Petition — Steagald v. United States

RECE]

IN THE VED

SUPREME COURT OF THE UNITED STATES JUN 1 3 1980

OCTOBER TERM, 1979 OFFICE OF THE CLERK

SUPREME Court, Y

» US,

NO. 70 ~ var ar 4

GARY KEITH STEAGALD,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

IN FORMA PAUPERIS

Federal Defender Program, Inc.

101 Marietta Tower, Suite 3612

Atlanta, Georgia

(404) 688-7530

J. Richard Young

Attorney for Petitioner

30303 Gary Keith Steagald

iin

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

GARY KEITH STEAGALD,

Petitioner,

versus

UNITED STATES: OF AMERICA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

—_

OFFICE. OF THE CLERK

RECEIVED

JUN 13 1980

SUPREM

E COURT, U.S.

Petitioner, Gary Keith Steagald, respectfully prays for

leave to file the attached Petition for Writ of Certiorari to the

Supreme Court of the United States without prepayment of costs

and to proceed in forma pauperis pursuant to Rule 53 of the

Supreme Court of the United States.

to 28 U.S.

following:

C. §1915 and 18 U.S.C. §3006A(d) (6).

This motion is made pursuant

In support of this motion, Petitioner shows the

-(1) Petitioner is a person for whom counsel was

appointed in this case by the United States Magistrate for

the Northern District of Gebrgia pursuant to 18 U.S.C. §3006A;

(2) Petitioner is a person for whom counsel was

appointed in this case by the United States District Court for

the Northern District of Georgia to pursue an appeal to the

Fifth Circuit Court of Appeals pursuant to 18 U.S.C. §3006A;

and

(3) Petitioner remains indigent and has advised

counsel in writing, pursuant to Local Rule 7 of the Fifth

Circuit Court of Appeals, of his desire that a Petition for

Writ of Certiorari be filed,

Respectfully Submitted,

LC Lee Z;

a oF

Federal Defender Program, Inc.

101 Marietta Tower, Suite 3612

Atlanta, Georgia 30303

(404) 688-7539

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. RECEIVED

JUN 13 1989

GARY KEITH STEAGALD, OFFiLe UF THE CLERK

SUPREME COURT, U.S.

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

IN FORMA PAUPERIS

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals for

the Fifth Circuit entered in the above-titled case on April 14,

1980.

CITATION TO OPINION BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit in this case is cited as United States v. Gaultney,

No. 78-5329, and United States v. Steagald, No. 78-5416, 606 F.2d

540 (Sth Cir. 1979), petition for panel rehearing granted in part

and denied in part, petition for rehearing en banc denied, 615 F.2d

642 (Sth Cir. 1980), as set out as Appendix "A".

JURISDICTION

The judgment of the Court of Appeals was entered on

April 14, 1980. On May 13, 1980, Mr. Justice Powell signed an

Order granting until June 13, 1980 an extension of time within

which to petition for certiorari. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

I. Whether the Fourth Amendment to the United States

Constitution requires law enforcement officers armed with an

arrest warrant, but in the absence of exigent circumstances,

to obtain a search warrant to enter the premises of a third

party, not named in the arrest warrant.

II. Whether, assuming arguendo that the Fifth Circuit

opinion in United States v. Cravero, 545 F.2d 406 (1976), enunciates

good law in regard to the requirements of the Fourth Amendment, the

warrantless entry into the premises involved in the instant case

was made without sufficient probable cause to justify the intrusion?

CONSTITUTIONAL PROVISIONS INVOLVED

Involved in this case is the Fourth Amendment to the

Constitution of the United States, as set out in Appendix "B".

RULES INVOLVED

Additionally involved in this case, by implication, are

Rules 4 and 41 of the Federal Rules of Criminal Procedure, as set

out in Appendix "C".

STATEMENT OF THE CASE

This criminal action was brought under a three

count indictment (the Petitioner being named in Counts One

and Two only) chargingthe Petitioner with possession with

intent to distribute a quantity of cocaine (a Scheduled II

controlled substance), in violation of 21 United States Code

841(a) (1) in Count One, and conspiracy to violate 21 United

States Code 841(a)(1) in violation of 21 United States Code

846 in Count Two. Also charged in Counts One and Two were

Cathy Gaultney, Hoyt Gaultney and James Albert Smith. Addi-

tionally, Hoyt Gaultney was charged in the same indictment

with importation of the same cocaine in violation of 21

United States Code 952(a) in Count Three (R. 1-3).

Hoyt Gaultney was convicted following a jury trial

before the Honorable Charles A. Moye, United States District

Court Judge for the Northern District of Georgia, on all three

counts in a separate and previous trial. His conviction was

affirmed in United States v. Gaultney, 606 F.2d 540 (5th Cir.

1979), Petition for Panel Rehearing granted in part and denied in

part, 615 F.2d 642 (Sth Cir. 1980). Cathy Gaultney and James

Albert Smith were tried subsequently with Petitioner, and each

of them prevailed on Motions for Judgement of Acquittal at the

close of the government's case in chief. (Tr. 276). Petitioner's

Motion for Judgment of Acquittal at the close of the government's

case was denied (Tr. 276) and upon renewing his Motion at the

close of all the evidence, the Court denied the Motion again

(Tr. 282).

Finally, Petitioner filed a renewal of his Motion

for Judgment cf Acquittal following the jury's verdict of

guilty on both counts (R. 100). On June 12, 1978 Petitioner's

Renewal of his Motion for Judgment of Acquittal was denied by

the court (R. 108).

On June 27, 1978 Petitioner was sentenced by Judge

Moye to five years on Count One and five years on Count Two

to be followed by a special parole term of three years, with

the sentence in Count Two to run concurrently with the

sentence in Count One (R. 112). And on the same date,

Steagald filed his Notice of Appeal and the court granted

his Motion to Proceed In Forma Pauperis on appeal. (R. 113).

Gaultney's and Petitioner's cases were appealed

separately but were joined for oral argument and were jointly

decided by a panel of the United States Court of Appeals for

the Fifth Circuit, which affirmed the district court citing

the Fifth Circuit's opinion in United States v. Cravero, 545

F.2d 406, cert. den., 430 U.S. 983 (1976). Judge Kravitch

dissented, saying that "Unlike Cravero the evidence linking

the subject [of the arrest warrant] to the premises was

extremely fragile ani insufficient to justify an entry without a

search warrant." On April 14, 1980, the same panel, ina

per curium opinion, granted in part and denied in part the

Petition for Panel Rehearing, and denied the Petition for

Rehearing En Banc. 615 F.2d 642 (1980). Judge Kravitch

again dissented on the issue of probable cause and continued

that "The more important problem, however, is the extension of the

rule announced in United States v. Cravero, 545 F.2d 406 (5th

Cir. 1976), a rule of questionable validity and wisdom even

in the less egregious circumstances present in that case.

Expansion of this rule constitutes a disturbing erosion of

the Fourth Amendment rights of third parties." at 644.

STATEMENT OF FACTS

On January 4, 1978 Agent Joseph Rassey of the Drug

Enforcement Administration was contacted by an individual who

had providedhim with information concerning drug cases in the

past. This individual (hereafter referred to as C.I.) told

Agent Rassey that he might be able to locate Ricky Lyons, a

federal fugitive, and a guy named "Jimmy" who he believed was

a state fugitive. He further told Agent Rassey that Jimmy

had some cocaine to sell (lst Supp. Vol. II, p. 43). Initially

Agent Rassey was interested in the C.I. setting up the drug

deal but subsequently he contacted Agent Kelley Goodowens in

Savannah, Georgia and relayed the information he had obtained

from the C.I.

On January 14, 1978, the C.I. called Rassey and said

he had “received a phone call from Jimmy and that it was a

number where Jimmy and Ricky were going to be within the next

twenty-four hours" (lst Supp. Vol. II, p. 36). Rassey was

unable to reach Goodowens that day and waited until Monday,

January 16, 1978 to relay the phone num’ «- he had gotton to

Goodowens, Rassey said that he spoke with the C.I. just prior

to reaching Goodowens on the 16th and the C.I. told him the

number was still good (lst Supp. Vol. II, p. 38). Rassey testi-

fied that he did not inquire to the C.I. as to what his basis

was for concluding that Jimmy was calling from the particular

number he had. Rassey accepted the C.1I.'s conclusion because

"he had always given me good information before. He said he

knew they were there." (lst Supp. Vol. II, p- 50). The C.I.

was unable to say from what location specifically Ricky Lyons

or Jimmy were calling from or how long they would be there.

Rassey testified that it was his impression "from what he said

was that they were just going to be there for a while; they did

not live there". (lst Supp. Vol. II, p. 47). The C.I. also

told Rassey that there would be four or five people at the resi-

dence, When asked about the basis of his belief in this statement,

the C.I. replied, "Well, I just know that there's you know, some

people there" (lst Supp. Vol. II, p. 48). Rassey spoke with the

C.I. several times by telephone on January 18, 1978 and relayed

to Goodowens that the C.I. said the information was "still good"

(1st Supp. Vol. II, p. 49).

On January 16, 1978 after Goodowens received a

telephone number from Agent Rassey, he contacted Southern

Bell's Security Division and obtained the address to the

telephone number. He learned that the phone was listed in the

name of Richard E. Fisher (lst Supp. Vol. I, p. 18-19). on

January 18, 1978 after having difficulty locating the

address, Goodowens contacted Southern Bell again and obtained

detailed directions on how to get to the residence (lst Supp.

Vol. I, p. 20). At no time on these days did Goodowens attempt

to reach Mr. Fisher though he had determined that Mr. Fisher

was located in the directory, along with another residence

phone (lst Supp. Vol. I, p. 112).

On January 18, 1978, based on the information he

obtained from Rassey, Goodowens decided to go to the Carey

Court location in an attempt to find Lyons. Despite the fact

that he was in the federal courthouse in Atlanta when he received

the final call from Rassey, no search warrant was obtained (lst

Supp. Vol. I, p. 79, 86-87). Goodowens testified that physically

he could have obtained a search warrant; there was “no physical

hindrance" (lst Supp. Vol. I, p. 87). Goodowens also had received

information from Rassey that there would possibly be drugs at the

residence (lst Supp. Vol. I, p. 39, 88). However, Gwinnett County

Detective Fowler stated it a bit more strongly in his testimony

when he testified that DE Agent Smith “had previously told me

that he had information that there might be a quantity of mari-

juana at the location" (lst Supp. Vol. II, p. 107). And "to the

best of my recollection I believe he stated 1500 pounds" (lst

Supp. Vol. II, p. 108).

Agent Smith called in several other agents to accompany

himself and Goodowens. None of the officers had any photographs

of Lyons (lst Supp. Vol. I, p. 46) nor did they have a copy of

the arrest warrant (lst Supp. Vol. I, p. 45, 46). Since none of

the officers had ever even seen the arrest warrant (lst Supp.

Vol. I, p. 47), they apparently were relying on Goodowens'

knowledge of the 18 month old indictment (lst Supp. Vol. I,

p. 45). Only Agent Smith had testified that he knew Ricky

Lyons by sight and he mistakenly thought that Gaultney was

Lyons at their first encounter (lst Supp. Vol. II, p. 55).

Altogether there were nine or ten officers, some of

whom had requested to come along, comprising the raid squad,

All of the officers were in plain clothes and unmarked cars

(lst Supp. Vol. I, p. 59). They conducted no surveillance of

the residence, though they did drive by and notice that smoke

was coming out of the chimney of one of the two houses at the

Carey Court location (lst Supp. Vol. I, p. 61).

As the officers approached the house, guns drawn, two

male individuals were seen standing at the reer of a Volkswagen.

The individuals were Gaultney and Steagald. Gaultney was

squatted down at the rear deck of the car. As Smith approached

the car he “reached down and grabbed him and picked him up, or

almost picked him up, and said 'Ricky'" (lst Supp. Vol. II, p. 55).

In response to why he had done that, Smith testified "... at first

I thought he was Ricky Lyons; it looked like him to me" (lst Supp.

Vol. II, p. 55). When Agent Smith decided that this individual

was not Lyons, he “turned him around and faced him toward the

car" (lst Supp. Vol. II, p. 56). Both men were frisked right

there in the driveway in plain view of the public road and

identification was demanded of each of them.

Meanwhiie, three other agents, including Agent Jim

Williams, who arrived in a separate vehicle, headed for the

A-frame (the second residence bearing the same address). These

agents also approached this residence with their guns drawn.

Agent Williams testified, "The purpose of going to the A-frame

was the same as going to the house at the top of the hill. We

didn't know which house that the individuals might have been at"

(lst Supp. Vol. III, p. 17). When it became apparent that the

other house was not occupied, Williams returned to the driveway

° ‘

where Gaultney and Steagald were being detained. Williams

testified that he thought he "left one officer down there" at the

A-frame (lst Supp. Vol. III, p. 17).

After deciding that Gaultney was not Lyons, Agent

Smith and another officer, Detective Conway, ran down to the

house and demanded entry of Gaultney's wife, Cathy, who had

come to the door (lst Supp. Vol. III, -p. 51-55). Agent Smith

testified that he was dressed in blue jeans with a badge clipped

to the pocket of his denim shirt (lst Supp. Vol. II, p. 56);

he also had his gun drawn. Agent Smith described himself as

being 34 years old, six feet six and a half inches tall and

weighint 270 pounds. He also testified that Mrs. Gaultney

looked to be “about five foot four inches or five foot five

inches, weigh[ing]) less than 100 pounds, right at 100 pounds."

He further stated that "the first time I saw her, frankly, I

thought she was about 12 or 13" (lst Supp. Vol. II, p. 72).

Smith told Mrs. Gaultney that he had a warrant for Ricky Lyons.

She also correctly identified the two men outside as her husband

and Gary Steagald and told Smith that she was “here by myself"

(lst Supp. Vol. II, p. 77). Smith told her to “put her hands

on the wall and don't move" (lst Supp. Vol. II, p. 77). Cathy

Gaultney testified that Smith placed his gun in her back while she

was faced to the wall (lst Supp. Vol. III, p. 56). Agent Smith

then left her with Detective Conway guarding her while he searched

the rest of the house. It was his testimony that she was not

free to leave until "I got through searching the house. . . ."

(lst Supp. Vol. II, p. 77).

As Agent Smith proceeded through the house, he

went into the front bedroom and observed a small table with

a set of scales and a bag of white powder on it (lst Supp. Vol.

II, p. 60). Smith testified that there were two beds in the

room and that he "looked under the first bed, looked over the

second bed, checked it. . . ." (lst Supp. Vol. II, p. 60).

Smith left the front bedroom, checked the second

bedroom and then returned to the main room and informed Detective

Conway that he thought he had seen cocaine in the bedroom and

that "We need to get our act together" (lst Supp. Vol. II,

p- 62). Then he went outside and related this to the other

agents. Goodowens suggested that Smith drive to Atlanta and

assist in getting a search warrant for the house (lst Supp. Vol.

II, p. 63-64).

Gaultney and Steagald were taken into the house.

There is conflicting testimony as to when Gaultney was handcuffed.

Petitioner testified that an officer, whom he described, hand-

cuffed Gaultney outside the house and told Gaultney that there

were "double locks on the handcuffs, so the more you move, the

tighter they'll get. . ." (lst Supp. Vol. III, p. 41). Petitioner

further testified that he did not recall "seeing the handcuffs off

Gaultney the entire time" (lst Supp. vol. III, p. 43). Agent

Williams testified that Gaultney was not handcuffed until after

Gaultney indicated a willingness to talk with him in the house

(lst enn Vol.“III, p. 66). He could not give a ready explana-

tion as to why he handcuffed him at that point.

ss “etitiones was handcuffed as soon as he was taken into

the house, after he had furnished the officers with all his

identification. Agent Williams testified that he did not know

why Steagald was being held in custody (lst Supp. Vol. III, p. 20).

Gaultney indicated to Williams that he wished to talk

with him and was taken into the back bedroom. There is no dispute

that Gaultney was handcuffed at this time. Agent Goodowens testi-

fied that he conducted a weapon search of the bedroom for Agent

Williams' protection. This search involved looking around a small

dressing table, opening drawers, and removing a closed suitcase

from a closet shelf which he Opened and saw what he believed to

be packets of suspected cocaine (lst Supp. Vol. I, p. 37-38).

Goodowens placed the suitcase at the other side of the room. At

this point Agent Williams was alone with Gaultney.

—

During this time, Agent Smith had appeared before

Magistrate Forrester in the hearing room at the Magistrate's

Court and obtained a search warrant. There is some dispute as

tu the time of its issuance as Agent Smith does not believe that

it was 8:00 p.m. when Judge Forrester signed the warrant as is

so indicated on the warrant. Magistrate Forrester testified

at the Motion to Suppress hearing that his recollection as to

the time was not specific. There was a large wall clock in the

room where the warrant was signed (lst Supp. Vol. II, p- 33).

He did feel that it probably was earlier than 8:00 but he did admit

that the authorization was his own handwriting and he filled in

the time "8:00 p.m." (lst Supp. Vol. II, p. 25, 31-32). Agent

Smith says he went immediately to a phone and called Agent Durrell

at the house and relayed to him that a search Warrant had been

obtained. Agent Smith left the courthouse with the search Warrant,

stopped for something to eat and arrived back at the house after

9:00.

While Agent Smith was talking to Agent Durrell on the

phone, James Smith and his wife drove up to the house. Upon

entering the house both were met at gunpoint. Agent Goodowens

stepped forward with a shotgun and advised he was a federal agent

and ordered them both to put their hands on the wall (lst Supp.

Vol. I, p. 1€C ). Smith was searched, taken into custody, hand-

cuffed and then taken into the living room with the other defendants.

His wife, though no charges were made against her, was placed on :

the couch with the others. Goodowens testified that she would not

have been allowed to leave (lst Supp. Vol. I, p. 108).

Agent Goodowens went to defendant Smith's truck and

looked inside to see if there were any other persons in it.

Determining that there were not, he returned inside (lst Supp.

Vol. I, p. 108).

The search of the premises was continued before 8:00

P-m. some 10 to 15 minutes after the agents received word from

Agent Smith that the search warrant was in his possession.

Subsequently several items were seized including another

suitcase containing suspected cocaine (lst Supp. Vol. I, p. 93).

Agent Smith testified that he arrived back at the house

sometime after 9:00 and about one-half hour to 45 minutes later

he went out to Smith's Dodge truck and began searching it.

He looked through papers and other items on the front floorboard

and subsequently found a closed briefcase with a combination

lock on it. Agent Smith took the case into the house and went

through it (lst Supp. Vol. II, p. 93-94). During this time

Defendant Smith was still handcuffed and being held inside the

house. He did not consent to the search of the truck (lst Supp.

Vol. II, p. 94). Agent Smith said he searched the vehicle to

obtain evidence of Defendant Smith's identity (lst Supp. Vol. II,

Pp. 69-70, 93-101, 109). Evidence taken from Smith's truck was

Suppressed by the district court below.

Each of the individuals with the exception of Smith's

wife, was arrested anishortly thereafter indicted on charges

relating to the cocaine seized inthe search of the house.

Additional warrants were later obtained for a warehouse in

Gwinnett County and one in Fulton County and residences in

DeKalb and Clayton Counties and various items seized. It is

Appellant's contention that these searches were "fruits of the

poisonous tree" as it is uncontested that they flowed from the

initial search of the house.

REASONS FOR GRANTING CERTIORARI

de Ae A CONFLICT EXISTS AMONG THE CIRCUIT COURTS OF APPEALS

REGARDING THE NEED FOR A SEARCH WARRANT IN ORDER TO

PARTY NOT NAMED IN THE ARREST WARRANT, WHEN POLICE

In United States Vv. Cravero, 545 F.2d 406 (5th Cir.

1976), a panel Of that Court held that:

421.

In Cravero, DEA agents, acting on an informant's tip,

observed and followed three defendants, two of which were fugitives

from arrest warrants, to the house of a fourth defendant. After

Placing the premises under Surveillance for a number of hours,

the agents, armed with warrants for the two defendants and another,

approached the house, knocked on the door, identified themselves,

and announced Possession of the arrest warrants. When 4 defendant

Opened the door and tipped off the others to the Presence of the

agents, the latter entered without permission, arrested one

fugitive defendant in the living room and the other fugitive

defendant, who brandished a pistol, in the hallway. Hearing

scuffling from the bathroom, and fearing the presence of the

cocaine, and other narcotic paraphernalia,

Following their unsuccessful motions to Suppress, and

convictions, the defendants appealed on the grounds that, inter

alia, the agents, in the absence of exigent circumstances, needed

a search warrant to arrest the two fugitives in the third defen-

dant's house. In reaching the opposite conclusion, the Cravero

panel held that the test of the officers' behavior is properly

framed in the terms of reasonable belief. Probable cause, it held,

is a concept of reasonableness, and must "always be determined by

a magistrate unless exigent circumstances excuse a search warrant."

However, “reasonable belief embodies the same standard of reason-

ableness but allows the officer, who has already been to the

magistrate to secure an arrest warrant, to determine that the

suspect is probably within certain premises without an additional

trip to the magistrate and without exigent circumstances."

(Footnotes omitted). 545 F.2d at 421. The Court concluded that entry

to execute an arrest warrant is treated by the Fifth Circuit as an

exception to the requirement of a search warrant.

Several other circuits are in agreement with the essential

holding in the Cravero case. In United States v. McKinney, 379 F.2d

259 (6th Cir. 1967), the contention that, in the absence of

exceptional circumstances, a search warrant must be obtained before

entering the dwelling of a third party to execute a valid arrest

warrant, was rejected. At 379 F.2d 263, it was held:

"We agree with the observation that the

guarantee of the Fourth Amendment that

people shall be secure in their homes from

unreasonable searches applies whether the

government is searching for objects or

for a person for whom an arrest warrant

has been issued. But even if we were to

except appellant's premise that a search

Warrant must be obtained in the absence

of exceptional circumstances, there is

good reason to hold that the issuance of

an arrest warrant is itself an exceptional

circumstance obviating the need for a

search warrant. An arrest warrant is

validly issued only when a magistrate is

convinced that there is probable cause

to believe that the named party has

committed an offense." (Footnote

omitted).

The Court there considered the probable cause determination to

issue the warrant and the inherent mobility of the suspect as

justification for the se.rch provided that the authorities

reasonably believed he could be found on the premises searched.

Similarly, in United States v. Brown, 467 F.2d 419

(D.C. Cir. 1972), it was held that "an officer with a warrant

outstanding for the arrest of an individual named therein may

enter upon private premises if he has reasonable cause to believe

that such party can be found there." 467 F.2d at 423. Further-

more, the Court cited Rule 4(b)(1) of the Federal Rules of Criminal

Procedure as supporting this position because of its command that

once an arrest warrant issues, the defendant may be arrested at

any place within the jurisdiction of the United States. Signifi-

cantly, the Court characterized the police officers' actions in

executing the search as reasonable, and stated "it is material

that what the police were executing was a warrant to arrest a

dangerous, usually armed man who is involved in a narcotics

operation and was wanted for murder." 467 F.2d at 424.

Finally, the Tenth Circuit explicitly follows the

holding announced in Cravero. In United States v. Harper, 550

F.2d 610 (10th Cir. 1977), a DEA agent received a fugitive arrest

warrant for one Renita Black. The agent had previously that day

received information from a reliable informant that Black was

staying with Harper, and while not knowing the address that she

was staying at, did-provide the agent with her phone number.

The phone company then traced the phone number to a certain

address. The agent had received information from reliable

informants that Black was staying with Harper and one Jackson,

and that she had been seen in the latter's car. Upon arriving

at the address, the agent was admitted by Jackson after he

identified himself and related that he had a warrant for Black's

arrest. Jackson then proceeded to tip Harper off that the agent

was there. The agent ran up the stairs and found Harper with an

ashtray containing vegetable matter, later admitted to be

marijuana. Harper dropped a sack which was later field-tested

as heroin. Immediately thereafter the residence was secured

while a search warrant was obtained to search the premises for

drugs and weapons. The Tenth Circuit upheld the trial court's

denial of the Motion to Suppress, holding that the trial court

properly determined that the agent's initial entry was a lawful

utilization of the arrest warrant for Black. Citing the initial

opinion in Cravero the Court held that, unlike a search warrant

which requires a prior judicial determination that the object

sought is within the Place to be searched, no such determination

need be made before an arrest warrant issues. "Such a warrant

requires only a judicial determination that there is probable

cause to arrest a named person for a certain offense, without

consideration of the place in which the arrest is to be made. . .°

an arrest warrant, therefore, in and of itself, imposes few or

no limitations on the power of police to enter private homes in

search of suspects." 550 F.2d 613-614.

Each of these cases, however, can be described as

exhibiting an exigency upon which police officers had to immediately

respond to in order to protect themselves or prevent the destruction

of potential evidence. However, the logic of Cravero and similar

decisions does not have a universal following. While the Supreme

Court has not directly addressed this issue, language in previous

opinions intimated that the warrant process would have to be

observed. In United States v. Santana, 427 U.S. 38 (1976), a

majority of the Court seemed to Support the proposition that

absent exigent circumstances a warrant would be needed for an

entry of a home to make an arrest, except in instances where the

entry is made under the "hot pursuit" exception established by

the Court in Warden v. Hayden, 387 U.S. 294 (1967).

The Court has repeatedly held that searches conducted

outside the judicial process, without prior approval of a judge

or magistrate, are per se unreasonable under the Fourth Amendment,

subject only to a few specifically established and well delineated

exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967).

In Katz, the Court held that the Fourth Amendment protects an

individual's reasonable expectation of privacy. The Court has

also made clear that one's reasonable expectation of privacy in

the home is entitled to a unique sensitivity from the Courts.

See United States v. Martinez-Fuerte, 428 U.S. 543, 561, 565 (1976).

And in Mincy v. Arizona, 98 S.Ct. 2408 (1978), the Court stated

that warrantless searches must be strictly circumscribed by the

exigencies which justify their initiation. It was pointed out

that the mere fact that law enforcement may be made more efficient

can never by itself justify a disregard of the Fourth Amendment's

warrant requirement. The Court went on to hold that "warrants

are generally required to search a person's home or his person

unless the exigencies of the situation make the needs of the law

enforcement so compelling that the warrantless search is objectively

reasonable under the Fourth Amendment."

At this juncture, it is relevant to point out that

Cravero is a panel decision as to a very close and controversial

issue. The apparent approval of warrantless entries into a

third party's house contained therein came in a brief opinion,

occasioned by a denial of petition for rehearing, contained

largely in a few short paragraphs which attempt to retract a

preceding detailed and lengthy analysis in the main opinion of

the need for either a search warrant or exigent circumstances.

In such a context it is submitted that each case must be

analyzed with particular care as to its individual facts,

rather than be subject to a blind application of the principal

enumerated in a conclusory pronouncement in ruling on a petition

for rehearing. In fact the panel noted in the first Cravero

opinion that:

". « » Nothing in the process of procur-

ing an arrest for A considers or affords

any protection for the entirely distinct

Fourth Amendment right of B, into whose

premises A may wander -- perhaps after

the arrest warrant issues -- not to have

B's premises invaded and ransacked for A

without either a warrant or one of the

customary excuses for its absence."

545 F.2d at 415. ;

Without the protection of a search warrant or exigent circumstances

requirement, the spector of arbitrary invasions into private

dwellings becomes a reality, accompanied by the very real threat

of "police circumvention of the search warrant requirement by using

an arrest warrant as carte blanche to search any and every home in

which they can claim probable cause to believe a suspect may be

concealed." 545 F.2d at 416.

Decisions in other circuits have been opposite to that

reached in Cravero. In The Government of the Virgin Islands v.

Gereau, 502 F.2d 914 (3rd Cir. 1974), the Court was faced with a

factual situation similar to the one involved here, except that

in addition to an arrest warrant and probable cause to believe

that the person named in the warrant was present on the third

party's premises, the police were searching for people

who had recently committed brutal murders. At 502 F.2d 928, the

Court held that “arrest warrants are not Substitutes for search

warrants."

The Court continued to specifically state that "although

police have warrants for the arrest of Suspects, they may enter

premises, at least of third person's, to search for those suspects

only in exigent circumstances where the police officers also have

probable cuase to believe that the Suspects may be within."

The Court later went on to hold that certain exigent circumstances

applied there, which in effect validated the warrantless entry.

That sam2 year the Third Circuit was presented with

a similar problem in Fisher v. Volz, 496 F.2d 333 (3rd Cir. 1974),

There, persons whose apartments had been searched by police

officers, who had arrest warrants for persons believed to be in

the apartments, brought actions against police officers claiming

Section 1983 violations of the apartment dwellers' rights. The

Court stated that the Supreme Court has recognized that the

physical invasion of the home is "the chief evil" to which the

Fourth Amendment is historically directed, citing United States

v. United States District Court, 407 U.S. 297, 313 (1972). The

Court went on to hold that:

"Even if exigent circumstances exist,

police officers without a valid search

warrant may not constitutionally enter

the home of a private individual to

search for another person, although he

be named in a valid arrest warrant in

their possession, absent probable cause

to believe that the named suspect is

present within at the time." 496 F.2d

at 338.

At 496 F.2d 339 the Court continued, "in addition to probable

cause, there must be exigent circumstances to justify a warrant-

less search."

Furthermore, the Fisher Court analyzed the inter-relation

between the Fourth Amendment and probable cause and exigent

circumstances. It was noted that the:

"effective enforcement of the law...

can only be maintained by respect for the

law. High on the list of constitutional

rights is the right of an innocent citizen

to be free from unreasonable intrusion into

the privacy of this home. A warrant for the

arrest of a suspect may indicate that the

police officer has probable cause to believe

the suspect committed a crime; it affords no

basis to believe that the suspect is in some

stranger's home." 496 F.2d at 341.

However, the Third Circuit was clearly aware of the necessity for

efficient law enforcement, and held that the police under exigent

circumstances may dispense with the search warrant when they have

probable cause to believe that the Suspect named in the arrest

warrant is in a particular third party dwelling. There the

arrest warrant names a specific person, and therefore avoids the

absue inherent in the type of general warrant that Supported the

formulation of the Fourth Amendment.

The Ninth Circuit has also recognized the balance between

efficient law enforcement and the protection of third party Fourth

Amendment rights. This balancing was apparent in United States Vv.

Prescott, 581 %.2d 1343 (9th Cir. 1978). In Prescott postal

inspectors were investigating one Duvernay for using stolen credit

cards to obtain merchandise by mail, and in the course of their

investigation supervised a controlled delivery to one of the

Suspect's addresses. The postal inspector obtained a search war-

rant for Duvernay's apartment, but did not obtain a warrant for

Duvernay. Appellant's apartment was located next door to

Duvernay's on the top floor of a partially vacant apartment

building. The police raided the apartment building following

the controlled delivery, only to find that Duvernay's suspected

address was only a padlocked apartment. The inspector then went

to Prescott's apartment, knocked on the front door, identified

himself as a postal inspector, and said that he was looking for

a next door neighbor. Prescott lied, claiming that no one was

in the apartment but her, her husband and her baby, when in fact

her neighbor had appeared with the packages in hand only minutes

before and had been let into the apartment. The inspector, after

a conference with his colleagues, returned to Prescott's apart-

ment and again unsuccessfully tried to get Prescott to open her

door. After responding in the negative to Prescott's query as

to whether the inspector had a warrant, and the inspector's

threat that Prescott could be guilty of an offense if she was

harboring her neighbor, the inspector sought legal advice from

the United States Attorney's office. The end result was that

the police broke the door down, found Duvernay inside as well as

the three packages prepared for the controlled delivery.

Prescott was indicted and subsequently convicted of

being accessory after the fact by assisting Duvernay in order

to hinder his apprehension. Her motion to suppress all fruits

of the entry into her apartment was denied, the district judge

taking the view that the officers needed no warrant to enter

the apartment because they had probable cause to arrest Duvernay

and to believe that he was inside.

The Ninth Circuit had previously stated only in dicta

that the warrant requirement "is applicable not only in cases of

entry to search for property, but also in cases of entry to arrest

a suspect," United States v. Phillips, 497 F.2d 1131, 1135 (9th

Cir. 1974). But the Court noted that only exceptional circum-

stances have been held sufficient to justify a search conducted

inside a private home without judicial authorization. 581 F.2d

at 1349. The Court quoted McDonald v. United States, 335 U.S.

451, 456 (1948), where it was stated:

'

"The Constitution requires a magistrate

to pass on the desires of the police before

they violate the privacy of the home. We

cannot be true to that constitutional

requirement and excuse the absence of a

search warrant without a showing...

that the exigencies of the situation made

that course imperative." 581 F.2d at 1349.

The Court further reasoned that had the officers arrested

the suspect on the street, and then entered Prescott's apartment

solely to search for the packages, their certainty that the

objects they sought would be found within would not have excused

their failure to obtain a warrant. Likewise, had they gazed

through a window and observed the packages lying on a table, in

plain sight, they would nonetheless have been obliged to submit

their evidence to a magistrate for his disinterested determination

that intrusion was necessary.

Thus the Court held, “the sanctity of the home is no

less threatened when the object of police entry is the seizure

of a person, rather than a thing. A magistrate's disinterested

determination that governmental intrusion is warranted is no less

desirable when the policeman's quarry is a suspect, rather than

a piec> of evidence." 581 F.2d. at 1343. Citing People v. Ramey,

16 Cal. 3rd 263, 275, 545 P.2a 1333, 1340 (en banc) (1976), the

Court held that it would be thoroughly incongruous "to pay homage

to the considerable body that has developed to protect an indivi-

dual's belongings from unreasonable search and seizure in his

home and at the same time assert that identical considerations

do not operate to safeguard the individual himself in the same

setting," and that this reasoning is equally applicable when it is

a third person, present in the home with the householder's consent

for whom the police are looking. The Court concluded that absent

exigent circumstances, police having probable cause to arrest a

felony suspect must obtain a warrant before entering a dwelling

to carry out the arrest. |

Furthermore, the Sixth Circuit in United States v. Shye,

492 F.2d 886 (1974), has held that warrantless entries of dwell-

ings to effect an arrest are put on the same constitutional

footing as warrantless entries of dwellings to effect a search.

The Court held that entry in both instances is per se unreasoriable

"unless" exigent circumstances justify the failure to obtain a

warrant.

The Eighth Circuit raised the similar issue in dis-

cussing the minimum requirements for a reasonable search in the

case of Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975), reversed

on other grounds, Stone v. Powell, 428 U.S. 645 (1976). ‘The

Court there held that:

"Police entry into a private dwelling

without a search warrant in search of a

Suspect for whom an arrest warrant has

been issued carries precisely the same

Fourth Amendment implications as entry

into a dwelling to make a warrantless

search for tangible property. Citizens

are entitled to the same constitutional

protection from unreasonable searches

and seizures when the police are seeking |

a Suspect for arrest as when they are

seeking some contraband for evidence,

Thus, ‘arrest warrants are not substitutes

for search warrants', Government of the

Virgin Islands v. Gereau, F. ’

928 (3rd Cir. 1974),

Consequently, we hold as have several

other courts of appeals, that the Fourth

Amendment mandates as a minimum, that

police officers may not enter the dwelling

or premises of a third person in search of

a suspect for whom they have a valid €

arrest warrant unless they have reasonable

or probable cause to believe that the sus-

pect is within." 513 F.2a 1291-1292,

The Court further noted that given the factual setting of the

case before it, it need not consider the exact question that is

at issue here,

Other Courts have also come down on the opposite side

of the issue from Cravero. In Huotari_v. Vanderport, 380 F.Supp.

645 (D. Minn. 1974), the Court, while presented with a factual

issue as to whether an arrest warrant had issued, did hola that

"even conceding the existence of probable cause, the Court is

not prepared to say that a search warrant is not necessary where

the search is for a person rather than for ‘effects'", 380

F.Supp. at 649. Moreover, in Norton v. Turner, 427 F.Supp. 138

(E.D. Vir. 1977), the district court discussed the standards

applicable to execution of an arrest warrant at the residence

of a third party not named in the warrant. This case was a

Section 1983 cause of action resulting from the unsuccessful search

of the plaintiff's premises by police officers looking for the

then fugitive Patty Hearst. The plaintiff contended that the

police were required to obtain a search warrant in order to

lawfully execute the arrest warrant in the dwelling of a third

person, and that only exigent circumstances can relieve the

officers of this obligation. ‘The district court however was

satisfied that if the officers had probable cause tu believe that

Ms. Hearst was in the apartment, their subsequent conduct wav

justified. The fugitive in question had demonstrated a capacity

for both violence and evasive flight, and the Court cited

Cravero for this proposition.

In addition at least one state court has followed the

reasoning that an arrest warrant alone in the absence of exigent

circumstances is not sufficient in order to seize the fugitive

from the dwelling of a third person. In England v. State, 488 P.24

1347 (Okla. 1971), police officers, equipped with both the knowledge

that there was an outstanding arrest warrant for a person who was

AWOL from a marine corps base and probable cause to believe that

the fugitive was at a certain address, approached the address one

evening. At that point the police officers smelled marijuana,

and upon viewing the inside of the house through a window noticed

the defendant and others smoking a marijuana cigarette. The

police entered and arrested defendant. The Court of Criminal

Appeals reversed defendant's conviction for possession of marijuana,

the Court holding that the officers should have armed themselves

with-a warrant if they were going to a residence just to search

for the suspect. The record was silent as to whether or not

they ound any trace of the person who was suspected of being

AWOL. The Court held that to go to a private residence and

search for an accused without a search warrant is not authorized

by law. 488 P.2d at 1348.

Therefore, as can be seen, several circuit courts have

been faced with the question posed in the instant case and

decided that law enforcement officers entering the homes of

third parties to effect an arrest should be armed with a search

warrant or in the alternative, enter only where exigent circun-

Stances exist. Thus, the essential issue in the immediate

inquiry must be whether exigent circumstances will be the only

factors allowing police officers to disregard the need for a

search warrant when executing an arrest warrant on the premises

of a third person. Petitioner submits that the issue of exigent

circumstances not only distinguishes his case, but also demon-

strates the impropriety of the blanket rule as set forth in the

second Cravero opinion.

In Dorman v. United States, 435 F.2d 385 (D.C. Cir.

1970), in a leading, widely cited case, the Court held that

entry into a home to make an arrest may not be undertaken without

a search warrant and the requirement of a warrant may not be

excused except under specially defined circumstances.

At 435 F.2d 389, the Court stated:

"The Fourth Amendment provides protection

even as to arrests in a public place, though

in such cases the requirement is only that

there be probable cause and there is no

additional requirement of recourse to a

warrant. A greater burden is placed,

however, on officials who enter a home

or dwelling without consent. Freedom

from intrusion into the home or dwelling

is the archetype of the private protection

secured by the Fourth Amendment. In

general a home may not be searched without

a warrant notwithstanding probable cause.”

The Dorman Court stated that warrantless entries may be justified

by need when the officer acts within the bounds of probable cause

and reasonubleness. The Court outlined several considerations

it thought would be useful in determining the propriety of a

warrantless entry into a home to effect an arrest.

Among the exigent considerations enumerated were:

1. That a grave offense is involved, parti-

cularly one that is a crime of violence;

2. Whether the suspect is reasonably believed

to be and therefore represents, a threat

to the community or to the arresting

officers;

3. There must be a clear showing of probable

cause which includes reasonable trustworthy

information to believe the suspect committed

the crime involved;

4. There must be strong reison to believe that

the suspect is in the premises being entered;

5. There mist be reasonable likelihood that the

suspect will escape if not swiftly apprehended;

6. The entry, though not consented to, must be

made peaceably.

In applying the Dorman criteria to the instant case, it

is clear the conduct of police officers here does not meet the

minimal requirements of the Fourth Amendment as set out by Dorman.

First, the offense charged in the arrest warrant was not

a grave one. Agents entered the dwelling to search for a "Ricky

Lyons" who was charged with possession of marijuana. The Dorman

Court suggested violence is usually the determinate of whether an

offense is considered grave. Possession of marijuana is not a

grave offense nor is it a crime of violence.

Second, there was no evidence to lead the agents to

reasonably believe that the suspect sought, a "Ricky Lyons", would

be armed, nor was there a showing of increased danger to the

community or the officers involved had there been a delay for

purposes of securing a warrant. In fact, the officers had ample

time and opportunity to secure a warrant but chose not to do so.

Third, Petitioner concedes that there was an arrest

warrant outstanding for Ricky Lyons but law enforcement officials

did not have any warrant in their possession when they approached

Appellant's home.

Fourth, the government agents did not have strong reasons

for believing Ricky Lyons was in Appellant's home. To the contrary,

the agents had a mere tip that Ricky Lyons was on Appellant's

premises. The agents did not conduct surveillance of the premises,

The agents received information from a confidential informant who

stated that he talked via telephone with a person named Jimmy

and that he heard Ricky Lyons' voice in the background two days

earlier. The confidential informant did not talk to Ricky Lyons

nor did he have any other -facts to Support his contention that

Ricky was in the location where the telephone conversation origi-

nated. The informant told the agents that "Jimmy" said that they

(Jimmy and Ricky Lyons) could be reached at the telephone number

given the agents. "Jimmy" was never identified nor was his

reliability established. So armed with the mere telephone number

of an unsupported allegation that Ricky Lyons would be on the

premises, the governmental agents proceeded to execute the warrant

at the appellant's residence. There existed no strong reason to

believe Ricky Lyons was in the premises that were to be entered.

Fifth, the facts of the instant case cause it to fail

the requirement that the suspect be swiftly apprehended to avoid

escape. There existed no urgency. The agents had the information

for almost two days and the agent in charge of the case stated

that they had ample time to obtain a warrant to search the premises

had they sought to secure one. Additionally, there was no other

evidence to indicate impending flight by the suspect.

Sixth, the entry, although made under color of law, was

not peaceable. The officers approached with shotguns. Service

revolvers were drawn on the occupants.

Thus, the facts in Petitioner's case do not meet any

of the criteria set out as exigencies in Dorman. This is a key

distinguishing factor between Petitioner's case and Cravero and

its progeny. These distinctions, plus the split in the Circuits,

are strong reasons for granting the writ.

B. FOLLOWING PAYTON, THE FIFTH CIRCUIT DECISIONS IN

CRAVERO AND IN THE INSTANT MATTER IGNORE THE FOURTH

AMENDMENT RIGHTS OF TH1LRD PERSONS, AND IN EFFECT,

OFFER LESS CONSTITUTIONAL PROTECTION TO THIRD PERSONS

NOT NAMED IN THE ARREST WARRANTS THAN TO THOSE

INDIVIDUALS WHO ARE THE SUBJECT OF THEM.

In the recent decision of Payton v. New York, 27 Cr.L.R.

3033 (USSC, 1980), the Supreme Court answered the question left

open not only in its own opinions, but in those circuit opinions

where Cravero-type issues were involved; namely by holding that

the Fourth Amendment to the United States Constitution, made

applicable to the states by the Fourteenth Amendment, prohibits

the police from making a warrantless and nonconsensual entry into

a suspect's home in order to make a routine felony arrest. While

the majority opinion expressly avoided answering the question

involved here, there can be no doubt that by further defining the

Fourth Amendment rights of a suspect arrested in his own home,

this answer will have a profound effect on the Fourth Amendment

rights of suspects and third persons when law enforcement officers

attempt to execute arrest warrants for fugitives on premises of

third persons.

For example, suppose Fourth Amendment law is "frozen"

at Payton. This means, that on one hand, police officers armed

with probable cause and in the absence of exigent circumstances,

must have an arrest warrant to enter and seize a suspect in his

own dwelling. On the other hand, if Payton applies only to the

requirement of a warrant to arrest a fugitive on his own premises,

in the absence of exigency, the result would be anomolous and

illogical constitutional applications in about half of the federal

jurisdictions in the country. This is because their execution of

arrest warrants on third person's premises would require either

(a) at least probable cause to believe the suspect is located

therein, Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (en banc) ;

or (b) probable cause and exigent circumstances, Dorman, supra; or

(c) probable cause and an arrest warrant, Cravero, supra.

Even assuming that the arrest warrant requirement would

be extended to arrests of fugitives on third person's premises,

none of the above examples provide any more protection to the

third person against unreasonable searches and seizures. The

result, therefore, would be no difference at all between the

arrest by arrest warrant of the fugitive on his own premises and

the arrest by arrest warrant of the fugitive on the premises of a

third person not named in the arrest warrant, with no provision

for third person's rights. There can be no doubt that disregarding

the third person's Fourth Amendment rights creates

a grave constitutional dilemma.

The majority opinion's language in Payton is instructive.

At 27 Cr.L.R. 3037, the opinion cites Judge Leventhal's conclusion

that an entry to arrest and an entry to search for and to seize

property implicate the same interests in preserving the privacy

and sanctity of the home, and justify the same level of constitu-

tional protection. Petitioner submits that the existence of an

arrest warrant for the arrest of a fugitive does absolutely nothing

to preserve the privacy and sanctity of the home of the third

person upon whose premises the arrest warrant was executed.

In addition the Court continued, "in terms that apply

equally to seizures of properties and seizures of persons, the

Fourth Amendment has drawn a firm line to the entry of the house.

Absent exigent circumstances that threshold may not reasonably

be crossed without a warrant."

Finally, the concluding language in Payton holds much

Significance for the case at bar. "Thus, for Fourth Amendment

purposes, an arrest warrant founded on probable cause explicitly

carries with it the limited authority to enter a dwelling in which

the suspect lives, when there is reason to believe the suspect is

within." (27 Cr.L.R. at 3041) (emphasis supplied). Therefore, it

can be scen that the requirement of an arrest warrant in order to

arrest a suspect in his own home, as stated in Payton, ensures that

the Fourth Amendment rights of the suspect are protected because

of the sanctity that his home constitutionally holds for him.

An arrest warrant of the same suspect on a third person's premises

would not protect the sanctity of the third person's home.

The holding in Payton merely confirms in express terms

what the Court has sometimes said only impliedly in regards to its

preference for judicially approved warrants. The classic statement

of this police was made in Johnson v. United States, 333 U.S. 10,

13-14 (1948):

"The point of the Fourth Amendment which

often is not grasped by zealous officers, is

not that it denies law enforcement to support

the usual inferences which reasonable men

draw from evidence. Its protection consists

in requiring that those inferences be drawn

by a neutral and detached magistrate instead

of being judged by the officer engaged in

the often competitive enterprise of ferreting

out the crime. Any assumption that evidence

sufficient to support a magistrate's dis-

interested determination to issue a search

warrant will justify the officers in making

a search without a warrant would reduce the

amendment to a nullity and leave the peoples’

homes secure only in the discretion of police

officers. Crime, even in the privacy of one's

own quarters, is, of course, of grave concern

to society, and the law allows such crime to

be reached on proper showing. The right of

officers to thrust themselves into a home is

also a grave concern, not only to the indivi-

dual but to a society which chooses to dwell

in reasonable security and freedom from

surveillance. When the right of privacy

must reasonably yield to the right of search

is, as a rule, to be decided by a judicial

officer, not by a policeman or government

enforcement agent."

Historically, however, the need for warrants and the

requirements of both a search warrant and an arrest warrant have

been confusing. As the Fourth Amendment states:

"The right of the people to be secure in

the 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 des-

cribing the place to be searched, and the

persons or things to be seized. (emphasis supplied).

Police authority to conduct searches for property is constrained

by the general rule that searches without a search warrant are

per se unreasonable unless they fall within certain specific

exceptions. Therefore, the issuance of the search warrant usually

depends upon a judicial determination of both the need for the

proposed seizure and the probable cause to believe the object

sought is within the place to be searched.

On the other hand, if the object of the search is a

person, the rule seems to be that all that is necessary is an

arrest warrant. Further, the arrest warrant, unlike the search

warrant, does not require any prior judicial finding of the need

for the police to search or of the probability that the search

will be fruitful. Moreover, arrest warrants require no reference

to the places that may be searched in effecting the arrest. For

example, nothing in Rule 4 of the Federal Rules of Criminal

Procedure refers to the place to be searched. And historically,

persons who are the object of a search have not been constitu-

tionally characterized as have "things" that are the object of a

search, even though both "objects" are listed side-by-side in the

amendment. Only Delaware and Vermont statutorily provide for a

search warrant for persons. See Rotenberg and Tanzer, Searching

for the Person to be Seized, 35 Oh. St. L. J. 56, 58 (1974), where

it is concluded that there is no satisfactory justification for

the difference and that, therefore, the Fourth Amendment requires

that the legal standard and procedural practice developed for

searches for objects be seuiies to searched for persons.

Moreover, in addition to the confusion resulting from

the different warrant requirements regarding searches for persons

and searches for objects, in 2 W. LaFave, Search and Seizure

| —— ed

§6.1 (1978), it was noted that uncertainty has resulted from

courts’ use of the general word “warrant", instead of differentiat-

ing between a search warrant and an arrest warrant. "Perhaps as

a consequence of this or perhaps because warrants to search for a

person are unknown in many jurisdictions, many of the cases holding

cr assuming that a warrant is required for a nonemergency arrest

entry assume without question that an arrest warrant rather than

a search warrant is required," (footnotes omitted), although there

is a growing body of authority that states that what is required

when an arrest warrant is executed upon a third party's premises

is a search warrant. p. 383-384. Professor LaFave continued:

"When entry into premises other than

those of the person to be arrested is

contemplated, then surely it is the

protection provided by a search warrant

rather than an arrest warrant which is

most needed. . . A prior judicial

determination of the grounds to arrest a

person the police believe is therein will

primarily protect that person, who is not

deemed entitled to such protection when

arrested on the street, but would only

indirectly protect the person whose

premises are intended to be entered:

The latter individual would more directly

benefit from a judicial determination as

to whether it is probable the wanted person

is precisely in those premises, which also

is likely to be a more complicated issue

than the probable-cause-to-arrest question."

(footnotes omitted) pp. 384-385.

C. THE CRAVERO OPINION UPON REHEARING, FOLLOWED BY THE

FIFTH CIRCUIT IN THE INSTANT MATTER, IS CONTRARY TO

BOTH SUPREME COURT AND FIFTH CIRCUIT DECISIONS.

In its initial decision, the Cravero Court waivered

between what it saw as the few or no limitations on the power

of police to enter private homes in search of suspects when

equipped with arrest warrants, and the need for a disinterested

judicial officer whose approval for a search could apply only

to a particular place and after a showing of probable cause.

At 545 F.2d 416, the Court seemed to finally adopt

the very legal reasoning that Petitioner is advocating:

"Only in certain carefully defined

classes of cases is a warrantless search

permitted. This preference for a prior

judicial determination should control a

contemplated entry of a third party's

home, regardless of what is sought.

While the ultimate objective of an

arrest entry is an arrest, the arrest

can only be effected if the subject is

first found and thus a search is a

necessary factual prerequisite to the

possible arrest. A search warrant

would be required, in the normal case

and absent some exception, to enter a

residence to search for a stolen pet

or other objects seen carried into it.

We are unable to see a distinction

valid for Fourth Amendment purposes between

an. entry to search for such an object

and entry to apprehend a guest.

Consequently, logic demands that the

rules governing searches should apply

with equal force to an arrest entry

into a third party's home. If the

policeman has probable cause to

believe that a suspect he wishes to

arrest is inside the home, he can

demonstrate this to a magistrate

and obtain a search warrant for the

suspect. If he fails to obtain a

warrant, then an arrest entry with-

out a search warrant will be permis-

Sible only if exigent circumstances

or some other established exception

to the warrant requirement obtains.

(Emphasis supplied).

The panel was wary lest some other result would raise the spectre

of police circumvention of the search warrant requirement by

using an arrest warrant as carte blanche to search any and every

home in which they can claim probable cause to believe a suspect

may be concealed. “Furthermore, a requirement of exigent circum-

stances will not unduly burden law enforcement officials or

create additional danger, since such factors are given considerable

weight in the exigent circumstances determination." Id. (Foot-

note omitted).

At this point, the panel opinion began to muddy the

waters. The panel was evidently concerned about the difference

between an illegal entry in order to effect an arrest and an

invalid arrest. The Court, of course, was essentially correct

in realizing that an illegal entry for purposes of executing a

valid arrest warrant would not necessarily invalidate the arrest

and require that the arrested fugitive be set free. However, the

Court confused, as in the instant matter, the difference between

the Fourth Amendment requirements for the fugitive and the separate,

individual and independent requirements of the Fourth Amendment

as applicable to the third person upon whose premises the arrest

warrant is executed. In United States v. Cisneros, 448 F.2d

298 (9th Cir. 1971), it was noted that "the legality of the entry

is a question apart from the initial validity of the arrest, whether

it is based upon a warrant or probable cause. (Citation omitted).

Assuming a valid basis for arrest, an illegal method of execution,

for instance, an unlawful forcible entry, can result in the

exclusion of any evidence obtained as a result of the officer's

illegal conduct." 448 F.2d at 303 n.6. The same logic would

seem to apply in the instant case. There is no logical reason

to contend that evidence seized from an arrestee by police

officers illegally, even though the factual predicate to the

illegal seizure was a valid arrest, is remedied by suppression,

but that third persons, upon whose premises an arrest warrant

was executed and who are likewise aggrieved by an illegal search

and seizure, have no right in suppression.

Furthermore, the Cravero Court held that since the arrest,

if not the entry, was proper, arrest warrants represented judicial

sanction of the deprivations of the suspects' liberties. However,

this provides absolutely no safeguard to the constitutional rights

of the third person whose right to privacy and sanctity in his own

home was trampled upon.

But, upon rehearing, the panel cited the Supreme Court's

decision in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4,

70 L.Ed. 145 (1925), as standing for the proposition that an

entry to execute an arrest warrant is an exception to the

requirement of a search warrant to intrude into a home. 545

F.2d at 421. However, the facts and holding in Agnello are

contrary to this. In Agnello, it was held that once the

suspects were arrested in one residence, the police officers

could not then go around the corner and search and seize contra-

band from one of the suspect's houses without a search warrant.

At 46 S.Ct. 6, it was stated:

"(I]t has always been assumed that one's

house cannot lawfully be searched without

a search warrant, except as an incident to

a lawful arrest therein. (Citations

omitted) . . . The search of a private

dwelling without a warrant is in itself

unreasonable and abhorant to our laws.

x * *

Belief, however well founded, that an

article sought is concealed in a dwelling

house, furnishes no justification for a

search of that place without a warrant.

And such searches are held unlawful not-

withstanding facts unquestionably showing

probable cause."

The panel rehearing claimed that it had "overlooked"

the law of the Circuit, that when an officer holds a valid

arrest warrant and reasonably believes that its subject is

within premises belonging to a third party, he need not obtain

a search warrant to enter for the purpose of arresting the

Suspect. For its authority, the panel relied upon two cases

in which a key factor in both was exigent circumstances. As to

the original decision's fear that without the protection of

a search warrant or exigent circumstances requirements, the

spectre of arbitrary invasions into private dwellings becomes

a reality, accompanied by the very real threat of “police

circumvention of the search warrant requirement by using an

arrest warrant as carte blanche to search any and every home

in which they can claim probable cause to believe a suspect may

be concealed," the instant case presents just that situation.

There was no exigency here -- no Suspect alerted so that flight

or destruction of evidence was a possibility. No inconvenience

or delay would have resulted from the procurement of a warrant.

Agent Goodowens was in the federal courthouse during business

hours on a weekday when, at about 2:00 p-m., he received the

final call which triggered the raid,

Further, an analysis of the facts of the instant case

demonstrates numerous critical distinctions from the factual

situation presented in Cravero and the cases expressly relied

upon there in United States v. James, 528 F.2d 999 (5th Cir.

1976) and Rodriquez v. Jones, 473 F.2d 599 (5th Cir. 1972).

Cravero involved an ongoing drug investigation in

which government agents, acting on an informant's tip, themselves

observed Chandler and Cravero in a restaurant. Both men were

followed and seen entering a house, again by law enforcement

personnel. This house was placed under Surveillance and the

actual arrest warrants were obtained. The agents, with the

arrest warrants, knocked on the door. It was opened by the

house owner who shouted, “Hey you guys, the police," after which

the officers entered and saw contraband in plain view. 545

F.2d at 412-13.

Rodriquez, supra, involved a shooting following forcible,

warrantless entry in a residence where police mistakenly believed

there were two men there who were Suspected of murdering three

deputy sheriffs just three days before. The information Placing

the suspects in the residence came from a C.I., previously proving

reliable, who stated that he had seen the two suspects enter the

garage. Further, the C.I. was taken by the apartment by officers

three times, and each time he confirmed it to be the location he

himself saw the men enter. 473 F.2d at 606.

waS apparently unoccupied at the time. (Query: what would have

been the officers' actions if people had been found in the A-frame

house?). Most damning of all, is the fact that in the instant

case no attempt of any kind was made to surveil the premises

before an armed raiding party swooped down with weapons drawn on

both residences,

In addition, the forceful manner in which the searches

were executed must also be considered. In Cravero the officers

approached peacefully and were met by the resident at the door,

entering only after that person attempted to alert the others.

In a case involving a similar issue (entering into a suspect's

home to arrest on probable cause), United States v. Santana,

Supra, Justice White emphasized in his concurring opinion that

"a warrant was not required to enter the house to make the arrest,

at least where entry by force was not required." 427 U.S. at

43-44 (emphasis added).

Here the force was unnecessary and excessive. Two men,

neither of them fugitives, were accosted at shotgun point by a

portion of a raiding party numbering nine or ten men, thrown up

against a car, frisked and detained. A young woman who truthfully

told Agent Smith who she was, who the men seized at the car were,

and that no one else was in the house, was accosted at gunpoint

and placed against the wall and detained under guard as the house

was searched.

Finally, the instant case raises the spectre referred

to in the original Cravero opinion -- police circumvention of

the warrant requirement through use of an arrest warrant. 545

F.2d at 416. While Aeont Goodowens in his testimony attempted

to downplay the significance of the C.I.'s information regarding

the possible presence of contraband at the location, the testimony

of Detective Fowler that Wayne Smith told him there might be

"1500 pounds" of marijuana there Strongly indicates scmething

more was involved in their trip to see if Ricky Lyons was present.

James, supra, likewise involved a tip by informer that

a fugitive was present at a particular location. Moreover, before

the house was ente1 1, agents announced their intention over a

bullhorn, and repeated twice their purposes and requests. This

occurred during daytime hours, and entry was made only subsequent

to the officers being fired upon by occupants of the building.

The facts presented in the instant case set up distinct and critical

contrasts to these three cases. First, the instant case involved

the pursuit of a federal fugitive on an indictment over eight

months old for a non-violent crime (a marijuana offense) (lst

Supp. Vol. I, p. 45, 47). Clearly this case lacked any element of

freshness or emergency to justify unusual steps such as seen in

Rodriquez and James, supra.

Further, the officers here, unlike those in Cravero

in particular, did not have in their possession the actual

arrest warrant for the fugitive they were allegedly seeking

(1st Supp. Vol. I, p. 47). In fact none of the officers had even

seen an arrest warrant for Lyons and no copy of the warrant was

even available in the Atlanta area at the time (lst Supp. Vol. I,

p- 47). While possession of the actual warrant in hand seems not

to be a requirement under federal law, it is a requirement under

Georgia law, State v. Shafer, 193 Ga. 748 (1942). Further in

United States v. Harper, supra, it was held that “in the absence

of a contrary federal statute, as in the case at hand, the validity

of an arrest is controlled by the law of the state where the

arrest occurred." 550 F.2d at 614. In Harper, a case that cites

Cravero as law, there existed a Kansas statute which allowed the

entry into a building to execute an authorized arrest. The policy

reasons for such a requirement are clear and strong -- a legal

document should be available to justify to persons present the

necessity of the entry and procedures accompanying it. Michigan

v. Tyler, 98 S.Ct. 1942 (1978).

Moreover, the Court in Cravero emphasizes that the

situation envisioned there is one which “allows the officer, who

has already been to the magistrate to secure an arrest warrant,

to determine that the suspect is probably within certain premises

without an additional trip to the magistrate ..." 545 F.2d at

421 (emphasis added). Cravero, as the Court emphasizes in its

opinion, involved one contemporaneous trip to a judicial officer,

and merely excused a second trip. In the instant case there was

no trip to the magistrate, but merely reliance on Agent Goodowens'

memory that Lyons had been indicted in July of 1977 for a marijuana

offense and had not been brought to trial.

In regard to the probable cause, or reasonable belief

as to Lyons' presence at the residence, a strong contrast exists

with the existing cases approving warrantless entry. Cravero

involved the officers themselves seeing the two sought-after

fugitives enter and remain in the house. Rodriquez involved a

reliable C.I. plus further corroboration of his information by

officers taking him by the location three times. James involved

a reliable C.I. plus a bullhorn announcement, with entry following

only after a shootout. Here, we have a C.I. providing information

which is clearly not based on first-hand observation, followed by

a clear and seemingly intentional failure of the officers to take

any steps to corroborate the information prior to a full-blown

armed raid. Although these officers here determined that a

house on Carey Court had the specific telephone number referred

to by the C.I., they had only been able to determine the “general

location" of the house from Southern Bell. Although they

determined the phone was listed to a Richard E. Fisher, no effort

was made to either contact or even investigate the apparent owner

of the residence. Further, upon arrival at the location, agents

were faced with two houses at the same address. Not knowing which

house they were looking for, the agents hit both houses, with

drawn weapons, leaving the second only after discovering that it

The facts and circumstances of the instant case require

a reassessment of the applicability of the principles enumerated

in Cravero. The instant case illustrates the fear spoken of in

the main opinion in that case and the facts here ~~ most notably

the conduct of the officers -- will require significant and

dangerous expansion of the limited concept adopted in the opinion

of the Court on the petition for rehearing.

II. ASSUMING ARGUENDO THAT THE FIFTH CIRCUIT OPINION IN

CRAVERO ENUNCIATES GOOD LAW IN REGARD TO THE REQUIRE-

MENTS OF THE FOURTH AMENDMENT, THE WARRANTLESS ENTRY

INTO PETITIONER'S HOME WAS MADE WITHOUT SUFFICIENT

PROBABLE CAUSE TO JUSTIFY THE INTRUSION.

In its opinion on the petition for rehearing, the Court

in Cravero adopted a test of "reasonable belief". On close reading,

this is merely a substitute for probable cause, adopted because

the implication contained in the term probable cause is the require-

ment of either a magistrate's determination or exigent circumstances.

545 F.2d at 423. First, the validity of this statement should be

analyzed in light of Ybarra v. Illinois, 100 S.Ct. 338 (1979),

where it was held that the requirement that a search or seizure

of a person be supported by probable cause particularized with

respect to that person cannot be undercut or avoided by simply

pointing to the fact that coincidently there exists probable

cause to search or seize another, or to search the premises

where the person may happen to be. However, in essence, what

the Cravero court says is that it will apply a concept of

reasonableness which "embodies the same standards of reasonable-

ness" as probable cause, but remove . the implication of either

magistrate or exigency. Id.

As a consequence, when the “reasonable belief" of the

officers as to the presence of the fugitive is based on information

supplied by a C.I. instead of their personal observation as is

found in Cravero, this "reasonable belief" should be analyzed in

terms of the case law governing probable cause determination

based on similar situations, with the principal point of

departure being the two-pronged analysis developed by the

“Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,

12 L.Ed.2d 723 (1964) and discussed in Spinelli v. United States,

394 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). After the

C.I. meets the reliability test, there must be an examination

of the "underlying circumstances" -- the manner in which the

information was gathered by the C.I. Whatiis generally required

is a statement from the C.I. containing sufficient detail or

representation permitting the magistrate to determine the C.I.'s

conclusions were justified and not mere rumors or suspicion.

In the absence of this, corroborating evidence as to the tip

developed by the officers and submitted along with the tip is

acceptable. Id.

An analysis of the tip in this utie: te light of these

principals demonstrates that its "underlying basis" was clearly

lacking. As a consequence, the reasonable belief test of Cravero

was not met.

The first report of the confidential informant to

Agent Rassey of any substance came on January 16, 1978. Previous

reports had been nonspecific information (on January 4, 1978)

(lst Supp. Vol. II, p. 34, 41) and (on January 14, 1978) a

telephone number for Ricky Lyons and "Jimmy" good only for

"24 hours" (lst Supp. Vol. II, p. 36). On January 16, 1978,

however, the C.I. called Rassey and told him he talked ‘i

"Jimmy" and heard a voice he identified as Ricky Lyons in the

background and they were calling from a specific number. When

pressed by Rassey for more details -- the underlying circumstances

-- the confidential informant could not tell him where the

residence was located or if Ricky Lyons and "Jimmy" lived there,

only that they were at that number "for a while" (lst Supp. Vol.

It, p- 39). Again and again in his testimony, Rassey admits that

he accepted the conclusion of the confidential informant that they

would be there:

A. . . » All he knew was that they were

there and that they were going to be

there for a while. (lst Supp. Vol.

any B.S).

* kk

A. I asked him, "Are you sure they are

both going to be there?" He said,

"Yes". That's all he told me.

(lst Supp. Vol. II, p. 47).

Q. Did he give the basis of this belief?

A. I asked him about that. I says, "How

do you know," he says, "Well, I just

know that there's, you know, some

people there."

Q. Just speculation?

A. I don't know. (lst Supp. Vol. II,

p. 48). ‘

Even more telling is an examination of the basis for the

coniidential informant's critical conclusion that the call reported

to Agent Rassey on January 16, 1978 came from the telephone number

that Ricky Lyons and "Jimmy" were to be found at. On cross-

examination on this point Rassey gave the following answers:

Q. He [the confidential informant] told

you [on January 16, 1978] that he was

speaking with a guy named Jimmy and

he heard Ricky's voice, or a voice

he identified as Ricky's in the back-

ground, is that correct?

A. (Agent Rassey) Yes.

Q. Ok. Where was he speaking from at

the time? I mean Jimmy when I say

"he". Did your informant tell you

that?

A. They were at the number that he had

given me near Atlanta.

Q. How did you ascertain that from your

informant?

A. I asked him. 1 says, "Where are they

at?" And he says, "They're at the number

I gave you." I says, "Are you sure?"

He said "Yes",

Q. Did you go into the basis for that, how

he knew that?

A. No I didn't, I just asked him if he was

positive, and he has always given me good

information before. He said he knew they

were there. (lst Supp. Vol. Ti, p. 50)

(emphasis added).

Finally, on the very day of the raid, the last communi-

cation from the C.I. to Rassey was that "the information he had

given me was still good." (lst Supp. Vol. II, p. 49).

A careful review of the information furnished by the

confidential informant to Agent Rassey yields the conclusion

that there is a complete dirth of the requisite underlying

circumstances -- the necessary detail to show the informant had

hard information and not just rumor. Moreover, the conduct of

the officers in Georgia did nothing to provide -- or even attempt

to provide -- corroboration for the C.I.'s information. All they

found was that the number was listed in the Buford area to a

Richard Fisher. No individual known to associate with Richard

Lyons was seen or connec sted with the location. Even the particular

house was not located. Most critically of all, no surveillance

was undertaken or even attempted (lst Supp. Vol. I, p. 52).

A raid was mounted and launched and carried out with extreme

and unreasonable force on the basis of a series of tips by a

confidential informant, and the tip failed to meet the second

prong of the Aguilar test.

As such there has been no showing of the requisite

“reasonable belief" necessary under Cravero to justify the

warrantless entry, with force, into the vesidence, and the

contraband and all other items seized as a result of and as

fruits of that entry should have been Suppressed.

Significantly, Judge Kravitch of the Fifth Circuit panel

dissented from both the original panel decision and the denial of

the Petition for a panel rehearing on the grounds of a lack of

probable cause. In her initial dissent, the Judge noted the

factual distinctions between Cravero and the instant case.

The arresting officer had not observed Ricky Lyons, the subject

of the arrest warrant. The arresting officer's belief that Lyons

was within the premises was based solely on an informant's tip.

As distinguished from Rodriquez, supra, the informant had not

seen Lyons on the premises, but had merely heard his voice in

the background during a telephone call from Jimmy. After match-

ing the telephone number. with the residence, the officers,

without first applying to a detached magistrate for a search

warrant, proceeded to the premises where they detained the

defendants and after entering and looking through the rooms,

discovered not the subject of the arrest warrant but a cache

of cocaine. "As in Cravero there was an arrest warrant but no

exigent circumstances; unlike Cravero the evidence linking the

subject to the premises was extremely fragile and insufficient

to justify an entry without a search warrant." 606 F.2d at 548.

Furthermore, Judge Kravitch cited the Supreme Court's

opinion in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32

L.Ed.2d 612 (1972), wherein the doctrine announced in Terry v.

Ohio, 392 U.S. 188 S.Ct. 1868, 20 L.Ed.2d 889 (1968), was extended

to include a stop based not only on the policeman's observations

but also on an informant's tip which did not satisfy the Aguilar

and Spinelli criteria. "Adams and Terry involved a minimal

invasion of privacy, however, as compared with the greater

intrusion occasioned by the search of a third party's private

home. When an intrusion of such magnitude occurs, if not based

upon the policeman's personal observations, nothing short of a

full-fledged Aguilar/Spinelli tip should be acceptable." 606

F.2d at 549.

Finally, Judge Kravitch also dissented from the

per curium opinion denying the petition for rehearing. Besides

expressing concern over the extension of the Cravero rule,

"a rule of questionable validity and wisdom even in the less

egregious circumstances present in that case," the Judge

disagreed with the majority that the tenuous information

appended to the panel opinion satisfies the teachings af

Aguilar and Spinelli. 615 F.2d at 644.

CONCLUSION

For the above-mentioned reasons, a Writ of Certiorari

should issue to review the judgment of the Fifth Circuit Court

of Appeals.

Respectfully Submitted,

<_ “0%

w/) i Ae /o4

J } TY

Federal Defender Program, Inc.

101 Marietta Tower, Suite 3612

Atlanta, Georgia 30303

(404) 688-7530

APPENDICES

kh

« '

Moye, Jr, J, convieted defendants of pos.

session of cocaine and of conspiracy to pos-

sean cocaine with intent to distribute and

convicted one of the defendants of unlawful

importation of cocaine, and defendants ap

poatled, The Court of Appeals, Charles

Clark, Circuit Judge, held thats (1) agents

had objective grounds for forming reasona-

ble belief that fugitive was present at third

party's premises, and thus warrantless en-

try of premises was proper, even though

fugitive named in arrest warrant was not

found to be present on premises at the

moment of entry; (2) refusal of district

court to order Government to provide de-

fendants’ expert witness with primary ref-

erence sample for use in an independent

laboratory analysis was not a denial of due

process of law; (8) evidence was sufficient

t sustain convictions; (4) trial court did

not err in failing to dismiss indictment on

grounds of double jeopardy; and (5) trial

court did not err in giving supplemental

charge to the jury.

Affirmed.

Kravitch, Circuit Judge, concurred in

part and dissented in part and filed opinion.

}. Arrest 268

When an officer holds a valid arrest

warrant and reasonably believes that its

subject is within promises belonging to a

third party, he need not obtain a search

warrant to enter for (he purpose of arrest-

ing the subject.

2. Arrest 668

Where valid warrant for arrest of cer-

tain individual was outstanding and first-

hand information from reliable informant

established that that individual recently

had been and was believed still to be in the

dwelling containing certain telephone, Drug

Enforcement Administration agents had ob-

jective grounds for forming reasonable be-

lief that fugitive was present at the premis-

es in question when they entered and, hav-

ing such a reasonable belief, warrantless

entry of premises was proper.

UNITED STATES v. GAULINEY

Cite as COG EF 2d 500 (1e7R)

541

3. Arrest o 6S

Fact that fugitive named in arrest war-

rant was not found to be present on third

person's premises at moment of entry by

agents did not render entry invalid

4. Constitutional Law = 268(5)

District court's refusal to order Govern-

ment Lo provide defendants’ expert witness

with the primary reference sample for use

in an independent laboratory analysis did

not deny defendants due process of law,

where defendants failed to show that denial

prevented their expert from conducting an

independent analysis to show that seized

substance was not cocaine. U.S.C.A.Const.

Amends, 5, 14; Fed.Rules Crim.Proc. rule

16(u1C), 18 ULS.C.A.

5. Conspiracy @>47(12)

Drugs and Narcotica #& 123

Evidence was sufficient to sustain con-

viction of possessing cocaine and conspiracy

to poasevs cocaine with intent to distribure,

Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401(4X1), 406, 21

U.S.C.A. §§ 841(a)(1), 846.

6. Criminal Law = 1144.13(7)

Sufficiency of evidence to establish de-

fendant's knowledge and intent had to be

viewed in the light most favorable to the

Government on appeal with all credibility

choices considered in support of the jury

verdict,

7. Criminal Law @=182

Under ordinary cireumstances, a de-

fendant's request for a mistrial removes

any constitutional barrier to retrial, but

where “prosecutorial overreaching” — is

present, interests protected by double jeop-

ardy clause outweigh public interest in con-

ducting second trial ending in acquittal or

conviction; to find such “prosecutorial over-

reaching,” government must have, through

gross negligence or intentional misconduct,

caused aggravated circumstances to develop

which seriously prejudice a defendant,

causing him to reasonably conclude that

continuation of tainted proceeding will re-

sult in a conviction. U.S.C.A.Const.

Amend. 5.

See publication Words and Phrases

for other judicial constructions and

definitions.

Appendix "A" Page 2

=

8. Criminal Law Oo 182

In order to determine whether there

exists prosecutorial overreaching barring

retrial following mistrial, analysis must

consider totality of the circumstances prior

to the mistrial,

9. Criminal Law = 182

Where transcript of defendant's state-

ment which prosecutor provided to the

press contained no information that had not

been introduced previously in the presence

of the jury, where prosecutor's actions ap-

peared to have been motivated by defend-

ant to ensure wccuracy in the press’

accounts, trial court did not err in denying

motion to dismiss indictment on grounds of

double Jeopardy following mistrial which

was required because of publication of prej-

udicial article jn local Newspaper, despite

defendant's claim that prejudicial materia]

in the urticle arose from statement attrib.

uted to defendant and furnished to the

press by the Prosceutor, as prosecutor's ac

tions did not constitute “prosecutorial over.

reaching.” U.S.C.A.Const. Amend. 5,

10. Criminal Law @=> 863(2)

In prosecution for possession of cocaine

and for conspiracy to possess cocaine with

the intent to distribute, trial court's supple-

mental charge to the jury, which expressly

cautioned jury not to consider supplemental

charge in isolated context but to consider

entire charge as given, ascribing no greater

Weight to supplemental charge than to orig-

inal charge, was proper, where original and

supplemental charges, when considered as

combined charges, accurately covered points

of law at issue.

eT ae

Albert M. Horn, Atlanta, Ga., for defend.

4nt-appellant in 78-5329.

Robert A. Boas, Asst. U. §. Atty., Atlan.

ta, Ga., for U.S, in both cases,

P. Bruce Kirwan, Federal Public Defend. °

er, J. Richard Young, Asst. Public Defend-

1. Special Agent Rassey testified that the confi-

dential informant had known “Jimmy” and

Ricky Lyons for & number of years and had

spoken to “Jimmy” in the Detroit area during

Or just before Christmas 1977, :

Appendix "q" Page 3

2 606 FEDERAL REVORTER, 24 SERIES

er, Atlanta, Ga., for defendantappellant in

78-5416,

William L, Harper, U, g. Alty,, Atlanta,

Ga., for U.S. in 78 5A16,

Appeals from the United States District

Court for the Northern District of Georgia,

Before THORNRERRY, CLARK

KRAVITCH, Circuit Judges,

and

CHARLES CLARK, Circuit Judge:

Hoyt A. Gaultney and Gary K. Steagald

were convicted of Possessing cocaine in vio-

lation of 21 U.S.C. § 841(aX1), and with

conspirucy to possess cocaine with the in-

tent to distribute jn Violation of 21 U.S.C.

§ 846. Additionally, Gaultney was convict-

ed of the unlawfu! importation of cocaine in

violation of 21 U.S.C, § 952(a). They ap-

Peal, raising a variety of issues. We affirm.

Gaultney and Steagald argue first that

the original entry by local police and feder-

al agents into the premises in which cocaine

subsequently was found was unlawful, in

that the entry was neither pursuant lo a

Search warrant nor justified by probable

cause and exigent circumstances. The evi-

dence shows that on January 4, 1978, Spe-

cial Agent Joseph Rassey of the Federal

Drug Enforcement Administration [DEA]

in Detroit, Michigan, was contacted by a

confidential informant. The informant ad-

vised that he might be able to locate “Ricky

Lyons,” whom he believed te be wanted by

the DEA, and another individual named

“Jimmy,” whom he believed to be wanted

on state drug charges in Georgia. The in-

formant advised that “Jimmy” currently

was using the alias “Car! James.” Addi-

tionally, the informant stated that he had

known both of these individuals personally!

Agent Rassey did not know the status of

cither individual, but because this infor-

mant’s information had been reliable in the

past,” Rassey told the informant to call as

2. Special Agent Rassey testified that he had

known the informant for approximately four or

five years, that the informant had furnished

reliable information to the DEA in the Past, and

that on the basis of such information seven

te ee

Tue:

—

ee UNITED STATES v. GAULTNEY 543

Cite as 606 24 540 (1079)

* woon hs the iMfividualy wore lovated at a

definite spor On Saturday evening, Janu-

ary 14, 197%, Rassey received 4 telephone

call from the informant advising that he

had spoken with “Jimmy” hy telephone and

had been given a telephone number in the

Atlanta, Georgia, area where “Jimmy” and

Ricky Lyons would be within; the next

twenty-four houry.3 The informant ave

this telephone number to Rassey, who, in

turn, gave it to Special Agent Kelly Good-

owens of the DEA'y Savannah, Georgia,

District Office on Monday, January 16,

Goodowens was aware that one Richard

Harrison Lyons, a/k/a “Ricky” Lyons, had

been indicted six months earlier jn the

Southern District of Georgia, in a Marijua-

aa smuggling case. Upon further investi-

gation, Goodowens determined that an ar-

rest Warrant had been issued for Lyons and

* that the DEA gti}) listed Lyons as 4 fugi-

tive. Thereaf ler, Goodowens contacted the

telephone company and learned that the

telephone number Provided by Agent Ras-

sey’s informant was listed to a Richard 5,

Fisher at a rural address in Buford, Geor-

gia.

On Monday, January 16, 1978, Rassey re.

ceived another lwlephone call f rom his infor.

mant, who advised that 4 recent telephone

conversation with “Jimmy” confirmed hig

presence at the telephone number previous.

ly given Rassey by the informant. The

informant also Staled that Ricky Lyons way

at the same location, noting that he had

heard Lyon's voice in the background dur-

ing his telephone conversation with “Jin.

my.” Rassey had several other telephone

conversations with the informant between

January 16 and the morning of January 18,

Each time the informant confirmed that

“Jimmy” and Ricky Lyons Were still at the

location of the telephone number. The in-

formant also advised Rassey that several]

other people would be with Lyons at the

i This information was passed

along: to Goodowens by Rassey in a serics of

telephone conye rsiutions, the Jast taking

Place on the morning of Wednesday, Janu-

ary 18, 197%.

On the afternoon of January 18, Goodow-

ens and DEA Ayents Wayne Smith and

James Williams, after consulting with a tele.

phone company installer and local police,

lowated the address to which the telephone

number was listed. On drivingy past the

house, these agents observed a Volkswagen

parked in the driveway and smoke coming

from the chimney of the house, No people

Were observed outside in the vicinity of the

house or automobile, Approximately thirty

minutes later, after coordinating plans for

the execution of the arrest warrant on

Ricky Lyons, Agents Goodowens, Smith,

and Williams led 4 force of approximately

twelve federal agents and local police of fi-

cers the residence. Upon Approaching

the house, Goodowens and Smith noticed

two men located near the rear of the

parked Volkswagen, Which now had its en-

Kine cover up. Smith at first believed one

of the men to be Ricky Lyons, but, upon

realizing he was not, continued toward the

house. One of the two men, later identified

#8 Gaultney, was armed. Both Gaultney

and the other man, later identified as

Steagald, were detained pending Smith's

return from the house.

Agent Smith arrived at the house and

knocked on the front door, Gaultney's

wife, Cathy, answered the door, Smith ad-

vised Mrs. Gaultney that he was a police

officer with an arrest warrant. He asked

to come into the house and was admitted.

Smith told Mrs, Gaultney he had an arrest

warrant for Ricky Lyons and asked if

Lyons was in the house. Mrs. Gaultney

Stated that there was “no one by that

name” in the house. Smith then told Mrs.

Gaultney to Place her hands on the wall and

asked Detective Conway to wateh her,

, and it

was a number where Jimmy and Ricky were

Boing to be within the next twenty-four hours."

Appendix: "qu Page 4

4

Smith began a sweep search of the premis-

es,

Agent Smith walked down a short hall to

his right and looked first in a bathroom

situated between two bedrooms. Seeing no

one in the bathroom, but observing a light

coming from under the door to the front

bedroom on his right, he opened the door

and entered. Immediately inside Smith ob-

served a small table upon which was a set

of triple beam balance scales, a clear plastic

bag containing a white powder, and a box

contuining a roll of clear plastic bags.

Smith completed the sweep search of the

premises without locating Lyons. He re-

turned outside to advise the other officers

of what he had discovered in the house.

Agent Goodowens then entered the house

and, upon entering the front bedroom, saw

the scales, the bag of white powder, and the

roll of plastic bags on a small table, togeth-

er with what appeared to be more bags of

white powder partially visible inside a

green garbage bag lying in an open suitcase

on the bed. Approximately fifteen minutes

later, Agent Smith left for Atlanta to ob-

tain a search warrant for the house, Upon

obtaining « warrant, Smith telephoned the

agents who had remained at the house and

advised them of the existence of the war-

rant.

About this time, a truck oceupied by a

man and woman arrived at the house.

Based on information obtained from appel-

lant Gaultney, the agents believed the truck

to contain “Jimmy,” the state fugitive

about whom Rassey's informant had spo-

ken. This individual immediately was de-

tained on his entry to the house and initial-

ly declined to identify himself any further

than his first name of Jimmy. Later, the

individual produced a North Carolina driv-

er’s license bearing the name “Carl James.”

That evening, the individual was identified

as James Albert Smith, who was wanted by

state authorities on drug charges.

4. The search revealed a clear plastic bag con-

taining 450 grams of 45% pure cocaine hydro-

chloride, two suitcases containing 8,394 grams

of 99%, pure cocaine hycrochloride and 10,445

grams of 95% pure cocaine hydrochloride re-

Appendix "A" Page 5

606 FEDERAL, REPORTER, 2d SERIES

A subsequent search of the house con.

ducted pursuant to the warrant obtained by

Agent Sinith revealed a variety of narcot iva

processing; paraphernalin andi some 43

pounds of ulmost pure cocaine!

{1} The law of this circuit is settled that

“when an officer holds a valid arrest: war.

rant and reasonably believes (hat its subject

is within premises belonging to a third par-

ty, he need not obtain a search warrant to

enter for the purpose of arresting: the sub.

ject.” United States vy, Cravero, 545 F.2d

406, 421 (5th Cir. 1976), cert. denied sub

nom. Miller v. United States, 429 U.S. 1100,

97 S.Ct. 1123, 61 L.Fd.2d 549 (1977), and

cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52

L.Ed.2d 377 (1977). See United States y.

James, 528 F.2d 999, 1017 (Sth Cir. 1976),

cert. denied sub nom. Henry v. United

States, 429 U.S. 959, 97 S.Ct. 382, 50

L.Ed.2d 826 (1977); Rodriguez v. Jones, 473

F.2d 599, 605-06 (5th Cir.), cert. denied, 412

U.S. 953, 93 S.Ct. 3023, 37 L.Bd.2d 1007

(1973). As stated in Cravero, the test prop-

erly is framed in terms of the officer's

reasonable belief.

Reasonable belief embodies the same

standards of reasonableness {as does

probable cause] but allows the officer,

who has already been to the magistrate

to secure an arrest warrant, to determine

that the suspect is probably within cer-

tain premises without an additional trip

to the magistrate and without exigent

circumstances,

545 F.2d at 421,

{2,3} A review of the facts in this case

discloses that a valid warrant for the arrest

of Richard Harrison Lyons, a/k/a “Ricky”

Lyons was outstanding and that first-hand

information from a reliable informant es-

tablished that Lyons recently had been and

was believed still to be in the dwelling

containing the telephone. Based on these

facts, the agents had objective grounds for

forming a reasonable belief that the fugi-

spectively, a box of clear plastic bags, two sets

of Ohaus triple beam balance scales, and a bag

containing beta-manitol, a common cutting

agent for cocaine.

hee UNITED STATES ¥. GAULTNEY

545

Che os 004 F.24 546 (te79)

tive was Present at the premises in question

when they entered United States v.

James, 528 F.2d al 1017; Rodriguez y.

Jones, 473 P2d at 606. Having such un

reasonable belief, the ayent’s warranticss

entry of the premises was proper, United

States vy, Cravery, 545 Pd at 421. The

fact that the fugitive named in the arrest

warrant was not found to be Present on the

premises at the moment of entry does not

render the ently invalid. United States ¥,

James, 522 F.2d at 1017; United States y,

slofman, 488 F.2d 287, 289 (5th Cir, 1974).

Counsel refers this court to the causes of

Payton v. New York and Riddick v. New

York, reeenUy we argued at the Supreme

Court.® There, Now York State statutes

authorizing the entry of & suspect's home in

the absence of exigent ‘reumstances to ef-

fect the suspect's Warrantless arrest are

challenged as being violative of the fourth

amendment. These cases, and the issue

thus presented to the Supreme Court, are

inapposite to the issue before this court

today. Today, we apply the reasonable be-

lief standard announced in Cravero where

the entry occurs to execute an existing,

valid arrest warrant.

[4] Gaultney and Stexgald further ar-

gue that the refusal of the district court to

order the government to provide their ex.

pert witness with a primary reference sam-

ple® for use in an independent laboratory

analysis constitutes a denial of due process

of law. This court has held that

Fundamental! fairness is violated when a

criminal defendant on trial for his liberty

is denied the Opportunity to have an ex-

pert of his choosing, bound by appropri-

ate safeyuards imposed by the Court, ex-

5. The Court of Appeals of New York affirmed

the defendants’

People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d

395, 380 N.E.2d 224 On appeal, the

United States Supreme Court noted probable

jurisdiction 439 U.S. 1044, 99 Sct 718, 58

L.Ed 2d 703 (1978). The cases were argued on

March 26, 1979, 47 ULS.L.W. 365} (U.S. April 3,

1979) and Subsequently were restored to the

calendar for reargument. —-~ Us. —-, 99

S.Ct. 2049, Co L Ed.2d 658 (1979), The cases

were reargued on Oct. 9 1979. See 48 U.

S.L.W. 3251 52 (U.S, Oct. 16, 1979); 48 U,

S.L.W. 3267 (US. Oct. 23, 1979) (Nos. 78% 5420,

~54).

amine a piece of critic! evidence whose

nature is subject to varying expert opin-

ion,

Barnard y, Henderson, 514 F.2d 744, 746

(5th Cir. 1975), Sow F.R.Crim.P, 1HaK XC).

In cuses involving # controlled substance,

courts have held a concomitant part of the

examination or inspection to he the right of

the accused to have an independent chemi-

cal analysis Performed on the seized sub.

stance. See, e. g., United States vy, Pollock,

402 F.Supp. 1310, 1312 (D.Mass.1975); Unit.

ed States v. Acarino, 270 F.Supp. 526, 528

(E.D.N.Y.1967). See also, United States y,

Sullivan, 578 F.2d 121, 124 (5th Cir, 1978).

Our inquiry, therefore, focuses on whether

the refusal of the district court to order the

government to provide the defendant's ex-

pert with a primary reference sample

Paced an unreasonable restriction on the

defendant's right to an independent analy-

Sis 80 as Lo deny him due process of law,

The facts disclose that the parties agreed

that the independent analysis of the seized

substance would be conducted at the Geor-

gia State Crime Laboratory [GSCL) in At-

lanta, Georgia. The GSCL has and enforces

a policy of not supplying visiting indepen-

dent examiners with a primary reference

sample of controlled substances, Testimony

from a government witness stated that the

GSCL adheres to this policy for three rea-

sons. First, independent examiners who

are licensed to possess controlled substances

are allowed by law to possess their own

Primary reference samples. Sve generally

21 U.S.C. §§ 821-24; 21 CER, § 1301;

Ga.Code Ann, $§ 79A-813 to -816. Second,

those independent examiners not so licensed

can purchase “exempt standards"? from

6. A primary reference sample is a sample of

the drug in Question, here cocaine hydrochlo-

ride, whose quality and Purity are known.

7. An exempt standard is a mixture containing a

controlled substance, here cocaine hydrochlo.

ride, that is prepared for laboratory, industrial,

educational or Special research Purposes and is

packaged in such a manner, combination,

quantity, Proportion, or concentration so as not

to present a potential for abuse. See 21 C.F.R.

§§ 1308.23.24.

Appendix "A" Page 6

-.

16 606 FEDERAL REPORTER, 24 SERIES

Various private Manufacturers, Third, vari-

OUS analytical chemistry techniques utiliz.

ing instruments available at the GSCL al-

low an analysis of an unknown compound

Without the use of a reference sample, ei-

ther Primary or exempt,

Gaultney and Steagald make no showing

that the policy of the GSCL prevented their

Cxpert from conducting an independent

analysis to show that the seized substance

the expert never availed himself of the

opportunity to examine the Seized sub.

Stance to determine Whether he could make

an independent analysis of jts contents,

Despite never Previously having attempted

An analysis using an exempt standard, the

expert lestified that any lests he might run

restricted by the GSCL Ruidelines would

yield results inferior ty those obtained by

WAS Vigorously disputed by the testimony of

the GSCL Senior Forensic Chemist. In

Was no error in the tria! court's determina-

tion that the GSCL policies regarding pri-

mary reference samples are reasonable,

They did not operate to deprive appellants

of due process of law.

(5) Steagald additionally argues that

the evidence presuced at trial was insuffj-

cient to Prove the requisite knowledge and

tember 16, 1977, Steagald contacted the

Able-} Answering Service in Alanta, Geor.

gia, to arrange a telephone answering ser.

vice for the Rosen | mport Company, Inc. A

ary 12, 197%, Steagald executed a lease

agreement for Warehouse space at 100. D

Mill Street in Lawrenceville, Georgia.

Steagald leased the Warehouse in his own

name and paid the first month's rent with a

check drawn on the account of Rosen Im-

Appendix "A° Page 7

port Company. On January 12, GTS, Hriee

Dunean & Co., CUStorns house brokers in

Atlanta, Georgia, reeenved a call Fromm the

Delta Airlines Airlreight Of fice [Dettal ot

Hartsfield International Airport in AUanta,

advising that Delta was holding as shipinent

of sixteen cartons of lamp, and brace table

bases from Colombia,’ South Ameziea, and

were consigned to Roseiy Tryport Company

Having handled Previous Rosen Import

was familiar with Steayald as 4 representa.

tive of that fvmpany and therefore called to

Steagald requested that Bruce Dunean &

Co. arrange for delivery of the Shipment for

the next day because “his Customers needed

the products,” Bruce Duncan & Co., acting

on information furnished by Steagald, con.

tacted Theatres Service Company [TSC] re.

karding the delivery of the Shipment. On

January 14, 1978, after contact with both

ment's evidence, by failing to Place him

inside the Buford, Georgia, house, fails suf.

ord, Georgia, house, the copy of the Tse

freight waybill received by Steagald upen

livery of the SIXLEN crates ty) the My)

Street Warehouse was discovered on tie

dining room table. Additionally, agents

when taken into Custody, was wearing only

Slacks and a long-sleeve shirt, clothing in-

consistent with the coldness of the Januar:

afternoon, and that once taken inside the

LEBEL RE ee

~ a7

_—

el —

' UNITED STATES v. GAULTNEY

547

Cite &s 606 F.2d 548 (1978)

"Buford, Georgia, house, told a DEA spent

that he was cold and requested that she ret

& sweater or cout for him from the kitchen

area. Moreover, on January 20, DEA

agents obtained a search warrant for tho

warchouse loested at 100-1) Mill Street.

There, agents discovered numerous wooden

erates that had been opened previously and

a large number of lamps and brass table

bases. All the brass table bases were hol-

low inside. During the search agents dis-

covered a bag of white pow der, subsequent-

ly determined to be 483 grams of cocaine,

70% pure, inside one of the brass table

bases.

[6] The sufficiency of the evidence to

establish Steayrald’'s knowledye and intent

must be viewed in the light most favorable

to the government, Glasser y. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Rd.

680 (1942), with all credibility choices con-

sidered in support of the jury verdict.

United States y, Barresi, 601 F.2d 193, at

195 (Sth Cir. Aug. 22, 1979); United States

v. Black, 497 F.2d 1089 (5th Cir, 1974). Ap-

plying this standard, there was sufficient

evidence to support the jury's verdict.

(7,8) Steagald further contends that

the trial court committed reversible error

when it failed to dismiss the indictment on

grounds of double Jeopardy. Steagald's

first trial ended when, pursuant to his mo-

tion, the trial court declared a mistrial be-

cause of the publication of a prejudicial

article in a local newspaper. Steagald

claims that the prejudicial material in the

article arose from a statement attributed to

Gaultney and furnished to the press by the

United States Attorney. Steagald argues

that this action constitutes prosecutorial

overreaching of such magnitude as to re-

quire application of the bar of double jeop-

ardy. The law in this circuit was Stated in

United States y. Kessler, 580 F.2d 1246 (5th

Cir. 1976);

[U)nder ordinary circumstances, a de-

fendant's request for a mistrial removes

any constitutional barrier to retrial. .

But the Supreme Court recognizes that

there may be exceptions to that rule—

rare cases involving circumstances which

are “attributable to prosecutorial * * *

overreaching,”

Where “prosecutorial overreaching” is

present, the interests protected by the

Double Jeopardy Clause outweigh the

public interest in conducting a second tri-

al ending in acquittal or conviction. .

To find “prosecutorial overreaching,”

the Government must have, through

“gross negligence or intentional miscon-

duct,” caused aggravated circumstances

to develop which “seriously prejudice[d] a

. defendant" causing him to reasonably

conclude that a continuation of the tuint-

ed proceeding would result in a convic-

tion.

530 F.2d at 1255-1256. This analysis must

consider the totality of the circumstances

prior to the mistrial in order to determine

whether prosecutorial overreaching existed.

Td. at 1256.

[9} Under Kessler’s test, the prosecu-

tor's actions do not come close to prosecuto-

rial overreaching. The record, as clarif ied

by wounsel during oral argument, shows

that the transcript of Gauliney's statement

that the prosecutor provided to the press

contained no information that had not been

introduced previously in the presence of the

jury. Indeed, the United States Attorney's

actions appear to have been motivated by a

desire to ensure accuracy in the press's

accounts. There was no error in the trial

court's denial of Steagald's motion to dis-

miss the indictment on grounds of double

jeopardy.

{10} Finally, Steagald contends that the

trial court committed reversible error in its

supplemental charge to the jury, first by

refusing to recharge on specific intent and

reasonable doubt and second by inaccurate-

ly defining intent by failing to refer to

Specific intent. A review of the supplemen-

tal charge to the jury, together with the

court's original charge, discloses no error.

The district court in its supplemental

charge expressly cautioned the jury not to

consider his supplemental charge in an iso-

Appendix "A" Page 8

548

lated context, but to consider the entire

charge as given, ascribing no greater

weight to the supplemental charge than to

the original charge. In so doing, the dis-

trict court touk an appropriate and previ-

ously approved step to ensure a balanced

charge so as to avoid any possibility of

prejudice to the defendant. United States

v. Sutherland, 428 F.2d 1152, 1157-58 (5th

Cir. 1970), cert. denied, 409 US. 1078, 93

S.Ct. 698, 34 L.Bd.2d 668 (1972). Further-

more, the original and supplemental

charges, when considered as combined

charges, xecurately cover the points of law

atissue. United States y. Blevins, 555 F.2d

1236, 1239 (5th Cir, 1977), cert. denied, 434

US. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761

(1978).

The convictions of Hoyt A. Gaultney and

Gary K. Steagald are

AFFIRMED.

KRAVITCH,

I respectfully dissent from that portion of

the opinion relating to the entry and search

of the premises,

United States y. Cravero, 545 F.2d 406

(5th Cir.), cert. denied, 430 U.S. 983, 97 S.Ct.

1679, 52 L.Ed.2d 377 (1977), permitted,

without a search warrant, the entry of

premises of a third party for execution of

an arrest warrant, based upon the officer's

reasonable belief that the subject of the

arrest’ warrant was within the building.

The court reasoned that despite a lack of

exigent circumstances, an officer who has

already been to the magistrate once to se-

cure the arrest warrant need not make an

additional trip if he has determined that the

Circuit Judge, dissenting:

1. Compare with Rodriguez vy, Jones, 473 F 2d

599 (Sth Cir.), cert. denied, -412 U.S. 953, 93

S.Ct. 3023, 37 L.Ed. 2g 1007 (1973) where infor-

mant had observed the subject enter the build-

ing.

2. No address or name of resident was furnished

by informant, but these were ascertained from

the telephone company.

3. The circuits are not in accord on this issue.

The Third Circuit, in Government of Virgin

Islands \. Gercau, 502 F.2d 914, 928 (3rd Cir.

1974), cert. denied, 424 U.S. 917, 96 S.Ct. 1119,

47 L.Ed. 2d 323 (1976), held: “Although police

Appendix "A" Page 9

606 FEDERAL REPORTER, 24 SERIES

Suspect is Within certain premises, 545 F.2d

at 42).

In Cravero the officers personally had

observed the subject enter the dwelling

and, after maintaining surveillance for sey-

eral hours, reasonably concluded that the

subject was still within the house. Here,

however, we are confronted with a dif for-

ent factual situation. The arresting officer

had not observed Ricky Lyons, the subject

of the arrest warrant. His belicf that

Lyons was within the prenises was based

solely upon an informant’s tip. The infor-

mant had not seen Lyons on the premises,!

but had merely heard his voice in the back-

ground during a telephone call from Jimmy,

Lyons’ companion, who stated that he and

Lyons were at the location of a given tele-

phone number. After matching the tele-

phone number with a residence,” the offi-

cers, without first applying to a detached

magistrate for a search Warrant, proceeded

to the premises where they detained the

defendants and, after entering and looking

through the rooms, discovered not the sub-

ject of the arrest Warrant, but a cache of

cocaine. As in Cravero there was an arrest

warrant but no exigent circumstances; un-

like Cravero the evidence linking the sub-

ject to the premises was extremely fragile

and insufficient to justify an entry without

4 search warrant.

In Adams vy. Williams, 407 U.S. 143, 92

S.Ct. 1921, 32 L.Bd.2d 612 (1972), the Su-

preme Court extended the Terry doctrine ¢

to include a stop based not only on the

policeman’s observations but also on an in-

formant's tip which did not satisfy the

have warrants for the arrest of suspects, they

may enter premises, at least of third persons, to

Search for those Suspects only in exigent cir-

cumstances where the police officers also have

probable cause to believe that the Suspects may

be within.” However, the Tenth Circuit, citing

Cravero as authority, affirmed denial of a mo-

tion to suppress in a case factually similar to

the case before us. United States v Harper,

550 F.2d 610 (10th Cir. 1977), cert. denied, 434

US. 837, 98 S.Ct. 128, 54 L.Ed.2d 99 (1977).

4. Terry v. Ohio, 392 U.S 1, 88 S.Ct

L.Ed.2d 889 (1968)

1868, 20

Fra ERP ene

a

UNITED STATES v. ANDREW 519

r , Cite an 608 F.2d 548 (1978)

Aguilar-Spinelti criteria’ Adams and Ter-

ry involved « minimal invasion of privacy,

however, as compared with the greater in-

trusion occasioned by the search of a third

party's private home. When an intrusion of

such magnitude occurs, if not bused upon

the policeman’s personal observation, noth-

ing short of a full-fledged Aguilar-Spinelli

tip should be aceeptable,

Therefore, | would reverse the denial of

the motion to suppress.

I concur with the remainder of the opin-

ion relating to the other grounds of appeal.

°

Wes

KEY RUMBER SYSTOM

UNITED STATES of America,

Plaintiff-Appellee,

v.

James D. ANDREW,

Defendant-Appellant.

No. 78-5770.

United States Court of Appeals

Fifth Circuit.

Nov. 13, 1979.

Defendant was convicted in the United

States District Court for the Southern Dis-

trict of Florida, Sidney M. Aronovitz, J., of

violating federal criminal bank statutes and

he appealed. The Court of Appeals held

that: (1) there was no prejudice in trying

defendant and codefendant together, and

(2) trial court properly admitted into the

evidence certain summary charts of one

government witness.

Affirmed.

5. Spinelli v. United States, 393 U.S. 410, 89

S.Ct. 584, 21 L.Ed.2d 637 (1969). Aguilar v.

1. Criminal Law o2622(2)

Where each defendant testified and de-

nied culpability in the case, there was no

prejudice in trying the two defendants to-

gether on their charges of violating federal

criminal bank statutes. 18 U.S.CLA. §§ 656,

1005; Fed. Rules Crim.Proe, rule 14, 18 U.S.

CA.

2. Criminal Law @»437

Although, in three instances. out of

nearly 200 times, witness was unable to

testify positively that certain cash items at

the bank were ultimately deposited on the

same day in the defendant's checking

account, trial court did not err in admitting

into evidence certain summary charts of

that government witness where the court's

instructions to jury made it clear that the

ultimate decision should be made by the

jury as to the weight to be given to the

evidence. Fed.Rules Evid. rules 401 403, 28

U.S.C.A.

Michael S. Tarre, (Court-Appointed), Mi-

ami, Fla., for defendant-appellant.

Hugh F. Culverhouse, Jr., Asst. U. S.

Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District

Court for the Southern District of Florida.

Refore AINSWORTH, VANCE and AN-

DERSON, Circuit Judges.

PER CURIAM:

{1,2} James D. Andrew appeals from

his conviction on numerous counts of violat-

ing federal criminal bank statutes, to wit,

18 U.S.C. § 656, relating to theft, embezzle-

ment or misapplication by bank officer or

employee, and 18 U.S.C. § 1005, pertaining

to making false entries in the bank's books.

We have carefully considered the two

points of crror asserted on appeal by appel-

lant Andrew and find them to be without

merit. Appellant charges that there was

error in the trial in district court because he

was not granted a severance from his code-

Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d

723 (1964).

Appendix "A" Page 10

-

615 FEDERAL REPORTER, 24 SERIES

court with directions to veente the order of Jr, J., of drug offenses, and they appealed,

disinisanl of the claim for monetary dam- The Court of Appeals affirmed, 606 F.2d

ages. We further direct the court to hold 640. -Petition for rehearing and petition for

the claim in abeyance pending the adminis- rehearing en bane were filed. The Court of

trative resolution of plrintif('s remaining Appeals held that knowledge of confidential

claims." See Concordis y, United States informant’s past relinbility and precise

Postal Service, 58) ¥.2d 439, 444 (5th Cir, method by which he gathered his informy.

1978). . tion provided sufficient underlying circum.

AFFIRMED IN PAR''; REVERSED stances from which government agent, who

AND REMANDED IN PART WITH] DI. executed warrantless entry to execute

RECTIONS, ; search warrant could conclude that infor.

mant was reliable and that information he

~ furnished as to location of fugitive was

CT credible,

i Petition for pane! rehearing granted in

part and denied in part.

Petition for rehearing en bane denied.

UNITED STATES of Ainerica, Kravitch, Circuit Judge, filed diwent.

Plaintiff-Appellee, ‘ing opinion,

¥.

ty Par ee 1. Criminal Law @=> 294.6(5)

a Where information leading to formula.

UNITED STATES of America, tion of police officer's reasonable belief js

Plaintiff-Appelice, Supplied by a confidential informant, a do-

fendant at a motion to suppress hearing

~ ae may challenge the validity of the informa.

Gary Kelth STEAGALD, tion under Aguilar and Spinelli

Defendant-Appellant.

Nos, 78-6329, 78-5416, % Arrest o=63.4(8)

: In case of warrantless entry based on

United States Court of Appeals, information supplied by an informant, the

Fifth Circuit. inquiry at a suppression hearing is simple

April 14, 1930, and straightforward: here the officers who

decided to act on the information supplied

by the confidential informant aware at the

Defendants were convicted before the time they chose to act of “underlying cir.

United States District Court for the North. cumstances” making the informant “relig-

ern District of Georgia, Charles A. Moye, ble” and his information “credible.”

hold the claim in aboyance, we eliminate necd- er this hearing has taken place, or whether one

less guessing, and if we have erred, it io on the is currently scheduled. In view of the fact that

side of caution. Plaintiff's case has already Leen pending before

the ABCMR for two years, we feel that some

47. Although “practical notions of judicial effi- time limit should be placed on our stay of

ciency” dictate that plaintiff's Gamage claim be Plaintiff's claim for damapes, We therefore

held in abeyance, we are concerned about the place a July 1, 1980 expiration date on our

delay and inconvenience which this procedure order to hold plaintiff's claim in ebeyance, If

may entail. At oval argument counsel for de- the ABCMR has Mot rendered a decision in

fendant-appellce indicated that a hearing be- Plaintiff's case by that date, the district court

fore the ABCMR was scheduled for January 9, should set down plaintiff's damage claim for

1980, and that a decision would follow within trial at the eartiest convenient time.

two or three months. We do not know wheth-

Appendix "qa" Page ll

ba ¥ Che as O15 F.2d 642 (1040)

B.' Arrests 2°68

Where confidential informant's record

of reliability was known to officer and of fi-

cer was aware that informant had known

alleged fugitives for a number of years and

had been given telephone number where

fugitives could be reached within next 24

hours and that during a subsequent tele-

phone conversation with one of them infor.

mant had heard the other's voice in back-

ground, knowlalge of past reliability and

method by which informant got his infor-

mation provided sufficient underlying cir-

cumstances from which officer, who relied

on informant's statements in making war.

rantless entry to execute arrest Warrant,

could properly conclude that informant was

reliable and his information credible.

Albert M. Horn, J. Richard Young, Asst.

Public Defender, Atlanta, Ga., for defend-

ant-appellant.

Robert A. Boas, Asst. U.S. Atty., Atlan-

tu, Ga,, for plaintiff-appellee,

Appeals from the United States District

Court for the Northern District of Georgia.

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING

EN BANC

[Opinion Nov. 13, 1979, 606 F.2d 540

(5th Cir, 1979)}

Before THORNBERRY, CHARLES

CLARK and KRAVITCH, Circuit Judges,

PER CURIAM:

{1-3] The decision of this panel in these

actions appears at 606 F.2d 540 (5th Cir,

1979). On petition for panel rehearing, the

majority opinion is modified by inserting

the following paragraph after the thir-

teenth line, in the first column, on page

545:

Where the information leading to the

formulation of the officer's reasonable

belief is supplied by a confidential infor-

mant, a defendant at a motion to sUp-

press hearing may challenge the validity

of the information under Aguilar v. Tex-

V90

as, 378 U.S, 108, PFS CL 1509, 12 LB. 2d

723 (194), and Spinelli ¢ United States,

$94 U.S. 410, 89 $C. S4, 21 L.Wd2d 637

(1969). See generally Ri wlriguez v. Jones,

473 F.2d 599, 605 05 18 (5 Cir), cert.

denied, 412 U.S. 953, 93 S.Ct. 323, 37

L.Bal.2d 1007 (1972). The inquiry to be

meade is simple and straightforward:

Were the officers who decided to act on

the information supplied by the confiden-

tial informant aware at the time they

chose to act of “underlying cireumstane-

es" making the informant “reliable” and

his information “credible? The record

discloses that Agents Rassey and Good-

owens were’ aware of such underlying,

circumstances, The confidential infor-

mant's record of past reliability was

known to Agent Rassey and is unchal-

lenged by appellants’ counsel. See note

2, supra at 542-43, Additionally, Agent

Rassey was aware that the informant had

known both “Jimmy” and Ricky Lyons

for a number of years, that the informant

had spoken to “Jimmy” in the Detroit

area during or just before Christmas

1977, that the informant on January 14,

1978, had spoken with “Jimmy” by tele-

phone and had been given # telephone

number in the Atlanta, Georgia, area

where “Jimmy” and Ricky Lyons would

be within the next twenty-four hours,

and that during subsequent telephone

conversation with “Jimmy” the confiden-

tial informant had heard Ricky Lyons’

voice in the background. Agent Raasey

passed much of this information along to

Agent Goodowens. The knowledge of

both the confidential informant's past re-

liability and the precise methods by which

he gathered his information in this case

provided sufficient underlying cireum-

stances from which the agent properly

could conclude that the informant was

reliable and the information he supplied

was credible.

In all other respects, the petition for pan-

el rehearing is DENIED.

A member of the court in active service

having requested a poll on the reconsidera-

tion of these causes en banc, and a majority

Appendix "A" Page 12

615 FEORRAL REPORT BR, 2d SERIES

of the judges in active serview not having

voled in favor of it, the fatition for rehear-

ing en banc is DENIED,

KRAVITCH, Circuit Judge, dissenting:

I disagree with the majority that the

tenuous information appended to the panel

opinion entisfies the teschings of Ayuilar

and Spinelli. The more important pr oblem,

however, is the extension of the rule an-

nounced in United States y. Cravero, 845

F.2d 406 (Sth Cir, 1976), a rule of questiona-

ble validity and wisdom even in the less

egrejious circumstances present in that

case. Expansion of this rule constitut.s a

disturbing crosion of the Fourth Amend-

ment rights of third parties,

INDUSTRIAL INDEMNITY, INC,

Plaintiff-Appellant,

v.

Moon LANDRIEU, Secretary of the De.

partment of Housing and Urban Devel-

opment of the United States of America,

Defendant-Appellee.

No. 79-2748

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit,

April 14, 1980,

o

Building contractor's surety and assign-

ee brought suit against the Secretary of

Housing and Urban Development secking

Payment for construction work on a hous-

ing project insured by the Sceretary under

& program authorized by the National

Housing Act. The United States District

Court for the Northern District of Texas,

Robert W. Porter, J., dismissed for lack of

subject-matter jurisdiction, Surety and as.

signee appealed. The Court of Appeals

held that the National Housing Act Waived

tovercign immunity and foders! question

jurialiction existed,

Reversed and remanded,

Federal Courts a» 229

United States = 53(14)

National Housing Act Waived sovereign

immunity and authorized suit by building

contractor's surety and assignee for pny-

ment for construction work on housing

Project insured by Secretary of Housing

and Urban Development under program au.

thorized by Act; federal question jurisdic.

tion existed. National Housing Act, § 1 ay

amended 12 U.S.C.A. § 1702; 28 U.S.C.A.

§ 1331(a). y

Baker & Botts, Richard K. Willard, Ralph

S. Carrigan, Houston, Tex., for plaintiff-ap-

pellant. ‘

Gwynn T. Swinson, Dept. of Justice, Civil

Div., Commercial Litigat., Washington, D,

C., for HUD,

Locke, Purnell, Boren, Laney & Neeley,

Harriet E. Miers, Dallas, Tex., for Metropol.

itan,

Haynes & Boone, Robin P.

Dallas, Tex., for Home Savings.

Appeal from the United States District

Court for the Northern District of Texas,

Hartmann,

Before GEE, RUBIN

cuit Judges,

PER CURIAM:

In 1971, the Secretary of the Department

of Housing and Urban Development (HUD)

issued a commitment to insure a $2,143,000

mortgage for the construction of the Casa

Claire apartment project in Mesquite, Tex-

a3, pursuant to § 221(d)\4) of the National

Housing Act, 12 U.S.C. § 1715/ (44) (1976).

Section 221(dX4) is a Program of mortgaye

insurance enacted by Congress to “aasist

and POLITZ, Cir-

* Fed.R.App.P. 34(a); Sth Cir. R. 18,

Appendix "a" Page 13

FOURTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES

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 place to be

searched, and the persons or things to be seized.

Appendix “B" Page 1

RULE 4 OF THE

FEDERAL RULES OF CRIMINAL PROCEDURE

(a) Issuance, If it appears from the complaint, or

from an affidavit or affidavits filed with the complaint, that

there is probable cause to believe that an offense has been

committed and that the defendant has committed it, a warrant

for the arrest of the defendant shall issue to any officer

authorized by law to execute it. Upon the request of the

attorney for the government a summons instead of a warrant

shall issue. More than one warrant or summons may issue on

the same complaint. If a defendant fails to appear in response

to the summons, a warrant shall issue.

(c) Form.

(1) Warrant. The warrnat shall be signed by the

magistrate and shall contain the name of the name of the

defendant or, if his name is unknown, any name or description

by which he can be identified with reasonable certainty. It

shall describe the offense charged in the complaint. It shall

command that the defendant be arrested and brought before the

nearest available magistrate.

(d) Execution or Service; and Return.

x kek

(2) Territorial Limits. The warrant may be

executed or the summons may be served at any place within the

jurisdiction of the United States.

(3) Manner. The warrant shall be executed by

the arrest of the defendant. The officer need not have the

warrant in his possession at the time of the arrest but upon

request he shall show the warrant to the defendant as soon as

Appendix "C" Page 1

a "S

possible, If the officer does not have the warrart in his

possession at the time of the arrest, he shall then inform

the defendant of the offense charged and of the fact that a

warrant has been issued. The summons shall be served upon

a defendant by delivering a copy to him personally, or by

leaving it at his dwelling house or usual place of abode with

some person of suitable age and discretion then residing therein

and by mailing a copy of the summons to the defendant's last

known address.

RULE 41 OF THE

FEDERAL RULES OF CRIMINAL PROCEDURE

(a) Authority to Issue Warrant. A search warrant

authorized by this rule may be issued by a federal magistrate

or a judge of a state court of record within the district

wherein the property or person sought is located, upon

request of a federal law enforcement officer or an attorney

for the government,

(b) Property or Persons Which May Be Seized With

a Warrant. A warrant may be issued under this rule to search

for and seize any (1) property that constitutes evidence of

the commission of a criminal offense; or (2) contraband, the

fruits of crime, or things otherwise criminally possessed; or

(3) property designed or intended for use or which is or has

been used as the means of committing a criminal offense; or

(4) person for whose arrest there is probable cause,.or who

is unlawfully restrained.

(c) Issuance and Contents.

(1) Warrant upon Affidavit. A warrant other

than a warrant upon oral testimony under paragraph (2) of this

subdivision shall issue only to an affidavit or affidavits

sworn to before the federal magistrate or state judge and

establishing the grounds for issuing the warrant. If the

Appendix "C" Page 2

Rm ae eee oS a aN A A

federal magistrate or state jude e is satistied that grounds

fo: the application exist or that there is probable cause to

believe that they exist, he shall issue a warrant identifying

the property or person to be seized and naming or describing

E ane eile

the person or place to be searched. (emphasis supplied).

Appendix "C" Page 3