Petition — Williams v. United States

a Supreme Court, U S,

FILED

FEB 28 1979

| MICHAB RODAK, JR., CLERK

\

}

i

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

oo. 78°13830

OTIS WILLIAMS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

URAL B. ADAMS, JR.

161 Jefferson

Suite 402

Memphis, Tennessee 38103

<cz

Attorney for Petitioner

OF COUNSEL:

Sammie K. Kennard

Kenny W. Armstrong

629 Poplar Avenue

Memphis, Tennessee 38105

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO .

OTIS WILLIAMS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

URAL B. ADAMS, JR.

161 Jefferson

Suite 402

Memphis, Tennessee 38103

Attorney for Petitioner

OF COUNSEL:

Sammie K. Kennard

Kenny W. Armstrong

629 Poplar Avenue

Memphis, Tennessee 38105

SUBJECT INDEX

Pages

TABLE OF AUTHORITIES.....-.-+eeeeeeeeii

OPINION BELOW......ccccccccccccccseeed

JURISDICTION... cc cccccccccccccccccccee

QUESTIONS PRESENTED FOR REVIEW.....2,3

CONSTITUTIONAL PROVISION INVOLVED....3

STATEMENT OF THE CASE......--3,4,5,6,7

REASONS FOR GRANTING THE WRIT ....-+----

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TABLE OF AUTHORITIES IN THE

CASES Pages SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Hester v. United States, 265 U.S. 57

Ll) reer ry rye tT eee eT ree NO.

= 2

Wattenburg v. United States, F.2d 853

(9th Cir.» po eT ere TT ee TTS

a

United States v. Holmes, 521 F.2d 359 OTIS WILLIAMS,

(5th CSf es tay | 2 ra ee

| Petitioner.

UNITED STATES CONSTITUTION ‘iene

Fourth Ss és kb one 60 6084490002 UNITED STATES OF AMERICA,

Respondent.

UNITED STATES STATUTES

28 U.S.C. §1254(1) ..ccccccccccccccceed

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Otis Williams respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals

for the Fifth Circuit entered in the

above case.

/

J

;

OPINION BELOW

The opinion of the United States

Court of Appeals for the Fifth Circuit

was rendered on October 3, 1978 and is

reported at 581 F.2d 45l.

JURISDICTION

The jurisdiction of this court is

invoked under Title 28, United States

Code, Section 1254(1). Although not

timely filed, Petitioner request that his

petition for writ of certiorari be enter-

tained and that the thirty (30) day require-

ment of Rule 22(2) be waived. Petitioner's

failure to file his petition timely was

due to his financial inability to retain

legal counsel until after the thirty (30)

day period had expired.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Appeals

correctly defined "curtilage" in limiting

it to the walls of the remote outbuildings?

2. Whether the intrusion of the

ATF agents upon the premises constituted

a search within the meaning of the

Fourth Amendment? —

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Consti-

tution of the United States is involved,

whish is as follows:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

warrants 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

Several days prior to March 9, 1977,

ATF agent Harry Braxton received a tip

from a confidential source indicating

that a still was being operated on

property belonging to a Hiram Crutcher,

the Petitioner's co-Defendant. Acting

upon this information, Agent Braxton and

another ATF agent, Charles Moseley, drove

by the Crutcher farm on the morning of

March 9, 1977. Unable to observe any-

thing from the public road they were

traveling on, the agents returned to the

Crutcher farm that night around 8:00 P.M.,

parked their car at a nearby church, ane

walked through a wooded area toward the

two sheds located behind the Crutcher

residence. [The express purpose of this

trip was to obtain evidence to corroborate

the information they had received from

their informer.] On reaching the edge

of the wooded area and still not being

able to detect any evidence of a still on

the property, agents Braxton and Moseley

proceeded to a position closer to the

two (2) sheds located behind the Crutcher

residence. At this point, some thirty

(30) feet from the sheds, they detected

the odor of mash, but were unable to

determine the source of the odor. The

2 An a NI as

agents then walked toward the rear wall

of the larger shed behind the Crutcher

residence and upon reaching a point which

they described as being within touching

distance of the shed, they determined

that this shed was the source of the

mash odor.

Using the information gleaned from

this entry onto the Crutcher farm, on

March 11, 1977 agent Moseley prepared

an affidavit and procured a search

warrant for the Crutcher dwelling and

sheds. When the warrant was executed,

the Petitioner and his co-Defendant,

Hiram Crutcher, were arrested on the

premises. At the time of the arrest,

Petitioner was carrying several one

gallon jugs of moonshine whiskey. The

Petitioner and Hiram Crutcher were later

indicted on charges of possessing and

operating an unregistered still and of

possessing moonshine whiskey.

Prior to trial, Peititoner and his co-

Defendant filed a Motion to Suppress

contending that the Government's evidence

was obtained as a result of the illegal

search of the Crutcher farm on the 9th ‘

of March. Following an evidentiary hearing,

the trial court denied the Motion to

Suppress. During the course of trial,

the Petitioner renewed his Motion to

Suppress and it was again denied by the

trial court. The trial resulted in the

Petitioner being convicted of possessing

and operating an unregistered still and

of possessing five (5) gallons of moon-

shine whiskey. Petitioner appealed his

conviction to the United States Court

of Appeals for the Fifth Circuit, arguing, | 4

as he had below, that the still was

located as a result of an illegal seach

conducted by ATF agents.

On appeal, the Fifth Circuit

affirmed the trial court decision, holding :

Ca ee .

that while the shed containing the still

was within the curtilage of the Crutcher

residence,’ the agents did not intrude

upon the curtilage but merely detected

the odor of mash while standing outside

the curtilage. The Fifth Circuit further

held that - as to outbuildings - the outer

limits of the curtilage are defined by

the walls of the remote outbuildings.

Petitioner disagrees with this very

narrow interpretation of curtilage and

argues, in this petition, that the agents

were within the curtilage of the residence

when they discovered evidence pointing

to the shed as the location of the still.

REASONS FOR GRANTING THE WRIT

The question presented by the

Petitioner is what is an appropriate test

for determining whether an intrusion in

an area adjacent to a house or dwelling

is a constitutionally forbidden search.

Prior case law has analyzed this pro-

blem by making a distinction between the

curtilage - that zone including the

primary dwelling and structures appur-

tenant to it protected from unreasonable

governmental intrusion - and open fields.

See Hester v. United States, 1925, 265

U.S. 57, 44 S.Ct 445, 68 L.Ed, 898. _

But what area does the curtilage

include? Does Fourth Amendment protection

against unreasonable governmental intru-

sion cease at the walls of the most remote

outbuilding in the curtilage as was

determined by the Court below? Or does

the curtilage include a reasonable zone

beyond the mest remote building? Or

should the curtilage concept which

defines guarantees in terms of a speci-

fied geographical area be abandoned for

a test based on a reasonable expectation

of privacy, with geographical area only

one of many factors to be considered in

determining what is reasonable. See

Michigan Law Review 154 (1977) and

Wattenburg v. United States, 388 F.2d

853. (9th Cir, 1968).

Absence of a standard has resulted

in conflicting holdings in similar cases

in the Fifth Circuit. In United States

v. Holmes, 521 F.2d 859 (5th Cir:, 1975),

for example, agents trespassed on the

Defendant's property solely to secure

evidence of illegal activity. Defendant's

dwelling compound included a house and

several sheds in close proximity to the

main house. Shielded by the cover of

woods and the sheds within the curtilage,

the agents were able to get close enough

to one of the sheds to see burlap bags

of the kind used to bag marijuana and

were able to detect the odor of marijuana.

The Court held that the action of the

agents constituted a search and seizure.

The Fifth Circuit conceded in its

opinion in this case that the Holmes

was directly on point, but refused to

give it any precedential value because

the Court was equally divided on the

curtilage question.

If the ruling of the Court below

stands, the fundamental guarantees of

the Fourth Amendment regarding an indi-

vidual's right of privacy in and about

his home and other non-public places

will be seriously eroded. To be sure,

the ramifications of the Court's narrow

definition of curtilage are awesome.

Are law enforcement officers to be allowed

to trespass without probable cause on

private property in clandestine operations

and secret themselves behind houses and

outbuildings in search of evidence of

criminal activity? Are they to be allowed

to peek in windows, snoop around out-

buildings, and smell around pig sheds

secure in the knowledge that their actions

are not prohibited so long as no part

of their anatomy touches or crosses the

line created by the walls of the most

remote outbuildings?

It is significant that the Court

did touch on the expectation of privacy

question briefly. However, the Court

centered its discussion on outward

manfifestations of the desire for or

expectation of privacy. In attempting

to define the area of the curtilage, the

Court below considered and then rejected

using a hog fence some distance behind

the shed to determine the constitution-

ally protected area. The Court reasoned

that the fence was in such a state of

disrepair that no one could have con-

sidered it a privacy fence.

Actually from a realistic view-

point, most fences in rural settings

are not privacy fences. Their purpose

is to keep livestock in rather than to

serve as a warning to possible intruders.

But even absent physical signs such as

privacy fences, a reasonable expectation

of privacy may be found based on the

facts of a particular case.

Petitioner realizes that the rights

of individuals against governmental

intrusion must be balanced against the

need for responsible law enforcement.

However, adherence to the narrow defini-

tion of curtilage announced by the Court

below ameunts to a serious infringement

of individual rights of privacy afforded

by the Fourth Amendment.

CONCLUSION

For the foregoing reasons, this

Petition for a writ of certiorari should

be granted in order to resolve the

important Fourth Amendment issues raised

by this case and in order to protect the

Fourth Amendment rights of Petitioner

which were violated by the government

on the occasion in question.

Respectfully submitted,

URAL B. ADAMS, JR.

Attorney for Petitioner

161 Jefferson, Suite 402

Memphis, TN 38103

(901) 525-5771

OF COUNSEL:

SAMMIE K. KENNARD

KENNY W. ARMSTRONG

629 Poplar Avenue

Memphis, Tennessee 38105

(901) 525-0221

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

OTIS WILLIAMS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CERTIFICATE OF SERVICE

Sop Staind,

Oe in Se

I hereby certify that on this

wae day of February, 1979, three

copies of this Petition for Writ of

Certiorari were mailed, postage prepaid,

to the Solicitor General, Department of

Justice, Washington, D.C. 20530. I

further certify that all parties required

to be served have bgén served.

Attorney for ga

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

OTIS WILLIAMS, Defendant-Appellant.

No. 77-5538.

United States Court of Appeals

Fifth Circuit.

Oct. 3, 1978.

Defendant was convicted in the

United States District Court for the

Northern District of Mississippi,

William C. Keady, J., of possessing and

operating an unregistered still and of

possessing five gallons of moonshine

whiskey. Defendant appealed. The Court

of Appeals, Gee, Circuit Judge, held that:

(1) as to outbuildings that are not

encompassed by a fence that also includes

a house, or perhaps a privacy or exclusion-

ary one around them, outer limits of

curtilage, for Fourth Amendment purposes,

ities stern a DP arenas sot

are defined by walls of remote outbuildings,

and (2) where agents did not intrude upon

the curtilage but merely detected the odor

of mash while standing outside the curti-

lage, their furtive trespass, though

carried to the very verge of proprierty,

did not render the search warrant invalid.

1. Searches and Seizures

Expectations test has done away

with outmoded property concepts no longer

satisfactory for Fourth Amendment analysis,

but distinction between open fields and

curtilage is still helpful in determining

existence or not of reasonable privacy

expectation. U.S.C.A. Const. Amend. 4.

2. Searches and Seizures

Shed which was domestic building

constituting integral part of group of

structures making up farm home, where

shed was approximately 50 yards from house

and was not separated from house by any

fence, outbuilding or great expanse of

or perhaps a privacy or exclusionary

open land, was within curtilage of

one around them, outer limits of curti-

dwelling, for purposes of Fourth Amend-

lage, for Fourth Amendment purposes, are

ment protection against search. U.S.C.A. }

defined by walls of remote outbuildings.

Const. Amend. 4.

U.S.C.A. Const. Amend. 4.

3. Searches and Seizures

5. Searches and Seizures

Where fence was not privacy fence

Where agents did not intrude upon

or exclusionary one but had been meant

curtilage but merely detected odor of

to do no more than keep hogs in, and

mash while standing outside curtilage,

where, by virtue of its condition when

their furtive trespass, though carried

agents stepped over it, it offered little

to very verge of propriety, did not render

if any, impediment either to vision or

search warrant invalid. U.S.C.A. Const.

to ingress, and where fence did not then

Amend. 4.

encompass house but was mere appurtenance

Appeal from the United States

of shed, which agents did not actually

District Court for the Northern District

enter, outer limits of curtilage, for

of Mississippi.

Fourth Amendment purposes, were defined

Before COLEMAN, GEE and HILL,

by walls of the remote outbuildings and

Circuit Judges.

there was no intrusion upon curtilage so

GEE, Circuit Judge:

defined. U.S.C.A. Const. Amend. 4.

Appellant Williams was convicted of

4. Searches and Seizures

possessing and operating an unregistered

As to outbuildings that are not

still and of possessing five gallons of

encompassed by fence that also includes

i moonshine whiskey. He appeals on fourth

contending that the still was located

as a result of an illegal search conducted

by federal agents from the Bureau of

Alcohol, Tobacco and Firearms (ATF). We

disagree and affirm the convictions.

Federal Agent Harry Braxton

received a tip from an undisclosed source

that a still was being operated on Hyrun

Crutcher's property in Marshall County,

Mississippi.1! Acting on this information

Braxton and one other ATF agent, Charles

Mosley, drove by the suspected location

of the still but could see nothing from

the public highway. Later the same

evening the agents returned. This time

they left their car at a nearby church

1. The government admits that this tip

did not constitute probable cause for a

search of Crutcher's land.

and stole southward through a wooded area

toward the outbuildings of the Crutcher

farmstead situated some fifty yards north

of and behind the Crutcher residence,

which faced south. Still unable to detect

any evidence of a still, they crawled

across a clearing and took cover behind

an overturned truck adjacent to the north-

east corner of a dilapidated fence. This

fence formed a square hogpen by connecting

with two sheds at its northwest and south-

west corners. From their position behind

the wrecked truck, the agents detected

the ordor of moonshine liquor and ferment-

ed mash coming from the direction of the

hogpen. Mosley then crept down the east

side of the fence until he could see the

Open area of about fifty yards between

the pen and two houses, one of which

belonged to Crutcher's daughter. Here

he noted a garden hose running from a

faucet in Crutcher's yard toward the

larger of the two sheds, which stood

at the southwest corner of the fence.

He could not determine whether the hose

actually entered the shed. He then

retraced his steps, and both agents

crossed over the fence at a place where

it had been walked down alomst to the

ground. As they approached the rear wall

of the larger shed, the increasing

strength of the tell-tale odors identi-

fied it as their source.

Armed with the information obtained

in this investigation, the agents prepared

an affidavit and procured a search warrant

' for Crutcher's property. When they

executed the warrant, both Crutcher and

appellant Williams were arrested on the

premises, the latter carrying three one-

gallon jugs of moonshine. Crutcher later

pleaded guilty, while Williams unsuccess-

fully maintained his innocence. 2

[1] Since Katz v. United States,

389 U.S. 347, 88 S.Ct., 507, 19 L.Ed. 2d

576 (1967), the applicability of the

fourth amendment has been said to depend

upon the existence of a "reasonable

expectation of privacy." 389 U.S. at

360, S.Ct. 507 (Harlan, J. concurring).

Although the expectation test had done

away with outmoded property concepts no

longer satisfactory for fourth amend-

ment analysis, see the Supreme Court,

1967 Term, 82 Harv.L.Rev. 63, 189 (1968),

the distinction between open fields and

curtilage is still helpful in determining

the existence or not of reasonable

2. Although the still shed rested on

property owned by neither Williams nor

Crutcher, but by Crtucher's daughter, the

government unaccountably concedes standing,

and that issue is not before us.

privacy expectations. See generally

Note, 76 Mich.L.Rev. 154, 177-79 (1977).

We have held that open fields surrounding

a house are not protected under the

fourth amendment and that a search of

them need not be accompanied by a warrant

issued upon probable cause. See, e.g.,

United States v. Brown, 473 F.2d 952,

954, (5th Cir. 1973); Atwell v. United

States, 243 F.2d 281, 283 (5th Cir.

1957). As to curtilage, however, the

"home [and] its immediate appurtenance,"

Hodges v. United States, 243 F.2d at

283, we have held that warrantless

searches are improper absent exigent

circumstances, at least when the investi-

gating officers have intruded upon the

curtilage for the purpose of conducting

a search for criminal activity. See

United States v. Davis, 423 F.2d 974,

976-77 (5th Cir.), cert. denied, 400

U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69

(1970). Cf. United States v. Knight,

451 F.2d 275, 278-79 (5th Cir. 1971),

cert. denied sub nom. Grubbs v. United

States, 405 U.S. 965, 92 S.Ct. 1171, 31

L.Ed.2d 240 (1972) (upholding the ad-

mission of evidence discovered in "plain

view" while officers were legitimately

within the curtilage for another purpose).

[2] Our prior case law forces us

to conclude that the still shed in this

case was within the curtilage of the

dwelling occupied by Hyrum Crutcher's

daughter. While this shed was approxi-

mately fifty yards from the house, we

held in Walker v. United States, 225 F.

2d 447 (5th Cir. 1955), that curtilage

included a barn seventy to eighty yards

from the principal dwelling. More

important, as in Walker, the Crutcher

shed was "a domestic building constitu-

ting an integral part of that group of

structures making up the farm home,"

225 F.2d at 449, because it was not

separated from the house by any fence,

outbuilding, or great expanse of open

land. See Hodges v. United State, 243

F.2d at 283.

[3] The fact that the shed itself

is within the curtilage is not necessari-

ly dispositive, however, since the agents

never actually entered the shed. This

circumstance forces us to attempt to

draw a rational line between the curti-

lage and the "open fields." Clearly,

if the agents had gone no farther than

the wrecked truck we would have upheld

the search under the “open fields”

doctrine, since the wreck was no part

of the farmstead and merely defined a

point in those fields. Nor do we think

that the dilapidated hogpen fence, stepped

over by the agents on their foray to the

back of the wall of the shed, defines

the curtilage. In the past we have not

considered the crossing of a fence

significant unless the fenced area

included the house. See, e.g., Brook

v. United States, 243 F.2d 281 (5th Cir.

1957). Here the broken-down fence the

agents crossed did not encompass the

house but was a mere appurtenance of the

shed.

The fence in question here was not

a privacy fence or an exclusionary one;

in its best days, it was meant to do no

more than keep the hogs in, not to keep

anyone out. In its condition when the

agents stepped over it, it offered

little, if any, impediment either to

vision or to ingress. In view of these

considerations, we think that the fence

was not such as to create either any

reasonable expectation of added privacy

or to either join the still shed to or

separate it from the residences. We

therefore conclude that, whatever minor

practical significance it may have

retained for the hogs, it has no legal

significance for us.

In legal contemplation, therefore,

the case is to be viewed as though the

agents had merely approached the back

wall of an extreme outbuilding across

open fields. Our prior case law affords

us no guidance in determining the extent

of the curtilage beyond the most remote

building in the curtilage in the absence

of a fence that encompasses the house.

United States v. Holmes, 521 F.2d 859,

869 (5th Cir. 1976), aff'd by an equally

divided court, 537 F.2d 227 (5th Cir.

1976) (en banc), seems squarely on point,

but it is not binding on this issue.

Although the majority of the court en

banc purported to adopt the panel's

Giscussion entitled "The Search of the

Shed," the panel's holding has no prece-

dential value because the court was

equally divided on this issue. Neither

is United States v. Davis, supra, appli-

cable, because the agents in this case

were prowling around an outbuilding,

not a house.

[4] Three possible ways of defining

the curtilage suggest themselves:

drawing the line an arbitrary distance

from the most remote outbuilding in the

curtilage, holding that the curtilage

includes a “reasonable zone" beyond the

outer limits of the extreme outbuildings

of the curtilage define the outer limits

of the curtilage. Rejecting an arbitrary

distance as being irrational and a

“reasonable zone" as being too vague for

guidance, we hold that, as to outbuildings

that are not encompassed by a fence that

also includes the house, or perhaps a

privacy or exclusionary one around them,

the outer limits of the curtilage are

defined by the walls of the remote out-

buildings. Certainly such buildings

give an added expectation of privacy

for their contents, but we see none as

to the area outside and beyond them.

[5] Because the agents in this

case did not intrude upon the curtilage

so defined but merely detected the odor

of mash while standing outside the curti-

lage, their furtive trespass, though

carried to the very verge of proprierty,

does not render the search warrant

invalid. Hester v. United States, 265

U.S. 57, 44 S.Ct. 445, 68 L.ED 898

(1924); Fulbright v. United States, 392

F.2d 432 (10th Cir.) cert. denied, 393

U.S. 830, 89 S.Ct. 97, 21 L.Ed. 101

(1968).

Accordingly, the judgment below is

AFFIRMED.