Petition — Williams v. United States

_— Supreme Court U.S,

FILED

77-916 ' DEC 27 1977

“MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF 1

UNITED STATES

Fall Term 1977

JO ANN WILLIAMS

Petitioner

and

CLARENCE WEBB

Petitioner

-vs-

UNITED STATES OF AMERICA

Respondent

Petition for Writ of

Certiorari to the

United States Court of

Appeals for the

Sixth Circuit

LESLIE I. GAINES, JR. JOHN ANDREW WEST

GAINES & GAINES 4545 Carew Tower

1212 Mercantile Library Cincinnati, OH 45202

Building ATTORNEY FOR PETITIONER

414 Walnut Street

Cincinnati, OH 45202 FRED H. HOEFLE

ATTORNEY FOR PETITIONER 400 2nd National Bldca.

Cincinnati, OH 45202

TABLE OF CONTENTS

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Questions Presented For Review. .

Constitutional Provisions Involved

Statement of the Case .......

Reasons for thea Writ .. «+ «eee s

CONGLUREGR « «4 6 3 «6 ‘0 & ee @ 68

Court of Appeals (Order) .....

District Court--Northern District of

Ohio--Western Division (Memoran-

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14

35

PETITION

The petitioners, Jo Ann Williams and

Clarence Webb, respectfully pray that a

writ of certiorari be issued to review the

judgment and opinion of the United States

Court of Appeals for the Sixth Circuit,

entered December 6, 1977.

OPINIONS BELOW

A) Sixth Circuit Court of Appeals.

The order of the Court, to be unreported is

reproduced at Appendix, p. . The court

ruled that the District Court did not err

in denying the Petitioners’ Motion to Sup-

press Evidence. This order was entered of

record December 6, 1977.

B) The United States District Court,

Northern District of Ohio, Western Division.

The memorandum and order of Judge Walinski,

an unreported opinion, is reproduced at

Appendix, p. . This order denied the

Petitioners’ Motion to Suppress Evidence.

It was entered of record December 20, 1976.

JURISDICTION

The jurisdiction of this court is in-

voked under 28 U.S.C. § 1254(1). The order

of the Court of Appeals was entered of re-

cord December 6, 1977.

QUESTIONS PRESENTED FOR REVIEW

(1) Whether surreptitious surveillance of

a private room by a government agent is, in

fact, a search of a constitutionally pro-

tected area.

(2) Whether this warrantless surveillance

conducted in the absence of exigent circum-

stances constitutes an unlawful search.

(3) Whether the initial illegality of the

surveillance denies the government the

right to use or act upon anything heard.

(4) Whether the ensuing search is unlawful

when a law enforcement officer conducts a

limited search for weapons without reason-

able grounds to believe his safety is in

danger.

CONSTITUTIONAL PROVISIONS INVOLVED

FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION:

"The right of the people to

be secure .. . against unreason-

able searches and seizures shall

not be violated ..."

STATEMENT OF THE CASE

A) Procedure

The Petitioners were arrested in Toledo,

Ohio, on June 19, 1976, and charged with

possession of heroin and cocaine in viola-

tion of 21 U.S.C. 841(a) (1) and 18 U.S.C. 2.

Prior to trial, Petitioners filed jointly a

Motion to Suppress Evidence. This Motion

was denied December 20, 1976.

The Petitioners then entered pleas of

guilty as charged to two counts of the

indictment involving 21 U.S.C. 841l(a) (1).

The trial court allowed the Petitioners to

expressly reserve a right to appeal from

the order of the District Court.

The Petitioners were sentenced on

May 6, 1977. Notice of Appeal to the Sixth

Circuit Court of Appeals was filed on

May 16, 1977. Upon consideration of the

joint brief by the Petitioners and a hear-

ing on the matter, the Court of Appeals

affirmed the ruling of the District Court.

The basis for federal jurisdiction in

the District Court was a federal indictment

returned on August 25, 1976, against the

Petitioners. The constitutional objections

and federal questions raised in this Peti-

tion were expressly discussed in the Peti-

tioners' Motion to Suppress Evidence.

B) The Facts

On June 18, 1976, Defendants, Jo Ann

Williams and Clarence Webb, driving a 1976

Lincoln Continental automobile, bearing

Ohio license plates, arrived at the Toledo

Airport, just outside Toledo, Ohio, parked

their vehicle near the Airport Motel.

Defendant Williams entered the motel at

approximately 6:00 p.m. and registered

using a Detroit, Michigan, address.

Preliminary Inquiries by Airport Security

At approximately five minutes past six

(6) o'clock in the evening on this same

date, Lieutenant Velliquette, airport se-

curity patrol, was notified by an airport

maintenance man that an automobile match-

ing the description of that driven by

Defendants had entered on the airport

grounds, driving in an “erratic” manner.

Officer Velliquette, after receiving

this information concerning erratic driv-

ing, left his station and proceeded to

the Airport Motel where he arrived within

several minutes after being contacted.

Officer Velliquette testified that he went

to the motel to discuss the driving viola-

tion with the vehicle operator. Officer

Velliquette saw the 1976 Lincoln Continent-

al automobile parked near the motel, and,

after taking down the license plate numbers,

began looking for the occupants of the

vehicle. Officer Velliquette questioned

several workmen who were working outside

the motel, and was told that the occupants

of the vehicle had entered into the motel.

Officer Velliquette entered into the motel

and was informed by the desk clerk that a

Black Male and Black Female had just re-

gistered and were assigned to room 115.

Officer Velliquette testified that after

this initial investigation, that his sus-

picions became aroused. According to

Officer Velliquette, the basis for his sus-

picions were: (1) a non-local license

plate number when the occupants had regis-

tered with a Detroit, Michigan, address

“Appendix, p. 57); (2) the suspicious

"“eyeballing" by Defendant Webb of Velli-

quette when the latter was questioning the

room clerk Appendix, p. 58); (3) the

Defendant Webb's peering out of his motel

window as he was driving away. Appendix,

p. 58). The combination of these incidents

led Officer Velliquette to believe that he

should contact Paul Markonni, a special

agent of the Federal Drug Enforcement Ad-

ministration, United States Department of

Justice, who was coincidentally present

at the Toledo Airport at this time, and

advise Officer Markonni that something

was "suspicious."

Initial Involvement of the Federal Agent

Agent Markonni was at the airport to

familiarize himself with peak traffic

periods and the physical layout of the

airport. Upon his arrival, he had iden-

tified himself to airport security and

* Refers to Joint Appendix filed with

Brief submitted to Sixth Circuit

Court of Appeals

5

had asked to be informed of anything

unusual. “Appendix, p. 101.) At approxi-

mately 6:10 p.m. that day, Officer Velli-

quette personally informed Agent Markonni

that something was suspicious at the motel.

Both officers then went to the motel where

Markonni was introduced to the room clerk.

{Appendix, p. 106.) Officer Markonni again

verified the registration of Defendants

Williams and Webb and made further inquir-

ies as to their activities since their

-arrival at the Airport Motel. Agent Mar-

konni secured the following information:

(1) that Williams had registered and had

given a Detroit address; and (2) that two

telephone calls had been placed from room

115 by Defendants to a number in Los Angeles,

California. *(Appendix, p. 107.) Agent

Markonni, at this time, told the clerk to

advise him of any future telephone calls

made to or from room 115.

f

Surveillance of the Defendants

Agent Markonni, while continuing his

surveillance of room 115, contacted the

Toledo Police Department and requested a

license number check on the 1976 Lincoln

Continental. ‘“(Appendix, p. 104.) In addi-

tion, Agent Markonni contacted, by tele-

phone, law enforcement officers in Los

Angeles, California, and requested that

they verify the listing and address of the

telephone number which had been called from

Defendants’ room. At this time, Agent Mar-

konni also registered as a guest specifi-

cally requesting and receiving the room

adjoining that occupied by Defendants.

Agent Markonni was assigned to room 114.

From approximately 9:30 p.m. on

June 18, 1976, until approximately 2:15

a.m. the morning of June 19, 1976, Officer

Markonni maintained intensive surveillance

of room 115 from the adjoining room, 114.

During this span of time, Officer Markonni

made several telephone calls, but did

not make any attempt to obtain an ar-

rest warrant for the occupants of room

115. He was also advised by Cecegneny,

that the Los Angeles phone number

called by the Defendants was unlisted

and that Detroit authorities did not

find a Jo Ann Williams at the address

she had registered. ‘Appendix, p.115.)

Conversation Overheard by Agent Markonni

At approximately 2:15 a.m., the

morning of June 19, 1976, Officer Mar-

konni was advised by the desk clerk that

a yellow and white colored automohile,

bearing Ohio license plates and occupied

by three male blacks, had arrived outside

the motel.

Officer Markonni was also advised

that one of the occupants, an unidentified

male black, had exited the automobile,

entered the motel, and walked towards room

115. Officer Markonni testified that he

then put his ear to the door connecting

10

with room 115 and overheard the following

conversation:

“What have you got?”

"Fifteen of boy and some of girl, if

you want."

"Let's get out of here.” *(Appendix,

p. 79.)

Within moments after hearing the

above quoted conversation, according to

Officer Markonni, the Defendants, accom-

panied by the unidentified male black,

exited the motel and entered the motel |

parking area where the Defendants, along

with the unidentified male black, entered

into the 1976 Lincoln Continental auto-

mobile. At this point in the sequence of

events, according to Officer Markonni, the

1976 Lincoln Continental automobile and

the yellow and white automobile, occupied

by two unidentified male blacks, left the

airport grounds and headed east on Airport

Highway.

Observing from his motel window that

ll

€

the two automobiles were leaving the

airport, Officer Markonni followed. tAp-

pendix, p. 82.) Officer Markonni followed

these two vehicles from the time they

left the airport grounds at 2:15 a.m.,

until 3:00 a.m., when both vehicles pulled

into a parking lot near Todedo in a busi-

ness district. After making unexplained

stops in two parking lots, the vehicles

stopped in a third parking lot. “Appendix,

p. 83.) Agent Markonni then observed the

unknown person in the Lincoln Continental

leave that vehicle, walk to the Mercury,

and return to the Continental. This se-

quence was repeated once again and the

vehicles drove away simultaneously.

The Arrest and Search of the Defendants

Offcier Markonni followed the vehicles

east on Dorr Street until they turned onto

Detroit Avenue. At that time, he inter-

cepted a police cruiser and requested

assistance in stopping these vehicles.

12

*(Appendix, p. 89.) With the aid of local

police, Officer Markonni stopped the Defen-

dants‘' vehicle on the entrance ramp to

Interstate 475. The yellow and white

Mercury vanished, never being located or

identified prior to these proceedings.

Officer Markonni approached the driv-

er's side of the 1976 Lincoln Continental

and ordered Defendant Webb out of the

vehicle. Defendant Webb complied. *(Appen-

dix, p. 89.) When Defendant Williams was

ordered out of the vehicle, she continued

sitting in the front seat. Officer Mar-

konni'‘asked her to hand out her pocket-

book, but she remained silent. *(Appendix,

p. 90.) At this point, Officer Markonni

grabbed the handbag and reached inside,

finding heroin and cocaine. Officer

Markonni's stated purpose in entering the

handbag was "To protect myself in terms

of weapons." Appendix, p. 90.) Both

13

Defendants were then arrested and charged

as per the indictment.

REASONS FOR THE WRIT

Petitioners respectfully submit that

the order of the District Court and the

affirmance by the Court of Appeals are

in conflict with the decision of this

Court in Katz v. United States, 389 U.S.

347 (1967).

(1) Surreptitious surveillance of a

Private room by a government agent is,

in fact, a search of a constitutionally

protected area.

The fact that Agent Markonni did

conduct an intensive surveillance on the

Defendants while they were occupying room

115 is undisputed and it is also undis-

puted that this surveillance was at least,

in part, conducted by eavesdropping on

the Defendants' conversation from his ad-

joining motel room. The conduct of the

14

arresting agent is prohibited by the

Fourth Amendment.

The rationale of Katz v. United States,

389 U.S. 347, 19 L. Ed.2d 576, 88 S.Ct.

507 (1967) establishes the right of priv-

acy upon which these Defendants justifi-

ably relied. The following language of

Justice Stewart, cited hundreds of times,

is again applicable:

"What a person knowingly

exposes to the public, even in

his own home or office, is not

a subject of Fourth Amendment

protection, but what he seeks

to preserve as private, even

in an area accessible to the

public, may be constitutionally

protected."

Justice Harlan, in a concurring opin-

ion, further qualified this protective

language. For suppression of overheard

speech, the speaker must have justifiably

relied upon his privacy. This requires

(1) an actual and reasonable expectation

on the part of the individual and (2) an

15

expectancy that society is prepared to

recognize as reasonable. Courts, in ap-

plying the Katz doctrine, have uniform-

ly applied both a subjective and an objec-

tive test in evaluating the right of pri-

vacy. United States v. Holmes, 521 F.2d

859 (5th Cir. 1975); United States v. Kim,

415 F. Supp 1252 (U.S. Dist. Ct., D.

Hawaii 1976).

The facts surrounding the Katz

decision and the facts herein are closely

in parallel. In the former, F.B.I. agents

attached an electronic recording device

outside of a public telephone booth from

which Katz placed calls. In the latter,

Agent .Markonni, without the aid of any

alessronie device, eavesdropped by ear

on the conversations of those then

occupying the adjoining room. In both

cases, arrest was made after the search.

-_

16

The Katz decision is also authority

in classifying this surveillance as a

search:

"The Fourth Amendment

governs not only the seizure

of tangible items, but ex-

tends as well to the record-

ing of oral statements that

are overheard without any

technical trespass under local

law: the reach of the Amend-

ment cannot turn upon the

presence or absence of a phy-

Sical intrusion into any

given enclosure."

For constitutional purposes, a motel

room is no less a private place than a

telephone booth. Hoffa v. United States,

385 U.S. 293, 17 L.Ed.2d 374, 87 S. Ct.

. 408 (1966); Stoner v. California, 376 U.S.

483, ha L.Ed. 2d oy. 84 S. Ct. 889 (1964).

Neither is it of constitutional importance

that the words of the Defendants here were

not physically seized by way of recording.

The capacity to claim the protection of

the Fourth Amendment against unreasonable

searches and seizures depends not upon

=

17

a property right, but upon whether the

area was one in which there was a rea-~

sonable expectation of freedom from gov-

ernmental intrusion. Mancusi v. DeForte,

392 U.S. 364, 20 L.Ed.2d 1154, 88 S. Ct.

2120 (1968). An examination or taking

of physical property is not required.

Silverman v. United States, 365 U.S. 505,

5 LiEd.2d 734, 81 S. Ct. 679 (1960).

That the Defendants were subjected to

a search by surveillance is amply supported

by authority. A search by definition is

a prying into hidden places for that which

is concealed. The Defendants herein mani-

fested at all times a concern and a desire

to conceal and protect their activities.

The telephone calls to Los Angeles and

the conversations overheard by Agent Mar-

konni transpired within the confines of

a supposedly private room and, but for

official governmental intrusion, these

18

private actions would have remained pri-

vate. Only by displaying police author-

ity was Agent Markonni able to gain ac-

cess to the following:

(1) cooperation from the room

clerk by informing him of

calls-placed to and from

room 115; and

(2) assignment to the adjoin-

ing room, 114,*where he

placed his ear to the door

and overheard an alleged

offer to sell narcotics.

These activities by Agent Markonni

constituted an intrusion into a motel

room in which the Defendants had a sub-

jective and reasonable expectation of

privacy. At the expense of violating

this privacy, governmental actions were

made with the specific intent of discov-

ering evidence of a crime. A search by

definition involves an invasion of pri-

vacy, while a seizure involves the taking

of property. United States v. Lisk, 522

F.2d 228 (7th Cir. 1975). The search

19

begins with the initial invasion of pri-

vacy and continues until the fruits or

evidence of a crime are seized. Conse-

quently, the prohibitions of the Fourth

Amendment apply to a search whenever the

government participates in such an inva-

sion of privacy. United States v. Davis,

482 F.2d 893 (9th Cir. 1973).

The activities of Agent Markonni

constituted a purposeful invasion of the

Defendants' reasonable expectation of

privacy, and this, by definition, is z

search.

The mandate of Katz in this situa-

tion is that the Fourth Amendment protects

people and not places. The issue before

this court is whether the tactics employed

by Agent Markonni are to be approved and

validated at the expense of individual

privacy. Defendants submit that the ex-

pectation of privacy they enjoyed in this

20

motel room was much more than an unrealis-

tic personal expectation. This is obvious

when one considers the lengths Agent Mar-

konni went to in order to conduct this

Surveillance. His actions went far beyond

routine police investigation. They included

checking the motel registration, verifying

the address given in Detroit, checking the

vehicle registration, making inquiries as

to the telephone numbers called, asking

the room clerk to inform him of any activ-

ity by the Defendants, and finally, con-

ducted surveillance from the adjoining

room. Only by getting his ear as close

to the connecting door as he could, was

Agent Markonni able to overhear the criti-

cal conversation in room 115. *(Appendix,

p.79.) Then as quietly as he could,

Agent Markonni looked out into the hall-

way to observe the Defendants leave the

motel.

21

The great lengths that Agent

Markonni went to in order to keep these

Defendants under surveillance suggest a

manifest invasion of privacy. All of

these actions were taken without

probable cause to arrest or to search.

The choice before this court is to legi-

timate covert surveillance by police,

lacking any reasonable grounds to

search, or to apply the protection of

Katz with full force. To legitimate

these tactics is to negate the pro-

tection of Katz whenever persons occupy

a motel room. This is contrary to the

spirit and peseene ot Katz and the

Fourth Amendment to the United States

Constitution which is supposed to guar-

antee freedom from unreasonable gov-

ernmental searches and seizures and a

right to personal privacy.

22

(2) Warrantless surveillance conducted

in the absence of exigent circumstances

constitutes an unlawful search.

When Agent Markonni caused the motel

room clerk to register him in the room

adjoining that of the Defendants, he pos-

sessed the following information:

(1) The Defendants' vehicle

bore Ohio license plates

while they had registered

using a Detroit, Michigan

address. ‘“(Appendix, p.107.)

(2) The room clerk could not

recall seeing any luggage.

‘Appendix, p. 107.)

(3) The Defendants' vehicle

had been reported to have

entered the airport grounds

driving the wrong way.

“Appendix, p.103.)

(4) Upon arrival, the Defen-

dants had placed a tele-

phone calli to an unlisted

number in Los Angeles,

California YAppendix, p.

107) and completed this

call later. Appendix,

p. 109.)

(5) The Defendant Webb had

looked at Officer Velli-

quette in a “suspicious

23

manner™ on two occasions.

*(Appendix, p. 104.)

(6) The Defendants had re-

ceived one telephone call

from Los Angeles, Califor-

nia. *(Appendix, p. 109.)

Armed with this information, Agent

Markonni began intensive surveillance

of room 115. This surveillance con-

tinued from 6:25 p.m., June 18, through

3:10 a.m. on June 19, 1976. MThrough- i

out this extensive time period, Officer”®

Markonni had access to a telephone with

which to verify certain information

received; however, he made no attempt

to obtain a search warrant or to obtain

an arrest warrant for the occupants of

room 115.

The facts known by Agent Markonni

at the time he conducted this search

did not amount to probable cause to

search. Had there been sufficient

facts for probable cause, a warrant

24

would still have been required. Searches

conducted without warrants have been held

unlawful notwithstanding facts unquestion-

ably showing probable cause. Agnello v.

United States, 269 U.S. 20, 70 L.Ed. 145,

46 S. Ct. 4 (1925). Searches conducted

without a warrant are per se unreasonable,

absent well-defined exigencies. Chapman

v. United States, 365 U.S. 610 (1960) and

Carroll v. United States, 267 U.S. 132,

45 S. Ct. 280 (1925).

In view of the hours over which this

surveillance was conducted, no exigencies

were present. Had the agent applied for

a search warrant, none could have law-

fully been issued given the known facts.

In Similar Situations, surveillance

of this nature has been held unlawful.

In State v. Person, 34 Ohio Misc. 97, 298

N.E.2d 922 (1973), the court found that

eavesdropping at a door to a private room

from a common passageway and looking

25

through a key hole constituted a search

within the meaning of the Fourth Amend-

ment. Surveillance became a search

when it violated the Defendant's reason-

able expectation of privacy. It was held

to be unlawful since no warrant was issued

and since eavesdropping, even from a law-

fully occupied vantage point, does not

fall within the plain view exception to

the warrant requirement. This reas@ne

ing of a Toledo, Ohio, court is distinctly

relevant here.

Also applicable are a series of de-

cisions from California courts. The

leading case in California being People

v. Triggs, 106 Cal. Rptr. 408, 506 P.2d

“~

232 (1973). In Triggs, surveillance of

two men occupying a stall in a public

men's room was held to be a search. It

was found further to be an unreasonable

search since the surreptitious activity

26

was done with the intention to find evi-

dence of guilt and begun without reason-

able cause to search the Defendant. The

testimony of Agent Markonni leaves no

doubt that the principle of Triggs is

applicable here:

QO:

To

When you took the room, your

purpose was to eavesdrop on

room 115, is that correct?

My purpose was to conduct

surveillance of the room

while I was in there and,

also, to use the phone in

there. ..

In addition, you would lis-

ten through to any conver-

sation you could hear?

Yes.

You did so?

Yes, I did, but I didn't do

it then. “(Appendix, p. 112.)

conduct surveillance upon activities

of a private motel room without reasonable

cause to do so is constitutionally imper-

missible activity.

27

The result reached in People v.

Triggs, (supra) is now being applied in

other jurisdictions. In People v. Diaz,

85 Misc. 2d 41, 376 N.Y.S.2d 849 (1975),

visual surveillance of Defendants from

an opening at the top of a department

store dressing room was held to be an

unlawful search. In People v. Harfmann,

555 P.2d 187 (1976) a Colorado Court of

Appeals held a visual observation that

infringed upon a reasonable expectation

of privacy constituting an unlawful

search. Under basically the same facts

as in Triggs, the same result was reached

in Kroehler v. Scott, 391 F. Supp. 1114

(E.D. Penn. 1975). The District Court

found that persons using toilet stalls

in public restrooms have reasonable

expectations of privacy, both subjec-

tively and objectively reasonable. Fur-

ther, the Fourth Amendment requires a

28

probable cause finding by a magistrate

before governmental intrusion is lawful.

The Defendants in this case, beyond

dispute, had a subjective expectation of

privacy while residing at the motel. Re-

cent decisions cited herein have estab-

lished both a subjective and reasonable

expectation of privacy in analogous

Situations. These situations are legally

indistinguishable from the facts herein.

In the visual surveillance cases

cited above and in the present case, the

searches were conducted lacking probable

cause to search. To accept these searches

would indeed dispense with the need for a

magistrate's finding of probable cause.

Therefore, on this basis, the lack of

probable cause to search, Defendant's

counsel would distinguish United States

v. Fisch, 474 F.2d 1071 (9th Cir. 1973)

and United States v. Llanes, 398 F.2d

29

880 (2nd. Cir. 1968.)

In Fisch, the court specifically

recognized the fact that there was rea-

sonable cause for the pclice to believe

that the room in question was being used

in the aid of a criminal venture. This

was also the case in Llanes where officers

actually viewed white powder being placed

in glassine envelopes. However, in the

present case, the agent's basis for the

surveillance was mere suspicion.

(3) The initial illegality of the surveil-

lance denies the government the right to

use or act upon anything heard.

The end cannot justify the means

herein, and the surveillance cannot be

justified by what the subsequent arrest

produced. Given the initial illegality,

evidence seized is fruit of the poison-

ous tree and must be suppressed. Wong

Sun v. United States, 371 U.S. 471, 83

r

30

S. Ct. 407, 9 L.Ed.2d 441 (1963); Chapman

v. United States, 365 U.S. 610, 81 S. Ct.

776, 5 L.Ed.2d 828 (1961).

What a court must determine is whether

the looking and listening carried on was

an intrusion upon what the Defendants

reasonably sought to preserve as private.

See Wattenburg v. United States, 388 F.2d

853 (9th Cir. 1968).

Appellants submit that the decisions in

Johnson v. United States, 338 U.S. 10 (1948)

and in McDonald v. United States, 335 U.S.

451, 69 S. Ct. 191, 93 L.Ed. 153 (1948)

should be likewise reached in this case.

This court should be guided by the

following language from Johnson v. United

States, 338 UvS. at 14:

"The right of officers to

thrust themselves into a home

is also of grave concern, not

only to the individual, but to

a society which chooses to

dwell in reasonable security

and freedom from surveillance.

When the right of privacy must

31

reasonably yield to search is,

as a rule, to be decided by a

judicial officer, not by a

policeman or a governmental

agency."

(4) When a law enforcement officer con-

ducts a limited search for weapons with-

Out reasonable grounds to believe his

safety is in danger, this search is un-

lawful.

Agent Markonni testified at the evi-

dentiary hearing concerning the arrest of

Defendant Williams. ‘*(Appendix, p. 90.)

Upon approaching the Defendants’ vehicle,

he ordered Defendant Williams out of the

car, but she did not comply. As she

remained in the vehicle, Agent Markonni

got inside. Defendant Williams then

refused to turn over her handbag as

requested by Agent Markonni. At this

time, he seized the purse and opened it,

finding the majority of narcotics that

are the basis of these charges. ‘“*(Appen-

dix, p. 90.) Agent Markonni's stated

32

purpose in searching the purse was "To

protect myself in terms of weapons."

*(Appendix, p. 90.) This purpose was

confirmed by him on cross-examination,

again stating his intent was self-

protective search. *(Appendix, p. 130.)

Given the facts known to Agent

Markonni at the time he entered the ve-

hicle, a self-protective search was not

lawful. The sole justification of an

officer's search of a person for self-

protection is discovery of weapons to

prevent harm to himself and others. The

reasonableness of the action depends upon

specific, articulable grounds to believe

a protective search is necessary. Terry

v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L.Ed.2d 889 (1968).

The key issue, as stated in Terry

v. Ohio, (supra), is whether a reasonably

prudent person in those circumstances

would be warranted in believing his safety

33

was in danger. Most importantly, in

justifying the search, the police officer

must be able to point to specific and

articulable facts which reasonably warrant

the intrusion.

The search of Defendant Williams’

purse cannot be justified as a protec-

tive search. Agent Markonni had no

reason to believe his safety was in dan-

ger. This is especially true when the

search of the purse was conducted after

it had been taken from Defendant Williams.

Even had there been weapons inside the

purse, any danger to Markonni was removed

when he took the purse from Williams.

Having been carried out as a protec~

tive search, Officer Markonni's actions

cannot later be termed a search incident

to arrest. The purpose of an arresting

officer then becomes the purpose to

search. When an officer does not believe

34

an arrest has been made, there can be no

search incident to an arrest. United

States v. Dalpiaz, 494 F.2d 374 (Ky. 1974).

A required element of an arrest is the

intent of the officer to make the arrest.

State v. Terry, 34 Ohio Ops.2d 237, 214

N.E.2d 114 (1966). When Officer Mar-

konni stopped the Defendants' vehicle

and ordered them to exit, he did not do

sO with purpose to arrest.

Since the intrusion into Defendant

Williams’ purse was not justified ini-

tially, all evidence seized as a result

of that intrusion is fruit of the poi-

sonous tree and must be suppressed.

People v. Hurst, 325 F.2d 891 (9th Cir.

1963).

CONCLUSION

The Petitioners respectfully request

that a Writ of Certiorari be issued

35

Circuit,

to the Court of Appeals for the Sixth

in order to review the issues

raised in this Petition.

Respectfully Submitted,

JOHN ANDREW WEST

4545 Carew Tower

Cincinnati, OH 45202

ATTORNEY FOR PETITIONFR,

JO ANN WILLIAMS

LESLIE I. GAINES, JR.

GAINES & GAINES

1212 Mercantile Library

Building

414 Walnut Street

Cincinnati, OH 45202

ATTORNEY FOR PETITIONER,

CLARENCE WEBB

FRED H. HOEFLE

400 2nd National Blda.

Cincinnati, OH 45202

SPONSORING ATTORNEY

36

A FILED

Nos. 77-5191 and -5192

UNITED STATES COURT OF APPEALS ~ DEC 6 1977

FOR THE SIXTH CIRCUIT

'‘OHN P. HEHMAN, Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs No. 77-5191

CLARENCE WEBB,

Defendant-Appellant

—- - ORDER

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs No. 77-5192

JO ANN WILLIAMS,

Defendant-Appellant :

Before WEICK, PECK and ENGEL, Circuit Judges.

The defendants were charged in a two count indictment

with possession of narcotics with intent to distribute heroin

and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 2.

The District Court denied a motion filed by the de-

fendants to suppress evidence.

The defendants then entered pleas of guilty and were

sentenced, but they expressly reserved their right to appeal from

the order of the District Court denying their motion to suppress

evidence. We disapproved of this practice in United States v.

Cox, 464 F.2d 937 (6th Cir. 1972). When the defendants enter

a plea of guilty to an indictment they waive all non-jurisdic-

Nos. 77-5191 and -5192 - 2

tional defects.

Nevertheless, in this case we have examined the

evidence taken on the motion to suppress and in our opinion

the District Court did not err in the denial of said motion.

The judgment of conviction is therefore AFFIRMED.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

By aa Aine

Grace Keller, Chief Deputy

~

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHTO :

WESTERN DIVISION o2:

UNITED STATES OF AMERICA,

Plaintiff, No. CR 76-72

CLARENCE WEBB, et al., MEMORANDUM and ORDER

eee eee ee ee eet

Defendants.

WALINSKI, J:

This cause came to be heard on defendants’

motion to suppress certain evidence seized by law enforcement

officers on June 19, 1976, from the purse of defendant

Williams and from the automobile in which defendants Williams

and Webb were traveling. An evidentiary hearing on this

motion was held on November 18, 1976.

Ne 3.

Defendants seek to suppress certain quantities of

heroin and cocaine found and seized by law enforcement

officers during the course of a warrantless search. The

events preceding the search are critical to the motion and

require elaboration.

The evidence adduced at the suppression hearing

established that defendants Webb and Williams checked into the

Airport Motel at the Toledo Express Airport, Toledo, Ohio, at

approximately 6:00 p.m. on June 18, 1976. The couple's

presence was brought to the attention of Special Agent Paul

Markonni of the Drug Enforcement Administration by an airport

security officer who had become mildly suspicious of the

couple.

(2)

THPough inquiries to the motel desk clerk and

other law enforcement agencies, Agent Markonni secured the

following information-.regarding the couple:

1) The couple had arrived in a green 1976

Lincoln Continental bearing non-local Ohio

plates. A check of the plates indicated that

they were newly issued and the owner therefore

could not be immediately determined.

2) Although the auto bore Ohio plates,

the registering party, Jo Anne Williams, gave a

Detroit, Michigan address.

3) The desk clerk could not recall seeing

either defendant bring luggage into the room.

4) Two phone calls had been placed by the.

defendants to a number in Los Angeles,

California.! One phone call had been received

by the couple with the caller initially

requesting to speak to "Clink" and then asking

for the party in Room 115, the room in which the

defendants were registered.

This information caused Agent Markonni to suspect

that the defendants might be involved in drug trafficking, and

he therefore took a room next to the room in which the

defendants were registered in order to conduct further

surveillance. He then made additional phone calls in which he

learned that the phone number in Los Angeles which the

defendants had been calling was unlisted, and that Detroit

authorities could find no one by the name of Jo Anne Williams

listed at the address she had given.

At approximately 2:00 a.m. on June 19, 1976,

Agent Markonni was awoken by the motel desk clerk and informed

lagent Markonni testified that the defendants'

attempts to contact persons in Los Angeles were significant to

him because of his knowledge that Los Angeles is presently the

major distribution center for heroin and cocaine coming into

the United States.

(3)

that several persons had arrived at the motel in a car and

that one individual had gone to the room occupied by the

defendants. Agent Markonni testified that he then put his

ear to the door connecting his room with the room of the

defendants and, without the aid of any electronic listening

devices, overheard the following conversation:

Male One: "What have you got?”

Male Two: "Fifteen of boy and some of girl, if

you want.”

Male One: “Let's get out of here.”

Agent Markonni testified that through his

experience as a drug enforcement agent, he knew that in street

drug parlance “boy” means heroin and "girl" means cocaine.

Therefore, having overheard this conversation he had reason to

believe that a drug transaction was about to take place. He

further testified that since the occupants of the next room

left immediately, he had no time to place a phone call for the

purpose of securing assistance or seeking arrest or search

warrants prior to following the defendants and their

companion.

Agent Markonni testified that having observed the

defendants and their visitor enter the 1976 greenon green Lin-

coln Continental and pull away from the motel followed by a yellow

on yellow Montego, he then entered his own car and followed.

After traveling a number of blocks and after making two

unexplained stops in parking lots without any movement by the

occupants of either car, Agent Markonni observed the vehicles

stop in a lighted parking lot in the area of Dorr and Secor.

Agent Markonni then observed the person riding in the

(5)

(4)

or there must exist both probable cause to believe that the

passenger seat of the Lincoln leave the Lincoln and go to the

automobile contains evidence or the fruits of a crime and

Montego, return to the Lincoln, go back to the Montego, return

exigent circumstances making it impracticable to secure a

to the Lincoln and then enter the Montego.

search warrant.°

Both cars then pulled out of the lot and with

In determining whether the warrantless search and

Agent Markonni following, proceeded east on Dorr Street and

seizure of narcotics in the instant case is supported by

then turned north onto Detroit Avenue. At that point Agent

either of these exceptions to the general rule against

Markonni was able to flag down a Toledo Police Department -

; warrantless searches, the Court's initial inquiry is directed

vehicle, and with the assistance of the officers manning that

to the legality of Agent Markonn.i's “intrusion” into the

vehicle, stopped the Lincoln Continental shortly after the

conversation of the defendants conducted within the confines

vehicle moved onto Interstate 475 via the ramp at Detroit

of their motel room. While the defendants take the position

Avenue.

that with or without access to the motel conversation quoted

Agent Markonni testified that he promptly ordered

| above there was insufficient probable cause to justify a

the defendants out of the vehicle. When defendant Williams

warrantless arrest and search, it is the Court's view that if

did not move from the vehicle, Agent Markonni entered and

the conversation of the defendants was properly within the

observed Williams reach for her purse which was on the floor

knowledge of Agent Markonni, probable cause did exist to

beneath her legs. At that time Agent Markonni grabbed the

arrest the defendants and to conduct a warrantless search.

purse from her, agd upon opening it, found several packets of

Therefore, the critical question in deciding defendants'

narcoties. A subsequent search of the vehicle revealed an

additional packet of heroin in the seat where defendant Webb

>see Coolidge v. New Hampshire, 403 U.S. 4 he

was seated. (1971); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v.

United States, 267 U.S. 132 (1925); United States v. Beck,

II. 51l F.2d 997 (6th Cir. 1975); United States v. Kemper, 503

F.2d 327 (6th Cir.), cert. denied, 419 U.S.1124 (1975).

The warrantless search of an automobile is

Probable cause exists where "the facts and

justified in only two instances. The search must either be circumstances within [the officers’) knowledge and of which

they have reasonably trustworthy information [are] sufficient

within themselves to warrant a man of reasonable caution in

| the belief that an offense has been or is being committed.”

| search must be contemporaneous with the arrest and limited to United States v. Upthegrove, 504 F.2d 682, 686 (6th Cir.

incident to a lawful arrest, in which case the scope of the

3 1974), quoting Carroll v. United States, 267 U.S. 132, 162

the “area within the immediate control" of the person arrested, (1925).

The basic test for whether exigent circumstances

exist is whether “it is not practicable to secure a warrant."

United States v. Blanton, 520 F.2d 907, 912 (6th Cir. 1975),

quoting Carroll v. United States, 267 U.S. 132, 153 (1925).

2see Chimel v. California, 395 U.S. 752 (1969);

United States v. Robinson, 414 U.S. 218, 224 (1973); United | 9

States v. Hayes, 518 F.2d 675 (6th Cir. 1975).

f

P-043-8 fri aI 8 78 S08. 4048

P.043-8 L Fri wi—o.0 78 150m 4045

P-943-8

(6)

motion is whether the information obtained by Agent Markonni,

by placing his ear to the door of the defendants’ motel room,

was secured in violation of their Fourth Amendment rights to

be free from unreasonable search and seizure.

IIt.

Under the rule of United States v. Katz, 389 U.S.

347 (1967), this question turns on whether the defendants

enjoyed an expectation of privacy with respect to their

conversations within the motel room they occupied, and whether

that expectation was “one that society is prepared to

recognize as ‘reasonable.'" 389 U.S. at 361. The latter

question is not one which may be decided as a matter of law,

bur rather requices an examination of the facts and

circumstances of the particular case. While it is persons and not

places that are protected by the Fourth Amendment, the

environment of the defendants is clearly critical in

determining whether or not they entertained a reasonable

expectation of privacy. See United States.v. Fisch, 474 F.2d

1071 (9th Cir. 1973), aff'g United States v. Perry, 339 F.

Supp. 209 (S.D. Cal. 1972).

The Court would not dispute the defendants’

characterization of a motel room, even though transiently

occupied, as a private place. See Hoffa v. United States, 385

U.S. 293 (1966); Stoner v. California, 376 U.S. 483 (1964).

That is not to say, however, that persons occupying a motel

room enjoy a reasonable expectation of privacy as to all

conduct or conversations carried on therein. The conversa-

tions of the defendants and their guest in the instant case

h

et

_

(7)

were audible to the naked ear in the adjoining room. Agent

Markonni clearly had a right to occupy that room, and the

defendants certainly are charged with the knowledge that such

an adjoining room existed, and that it was not unlikely that

the adjoining room would be occupied.

Defendants would make much of the fact that

Agent Markonni “deliberately” attempted to overhear their

conversations by putting his ear to the door connecting the

two rooms. However, the Court finds nothing constitutionally

objectionable inthis mode of surveillance in the circumstances

of the instant case. Contrast United States v. Case, 435 F.

2a 766 (7th Cir. 1970). Although the conduct of the

defendants prior to the point at which Agent Markonni was able

to overhear the critical conversation may not have constituted

sufficient probable cause to arrest the defendants, it clearly

provided Agent Markonni with reason to put the defendants

under surveillance. To bar mere eavesdropping as conducted by

Agent Markonni under the circumstances of the instant case

would unduly hinder the legitimate efforts of law enforcement

officers in the investigation of serious criminal activity.

Accordingly, the Court concludes that while the

defendants may well have entertained an actual and subjective

expectation of privacy, that expectation, under the facts and

circumstances of the instant case, is not “one that society is

prepared to recognize as reasonable." 389 U.S. at 361. There

was, therefore, no justifiable reliance by the defendants,

and therefore the eavesdropping by Agent Markonni did not

constitute a search and seizure in violation of the Fourth

PrP o43-8

5

both as a search incident to a lawful arrest

(8)

Amendment. Accord United States v. Sin Nagh Fong, 490 F.2d

527 (9th Cir. 1974); United States v. Perry, 339 F. Supp. 209

(S.D. Cal. 1972), aff'd sub nom. United States v. Fisch, 474

P.2d 1071 (9th Cir. 1973). See also United States v. Martin,

509 F.2d 1211 (9th Cir. 1975).

Vv.

Having resolved the initial search and seizure

question in favor of the government, the Court concludes that

the facts and circumstances known to Agent Markonni at

approximately 2:30 p.m. on the morning of June 19, 1976, were

sufficient to warrant a man of reasonable caution to believe

that a serious offense had been committed by the defendants,

and that the car in which they were riding contained evidence

or fruits of a crime. The Court further finds that exigent

circumstances existed which made it impracticable to secure a

search warrant. Therefore, it is the opinion of the Court

that the warrantless search in the instant case is supportable

under the rule

4see United States v. Blanton, 520 F.2d 907 (6th

Cir. 1975); United States v. Upthegrove, 504 F.2d 682 (6th

Cir. 1974).

> Although the defendants were not technically

_ placed under arrest until after the narcotics had been seized

| 1972).

from defendant Williams’ purse, for the purpose of determining

whether the search was incident to a lawful arrest, the

defendants were “arrested” at the time Agent Markonni forced

them from the car and made it clear that they were not free to

leave. See Henry v. United States, 361 U.S. 98, 103 (1959);

McDonald v. State of Arkansas, 501 F.2d 385 (8th Cir. 1974); Unit

States ex rel. Frazier v. Henderson, 464 F.2d 260 (2d Cir.

Moreover, since the Court has found that probable

| cause to arrest the defendants did exist at the time Agent

Markonni stopped their vehicle, it is not significant that the

vehicle was searched prior to formally completing the arrest.

(Footnote 5 continued on following page.)

j

7) 2r—8 © 78 (bom 4248

ex

1

043-8

of Chimel v. California, 395 U.S. 752 (1969), or alternately,

as a search based on the existence of probable cause and

exigent circumstances under the rule of Chambers v. Maroney,

399 U.S. 42 (1970) .° Accordingly, defendants’ motion to

suppress will be denied.

IT IS SO ORDERED.

Toledo, Ohio.

December 17, 1976.

(Continuation of Footnote 5.) See United States

v. Jenkins, 496 F.2d 57 (2d Cir. 1974), cert. denied, 420

U.S. 925 (1975); United States v. Murray, 492 F.2d 178 (9th

Cir. 1973); United States v. Skinner, 412 F.2d 98 (8th Cir.),

cert. denied, 396 U.S. 967 (1969). United States v. Shkoza,

406 F. Supp. 1065 (S.D. N.Y. 1975).

"see United States v. Birmley, 529 F.2d 103 (6th

1975); United States v. Martin, 509 F.2d 1211 (1975); and

cases cited inn. 4, supra.

ree anes

In conformity with Rule 77 (d) F.R.C.P.

Please take notice that the following order of judgment

was entered in this court on Decenber 20, 1976.

Mark Schlachet, Clerk

UNITED adel JUDGE |

Cir. 1976); United States v. Williams, 526 F.2d 1000 (6th Cir.