Petition — Fultz v. United States

i

IN THE o.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. @9-1912

DANNY LEE FULTZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

GEORGE E. BARRETT

W. GARY BLACKBURN

MICHAEL J. PASSINO

BARRETT, KNIFFEN

& BLACKBURN, P.C.

217 Second Avenue, North

Nashville, Tennessee 37201

Counsel for Petitioner

June 4, 1980

Washington, 0.C. + THIEL PRESS + (202) 638-4521

(t)

TABLE OF CONTENTS

Page

CRBS BET wn ccc cee cere eer w eee eneene 1

JURISDICTION 2.0 cece csc cece ccve csc escccnseces 2

QUESTIONS PRESENTED .... ccc cccscccccccccces 2

STATEMENT OF THE CASE .. cc cccccvccccccccccs 3

REASONS FOR GRANTING THE WRIT.............. 6

I. The Decision Below Conflicts In Principle, If Not

Directly, With Decision Of This Court And Other

Circuits With Regard To The Quantum Of Proof

Necessary To Establish The Reasonableness Of A

Dinas, WUNRIONE TOMRCR og 6 5 5b o's 0h Khloe ws weecae 6

II. Two Unique Questions Relative To The Judicial

Standard To Be Employed In Evaluating The

Reasonableness Of The Warrantless Search In The

Present Case, Have Not Been, But Should Be

eee ee ee ee Pera ee ee 11

PPPS Cee Tee ee eee eC ee eee 16

APPENDICES:

I. Opinion of Court of Appeals for the Sixth Circuit...... la

II. Memorandum Opinion and Order of the District

Court for the Eastern District of Tennessee .......... 7a

TABLE OF AUTHORITIES

Cases: Page

Armstrong v. McAlpin, 606 F.2d 28 (2d Cir. 1979)......... 13

Ashton v. Kentucky, 384 U.S. 195 (1966) .............. 11

Barnett v. D’Artois, 331 F. Supp. 1310 (W.D. La. 1971) ..... 9

Bech w Odio, 879 US. 09 (1084) oc. 6c ce cc n ccc naan: 8

Brown v. Texas, _— U.S. ——, 99 S. Ct. 2637 (1979) ...... 8

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............2.. 11

Camera v. Municipal Court, 387 U.S. 523 (1967) .......... 8

Carroll v. United States, 267 U.S. 132 (1924) ............ 10

(ii)

Page

Chenkin v. Bellevue Hospital Center, 479 F. Supp. 207

ey ihe ds kee «eek 10

Collier v. Miller, 414 f. Supp. 1357 (S.D. Tex. 1976) ....... 9

Connally v. Georgia, 429 U.S. 245 (1977). .......220000. 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .... 6,10,12

Cox v. Louisiana, 379 U.S. 586 (1965)... 0. cece ccc cnne 12

Cox v. New Hampshire, 312 U.S. 569 (1941)............. 12

Davis v. Mississippi, 394 U.S. 721 (1969) ....... 22 eee eee 9

Deleware v. Proise, 440 U.S. 648 (1979). ........5000- 8,10

Dellums v. Powell, 566 F.2d 157 (D.C. Cir. 1977) ......... 9

Gaioni v. Folmar, 460 F. Supp. 10 (M.D. Ala. 1978)........ 9

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ........ 12

Piazzola v. Watkins, 316 F. Supp. 624 (M.D. Ala. 1970),

OS |g | 9

Schenck v. United States, 249 U.S. 47 (1918) ............ 12

Sibron v. New York, 392 U.S. 40 (1967). ........255 000 9

Smith v. Arkansas State Hwy. Employees, 441 U.S. 463

POC RS. beak obese 6s ee cece cccen cee 11

Stanford v. Texas, 379 U.S. 476 (1965) ..........2006- 8,11

CE Si PERM PD sto ss ccc ccccccccccces 12

Thornhill v. Alabama, 310 U.S. 88 (1939)...........266- 11

UMW v. Illinois Bar Ass’n, 389 U.S. 217 (1967) ......... 7, 11

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ...... 10

United States v. DiRe, 332 U.S. 581 (1947).............4. 9

United States v. Frisbie, 550 F.2d 335 (5th Cir.), reh.

Eg 10

United States v. Martinez-Fuerte, 428 U.S. 543 (1976)...... 6

United States v. Miller, 452 F.2d 731 (10th Cir. 1971),

cert. denied, 407 U.S. 926 (1973) ..... cee eer eee vnee 10

United States v. O’Brien, 391 U.S. 367 (1968)............ 14

(112 )

United States v. Scott, 520 F.2d 697 (9th Cir. 1975),

ee BOR RR | ee ee ee 9

United States v. Skipwith, 482 F.2d 1272 (5th Cir. 19738) .... 6

Washington Mobilization Committee v. Cullinane, 566

PG 207 GUS CO ROTO) a va ww een ees eso nsces 9,15

Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977) ..... 9

Wilkes v. Wood, 19 How. St. Tr. 1153 (1763) ............ 8

Wong Sun v. United States, 371 U.S. 471 (1963) .......... 9

Ybarra v. Illinois, _ U.S. —_, 62 L. Ed. 2d 238 (1979)... 8,9

Zurcher v. The Sanford Daily, 436 U.S. 547 (1978) ...... 6, 11

Miscellaneous:

Note, 65 GEORGETOWN L. REV. 1025 (1977).........25. 13

TENN. CODE ANN. § 39-1218 (1975)... 2. ccc ccccvcecves 15

Ce, GUET CRRUNE. Fo chee ee ee Rese ecw eter reess 3

es SIU MEO Tho cc cece ee ree rerseesene tures 2

SS EE Fe ek eh kO bE K RRO EER OO COE ee 88 13

gs | BPS TE TOPE e ee eee ee er ae 3

re CEE os hk oe eee ee es 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DANNY LEE FULTZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Petitioner, Danny Lee Fultz, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Sixth Circuit entered in this proceeding on May 5, 1980.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

is annexed hereto as Appendix I. The memorandum

opinion of the District Court, not yet reported, is

annexed hereto as Appendix II.

]

2

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on May 5, 1980. This petition

for certiorari was filed within 30 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether knowledge that a carbine was fired from

the vicinity of union picketers provided a reasonable

basis for a warrantless search of the vehicles of all persons

present at the demonstration site.

2. Whether the reasonableness of the general search

for weapons should be scrutinized more carefully in view

of the fact the officer performing the search under color

of state law was also an employee of the company trying

to break the strike.

3. Whether the reasonableness of the general search

for weapons should be scrutinized more carefully in

view of the fact that those persons whose vehicles were

searched were engaged in activities protected by the first

amendment.

CONSTITUTIONAL PROVISIONS

INVOLVED

U.S. Const. amend. IV.

Unreasonable 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 violated, and no warrants

shall issue, but upon probable cause, supported by

oath or affirmation, and particularly describing the

‘

3

place to be searched, and the persons or things to

be seized. :

U.S. Const. amend. I.

Religious and political freedom.—Congress shall

make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition

the government for a redress of grievances.

STATEMENT OF THE CASE

Danny Lee Fultz was indicted and convicted in a

nonjury trial for a violation of 26 U.S.C. §§ 5861(d)

and 5871, possessing an unregistered sawed-off shotgun.

Fultz, sentenced to one year in prison, was released on

bond pending appeal. Prior to trial, a suppression hearing

was held, after which the District Court concluded that

the warrantless search of Fultz’s pickup truck was

reasonable. This conclusion was predicated upon the

finding that the deputy sheriffs, one of whom was a

part-time employee of the company against whom the

strike was directed, had probable cause to search Fultz’s

pickup truck and that exigent circumstances enabled

them to do so without a warrant. The Sixth Circuit

affirmed over the dissent of Judge Merritt. The facts

giving rise to Fultz’s appeal and this petition are as

follows.

On June 28, 1979, Danny Fultz was present at a

union picket line at the Donlin plant in New Tazewell

Tennessee, where his wife was stationed as a picketing

employee. Fultz, who was not a union member, had

driven to the site and parked and locked his pickup truck,

which was equipped with an enclosed camper top. The

4

camper top, which opened from the rear of the truck,

was locked.

At approximately midnight, shots were apparently

fired into the side of the Donlin plant. While persons on

the picket line had been shooting firecrackers, Worsham,

a security guard, observed what he believed to be muzzle

flashes from a carbine rifle.!

Mr. Watson, a deputy who was also present at the

plant, heard two reports, which he thought were fire-

crackers, followed by six or eight more reports where

bullets struck the building. Worsham immediately called

local police officers, who arrived at the scene without

use of their emergency equipment.

The officers were told that the shots had initially been

presumed to be exploding firecrackers; that the shots

were fired from a carbine rifle; and that the muzzle

flashes had been observed in a wooded area behind the

picketers. The officers then proceeded to the site of the

picketing. Four patrol cars converged on the scene and

were positioned such that the area was illuminated by

their headlamps and egress was blocked. At this point,

one of the officers stated that he had no idea whether

there were any weapons in Fultz’s pickup truck.

An officer asked the 15 persons congregated at the

scene if they had fired any weapons or heard shots fired.

According to an officer’s testimony, someone said that

shots had been fired, but that they didn’t know where.

However, other witnesses testified that the officers had

been told that shots had been fired from a wooded area

some distance away.

1Whether the record established gun fire or carbine fire was

hotly disputed by the Sixth Circuit. While the petitioner’s position

is set forth in the text, probable cause to search does not exist

regardless of which construction of the record this Court adopts.

5

Dissatisfied with the response, it was announced that

the officers intended to search every vehicle, “if it took

all night.”” A deputy sheriff conducted a Terry pat-down

of one man, who had his hands in his pockets. Only fire-

crackers were found. While one of the officers testified

that he was concerned for his personal safety, the above

was the only Terry search. The officers then instructed

everyone to walk to, and stand beside his or her vehicle.

Thirty minutes after receiving the shooting report, the

police began to search all of the vehicles. Under the

frame of a bus a recently discharged M-1 carbine rifle

was discovered.

Fultz’s pickup was searched by an officer, who was

also a part-time employee of the company seeking to

break the strike. After being ordered to unlock the

camper, and after being told that, “if you don’t open

it, I will,’ Fultz unlocked the camper door. Since Fuitz

did not open the door, and since he stood mute after

unlocking the door, the trial court ruled that it was not

a consent search. Forty-five minutes after the shots had

been fired, Fultz’s shotgun was discovered hidden under

a mattress and blanket in the back of his camper. It had

not been fired recently.

There was no testimony that Fultz was believed to be

armed, that he acted suspiciously, that it was probable

that weapons were secreted in his pickup, or that he was

connected with the shooting incident. Fultz’s car was

searched because he was present at the picketing site.

The search was held to be reasonable, Fultz was

convicted, and the court imposed a one-year sentence

upon a first offender, a life-time resident of Claiborne

County and a father with three young children.

6

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW CONFLICTS IN PRIN-

CIPLE, IF NOT DIRECTLY, WITH DECISIONS

OF THIS COURT AND OTHER CIRCUITS WITH

REGARD TO THE QUANTUM OF PROOF

NECESSARY TO ESTABLISH THE REASON-

ABLENESS OF A MASS, WARRANTLESS

SEARCH

This Court has announced on countless occasions

that under the fourth amendment warrantless searches

are per se unconstitutional unless the government can

justify its actions under one of several carefully defined

exceptions. E.g., Coolidge v. New Hampshire, 403 U.S.

443, 454-55 (1971). These judicially-created exceptions

have developed from the reasonableness requirement and

have evolved from a balancing of the public interest on

the one hand, and the rights of the individual protected

by the fourth amendment on the other. United States

v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). Three

factors have been crucial in determining the reasonable-

ness of a particular warrantless search: the strength of

the public necessity to search, and the degree and nature

of the intrusion upon the individual. See, e.g., United

States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir. 1973).

In the present case, a fourth factor exists that sup-

ports granting a writ: defendant and the other persons

whose vehicles were searched were engaged in a union

demonstrstration, activity that is protected by the first

amendment.” Cf. Zurcher v. The Stanford Daily, 436

U.S. 547, 558 (1978) (reasonableness requirement

must be applied with “particular exactitude when first

2The first amendment issues are discussed more fully in section

ll, infra.

7

amendment materials involved); UMW v. Illinois Bar

Ass'n, 389 U.S. 217, 222 (1967) (union right to assemble

and petition for redress of grievances). While each

fourth amendment case must turn on the particular facts

presented, this court has been able to identify broad

categories into which most factual situations can be

divided, and from this, to define a minimally acceptable

quantum of proof necessary to satisfy constitutional

standards. Yet, in the many years that this Court has

decided fourth amendment cases, it has not been faced

with the necessity to analyze the respective fourth

amendment interests of the police and individuals in

union demonstrations in cases in which violence may,

or has occurred. 3

It is imperative that this Court address the above issue.

First, the issue of violence during union demonstrations

involves a not uncommon situation nationwide. Second,

the issue is particularly important in the Southern states,

where union organizing and demonstrations are occurring

with increasing frequency. Third, given the clear first

amendment issues involved, a failure to define and ade-

quately assess fourth amendment issues in the context of

union demonstrations would involve a radical departure

from previous cases in which first and fourth amendment

considerations merited serious judicial consideration.

Such a failure could result in chilling the first amendment

rights of union demonstrators. Fourth, in view of the

fact that violence may be reported to police by the

company opposing union demonstrators, the potential

for harassment of labor is great, and a clear definition of

the information required to support mass arrests or

searches would substantially further both societal and

individual interests in future situations. The following

subsections set forth the conflicts in principle between

8

the Sixth Circuit’s decision and decisions of this Court

and other circuit courts.

(a) Indwidualized suspicion. In most fourth amend-

ment cases, the reasonableness standard is implemented

by requiring “at a minimum, that the facts upon which

an intrusion is based be capable of measurement against

an objective standard, whether this be probable cause !!

or a less stringent standard.”* Deleware v. Prouse, 440

U.S. 648, 654 (1979). This objective standard is directed

to the elimination of intrusions resulting from the

exercise of the unbridled discretion of police officers or

public officials.

Armed with their roving commission, they set forth

in quest of unknown offenders; and unable to take

evidence, listened to rumors, idle tales and curious

guesses. They held in their hands the liberty of

every man whom they were pleased to suspect.

In the recent case of Ybarra v. Illinois, __. U.S. __.,

62 L. Ed. 2d 238 (1979), Justice Stewart invalidated a

mass search of bar patrons, unsupported by probable

cause or even articulable suspicions, stating that each

3E.g., Beck v. Ohio, 379 U.S. 89 (1964) (probable cause is

such information as would justify a reasonably prudent person

in believing that the person arrested was guilty of a crime). For

the difference between probable cause to arrest and probabie cause

to search, see Zurcher v. The Stanford Daily, supra, 436 U.S. at

556, n.6.

4E.g., Brown v. Texas, _— U.S. __, 99 S. Ct. 2637 (1979)

(seizure based on less than probable cause must be supported by

specific objective facts); Deleware v. Prowse, 440 U.S. 648, 661

(1979),

5Stanford v. Texas, 379 U.S. 476, 483 (1965), quoting, Wilkes

v. Wood, 19 How. St. Tr. 1153 (1763). See also Camera v. Munici-

pal Court, 387 U.S. 523, 535 (1967) (public interest does not

justify sweeping search for contraband).

9

person present ‘‘was clothed with constitutional pro-

tection against an unreasonable search or an unreasonable

seizure.” Jd. at 246. Further, Justice Stewart emphasized

that one’s mere propinquity to others independently

suspected of crime does not give rise, without more, to

either probable cause or reasonable suspicion. /d. at 245;

Sibron v. New York, 392 U.S. 40, 62-63 (1967); United

States v. DiRe, 332 U.S. 581, 583-87 (1947). The rule

in Ybarra applies even though violence may be suspected.

Cf. Washington Mobilization Committee v. Cullinane,

566 F.2d 107, 120 (D.C. Cir. 1977) (one may not be

arrested for violence committed by others); Barnett v.

D’Artots, 331 F.Supp. 1310, 1318 n.16 and accom-

panying text (W.D. La. 1971) (mass arrests based on

knowledge that demonstrators armed and in possession

of Molotov cocktails are improper). Nor is the claim

of exigent circumstances sufficient to circumvent Ybarra

without a showing of objective facts supporting the

intrusion. See Wong Sun v. United States, 371 U.S. 471,

479-80 (1963) (exigency not substitute for probable

cause); United States v. Scott, 520 F.2d 697, 700 (9th

Cir. 1975), cert. dented, 423 U.S. 1056 (1976).

In view of the above, with the exception of airport

and courthouse searches, mass searches without an

objectively verifiable factual predicate have been uni-

formly condemned. Davis v. Mississippi, 394 U.S. 721,

726-27 (1969); Dellums v. Powell, 566 F.2d 167, 181

n.31 (D.C. Cir. 1977) (war demonstration); Gatoni v.

Folmar, 460 F.Supp. 10, 13 n.9 (M.D. Ala. 1978)

(rock concert); Wheaton v. Hagan, 435 F. Supp. 1134

(M.D.N.C. 1977) (rock concert); Collier v. Miller, 414

F. Supp. 1357, 1361 (S.D. Tex. 1976) (mass searches

unreasonable); Piazzola v. Watkins, 316 F. Supp. 624,

625-28 (M.D. Ala. 1970), aff’d, 442 F.2d 284, 287

10

(5th Cir. 1971) (fishing expeditions unlawful). But see

Chenkin v. Bellevue Hosp. Center, 479 F. Supp. 207

(S.D.N.Y. 1979).

In the present case, even assuming that the rifle shots

were shown to have been fired by the union demon-

strators, there is absolutely no evidence supporting a

conclusion that Fultz was justifiably searched. This

issue is important, and must be reviewed.

(b) “Automobile” not talisman. The privacy expec-

tation of union demonstrators in the sanctity of their

parked and locked automobiles is similar to that relating

to one’s house. Cf. Deleware v. Prouse, supra, 440

U.S. at 662-63 (great sense of security and privacy in

automobile). This is especially true in the present case,

in which the cars were being used as a base of operations,

not a mode of conveyance. Further, this expectation

was not defeated by the actions of the police in ordering

the demonstrators to walk to, and stand by their vehicles.

Cf. Coolidge v. New Hampshire, supra, 403 U.S. at

456-57 (even pre-Chimel arrest outside house would

not justify search in house).

Contrary to the conclusion of the trial court, Carroll

v. United States, 267 U.S. 132 (1924) is inapposite.

This follows since no exigency was shown; no revsonable

suspicion was described supporting an arrest or detention

of any of the union demonstrators, e.g., United States

v. Brignoni-Ponce, 422 U.S. 873 (1975) (even border

stops require some objectively verifiable facts); and

no reasonable suspicion was described supporting the

conclusion that contraband was in a particular auto-

mobile. E.g., United States v. Frisbie, 550 F.2d 335,

337-40 (5th Cir.), reh. dented, 554 F.2d 1065 (1977);

United States v. Miller, 452 F.2d 731 (10th Cir. 1971),

cert. denied, 407 U.S. 926 (1973) (by implication).

11

The privacy expectations of the demonstrators in their

automobiles, the propriety of ordering them to stand by

their automobiles, and the quantum of proof necessary

to search those automobiles are all issues that should be

addressed in the context of the rights of those parttct-

pating in unton picketing.

TWO UNIQUE QUESTIONS RELATIVE TO THE

JUDICIAL STANDARD TO BE EMPLOYED IN

EVALUATING THE REASONABLENESS OF THE

WARRANTLESS SEARCH IN THE PRESENT CASE,

HAVE NOT BEEN, BUT SHOULD BE DECIDED

BY THIS COURT.

This Court has recognized that in cases in which first

amendment rights are involved, government regulation

of conduct is closely scrutinized. E.g., Brandenburg v.

Ohio, 395 U.S. 444, 447-49 (1969) (per curiam);

Ashton v. Kentucky, 384 U.S. 195, 200 (1966). And,

when first and fourth amendment issues are presented,

the requirements of the fourth amendment are applied

with “particular exactitude.” See, e.g., Zurcher v. The

Stanford Daily, supra, 436 U.S. at 525; Stanford v.

Texas, supra, 379 U.S. 476. While this Court has recog-

nized that union activities are presumptively protected

by the first amendment,® including picketing activities,’

it has not ruled upon the interrelationship between the

first and fourth amendment rights of those participating

in a union demonstration when violent incidents arise.

See, e.g., Smith v. Arkansas State Hwy. Employees, 441 U.S.

463 (1979); UMW ». Gibbs, supra, 389 U.S. at 222.

7See Thornhill v. Alabama, 310 U.S. 88, 98-100 (1939)

(peaceful demonstrations on public property). Cf. Youngdahl v.

Rainfair, 355 U.S. 131 (1959) (interpretation of N.L.R.A., 29

U.S.C. § 151: state courts without jurisdiction to enjoin peaceful

demonstrations).

12

The issues are obviously important, given the chilling

effect on first amendment richts that general searches

of all present during a potentially violent union incident

would have on lawful demonstrators who are merely

present. Cf. Nebraska Press Ass’n v. Stuart, 427 U.S.

539, 559 (1976) (threat of civil or criminal sanctions

can chill exercise of first amendment rights). While

this Court has held that first amendment rights are not

absolute and are subject to reasonable regulation, e.g.,

Cox v. Loutstana, 379 U.S. 536, 554-55 (1965); Coo

v. New Hampshire, 312 U.S. 569 (1941); Schenck v.

United States, 249 U.S. 47 (1918) (Holmes, J.: not

free to shout fire in theatre), and that the potential for

violence may lower the quantum of probable cause

required to seize a person, ¢é.g., Terry v. Ohio, 392 U.S.

1 (1967), it has generally insisted on strict application

of the fourth amendment requirements to warrantless

searches regardless of the potential for violence. In view

of the foregoing, the following issues, unique to the

labor demonstration involved in the present case, have

not been, but should be resolved.

(a) Dual allegiance of searching officer. The warrant

requiement of the fourth amendment is enforced strictly

because, given the severity. of intrusion into the private

lives of individuals seized, it is presumed that inferences

from facts arguably establishing probable cause would

be drawn more impartially by a neutral party

instead of being judged by the officer engaged in

the often competitive enterprise of ferreting out

crime.® [Emphasis added. ]

Given this concern for impartiality, it cannot be

doubted that, in a labor situation, the fact that an officer

who arrests or searches demonstrators under color of

8Coolidge v. New Hampshire, supra, 403 U.S. at 449.

13

state law and who also works for the company involved

in the dispute, has dual allegiances.

Here the government concedes that the deputy

sheriff of Claiborne County, Tennessee, who

conducted the search in question was in the pay of

the company trying to break the strike. We should

therefore scrutinize even more carefully than usual

any warrantless nighttime search. .. .°

There is no existing direct authority for the propo-

sition that such facts warrant strict scrutiny of the

reasonableness of the officer’s actions. Yet authority for

the proposition exists. Cf. Connally v. Georgia, 429

U.S. 2 > (per curiam) (issuance of warrant by justice of

peace who received five dollars violates requirement of

neutral and detached magistrate); 18 U.S.C. § 207 (The

Ethics in Government Act); Armstrong v. McAlpin, 606

F.2d 28 (2d Cir. 1979); Note, Conflicts of Interest and

the Former Government Attorney, 65 GEORGETOWN

L. Rev. 1025 (1977).

The Sixth Circuit apparently missed the point of this

argument. There, the majority concluded that it was

urged “‘to infer that the deputy acted differently in this

case than he would have in the absence of a connection

with the struck plant. . . .”’ The Sixth Circuit then

concluded that since the district court found that there

was probable cause and that the search was not unreason-

ably extended, the search was proper. Contrary to the

Sixth Circuit’s perception, it would be impossible to

prove what the officer would have done had he not been

in the company’s employ. Further, an inference that

he did act improperly would totally vitiate the search.

Rather, it is defendant’s position that when a warrantless

9 Appendix, at 4a (Merritt, J., dissenting).

14

search is involved, the question is the reasonableness of

the government’s actions. And, when a labor dispute

is involved, and when it is established that the officer

acting under color of state law in conducting a search

is also an employee of the company, that officer’s

actions must be absolutely reasonable, in light of the

facts surrounding the search and the alternatives available

to him.

While prior decisions of this Court cast serious doubt

upon the Sixth Circuit’s finding of probable cause, the

dual allegiance issue, if mandating a higher standard of

reasonableness, could invalidate the search even if prob-

able cause existed.

(b) Effect of Existence of Labor Dispute. As stated

previously, the existence of first amendment issues

subjects governmental action to close judicial scrutiny.

In view of the fact that Fultz was present at a labor

demonstration where a massive warrantless search took

place, the reasonableness of the officers’ actions in

searching all of the automobiles present, including

defendant’s, must be carefully reviewed. Such a review

must include a consideration of the least intrusive alter-

native available to the officers. Cf. United States v.

O’Brien, 391 U.S. 367, 377 (1968) (when government

regulates activity combining first amendment conduct

with other forms of conduct the incidental restriction

must be no greater than necessary to further a legitimate

governmental interest).

In the present case, aside from the failure to establish

reasonable facts or articulable suspicions with regard to

the necessity to search any specific demonstrator or any

specific automobile, the government failed to explain

why an initial Terry search would not have sufficed.

Further, assuming that future violence was imminent

15

(which is not established by the record), the government

did not attempt to explain why the demonstrators were

not advised to dispurse, see Washington Mobilization

Committee v. Cullinane, 566 F.2d 107, 120 (D.C. Cir.

1977), and advised that if they did not do so, they

could be arrested.'° In view of the significant issues

presented by this labor dispute, this Court should grant

the writ to identify the standard for review and the

weight of the interests to be balanced in determining

the propriety of mass searches of labor demonstrators.

1OTENN. CODE ANN. § 39-1213 (1975) provides, in relevant

part, that: “It shall be unlawful for any person to disturb the

peace ... by conduct calculated to provoke violence or a violation

of the law.”

16

CONCLUSION

For the reasons set out above, a writ of certiorari

should issue to review the judgment and opinion of the

Sixth Circuit.

Respectfully submitted,

BARRETT, KNI#t FEN

& BLACKBURN, P.C.

By: /s/

GEORGE E. BARRETT

By: /s/

W. GARY BLACKBURN

By: /s/

MICHAEL J. PASSINO

217 Second Avenue, North

Nashville, Tennessee 37201

Counsel for Petitioner

June 4, 1980

APPENDIX

la

APPENDIX I.

No. 79-5360

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,| APPEAL from the

United States District

Court for the Eastern

Danny LEE FULTz, District of Tennessee.

Defendant-Appellant.

V.

Decided and Filed May 5, 1980.

Before: Livery, Merritr and Kennepy, Circuit Judges.

The Court delivered a per curiam opinion. Judge Merritt,

Circuit Judge (pp. 4-6) delivered a separate dissenting opin-

ion.

Per Curiam. Defendant appeals from his conviction for

possession of a sawed-off shofgun in violation of 26 U.S.C.

§§ 5861(d) and 5871. The only issues before the court arise

from the district court’s denial of a motion to suppress the

shotgun as evidence and to return defendant’s truck from

which the weapon was seized.

The officers who searched the truck of the defendant had

no warrant. They had been called to the scene of a disturb-

ance in rural Claiborne County, Tennessee between midnight

and 1:00 a.m. A security guard at a plant where a strike was

going on reported that weapons were being fired toward the

plant from an area where five or six vehicles were parked

2a

2 United States v. Danny Lee Fultz No. 79-5360

some distance from the plant. When officers from the

sheriffs department arrived at the scene, the plant guard told

them he had seen muzzle flashes coming from the area “right

in the middle of the strikers.” Though the guard stated at

the hearing, on cross-examination, that at least one of the

weapons “sounded like a carbine,” he reiterated his previous

testimony that he saw “muzzle flashes” and “I knew they were

shooting from that end.”

When they arrived in the area from which the guard said

the shots had come, the officers were told by one of the

group congregated there that there had been no gunfire. The

officers searched all the vehicles in the area. Early in the

search, a carbine rifle was found under a school bus parked

with the strikers’ cars and trucks. The defendant argues that

even if there was probable cause to begin a search, it should

have been stopped when the carbine was found since no

other weapon had been identified. As we have shown, the

witness to the shooting told the officers “they” had been

firing shots and that he had seen several muzzle flashes. It

was reasonable for the officers to continue to search for other

weapons after the carbine was found. Discovery of the car-

bine gave additional reason to seek other weapons since the

officers then had reason to believe that the earlier disclaimer

was false.

We thus agree with the district court that the officers had

probable cause to search the vehicles. (The defendant was

not searched or frisked.) We also agree that under the cir-

cumstances the search could be lawfully conducted without

a warrant. The nearest judicial officer from whom a warrant

could be obtained lived approximately 13 miles from the

~ scene of the search. About five police officers were at the

scene. If one had been dispatched to get a warrant, it would

have been reasonable for the remaining officers to seize and

hold the truck of defendant and the other vehicles until the

warrant was obtained. The Supreme Court has held that

3a

No. 79-5360 United States v. Danny Lee Fultz 3

when there is probable cause for search of a vehicle there

is no difference for constitutional purposes between seizing

and holding a vehicle until a warrant is obtained and, on the

other hand, carrying out an immediate search without a war-

rant. “Either course is reasonable under the Fourth Amend-

ment.” Chambers v. Maroney, 399 U.S. 42, 52 (1970).

At oral argument counsel for the defendant stated that the

deputy who conducted the search was also involved financially

in the company which furnished security guards to the struck

plant. He emphasized that the deputy was acting in his

official capacity and that the search of defendant’s truck was

not a private search. Nevertheless, he urged this court to

infer that the deputy acied differently in this case than he

would have in the absence of a connection with the struck

plant and to hold that he conducted a “general search” that

was unreasonable. The district court heard the evidence

which related the tie between the deputy and the struck

plant. There was probable cause to conduct a search and

the district court found no unreasonable extension of the

search. This determination was not erroneous.

We find no merit in the remaining contentions of the

appellant.

The judgment of the district court is affirmed.

4a

4 United States vy. Danny Lee Fultz No. 79-5360

Merritt, Circuit Judge, dissenting. Here the government

concedes that the deputy sheriff of Claiborne County, Ten-

nessee, who conducted the search in question was in the

pay of a company trying to break a strike. We should there-

fore scrutinize even more carefully than usual any warrant-

less, nighttime search of the strikers’ personal effects con-

ducted by the deputy upon information furnished by the

company security guard — a man who was on loan from the

deputy’s private security guard service.

My reading of the record convinces me that the deputy

was told by the company guard only that the strikers had

fired several volleys from a carbine rifle. There is no evidence

that the strikers fired more than one weapon. The security

guard for the company testified as follows:

ete

Q. Now, while you were sitting in your pickup truck,

did you observe the strikers there, or where the

cars were parked down in this area?

A. Yes, sir. I could see them. And like I said, they

had been shooting firecrackers.

As I was sitting in my truck I heard a couple of real

loud — it didn’t exactly sound like firecrackers. I

turned to look, and I seen muzzle flashes.

Where were the muzzle flashes coming from?

Right out of the middle of where they were.

Oo? ©

When you say “they,” the strikers?

The court: What do you mean by “muzzle flashes?”

A. The fire that comes out of the end of a gun when

you shoot it.

(App. 10-11)

Q. Have you formed a conclusion in your mind, based

upon your knowledge of weapons as to what type of

weapon it was that you saw discharge?

5a

No. 79-5360 United States v. Danny Lee Fultz 5

A. I really hadn’t given much thought about that. I

just knew it was a gun.

Q. Haven't you testified before that you believe this

was a carbine?

It sounded like a carbine.

A

Q. And you owned an M-1 carbine yourself?

A. Yes, sir, I have.

Q

At that moment you thought a carbine would be

responsible for the fire?

A. Yes.

Q. Is that what you told Mr. Jesse and Mr. Ramsey

[the police officers]?

A. I said it sounded like a carbine, but may not have

been one. I wasn’t sure.

(App. 15-16)

Once the deputy found the carbine under the bus, he had

no reason to search the strikers and their automobiles further.

There was no probable cause to search for anything else. The

subsequent search was simply a general exploratory search.

This is the same kind of general exploratory search for wea-

pons which led to the adoption of the Fourth Amendment.

The British soldiers in Boston at least had a general warrant,

or a “writ of assistance.” According to the defendant, the

deputy had nothing to justify the exploratory search except

the company’s money in his pocket.

Although I deplore the resort to violence in labor disputes,

our history is replete with instances in which citizens engage

in civil disobedience and resistance in labor disputes when

they think that the authorities or the legal system has been

bought off by their adversaries. Here all parties agree that

the company was paying the deputy to furnish guard service

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6 United States v. Danny Lee Fultz No. 79-5360

and assist in breaking the strike. It may have led the strikers

to believe that they could not depend on local law enforce-

ment to protect them during the strike. It may have influenced

them to resort to violence. Both sides were in the wrong. In

such a situation, we should be careful to apply the law in

a neutral and objective way. Since I can find no basis for

a continuing search after the carbine was found, I would

suppress the weapon in question.

7a

APPENDIX II.

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

Northern Division

No. CR. 3-79-37

[ Filed: Oct. 3, 1979]

UNITED STATES OF AMERICA

Vv.

DANNY LEE FULTZ

MEMORANDUM

Defendant is charged with possession of a firearm

which was not registered to him in the National Firearm

and Transfer Record as required by Chapter 53, Title 26,

United States Code, 26 U.S.C. § 5861(d). The firearm,

a sawed-off shotgun, was found in the defendant’s truck

during a warrantless search by officers at night.

Defendant has filed a written motion to suppress the

evidence obtained by reason of the search. The parties

have agreed that the outcome of this motion will deter-

mine the final disposition of the case.

Two issues are presented by the motion: First, did

the defendant voluntarily consent to the search? And

secondly, was there, in any event, probable cause for

the warrantless search?

8a

There is conflicting testimony on the first issue.

Defendant, with his witnesses, testified that coercion

was used on the part of the officers, and argues that by

reason of this coercion his consent cannot be said to

have been voluntarily given. Schneckloth v. Bustamonte,

412 U.S. 218 (1973).

The defendant says that as one of the officers came

on the scene, he announced, “If you don’t agree to the

search, I will stay here all night and pry the doors of

the cars open in order to find what is in them.” The

Defendant has offered further evidence to the effect that

the officers used ugly language in threatening the accused

if he refused to allow the officers to make the search.

There was also testimony that the officers had their

weapons drawn when they made this announcement.

The officers deny that such language was used by any

of them, and also that their weapons were drawn. The

Government has offered competent testimony that the

defendant expressly consented to a search of his vehicle

in response to requests free from coercion.

When a defense of this kind is raised by one who has

been searched, the burden is placed on the Government

to show that the consent was voluntary. Schneckloth v.

Bustamonte, supra.

There is a question in the mind of the Court, based

on the evidence in this case, as to whether or not the

defendant unqualifiedly consented to the search. The

law is strict on the question of whether a person who is

searched, without a warrant, voluntarily consented to

the search. Schneckloth v. Bustamonte, supra; Bumper

v. North Carolina, 391 U.S. 543 (1968); U.S. v. Mayes,

552 F.2d 729 (1977). In order for the consent to be

valid, it must be made without coercion or restraint of

any kind. Schneckloth, supra; Bumper, supra.

9a

If the Court believes the testimony of the officers,

then the search must be found to have been a legal one,

because the defendant consented to it. If, on the other

hand, the Court believes the testimony of the defendant

and his witnesses, then the consent was not voluntary

and the motion to suppress must be granted and the case

dismissed.

The Court finds that the Government has failed to

sustain its burden of showing that defendant voluntarily

consented to the search. Accordingly, the warrantless

search cannot be justified on the ground that defendant

consented to it.

That brings us to the second issue: that is, whether

there was probable cause to search the vehicle. The

Court recognizes that probable cause by itself is not

sufficient to justify a warrantless search. Rather, there

must be exigent circumstances which excuse the normal

requirement that the determination of the existence

of probable cause be made by “a neutral and detached

magistrate.’”” Johnson v. United States, 333 U.S. 10,

14 (1948); Warden v. Hayden, 387 U.S. 294 (1948).

Ordinarily, it is improper for the one making the search

to act as an officer and as a judge at the same time.

Johnson v. United States, supra; Mancusi v. De Forte,

392 U.S. 364 (1968).

One such exigent circumstance that has been repeat-

edly recognized is the search of an automobile. Carroll

v. United States, 267 U.S. 132 41924); Chambers v.

Maroney, 399 U.S. 42 (1970). The explanation of the

officers for their failure to obtain a search warrant was

that the nearest officer in Claiborne County authorized

to issue warrants lived approximately 10 to 13 miles

from the spot where the search was made. It was late

at night and shots had evidently been fired from an

10a

undetermined source. Finally, under the circumstances

it was reasonable to believe that the congregation of

union members was potentially volatile. We hold that

the exigencies of the situation justified a warrantless

search if there was probable cause.

Probable cause for a warrantless search of an auto-

mobile has traditionally been defined as ‘‘a_ belief,

reasonably arising out of circumstances known to the

seizing officer, that an automobile . . . contains that

which by law is subject to seizure... .’’ Carroll v. United

States, supra, at 149. Undoubtedly, there had been a

crime committed on the occasion immediately prior to

the search. The officers had observed what they reason-

ably believed to have been gun shots in the area where

the defendant was. The officers testified that the shots

had come from the direction of a spot where a bus was

parked along with four or five other vehicles, including

that belonging to the defendant.! Finally, it was late

at night and dark.

The Court’s conclusion, based on the evidence pre-

sented at the hearing, is that under the circumstances

known to the searching officers, it was reasonable for

them to believe that defendant’s automobile contained

a firearm. ‘There was therefore probable cause for the

search. Accordingly, the motion to suppress must be

denied.

As previously mentioned, defendant and his counsel

have agreed that resolution of this motion will be dis-

positive of the merits of this case. Therefore, the Court

must find the defendant guilty as charged.

1it should be noted that defendant himself is not a member

of the union, but was there with his wife who is. He testified

that there was reason to fear for the strikers’ safety.

lla

Order Accordingly.

/s/ Bowen Taylor

United States District Judge