tered the living room: hypodermic nee-

dies, marijuana butts, and pills. These

items, when considered with the tip and

the occurrence of a drug overdose emer-

gency on the premises, support the mag-

istrate’s probable cause finding.

The judgment of the district court is

AFFIRMED.

10. The record does not clearly indicate wheth-

er the materials that probably came from the

bedroom were in plain view from the living

room. If the validity of the warrant depended

on the inclusion of these articles in the affida-

vits, we would remand the case to the district

court for further factual findings on the plain

view issue. The remand is not required, how-

ever, because the affidavit includes sufficient

corroboration without the items.

11. We have excluded from the consideration

the listing in the affidavit of narcotics, danger-

ous drugs, prescription bottles, and narcotic

paraphernalia.

A-16

ae ay ’ e* “ a ~ wre t se

Clerz, -- - Bee o wa ® a~, Fis vei S Tews

A-17

APPENDIX B

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-3202

D.C. Docket No. CR-76-4

UNITED STATES OF AMERICA,

Plaintiff- Appellee

CHARLES DEMETRIOS BRAND,

Defendant-Appellant

FILED: Oct. 17, 1977

Appeal from the United States District Court for the

Northern District of Florida

Before WISDOM, GEE and FAY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here order-

ed and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

A-18

affirmed.

August 5, 1977

Issued as Mandate: Oct 12 1977

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

By: s/ Susan N. Gravois

Deputy

Oct 12, 1977

New Orleans, Louisiana

A-19

APENDIX C

Letter notifying the Denial of Petition for Rehearing

United States Court of Appeals

Fifth Circuit

Edward W. Wadsworth Office of the Clerk 504-589-6514

Clerk October 4, 1977 600 Camp St.

New Orleans, La. 70130

TO ALL PARTIES LISTED BELOW:

NO. 76-3202 - U.S.A. v. CHARLES DEMETRIOS BRAND

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

banc (Rule 35, Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 12) the petition ( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By: s/ Brenda M. Hauck

Deputy Clerk

** on behalf of appellant, Brand,

cc: Mr. Stewart E. Parsons

Mr. Nickolas P. Geeker

Mr. Clifford L. Davis

A-20

APPENDIX D

JUDGMENT AND PROBATION/COMMITMENT ORDER

United States of America vs.

Charles Demetrios Brand UNITED STATES DISTRICT

COURT for the NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

Docket No. TCR 76-4

COUNSEL

In the presence of the attorney for the government the

defendant appeared in person on this date JULY 29, 1976

WITH COUNSEL Stewart Parsons.

PLEA

NOT GUILTY.

FINDING & JUDGMENT

There being a verdict of GUILTY.

Defendant has been convicted as charged of the offense(s)

of on or about July 23, 1974, knowingly and intentionally

possessing with intent to distribute a Schedule II controlled

substance, to-wit: cocaine hydrocholoride, in violation of

Title 21 USC 841(a)(1) as charged in the one count indict-

ment.

SENTENCE OR PROBATION ORDER

SPECIAL CONDITIONS OF PROBATION

The court asked whether defendant had anything to say

A-21

why judgment should not be pronounced. Because no

sufficient cause to the contrary was shown, or appeared to

the court, the court adjudged the defendant gu. y as charg-

ed and convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period of

Ten (10) years with a special parole term of three(3) years.

In addition to the special conditions of probation imposed

above, it is hereby ordered that the general conditions of

probation set out on the reverse side of this judgment be

imposed. The Court may change the conditions of pro-

bation, reduce or extend the period of probation, and at

any time during the probation period or within a maximum

probation period of five years permitted by law, may issue

a warrant and revoke probation for a violation occurring

during the probation period.

COMMITMENT RECOMMENDATION

The court orders commitment to the custody of the Attor-

ney General and recommends,

It is ordered that the Clerk deliver a certified copy of this

judgment and commitment to the U.S. Marshal or other

qualified officer.

SIGNED BY

U.S. District Judge

s/ William Stafford

WILLIAM STAFFORD

Date July 29, 1976

A-22

APPENDIX E

EXCERPTS FROM TRANSCRIPT

came back he was lying on the bed and I didn’t know what

was wrong with him. I called an ambulance to come and get

him to take him to the hospital.

Q Did you accompany the ambulance to the hospital?

A Yes, sir, I did.

Q Did anyone else come with the ambulance to the hos-

pital?

A His brother, Jimmy, followed us to the hospital in his car.

Q How many children did you have at that point in time?

A Two.

Q What were their ages at this point in time?

A The oldest was 7 and Michael wasn't quite one.

Q Did anyone remain at the house to look after the chil-

dren in your absence?

A My husband's brother David.

Q Now, is David the brother that is now deceased?

A Yes, sir.

Q Have you talked with David subsequent to that evening

about what happened while he was in the house after you

had gone to the hospital and your husband and Jimmy

Brand had gone to the hospital?

A Just a little bit.

A-23

Q What did he tell you?

A He told me that ~ well, a policeman accompanied the

ambulance to the hospital, I mean to the house, and he

said the police searched the house and then they called

George Brand and George Brand came in and said that it

looks like we need to get a warrant.

Q So that is the essence of the conversation you had with

David Brand about the evening?

A Yes, sir.

Q Now, when did you become pregnant with the twins?

A About the middle of February, 1975.

Q At that point in time what was your impression as to

the status of the criminal proceedings in Tallahassee

against you and your husband?

A We had been informed the case had been dropped.

Q How did you feel about that and what was your attitude

towards that?

A I was happy.

Q Since that time would you just describe to the Court

what you and your husband have done in Maysville and

how you have approached your life since February of

1975?

A Well, we had the twin boys and we worked, my husband

has been planting a garden and working as a plumber’s

helper, and just been trying to raise our kids and --

A-24

Q Has life gone pretty well during that time period?

A Well, we have had some unfortunate accidents, but -

xz**

would be a helpful witness for the Government, yes, sir.

Q Is it not true that the officers got into the house to start

with because of David Brand’s consent and particularly

the areas where they found things in plain view?

A I think the officers got into the house when they went

in with the ambulance attendants to remove those

persons 0.d.’d in the house.

Q But he didn’t see anything on that trip?

A Apparently they saw drugs on plain view on the table.

Q In making that statement did you review the police re-

ports in the file?

MR. DAVIS:

Your Honor, I would like to interpose an objection at

this time that we are actually getting beyond what is con-

tained in the file, but other than that I will stipulate that

David Brand would be an important witness for the Defense

purposes. I think it is obvious.

MR. PARSONS:

That is the only reason I was getting into that area, your

Honor. That is one of the important criterias you have to

show in these kinds of situations.

A-25

THE COURT:

All right, gentlemen, can we speed this thing

ket

THE COURT:

Mr. Davis?

MR. DAVIS:

No questions.

THE COURT:

All right, Mr. Warren, you may be excused.

(Whereupon, the witness was excused. )

MR. PARSONS:

I have nothing further, your Honor.

THE COURT:

All right, is that it?

MR. PARSONS:

Your Honor, could we submit argument in writing. We

would like to save the Court time and I think the Court is

going to need to take this matter under advisement to read

through the transcripts and to avoid taking up the Court’s

time we chose to do that by that manner rather than the

actual live tapes.

A-26

THE COURT:

All right, well, what more do you have to say that is not

in your - that is not on file. I will give you 5 days, each

side to submit, if you wish, and then I plan to rule on it

just as promptly as I can.

MR. PARSONS:

I want to be sure that the record establishes that the

Government has stipulated that Mr. David Brand would be

an important witness.

THE COURT:

I recall that, Mr. Parsons.

You got that stipulation from him.

Will 5 days, until next Monday give you enough time?

MR. PARSONS:

Yes, sir, your Honor.

MR. DAVIS:

We are ready to argue now but that would be fine to

handle it that way.

THE COURT:

Do you want to argue now or put it in writing?

MR. PARSONS:

It doesn’t matter, I am trying to save time for the Court.

A-27

THE COURT:

You have the Court Reporter here. It will save a lot of

paper. Go ahead and argue your case now if you want to.

MR. PARSONS:

Your Honor, just to generally summarize, I think that

the Defendant has carried the burden, particularly on the

grounds for the motion that relate to the due processes

**xe«*