Petition — Griffin v. United States

(“FILE D.

FEB 10 1978

¢7-1128 ,

AK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

——- oe —.

Nos. 77-5151

77-5152

—_— o——

THOMAS BIGGS GRIFFIN, Ill and

ANTOINETTE LOUISE GRIFFIN

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

on

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

—_——oe————

S. Allen Early, Jr. (P 13076) and

Ralph H. Richardson

Attorneys for Petitioners

810 Buhl Building

Detroit, Michigan 48226

(313) 963-6093

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

TABLE OF CONTENTS

Page

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Question Presented for Review .................000eees 2

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Appendix A— Order and Opinion of the United States

District Court dated May 20, 1975..... 11

Appendix B— _ _ Decision of the United States Court of

Appeals for the Sixth Circuit dated

PY Wa OE cc avdecewtdusecéees 25

Appendix C— Order Denying Petition for Rehearing

En Banc dated December 12, 1977 .... 28

Appendix D— Order Extending Time to File Petition

for Certiorari dated January 10, 1978 .. 29

TABLE OF CITATIONS

Cases:

Chambers v. Maroney, 399 US 42 (1970).............. )

United States v. Chadwick, 97 S.Ct. 2476 (1977) ..... 6.7.8

United States v. Berry, slip opinion, (docket nos.

76-2014, 2037, 2038) (decided 8/24/77) .............. 8

United States v. Kaye. 492 F.2d 744 (6th Cir., 1974) ... 7

United States Constitution:

a ea eee duo d biee &

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

—_——_@e——

Nos. 77-5151

77-5152

——-— @ — —

THOMAS BIGGS GRIFFIN, III and

ANTOINETTE LOUISE GRIFFIN

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ie

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

ee

The petitioners, Thomas Griffin and Antoinette Griffin.

respectfully pray that a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Sixth Circuit entered in this proceeding

on November 7, 1977.

tJ

OPINIONS BELOW

The District Court Order of May 20, 1976 denying the

pre-trial Motion to Suppress Evidence is attached as

Appendix A. The Orders of the United States Court of

Appeals for the Sixth Circuit affirming the judgment of

conviction and denying a Petition for Rehearing En Banc

are attached as Appendix B and C respectively. The

opinions for the Court of Appeals are unreported. The

District Court Opinion is reported at 413 F. Supp. 178

(Ed. Mich. 1976).

JURISDICTION

The Order of the Court of Appeals affirming judgment

was entered November 7, 1977. The Petition for

Rehearing was denied on December 12, 1977. A Petition

for Extension of Time for Filing a Petition for Writ of

Certiorari was filed and granted by Justice Potter Stewart

on January 10, 1978. This Petition for Certiorari is filed

within the time allowed by the extension. This Court's

jurisdiction is invoked under 28 USC §1254(1).

QUESTION PRESENTED FOR REVIEW

|. Whether Petitioners’ right against unreasonable

search and seizure was violated by a warrantless search

of Petitioners’ luggage and automobile where both the

luggage and the automobile were in the exclusive

possession and control of DEA agents, where no exigent

circumstances existed, and where there was no probable

cause to arrest the woman claiming the luggage or the

driver of the automobile.

STATEMENT OF FACTS

The facts of the case were developed in a pre-trial

evidentiary hearing on Motions to Suppress Evidence and

at trial.

On June 12, 1975, Antoinette Griffin flew from Detroit

Metropolitan Airport to Los Angeles. Based on

information from airport personnel that Ms. Griffin

appeared to be carrying a large sum of money, DEA

agent Paul Markonni located Ms. Griffin in the American

Airlines satellite. Noting that she was then in possession

of a gold tote bag and a folding garment bag. he

continued to observe her until her departure.

Markonni contacted officers in Los Angeles and

requested that surveillance be continued after Ms.

Griffin's arrival. Officers observed Ms. Griffin leave the

Los Angeles airport with a man allegedly known to them

aS a narcotics dealer. Markonni was informed of this and

that the officers were unsuccessful in following Ms.

Griffin.

On June 15, 1975, Ms. Griffin flew back to Detroit.

With advance notice of her return flight, Agent Markonni

established surveillance in the deplaning area along with

other officers. Ms. Griffin was met at the jet way by

Thomas Griffin. After a brief embrace and some

conversation, Ms. Griffin proceeded to the women’s

restroom. Another woman, later identified as Linda

Jackson, entered the restroom after Ms. Griffin, remained

several minutes and left just prior to Ms. Griffin. Ms.

Jackson was then observed walking toward the baggage

claim area; the Griffins followed at some distance.

V

At that point, agents lost sight of Ms. Jackson; when

next seen, she had entered the baggage claim area and

was seated. The Griffins were, meanwhile, seated in an

adjacent lounge area.

Agent Markonni next observed a sky cap with a

baggage claim ticket go to the baggage belt and remove a

gold garment bag similar to the bag previously carried by

Antoinette Griffin. The skycap placed the bag on his cart

and began conversing with Ms. Jackson. Markonni

testified that he had not seen Ms. Jackson deplane and.

further, that he watched the luggage conveyor belt for

some time, determining that there was only one gold

garment bag among the pieces of luggage removed from

the Los Angeles flight.

A second officer was left to continue the surveillance

of Linda Jackson. while Markonni, with Officer Cary.

followed the Griffins out of the terminal. Markonni and

Cary observed the Griffins enter Thomas Griffin's

automobile and start to drive away. The two officers

drew their guns. ordered Thomas Griffin to stop the car,

and placed both Griffins under arrest. The automobile

was locked and left in the street in front of the terminal.

With the Griffins, Markonni reentered the terminal and

returned to the baggage claim area. He then seized the

garment bag from the sky cap’s cart, identified himself to

Linda Jackson, and asked the sky cap where he got the

baggage claim for the bag. The sky cap indicated Ms.

Jackson, whereupon all three. Ms. Jackson, Antoinette

Griffin and Thomas Griffin were led to a separate room in

the terminal. Markonni read Miranda warnings and then

asked to whom the bag belonged. Receiving no response.

Markonni opened and searched the bag. seizing a

quantity of suspected heroin and cocaine.

5

At some point, Thomas Griffin’s automobile was

moved from the street to a private, employees’ parking

lot. More than a half hour after the Griffins’ arrest, the

car was searched, in the parking lot, by Special Agent

Seward who was called to the airport specifically for that

purpose. Inside the car, he discovered a wallet, a firearm,

and an unlocked white Samsonite cosmetic case. Seward

opened both, seizing suspected narcotics from each.

Following denial of their Motion to Suppress by the

District Court, Thomas Griffin, Antoinette Griffin and

Linda Jackson were tried by a federal jury — only the

Griffins were convicted.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW WHICH UPHOLDS THE

WARRANTLESS SEARCH OF PETITIONER’S GAR-

MENT BAG, AND A SUITCASE AND WALLET

SEIZED FROM PETITIONER’S AUTOMOBILE

IS IN DIRECT CONFLICT WITH AN APPLICABLE

DECISION OF THIS COURT.

In its Order denying Petitioners’ Motion to Suppress.

the District Court relied heavily on United States v Kaye.

492 F2d 744 (6th Cir.. 1974). to support its finding that

Antoinette Griffin's garment bag was properly searched

incident to the valid arrest of Linda Jackson. The District

Court also found that the warrantless search of the

automobile, and the suitcase and wallet found therein.

was supportable as a search incident to the valid arrest of

Antoinette Griffin. a passenger, or under the automobile

exception, even though the Court found no probable

cause for the arrest of Thomas Griffin, the owner and

driver of the automobile.

a) The garment bag.

The arrest of Linda Jackson was unlawful and,

therefore, a search incident to that arrest must be

suppressed. The arresting officer knew 1) that Linda

Jackson did not arrive on the Los Angeles flight and 2)

that she was in the restroom at the same time as

Antoinette Griffin: he believed that the garment bag

claimed by her was the same bag he had previously seen

in the possession of Antoinette Griffin. These factors are

insufficient to establish probable cause that a crime had

been or was being committed by Ms. Jackson.

Whether or not the arrest of Ms. Jackson was valid.

this Court stated in United States v Chadwick, 97 S. Ct.

2476 (1977):

‘Once law enforcement officers have reduced

luggage or other personal property not

immediately associated with the person of the

arrestee to their exclusive control. and there is no

longer any danger that the arrestee might gain

access to the property to seize a weapon or

destroy evidence, a search of that property is no

longer an incident of the arrest.”* /d. at 2485

Antoinette Griffin's garment bag was seized from a sky

cap by Agent Markonni, in the presence of several other

officers, either before or contemporaneous with the arrest

of co-defendant Linda Jackson. The bag was never in the

actual possession of Ms. Jackson and was clearly reduced

to the exclusive custody of Agent Markonni after the

seizure. The government did not claim that Ms. Jackson

attempted to gain access to the bag or that officers

believed the bag contained weapons.

In its panel opinion, the Court of Appeals for the Sixth

Circuit dismissed Petitioners’ contention in a single line:

-

‘‘The Court also properly admitted the contents of the

gold folding bag seized in the baggage claim area.”’

Totally ignoring Chadwick, the panel opinion upheld

the District Court opinion which clearly stated that the

search would be upheld as incident to a valid arrest.

United States v Kaye, 492 F.2d 744 (6th Cir., 1974). upon

which the District Court relied, is inconsistent with the

unambiguous language of a United States Supreme Court

opinion, Chadwick, supra. Consequently, the Sixth

Circuit is now in the position of upholding a search under

an exception to that warrant requirement which is no

longer recognized by the Supreme Court as an exception

under the circumstances of the case at bar.

b) The suitcase and wallet seized from the automobile.

Inside Petitioner's automobile. Agent James Seward

discovered, and immediately searched, an overnight case

and a wallet. Chadwick applies specifically to the search

of luggage or other personal property found inside an

automobile where the automobile and its contents are in

the complete control of the arresting officer. Even if the

search of the automobile is upheld, the search of the

wallet and overnight case was unlawful since no warrant

was obtained. The decision below is contrary to the

principles set forth in United States v Chadwick, supra.

2. THE DECISION BELOW AS TO THE LUGGAGE

SEARCH IS INCONSISTENT WITH THE DECISION

OF THE COURT OF APPEALS FOR THE SEVENTH

CIRCUIT AND CREATES A CONFLICT AMONG

THE CIRCUITS.

A recent decision of the Court of Appeals for the

Seventh Circuit, United States v Berry, slip opinion,

(docket nos. 76-2014, 2037 and 2038) (8/24/77), reversed

and remanded that case to the District Court for further

hearings in light of United States v Chadwick, 97 S. Ct.

2476 (1977). which was decided subsequent to oral

argument. The Seventh Circuit expressed its opinion that

Chadwick altered the law of warrantless searches of items

seized from the arrestee.

No material difference exists between the search of

defendant's attache case in Berry, supra. and the search

of Petitioner's garment bag.

The decisions of the Sixth and Seventh Circuits which

apply the holding of Chadwick, supra, are inconsistent

and create irreconcilable conflict in Fourth Amendment

law.

3. THE DECISION BELOW INCORRECTLY AP-

PLIES PREVIOUS DECISIONS OF THE COURT BY

EXTENDING THE AUTOMOBILE EXCEPTION TO

JUSTIFY A WARRANTLESS SEARCH OF AN AU-

TOMOBILE WHERE THERE WAS NO PROBABLE

CAUSE AND WHERE NO EXIGENT CIRCUM-

STANCES EXISTED.

Once an accused is under arrest and in custody. then a

warrantless search made at another place. not

contemporaneous with the arrest, is not incident {o

arrest. Chambers v. Maroney, 399 US 42 (1970).

The search of Thomas Griffin's automobile cannot be

sustained as incident to his arrest since the District Court

found no probable cause for his arrest.

Further the automobile was moved to an employees’

parking lot and locked; the search did not occur for more

than one half hour after Petitioners’ arrest. The search

was not incident to the arrest of Antoinette Griffin.

Nor was there probable cause to believe that the

automobile contained contraband. except that Agent

Markonni. who suspected Petitioners of transporting

narcotics. allowed Petitioners to enter the automobile

immediately prior to making the arrest. A pretext for an

investigatory search was created here where there was no

independent probable cause to search the automobile.

The decision below unreasonably applied the

automobile exception to warrantless searches in a manner

contrary to previous decisions of the Supreme Court.

10

CONCLUSION

For these reasons. a Writ of Certiorari should be

issued.

Respectfully submitted,

S. Allen Early, Jr. (P 13076) and

Ralph H. Richardson

Attorneys for Petitioners

810 Buhl Building

Detroit. Michigan 48226

(313) 963-6093

Detroit, Michigan

January 28, 1978

APPENDIX A

ORDER DENYING MOTIONS TO SUPPRESS

(In the United States District Court

For the Eastern District of Michigan, Southern Division)

United States of America, Plaintiff, v. Antoinette

Louise Griffin, Thomas Biggs Griffin III, and Linda Rue

Jackson, Defendants. Criminal No. 75-81025.

At a session of said court held in the Federal

Building and U.S. Courthouse, Detroit, Michigan, on

May 20, 1976.

Present: Honorable James P. Churchill, United States

District Judge.

For the reasons set forth in a Memorandum Opinion of

the Court entered on this date;

IT IS ORDERED that the defendants’ motions to

suppress be and hereby are DENIED.

/s/ James P. Churchill

United States District Judge

MEMORANDUM OPINION

(In the United States District Court

For the Eastern District of Michigan, Southern Division)

United States of America. Plaintiff. v. Antoinette

Louise Griffin, Thomas Biggs Griffin Ill, and Linda Rue

Jackson, Defendants. Criminal No. 75-81026.

On July 23. 1975. a seven-count indictment was

returned in this case. In two counts of that indictment, all

three defendants. Antoinette Griffin, Thomas Griffin, and

Linda Jackson. were charged with possessing heroin and

cocaine with intent to distribute.' In the remaining

counts, defendant Thomas Griffin was charged with

possession of heroin and cocaine with intent to distribute,

carrying a firearm during the commission of a felony.’

and being a convicted felon in possession of a firearm.*

All three defendants filed motions for the suppression of

evidence. An evidentiary hearing was conducted on the

motions to suppress, and the Court made certain findings

of fact and law. reserving final decision on the motions

for further study.

' 21 U.S.C. §$841(a) (1); 18 U.S.C. 82.

18 U.S.C. §924(c) (2).

18 U.S.C. §$1202(a) (1).

13

The sequence of events leading to the arrest of the

three defendants and the seizure of the evidence sought

to be suppressed was found on the record to have

occurred as follows. Defendant Antoinette Griffin, in

possession of an airplane ticket, went through the

security gate at Detroit Metropolitan Airport with two

suitcases, which were scanned by the X-ray machine.

The X-ray picture disclosed an ‘‘unidentified mass’’ in

one of the bags. The security guard opened the bag and

identified the mass as an estimated $20,000 in U.S.

currency. She immediately contacted Special Agent Paul

Markonni of the Drug Enforcement Administration, who

was on duty at the airport. Without disclosing his

activities to Mrs. Griffin, Special Agent Markonni

determined that the name on the suitcases was different

from the name under which the ticket had been

purchased, and he noted for future reference the

description of the suitcases and of the woman passenger.

He also alerted his colleagues in California to keep track

of Mrs. Griffin on her arrival there, and he was informed

by a reliable source that after arriving in California, Mrs.

Griffin made immediate contact with people known to be

involved in the narcotics trade.

Subsequently, law enforcement officers in California

lost contact with Mrs. Griffin. Special Agent Markonni

therefore asked to be notified by the airlines if a

14

person traveling under the name of Hood (the name

under which the ticket to California had been purchased)

should return by air to Detroit. He was notified that such

a passenger was on a flight back tu Detroit sometime

after midnight on June 15, 1975. Shortly after receiving

that information, Special Agent Markonni observed Mrs.

Griffin disembark from a Los Angeles flight in Detroit,

Carrying One suitcase. She was met at the gate by

defendant Thomas Griffin. whom she embraced.

Markonni observed her then go into a ladies restroom. At

the same time, he observed defendant Linda Jackson,

who had also been at the gate but who had not met

anyone, enter the ladies restroom. The Griffins then

proceeded together to a lounge where they sat down,

while Linda Jackson entered the baggage claim area.

Markonni recognized a suitcase in the baggage claim area

that was of the same description as the second one that

Mrs. Griffin had taken to California.

The Griffins then proceeded out of the terminal

building with one suitcase, leaving Linda Jackson near

the other bag that Markonni had identified as similar to

Mrs. Griffin's second suitcase. They were observed to

enter an automobile that had been parked near the

terminal and begin to drive away. With the aid of two

Wayne County Sheriff's Department officers. Markonni

then arrested both the Griffins and Linda Jackson and

seized the second suitcase from the possession of a

skycap. The automobile the Griffins were in at the time

of their arrest and both suitcases were subsequently

searched. Narcotics were found in both the suitcase

taken from the skycap and the car. and firearms were

found in the car.

15

On the basis of those findings of fact, this Court

concluded on the record that there was probable cause to

arrest Antoinette Griffin, but that probable cause was

lacking for the arrest of Thomas Griffin. The Court alsv

found that there was a valid basis to arrest Linda

Jackson, and that the seizure of the second suitcase was

proper because there was probable cause to believe it

contained contraband, and the exigencies of the situation

made obtaining a search warrant impractical.

The Court reserved for further consideration the

following three issues: (1) The legality of the use by the

DEA agent of information obtained by the airport

security X-ray procedures; (2) the legality of the search

of the suitcase once it had been seized; and (3) the

suppression of the evidence obtained through the search

of the car.

The Initial Airport Search

The propriety of the security guard’s passing on to the

DEA information obtained through the X-ray machine

was Challenged only by defendant Linda Jackson. Linda

Jackson was not present at the time of that search and

has not been charged with possession of the evidence

obtained as a result of that search. In Brown v. United

States, 411 U.S. 223 (1973), the Supreme Court

enunciated the rule that standing to contest the validity of

a search is not present where the defendants

‘‘(a) were not on the premises at the time of

the contested search and seizure; (b) alleged no

proprietary or possessory interest in the premises;

and (c) were not charged with an offense that

includes, as an essential element of the offense

charged. possession of the seized evidence at the

time of the contested search and seizure.” 411

U.S. at 229.

16

The Court quoted from Alderman v. United States, 394

U.S. 165, 174 (1969), that

‘‘Fourth Amendment rights are personal rights

which, like some other constitutional rights, may

not be vicariously asserted. Simmons v. United

States, 390 U.S. 377 (1968): Jones v. United

States, 362 U.S. 257 (1960).”’

Defendant Jackson thus lacks standing to assert the

illegality of the search of Mrs. Griffin's bag. No objection

to that search has been raised by Mrs. Griffin. Therefore,

the propriety of the initial search and the passing on of

the information thereby obtained by Special Agent

Markonni need not be considered here.* Defendant

Jackson's motion to suppress will be denied.

The Opening of the Suitcase

The case law is uniform in holding that it is proper to

Open containers such as suitcases seized incident to a

valid arrest. United States v. Frick, 490 F.2d 666 (CAS

1973); United States v. Burch, 471 F.2d 1314 (CA6 1973):

United States v. Kaye, 492 F.2d 744 (CA 6 1974); United

States v. Lugo-Baez 412 F.2d 435 (CA8 1969); United

States v. Buckhonon, 505 F.2d 1079 (CA8 1974): United

States v. Mehciz, 437 F.2d 145 (CA9 1971): United States

v. Maynard, 439 F.2d 1086 (CA9 1971); United States v.

Battle, 510 F.2d 776 (CA D.C. 1975). The Sixth and

* By basing the decision on the issue of standing. the Court is not

suggesting that either the observation of the money or the use made of

the information thus obtained was improper.

17

District of Columbia Circuits have held that the fact that

the search is not contemporaneous with the arrest does

not render the search improper, as long as the police

would have had the right to search the suitcase at the

time of the arrest. United States v. Kaye. supra, and

United States v. Battle, supra.

The circumstances under which the search of a suitcase

is proper as incident to an arrest and seizure were set out

by the Sixth Circuit in United States v. Kaye, supra. The

court there held that, under Chimel v. California, 395

U.S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969). where

the suitcase was within the arrestee’s ‘“‘immediate

control’’, meaning the area from within which he or she

might gain possession of a weapon or destructible

evidence, the search would be proper both at the time of

the arrest and subsequently. The Kaye court relied on

United States v. Robinson, 414 U.S. 218 (1973):

“It is the fact of the lawful arrest which

establishes the authority to search, and we hold

that in the case of a lawful custodial arrcst a full

search of the person is not only an exception

to the warrant requirement of the Fourth

Amendment, but is also a ‘reasonable’ search

under that Amendment, 414 U.S. 218, 235, 94 S.

Ct. 467, 477, 38 L.Ed.2d 427 (1973).°° 492 F.2d

744, 746.

Reading those two cases together, the Kaye court

relied for authority for both the seizure and the search of

the suitcase on an exception to the warrant requirement

arising out of the necessity for the arresting officers to

secure weapons and evidence that might be within the

control of the arrestee. This exception to the warrant

requirement is apparently not subject to the same

18

strictures which have troubled other courts in the context

of warrantless searches conducted under other exceptions

to the warrant requirement. For example, the Fifth and

Second Circuits have considered whether the scope

of the so-called *‘exigent circumstances’’ exception is

limited by the nature of the exigent circumstances which

in a particular case create the exception to the seizure of

the article, without automatically extending to a search of

the article seized. The Fifth Circuit, in a line of recent

cases, considered whether exigent circumstances

sufficient to authorize a warrantless seizure of suitcases

can also authorize the warrantless search of the suitcases.

United States v. Garay, 477 F.2d 1306 (CAS 1973);

United States v. Lonabaugh, 494 F.2d 1257 (CAS 1973);

and United States v. Anderson, 500 F.2d 1311 (CAS

1973), all held that where the seizure of the suitcase was

separate in space from but contemporaneous with the

arrest of the defendant. the exigencies permitting the

warrantless seizure would not permit the officers to

conduct a warrantless search, since the officers had

control of the suitcases, and their contents were no

longer subject to any potential action by the defendant.

Subsequent to those cases. the Fifth Circuit held en banc

that where immediate seizure of the bags in order to

prevent the defendant from destroying potential evidence,

the warrantless opening of the bags is also authorized on

the ground that such a search is no greater an intrusion of

the defendant's Fourth Amendment rights than a seizure

followed by the securing of a search warrant from the

magistrate. United Staetes v. Hand, 516 F.2d 472, 476

(CAS 1975). The Garay, Lonabaugh, and Anderson

decisions were distinguished in Hand on the basis that in

those cases the defendants were in custody at the time of

19

the seizure of the suitcases. and the suitcases were in the

secure control of the authorities, whereas in Hand the

defendant was still at large and still had some potential

control over the possessory interest in the bags. The

potential mobility of the bags in Hand influenced the

court to apply authority permitting the search of

automobiles validly seized pursuant to an arrest. also on

the theory that such a procedure creates no greater an

intrusion than seizure pending the securing of a warrant

for the search of the car, citing Chambers v. Maroney,

399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970).

In United States v. Johnson, 467 F.2d 630 (CA2 1972),

the Second Circuit held that in the context of a search for

weapons conducted while the police were in hot

pursuance of the defendant, it was permissible to open a

suitcase for which there was probable cause to believe

that there were guns inside. Again. the court explained

that suitcases were similar to automobiles in terms of

their mobility, and thus the exigent circumstances

extended to the search as well as the seizure of the

article.

The need to find authorization for the warrantless

search once the seizure has been made has not been

recognized by the courts that have considered this

problem, where the initial seizure of the suitcase was, as

in the instant case, incident to an arrest under Chimel v.

California. In this case the suitcase was seized

contemporaneously with the arrest of Linda Jackson, and

it was taken from the area within her physical control.

albeit not from her own hands. On the authority of Kaye.

the search of the suitcase as well as its seizure must be

upheld. The motion to suppress the evidence thus

obtained will therefore be denied.

20

The Search of the Car

Warrantless automobile searches are authorized as

incident to a valid arrest, Chimel v. California, supra, or

where there is probable cause to believe the automobile

contains contraband. Chambers v. Maroney, supra. In

this case both the occupants of the automobile were

arrested, one validly and one invalidly. The car was then

searched. Thomas Griffin, the defendant against whom

the evidence thus obtained is relevant, challenges the

admissibility of the fruits of that search on the basis of

the illegality of his arrest. In its simplest form, the

problem is whether evidence seized pursuant to both an

invalid arrest, and a valid arrest plus probable cause to

believe there was contraband present. is admissible

against the party invalidly arrested.°

The exclusionary rule for evidence illegally seized has

developed as the primary means of implementing the

Fourth Amendment protections against unreasonable

searches and seizures and Fifth Amendment protections

At the outset this case must be distinguished from instances in

which the police attempt to validate an otherwise invalid seizure by

improperly extending the scope of an otherwise valid seizure. There is

no evidence here that the arrest of Antoinette Griffin was made for the

purpose of obtaining the evidence against Thomas Griffin. The police

were mistaken in their assessment of the probable cause present with

regard to Thomas Griffin. but nothing in the record indicates anything

more than misjudgment with respect to him. Once the decision to

arrest both the Griffins had in good faith been made. the search of the

automobile proceeded as a natural consequence of the joint arrest.

21

against self-incrimination. In the ordinary course.

evidence seized pursuant to an invalid arrest is suppressed

as the only workable sanction against the illegality of the

arrest. Two principal interests are cited by the courts

with respect to the exclusionary rule: The deterrence of

improper police conduct; and the safeguarding of judicial

integrity by not permitting the courts to be party to the

use of the fruits of an invasion of constitutional rights.

Terry v. Ohio, 392 U.S. 1 (1968).

Many cases deal with the question of admissibility of

evidence where, with respect to a single defendant, there

is a taint of illegality, but also an independent valid

authorization for the seizure of the evidence. For

example, where a coerced confession provides the initial

lead in the case, its taint with respect to subsequently

discovered evidence can be overcome where the

discovery of the further evidence is through the use of

independent sources rather than through the exploitation

of the primary illegality. Wong Sun v. United States. 371

U.S. 471 (1963). Thus. the fact of an invasion of the

defendant's constitutional rights does not require

exclusion of the evidence where the evidence sought to

be introduced is not the ‘‘fruit of the poisonous tree’’. In

Silverthorne Lumber Co v. United States, 251 U.S. 385

(1920). the seminal case on the ‘‘fruits’’ doctrine. after

noting that:

‘‘The essence of a provision forbidding the

acquisition of evidence in a certain way is that not

merely evidence so acquired shall be used before

the Court but that it shall not be used at all.”* 25]

U.S. at 392;

the Court added:

“Of course this does not mean that the facts

thus obtained become sacred and inaccessible. If

knowledge of them is gained from an independent

source they may be proved like any others, but

the knowledge gained by the Government's own

wrong cannot be used by it in the way proposed.”

Id.

Similarly, where the causal connection between the

illegally obtained evidence and the proposed proof is

sufficiently attenuated, even absent an independent

source the proof has been held admissible under the

doctrine of *‘attenuation”’. Nardone v. United States, 308

U.S. 338 (1939). Again, the invasion of a constitutional

right does not require the exclusionary sanction where

the connection between the constitutional infringement

and the evidence sought to be introduced is sufficiently

indirect.

Two recent decisions further illustrate the principle of

admissibility of evidence obtained via two routes, one of

which was legal, and the other illegal with respect to a

single defendant. In United States v. Boisvert, USAF Ct.

Mil. Rev. 3/2/76, reported at 18 Cr. L. 2571, 3/31/76, an

illegal seizure of the defendant's car keys without

advising him of his rights or permitting him to consult an

attorney was found not to require exclusion of the

evidence of narcotics subsequently seized from the car

because probable cause to search the car arose

independently when a specially trained security dog

alerted the officers to the presence of narcotics in the

car. The court held that by turning over the keys the

defendant had in fact merely facilitated what would have

happened anyway.

In Roberts v. Ternullo. U.S.D.C., E. N.Y... 1/7/76,

reported at 18 Cr.L. 2415, documents which were

23

elsewhere filed as public records were illegally seized. A

motion to suppress was denied because the records

would undoubtedly have been uncovered independently

in the course of the massive investigation being

undertaken.

Po

In our case, rather than having one instance of illegal

police conduct followed by an independent source leading

to the same evidence. we have an illegal police act with

respect to one defendant, concurrent with a legal act with

respect to a second defendant. both of which acts lead to

the discovery of the same body of evidence. At the same

time there is also probable cause. independent of the

presence of the two defendants. to believe that the car

contained contraband.

The element of concurrence of the legal and the illegal

acts is really not the factor which distinguishes this case

from the authority cited above. Rather, it is the fact that

two people are involved that causes the difficulty in those

circumstances. If Thomas Griffin had been arrested alone

in the car, and if no other valid reason to search the car

had existed, then he would have had a clear right to

suppress the evidence thus obtained. Why should the fact

that Antoinette Griffin's Fourth Amendment rights were

not violated by her arrest have any effect on the

vindication via the exclusionary rule of Thomas Griffin's

righis? The converse would not be true, viz. that as to

Antoinette Griffin evidence seized in violation of Thomas

Griffin's rights would be excludable. The Fourth

Amendment creates personal rights that are enforceable

only by the party whose -ights have been violated. Brown

v. United States. supra.

The answer seems to lie in the peculiar nature of the

exclusionary rule. The rule represents not a simple means

of vindicating Fourth Amendment rights by letting the

24

wrongdoer go free because the constable has blundered.

Mapp v. Ohio, 367 U.S. 643, 659 (1961), but a much

more complex balancing of the conflicting public interests

in deterring ilegal police conduct, protecting the integrity

of the courts, and encouraging effective investigation and

apprehension of criminal conduct. In Harrison v. United

States, 392 U.S. 219 (1968), the Supreme Court in

passing noted the way this balancing works in the simpler

context of the exclusion of the fruits of an illegal

confession. The Court noted:

“The exclusion of an illegally procured

confession and of any testimony obtained in its

wake deprives the Government of nothing to

which it has any lawful claim and creates no

impediment to legitimate methods of investigating

and prosecuting crime. On the contrary, the

exclusion of evidence causally linked to the

Government's illegal activity no more than

restores the situation that would have prevailed if

the Government had itself obeyed the law.’’ 392

U.S. 219, n. 10.

Where, as here, the evidence sought to be introduced

would have been available to the government regardless

of the illegality with respect to Thomas Griffin, the

exclusion of the evidence would deprive the government

of evidence to which it does have a lawful claim, and it

would upset the balance of interests adopted by the

Harrison court.

Thomas Griffin's motion to suppress the evidence

seized from the automobile must therefore be denied.

/s/ JAMES P. CHURCHILL

United States District Judge

Dated: May 20, 1976

APPENDIX B

ORDER

(United States Court of Appeals

For the Sixth Circuit)

(Filed November 7. 1977)

United States of America. Plaintiff-Appellee v.

Antoinette Louise Griffin (77-5151). Thomas Biggs

Griffin, II] (77-5152), Defendants- Appellants

Before: Peck and Engel, Circuit Judges and Duncan,

District Judge.*

Thomas Biggs Griffin and Antoinette Louise Griffin

jointly appeal from their convictions by a jury. Both

appellants were found guilty under counts one and two of

the indictment for violating 21 U.S.C. §841(a) (1) and 18

U.S.C. §2. The jury further found Thomas Griffin guilty

of four additional counts involving two violations of 21

U.S.C. §924(c) (2) and 18 U.S.C. §1202(a) (1).

Contrary to the assertions of the appellants before this

court, upon a review of the record, we agree with the

trial court that the officers had probable cause to arrest

Antoinette Griffin. We further agree that the officers

acted reasonably in searching the Continental automobile

and the baggage seized in the airport. even though the

officers did not act pursuant to a warrant. The trial court

consequently did not err in admitting into evidence the

Honorable Robert Duncan. Judge. United States Distnet Court

for the Southern District of Ohio. sitting by designation.

26

Lugar pistol, the contents of both the wallet and the

overnight case, seized in a search of the automobile. The

court also properly admitted the contents of the gold

folding bag seized in the baggage claim area. We find it

unnecessary to decide whether the district court erred in

deciding that the officers lacked probable cause to arrest

the defendant Thomas Griffin, it appearing from the

record that the evidence introduced against him at trial

was lawfully procured incident to the valid arrests of

Antoinette Griffin and Linda Jackson, a codefendant

whom the jury acquitted. The trial court therefore did not

err in overruling the appelianis’ motion to suppress

evidence.

Finally. we reject the appellants’ contention that the

evidence was insufficient to sustain their convictions

because neither appellant was connected with the items

introduced into evidence at trial. Upon a review of the

record, we find that the evidence at trial was sufficient to

sustain the verdicts as to each count and that the

evidence sufficiently connected both appellants to the

items seized by law enforcement officers.

27

More specifically. we find the appellants’ contention

that the facts of this case are controlled by United States

v. Chadwick, 97 S. Ct. 2476 (1977) . to be without merit.

We note that the search of the automobile was made

contemporaneous with the custodial arrests of Antoinette

Griffin and Linda Jackson. unlike the search in

Chadwick. The search in the instant case did not take

place in the relative security of a federal building. as in

Chadwick, but rather occurred outdoors on the premises

of a busy metropolitan airport. Under these

circumstances, where an automobile search is not remote

in time nor place to an arrest, the officers may properly

search the automobile without first obtaining a warrant.

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

Accordingly.

IT IS ORDERED that the judgment of the district

court be and it is hereby affirmed.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN

Clerk

28

APPENDIX C

ORDER

(United States Court of Appeals

for the Sixth Circuit)

United States of America, Plaintiff-Appellee v.

Antoinette L. Griffin and Thomas Biggs Griffin.

Defendants-Appellants.

Before: Peck and Engel. Circuit Judges and Duncan.

District Judge*

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en

banc, the petition for rehearing filed herein by the

defendants-appellants has been referred to the panel

which heard the original appeal. Upon consideration of

said petition, the court concludes that it is without merit.

Accordingly, the petition for rehearing is hereby

denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman, Clerk

Honorable Robert M. Duncan. Judge. United States District

Court for the Southern District of Ohio. sitting by designation.

- ee ee

29

APPENDIX D

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

(Supreme Court of the United States)

(Antoinette L. Griffin, et al., Petitioners. v. United

States)

Upon Consideration of the application of counsel for

petitioner(s).

It Is Ordered that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including February 10, 1978.

/s/ Potter Stewart

Associate Justice of the Supreme

Court of the United States

Dated this 10th

day of January, 1978