# Petition — Korman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 952

## Text

“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.

pe tiitasls iAalinn sal shi iste heaitcpeniitessatscati ls ome eae ob litaty

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1775%3A1. Public record. Not legal advice.