# Petition — Marchand v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0130%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1015 ## Text FILED ‘Supreme Court, U. $ | NOV $0 1977 \ MICHAEL RODAK In the JR, CLERK Supreme Court of the United States. Ocroser Term, 1977. No.7 75 ROBERT P. MARCHAND, JR., PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT. ‘ Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit. Josern S. OTERI, Martin G. WEINBERG Juprrn H. Mizner, Oren: & WEINBERG, 10 Post Office Square, Boston, Massachusetts 02109. (617) 227-3700 BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS. Table of Contents. Opinions below Jurisdiction Question presented Constitutional provision involved Statement of the case Reasons why the writ should be granted The burden of proof standard applied by the court below is legally incorrect and logically unsound 6 oOo own wb W& Conclusion ll Appendix Findings of fact and conclusions of law of the United States District Court for the District of Vermont la Order of the United States District Court for the District of Vermont 20a Opinion of the United States Court of Appeals for the Second Circuit 2la Opinion on petition for rehearing of the United States Court of Appeals for the Second Circuit 57a Excerpt from transcript of suppression hearing testimony 60a Table of Authorities Cited. CASES. United States v. Ceccolini, 542 F. 2d 136 (2d Cir. 1977), cert. granted, 45 U.S.L.W. 3715 (1977) 9n ii TABLE OF AUTHORITIES CITED. United States v. Chadwick, 97 S. Ct. 2476 (1977) 7, 10 United States v. Griffin, 502 F. 2d 959 (6th Cir. 1974), cert. den. 419 U.S. 1050 (1974) 9 United States v. Mahone, 537 F. 2d 922 (7th Cir. 1976), cert. den. 429 U.S. 1025 (1976) ln Wong Sun v. United States, 371 U.S. 471 (1963) 6 CONSTITUTIONAL AND STATUTORY PROVISIONS. United States Constitution, Fourth Amendment 3, 5, 6, 7, 9, 10, 11 18 U.S.C. § 841 5 28 U.S.C. § 1254(1) 2 a In the Supreme Court of the United States. Ocroser Term, 1977. No. ROBERT P. MARCHAND, jh., PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT. Petition tor a Writ of Certiorari to the United States Court of Appeals for the Second Circuit. Robert P. Marchand, Jr., petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Second Circuit entered in this case on August 22, 1977, and November 1, 1977. 2 Opinions Below. The Court of Appeals for the Second Circuit issued two opinions in this case. The initial opinion of August 22, 1977, not yet reported, is reproduced in the Appendix at pp. 21a-56a. The opinion of November 1, 1977, not yet reported, denying Marchand’s petition for rehearing, is reproduced in the Appendix at pp. 57a-59a. The District Court for the District of Vermont issued findings of fact and conclusions of law in denying petitioner’s motion to suppress. A copy of that opinion is reproduced in the Appendix at pp. la-20a. Jurisdiction. The original judgment of the Court of Appeals was entered on August 22, 1977 (App. 2la). A timely petition for rehear- ing was denied on November 1, 1977 (App. 57a). The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). Question Presented. When law enforcement officers effect a warrantless arrest subsequent to an illegal search and seizure in which they ob- tain evidence supporting a finding of probable cause to arrest, must they, to validate the arrest, affirmatively demonstrate reliance in fact on a totally independent and untainted source of evidence, or may they rely on the mere existence of an in- dependent, untainted source of evidence which could theoretically have led to the arrest? PaaS 3 Constitutional Provision Involved. The Fourth Amendment to the United States Constitution provides: Th: 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 War- rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Statement of the Case. On August 24, 1976, federal agents and Florida police, armed with an arrest warrant for one Robert Higgins (not in- volved in this case), executed that warrant at Higgins’ Lauderhill, Florida, apartment (App. 60a-6la). Petitioner emerged from a second bedroom shortly after the officers ef- fected Higgins’ arrest. None of the officers indicated in any way that they recognized petitioner at that time (App. 6la, 65a). While the federal agent in charge, Agent Harris of the DEA, was with Higgins in his bedroom, Detec- tive Adcock of the Lauderhill police came to him, with Mar- chand’s driver’s license in hand, and stated that she had seen a picture of this person before,’ recognized the name and the picture, and, from prior discussions with a Vermont DEA agent, believed that Marchand was wanted in that district on a marijuana conspiracy indictment. After calling Vermont to 'The photograph Adcock had seen was a small photograph marred by glare and depicting petitioner at a somewhat earlier age (App. 26a). 4 confirm Marchand’s identity, Harris placed him under arrest, searched his wallet, and extracted a note which was intro- duced against him at trial (App. 62a-63a). Prior to trial, Marchand moved to suppress the note, alleg- ing that his license had been unlawfully seized from his wallet while it was lying on the dining room table; that his arrest was a direct result of this seizure; that since the note had been seized incident to his arrest both his arrest and the note seized pursuant to it were fatally tainted by the prior, illegal seizure of his license. Agent Harris was the only officer involved in the arrest to testify at the suppression hearing. He testified in effect that he did not know the basis of Adcock’s indentification of Mar- chand; it could have been based on the license, the photograph she had seen earlier, or some combination of the two.? The trial court found that Detective Adcock initially iden- tified Marchand by removing his driver’s license from his wallet (App. 14a).* However, since the court found that in- *In responding to counsel’s questions as to the basis for Adcock’s identifica- tion of Marchand, Harris testified: I don’t know if she did it completely on the driver's license, or, well, she stated she had seen a picture of this person before and she recog- nized the name and the picture and whatever and she knew it was Robert MARCHAND, the one that [the Verr-uni 2gent] had referred to earlier. I would assume from the driver's license that obviously ad given the driver's license or had been taken, one way cr the othex. I don’t know which way. And was identical, was identified. That's the normal procedure to identify the persons any how. (App. 66a-67a.) *The court also found that Detective Adcock recognized Marchand from having seen his picture and that she also recognized the name, apparently ob- tained from the license (App. 6a). Sr ren on ee ee 5 itial seizure to be constitutionally permissible,‘ it found the ar- rest lawful and declined to suppress the note. Following a jury trial (in which the note was introduced against him) Mar- chand was convicted on one count of possession and distribu- tion of marijuana in violation of 18 U.S.C. § 841. The United States Court of Appeals for the Second Circuit also rejected petitioner's Fourth Amendment claim. How- ever, it did so on a different basis. The Court of Appeals agreed with petitioner that if the seizure of the note had been unlawful “a new trial would be required” (App. 35a), and it further agreed with petitioner’s initial premise that the ar- resting officer improperly obtained his driver’s license from the wallet lying on the dining room table, thereby learning certain information pertinent to petitioner’s identity (App. 37a). However, the Court of Appeals found that the license had not been the sole predicate for the arrest,® and that because other information, available to the arresting officer and not derived from the driver’s license, could have provided probable cause for the decision to arrest, the arrest was not unlawful (App. 36a-37a, 42a). Contending that the court had applied an erroneous standard of burden of proof of taint in a warrantless arrest situation, petitioner sought rehearing. In denying rehearing the court reaffirmed its analysis, holding that the existence of untainted evidence supporting a finding of probable cause, without any proof that the untainted evidence had in fact provided the sole basis for the arrest, was sufficient to overcome any claim of taint (App. 57a-59a). ‘Given this conclusion, the court did not reach the burden-of-proof-of- taint issue raised in this petition. ’The Court of Appeals found that Adcock’s conclusion that Marchand was a fugitive from Vermont “was based on previous telephone conversations with [a Vermont DEA agent], prior observations of a photograph that had been sent to Miami, and inspection of a driver's license she had extracted from a wallet lying on the apartment's dining room table” (App. 29a) (em- phasis added). 6 Reasons why the Writ Should be Granted. THE BURDEN OF Proor STANDARD APPLIED BY THE COURT BELow 1s LEGALLY INCORRECT AND LocIcALLy UNSOUND. In affirming the legality of petitioner’s warrantless arrest on the basis of the existence of untainted evidence which could have provided probable cause for the decision to arrest, the Court of Appeals applied a standard of burden of proof of taint which, by its own acknowledgement, was guided by “no federal authority squarely on this [point]” (App. 37a-38a). Petitioner submits that this standard is flawed both legally and logically and seeks review of the constitutionality of its ap- plication in this Court. It cannot be doubted that the Fourth Amendment protec- tion against unreasonable searches and seizures includes a pro- hibition against the introduction of evidence tainted by prior illegal government actions whether that evidence be a direct or derivative result. As this Court stated in Wong Sun v. United States, 371 U.S. 471 (1963), where a claim of “taint” is made, the question is: whether, granting establishment of the primary illegal- ity, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 371 U.S. at 488. Petitioner submits that, as a matter of law and policy, once an initiai illegality has been shown, a finding of “exploitation,” and, therefore, the suppression of resulting evidence, is re- Rn 7 quired unless the government can meet the burden of affir- matively demonstrating, by at least a preponderance of the evidence, that it, in fact, relied upon an independent, un- tainted source to support its subsequent actions — and that the mere existence of an independent source upon which it theoretically could have relied is insufficient. In relaxing the burden of proof by requiring that the government need show only that it had sufficient untainted in- formation available so that hypothetically it might have un- covered the challenged evidence without its illegal actions, the Court of Appeals has eroded the protections of the Fourth Amendment. Where constitutional rights of paramount im- portance are involved, the government has not been, and can- not be, permitted to justify its actions solely on the tenuous basis of what might have been. For example, the existence of probable cause upon which a warrant might have been ob- tained has never been held, in and of itself, to be sufficient justification for dispensing with the requirement of a warrant. See, e.g., United States v. Chadwick, 97 S. Ct. 2476 (1977). The court’s departure from this standard is legally and logical- ly unsound. The Court of Appeals justified its relaxation of the govern- ment’s burden of proof in this case by analogizing to the situa- tion where a search has been conducted pursuant to a war- rant. However, cases dealing with warrants involve factors substantially different than those found in a case such as this in which an arrest is made without a warrant — i.e., solely on the basis of the field officer’s unmonitored judgment. When an officer acts pursuant to a warrant issued on the basis of a prior judicial determination that the supporting affidavit demonstrated probable cause, and it is later claimed that the evidence must be suppressed because the affidavit contained’ illegally obtained information, factors inherent in the warrant 8 process enable the government to meet its burden of proof of reliance in fact without the presentation of additional evidence as to the thought processes of the officer who obtained the warrant. In submitting an affidavit prior to the issuance of the warrant, the officer sets down on paper precise- ly those bases upon which he is, in fact, relying. If one of these bases is later found to be illegal, the court can determine the validity of the officer's actions simply by excising the il- legally obtained information from the warrant and making a new judicial determination as to the existence of probable cause on the basis of the remaining facts alone. If those re- maining, legally obtained facts are sufficient to constitute probable cause, then they meet the government’s burden of proof of actual reliance on an independent source. There is thus no need for further testimony from the officer; the inclu- sion of those facts in the initial application for a warrant, without more, demonstrates his actual reliance. However, where, as here, an officer initiates an arrest or a search without the submission of an affidavit for a prior judicial determination of probable cause, and a claim that the action is tainted by illegally obtained information is later raised, the court cannot, as it can in the case of an affidavit- search warrant case — and as it improperly did here (App. 37a-38a) -— simply disregard that illegally obtained informa- tion and conclude that since the legally obtained information “would have been” sufficient to establish probable cause, the government has met its burden of proving reliance on an in- dependent source. The fatal flaw in so doing lies in the absence of any prior documentation of actual reliance on the legally obtained information by the officer operating in the field. Without an affidavit setting forth such reliance, the government must present sufficient evidence at the suppres- sion hearing to enable the court to make a finding that the of- 9 ficer did, in fact, rely upon the independent source and not upon the illegally obtained information. Given these signifi- cant differences between the warrant situation and that presented here, the Court of Appeals’ reliance in this case on language from warrant cases is plainly misplaced. In its opinion denying rehearing the Court of Appeals at- tempts to distinguish this case from the “burden of proof laid down in the usual ‘fruit of the poisonous tree’ case” by limiting its applicability to situations where the independent source is obtained subsequent to the primary illegality (App. 58a).° Here, it asserts, “the sequence was the opposite” (id), since the independent source — i.e., the previously seen photograph — arose prior to the illegal seizure of the license from the wallet. Petitioner submits that the “taint” cases cited by the Court of Appeals do not turn on whether the primary illegality occurred prior or subsequent to the acquisition of an alleged independent source; rather, the taint question hinges on the actual relationship between the primary illegality and the evidence sought to be suppressed as tainted. The question is, and to effectuate the guarantees of the Fourth Amendment must be, whether or not the primary illegality in fact affected the challenged search or arrest. The error in the Court of Appeals’ focus is illustrated by the conflicting decision of the Court of Appeals for the Sixth Cir- cuit in United States v. Griffin, 502 F. 2d 959 (6th Cir. 1974), cert. den. 419 U.S. 1050 (1974). In Griffin, federal agents with legally obtained probable cause to search the defendant's apartment, dispatched an agent to procure a search warrant. *By its citation of cases such as United States v. Ceccolini, 542 F. 2d 136 (2d Cir. 1977), cert. granted, 45 U.S.L.W. 3715 (1977), the Court of Appeals apparently recognized that the usual burden requires the government to demonstrate affirmatively reliance in fact on an independent source to negate a claim of taint. 10 However, before the warrant was secured, other agents il- legally entered the apartment and conducted a search. The evidence obtained during this search was ordered suppressed. In the absence of a demonstration of reliance in fact, the ex- istence of an independent untainted source — the warrant — was insufficient to overcome the direct connection between the illegal entry and the evidence disclosed, even though the independent source existed prior to the primary illegality. Thus, the distinction drawn by the Court of Appeals here is clearly unsound. The standard enunciated by the Court of Appeals, by per- mitting the government to rely on what it hypothetically could have done to justify otherwise tainted actions, can only lead to the abrogation of still-vital Fourth Amendment principles only recently reiterated by this Court — namely, that intrusion on an individual's liberty and privacy may be justified only on the basis of a detached, impartial judicial determination that the facts upon which the law enforcement officer actually relies in effecting the intrusion are facts which, in and of themselves, do justify the intrusion. See United States v. Chadwick, supra.’ Post-hoc speculative rationalizations may be colored, even if only subconsciously, by the results of a search or arrest. What might have been, in fact might not have been. Unless proof of reliance in fact on an independent source — proof that what might have been, in fact was — is required, the in- dividual rights and liberties guaranteed by the Fourth Amend- ment will be severely and unjustifiably undercut. "It should be noted that the government's failure to meet the requisite burden of proof of actual reliance on an independent source in this case is clear. The District Court's decision, read as a whole — and read most favorably to the government — lends equal support to a conclusion that the arrest was dependent on the illegal seizure of the license, as to a conclusion that the arrest was effected on the basis of the prior photograph (App. 6a, 14a). Nor does Agent Harris’ testimony negate the inference of taint. He did ll Conclusion. The proper allocation of the burden of proof of taint in cases involving Fourth Amendment violations is an important and frequently recurring problem in the administration of criminal justice. The relaxed standard established in this case con- stitutes an unwarranted encroachment on the rights and liber- ties guaranteed by the Fourth Amendment. Accordingly, for all the foregoing reasons, this petition for a writ of certiorari should be granted. Respectfully submitted, JOSEPH S. OTERI, MARTIN G. WEINBERG, JUDITH H. MIZNER, OTERI & WEINBERG, 10 Post Office Square, Boston, Massachusetts 02109. (617) 227-3700 not state that Adcock informed him that she had recognized Marchand solely or independently on the basis of the photograph she had seen earlier. Rather, he refers to the photograph only in conjunction with the license. The logical inference to be drawn from Harris’ testimony is that the arrest was predicated on a conjunction of the information on the license and the earlier photograph. Furthermore, the sequence of events supports a finding of dependence on the license. Adcock did not walk in the door, recognize Mar- chand from her memory of the photograph (which was marred by glare and depicted Marchand at an earlier age (App. 26a n. 6)), announce her belief to Harris and then seek confirmation from the license. It was only after the seizure of the license that any recognition was announced (App. 6a, 28a-29a, 6la-62a, 66a-67a). Finelly, despite the undeniably central nature of Ad- cock’s testimony, the government failed to call her as a witness. Her unex- plained absence can only give rise to an inference that her testimony would have been unfavorable to the government. See, e.g. United States v. Mahone, 537 F. 2d 922 (7th Cir. 1976), cert. den. 429 U.S. 1025 (1976). Given the totality of these factors, petitioner submits that the government cannot possibly be found to have met its burden of proving reliance in fact on an independent source — the photograph — and the arrest must be held to be tainted by the prior unlawful seizure of the license. 12 la Appendix. UNITED STATES DISTRICT COURT FOR THE DISTRICT _.OF VERMONT UNITED STATES OF AMERICA CRIMINAL ACTION ” Fite No. 76-51 ROBERT P. MARCHAND, JR. Findings of Fact and Conclusions of Law. The defendant, Robert P. Marchand, Jr. is charged with willfully and knowingly distributing and possessing with intent to distribute 180 pounds of marihuana, in violation of 21 U.S.C. § 841. The case is presently before the court on four defendant’s motions: (1) to dismiss the indictment against him, (2) to suppress identification testimony, (3) to suppress evidence obtained at the time of his arrest on August 24, 1976, and (4) for the inspection of the minutes of grand jury proceedings. An evidentiary hearing was conducted concerning the first three motions. Subsequent to the hearing of these motions the defendant renewed a prior motion for inspection of the minutes of all grand jury proceedings which had been previously denied. The renewed motion asserts that he is entitled to the minutes of the grand jury proceedings in order to establish his claim that the Government failed to present exculpatory information relating to the photographic identifications of him. He claims that inspection of the grand jury minutes is necessary in order to substantiate his 2a his belief that the proceedings were not conducted fairly and impartially. Upon consideration of the testimony and arguments pre- sented at the hearing and the memoranda filed by the parties, the court makes the following Findings of Fact and Conclusions of Law. ay FINDINGS OF FACT 1. Victor Roy, the first witness at the hearing, was ar- rested on July 18, 1975. He was subsequently charged in a federal indictment with distributing and conspiring to distri- bute marihuana. On the night of Roy’s arrest he was taken to DEA headquarters in Williston, Vermont, where he was interviewed by Special Agent Theodore Handoga in the latter's office. 2. Roy testified that a tape recorder on Agent Handoga’s desk was operating during the interview. He stated that he saw Handoga push buttons on the machine and saw the “wheels” turning. Hewever, he was not certain that a recording was actually made. 3. Roy conceded that while the tape recorder was ap- parently operating he said nothing to Agent Handoga about the crime for which he had been arrested because his lawyer was not present. He subsequently pleaded guilty, sentence was suspended and Roy was placed on probation. 4. On July 1, 1976, at approximately 9:00 a.m., Roy appeared at the United States Attorney’s office in Burlington in response to a grand jury subpoena. At about 10:00 a.m. he went to a small interview room, accompanied by Special Agent Handoga and Jerome F. O’Neill, Assistant United States Attorney. Roy claimed that he was not informed of his rights prior to being questioned by Assistant U.S. At- 3a torney O'Neill and Agent Handoga. It appears that Mr. O’Neill was present only for brief periods, and then only to ask Roy questions which he said he would ask before the grand jury. Roy stated that on this occasion there was a tape recorder in the interview room, but did not indicate whether it was operating. The court finds that no recording was made. 5. During his conversation with Agent Handoga, Roy informed the Agent that he had received the marihuana from someone named “Bob” or “Big Foot.” 6. At approximately 10:45 a.m. Agent Handoga showed Roy a series of 14 photographs (Defendant’s Exhibits C-P) and asked Roy to pick out the photograph or photographs of anyone he recognized. Roy was given ample time to re- view the photographs and he studied each and every one. He first selected a photograph of someone he thought to be Jim Hathaway of Burlington, Vermont. He selected this photograph on his first and second viewings of the photo- graphs. After each selection he was told that the photo- graph he recognized was not of Jim Hathaway. 7. Upon viewing the photographs a third time, Roy set aside Defendant’s Exhibit C, a photograph of the defendant, stating “this picture looks funny.” With this, Agent Han- doga produced a larger photograph of the defendant, De- fendant’s Exhibit A, and added “OK, here’s a Bob, what about this one?” Roy responded that the larger photo “looks similar.” According to Roy’s testimony, which was not disputed, Agent Handoga remarked “Ah, that’s Mar- chand.” He then called upon Roy to initial both photo- graphs. 8. After Roy selected Exhibit A, Agent Handoga asked him to loon for any other photographs of people he recog- nized. Roy selected the photograph of the only female in the group and told Agent Handoga that it looked like the 4a girl who was with “Bob” at one time. Roy made no further identifications despite what he termed Agent Handoga’s eagerness that he do so. 9. The court finds that Roy made no positive identifi- cation of the defendant. His remark that the person pic- tured in Defendant’s Exhibit A looked similar to the photo C, which was originally displayed to Roy, came only after the suggestion of the agent that the larger photo A was a picture of “a Bob.” 10. Richard Wayne Perkins, the second witness at the hearing, was arrested on July 18, 1975, for marihuana- related offenses. He was interviewed by Special Agent Handoga on two or three occasions between the time of his arrest and his sentencing on March 29, 1976. On one or more of those occasions he gave Agent Handoga a descrip- tion of the man who gave 180 pounds of marihuana to him and Victor Roy. 11. Perkins met with Agent Handoga, and the latter on April 26, 1976, showed him Defendant's Exhibits A-P and asked him to pick out the photographs of two people he felt most closely resembled the people he saw at the time of the marihuana transaction. Perkins selected three or four and at the hearing stated that he had picked Exhibit A (which was a photograph of the defendant) and Exhibits M and O. He was then asked to initial the two (Exhibits A and O) that bore the closest resemblance to people he saw on the date of the transaction. 12. A few months after his arrest, Perkins gave Handoga a description of the person who sold him the marihuana. Since Perkins has artistic ability, he was asked to make a drawing of the seller. The sketch was received in evidence (Defendant’s Exhibit Q). Perkins gave the sketch to Han- doga. Perkins did not see the sketch again until the hearing. 5a 13. Perkins testified that he did not feel he was being encouraged or pressured by Agent Handoga to select the individual depicted in Exhibit A as the supplier of the mari- huana. He conceded that he was not certain that the indi- vidual depicted was the supplier. 14. Special Agent James H. Harris of the DEA office in Miami, Florida, and the defendant testified as to the circum- stances of the defendant’s arrest in the Southern District of Florida on August 24, 1976. Pursuant to a federal arrest warrant issued for Robert Higgins on charges of sale and distribution of marihuana and conspiracy to import mari- huana, Agent Harris went to Higgin’s apartment in Lauder- hill, Florida, accompanied by two Dade County Public Safety Detectives, Adcock and Sadler, and DEA Special Agent McGlassius. The apartment had been under surveil- lance. The group was joined by a uniformed Lauderhill police officer outside the apartment. 15. At approximately 7:30 a.m. the uniformed officer knocked on the door of the Higgins apartment; Higgins opened the door. He gave his name as “Hull,” but Detec- tive Adcock recognized him as the Robert Higgins for whom the warrant was issued. Agent Harris placed him under arrest. The arrest was made just inside the door of the apartment. 16. Agent Harris and the other law enforcement per- sonnel went further inside the apartment. They did not have a search warrant for the apartment. Higgins informed them that another person, later identified as the defendant, was in one of the bedrooms. As the defendant, who ap- parently had been asleep, emerged from the bedroom wearing just a pair of pants, Agent Harris asked one or more of the officers to find out who he was and to make sure he was not armed. After this was accomplished, the defendant was permitted to return to his bedroom to put on 6a a shirt. The defendant was told that, although he was not under arrest, he could not leave the apartment. He was told to remain seated in a chair in the dining room. 17. While Agent Harris was talking to Higgins, Detective Adcock showed him the defendant’s driver’s license and stated that she knew Robert Marchand and had reason to believe that he was a fugitive from the District of Vermont on a marihuana conspiracy indictment. She had learned this from a prior telephone conversation with Special Agent Handoga of Vermont. She also had seen a photoyraph of the defendant prior to the visit to the apartment. 18. Exactly how Detective Adcock obtained the de- fendant’s driver’s license was not resolved at the hearing. Special Agent Harris testified that he assumed she had been given the license or had taken it when he requested that the defendant be identified and searched for weapons. The de- fendant testified that his wallet was on the dining room table. He was seated near the table until he left the room to dress. Detective Adcock recognized the defendant from having seen his photograph. She also recognized the de- fendant’s name. She apparently obtained his name from his operator's license. The license was removed from the defendant's wallet and was presented to Agent Harris by Detective Adcock for identification. Nothing other than the driver's license was removed from the defendant’s wallet until the time of his arrest and the search incident thereto. 19. Agent Harris verified the defendant’s identity by calling Special Agent Handoga in Vermont. He then ar- rested the defendant and advised him of his rights. He also searched the defendant’s person. Special Agent Harris re- moved the defendant's wallet from his rear pants pocket and obtained therefrom a small address book (Defendant’s Exhibit R) and various papers and written notes (Defend- ant’s Exhibit S). 7a 20. Special Agent Harris searched through the address book and wallet, looking for contraband or other evidence. In addition to looking for drug-related evidence between the nages of the book and among the papers found in the wallet, Agent Harris looked at some of the writing in the book and on the papers. When the defendant asked to make some telephone calls, Special Agent Harris supplied him the numbers from the address book and the defendant wrote them down on a separate piece of paper and made the calls. 21. The defendant was handcuffed and taken away by the law enforcement personnel. Approximately one week after the arrest, Special Agent Harris sent the address book and papers to Special Agent Handoga in a sealed evidence envelope. CONCLUSIONS OF LAW I. Motion to Dismiss Indictment The defendant’s motion to dismiss the indictment is pre- mised upon four grounds: first, that the Government abused the subpoena power of the grand jury in order to interrogate Victor Roy; second, that the Government failed to preserve and make available to the defendant tape recordings of Special Agent Handoga’s interviews with Victor Roy; third, that the identifications of the defendant by Victor Roy and Richard Perkins were fatally tainted by overly suggestive photographic identification procedures; and fourth, that exculpatory evidence of the suggestive nature of the identifi- cations of the defendant was not furnished to the grand jury. 8a In support of his argument that the Government im- properly used a grand jury subpoena for the purpose of con- ducting an interview of Roy, the defendant places heavy reliance upon Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954), where it was held “[i]t was clearly an improper use of the District Court’s process for the Assistant United States Attorney to issue a grand jury subpoena for the pur- pose of conducting his own inquisition.” Id. at 522. The courts in this and other circuits are in general agreement with the holding in Durbin. The district court in In re Stolar, 397 F.Supp. 520, 522 (S.D. N.Y. 1975), relied on Durbin in holding that “the grand jury process may not be used by a federal prosecutor solely to conduct his own in- vestigation.” See United States v. Del Toro, 513 F.2d 656, 664 (2d Cir. 1975) (grand jury may not be used “for the sole purpose of preparing an already pending indictment for trial”); United States v. Kleen Laundry & Cleaners, Inc., 381 F.Supp. 519, 523 (E.D. N.Y. 1974). The Third Circuit has held that “[t}he court will not enforce a grand jury sub- poena used only to compel a witness to appear in the United States Attorney’s office.” In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 91 (3d Cir. 1973). The defendant also directs the court’s attention to United States v. Thomas, 320 F.Supp. 527 (D.S.C. 1970), and United States v. Gur- ney, 393 F.Supp. 683 (M.D. Fla. 1974). In Thomas, the court held that it was an improper usurpation of judicial power for the United States Attorney to issue an official- looking document entitled “Summons” to notify the recipient to appear for an interview at the United States Attorney's office. In Gurney the court announced an end to its own practice of issuing writs of habeas corpus ad testificandum to bring incarcerated federal prisoners to the United States Attorney's office for the sole purpose of interviewing pro- : 9a spective government witnesses for pre-trial discovery. 393 F.Supp. at 685. The cases referred to do not support the defendant’s con- tention that the Government abused the grand jury’s sub- poena power in conducting the interview of Victor Roy prior to his grand jury appearance. In each of the cases relied upon by the defendant the purpose of the process issued was to assist the Federal prosecutor in the preparation of a case. None of the witnesses summoned in those cases appeared before the grand jury. The present case presents different circumstances. Here, Victor Roy actually did appear before the grand jury on the date for which he was summoned. His interview with Assistant United States Attorney O’Neill and Special Agent Handoga was clearly relevant to the matters under investi- gation by the grand jury. The Assistant United States At- torney’s questioning of Roy and Special Agent Handoga’s conducting of the photographic identification do not con- stitute an abuse of the grand jury’s subpoena power -vithin the context of the cases relied upon by the defendant. Victor Roy testified in support of the defendant’s claim that a tape recording had been made of Special Agent Han- doga’s interview with Roy on July 18, 1975. As noted pre- viously, Roy was not certain that a recording had been made. Even if a recording had been made, it is clear, by Roy’s own concession, that he said nothing at all about the marihuana transaction because his lawyer was not present. The court finds it unnecessary to determine whether a recording was made, since even if one had been made, it would have contained nothing relevant to the present case. In light of the court’s finding that no recording was made of Roy’s July 1, 1976, interview with Special Agent Han- doga, and that any recording that might have been made of the July 18, 1975, interview would be irrelevant to the 10a present case, the court concludes that the defendant’s claims, with respect to tape recordings, furnish no basis for dismissal of the indictment. The third point raised by the defendant is that the photo- graphic identification procedures used by Special Agent Handoga in his interviews with Victor Roy and Richard Perkins were unnecessarily suggestive and conducive to mis- taken identification, thus resulting in a denial of due process. Questions concerning such identifications normally arise in the context of motions to suppress before trial, see, e.g., United States v. Harrison, 460 F.2d 270 (2d Cir.), cert. denied, 409 U.S. 862 (1972), or in the context of appeals or proceedings for post-conviction relief, see, e.g., United States v. Magnotti, 454 F.2d 1140 (2d Cir. 1972). The court is not aware of any case setting forth the standard to be applied where evidence of such identifications is pre- sented to a grand jury. In the Second Circuit the test of admissibility at trial is whether the identifications resulted from “unnecessarily suggestive confrontation.” Brathwaite v. Manson, 527 F.2d 363, 368 (2d Cir. 1975), cert. granted, 425 U.S. , 44 U.S.L.W. 3624 (May 3, 1976). It appears that a less rigorous test than that articulated in Brathwaite should be applied to identification evidence presented to a grand jury. Cf. United States v. Calandra, 414 U.S. 338, 344-45 (1974). Although such identification as Roy made was suggestive, the court concludes that its presentation to the grand jury did not constitute a denial of due process. The first question is whether the use of photographs, rather than some other method of identification, was un- necessarily suggestive in and of itself. In United States ex. rel. Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975), the Second Circuit held that there was no impropriety in using photographic identification even where the suspect was lla available for a line-up. Clearly where, as here, the suspect was not in custody or otherwise available for a line-up, the use of photograhic identification cannot be considered un- necessarily suggestive per se. It is also clear that the lapse of time between the date on which Richard Perkins allegedly last saw the defendant and the date of the photographic identification is not in and of itself decisive. See United States v. Hurt, 476 F.2d 1164 (D.C. Cir. 1973) (lapse of approximately 1 year). Perkins apparently last saw the defendant approximately nine months before he was shown the display. In the interim he had drawn a good likeness of the defendant. In these cir- cumstances a photographic display conducted after such an interval is not, of itself, impermissibly suggestive. In attacking the Perkins identification, the defendant initially complains that the photographs in the display, with the exception of the two depicting the defendant, bore little resemblance to the sketch Perkins had made previously. The defendant asserts that “[a]lthough the sketch was of a clean-shaven individual with large features and short light- colored hair, most of the photographs in the array of ap- proximately thirteen small and two large photographs de- picted individuals with facial hai: and/or long hair.” The court disagrees with the defendant’s characterization. The sketch is basically an outline drawing and reveals no attempt at skin or hair coloring. As for the hirsuteness of the indi- viduals depicted in the photographs, only two photographs, Exhibits F and L, reveal full-fledged beards and mustaches; a third, Exhibit E, appears to show a mustache. One other photograph, Exhibit K, reveals a day or two's growth of whiskers. The individuals depicted in at least five photo- graphs, Exhibits B, H, K, N and O, have relatively short hair. Finally, except for three color photographs, Exhibits 12a E, G and K, it is virtually impossible to determine the hair coloring of the subjects depicted in the array. The defendant also complains that the use of two photo- graphs of him, including the large photograph, placed “double emphasis” on him and was unnecessarily suggestive. This argument is without merit. In United States v. Fa- lange, 426 F.2d 930 (2d Cir.), cert. denied, 400 U.S. 906 (1970), the defendants complained of a pre-trial photo- graphic identification in which three of the sixteen photo- graphs shown to the witness were of the same defendant. Because the photographs were taken at different times and at different angles, and because the photographic identifi- cation was corroborated by other evidence the court found no constitutional infirmity in the procedure. 426 F.2d at 935. The fact that the large photograph of the defendant was one of only two large photographs shown to Perkins, is similarly without consequence. Characteristics peculiar to a photograph of an individual, rather than to the indi- vidual depicted therein, do not render the use of that photo- graph unnecessarily suggestive. See United States v. Harri- son, 460 F.2d 270, 271 (2d Cir.), cert. denied, 409 U.S. 862 (1972); United States v. Fernandez, 456 F.2d 638, 641 (2d Cir. 1972); United States v. Magnotti, 454 F.2d 1140, 1141 (2d Cir. 1972). Neither the Supreme Court nor the Second Circuit has adopted the dissenting view expressed by Justice Brennan in United States v. Ash, 413 U.S. 300, 333 (1973), that repetition of a particular subject’s photograph, or a photograph which stands out from the rest for reasons other than the characteristics of its subject, is highly likely to render an identification display unnecessarily suggestive. The court concludes that the photographic identification of the defendant by RicHard Perkins was not unnecessarily suggestive. 13a The final point raised by the defendant on his motion to dismiss the indictment is that evidence of the suggestive nature of the Roy and Perkins identifications should have been presented to the grand jury. He asserts that presenta- tion of the fact of the identifications without also presenting the circumstances surrounding the identifications detracted from the fairness and impartiality of the grand jury pro- ceedings. Recently the Supreme Court held that the validity of an indictment is not affected by the character of the evidence considered. Thus, an indict- ment valid on its face is not subject to challenge on the - ground that the grand jury acted on the basis of inade- quate or incompetent evidence, ... or even on the basis of information obtained in violation of a -de- fendant’s Fifth Amendment privilege against self-in- crimination .... United States v. Calandra, 414 U.S. 338, 344-45 (1974) (citations omitted). In the absence of a claim of improper motivation or other improper conduct on the part of the Government or the grand jury itself, see, e.g., United States v. DeMarco, 401 F.Supp. 505, 512-13 (C.D. Cal. 1975), the defendant’s challenge to the indictment must fail. II. Motion to Suppress Identification Testimony As indicated in the above discussion of the defendant’s motion to dismiss the indictment, the photographic identifi- cation of the defendant by Richard Perkins was not the result of “unnecessarily suggestive confrontation.” Brath- waite v. Manson, 527 F.2d 363, 369 (2d Cir. 1975), cert. granted, 425 U.S. , 44 U.S.L.W. 3624 (May 3, 1976). l4a Accordingly, the motion to suppress Perkin’s identification must fail. Since Roy’s identification, such as it was, is in- fected by suggestion, the motion, as to this witness is granted. III. Motion to Suppress Evidence Obtained at Time of Arrest The defendant contends that the law enforcement per- sonnel who participated in his arrest on August 24, 1976, had provable cause to arrest him only after learning his identity, and that they established his identity as a result of an illegal search and seizure. The focus of the present in- quiry is on whether evidence of the defendant’s identity ,was obtained pursuant to constitutionally valid procedures. Since the court has found that detective Adcock, or one of the other officers, initially identified the defendant by re- moving his driver’s license from his wallet, the particular question at issue is whether, under the circumstances as they existed at the time, this procedure constituted a reason- able search or seizure under the Fourth Amendment to the United States Constitution. Clearly, under the teaching of Terry v. Ohio, 392 U.S. 1 (1968), and Adams wv. Williams, 407 U.S. 143 (1972), Special Agent Harris was justified in directing that a limited protective search of the defendant be made. Law enforce- ment officers who enter a dwelling place in order to execute an arrest warrant are entitled to take reasonable steps to ensure their safety while they are performing their duty. Adams v. Williams, supra, at 145-46. The validity of the search, insofar as it was for the purpose of determining whether the defendant was armed, is beyond question. Terry v. Ohio, supra, at 23-24. l5a The problem of requesting and obtaining identification is one which has received less attention from the courts. The Supreme Court held in Terry that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22. More recently, in Adams, the Court noted: The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more informa- tion, may be most reasonable in light of the facts known to the officer at the time. 407 U.S. at 145-46. In the instant case the procedures followed by the law en- forcement personnel in determining the defendant’s identity appear to fit within the framework of the type of “inter- mediate response” suggested by the Supreme Court in Adams. The officers were properly within the apartment pursuant to the arrest of Higgins. United States v. Rodri- guez, 532 F.2d 834, 838 (2d Cir. 1976). Once they en- countered the defendant in the apartment they were en- titled to question him and to determine his identity. Id. at 838-39. l6a The defendant argues that his presence in the apartment with Higgins provided insufficient justification for his deten- tion and questioning. He relies upon Sibron v. New York, 392 U.S. 40 (1968). In Sibron, however, the defendant was stopped and searched after officers observed him talking to known narcotics addicts in a restaurant. Heroin was dis- covered on his person and the officers arrested him. The Supreme Court held that the herion thus discovered was in- admissible in subsequent proceedings against Sibron because there had not been probable cause to arrest him at the moment the search was undertaken and the search could not be justified on protective grounds under Terry v. Ohio, 392 U.S. 1 (1968). The Court stated that “[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” 392 U.S. at 62. The facts of the present case, however, provide ample grounds to support the law enforcement officers’ limited intrusion. Unlike Sibron, the defendant was not merely talking with known addicts in a public place; he was actu- ally living with Robert Higgins, a suspected drug dealer, for whom the officers had an arrest warrant, in an apartment which was being kept under surveillance as a result of Higgin’s drug-related activities. The law enforcement offi- cers who came for the purpose of arresting Higgins were clearly justified in any suspicions they may have had that the defendant was more than a mere bystander who had no connection at all with Higgins’s activities. Under these cir- cumstances, they were entitled to find out who he was and to detain him for questioning. United States v. Rodriguez, 532 F.2d 834, 838-39 (2d Cir. 1976); see United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied, l7a 415 U.S. 931 (1974); cf. United States v. Tramunti, 513 F.2d 1087, 1100-04 (2d Cir.), cert. denied, 423 U.S. 832 (1975). The Government’s procurement of the defendant’s oper- ator’s license is supportable on the strength of additional considerations. The total circumstances supplied reasonable grounds to justify the belief that the unidentified Marchand might be an accomplice of Higgins and might attempt to destroy the means of identification and any evidence that might be contained in the wallet. In these circumstances the team of officers, who arrested Higgins, properly took possession of the wallet on the table near where Marchand had been seated. See United States v. Manarite, 448 F.2d 583, 593 (2d Cir.), cert. denied, 404 U.S. 947 (1971). Since the defendant apparently refused to cooperate by giving them his name, the officers were justified in removing his license from his wallet in order to identify him. This is the type of limited intrusion sanctioned by the language of Adams v. Williams, 407 U.S. 143, 145-46 (1972). Indica- tive of the restraint exercised by the officers in obtaining the identifying information from the defendant’s wallet is the fact that nothing other than his license was sought nor re- moved from his wallet at the time of this initial contact. The address book and other papers were not discovered and removed until after the defendant was under arrest. Since the later, more thorough search of the defendant was pur- suant to a valid arrest on probable cause, the address book and other papers were legally obtained within the teaching of Chimel v. California, 395 U.S. 752 (1969). Even if Special Agent Harris and the other law enforce- ment officers had not been justified in removing the de- fendant’s operator’s license from his wallet in order to iden- tify him, the resulting identification would nevertheless be admissible. The defendant himself testified that after 18a Robert Higgins was arrested at the door of the apartment he saw Higgins walk through the dining room on his way to his bedroom. Since the wallet was on the dining room table, it was subject to valid search and seizure for contra- band or other evidence in connection with Higgins’s arrest, under the teaching of Chimel v. California, supra. “ee United States v. Manarite, supra. Because the arrest of Higgins would provide ample justification for a search of the defendant’s wallet, it is immaterial whether the search could be independently justified with respect to the defend- ant. See United States v. Griffin, 413 F.Supp. 178 (E.D. Mich. 1976). The defendant’s motion to suppress must be denied. IV. Motion for Inspection of Grand Jury Minutes The defendant’s motion, pursuant to Fed.R.Crim.P. 6(e), for inspection of the minutes of the grand jury’s proceedings is unaccompanied by a memorandum in support as required by Local Rule 9. The defendant’s assertions of “particula- rized need” for inspection go to the quality and completeness of the information presented to the grand jury. As ex- plained in the court’s discussion of the defendant’s motion to dismiss the indictment, an indictment which is valid on its face is not subject to attack on the ground that the grand jury acted on the basis of “inadequate or incompetent” evi- dence. See United States v. Calandra, 414 U.S. 338, 344- 45 (1974). At most, the defendant has alleged that some of the evi- dence presented to the grand jury may have been “inade- quate or incompetent”; he has failed to make any showing of “particularized need.” See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959); United States v. 19a Weinstein, 511 F.2d 622, 627 (2d Cir.), cert. denied, 422 U.S. 1042 (1975). The defendant’s bare claim of need for the grand jury minutes does not outweigh the “long-es- tablished policy that maintains the secrecy of grand jury proceedings in the federal courts.” United States v. Proctor ¢& Gamble Co. 356 U.S. 677, 681 (1958). Thus, the de- fendant’s renewed motion must fail. It is ORDERED: 1. That the motion of the defendant to dismiss the in- dictment against him is denied; 2. That the motion of the defendant to suppress identi- fication testimony of Victor Roy is granted; the motion to suppress the identification testimony of Richard Perkins is denied; 3. That the motion of the defendant to suppress evi- dence obtained at the time of his arrest is denied; 4. That the renewed motion of the defendant for in- spection of the minutes of the grand jury proceedings is denied; and 5. That the case will be set for trial to commence Mon- day, December 20, 1976, at 9:30 a.m. Dated at Rutland, in the District of Vermont, this 30th day of November, 1976. JAMES S. HOLDEN, Chief Judge. 20a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT UNITED STATES OF AMERICA 0. CRIMINAL ACTION Fite No. 76-51 ROBERT P. MARCHAND, JR. Order. Paragraph 2 (at p. 20) of the Order of the court filed in this case on November 30, 1976, is amended to provide: 2. That the motion of the defendant to suppress identi- fication testimony of Victor Roy is granted without pre- judice to a further offer by the Government to establish at trial, out of the presence of the jury, that an adequate in- dependent basis exists to support in-court identification of the defendant by the witness Roy; the motion to suppress the identification testimony of Richard Perkins is denied. It is so ORDERED. Dated at Rutland, in the District of Vermont, this 8th day of December, 1976. JAMES S. HOLDEN, Chief Judge. 2la UNITED STATES COURT OF APPEALS For THE Seconp Circuit No. 1288—September Term, 1976. (Argued June 9, 1977 Decided August 22, 1977.) Docket No. 77-1131 4 9? a > Unitrep Srates or AMERICA, Appellee, v. Rosert P. MarcHanp, Jr., Appellant. Before: Frirenpity, Timpers and MeskIL1, Circuit Judges. = we — err Appeal from a judgment of the District Court for Ver- mont, James S. Holden, Chief Judge, convicting appel- lant, after a jury trial, on one count of an indictment charging the possession and distribution of 180 pounds of marijuana in violation of 21 U.S.C. § 841. Affirmed. é >» we JEANNE Baker, Esq., Cambridge, Mass. Avan M. Dersnowrrz, Esq., Cambridge, Mass. (Rosenberg, Baker & Fine, Esqs., Cam- bridge, Mass., and Joseph S. Oteri, Esq.; Martiu G. Weinberg, Esq., and Oteri & 5391 22a Weinberg, Esys., Boston, Mass., of Coun- sel), for Appellant. Jitt A. Jacosson, Esq., Assistant United States Attorney, District of Vermont (George W. F. Cook, United States Attorney, District of Vermont, of Counsel), for Appellee. Frrenviy, Circuit Judge: Robert P. Marchand, Jr. appeals from his conviction, after a jurv trial before Chief Judge Holden in the Dis- trict Court for Vermont, on one eount of an indictment charging the possession and distribution of 180 pounds of marijuana in violation of 21 U.S.C. § 841.' Apart from a serious question under the Fourth Amend- ment diseussed in Part ITV below, the appeal has heen nresented as if this were a ease where there is substan- tial doubt that defendant is the person who committed the crime charged in the indictment. Marchand relies on an array of cases, somewhat weakened as a result of re- cent Supreme Court dee:sions, whieh had laid down stringent requirements to prevent “the awful risks of mis- identification” by persons with relatively seant oppor- tunity to observe the defendant, Brathwaite v. Manson, 527 F.2d 363 (2 Cir. 1975), rev’d, —— US. (1977), 45 U.S.L.W. 4681 (U.S. June 16, 1977). But, as the trial judge and the jury seem to have been well aware, that is not this case at all. The case is rather one of accomplice wit- nesses, one of whom had known the marijuana supplier for years. The jury could well have inferred that any diffi- culty these witnesses expressed about identification was due to unwillingness rather than inability to identify. It ! The indictment elso contained a eorspiracy count, but this was dis. missed before Mereband's arraignment. 5392 23a was a similar case of seeming unwillingness that led us, in United States v. De Sisto, 329 F.2d 929 (2 Cir.),. cert. denied, 377 U.S. 979 (1964), to rule that previous iden- tification or grand jury testimony of a trial witness could be used rot simply for “impeachment” but as substantive evidence—a ruling which Congress has now translated into Federal Rule of Evidence 801(d)(1)(A) and (C). None of this means that Marchand did not have the right, accorded every criminal defendant, to a fair trial in ac- cordance with governing rules of law. It does mean that statements in decisions involving dubious identifications by bystanders, law enforcement officers or victims? should not be woodenly applied to the wholly different situation here and that the case offers ample occasion for recalling Judge Learned Hand’s observation in Dyer v. MacDougall, 201 F.2d 265, 269 (2 Cir. 1952), that a jury is free, on the basis of a witness’ demeanor, to ‘“‘assume the truth of what he denies” although a court cannot allow a civil action, much less a criminal prosecution, to go to the jury on the basis of this alone. I. A Chronological Summary Marchand challenges his conviction on the grounds both of trial error and of insufficiency of the evidence properly admitted.’ Before considering these challenges it will be useful to summarize what admittedly occurred. When we include materia] that was not hefore the trial jury, we will so indicate. Sometime before June 1971, Victor Roy, Jr. became acquainted with a man at bars in Amherst, Mass. When 2 See discussion at pp. 32-33 & n.27 infra. 3 Indeed, by making insufficiency the first point of his brief, Marchand seems to argue that the evidence was insufficient even if all was properly admitted. See also Appellant's Brief at 26 n.28. 5393 24a testifying before the grand jury, Roy identified this person as “Big Foot” or “Bob”; at trial he insisted on the appella- tion “Big loot”. In March or April, 1975, Roy met the same individual, again in a bar in Brattleboro, Vermont; he was witli a girl whom Roy identified before the grand jury as Ann.* The man gave Roy a telephone number, which Roy called occasionally. In May 1975, Roy, accompanied by Richard Perkins, met the individual at a Howard John- son’s restaurant in Springfield, Mass., to diseuss the pur- chase of marijuana. On two occasions within the following three weeks, Roy and Perkins made purchases of marijuana from Big Foot at the Springfield Howard Jolmson’s. During the period June 9-July 16, 1975, there were four one minute phone calls from Perkins’ number in Waits- field, Vt., to the manbers listed in the name of Ann Curtis and Robert Marchand in Guilford, which is near Brattle- boro, Vermont; there was proof that Bob Marchand was living with Ann Curtis at the time. On July 17 there was a four minute phone eall from Perkins’ number to Mareh- and’s. The next day, July 18, Perkins and Roy drove to srattieboro, waited for a while at the Toward Jolmnson’s restaurant there, met Big Foot and another male, and then drove out into the country, where 180 pounds of marijuana were transferred from Big Foot’s ear to Perkins’. On this date there weve three phone calls to Ann Curtis’ number in Guilford which were billed to Perkins’ number in Waits- field. The first, from Perkins’ home phone, lasted three minutes. The other two—each lasting not over one minute were from Brattleboro, where Perkins and Roy met Big 4 Roy was quite positive about this when he testified before the grand jvry in July, 1976. At trial he could not “really ... recall’ whether Marchand had a girl with him and said that his grand jury testimony was “not completely truthful." However, he repeated that the girl's name “could have been Ann.” See p. 13 infra. The jury wes amply justified in inferring that it was. 5394 ‘BEST COPY AVAILABLE Foot for the marijuana transaction. Perkins and Roy were arrested later in the day when they tried to sell the mari- juana to an undercover agent. Roy refused to make any statement to the arresting officer, Agent Handoga of the Drug Enforcement Adminis- tration (DEA). Within two weeks after the arrest, Perkins gave Agent Handoga a description of the seller as “a six foot one, 220 pound nian with blond hair”, aged between 25 and 30, and “big features”, defined to include “a big nose, big hands, broad shoulders”, About a month later, Perkins who had some ability. as a portraitist, drew a sketch which was designed to be a picture of the marijuana supplier. Agent Handoga testified at the suppression hearing !ater referred to that in August 1975 he had received informa- tion from an undisclosed source that Marchand was the supplier. Accordingly the Government sought an indict- ment of Marchand.’ In September 1975 Perkins testified before a grand jury. He stated that “he found out [Big Foot’s] name was Bob Marchand.” Roy did not appear before this grand jury and it was discharged hefore the investigation was com-- plete, without the filing of an indictment against Marchand. On April 26, 1976 Perkins was shown fifteen photographs by Agent Handoga and was asked to pick two that most closely resembled the people he had seen at the time of the marijuana transaction. He first picked three and later — narrowed his choices to two. One was a photo of Marchand. Perkins testified at the suppression hearing chat he did not fee] he was being cnucouraged or pressured to select the 5 Roy and Perkins bad been indicted shortly after their arrest; they pleaded guilty in December, 1975. In March, 1976, Perkins received a suspended sentence and three years probation; Roy received a tine of $2000, a suspended sentene, and 3 years probation. 5395 26a photograph that he did but was not certain that the indi- vidual depicted was the supplier. Roy, according to his testimony at the suppres-ion hearing, was in Colorado during this period. On his return to Vermont he was served with a subpoena to appear before the grand jury. Imme- diately before his appearance on July 1, 1976, Roy arrived at the office of the United States Attorney in Burlington and went to a small interview room accompanied by Agent Handoga and Assistant United States Attorney O'Neill. Roy infermed the agent that he had reeeived the marijuana from soineone named “Bob” or “Big Foot”. Agent Handoga showed Roy a series of 14 photographs. On his first and bois — --_— 60a Excerpt from Transcript of Suppression Hearing Testimony. [79] THe Court: Go ahead. Miss Jacosson: Thank you, Your Honor. We would call Special Agent James H. Harris. James H. Harris, having been called as a witness by the Government, was duly sworn by the Clerk and testified on his oath as follows: Direct Examination by Miss Jacobson: Q. Agent HARRIS how are you employed? A. I ama Special Agent with the Drug Enforcement Administration in MraMI, FLoripa. Q. And how long have you worked for the D.E.A.? 4. Eight years. Q. All right, were you on duty on August 24th, 1976? A. Yes, I was. Q. All right, would you tell us what your hours of duty were that day, if you remember? A. Started at approxi- mately 5:00 o'clock in the morning at the Dape County Public Safety Department in Miami Beacn, FLoripa. Q. Did you have occasion that day to execute a Federal arrest warrant? A. Yes, I did in LaupERDALE, FLoripa. Q. All right, can you tell us when that warrant was issued if you know? A. I believe it was issued the day before, but I'm not exactly positive. Q. All right, do you know if that warrant was issued resulting from an indictment that was returned by a Grand Jury? [80] A. Yes, it was a warrant as a result of an indictment. Q. Do you know in whose name that warrant was issued? A. Robert Hiccins. Q. All right and would you tell us what happened at the time that you executed the warrant? A. We went toa en ee eee 6la Mr. Hiccins apartment in LAUDERDALE, FLorIpA, MysELF, Two Dape County Public Safety detectives and another Special Agent from the Drug Enforcement Administration. We were joined by a LauperpALe Police Department officer, myself, Detective Apcock and a LAUDERDALE Police warrant officer went to the front door, Agent McGlassius (Phonetic) and SatLer, Detective SATLER, went to the rear door of the apartment. The LaupeRpALE Police Orricer, — THe Court: How do you spell that? Lauderale. A. L-A-U-D-E-R-H-I-L-L. THe Court: LavuperHitt? A. Lauderhill. THe Court: Go ahead. A. The officer knocked on the door. This was a uniformed officer, knocked on the door and Mr. Hiccins opened the door. The officer asked him if he was Mr. Hiccins. He stated no and said he was Mr. Hut, I believe was the name, H-U-L-L. Detective Apcock identified to me Mr. Hutt as being Mr. Hiccins, the one that we had the arrest warrant for and I placed Mr. Hiccins under arrest. Q. And what happened at that point, did you enter the [81] apartment? A. Yes, I arrested him just inside the door of the apartment. Q. All right and did you enter the apartment with the other law enforcement people with you? A. Yes. Q. And was there anyone else present in that apart- ment? A. I was advised by Mr. Hiccins that there was another person in the bedroom and I saw personally later identified, RoseErtT MARCHAND coming from the bedroom on the, I believe it would be the southeast side of the apart- ment. Q. And did you have any conversation with Mr. MARCHAND at that time? A. No, I asked one of the officers to find out who he was and to make sure that he was not armed. 62a Q. And one of the officers went over to Mr. MARCHAND to find that out? A. Yes. Q. All right, were you notified at any time while you were in the apartment of Mr. MarcHanp’s_ identity? A. Yes, I was in Mr. Hiccins’ bedroom, it’s a two-bedroom apartment and Mr. Hiccins’ bedroom was on the southwest side of the apartment and we were in there talking to Mr. Hiccins. Detective Apcock came over and stated that she knew Rospert Marcuanp and she showed me I believe it was a driver's license and she stated that Mr. MARCHAND was known to her and that she had reason [82] to believe he was a fugitive from the District Court of Vermont on a marijuana conspiracy indictment and that she had learned this from conversation with the Special Agent HaNpoca of the Burlington District Office of D.E.A. Q. And what did you do after Detective Apcock informed you of that? A. I placed a call to Special Agent Hanpoca in Burlington and advised him that we had personally identified Roperr MARCHAND from the date of birth and other identifying information and was advised that there was a warrant in fact issued for MARCHAND and that I believe he, Agent HaNpoca also gave me the criminal indictment number and the date the indictment was filed and other information regarding his identity. Q. Do you recall what that information was? A. I believe he just verified the date of birth and his height and weight and eye color and things like that and also he gave me the indictment number, the criminal indictment was 76-51 or something like that. I don’t recali the exact number. Q. And after he spoke with Agent Hanpoca, what did you do? A. I went back in the other room and it would be like the dining room, near the kitchen where Mr. Mar- CHAND was presently standing and advised him that he was DP ted ah) ee owe bes retdnatig re — ~ 63a under arrest for violation of Federal narcotic laws and there was a warrant issued for him in Vermont. I advised him [83] of his rights and I then searched him. Q. And when you searched him, did you remove any- thing from his custody? A. Yes, I took a small telephone address book and various papers from his wallet. Q. And were aii these objects taken from Mr. Man- CHAND’s person? A. Yes. Q. After you seized these objects, did you maintain them in your own custody? A. Yes. Q. For how long? A. I believe it’s possibly up to a week. I had, I sealed them in an evidence envelope and after conference with Agent Hanpoca I mailed them registered mail to Agent HANboca. Q. Thank you, Agent Harris, I have no further questions. Cross Examination by Mr. Weinberg: Q. This arrest warrant that was Mr. Hiccins, what was that for sir? A. Conspiracy to import marijuana and sale and distribution of marijuana. Q. How did you know Hiccrns was inside the apart- ment? A. Knocked on the door and he opened the door. Q. You went to that apartment for a specific reason, did you not? A. Yes, to arrest Mr. Hicc1ns. Q. The apartment was not registered in Mr. Hiccins’ name is it? [84] A. It was registered in an alias as Mr. HULL. Q. The name was under Mr. Hutt? A. I believe that’s correct. Q. Had you ever seen Hiccins in the apartment before? A. I had never been in the apartment before. Q. Had you even seen him go into the apartment complex before? A. No. Q. Did you receive any specific information that he would be present at the apartment that day? A. Only 64a from the detectives, State Department of the Safety Depart- ment who had told me that they had conducted previous surveillance and investigation in the vicinity of the apart- ment and believed that he would be present early in the morning. Q. Did they give you any specific details regarding whether or not they conducted a surveillance that evening? A. No. Q. Had you ever heard Mr. Hiccins go by the name of Hutt before? A. I had never — up to that morning, I never heard of Mr. HiccIns. Q. Did your cooperating agents ever tell you the basis for their knowing that Mr. Hiccins and Mr. Hu. were the same? A. It was Detective Apcock, I believe, that I had the conversation with and I believe they determined from the investigation how, what means they used, I don’t know. Q. You don’t know whether or not they interviewed the landlord or anything like that, do you? [85] A. No, I do know when he opened the door, he identified himself as Mr. Hutt and we did have a picture of him and we knew he was HiccIns. Q. What time did you arrive? A. We were there approximately I guess, around 7:00 a.m. and we waited for about a half hour, for the LAupERHILL uniformed police to arrive. Q. You went inside the apartment complex and into the hall outside Mr. Hu w’s apartment at 7:30 a.m., approxi- mately? A. About 7:30, that’s approximate. Q. You knocked on the door? A. The police officer did. Q. Did he say anything? A. He advised him that he was of the Lauderhill police department and that he would like to talk to Mr. Higgins. Gee tm Muda 1 Be sreet ate a 6 alia Aa 65a Q. Was this while the door was closed, or open? A. The door was closed. Q. Before the door opened, he advised that he was a Lauderhill police officer? A. Yes, sir, I believe Mr. Higgins, I think it was Mr. Higgins, said, “who is it?” And he also announced himself again and Mr. Higgins then opened the door and asked him what’s the problem and we arrested him. Q. You arrested Mr. Higgins right at the threshold of the door, is that correct? A. Yes, just as we walked in. Q. And did Mr. Higgins invite you in after that? [86] A. Yes. Q. He invited you into the apartment? A. Well we had a little problem, the fact that he was wearing nothing but a towel at the time and he didn’t really want to be taken down town in that condition. Q. Did he go into his bedroom? A. Yes, he did. Q. Which is the bedroom separate from that in which you noticed the second individual, is that correct? A. Yes, it’s separate. Q. When you saw the second individual you didn’t know who he was, did you? A. I had no idea. Q. Never seen him before in your life? A. No. Q. Nor had Detective Apxins, is that correct? A. De- tective Ancock, I believe, had seen a photograph of Mr. MARCHAND somewhere in the past. I don’t know when, and — Q. It’s fair to say you were the arresting officer, sir, is that correct? A. In what sense? Q. You made the decision to arrest Mr. MARCHAND? A. Yes, I did. Q. That decision was after you spoke to Special Agent HANDOGA in VERMONT, is that correct? A. After I deter- mined he was wanted, yes, sir. 66a [87] Q. Right and you determined that after the phone call to Special Agent Hanpoca? A. And from a conver- sation with Detective Apcock. Q. But it wasn’t until after you spoke with Special Agent Hanpoca that you arrested RopertT MARCHAND for being a fugitive from an indictment? A. I undertook upon myself to talk to one of our agents in VERMONT to determine the fact that there was a warrant issued. Q. And then you arrested Mr. MarcHaNp? A. Cor- rect. Q. Not beforehand? A. Correct. Q. Did you and Mr. Marchand have any discussions prior to your placing him under arrest? A. I don’t believe I ever talked to him. Q. You were with Mr. Hiccins, were you not? A. I was with Mr. Hiccins. Q. In, and Mr. Hiccins was in the bedroom getting dressed? A. Yes, he was getting dressed in there, yes. Q. And Mr. Marcuanp you had first seen in another bedroom, is that right? A. He was coming out of the bedroom and there was, I believe a hallway bathroom and the hall goes out into the kitchen. Q. Now, while you were with Mr. Hiccins, Detective Apcock, is that the right name? A. Yes. [88] Q. Came to you with the wallet? A. I believe she had a, just a driver’s license. Q. Driver's license? And that was Robert Marchand’s driver's license? A. Yes. Q. And that’s how she identified the individual who was with Mr. Hiccins in the apartment that morning, is that correct? A. I don’t know if she did it completely on the driver's license or, well, she stated she had seen a picture of this person before and she recognized the name and the picture and whatever and she knew it was Robert SO ate a oe ahd aE ew Oe OE, eh Oe A BH Lek teeta. a tte 67a MARCHAND, the one that Agent Hanpoca had referred to earlier. Q. You were not present at the conversation, were you, between the, if there was any, between Detective Apcock and Mr. MarcHanp? A. I wasn’t present when she was talking to him. Q. Do you don’t know how Mr. MarcHANDd was identified by Detective Apcocx, do you? A. I would assume from the driver’s license that obviously had given the driver’s license, or had been taken, one way or the other. I don’t know which way. And was identical, was identified. That’s the normal procedure to identify the persons any how. Q. Then she came into you because you were the chief agent on the spot, you were the D.E.A. agent, is that right? A. That’s correct. [89] Q. And she gave you the information at her command and you verified it by calling up Special Agent HanpoGa, is that right? A. That’s basically correct. Q. And then you arrested him, Mr. MarcHanp? A. Correct. Q. Before you arrested MARCHAND, strike that. There was no search warrant for the apartment, was there? A. No. Q. Mr. MARCHAND never made any statements to you after his arrest, did he? A. The only statements he made, well, he asked me what it was about and I told him. I didn’t know what it was about, other than it was an indict- ment in the District Court of Vermont. I didn’t know any- thing about it. He asked me what was going to happer and I told him he was going to be taken down and he said, “fine” or whatever. He wanted to call a lawyer. He's allowed, he made numerous phone calls from Mr. Hiccins’ phone, after talking with Mr. Hiccins about using the phone to, I believe, the lawyer. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0130%3A1. Public record. Not legal advice.