Petition — Korman v. United States

“Frere.

— prtinsinsensarcienssesesdigeial

a bi preme Court, U. & -

One areemnnen aged

FILED

MAR $3 1980

, CHAEL R NAK, JR., CLERR

IN THE | reps

Supreme Court of the United States

RONALD KORMAN,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

o—_—_——

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

©

N.C. DEDAY LARENE

1500 Buhl Building

Detroit, Michigan 48226

(313) 962-3500

Counsel for Petitioner

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

962-8745 962-8746

TABLE OF CONTENTS

Fal a 6 noe se 64s 6's 6 eine 0 ese ii

es Lae ee bss pees bboy vse i oe esse 2

EE Ee 2

Constitutional Provision Involved ................ 2

I eo rubs be verccesecessess 3

Reasons for Granting the Writ.................... 6

The Court of Appeals’ decision upholding the

warrantless entry into Petitioner’s home, and the

subsequent search warrant based thereon,

improperly undercuts the protection afforded a

citizen’s home by the warrant clause of the

I Te eee 6

Nee obese eesesees 13

Appendix A — Opinion of Sixth Circuit Court of

Appeals Affirming Petitioner’s Conviction ...... la

il

INDEX TO AUTHORITIES

Page

' Agnello v United States, 269 US 20, 33 (1925) ...... 6,7

Arkansas v Sanders, — US ---, 61 L Ed 2d 235, —

NN sf tana less cuvx beet EK ne 7

Coolidge v New Hampshire, 403 US 443, 450 (1971) 6

McDonald v United States, 335 US 451, 456 (1948) .. 7

Mincey v Arizona, 437 US 385 (1978) .............. 7

United States v Chadwick, 433 US 1 (1977) ........ 7

United States v Davis, 423 F2d 974, 979 (5th Cir.

Pe ere hr is Perk errors rey 11,12

PES Cada Ean Beh TERS RRO eee 11,12

United States v Jackson, 533 F2d 314 (6th Cir. 1976) 11

United States v Rubin, 474 F2d 262 (3rd Cir. 1973) . 12

Vale v Louisiana, 399 US 30, 34, (1970)............ 7

IN THE

Supreme Court of the United States

*

No. ——

oo-_

RONALD KORMAN,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

-_-—

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ronald Korman, by and through his attorney N.C.

Deday LaRene petitions herein for a Writ of Certiorari

to review the decision of the United States Court of

Appeals for the Sixth Circuit affirming his conviction

for violation of 21 USC § 841(a)(1), filed January 31,

1980.

OPINION BELOW

The Opinion of the Sixth Circuit Court of Appeals

filed January 31, 1980, affirming Petitioner’s conviction,

is reprinted in full as Appendix A hereto. That Opinion

has not, as of this writing, been published.

JURISDICTION

The Opinion and Order appealed from was filed

January 31, 1980. The jurisdiction of this court is

invoked under 28 USC § 1254(1).

QUESTION PRESENTED

Did the warrantless night-time entry of Petitioner’s

house, undertaken to preserve evidence but in the

absence of any affirmative showing that the evidence

sought to be protected was being, or was about to be

destroyed, offend the warrant clause of the Fourth

Amendment?

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States

Constitution provides:

AMENDMENT I[IV.]

Searches and seizures

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

3

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

Petitioner, Ronald Korman, was charged in a three

count indictment with conspiracy to possess with intent

to distribute and distribute approximately 952 grams of

cocaine, possession with intent to distribute

approximately 29.6 grams of cocaine, and possession

with intent to distribute approximately 3.1 grams of

cocaine, all in violation of 21 USC § 841(a)(1) On

October 10, 1978, appellant was convincted by a jury of

all three counts.

On March 25, 1978, United States Customs Inspectors

at the Miami International Airport had occasion to

detail and inspect the luggage of one Jack Blanchard —

inspection revealed that the suitcase carried by

Blanchard contained a false bottom, with approximately

one kilogram of cocaine secreted within. Sometime after

he was arrested by Drug Enforcement Administration

agents, Blanchard agreed to cooperate with them.

Blanchard told the agents that he had been instructed

to take the suitcase to Detroit, check into -a certain

hotel, and await contact.

In the company of the agents, he traveled to Detroit

and, after a series of events not relevant here, chec'.ed

into a Sheraton hotel, where, ultimately the suitcase —

into which had been inserted an electronic impulse

homing device and approximately one ounce of the

4

cocaine it had originally contained — was picked up by

the Petitioner.

After the Petitioner had picked up the suitcase at the

Sheraton, the agents endeavored to follow him through

conventional physical surveillance techniques; however,

he was shortly lost in traffic. However, by monitoring

the signals from the electronic impulse homing device

which had previously been planted in the suitcase in

which the controlled delivery of cocaine was effected,

the agents determined, at approximately 12:30 a.m.,

that the suitcase and its beeper were somewhere on or

around the premises of Petitioner's residence. Before

the precise location of the suitcase and the beeper it

contained could be located, however, the defendant was

seen to leave the driveway of the house in his car;

approximately a half a block away, he was stopped and

placed under arrest, and the car searched to see if it

contained the beeper, albeit with negative results.

Thereafter, the decision was made by the agents to

return to the house, enter and ‘secure the premises” in

anticipation of procuring a search warrant. The

Petitioner was asked who was in the house; he at first

refused to answer, and then responded that his wife

and children were there. He refused the agents

permission to enter or search. When Mrs. Korman was

approached by the agents at the front door of the

house, she too, told the agents that only herself and her

children were present.

Once in the house, the agents searched every room,

both upstairs and down, even looking into locked

closets, ostensibly in order to determine whether any

person was in the house who might endanger the

integrity of the suitcase and its contents. However, no

attempt was made, through the use of the monitoring

5

equipment, to determine whether the suitcase was even

in the house, although that equipment was capable of

pinpointing the location of the beeper within a ten foot °

circle — and notwithstanding the fact that ultimately

the suitcase was found underneath a hedge in the

backyard some seventy to eighty feet from the house.

Although the agents found only the defendant's wife

and his two infant children in the house, and

maintained custody over Mrs. Korman in the living

room (where the Petitioner was also kept) the agents in

continuing to look through the house carried their

search to such an extent that they even looked in the

pocket of the ski jacket which the defendant had been

seen to wear at the Sheraton Southfield when he picked

up the suitcase — allegedly to insure that an observed

bulge in the jacket was not a weapon (notwithstanding

the fact that there was no one in the house who might

have gained access to the weapon, if weapon it was).

The agents also observed a scale, weights and dishes

for the scale on a nightstand in an upper bedroom in

the course of their warrantless search of the house. The

agents thereupon filed an affidavit in an effort to secure

a search warrant, which affidavit recited the facts

incident to the controlled delivery, and the warrantless

entry into the house, as well, of course, as the

observations made therein.

In executing the search warrant, the agents seized not

only the scales, weights and other paraphernalia

mentioned in the affidavit and search warrant, but also

the green and yellow ski jacket. The jacket itself was

introduced as an exhibit at the Petitioner’s trial, as well

as the contents of its pockets, which included the covers

of a blue spiral notebook found in the pocket, upon

which was written telephone numbers ascribable to the

6

alleged conspirator who, according to the testimony of

the carrier, Blanchard, had consigned the courier from

Columbia.

Petitioner appealed his conviction and sentence to the

Sixth Circuit Court of Appeals as a matter of right. On

January 31, 1980, a panel of that Court, one Judge

dissenting, affirmed his conviction.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ DECISION UPHOLDING THE

WARRANTLESS ENTRY INTO PETITIONER’S HOME,

AND THE SUBSEQUENT SEARCH WARRANT BASED

THEREON IMPROPERLY UNDERCUTS THE PROTECTION

AFFORDED A CITIZEN’S HOME BY THE WARRANT

CLAUSE OF THE FOURTH AMENDMENT

Of course, the basic analytical framework within

which the propriety of the warrantless entry into the

Petitioner's house must be measured is the principle,

variously stated, that searches and seizures conducted

without the benefit of prior judicial sanction as per se

unreasonable. Agnello v. United States, 269 US 20 (1925).

Exceptions to the warrant requirement defined by the

Fourth Amendment are “jealously and carefully drawn”

and the burden is placed by the law upon those seeking

exemption to show the need and propriety of

exemption from the warrant requirement. Coolidge v.

New Hampshire, 403 US 443, 450 (1971).

Nowhere is the Fourth Amendment’s protection more

conscientiously applied than in the area of searches of

private dwelling houses; indeed, it is the protection of

the sanctity of the house that is at the very core of the

7

Fourth Amendment. Thus, no matter how strong an

officer’s belief, or the reason for that belief — even if

the facts pemit, and the officer possesses, a crystalline

certainty — mere belief that an article sought is

concealed in a dwelling house ‘furnishes no

justification for a search of that place without a

warrant.” Agnello v. United States, 269 US supra at 33.

Manifestly, the prohibition against warrantless entries

to search or arrest is not unconditional. As this Court

has long recognized, the “exigencies of the situation”

may make such a course “imperative’’ — and if they

do, then a warrantless entry will not be deemed

constitutionally unreasonable. McDonald v. United

States, 335 US 451, 456 (1948).

Warrantless entries into dwelling houses can only

pass constitutional muster in ‘‘an exceptional situation,”

Vale v. Louisiana, 399 US 30, 34 (1970), and the propriety

of such actions must be measured against both the

nature and degree of the exigency which is claimed to

give rise to the need for it.

The primacy of the warrant clause is by no means

an outmoded principle of Fourth Amendment

jurisprudence; recent decisions of this Court have

reaffirmed its commitment to the maintenance of the

warrant requirement as the touchstone of the

Amendment's protections. See, e.g., Mincey v. Arizona,

437 US 385 (1978); Arkansas v. Sanders, — US —, 61 L:

Ed 2d 235 (1979); United States v. Chadwick, 433 US 1

(1977).

The Court of Appeals majority opinion seems clearly

to denigrate such protections. The heart of the Court’s

ruling was as follows:

In the present case, the DEA agents were

confronted with dealers in narcotics and

8

conspirators caught red-handed. The narcotics

were worth a large sum of money when

processed for sale at destination. The dealers in

narcotics are well known to be dangerous

criminals usually carrying weapons. The officers

are risking their lives in confronting and

arresting them. The case was tried before Judge

Ralph Guy, of the Eastern District of Michigan.

Judge Guy was a former United States Attorney

who has tried cases involving narcotics

violations both as an United States attorney and

as a judge. He was familiar with the applicable

law which he properly applied in the present

case.

As appellate judges, we ought not to engage in

hypertechnicalities which will hamstring capable

and conscientious officers of the law endeavor-

ing to properly perform their duties in protecting

the public from harmful drugs.

Slip opinion, pp. 11-12

(citations omitted)

Of course, the quantity of “narcotics” inside the

house was only that quantity (one ounce) which the

agents had put there, through the device of the

controlled delivery. Of course, the destruction of that

evidence would only serve to enhance the agents’ case

against the Petitioner, by conclusively showing

knowledge of the contents of the suitcase. Of course,

the agents had no information on which to base any

belief that there was anyone in the house (at the time

Petitioner was arrested outside) with knowledge of the

evidence’s presence or significance, or the capacity or

inclination to destroy it. And, of course, the agents had,

in the electronic monitoring equipment in their

9

possession, an entirely adequate means of determining

the precise location (and the well-being) of the only

evidence of which they had knowledge — the suitcase

(and of course, use of that equipment would have told

them that the suitcase was not in the house at all, but

in the back yard).

While the Sixth Circuit majority’s determination to

aid and protect law enforcement in its battle against

(judicially noticed) armed and (presumptively)

dangerous drug dealers is no doubt commendable,

Petitioner submits that its implementation in the

instant case is at the expense of the Fourth Amendment

— perhaps, the Court below would say, a small price to

pay, but one which should not, one would think, be so

cavalierly exacted, even in deference to the prosecutorial

experience of a trial judge or the dedication of

investigating agents.

In dissent, Judge Merritt wrote:

For obvious reasons, the Supreme Court has

n ver recognized a ‘“‘securing-premises-in-

anticipation-of-a-search-warrant’’ exception to

the warrant requirement. See United States v.

Griffin, 502 F.2d 959 (6th Cir.) cert. denied, 419

U.S. 1050 (1974). Such an exception would

swallow the rule. The warrant requirement

protects the privacy of the home by

“interpos[ing] a magistrate between the citizen

and the police ... so that an objective mind

might weigh the need to invade that privacy in

order to enforce the law.’’ McDonald v. United

States, 335 U.S. 451, 455 (1948). This crucial

protection would evaporate if the police, before

obtaining a warrant, could search a private home

10

without one to make sure that what they were

looking for was really there-and would still be

there when the warrant arrived. No doubt things

would be easier for the police were that option

available, “[b]ut the Fourth Amendment reflects

the view of those who wrote the Bill of Rights

that the privacy of a person’s home and property

may not be totally sacrificed in the name of

maximum simplicity in enforcement of the

criminal law.’’ Mincey v. Arizona, 437 U.S. 385,

393 (1978).

Slip opinion, p. 17

As Judge Merritt correctly noted: ‘The only thing the

agents had reason to believe,’’ at the time of Petitioner’s

arrest,

house.

“was that the cocaine remained inside the

7

The facts did not warrant anything more. No

evidence was presented at the suppression

hearing to indicate that Korman’s arrest could

have been detected by anyone inside the house

with a motive to destroy the cocaine. Indeed, the

only information on that score indicated that

Korman’s arrest took place around the corner on

another street, approximaely 400 yards away

from the Korman residence. None of the agents

recalled seeing the 1978 Lincoln [previously

observed and associated with Petitioner]

anywhere in the vicinity or any other evidence

of “counter-surveillance.”” If Korman’s swift

departure from his house is taken to indicate

that he had learned of the officer’s presence and

was leaving others behind to destroy the

evidence, the evidence would have already been

destroyed by the time the officers returned to the

11

home after the arrest. It is possible, but only one

of many possibilities, that avoidance of

apprehension and destruction of the cocaine was

the purpose of the swift departure.

Slip opinion, p. 20

Other Appellate Court decisions have required a far

higher degree of certitude regarding the likelihood of

the destruction of evidence to justify warrantless entry

into a dwelling.

As the Fifth Circuit noted in United States v. Davis,

423 F2d 974, 979 (5th Cir. 1970):

There is almost always a partisan who might

destroy or conceal evidence. Under the

government's theory, if a man were arrested in

New York, it would be perfectly reasonable to

search his home in California to prevent his

wife’s destruction of evidence. Using the same

reasoning, the police could return to the scene of

arrest, be it home or office, and conduct a search

at any time following an arrest. The

government’s reasoning provides no _ logical

temporal or spatial limitation to the theory of

search incident to lawful arrest. We must either

reject the government’s view or adopt the idea

that a person’s Fourth Amendment rights cease

at the time of arrest. We prefer the former.

In fact, the instant case represents a marked departure

from previous Sixth Circuit decisions notably United

States v. Criffin, 502 F2d 959 (6th Cir. 1974), United

States v. Hayes, 518 F2d 675 (6th Cir. 1975), United States

v. Jackson, 533 F2d 314 (6th Cir. 1976). Indeed, in both

Griffin and Jackson the Court noted that it has never

12

held that a warrantless entry would ever be justified

except where the searching agents had positive

knowledge that evidence was being destroyed.

Although several courts, including the Third Circuit in

United States v. Rubin, 474 F2d 262 (3rd Cir. 1973) have

held that less than positive knowledge may justify a

warrantless entry into a dwelling house, in both Griffin

and Hayes, the Sixth Circuit had noted that it was

leaving open the question of the propriety of the Rubin

holding. United States v. Griffin, 502 F2d supra, at 961,

Note 1; United States v. Hayes, 518 F2d supra at 677,

Note 1.

This Court has not recently and squarely addressed

the question of “‘protective’’ warrantless entries, or the

quantum of knowledge or exigency which might be

held to justify such entries.

Such a ruling would be of value to the lower courts,

and the case at bar presents an appropriate vehicle

through which to promulgate such a ruling.

Indeed, whether or not the Court finds it appropriate

to speak now on the question posed by this case

generally, the Court should nonetheless act to correct

the manifest injustice done the Petitioner, since under

no rational view of the Fourth Amendment can the

majority opinion below be justified.

As Judge Meritt wrote in dissent:

Ethically and historically our society strongly

resists warrantless break-ins of private homes.

The Founding Fathers adopted the Fourth

Amendment to prevent this specific practice, a

practice that was a contributing cause of the

revolution of the American colonies.

Slip opinion, p. 19

13

This Court has never upheld a search under an

“exigent circumstances” rationale in the absence of a

real emergency, and a showing of a high probability of

the existence of the risk sought to be avoided. The

Court should not let stand a decision, such as the one

below, that so dilutes the protection afforded by the

warrant clause. If the case at bar presents exigent

circumstances sufficient to avoid the impact of those

protections, then there is no case which would not, and

the exception has swallowed the rule.

CONCLUSION

For these reasons the Court should issue a Writ of

Certiorari to the Sixth Circuit Court of Appeals, that it

might review the substantial question herein posed.

Respectfully submitted,

N.C. DEDAY LARENE

Attorney for Petitioner

1500 Buhl Building

Detroit, Michigan 48226

(313) 962-3500

Dated: February 28, 1980

15

APPENDIX A

(Reprint Opinion of Sixth Circuit)

No. 79-5040

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

On APPEAL from the

— United States Dis-

Ve | trict Court for the

RonALD L. KorMAN, Eastern District of

Michigan.

Defendant-Appellant.

Decided and Filed January 31, 1980.

Before Weick and Merritt, Circuit Judges and Percx,

Senior Circuit Judge.

Weick, Circuit Judge, delivered the opinion of the Court

in which Peck, Senior Circuit Judge, concurred. MERRITT,

Circuit Judge, (pp. 14-22) delivered a separate dissenting

opinion.

Weick, Circuit Judge. This case involves the interception

by Customs Inspectors at the Miami International Airport

of a courier arriving from Bolivia, Santa Cruz, South America,

carrying a yellow suitcase with a false bottom secreting 982

grams (2.2 pounds) of cocaine destined for delivery in De-

troit to the buyer, and the legality of proceedings which

followed.

Defendant-Appellant Korman was charged in three counts

of an indictment with (1) conspiracy with intent to dis-

16

2 United States v. Korman No. 79-5040

tribute and to distribute approximately 1000 grams (2.2

pounds) of cocaine, a Schedule II Narcotic Drug Controlled

Substance in violation of 21 U.S.C. § 846, (2) possession

with intent to distribute approximately 29.6 grams of co-

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

with intent to distribute approximately 3.1 grams of cocaine

in violation of 21 U.S.C. § 841(a)(1).

The district court after conducting an evidentiary hear-

ing denied Korman’s motion to suppress evidence. Korman

was then tried and convicted by a jury on all three counts

of the indictment. He was sentenced to four years on each

count to the custody of the Attorney General, the terms to

be served concurrently.

On appeal to this court, Korman does not question the

weight or sufficiency of the evidence supporting his con-

viction which was overwhelming. Instead, Korman asserts

that the trial court erred in admitting evidence to the effect

that after his arrest there was an alleged illegal entry into

his residence which entry was for the purpose of securing

the premises against destruction of evidence while the of-

ficers, after midnight, were engaged in obtaining a search

warrant from a magistrate. During such entry to secure

the premises, there was no seizure of any evidence by the

officers.

Korman further complains that during the search of the

residence authorized by the search warrant, a green ski jacket

described in the affidavit for the warrant was seized, but inad-

vertently omitted from the warrant issued and was admitted

into evidence. He also complains of error in the admission

of testimony of the co-conspirators.

For the reasons hereinafter set forth, we find that no

prejudicial error occurred in the proceedings and therefore

affirm the judgment of conviction.

17

No. 79-5040 United States v. Korman 3

I

John Keith DeSmyter arranged for jack Blanchard, the

courier, to go to Bolivia and bring back to DeSmyter in

Detroit a suitcase containing the narcotics. Blanchard was

to receive $10,000 for his services.

In Bolivia, Blanchard met DeSmyter who handed to

Blanchard a yellow suitcase containing the 982 grams of

cocaine secreted in a false bottom in the suitcase and in-

structed Blanchard to take it to Detroit and contact Attorney

Donald Turner in the event, he, DeSmyter, was not available.

When Blanchard arrived at the Miami International Air-

port he was arrested by Custom’s Inspectors who dis-

covered the 982 grams of cocaine in the false bottom of the

suitcase he was carrying. Shortly after his arrest, Blanch-

ard agreed to cooperate with the authorities in making the

delivery of 29.6 grams of cocaine (replaced in the suitcase )

in order to apprehend the purchaser who turned out to be

Korman and other conspirators. An electronic device

(beeper) was implanted in the suitcase.

After his arrival in Detroit, Blanchard made five or six

monitored telephone calls to Attorney Turmer. A synopsis

of the telephone calls made on March 26, 1978 indicated

that:

“A) Donald Turner knew Keith DeSmyter and De-

Smyter was a friend and client of his.

B) Turner referred to the Holiday Inn that Blanchard

was to stay at in Detroit. (“The one on Tele-

graph”) (Corroborates Exhibit 4).

C) Jack Blanchard was a perfect stranger to Turner.

D) Turner advised Blanchard on some alternative

motels close to the Holiday Inn he was to stay at

and that if anyone called looking for Blanchard

he would advise him.

E)

I)

J)

18

United States v. Korman No. 79-5040

Turner, based on the conversation, was advised

by Blanchard that someone was to come to the

hotel room and pick up a suitcase from Blanchard

with “stuff” in it.

Turner advised Blanchard, “If you don't get a

room at any of the places, call me back.”

Turner informed Blanchard he doesn’t know of

a way to get in touch with DeSmyter.

Turner asks twice what kind of phone Blanchard

was calling on.

Turner tells Blanchard that he introduced Keith

DeSmyter the last time he was in town to a friend

of his, and that “they got along pretty well to-

gether.”

Blanchard advised Turner that he did business for

Keith DeSmyter in Bolivia and that he was ad-

vised by DeSmyter that if he had any complica-

tions was to call Turner.

Turner stated that “certain people play with big

things.”

Turner also stated that the kind of things that

Keith likes to play with are “airplanes or what-

ever.”

Turner further advised Blanchard that “youre

talking about a lot of money.”

Turner also informed Blanchard that “people can

... get hurt over” these things.

Turner told Keith DeSmyter that he did not want

to know what was going on.

Turner acknowledged to Blanchard that another

close friend of his was interested in meeting Keith

DeSmyter and that DeSmyter had called him be-

fore he went to Bolivia.

19

No. 79-5040 United States v. Korman 5

Q) That Turner’s close friend and Keith wanted to

get together, “let’s put it that way,” and that this

friend had passed up talking to some other friends.

R) Turner advised Blanchard that a friend of Keith’s

got busted at the Florida airport with “4 pounds

of something.” Blanchard advised Turner “he’s

the only one that came in.”

S) Turner informed Blanchard that he will call this

friend of his to see if he knows anything.

T) Turner advised Blanchard that if this friend had

previously contacted Keith and that “if he wants

to talk to you I’ll tell him where you're at.” “The

guy is straight.”

U) That Turner advised Blanchard that he called

this guy—that he apparently knew about “this”

and he had talked to Keith “Before he left.”

V) Turner described this man’s physical appearance;

that the guy wil use a fictitious name “Sonny” and

that he’s been waiting and will come to your room.”

(Government's Brief pp. 6-8)

Shortly after these telephone calls were made by Blanch-

ard to Turner, Sonny (Korman) arrived at the hotel room

of Blanchard in Southfield, Michigan wearing the green ski

jacket. Blanchard delivered the suitcase to Korman con-

taining the beeper and 29.6 grams of cocaine secreted in-

side and the key for the suitcase. Korman left the hotel

and met an unidentified male and proceeded to his 1978

Oldsmobile placing the suitcase in the trunk of the car. At

the same time a 1978 Lincoln driven by the unidentified

male followed Korman in what appeared to be counter-

surveillance. The agents also followed Korman to his place

of residence where at least three and possibly four automo-

biles including Korman’s were parked in front of his house.

Korman then left his place of residence driving at a high

20

6 United States v. Korman No. 79-5040

rate of speed and was arrested by the agents about 400 feet

away.

The district judge in finding an emergency and that exigent

circumstances existed which permitted the securing of the

premises in the manner which was done by the agents

stated:

“Notwithstanding that, however, the court still finds that

the agents were possessed of knowledge, and that we had

the type of situation present here, the type of exigent

circumstances, which allows the securing of premises in

this manner as was done by the agents in this case.

The court will not repeat at length matters that we have

gone over in this case earlier concerning the surveil-

lance of the narcotics in question, the implanting of the

electronic device in the suitcase, the substitution for the

original product of some cocaine plus some neutral sub-

stance to simulate the cocaine. Those factors are all

significant because of what they would reasonably leave

the agents to conclude might be happening. As the

surveillance was recounted again today, they were fol-

lowing the individual who ultimately turned out to be

Defendant Korman in this matter both visually and also

by the use of this electronic beeping device. In the

course of that surveillance, they also observed another

car, described as a Lincoln, which the agents in their

opinion concluded was in proximity to the automobile

being specifically surveilled for the express purpose of

serving as a counter-surveillance vehicle. Upon ulti-

mately following the beeper, after losing contact for

awhile, to what they ultimately learned to be the Sher-

wood address in Huntington Woods of the defendant,

they continued to surveil the house and observed,

among other things, the presence of — counting the de-

fendant’s car — at least three automobiles and, depend-

ing upon which version you credit of the testimony

given earlier today, possible four automobiles. In-

sofar as which version to credit is concerned, the court

21

No. 79-5040 United States v. Korman 7

would have no reason to discredit the agent’s version

because Mrs. Korman’s version is not really contrary

thereto. It merely states that at an earlier point in

time, she was aware of only two Cadillacs and one Olds-

mobile being — the latter being the car that her hus-

band ultimately exited the premises in.

At or about one o'clock in the moming, the agents ob-

served the Defendant Korman exit in a hurried manner,

quickly get in his car and depart the scene. And at that

time, the decision was made and, as defense counsel

said, as far as he is concerned for the purposes of this

motion anyway, legitimately, to arrest the defendant at

that time. The defendant at the point was not coopera-

tive with the officers in any way, not to suggest there

there is any requirement that he be such. But it is an

ingredient in the subsequent decisions made by the of-

ficers. The officers has ascertained that the suitcase

was not in the car and that none of the contraband was

in the car or on the person of the Defendant Korman.

And they also, the testimony indicates today, were not

able initially to determine by their electronic tracking

devices whether the suitcase had been in the car at the

time that it left. But a subsequent search of the car

revealed that it wasn't.

At that point, the totality of the circumstances reason-

ably suggested to the agents that some emergency had

occurred, that the defendant had either become aware

of the implanted beeper, had become aware that there

had been a substitution for some of the cocaine that

had been in the suitcase; and that, coupled with what

they thought to be or could have been at least the

presence of other individuals back at the residence, led

them to reasonably conclude that evidence and contra-

band was in immediate danger of being destroyed, and

led them to secure the premises in the manner that was

testified to.

In that regard, it should be further noted that the sub-

22

United States v. Korman No. 79-5040

stance cocaine that was being dealt with here was in a

relatively limited quantity and is a substance that is

extremely easy to dispose of. Additionally, the beeper

itself is a small electronic device which is easily de-

stroyed or disposed of.

Furthermore, not that the conduct of the agents there-

after would justify what would be an otherwise illegal

action, it should be noted that there is no suggestion,

particularly from the testimony offered by the wife of the

defendant here, that the agents were knocking down

doors or otherwise conducting themselves in a manner

other than was minimally necessary to secure the

premises.

It is also to be noted in this regard that the case law is

clear that the agents, in reaching a decision of the na-

ture that they did here, need only have sufficient in-

formation to justify the warrantless entry to reasonably

conclude that evidence would be destroyed or removed.

A hindsight, Monday-morning quarterback position,

which might show that in fact that was not about to

happen, is not the standard by which their conduct is

to be judged, but rather the situation as it appeared to

them at the time.

So the court accordingly concludes that there was suf-

ficient information and that the totality of circumstances

in the possession of the agents at that time led them to

reasonably conclude that it was necessary to secure the

premises in question, that they did so with a minimum

of intrusion, and they subsequently secured as the court

has ruled, a proper search warrant which ultimately re-

sulted in the seizure of the other items that we are here

connected with.

So, for those reasons, the court is denying the motion

to suppress.” : (App. pp. 93-97).

In discussing the admissibility in evidence of the green

ski jacket, the district judge stated:

23

No. 79-5040 United States v. Korman *

“The search warrant and affidavit in question were is-

sued in connection with a narcotics investigation sub-

sequent to an arrest of one of the alleged principals and

subsequent to the securing of the residential premises

at which resided Mr. Korman, who was the alleged ar-

rested principal in regard to this case.

It is significant to note that the warrant was obtained

in effect in the middle of the night, and that the agents,

after securing the premises, had to call and get out of

bed an assistant United States attorney, who helped

them formulate the preparation of the affidavit, put it

in appropriate language, which was then taken to a

magistrate, also in the middle of the night, and was re-

viewed and a search warrant issued.

All of the papers that the court has before it — and pre-

sumably they are what was presented to the magistrate,

or photocopies thereof — are handwritten, is that cor-

rect, Mr. Andreoff?

MR. ANDREOFF: That is correct, with the exception

of the beeper warrant, your Honor, which was attached.

THE COURT: The handwritten affidavit is relatively

lengthy and also in part relatively difficult to read. But

insofar as it is pertinent to the matter under discussion

here, it does indicate, in what appears to be paragraph

1 thereof, that the agents, in the course of securing the

residence observed in open view an Oldhouse triple-

beam scale, commonly used in the weighing of con-

trolled-substance, the green ski jacket worn by — is the

reference to “Sonny”? Is that the —

MR. ANDREOFF: (lInterposing.) That is correct.

THE COURT: (Continuing) — the name that the in-

dividual was known by at that time in the state of know-

ledge — the green jacket worn by Sonny when the suit-

case was obtained at the hotel.

That language is somewhat out of context and is more

10

24

United States v. Korman No. 79-5040

meaningful when the other affidavit that was involved

with the other search warrant and was earlier issued and

attached hereto is read, in which it explains the circum-

stances leading to the pick-up of the narcotics at the

hotel and the description therein of another unknown

person coming to the hotel. This was the person who

was wearing the green ski jacket.

Pursuant to that type of representation, the warrant

ultimately issued in language that reads as follows rela-

tive to what could be seized. And I quote:

“. . a yellow Oshkosh suitcase, eighteen inches high,

twenty-six inches long, eight inches deep with chrome

fasteners on top with no markings and a yellow plastic

handle containing 28 grams of cocaine, said article be-

ing utilized for purposes described in affidavit, scales,

paraphernalia, monies, firearms and other instrumental-

ities also utilized for said purposes.”

There is no doubt that the ski jacket was specifically

referenced in the affidavit and could have specifically

referenced in that portion of the search warrant itself

which enumerates those items to be seized.

However, viewing the totality of the circumstances here

and all of the allegations of the affidavit, and the lan-

guage that was actually used, it is the ruling of the court

that the phraseology “other instrumentalities and/or

paraphernalia” is broad enough and properly includes

the green jacket which was specifically referenced in the

affidavit for the search warrant.

The court reaches that conclusion primarily for two rea-

sons. First of all, there is no doubt that based upon

what was presented to the magistrate, he had sufficient

before him to find probable cause for the seizing of the

green ski jacket. The fact that it isn’t mentioned spe-

cifically should not cause the warrant to be viewed as

defective in that aspect in the opinion of this court,

however, because to do that would be to engage in the

aw

No. 79-5040 United States v. Korman ll

type of hypertechnicalities and literal-mindedness which

the Supreme Court of the United States has criticized

in such cases as Vantreska, again remembering that the

underlying thrust of those cases is to encourage officers

to stop and take the time to get the warrant in question.

Here we have a middle-of-the-night situation, we have

an assistant United States attorney being reached by

telephone, we have a magistrate being gotten out of

bed in the middle of the night, we have a handwritten

affidavit. And it appears clear that the green ski jacket

was within the purview of the knowledge of the magi-

strate when he issued this, and the fact that they chose

at that hour of the night to use some relatively broad

language in describing that which was to be seized is

not enough to defeat the warrant in this particular.

Now, an argument could be made that that language

is broad enough to include the seizure of all kinds of

things. But we are not dealing with that kind of specu-

lative situation. We are talking at this time only about

the green ski jacket. And the court’s ruling is limited

in that regard.

This brings us then to the question of whether the en-

tire procedure met the requirements of the Fourth

Amendment and other constitutional protections to be

afforded to the defendant in this regard. It is the con-

clusion of the court that proper procedures were fol-

lowed; and, accordingly, the motion to suppress is de-

nied.”

(App. pp. 88-92)

In our opinion, there was substantial evidence to support

the factual findings of the district court with respect to the

emergency and exigent circumstances and they are not clearly

erroneous. Its conclusions of law were correct. The district

court did not err in denying the motion to suppress.

In the present case, the DEA agents were confronted with

dealers in narcotics and conspirators caught red-handed. The

26

12 United States v. Korman No. 79-5040

narcotics were worth a large sum of money when processed

for sale at destination. The dealers in narcotics are well

known to be dangerous criminals usually carrying weapons.

_ The officers are risking their lives in confronting and arrest-

ing them. The case was tried before Judge Ralph Guy, of

the Eastern District of Michigan. Judge Guy was a former

United States Attorney who has tried cases involving nar-

cotics violations both as an United States attorney and as a

judge. He was familiar with the applicable law which he

properly applied in the present case. Michigan v. Tyler, 436

U.S. 499 (1978); United States v. McLaughlin, 525 F. 2d 517

(9th Cir. 1975), cert denied, 424 U.S. 904 (1975) followed

in United States v. Grummel, 542 F. 2d 789 (9th Cir. 1976)

cert..denied, 97 S. Ct. 763 (1979) and United States v. Ful-

ton, 549 F. 2d 1325 (9th Cir. 1977). See also United States

v. Guidry, 534 F. 2d 1220 (6th Cir. 1976).

As appellate judges, we ought not to engage in hyper-

technicalities which will hamstring capable and conscientious

officers of the law endeavoring to properly perform their

duties in protecting the public from harmful drugs. The air-

ports have been used extensively by narcotics dealers to

transport huge quantities of dangerous drugs from the sea-

ports to inland cities like Detroit. This court has reviewed

many of these cases. One of them is presently pending in the

Supreme Court awaiting decision after oral argument. United

States v. Mendenhall, No. 78-1821 Supreme Court, on writ of

certiorari to review United States Court of Appeals for the

Sixth Circuit en banc decision reported at 596 F. 2d 706.

I

Irrespective of the legality of the initial entry into the

residence to secure the premises, we can nevertheless examine

the balance of the underlying search warrant affidavit for

probable cause in order to determine whether the evidence

LEE LE TE LF A Di SO I Fe

27

No. 79-5040 United States v. Korman 13

lawfully obtained was sufficient to determine that the search

and seizure should be upheld.

We agree with the district court that probable cause

existed. We are also of the opinion that disregarding any

alleged information illegally obtained set forth in the affidavit

for search warrant, that the independent and legitimately ob-

tained evidence established probable cause.

The decision of the Supreme Court in Franks v. Delaware,

438 U.S. 154, 170-171 (1978) is controlling.

When paragraph 15 of the affidavit for the search war-

rant is excluded, the facts asserted in the balance of the af-

fidavit certainly established probable cause to believe that

evidence of a crime was located on the premises of Korman’s

residence and that the premises was the site of the suitcase

containing the cocaine.

We are further convinced beyond a reasonable doubt that

any error in the proceedings was harmless, Chapman v. Cali-

fornia, 368 U.S. 18 (1967). This is true particularly with re-

spect to the conspiracy count. The sentences on the remain-

ing counts, which involved cocaine found in the suitcase

after its seizure and cocaine found in the residence, were

concurrent.

Ill

The green ski jacket although seen in plain view and sub-

ject to seizure at the entry to secure the premises, was not

seized or searched until the search warrant was issued and

executed. It was seized pursuant to a lawfully executed

search warrant. United States v. McLaughlin, supra, United,

States v. Guidry, supra. It constituted evidence of the com-

mission of a criminal offense and was an instrumentality of a

crime. It could be seized although not specifically listed in

the search warrant. United States v. Alloway, 379 F. 2d 110-

111 (6th Cir. 1968).

28

14 United States v. Korman No. 79-5040

We are of the opinion for the reasons stated by the district

court that it did not err in admitting in evidence telephone

conversations of Donald Turner, a co-conspirator pursuant to

Rules 104(A) and 801(d)(2)(E) of the Federal Rules of

Evidence. United States v. Enright, 579 F. 2d 980 (6th Cir.

1978).

The judgment of conviction is affirmed.

Merritt, Circuit Judge, dissenting. Government agents en-

tered the residence of Appellant Korman in suburban Hunt-

ington Woods, Michigan, to “secure” it pending issuance of

a search warrant for cocaine they already had probable cause

to believe was there. Once inside, they conducted a “protec-

tive sweep” of the premises and acquired information that,

along with what they already knew, led to the issuance of a

search warrant. The principal question on appeal is whether

there were “exigent circumstances” justifying a warrantless

entry. I would hold that the agents’ entry violated the Fourth

Amendment and that the evidence ultimately seized under the

warrant should have been suppressed at Korman’s trial.

| a

After a jury trial, Korman was convicted of conspiracy to

possess with intent to distribute approximately 1,000 grams

of cocaine (count one), 21 U.S.C. § 846 (1976); possession

with intent to distribute 29.6 grams of cocaine (count two),

21 U.S.C. § 841(a)(1) (1976); and possession with intent to

29

No. 79-5040 United States v. Korman 15

distribute approximately 3.1 grams of cocaine (count three),

id. He was sentenced to concurrent four-year prison terms

on each count.

At the hearing on Korman’s motion to suppress, the testi-

mony showed that on March 25, 1978, Jack Blanchard was

arrested upon his arrival at the Miami airport from Bolivia as

he attempted to smuggle 982 grams of cocaine hidden in a

false-bottom suitcase past U. S. Customs Inspectors. He told

the arresting agents that Keith DeSmyter had sent him to

Bolivia to pick up the cocaine and had directed him to take

it to Detroit where he should contact Donald Turner, an at-

torney, for further instructions in the event DeSmyter him-

self was unavailable. Blanchard agreed to cooperate with the

agents by continuing his journey to Michigan under sur-

veillance.

After checking into a hotel in Southfield, Michigan, Blan-

chard had several telephone conversations with Turner that

were tape-recorded with Blanchard’s consent. During the

last conversation, Turner told Blanchard that he was sending

a friend over to the hotel to pick up the cocaine. Appellant

Korman soon arrived at Blanchard’s hotel room, and Blanchard

gave him a suitcase containing 29.6 grams of cocaine and a

hidden electronic beeper.

The agents tracked Korman and the suitcase to Korman’s

residence. A few minutes after the agents arrived, at about

1:00 A.M. on the morning of March 28, 1978, they observed

Korman leave the house in a hurry and drive away at a

high rate of speed. He was intercepted and arrested as he

turned the corner at the end of the block, approximately 400

yards down the street from his house. The suitcase was not

in the car.

The agents asked Korman’s permission to enter and search

his house but were refused. He told them that only his wife

and children were at home. The agents then went to the

Korman residence. When Mrs. Korman answered their knock

at the front door, they told her that Mr. Korman had just

30

16 United States v. Korman No. 79-5040

been arrested on drug charges and that they were “securing”

the residence pending the issuance and execution of a search

warrant. Mrs. Korman did not resist their entry, told them

that only she and her children were at home, and led them to

the bedroom where the children were sleeping. The agents

conducted what the government terms a “protective sweep of

the residence for any other armed suspects or persons involved

in the crime, and to ascertain whether the controlled sub-

stance or any of the evidence was being destroyed.” Govern-

ment brief at 13. The agents saw in plain view a set of scales

commonly used to weigh and measure narcotics, some powdery

residue on a night stand, and the green and yellow ski jacket

Korman had worn to Blanchard’s hotel room in which they

found a large wad of cash.

The information gathered during the “protective sweep”

was incorporated into an affidavit, along with a chronicle of the

events leading up to Korman’s arrest. One drug enforcement

agent remained at the Korman house to maintain security.

The rest left with the affidavit to obtain a warrant.

At approximately 4:00 A.M., the other agents returned with

a warrant authorizing a search of the premises. The search

turned up the bugged suitcase containing 29.6 grams of co-

caine; another 3.1 grams of cocaine found elsewhere in the

house; Korman’s green and yellow ski jacket; narcotics rec-

ords; assorted other narcotics paraphernalia; and more than

$4,000 in cash. Among Korman’s records, the agents. found

an address book containing the names “John Kieth DeSmyter”

and “Donald A. Turner” with corresponding telephone num-

bers and addresses. All of these items were introduced at

trial over Korman’s objection that they were fruits of an

unlawful search and seizure.

I.

The warrantless entry of Korman’s home “to secure the prem-

ises,” and the “protective sweep” which followed, constituted

31

No. 79-5040 United States v. Korman 17

a “search” within the meaning of the Fourth Amendment.

Hester v. United States, 265 U.S. 57, 58-59 (1924). It is axi-

omatic that “searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment — subject only

to a few specifically established and well-delineated excep-

tions.” (footnotes omitted ) Katz v. United States, 389 U.S. 347,

357 (1967). The question, therefore, is whether the entry fell

within any of the exceptions to the warrant requirement.

For obvious reasons, the Supreme Court has never recog-

nized a “securing-premises-in-anticipation-of-a-search-warrant”

exception to the warrant requirement. See United States v.

Griffin, 502 F.2d 959 (6th Cir.), cert. denied, 419 U.S. 1050

(1974). Such an exception would swallow the rule. The

warrant requirement protects the privacy of the home

by “interpos[ing] a magistrate between the citizen and

the police . . . so that an objective mind might weigh the

need to invade that privacy in order to enforce the law.”

McDonald v. United States, 335 U.S. 451, 455 (1948). This

crucial protection would evaporate if the police, before obtain-

ing a warrant, could search a private home without one to

make sure that what they were looking for was really there

and would still be there when the warrant arrived. No doubt

things would be easier for the police were that option avail-

able, “[b]ut the Fourth Amendment reflects the view of those

who wrote the Bill of Rights that the privacy of a person’s

home and property may not be totally sacrificed in the name

of maximum simplicity in enforcement of the criminal law.”

Mincey v. Arizona, 437 U.S. 385, 393 (1978).

The government contends, however, that a new exception

to the warrant requirement need not be fashioned for this

case, because the exigent circumstances doctrine is broad

enough to justify the agents’ conduct. The argument is that

it was necessary to enter the house without waiting to secure

a warrant in order to prevent the possible destruction of the

32

18 United States v. Korman No. 79-5040

cocaine by Korman’s confederates. The District Court ap-

proved the warrantless entry on this theory.

The agents testified that “securing” and “protective sweep”

of the residence was necessary because one of Korman’s con-

federates may have been engaged (again using para-military

language) in “counter-surveillance,” meaning, I take it, that

the confederate may have been watching Korman’s house

to see if Korman was being watched. They testified that, after

Korman left Blanchard’s hotel room with the bugged suit-

case and drove away in his car, he was followed by an un-

identified man driving a 1978 Lincoln. The two cars stopped,

a few miles away, parked side-by-side, and Korman conferred

briefly with the man before driving home alone. The agents

testified that the driver of the Lincoln was probably engaged

in “counter-surveillance.” The agents also testified that they

noticed three cars parked in the driveway of the Korman

home, indicating to them that more than just Korman and

his family were there. Given the ease with which cocaine

can be destroyed, and in view of Korman’s suspiciously hur-

ried departure from the house just prior to his arrest, the

fact that he did not bring the cocaine with him, the earlier-

detected “counter-surveillance” by the man in the Lincoln,

the presence of other vehicles in the Korman driveway, and

the lateness of the hour, the agents, according to the govern-

ment, could justifiably have believed that the evidence was

in danger of destruction and that they were, therefore, em-

powered to enter the house without waiting to secure a

warrant.

The inherent destructibility of cocaine alone cannot justi-

fy the warrantless entry in this case. Most forms of real evi-

dence can be easily removed, hidden, or destroyed. Drugs

can be consumed or poured down the drain. Bloodstains can

be mopped up; fingerprints, wiped away. Weapons can be

concealed or removed from the premises. Incriminating docu-

ments and counterfeit can be burned. The possibilities are

endless. If we were to hold that the ever-present danger of

33

No. 79-5040 United States v. Korman 19

losing evidence was, by itself, enough to dispense with the

warrant requirement, it is difficult to conceive of a case in

which a warrant would ever be required to search a private

dwelling.

The government’s citation to Ker v. California, 374 U.S. 23

(1963), is inapposite. In that case, the Supreme Court de-

termined that the danger of evidence destruction excused

the failure of the police to give notice before they entered a

private home to make a lawful arrest. But the entry itself

was legal. It was justified as necessary to effectuate the ar-

rest. See Katz v. United States, 389 U.S. 347, 355 n. 16 (1967).

The government's reliance upon our decisions in United

States v. Guidry, 534 F.2d 1220 (6th Cir. 1976), and United

States v. Delguyd, 542 F.2d 346 (6th Cir. 1976), is misplaced.

In those cases, the Court approved warrantless entries of

private homes where the investigating agents were justified in

believing that evidence was actually “in the process of de-

struction.” Vale v. Louisiana, 399 U.S. 30, 35 (1970). See also

Schmerber v. California, 384 U.S. 757 (1966). In neither case

did this Court suggest that warrantless searches of private

dwellings could be conducted merely upon the possibility

that evidence could be lost in the time necessary to obtain

a search warrant.

Ethically and historically our society strongly resists war-

rantless break-ins of private homes. The Founding Fathers

adopted the Fourth Amendment to prevent this specific prac-

tice, a practice that was a contributing cause of the revolu-

tion of the American colonies.

The “exigent circumstances” exception to the warrant re-

quirement depends on the existence of a real emergency.

See United States v. Finazzo, 583 F.2d 837, 845-47 (6th Cir.

1978), rev'd on other grounds, 99 S.Ct. 2047 (1979). An emer-

gency in turn depends on the immediacy of the peril and re-

quires a high degree of probability that the risk will become

34

20 United States v. Korman No. 79-5040

a reality. The facts must demonstrate that the risk is highly

probable, that it is more likely to occur than not.

Although the probability of the risk of destruction in the

instant case must be measured by the officers and the court

before the warrantless entry, the facts in hindsight are rele-

vant. Here there was no proof at all that the evidence

would have been destroyed. There was no proof about how

the remaining occupants of the house would have known they

were under surveillance or that apprehension was likely. In

fact, they did not know.

At the time of Korman’s arrest, the officers were faced only

with the possibility of destruction, not the high degree of

probability required for a warrantless entry. The only thing

the agents had reason to believe in these circumstances was

that the cocaine remained inside the house. The facts did

not warrant anything more. No evidence was presented at

the suppression hearing to indicate that Korman’s arrest could

have been detected by anyone inside the house with a motive

to destroy the cocaine. Indeed, the only information on that

score indicated that Korman’s arrest took place around the

corner on another street, approximately 400 yards away from

the Korman residence. None of the agents recalled seeing

the 1978 Lincoln anywhere in the vicinity or any other evi-

dence of “counter-surveillance.” If Korman’s swift departure

from his house is taken to indicate that he had learned of

the officer’s presence and was leaving others behind to de-

stroy the evidence, the evidence would have already been

destroyed by the time the officers returned to the home

after the arrest. It is possible, but only one of many possi-

bilities, that avoidance of apprehension and destruction of

the cocaine was the purpose of the swift departure.

Il.

The government also contends that suppression is not war-

ranted because the information gathered as a result of the

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35

No. 79-5040 United States v. Korman 21

unlawful entry and “protective sweep” was not material to the

finding of probable cause which led to the issuance of the war-

rant. The agents already had sufficient evidence to obtain

a search warrant. The evidence seized under the warrant,

therefore, cannot be said to have been “tainted” by the ante-

cedent illegal conduct. The government argues that Franks

v. Delaware, 438 U.S. 154 (1978), requires that we adopt this

analysis.

I disagree. In Franks, the Supreme Court considered the

consequences that should follow a determination that law

enforcement officers had incorporated intentional or reckless

falsehood in a search warrant affidavit. Suppression is re-

quired, the Court held, only when the false data is material

to the finding of probable cause. Thus, after Franks, the prop-

er approach for a reviewing court is to ascertain whether,

setting aside the false material, the remainder of the affidavit

establishes probable cause.

Franks involves no more than a rather straightforward ap-

plication of the familiar principle that the exclusionary rule

should be “restricted to those areas where its remedial ob-

jectives are . . . most efficaciously served.” United States v.

Calandra, 414 U.S. 338, 348 (1974). An unscrupulous law

enforcement officer is tempted to include false material in a

search warrant application because he desires to insure that

the magistrate will find probable cause ard issue the warrant.

The remedy fashioned by the Court in Franks effectively re-

moves that incentive by destroying any advantage the police

might hope to gain from lying. The deterrent purposes of

the exclusionary rule are served. A rule requiring automatic

suppression without regard to the materiality of false informa-

tion in a search warrant affidavit would be overkill just as

would conviction of securities fraud or perjury for irrelevant

misrepresentation.

The type of police misconduct involved in this case — illegal

entry — is critically different from cases involving misrepre-

sentation. It requires a different response if the deterrent

36

22 United States v. Korman No. 79-5040

purposes of the exclusionary rule are to be “efficaciously

served.” The need to gather more probable cause was not

a primary, or even significant, factor in the agents’ decision

to make the warrantless entry of the Korman residence.

Rather, the agents acted, as they told Mrs. Korman at the

time, to “secure” the premises until the search warrant they

were confident of obtaining could arrive. The advantage to

be gained in most cases from such action exists wholly apart

from the need to comply with the Fourth Amendment's prob-

able cause requirement. Indeed, the more certain the police

are of their probable cause, the stronger will be their desire

to “secure” the place they aim to search, so that the effort

to obtain a warrant will not be in vain.

The only effective means of removing this temptation is

to suppress all evidence taken from the place “secured,”

whether or not the warrant pursuant to which the evidence is

ultimately seized could have been obtained without the il-

legality. On facts virtually identical to our own, a panel of

this Court, consisting of then Chief Judge Phillips, former

Chief Judge Weick, and present Chief Judge Edwards, con-

cluded that “[a]ny other view would tend to emasculate

the search warrant requirement of the Fourth Amendment.”

United States v. Griffin, supra, 502 F.2d at 961. Unnecessary

misrepresentations may be deleted under Franks but we can-

not permit unnecessary and illegal entry into homes without

destroying the protections guaranteed by the Fourth

Amendment.

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