Petition — Jones v. United States

Supreme Court, U. &,

FILED ‘|

i

| SEP 5 i719 |

MICHARL RODAK, JR. CLERK

creme

A et Ee eee eae eee ase CREAT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 279-373

DONALD JONES, Petitioner,

versus

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

ROBYN GREENE, ESQUIRE

MARC COOPER, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

NEAL R. SONNETT, ESQUIRE

Greater Miami Federal Building

Suite 500, 200 S.E. First Street

Miami, Florida 33131

Counsel for Petitioner

September 4, 1979

Page

EE Le l

a 2

ee ee 2

Statutory provisions involved ...............00005. 2

Statement of the case and facts ................... 3

Reasons for granting the writ .............0.00c005. 9

1. The Decision Below Conflicts With This

bo

INDEX

Court’s Decision In Remmer v. United

States, 347 U.S. 227 (1954), appeal after re-

mand, 350 U.S. 377 (1956) And With The

Court Of Appeals Decision In Marshall v.

United States, 436 F.2d 155 (D.C.Cir.

nn i abacnccccescces

The Fifth Circuit Incorrectly Held That

This Court’s Decisions In Michigan v.

Tyler, 436 U.S. 499 (1978) And Mincey v.

Arizona, 437 U.S. 385 (1978) Are Not

elise s cc cccccccccccces

Se. t

CITATIONS

CASES:

Almeida-Sanchez v. United States,

Ee 5s TE PONG hee es 15, 16,

18, 20

Burnside v. Eastern Airlines, Inc.,

919: F'.2d 1127 (Sth Cir. 1975) .................. 14

Chimel v. California,

Ne SA TP oi bs Cav dcnenltncndecs. 17, 19, 20

Edwards v. Cook,

066 F.2d 960 (5th Cir. 1978) ................... 14

Marshall v. United States,

436 F.2d 155 (D.C.Cir. ot) 9, 12, 13, 15

Michigan v. Tyler,

436 U.S. 499 (1978) ................0005 ee, 2, 8, 15,

16, 17, 20

Mincey v. Arizona,

MOS AIT POND Si vnhiicodcacdewckcdkte 2, 8, 15,

Remmer v. United States,

347 U.S. 227 (1954), appeal after

remand 350 U.S. 377 (1956) .............. 9, 10, 11,

Rogers v. United States,

WES SG, DTS obi. vgn ds ook vcs enki cs l4

CITATIONS (Continued)

CASES: Page

Terry v. Ohio,

rs CRI oid va Oe eG ses eck awl 18, 19, 20

United States v. Brignoni-Ponce,

le et EEE 5 aise oe Cae Uy dea wcw en 18, 19

United States v. Green,

474 F.2d 1385 (5th Cir. 1973) .................. 7,8

United States v. Herndon,

390 F.Supp. 1017 (S.D. Fla. 1975) ............. 1,6

United States v. Martinez,

526 F.2d 954 (5th Cir. 1976) ..........cccccucce 18

United States v. Ortiz,

ee a a NN I ss wns nadia ncdavabiver 18, 19

United States v. Peltier,

EGR EES) 7). a a ane a 15, 18, 20

United States v. Shelton,

088 F.2d 1242 (5th Cir. 1978) .................. 13

United States v. United States Gypsum Company,

as ME I ao ok civic owas keene caves 14

STATUTES AND RULES:

PE iis ee circ tv anew ocsacetvcokarevns Z

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DONALD JONES, Petitioner,

versus

UNITED STATES OF AMERICA. Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner Donald Jones respectfully prays that

a writ of certiorari issue to review the judgment, opinion

and order on rehearing of the United States Court of Ap-

peals for the Fifth Circuit entered in this proceeding on

June 20, 1979 and August 6, 1979.

OPINION BELOW

The opinion and order denying rehearing in the

Court of Appeals, reported at 597 F.2d 485, appear in the

appendix to this brief. The District Court rendered a

written opinion on the search and seizure issue. United

States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on June 20, 1979. A timely petition

for rehearing and timely petition for rehearing en banc

were denied without opinion on August 6, 1979. This

petition for certiorari was filed within 30 days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether a defendant’s motion for new trial on

tne ground of juror misconduct should be denied,

notwithstanding the rule that such misconduct. is

presumptively prejudicial, because the defendant failed

to allege and prove that he acted with due diligence in

asserting the misconduct?

2. Whether this Court’s decisions in Michigan v.

Tyler, 436 U.S. 499 (1978) and Mincey v. Arizona, 437

U.S. 385 (1978) are retroactive?

STATUTORY PROVISIONS INVOLVED

Fed.R.Crim.P. 33. NEW TRIAL

The court on motion of a defendant may

grant a new trial to him if required in the in-

terest of justice. If trial was by the court

without a jury the court on motion of a defen-

dant for a new trial may vacate the judgment if

entered, take additional testimony and direct

the entry of a new judgment. A motion for a

new trial based on the ground of newly dis-

covered evidence may be made only before or

within two years after final judgment, but if an

appeal is pending the court may grant the mo-

tion only on remand of the case. A motion for a

new trial based on any other grounds shall be

made within seven days after verdict or finding

of guilty or within such further time as the

court may fix during the seven-day period.

STATEMENT OF THE CASE AND FACTS

Donald Jones was convicted by a jury of multiple

offenses relating to the operation of a whiskey distillery.

Three days after the verdict, one of the jurors contacted

the trial judge and told him that she had been ap-

proached by petitioner’s wife and a ‘‘a huge black man.”’

(R. 197).! The court ordered the U.S. Attorney and an

Alcohol, Tobacco and Firearms agent to interview all

jurors to determine whether they had been similarly ap-

proached. (R. 198).

While the investigation was pending, petitioner

moved for leave to interview the jurors. (R. 198). The

trial court deferred ruling on the motion until the

government completed its investigation. (R. 209).

Although the government’s investigation was

motivated by evidence that one or more of.the jurors had

been approached after the verdict, that investigation

uncovered substantial evidence that someone had at-

tempted to bribe one of the jurors during the trial. (R.

“*R” refers to the record on appeal in the United States Court

of Appeals for the Fifth Circuit. “SR” refers to the supplemental

record in that court.

ad

218). It also established that at least one other juror was

informed of the attempted bribe during the trial. (R.

219). The court set an immediate hearing “‘to ascertain

whether jurors were improperly contacted, either during

or immediately after the trial.” (R. 213).

A hearing was held at which the jurors testified un-

der oath. (SR. 1-55). The evidence was uncontradicted.

It showed that someone had approached one of the

jurors on more than one occasion during the trial and of-

fered her a substantial sum of money to vote “not

guilty” for petitioner. It showed that the contacted juror

spoke with another juror on more than one occasion dur-

ing the trial and infurmed the second juror of the at-

tempted bribe. There was no evidence that petitioner

Rnew of, or had anything to do with, the attempted

bribe.

Notwithstanding uncontradicted evidence of a

bribe attempt, the trial court denied petitioner’s motion

for new trial. The United States Court of Appeals for the

Fifth Circuit affirmed. 597 F.2d 485 (5th Cir. 1979). It

recognized the rule of ‘presumptive prejudice’’

previously established by this Court:

It is well established law that an improper com-

munication such as a bribe offer to a juror dur-

ing the trial raises a presumption of prejudice

and that a new trial must be ordered unless the

government is able to bear its heavy burden of

proving harmlessness. Remmer v. United

States, 347 U.S. 227, 74 S.Ct. 450, 98 L. Ed.

654 appeal after remand, 350 U.S. 377, 76

S.Ct. 425, 100 L.Ed. 435 (1956).

Id. at 487. The court refused to apply the rule, however,

because petitioner did not prove that he acted with due

diligence to discover the bribe attempt prior to the

verdict:

The [petitioner] had the burden of proving that

this evidence was in fact newly discovered and

that his failure to discover it prior to verdict

was not due to his lack of diligence.

* * *

It is true that the evidence does not affir-

matively establish the [petitioner’s] involve-

ment in the bribe offer. However, our decision

is grounded on the total lack of evidence dis-

proving such involvement or knowledge.

* * *

In this case [petitioner] presented no evidence

whatever on the issues of his lack of knowledge

or his due diligence. . . . All that [petitioner]

has ever stated is that no evidence shows that

[petitioner] was “connected with” the bribe of-

fer. Thus [petitioner] never satisfied his burden

of proof as movant and the Remmer

presumption does not come into play.

Id. at 488, 489, n.4.

The government never asserted in the trial court or

on appeal that petitioner’s motion for new trial should

be denied because petitioner failed to show that he acted

with due diligence in discovering the bribe attempt. The

point was simply never an issue at the trial court’s

evidentiary hearing. On rehearing, petitioner moved the

Fifth Circuit to remand the case to the trial court to af-

ford petitioner an opportunity to prove that he acted

with due diligence.2 The Fifth Circuit denied the

motion.

Petitioner had also filed a pretrial motion to sup-

press evidence seized on the premises. The facts are ac-

curately detailed in the trial court’s opinion. United

States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

The search and seizure began when state officers

received an anonymous phone call reporting a shooting

on the premises. They arrived at the farm and searched

the house and barn for anyone involved in or injured by

the shooting. Their search was cursory. They found

nothing in the house. They saw an apparatus in the barn

which they could not identify. They secured both the

house and barn. |

They called another state officer who arrived and

searched the barn again. He identified the apparatus in

the barn as a still. He summoned federal agents.

The federal agents performed a comprehensive

search of the house and barn. They searched the entire

house and inspected the contents of drawers and closets.

They seized numerous items which were the subject of

the motion to suppress.

The officers admitted that the area was secure after

the initial search for victims of the shooting. Both the

‘Petitioner attached to the motion his affidavit showing due

diligence.

second state officer and the federal agents admitted that

they had ample time and opportunity to obtain a

warrant. But they did not obtain one. The trial court

specifically rejected the government’s argument

that there was insufficient time for the ATF

agents to obtain a warrant. In fact the evidence

established that the ATF agents were called by

the county officers at about 9:00 P.M., and that

the magistrate could be reached until about

11:00 P.M. and was located only fifteen or

twenty miles away. Furthermore, Federal

Agent Harmon testified that the stills each

weighed about 2800 pounds, and that he was

not afraid that someone would walk away with

a still. As for the smaller items in the house, the

county police had surrounded the area.

Therefore, no emergency existed concerning

the speed with which the federal agents arrived

on the scene.

390 F.Supp. it 1020-21. The trial court nevertheless held

that the federal search was valid. It held that any right

of privacy had been eliminated by the previous state

search:

The rationale which justified the federal search

is that the subsequent intrusion does not

significantly increase a pre-existing legitimate

interference with a protected interest.

390 F.Supp. at 1021. The fourth amendment was

designed to prevent unauthorized invasions of privacy.

Based upon United States v. Green, 474 F.2d 1385 (5th

Cir. 1973), the trial court reasoned that

~

once that privacy is lawfully invaded, a subse-

quent search of the area already searched con-

stitutes no additional invasion of privacy and

therefore no violation of the Fourth Amend-

ment.

390 F.Supp. at 1021. It concluded that the federal search

without a warrant was proper because

the federal authorities entered the premises

pursuant to a call by the local authorities, and

the search conducted by the federal agents was

directly related to the objects discovered by the

county officers.

390 F.Supp. at 1022.

The trial court’s decision was entered before this

Court’s recent decisions in Michigan v. Tyler, 436 U.S.

385 (1978) and Mincey v. Arizona, 437 U.S. 385 (1978),

which specifically reject the trial court’s rationale. The

Fifth Circuit refused to consider petitioner’s claim that

the trial court’s decision was contrary to Tyler and

Mincey. It concluded that Tyler and Mincey should not

be applied retroactively. Instead, the ‘“‘prevailing law”’

of the circuit, as stated in United States v. Green, 474

F.2d 1385 (5th Cir. 1973), should control.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With This

Court’s Decision In Remmer v. United

States, 347 U.S. 227 (1954), appeal after re-

mand, 350 U.S. 377 (1956) And With The

Court Of Appeals Decision In Marshall v.

United States, 436 F.2d 155 (D.C.Cir.

1971).

In Remmer v. United States, 347 U.S. 227 (1954),

appeal after remand, 350 U.S. 377 (1956), this Court

recognized the fundamental importance of a fair and

impartial jury when it concluded that evidence of jury

tampering raises a “presumption of prejudice’ which

entitles the defendant to a new trial unless overcome by

the government’s affirmative proof of harmlessness.

The presumption is not conclusive, but the

burden rests heavily upon the government to

establish, after notice to and hearing of the

defendant, that such contact with the juror was

harmless to the defendant.

347 U.S. at 229. The Fifth Circuit recognized this

presumption and the burden it places on the govern-

ment, 597 F.2d at 487, but nevertheless proceeded to

emasculate it by creating a “due diligence”’ requirement

which shifted the burden of proof to the defendant.

The Fifth Circuit’s newly created rule has a striking

effect when viewed against the facts of this case. Once

the government’s investigation showed evidence of juror

misconduct, the trial court ordered an evidentiary hear-

ing ‘‘to ascertain whether jurors were improperly contac-

ted.”’ (R. 213). The hearing which followed established

precisely that. A juror had been bribed and at least one

other juror had been aware of the bribe. There was no

evidence that petitioner knew about the bribe or was in-

volved in it. Neither the trial court nor the government

at any time suggested that petitioner was required to

prove ‘due diligence’’ at this hearing.

Application of Remmer mandated that petitioner

was entitled to a new trial unless the government could

prove that the bribe attempt was harmless. In fact,

harmlessness was the only argument made by the

government on appeal. But the Fifth Circuit never

reached that issue. Instead, it concluded that petitioner

had failed to meet the burden of proving ‘‘due

diligence,” a burden which was never placed on him

before. The Fifth Circuit concluded that the absence of

such evidence meant that the presumption of prejudice

never arose. Under Remmer, it should have meant that

the presumption of prejudice was never rebutted.

In Remmer, this Court held that the defendant was

entitled to a new trial where someone approached a juror

during trial and indirectly suggested the possibility of a

bribe. When the defendant first filed his motion, the

trial court denied it without holding an evidentiary

hearing. The court of appeals affirmed on the ground

that the trial court did not abuse its discretion. This

Court reversed. It held that the improper contact was

presumptively prejudicial. The defendant was entitled

to a new trial unless the government could overcome the

presumption. 347 U.S. at 229. It remanded the case to

the trial court for an evidentiary hearing on the pre-

judice issue.

10

On remand, the trial court held that there was no

prejudice. This Court again reversed. It concluded that

there was no evidence to overcome the presumption of

prejudice. 350 U.S. at 381. This Court held that the

defendant was entitled to a new trial.

Remmer mandated reversal of this case for a new

trial. Yet the Fifth Circuit circumvented Remmer and

the burden of proof it imposed on the government. It

viewed the appeal as one from a motion for new trial

based on newly discovered evidence, although petitioner

appealed the final judgment.

The Fifth Circuit held that petitioner had the bur-

den of proving that the evidence of jury tampering was

newly discovered and that failure to discover it prior to

verdict was not due to his lack of diligence. 597 F.2d at

488-89. Yet the court also stated:

It is true that the evidence does not affir-

matively establish the appellant’s involvement

in the brihe offer. However, our decision is

grounded on the total lack of evidence disprov-

ing such involvement or knowledge.

597 F.2d at 489, n.4.

Proving “due diligence”’ is no different than proving

“harmfulness.”” Evidence that the defendant knew

about the bribe attempt before the verdict but chose to

do nothing would establish lack of due diligence. But

such proof would also establish harmlessness, because

the error would have been invited by the defendant. Un-

der Remmer, however, that burden rests on the govern-

ment, not the defendant. The fact that the government’s

1]

burden might be heavy° is no justification for shifting

that burden back to the defendant under the guise of

“due diligence.”’

The Fifth Circuit incorrectly applied the due

diligence standard for another reason. The bribe at-

tempt infringed petitioner’s sixth amendment right to a

fair and impartial jury. The due diligence standard does

not apply to a newly discovered evidence claim of con-

stitutional magnitude. Marshall v. United States, 436

F.2d 155 (D.C.Cir. 1971). In Marshall, the court of ap-

peals reversed the trial court’s holding that the defen-

dant had to prove due diligence before he could obtain a

new trial based on newly discovered evidence that the

lineup in which he was identified was unconstitutional.

The fault with the ruling of the trial court here

is that appellant, if he has anything to com-

plain about on this point, can complain that

‘The Fifth Circuit apparently feared that the government

might never be able to meet its burden:

The burden of proving harmlessness placed on the

Government by Remmer is difficult to bear. If all that

need be shown by a defendant is the existence of tamper-

ing, an unscrupulous defendant could purposefully sub-

vert the administration of justice by initiating such

bribery attempts.

597 F.2d at 489. But here the government did not adduce any

evidence whatsoever indicating that petitioner initiated the bribery

attempt. Obviously, such proof by the government might be a basis

for refusing to invoke the Remmer presumption. However, the

possibility that some defendant might initiate a bribe attempt is an

insufficient justification for denying to all defendants a fair and im-

partial jury which the Remmer presumption seeks to insure.

12

his constitutional right to due process under

the Fifth Amendment has been denied him.

Such alleged infringement of his constitutional

rights could be raised by a collateral attack at

any time subsequent to the conviction becom-

ing final. If appellant can attack his conviction

collaterally, his counsel’s lack of diligence at

time of trial should be no barrier to considering

a motion for a new trial on the merits of the

constitutional grounds raised.

* * *

Thus we are of the view that the “due

diligence” standard which ordinarily governs

disposition of motions for a new trial based on

allegedly newly discovered evidence . . . should

not apply when the new evidence raises issues

which challenge the constitutional validity of

the conviction. Cf. the standard established by

Fed.R.Crim.P. 52(a) for disregarding ordinary

trial errors as “harmless” as contrasted with

the higher standard which the Supreme Court

in Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967) has held must be

applied in judging the harmlessness of con-

stitutional error.

436 F.2d at 158-59. Marshall was later recognized by the

Fifth Circuit. United States v. Shelton, 588 F.2d 1242,

1250 (5th Cir. 1978). Yet the Fifth Circuit ignored it

here.

The Fifth Circuit’s circumvention of the presump-

tion and burden of proof required by Remmer is also ap-

13

parent in light of the well-established line of decisions

which hold that on appeal from final judgment, im-

proper juror contacts constitute plain error which will be

noticed by the court on its own initiative. United States

v. United States Gypsum Company, 438 U.S. 422 (1978)

(ex parte meeting between judge and juror warranted

new trial although point not argued in trial court, in

court of appeals or in supreme court briefs); Rogers v.

United States, 422 U.S. 35 (1975) (court’s instruction to

jury in absence of counsel plain error).

Petitioner appealed from the final judgment.‘ He

brought the issue to the trial court’s attention before the

notice of appeal was filed. He raised the issue on appeal.

In Rogers and United States Gypsum, this Court found

fundamenta! error warranting a new trial. United States

Gypsum was a civil case in which the issue was not

raised until oral argument. Yet this Court found plain

error requiring a new trial.

This Court’s opinion in Remmer was clear. Where

there is evidence of improper juror contact, the govern-

ment has the burden of overcoming the presumption of

prejudice by proving that the contact was harmless.

That rule cannot be circumvented by imposing an in-

itial burden on the defendant to prove that he could not

‘Petitioner appealed from the final judgment and conviction,

not the motion for new trial. An appeal from an out-of-time motion

for new trial is no substitute for an appeal from final judgment.

Edwards v. Cook, 566 F.2d 960 (5th Cir. 1978); Burnside v. Eastern

Airlines, Inc., 519 F.2d 1127 (5th Cir. 1975). Conversely, the presen-

tation of an ore tenus motion for new trial 19 days after verdict can-

not deprive petitioner of his right to a plenary appeal of the final

judgment which is governed squarely by Remmer and United

States Gypsum.

14

have discovered the impropriety before verdict. Fun-

damental constitutional error is not subject to the rule of

due diligence. The conflict between the Jones decision

and the Remmer and Marshall decisions justifies the

grant of certiorari to review the judgment below.

2. The Fifth Circuit Incorrectly Held That

This Court’s Decisions In Michigan uv.

Tyler, 436 U.S. 499 (1978) And Mincey v.

Arizona, 437 U.S. 385 (1978) Are Not

Retroactive.

The search and seizure which were the subjects of

petitioner’s motion to suppress occurred on April 12,

1974. This Court decided two cases in 1978 which

squarely govern the propriety of the search and seizure.

Michigan v. Tyler, 436 U.S. 499 (1978); Mincey v.

Arizona, 437 U.S. 385 (1978). The Fifth Circuit misap-

plied this Court’s decision in United States v. Peltier,

422 U.S. 531 (1975) in determining that Mincey and

Tyler were not retroactive.

In Peltier, this Court determined that its decision in

Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

should not apply retroactively. However this Court

carefully pointed out that it so ruled because Almeida-

Sanchez was a clear departure from existing statutory

and case law and law enforcement officers had a right to

rely on that prior law:

The Border Patrol agents who stopped and

searched respondent’s automobile were acting

pursuant to §287(a)(3) of the Immigration and

Nationality Act of 1952...

15

Between 1952 and Almeida-Sanchez, roving

Border Patrol searches under §287(a)(3) were

upheld repeatedly against constitutional

attach... .

It was in reliance upon a validly enacted

statute, supported by long-standing ad-

ministrative regulations and continuous

judicial approval, that border patrol agents

stopped and searched respondent’s

automobile. Since the parties acknowledge

that Almeida-Sanchez was the first roving Bor-

der Patrol case to be decided by this Court,

. we cannot regard as blameworthy those

parties who conform their conduct to the

prevailing statutory or constitutional norm.

422 U.S. at 540-41 (footnotes omitted).

Almeida-Sanchez was this Court’s first roving bor-

der patrol case and was contrary to the “prevailing

statutory or constitutional norm.” This Court therefore

concluded that the decision should not affect searches

conducted pursuant to that norm. Mincey and Tyler,

however, were not the first cases to deal with exigent cir-

cumstances and the right of privacy. They were not con-

trary to the prevailing constitutional norm. Rather, they

were fully in accord with the norm which existed not

only when they were decided, but also when the searches

in this case were conducted. There is no issue of retroac-

tivity because Mincey and Tyler did not create any new

constitutional principle.

16

In Mincey and Tyler, this Court held that once the

exigent circumstances which justify the initial intrusion

into defendant’s premises disappear, law enforcement

officers cannot search any further in the absence of a

warrant. In Mincey, this Court rejected the argument,

relied on by district court and the government here, that

the initial police intrusion into a building justified by an

emergency eliminated any right of privacy in the

premises and justified a subsequent warrantless search.

It is one thing to say that one who is legally

taken into police custody has a lessened right of

privacy in his person. [citations omitted]. It is

quite another to argue that he also has a

lessened right of privacy in his entire house.

437 U.S. at 391. This conclusion was not based on any

new constitutional principle. It was well-settled law

from this Court’s prior decisions.

Indeed this very argument was rejected when it

was advanced to support a warrantless search

of a dwelling where a search occurred as “‘inci-

dent”’ to the arrest of its occupant. Chimel v.

California, 395 U.S. 753, 766 n.12, 89 S.Ct.

2034, 2042, 23 L.Ed.2d 685.

Id. Chimel was decided in 1969, four years before the

search in this case. This Court was explicit in Chimel:

[W]e can see no reason why, simply because

some interference with an individual’s privacy

and freedom of movement has lawfully taken

place, further intrusions should automatically

17

be allowed despite the absence of a warrant

that the Fourth Amendment would otherwise

require.

395 U.S. at 766, n.12.

This Court also held in Mincey that the warrant-

less first search had to be circumscribed by the

emergency which initially justified it. Once the

emergency ended, any further search required a

warrant. Again, this holding merely reiterated this

Court’s prior decision in Terry v. Ohio, 392 U.S. 1

(1968). Mincey, supra, 437 U.S. at 390. As this Court

stated in Terry:

A search for weapons in the absence of

probable cause to arrest, however, must, like

any other search, be strictly circumscribed by

the exigencies which justify its initiation. [cita-

tions omitted].

392 U.S. at 25-26 (emphasis added).

The Fifth Circuit itself has not consistently dealt

with the retroactivity issue. It has applied Peltier in the

same manner which petitioner urged in this case. United

States v. Martinez, 526 F.2d 954 (5th Cir. 1976) (opinion

on rehearing en banc). In Martinez, a search took place

subsequent to Almeida-Sanchez but before the decisions

in United States v. Ortiz, 419 U.S. 824 (1975) and

United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

The government contended that Ortiz and Brignoni-

Ponce could not be considered in determining the

validity of the search. The Fifth Circuit rejected that

contention.

Here then we have a search post Almeida-

Sanchez and pre-Ortiz. The government argues

that the extension of the rule announced in

Almeida-Sanchez, applied to checkpoint

searches for the first time in Ortiz, should not

be given retrospective application. We dis-

agree. Ortiz did not establish a new rule in an

overruling decision. See United States v.

Peltier, 1975, 422 U.S. 531, 95 S.Ct. 2313, 45

L.Ed.2d 374; United States v. Miller, 5 Cir.

1974, 492 F.2d 37, 40. On the contrary the

Court took pains to point out that it was follow-

ing Chambers v. Maroney, 1970, 339 U.S. 42,

90 S.Ct. 1975, 26 L.Ed. 419, and Almeida-

Sanchez.

526 F.2d at 955 (emphasis by court). The court also re-

jected the argument that Brignoni-Ponce should not be

considered retrospectively because

Brignoni-Ponce did not establish a new rule in

an overruling decision, Miller, supra, or a new

constitutional principle, Peltier, supra.

526 F.2d at 956.

In Mincey, as in Ortiz, this Court carefully pointed

out that it was following established law. It did not es-

tablish a new constitutional principle or an overruling

decision. The limited nature of exigent circumstances

which justify a warrantless search was spelled out in

Terry in 1968. The effect of a limited intrusion on a per-

son’s right to privacy was spelled out in Chimel. Terry

and Chimel established the parameters of the officers’

19

conduct at the time of the search in this case. The

justification advanced in Peltier for denying retrospec-

tive application of Almeida-Sanchez simply does not

apply to Mincey.

The Fifth Circuit’s refusal to apply Mincey and

Tyler means that every time this Court applies one of its

earlier search and seizure decisions to a different set of

facts that application has no effect on searches con-

ducted prior to it. In Peltier, this Court criticized Justice

Brennan’s dissent in which he stated that ‘“‘the first duty

of a court will be to deny the accused’s motion to sup-

press if he cannot cite a case invalidating a search or

seizure on identical facts.’’ 422 U.S. at 542, n.13. Yet

that is precisely what the Fifth Circuit did here. Terry

and Chimel required suppression of the evidence by the

trial court. Mincey’s application of Terry and Chimel re-

quired suppression by the Fifth Circuit. The facts of

Terry and Chimel were not identical to this case. The

application of those cases to identical facts occurred af-

ter the search. Yet the Fifth Circuit applied the retroac-

tivity concept.

Peltier did not intend such a result. Once this Court

proscribes a certain type of conduct, the government

should not need additional case law on each fact situa-

tion to which that rule of law could be applied before the

government agents “‘have notice” of the law. That would

eliminate the deterrent effect of the exclusionary rule.

Compare Peltier, supra, 422 U.S. at 538-39. The Fifth

Circuit’s distortion of this Court’s decision in Peltier

justifies the grant of certiorari to review the judgment

below.

20

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment, opinion and order on rehearing of

the Fifth Circuit.

Respectfully submitted,

ROBYN GREENE, ESQUIRE

MARC COOPER, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

NEAL R. SONNETT, ESQUIRE

Greater Miami Federal Building

Suite 500, 200 S.E. First Street

Miami, Florida 33131

Counsel for Petitioner

September 4, 1979

21

APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Donald E. JONES,

Defendant-Appellant.

No. 78-5509.

United States Court of Appeals,

Fifth Circuit.

June 20, 1979.

Appeal from the United States District Court for

the Southern District of Florida.

Before AANSWORTH and VANCE, Circuit Judges,

and BOOTLE,”* District Judge.

BOOTLE, District Judge:

Convicted by a jury of multiple offenses relating to

the operation of an illegal whiskey distillery and not

challenging the sufficiency of the evidence, appellant

urges two grounds for reversal: first, alleged error in

denying his motion for new trial upon his showing that

someone attempted to bribe a juror during trial and,

second, alleged error in denying his motion to suppress

*District Judge of the Middle District of Georgia, sitting by

designation.

la

evidence seized in a search made without a search

warrant. For reasons following we affirm.

On August 1, 1975 a jury convicted the appellant,

Donald E. Jones, on five counts of a seven count indict-

ment arising out of his participation in the operation of

an illegal whiskey distillery. The district court dis-

missed one count as duplicative of other counts and the

jury acquitted appellant on one count. Appellant failed

to appear for a hearing and sentencing on August 20,

1975 and was not apprehended until almost three years

later. He was finally sentenced on June 23, 1978 and now

appeals his conviction.

I. Jury Tampering

Two days after the verdict, one of the jurors was

contacted by appellant’s wife, Debra Jones, and “‘a huge

black man” who was later identified as Willie Lucas.

Lucas solicited this juror’s agreement that appellant

had been “‘shanghaied”’ and refused to tell her how her

address had been found. This juror, being upset, con-

tacted the trial judge who on August 4, 1975 entered an

order directing an investigation by the United States At-

torney’s office and the Bureau of Alcohol, Tobacco and

Firearms. The court directed that all statements taken

during the investigation be filed with the Clerk as part

of the record. The positive identification of Willie Lucas

as the “huge black man” is supplied in a report of an in-

terview with Lucas so filed.

On August 5, 1975, appellant submitted a motion to

interview jurors pursuant to a local rule and filed in sup-

port thereof an affidavit dated August 4, 1975 by the

same Willie Lucas which detailed post-verdict state-

2a

ments made by another juror, Arlie Crooms. Ms.

Crooms was quoted as saying to him that she did not feel

that the right verdict was given, that there was no proof

that appellant owned the stills, and that she voted

guilty only because of pressure from other jurors and her

illness during the deliberations.

During the court ordered investigation, ATF agents

interviewed all the jurors concerning possible ap-

proaches. When they interviewed Ms. Reboso, one of

these jurors, they were told that juror Arlie Crooms had

told her during the trial that she had been offered $1000

by someone to vote for acquittal. Subsequently, Ms.

Crooms was interviewed and denied any improper ap-

proach. She later recanted and informed the ATF of a

bribe offer by Willie Lucas who asked that she vote to

acquit appellant.

The district court ordered a hearing on the matter

for August 20, 1975. At the hearing, Ms. Crooms, Ms.

Reboso, and the juror who was subjected to a post-

verdict approach all testified. They were questioned by

the Government attorney and by counsel for a co-

defendant, B. J. Herndon, but no questions were asked

by appellant’s counsel. In fact, no evidence at all was

submitted on behalf of appellant. The district court was

informed that the Marshal had been unable to serve a

subpoena on Willie Lucas and that the Marshal had

been told that Lucas had decided to go to Nassau until

August 24th. As stated previously, appellant also failed

to appear and participate in this hearing despite the fact

that by order of August 12, 1975 the district court had

commanded his presence and despite the fact that at

10:30 A.M. on the morning of the hearing appellant and

3a

his wife were in his attorney’s office at which time his at-

torney cautioned him to be present for the hearing at

1:00 P.M. The only explanation of his absence was made

by his attorney as follows: ‘‘I spoke to Mrs. Debra Jones.

She said that she left Donald a while ago and he was on

his way down here. They came in separate cars. She

made it; I don’t know why he didn’t make it.’”’ As above

indicated, appellant’s wife Debra (with separate coun-

sel) was present at the hearing and, despite her par-

ticipation in the post-verdict approach to a juror, was

not called by appellant’s counsel or by anyone as a

witness. At the conclusion of the testimony, appellant’s

counsel made a motion which in substance was a motion

for a new trial! and the district court denied it.

It is well established law that an improper com-

munication such as a bribe offer to a juror during the

trial raises a presumption of prejudice and that a new

‘Appellant’s motion is quoted in full below:

I would like to make a Motion at this time on behalf of

Mr. Donald Jones that based upon the testimony ad-

duced here from the juror, Mrs. Crooms, and which is

corroborated by Mrs. Reboso, and whom Mrs. Crooms

corroborates, the fact that Mrs. Reboso had made men-

tion she knew a particular witness and the fact that for

two days, apparently, Mrs. Reboso had known the name

of one of the defendants, and Mrs. Crooms said that she

had reached a verdict, apparently not by choice but by

what she says was the — either the other understanding

of Mrs. Reboso or some of the other jurors, that she

would have to come back and she wasn’t feeling well,

and that she reached a verdict that did indicate what she

felt to be her verdict; she did it because of compliance

with other jurors, so on that basis and on the testimony

adduced, I would make a motion on behalf of Don Jones

to set aside the verdict as returned by this jury.

4a

trial must be ordered unless the Government is able to

bear its heavy burden of proving harmlessness. Remmer

v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed.

654 (1954), appeal after remand, 350 U.S. 377, 76 S.Ct.

425, 100 L.Ed. 435 (1956). Both appellant and the

Government have concentrated their efforts primarily

on the question of harmlessness raised in Remmer. The

Government has asserted that both jurors, Ms. Reboso

and Ms. Crooms showed by their testimony that the

bribe offer had no effect on their deliberation.? Ap-

pellant insists that harmlessness was not shown. Both

sides have overlooked some fundamental issues inherent

in the procedural context in which appellant’s motion

was made. Since these questions are controlling, this

court need not reach the issue of harmlessness.

The jury’s verdict was returned August 1, 1975. A

timely motion for new trial was filed on August 8, 1975

and overruled on August 12, 1975. Appellant’s motion

which is the subject of this appeal was not made until

August 20, 1975. After seven days from the date of the

verdict, a motion for new trial cannot be entertained

unless it is based on newly discovered evidence.

Fed.R.Cr.P. 33. Appellant’s motion was thus one which

would have to be founded upon allegedly newly dis-

‘Juror Crooms testified: “I didn’t say anything to her (referring

to Juror Reboso) because after she didn’t call me, I didn’t say

anything to her because I had decided to forget about it.”’ (Supp. R.

19). Juror Reboso testified: “I didn’t think of it at all. I was having

personal problems which were more important to me at the time. I

sort of heard her and it went in one ear and out the other because

my problems were major problems. I mean, I am being as sincere as

I can be.” (Supp. R. 38). In addition Juror Crooms argued for ap-

pellant’s acquittal during jury deliberations and the jury did in fact

acquit him of one count.

covered evidence of an improper communication to a

juror. This court and the Court of Appeals for the Sixth

Circuit have recognized the propriety of categorizing

such a motion as one for a new trial based upon newly

discovered evidence. Richardson v. United States, 360

F.2d 366 (5th Cir. 1966); Zachary v. United States, 275

F.2d 793 (6th Cir. 1960). Both the Government and ap-

pellant have treated the issues in this case without

recognizing the requirements and burdens placed on a

defendant presenting such a motion.

In most new trial motions based on newly dis-

covered evidence, the proffered evidence goes directly to

proof of guilt or innocence. In such a motion the movant

has a burden of showing (1) that the evidence was in fact

discovered after the verdict, (2) that the movant’s

failure to learn of this evidence was not due tu any lack

of diligence on his part, (3) that the evidence is material

and not merely cumulative or impeaching, and (4) that

a new trial would probably result in an acquittal. United

States v. Bryant, 563 F.2d 1227 (5th Cir. 1977); United

States v. Rachal, 473 F.2d 1338 (5th Cir. 1973);

United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977);

United States v. Schwartzenbaum, 527 F.2d 249 (2d Cir.

1975); United States v. Ellison, 557 F.2d 128 (7th Cir.

1977). Admittedly, there are major distinctions in the

substance of the evidence proffered by the appellant and

that proffered in the above cited cases since appellant’s

evidence goes to the fairness of the trial rather than to

the usual question of guilt or innocence. Regardless of

those distinctions a motion for a new trial can not be

based on newly discovered evidence unless that evidence

is in fact unknown to the movant until after the verdict.

The appellant had the burden of proving that this

evidence was in fact newly discovered and that his

6a

failure to discover it prior to verdict was not due to his

lack of diligence.? Zachary v. United States, supra; see

United States v. Ellison, supra. It deserves note that in

Remmer, it was established, by the Government’s

failure to deny, that “[nJeither the judge nor the

prosecutors informed the petitioner of the incident, and

he and his counsel first learned of the matter by reading

of it in the newspapers after the verdict.” 347 U.S. at

228, 74 S.Ct. at 451, 98 L.Ed. at 655. Such a burden is

eminently reasonable in view of the devastation which

jury tampering could bring to our country’s highly

valued jury system. The burden of proving harmlessness

placed on the Government by Remmer is difficult to

bear. If all that need be shown by a defendant is the ex-

istence of tampering, an unscrupulous defendant could

purposefully subvert the administration of justice by in-

itiating such bribery attempts.

3Another line of cases forcefully shows the relevance of a defen-

dant’s knowledge or lack of knowledge before the verdict of jury

tampering. These cases teach that a defendant cannot learn of juror

misconduct during the trial, gamble on a favorable verdict by

remaining silent, and then complain in a post-verdict motion that

the verdict was prejudicially influenced by that misconduct. Oakes

uv. Howard, 473 F.2d 672 (6th Cir. 1973); United States uv.

Brumbaugh, 471 F.2d 1128, 1130 (6th Cir. 1973) (McCree, J., con-

curring); United States v. Carter, 433 F.2d 874 (10th Cir. 1970);

Hall v. United States, 396 F.2d 428 (10th Cir. 1968); United States

v. Coduto, 284 F.2d 464 (7th Cir. 1960). The rule requiring a show-

ing that the evidence of jury tampering is newly discovered and the

rule of waiver established by the above cited cases are not aimed

necessarily at discovering a defendant’s complicity in the improper

communication to the jury. The policies behind both rules fully en-

compass any knowledge possessed by the defendant before the ver-

dict whether it be innocent or not. Such knowledge should be dis-

closed to the trial judge before the verdict so that an attempt can be

made to salvage the trial by ridding the jury of prejudicial in-

fluences.

In this case appellant presented no evidence

whatever on the issues of his lack of knowledge or his

due diligence. In fact, his counsel did not even disclaim

such knowledge on behalf of appellant. All that ap-

pellant has ever stated is that no evidence shows that

appellant was ‘“‘connected with”’ the bribe offer.* Thus

appellant never satisfied his burden of proof as movant

and the Remmer presumption does not come into play.

The district court was correct in denying appellant’s

motion for new trial.

II. Motion to Suppress

Appellant’s other contention is that the district

court should have suppressed evidence seized by ATF

agents during a search conducted without a warrant. On

April 12, 1974, local police officers responded to a re-

ported shooting at the premises leased by appellant.

During their search for suspects or injured persons, these

officers discovered appellant’s illegal stills and other

‘It is true that the evidence does not affirmatively establish the

appellant’s involvement in the bribe offer. However, our decision is

grounded on the total lack of evidence disproving such involvement

or knowledge. Though not a basis for our decision, it is interesting

to note that the circumstances that are shown by the record tend to

show rather than negate such knowledge or involvement. Willie

Lucas, who offered the bribe, accompanied appellant’s wife two

days after the verdict in an attempt to solicit a juror to impeach the

verdict. In furtherance of this endeavor, Lucas submitted an af-

fidavit as support for appellant’s motion to interview jurors. Events

that came to light at trial also raise questions. It is clear that Debra

Jones and a Government witness, with appellant’s knowledge,

negotiated an agreement to pay said witness a large sum if he would

not testify. The witness claims that appellant offered a bribe: ap-

pellant describes these events as an extortion attempt by the

witness. Unfortunately, we have no way of knowing what the jury

thought of these contacts.

8a

related paraphernalia. These local officers then called in

ATF agents who seized certain evidence. This court

agrees with the district court’s conclusion’ that the ATF

agents’ conduct was proper under the doctrine of United

States v. Green, 474 F.2d 1385 (5th Cir. 1973) which was

the then prevailing law of this circuit. See, United

States v. Brand, 556 F.2d 1312 (5th Cir. 1977).

Appellant contends that two recent Supreme Court

cases, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56

L.Ed.2d 486 (1978), and Mincey v. Arizona, 437 U.S.

385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), invalidate

Green and require that the evidence seized in the in-

stant search be excluded. We conclude that Tyler and

Mincey should not be applied retroactively on the facts

of this case. United States v. Peltier, 422 U.S. 531, 95

S.Ct. 2313, 45 L.Ed.2d 374 (1975); United States v.

Montgomery, 558 F.2d 311 (5th Cir. 1977).

AFFIRMED.

‘United States v. Herndon, 390 F.Supp. 1017 (S.D.Fla. 1975).

Sa

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

August 6, 1979

TO ALL PARTIES LISTED BELOW:

NO. 78-5509 — U.S.A. v. DONALD E. JONES

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition( ) for rehearing, and no

member of the panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Ap-

pellate Procedure; Local Fifth Circuit Rule 16) the peti-

tion( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By/s/Sally Hayward

Deputy Clerk

cc: Mr. Neal R. Sonnett

Mr. Marc Cooper

Mr. Bruce A. Zimet

10a

UNITED STATES of America

U.

Bobby J. HERNDON et al.,

Defendants.

No. 74-549-Cr-CF.

United States District Court,

S.D. Florida.

Feb. 20, 1975.

William Northcutt, Asst. U.S. Atty., Miami, Fla.,

for the United States.

Bernstein & Robrish, Miami, Fla. for defendant

Bobby J. Herndon.

Max P. Engel, Miami, Fla., for defendant Donald

EK. Jones.

Louis Stoskopf, Miami, Fla., for defendant Thomas

EK. Jones.

ORDER

FULTON, Chief Judge.

In an Indictment filed on September 25, 1974, the

defendants were charged with the illegal operation of a

still located at Barn No. 4, 19955 S.W. 248th Street,

Dade County, Miami, Florida, in violation of 26 U.S.C.

§§5601(a)(1), (2), (4), (8), 5602, 5604, and 18 U.S.C.

§371. On November 12, 1974, defendants Herndon,

lla

Donald Jones and Thomas Jones filed a motion to sup-

press various equipment, supplies and miscellaneous

items useable in the manufacture of whiskey which were

seized on April 12, 1974 during a search of the barn, the

house, several vehicles, and the person of Thomas Jones

in the vicinity of 19955 S.W. 248th Street, Miami,

Florida. Defendants contend that the search constituted

a violation of the Fourth Amendment of the United

States Constitution in that it was made without a search

warrant and not incident to a lawful arrest. The govern-

ment argues that the search was justified due to exigent

circumstances. The government concedes that the

defendants all have standing to bring this motion to

suppress: Thomas Jones was on the premises when the

search took place; Donald Jones was renting the

premises; and Bobby Joe Herndon was living on the

premises.

On December 13, 1974, the Court held an eviden-

tiary hearing on defendants’ motion. Testimony pre-

sented at the hearing established that on Friday, April

12, 1974, at 7:31 P.M. the Dade County Public Safety

Department Perrine Substation received a call that

there had been “shots fired in the area” at 19955 S.W.

248th Street. At 7:33 P.M., a patrol car unit was dis-

patched with one back-up unit. At 7:46 P.M. these two

units responding to the call arrived on the scene.

As reflected by plaintiff's exhibit 1A, 19955 S.W.

248th Street, Dade County, Florida, is a rural farm area.

The subject property consists of a house approximately

150 Feet from the road and a single story barn approx-

imately 300-400 Feet from the rear of the house. The

barn is approximately 50 Ft. in width and 500 Ft. in

length.

12a

Officers Charter and Dwyer were the two units who

were dispatched to answer the call at 7:33 P.M. Officer

Dwyer was the backup unit. Prior to either officer

reaching the scene of the alleged shots, they were met by

an unidentified white female in a light colored Cadillac

who communicated with Officer Dwyer that one of the

participants in the alleged shooting was parked on the

corner of 199th Avenue and 244th Street. Both officers

proceeded to this area. Both officers approached the

defendant, Thomas Jones, who was seated in his

automobile. Mr. Jones’ automobile was parked approx-

imately 200 yards from the rear of the subject barn. Dur-

ing the conversation with defendant, Thomas Jones, a

16 year old white male approached the officers and in-

formed them that Thomas Jones did, in fact, reside at

the scene and was, in fact, a participant in the “shots

fired” as reported earlier. Thereafter, Officer Dwyer left

the area with his unit and proceeded to 19955 S.W.

248th Street, where the house and barn are located. Of-

ficer Charter remained with defendant Jones, who was

not yet under arrest.

Upon arriving at the scene, Officer Dwyer spoke

with several more neighbors who informed him that they

had observed three white males leave the barn, one en-

tering his automobile and driving to the road in front of

the house, the other two leaving the house at which time

the shots were fired in the immediate area. After this in-

formation was related to Officer Dwyer, he approached

the house and heard the telephone ring. On the front

porch Officer Dwyer looked into the living room area

through the front picture window and then entered the

house, without knocking, through the partially opened

door, and proceeded through the living room area into

the kitchen where he answered the phone. Officer Dwyer

13a

testified that he entered the house and subsequently the

barn to look for injured persons or additional witnesses

in connection with the shooting investigation. Officer

Dwyer then looked around and saw no blood or injured

people in the house.

- Having found no one in the house, Officer Dwyer

communicated with Officer Charter to proceed to the

barn to search for ‘yjured people there. Officer Charter

then arrived with defendant Jones in the rear cage por-

tion of the car. Officer Charter testified that Jones had

been arrested by this time for loitering and prowling

because he could not explain his presence in the area.

Officer Charter testified that the barn door was partially

opened approximately 4 to 6 inches. The officers entered

the barn equipped with flashlights and remained in the

barn approximately 5 to 10 minutes. In the rear portion

of the barn the officers came across what appeared to

them to be some form of a “‘still’”. The officers then

departed the barn, went back to the house at which time

Officer Dwyer telephonically communicated with the

Perrine Substation for them to dispatch the duty

Lieutenant to proceed to the scene. Lt. Lyons arrived at

the scene at approximately 8:30 P.M. and spoke with

both Officers Dwyer and Charter. Subsequently, all

three officers re-entered the barn and again viewed what

the officers concluded was a possible illegal “‘still’’. The

officers then departed the barn, re-entered the house at

which time Lt. Lyons again telephonically com-

municated with the Perrine Substation and requested

specifically that a Federal Treasury Agent, Agent

Nowicki be telephoned and informed that an illegal still

was being operated at the subject location. Agent

Nowicki and Agent Harmon of the Bureau of Alcohol,

l4a

Tobacco and Firearms of the United States Treasury

Department (hereinafter referred to as ‘‘ATF’’) arrived

' at approximately 10:00 P.M.

Treasury Agent Nowicki, after receiving the com-

munication from the Perrine Substation, called Agent

Harmon and requested that he accompany him to the

location in the Southwest area of Dade County where

the illegal ‘still’ had been reported. Agent Nowicki

readily admitted in his testimony that he attempted no

communication whatsoever with any United States At-

torney, Federal Judge or Magistrate at any time what-

soever on the evening of April 12, 1974.

Upon the arrival at approximately 10:00 P.M.,

Agent Nowicki testified that he read defendant Jones

his rights and was handed a small wrench and knife pur-

portedly taken from defendant, Thomas Jones upon his

arrest by Officer Charter. Agent Nowicki purportedly

observed a substance “‘mash’’ on the wrench itself and

requested of defendant Jones to take his shoes off for

possible evidence. Both Agents Nowicki and Harmon

spoke with Lt. Lyons and Officers Charter and Dwyer as

to their observations in the subject barn. The agents

then proceeded to the barn, and viewed the still. From

there they went to the house, following the electric wires

from the still water pump. In the house they found

several receipts from the Tropigas Company, a Georgia

telephone book and some shoes, on the soles of which

was mash. The gas receipts were in a closet in the hall by

the electric panel where the wires terminated. The closet

was open. The phone book was in a drawer which was

partially open in a table and the shoes were on the floor

in the bedroom.

The ATF agents then went outside the house and

peeked into a truck camper parked on the lawn. In the

truck they observed cardboard cartons similar to the

ones they saw beside the still. These cartons were

labeled ‘Reliance Products Ltd., Winnipeg, Canada.”

The truck was seized and the glove compartment was

searched. An auto repair bill was found therein. The in-

terior of the rear of the truck camper smelled of whisky.

This occurred about 11:00 P.M.

The ATF agents then went to the car in which Jones

was found. They saw in it items similar to those they

saw by the still. They searched and seized it. In it they

found a hydrometer.

All of the state and federal agents who testified at

the hearing readily admitted that absolutely no attempt

whatsoever was made to obtain any arrest or search

warrants. In their view, none were required due to the

exigent circumstances. Therefore, unless the Court finds

that the searches were not justified and thus grants the

motion to suppress, the Government will introduce at

trial the following items from these searches and

seizures:

1. The driver’s license, wrench and shoes found on

Thomas Jones.

2. Pictures and testimony about the still and

related paraphernalia from the area of the barn.

3. The receipts, phone book and shoes from the

house.

16a

4, The cartons and receipt from the truck camper

in the yard.

5. The hydrometer found in the car in which Jones

was arrested.

Two searches were conducted in this case, the first

by county police, and the second by federal ATF agents.

In order to be upheld, both searches must be valid.

Defendant Thomas Jones was placed under arrest

by the county police officers at about 8:15 P.M. on April

12, 1974 for loitering and prowling. However, the search

of the house and barn by the state officers can not be

considered as incident to a legal arrest for the following

reasons: 1) Officer Dwyer had already entered and

searched the house before Officer Charter placed Jones

under arrest. 2) The officers entered the barn pursuant

to their investigation of the shooting incident which had

no relation to an arrest for loitering and prowling. Later

in the evening an ATF agent placed Jones under arrest

for the additional charge of possession of a switchblade

knife. This arrest, however, occurred after both the

house and barn had been searched by the county of-

ficers. 3) The county officers testified that both the

loitering and prowling and possession charges against

Jones were later dismissed for lack of prosecution and

never refiled. This factor is some support for defendants’

contention that the arrests themselves were not legal.

The Court finds, however, that the county officers’

search was legal as based upon the exigent circumstance

of looking for victims of a shooting incident. Being in a

place where they had a right to be, the officers found the

still because it was in plain view. Witnesses had re-

ported that they had heard shots fired and had seen

three men running in the vicinity of the house and barn.

Therefore it was logical and prudent for the officers to

consider that there might be someone injured and in

need of help in the house or the barn. The fact that no

‘victims were actually found does not negate the real

possibility that existed.

In Guzman v. Estelle, 493 F.2d 532, 537 (5th Cir.

1974), the court held that lack of time in which the

search warrant could have been secured is an exigent

circumstance that justifies a warrantless search. In this

case, it would be senseless to expect police officers to ob-

tain a warrant before answering the dispatch call, or,

once on the scene, before entering the buildings. Clearly,

in matters involving possible injury by gun shot, time is

of the essence.

Once legally inside the barn, the still was in plain

view. In Coolidge v. New Hampshire, 403 U.S. 443, 465,

91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), Justice Stewart

held that where the initial intrusion that brings the

police within plain view of an article is supported not by

a warrant but by one of recognized exceptions to the

warrant requirement, the seizure is legitimate. He

stated that the plain view doctrine may be applied

where an officer is not searching for evidence against the

accused, but inadvertently comes across an in-

criminating object. Jd. at 466, 91 S.Ct. 2022. Where ob-

jects fall in the plain view of an officer who has a right to

be in the position to have that view, they are subject to

seizure and may be introduced in evidence. Harris v.

United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19

L.Ed.2d 1067 (1968).

18a

In this case the officers were searching for victims of

a shooting incident. They entered the house and barn

looking for victims, and inadvertently came across

evidence of the operation of a still. No evidence was

presented at the hearing to indicate that the officers’

testimony of the reasons for their conduct should not be

believed. Therefore the Court concludes that the search

and seizure conducted by the county officers were legal.

The Court further finds that the search by the

federal officers was also legal. The Court does not base

its decision on the ground suggested by the government:

that there was insufficient time for the ATF agents to

obtain a warrant. In fact the evidence established that

the ATF agents were called by the county officers at

about 9:00 P.M., and that the magistrate could be

reached until about 11:00 P.M. and was located only fif-

teen or twenty miles away. Furthermore, Federal Agent

Harmon testified that the stills each weighed about 2800

pounds, and that he was not afraid that someone would

walk away with a still. As for smaller items in the house,

the county police had surrounded the area. Therefore,

no emergency existed concerning the speed with which

the federal agents arrived on the scene.

The federal search was legal because it was based

upon a legal search by the county officers. Crucial to this

determination are the facts that the county police called

the federal agents to the scene, and that the federal

search was directly related to the object of the county

search, |

The Court bases its determination that the federal

search was legal upon the direct precedent established

by Judge Dver in United States v. Green, 474 F.2d 1385

(5th Cir. 1973), cert. denied, 414 U.S. 829, 94 S.Ct. 55,

38 L.Ed.2d 63 (1973). While Green was away, a fire

broke out in his apartment. City firemen entered the

apartment to put out the fire, and requested the Fire

Chief to come to the premises to determine the cause of

the fire. During his investigation the Fire Chief inadver-

tently discovered counterfeiting plates. The Fire Chief

then called the Secret Service. In response to the call, a

Secret Service agent went to Green’s apartment, and the

Fire Marshall handed him the plates he had discovered.

At no time did either the city or federal authorities seek

to obtain a warrant.

Judge Dyer held that it was not necessary for the

secret service agent to have obtained a warrant before he

entered the apartment even though there was plenty of

time in which to do so. 474 F.2d at 1390. Judge Dyer ex-

plained that the purpose of the Fourth Amendment is to

prevent unauthorized invasions of privacy. However,

once that privacy is lawfully invaded, a subsequent

search of the area already searched constitutes no ad-

ditional invasion of privacy and therefore no violation of

the Fourth Amendment. Judge Dyer’s holding is di-

rectly applicable to the factual situation here:

The purpose of a search warrant is to ensure

judicial authorization, in advance, of intru-

sions into constitutionally prcvected privacy.

Where a lawful intrusion has already occurred

and a seizure by a State officer has validly

taken place as a result of that intrusion, the in-

vasion of privacy is not increased by an ad-

ditional officer, albeit a federal officer, who is

20a

expert in identifying the type of contraband

discovered, to enter the premises to confirm the

belief of the State officer and to take custody of

the evidence. Once the privacy of a dwelling

has been lawfully invaded, to require a second

officer from another law enforcement agency

arriving on the scene of a valid seizure to secure

a warrant before he enters the premises to con-

firm that the seized evidence is contraband and

to take custody of it is just as senseless as re-

quiring an officer to interrupt a lawful search to

stop and procure a warrant for evidence he has

already inadvertently found and seized.

474 F.2d at 1390.

The rationale which justifies the federal search is

that the subsequent intrusion does not significantly in-

crease a preexisting legitimate interference with a

protected interest. United States v. Soriano, 482 F.2d

469, 476 (5th Cir. 1973). Thus the determination that

the subsequent search does not significantly add to the

invasion of privacy caused by the initial search is

crucial. As pointed out in Sor.ano, this requirement is

met if the successive intrusions are close in time, prac-

tically identical in nature and analytically and factually

separable only because made by two different

sovereigns. 482 F.2d at 476 n.13. The Court finds that all

of these criteria were present in this case.

in United States v. Carney, 356 F.Supp. 855, 858

n.l (M.D.Tenn. 1973), the court distinguished its facts

from Green in that in Green the secret service agent en-

tered ‘subsequent to and pursuant to” the discovery of

the Fire Marshall. The rationale is that independent

2la

searches constitute separate and additional invasions of

privacy. However, here as well as in Green, the federal

authorities entered the premises pursuant to a call by

the local authorities, and the search conducted by the

federal agents was directly related to the objects dis-

covered by the county oficers. Therefore, based upon the

authority of United States v. Green, United States v.

Soriano, and United States v. Carney, the Court con-

cludes that the search and seizure conducted by the

federal officers were legal.

The Court has considered all of the evidence

presented at the evidentiary hearing, and has studied all

of the submissions filed by the parties. For the foregoing

reasons, the Court concludes that the searches of both

the county and federal officers were legal, and therefore

the motion to suppress the evidence seized therefrom is

hereby denied.

CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of September,

1979, three copies of the Petition for Writ of Certiorari

were mailed, postage prepaid, to Solicitor General,

Department of Justice, Washington, D.C., 20530, Coun-

sel for the Respondent. I further certify that all parties

required to be served have been served.

By:

ROBYN GREEN, ESQUIRE

Suite 500, Roberts Building

28 West Flagler Street

Miami, Florida 33130

Counsel for Petitioner