Petitioners Brief — Steagald v. United States

No. 79-6777

eA AEE EEA ORS MEETS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

GARY KEITH STEAGALD, Petitioner,

UNITED STATES OF AMERICA, Respondent.

On Writ Of Certiorari To The United States Court Of Appeals For

The Fifth Circuit

BRIEF FOR PETITIONER

JOHN RICHARD YOUNG

Suite 504

44 Broad Street, N.W.

Atlanta, Georgia 30303

Court-appointed counsel

for Petitioner

_ ae

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

i

QUESTION PRESENTED FOR REVIEW

Whether The Fourth Amendment To The

United States Constitution Requires Law En-

forcement Officers Armed With An Arrest

Warrant, But In The Absence Of Exigent Cir-

cumstances, To Obtain A Search Warrant To

Enter The Premises Of A Third Party, Not

Named In The Arrest Warrant, In Order To

Effectuate The Arrest.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FoR REVIEW.............0.0008: i

EE eae ee eee iv

I ee l

BUATeReENT OP JURISDICTION 2... e cece cnees l

CONSTITUTIONAL PROVISIONS INVOLVED .............05: l

a ES ED ce l

sick van aneeesceesseeseses 2

cack ce whine bene nsanaces

SUMMARY OF THE ARGUMENT ............0000eeeeuees 13

ee a cis 5 ak a e-o'6 04.00 0:0 bee bE NE DENS 15

I. In Order To Effectuate The Fourth Amend-

ment’s Protection Of An Individual’s Expecta-

tion Of Privacy, Police Must Secure A Search

Warrant Before Executing An Arrest Warrant

At The Residence Of A Third Party, Not Nam-

ed In The Arrest Warrant, In The Absence Of

Ee 15

A. The Fourth Amendment requires a search

warrent before law enforcement officials

may intrude upon one’s expectation of

privacy, except in the case of well-defined

i ard Odin ae Uk wp Gack xo x8 re)

B. Under the Fourth Amendment, there exists

no logical distinction between searches for

**persons’’ and searches for ‘‘things’’ ..... 26

C. The ‘'Cravero rule’’ is inconsistent with the

reaffirmation of Fourth Amendment doc-

trine in Payton v. New York ............. 32

CONCLUSION

PREVIOUS PAGE WAS BLANK

;

iv

TABLE OF AUTHORITIES

CASES: PAGE

Abel v. United States, 362 U.S. 217 (1960). ............ 19

Agnello vy. United States, 269 U.S. 20 (1925) ........... 18

Boyd v. United States, 116 U.S. 616 (1886) ............ 28

Bumper v. North Carolina, 391 U.S. 543 (1968) a Sia 19

Camara v. Municipal Court, 387 U.S. 523 (1967) ....... 15

Carroll v. United States, 267 U.S. 132 (1925)........... 19

Chambers v. Maroney, 399 U.S. 42 (1970)............. 25

Chimel v. California, 395 U.S. 752 (1969) ............. 19

Commonwealth v. Terebieniec, 408 A.2d 1120 (Sup. Ct.

ic RIES Ree AP ae EO aera pa ca ra 24

Coolidge v. New Hampshire, 403 U.S. 443 (1971) . 15, 19, 33

Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) . 19,

20, 24

Entick v. Carrington, 19 How. St. Tr. 1029 (1765)...... 28

Fisher v. Volz, 496 F.2d 333 (3rd Cir. 1974) ........... 35

Government of the Virgin Islands v. Gereau, 502 F.2d

EA BPI oi ON Wes wae ok ek Con eee 35

Johnson vy. United States, 333 U.S. 10 (1948) .. 17, 19, 23, 27

Aatz v. United States, 389 U.S. 347 (1967)........ 15, 17, 27

McDonald v. United States, 335 U.S. 451 (1948) .. 16, 25, 27

Michigan vy. Tyler, 436 U.S. 499 (1978) .............. 15, 22

Mincev v. Arizona, 437 U.S. 385 (1978) .. ........6. 15, 21

ran Vv. New, tee, US. . .. 1 S.C.

Seay. OF Ge Be ON os hacer tne eRe an passim

Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975), rev’d on

other grounds sub nom, Stone v. Powell, 428 U.S.

We GR | sai at sO iN inten a iia, Paki Ue 31, 35

South Dakota v. Opperman, 428 U.S. 364 (1976) ....... 19

United States v. Adams, 621 F.2d 41 (Ist Cir. 1980) .... 19

Table of Authorities Continued

CASES: PAGE

United States v. Barone, 330 F.2d 543 (2nd Cir. 1964)... 19

United States v. Brown, 467 F.2d 419 (D.C. Cir. 1972).. 24

United States v. Cravero, 545 F.2d 406 (Sth Cir. 1976) . passim

United States v. Gaultney, 606 F.2d 540 (Sth Cir. 1979),

petition for panel rehearing granted in part and

denied in part, petition for rehearing en bance

denied, 615 F.2d 642 (Sth Cir. 1980) ........... ap at, oe

United States v. Harper, 550 F.2d 610 (10th Cir. 1977)... 24

United States v. Martinez-Fuentes, 428 U.S. 453 (1976).. 16

United States v. McKinney, 379 F.2d 259 (6th Cir. 1967) . 22,

23

United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978). 32

United States v. Shye, 492 F.2d 886 (6th Cir. 1974) ..... 31

United States v. Watson, 423 U.S. 41] ea eae 16

Vale v. Louisiana, 399 U.S. 30 (1977)................. 18

Wallace v. King, 626 F.2d 1167 (4th Cir. 1980)......... 35

Warden v. Huyden, 387 U.S. 294 Ps <a eal eh eae 19

Zurcher v. Stanford Daily, 436 U.S. 547 BS ane 30

LEGAL JOURNALS:

Note, The Neglected Fourth Amendment Problem in Ar-

rest Entries, 23 Stanford L. Rev. 995 (1971)...... 29, 31

Rotenberg and Tanzer, Searching for the Person to be

Seized, 35 Ohio St. L.J. 56 (1974) ................ 30

TREATISES:

W. LaFave, Search and Seizure (1978)............... 31, 36

CONSTITUTION:

United States Constitution Amend. 1V

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, Peti-

tion for Rehearing en banc denied, 615 F.2d 642 (Sth

Cir. 1980), as set out hereafter at J.A. 20 — 37

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 exten-

sion of time within which to petition for certiorari. The

Petition for Certiorari was docketed in the Supreme

Court of the United States on June 13, 1980. The Writ

of Certiorari was granted on October 6, 1980. The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. IV (as set out in Petition for Cer-

tiorari, Appendix B, page 1).

RULES INVOLVED

Rule 4 of the Federal Rules of Criminal Procedure (as

Set Out in Petition for Certiorari, Appendix C, page 1).

Rule 41 of the Federal Rules of Criminal Procedure (as

set Out in Petition for Certiorari, Appendix C, page 2).

STATEMENT OF THE CASE

This criminal action was brought under a three

count indictment (the Petitioner being named in Counts

One and Two only) charging the Petitioner with posses-

sion 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 con-

spiracy 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. Ad-

ditionally, Hoyt Gaultney was charged in the same in-

dictment with importation of the same cocaine in viola-

tion of 21 United States Code 952(c) in Count Three

(J.A. 3 — 5).

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 (Sth Cir. 1979), Petition for

Panel Rehearing granted in part and denied in part, 615

F.2d 642 (Sth Cir. 1980) (J.A. 20 — 37). Cathy Gaultney

and James Albert Smith were tried subsequently with

Petitioner, and each of them prevailed on Motions for

Judgment of Acquittal at the close of the government’s

case in chief. (Tr. 276). Petitioner’s Motion for Judg-

ment of Acquittal at the close of the government’s case

was denied (Tr. 276) and upon renewal of his Motion at

the close of a!! the evidence, the Court denied the Mo-

tion again (Tr. 282).

Finally, Petitioner filed a renewal of his Motion for

Judgment of Acquittal following the jury’s verdict of

guilty on both counts (R. 100). On June 12, 1978, Peti-

tioner’s Renewal of his Motion for Judgment of Acquit-

tal 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 vears

on Count two to be followed by a special parole term of

three years, with the sentence in Count Two to run con-

currently 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 korma

Pauperis. (R. 113).

Gaultney’s and Petilioner’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

Cruvero the evidence linking the subject [of the arrest

warrant] to the premises was extremely fragile and insuf-

ficient to justify as entry without a search warrant.’’ On

April 14, 1980, the same panel, in a 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 645 (1980). (J.A. 35 — 37) 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

4

United States v. Cravero, 545 F.2d 406 (Sth 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. (J.A. 37).

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 Petition for

Certiorar! was docketed in the Supreme Court of the

United States on June 13, 1980. The Writ of Certiorari

was granted on October 6, 1980. (J.A. 39).

On November 3, 1980, the motion of Petitioner for

appointment of counsel was granted, and an Order was

entered appointing John Richard Young, Esquire, of

Atlanta, Georgia, to serve as counsel for the Petitioner

in this case.

STATEMENT OF FACTS

On January 4, 1978, Agent Joseph Rassey of the

Drug Enforcement Administration was contacted by an

individual who had provided him with information con-

cerning drug cases in the past. This individual (hereafter

referred to as C.1.) 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.

Lyons had been indicted by a federal grand jury in the

Southern District of Georgia, and a warrant for his ar-

rest dated July 14, 1977, was issued. (1st Supp. Vol. I,

P. 14). He further told Agent Rassey that Jimmy had

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

5

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

drug deal but subsequently he contacted Agent Kelly

Goodowens in Savannah, Georgia, and relayed the infor-

mation 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’’ (1st Supp. Vol. II,

p. 36). Rassey was unable to reach Goodowens that day

and waited until Monday, January 16, 1978, to relay the

phone number he had obtained 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 (Ist Supp. Vol. II. p. 38). Rassey

testified that he did not inquire of 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.1.’s conclusion because ‘‘he had always given me good

information before. He said he knew they were there.’’

(Ist Supp. Vol. II, p. 50). The C.I. was unable to say

from what location specifically Ricky Lyons or Jimmy

was calling 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’’. (Ist Supp. Vol. II, P. 47). The

C.1. also told Rassey that there would be four or five

people at the residence. 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’’ (Ist

Supp. Vol. II, p. 48). Rassey spoke with the C.1. several

6

times by telephone on January 18, 1978, and relayed to

Goodowens that the C.I. said the information was ‘‘still

good”’ (Ist Supp. Vol. Il, 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 ad-

dress for 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 hav-

ing difficulty locating the address, Goodowens contacted

Southern Bell again and obtained detailed directions on

how to get to the residence (Ist Supp. Vol. I, p. 10). 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 (Ist 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 (Ist Supp. Vol. I, p. 79,

86-87). Goodowens testified that physically he could

have obtained a search warrant; there was ‘‘no physical

hinderance’ (Ist Supp. Vol. I, p. 87). Goodowens also

had received information from Rassey that there would

possibly be drugs at the residence (Ist Supp. Vol. I, p.

39, 88). However, Gwinnett County Detective Fowler

stated it a bit more strongly in his testimony when he

testified that DEA Agent Smith ‘‘had previously told me

7

that he had information that there might be a quantity

of majijuana at the location’’ (1st Supp. Vol. II, p. 107).

And ‘“‘to the best of my recollection I believe he stated

1500 pounds’’ (Ist Supp. Vol. II, p. 108).

Agent Smith called in several other agents to accom-

pany himself and Goodowens. None of the officers had

any photographs of Lyons (Ist Supp. Vol. I, p. 46) nor

did they have a copy of the arrest warrant (Ist Supp.

Vol. I, p. 45, 46). Since none of the officers had ever

even seen the arrest warrant (Ist Supp. Vol. I, p. 47),

they apparently were relying on Goodowens’ knowledge

of the 18 month old indictment (Ist Supp. Vol. 1, p. 45).

Only Agent Smith had testified that he knew Ricky

Lyons by sight, and he mistakenly though that Gaultney

was Lyons at their first encounter (1st 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 v-

marked cars (Ist 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 (Ist

Supp. Vol. I, p. 61).

As the officers approached the house, guns drawn,

two male individuals were seen standing at the rear of a

Volkswagen. The individuals were Gaultney and

Steagald. Gaultney was squatting 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

8

picked him up, and said ‘Ricky’ ’’ (Ist Supp. Vol. II, p.

~~ In response to why he had done that, Smith testified

. at first I thought he was Ricky Lyons; it looked

like him to me”’ (ist 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’’ (Ist

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.

Meanwhile, three other agents, including Agent Jim

Williams, who arrived in a separate vehicle, headed for

the A-frame (the second residence bearing the same ad-

dress). These agents also approached this residence with

their guns drawn. Agent Williams testified, ‘‘The pur-

pose 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’’ (Ist

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 de-

tained. Williams testified that he thought he “‘left one

officer down there’’ at the A-frame (Ist 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 (Ist 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 (Ist Supp. Vol. Il, p. 56); he also had his gun

9

drawn. Agent Smith described himself as being 34 years

old, six feet six and a half inches tall and weighing 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” (Ist 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 he husband and Gary Steagald and told

Smith that she was ‘there by myself’ (1st Supp. Vol. II,

p. 77). Smith told her to ‘‘put her hands on the wall and

don’t move’’ (Ist Supp. Vol. I, p. 77). Cathy Gaultney

testified that Smith placed his gun in her back while she

was faced to the wall (Ist 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. . . ’’ (Ist 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 power on it (Ist

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...’ (Ist

Supp. Vol. II, p. 60).

Smith left the front bedroom, checked the second

bedroom and then returned to the main room and in-

formed Detective Conway that he thought he had seen

10

cocaine in the bedroom and that ‘‘We need to get our

act together’’ (Ist 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 get-

ting a search warrant for the house (Ist Supp. Vol. II, p.

63-64).

Petitioner 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.

Agent Goodowens testified 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 in which he saw

what he believed to be packets of suspected cocaine (Ist

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 to 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 the time was not

specific. There was a large wall clock in the room where

the warrant was signed (Ist Supp. Vol. II, p. 33). He did

feel that it probably was earlier than 8:00 p.m. but ad-

mitted that the authorization was in his own handwriting

and he filled in the time ‘‘8:00 p.m.” (Ist Supp. Vol. II,

p. 25, 31-32). Agent Smith stated that he went im-

mediately 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 arriv-

ed back at the house after 9:00 p.m.

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 gun-

point. 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 (Ist Supp. Vol.

I, p. 104). Smith was searched, taken into custody,

handcuffed and then taken into the living room with the

other defendants. His wife, though no charges were

made against her, was placed on the coach with the

others. Goodowens testified that she would not have

been allowed to leave (Ist 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

(Ist Supp. Vol. I, p. 108).

The search of the premises allegedly pursuant to the

serach warrant was conducted before 8:00 p.m., some 10

to 15 minutes after the agents received word from Agent

12

Smith that the search warrant was in his possession.

Subsequently several items were seized, including another

suitcase containing suspected cocaine (Ist Supp. Vol. I,

p. 93).

Agent Smith testified that he arrived back at the

house sometime after 9:00 p.m., and about one-half

hour to 45 minutes later went out to Smith’s Dodge

truck and began searching it. He looked through papers

and other items on the front floorboard and subsequent-

ly found a closed briefcase with a combination lock on

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

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

Defendant Smith was still handcuffed and being held in-

side the house. He did not consent to the search of the

truck (Ist Supp. Vol. II, p. 94). Agent Smith said he

searched the vehicle to obtain evidence of Defendant

Smith’s identity (Ist Supp. Vol. II, p. 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 and shortly thereafter indicted

on charges relating to the cocaine seized in the search of

the house. Additional warrants were later obtained for a

warehouse in Gwinnett County and one in Fulton Coun-

ty and residences in DeKalb and Clayton Counties and

various items seized. It is Petitioner’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.

13

SUMMARY OF THE ARGUMENT

The Fourth Amendment to the Constitution of the

United States protects an individual’s reasonable expecta-

tion of privacy from government intrusion. Nowhere is

this expectation greater than in the interest of the in-

dividual in the sanctity and security of his own home.

Therefore, the Amendment commands that a neutral and

detached magistrate approve a request by government

officials to invade that privacy prior to an entry into the

individual’s home. Only in certain well-delineated cir-

cumstances narrowly drawn in order to give effect to the

commands of the Fourth Amendment, may the govern-

ment agents, based upon probable cause, enter an in-

dividual’s home without first securing a search warrant.

In view of the Amendment’s concern with the ex-

pectation of privacy, especially when it relates to the

sanctity of an individual’s home, prior judicial approval

for an entry into a house is required, whether the

government seeks entry to search for tangible objects or

for persons. The express language of the Amendment

speaks of protection against unreasonable searches and

seizures in relation to ‘‘persons, houses, papers and ef-

fects’’ without distinguishing between the objects of the

search or seizure. Moreover, the Warrant Clause

specifically requires a particular description of the place

to be searched in addition to an equally specific descrip-

tion of any persons or objects intended to be seized.

Consequently, if the focus of the Fourth Amendment is

in part to scrutinize the narrow right of the government

to make entries into homes, then it is irrelevant to the

14

inquiry of the legitimacy of the entry, whether the entry

was for a search for persons or a search for objects.

In addition, this Court’s rationale for its holding in

Payton v. New York, requiring an arrest warrant to

enter a suspect’s home to arrest him, logically supports a

requirement for the particular protection provided by a

search warrant when the entry to arrest a suspect occurs

at a residence of an individual not named in the arrest

warrant. The issuance of the arrest warrant is irrelevant

to the Fourth Amendment interests of the third person

that are guaranteed by the Amendment.

Therefore, the entry by the government in the ins-

tant case, without a search warrant and without any

recognized exception to the search warrant requirement,

was unlawful, and the products of the search should

have been excluded from evidence at Petitioner’s trial

below.

15

ARGUMENT

1. In Order To Effectuate The Fourth Amend-

ment’s Protection Of An Individual’s Expecta-

tion Of Privacy, Police Must Secure A Search

Warrant Before Executing An Arrest Warrant

At The Residence Of A Third Party, Not Nam-

ed In The Arrest Warrant, In The Absence Of

Exigent Circumstances.

A. The Fourth Amendment requires a search

warrant before law enforcement officials

may intrude upon one’s expectation of

privacy, except in the case of well defined

exceptions.

The United States Supreme Court has consistently

held that the Fourth Amendment dictates that searches

conducted outside of the judicial process, without prior

approval by judge or magistrate, are per se

unreasonable, ‘‘subject only to a_ few specifically

established and well-delineated exceptions.”’ Katz v.

United States, 389 U.S. 347, 357 (1967); Mincey v.

Arizona, 437 U.S. 385, 390 (1978). As the amendment

proscribes all unreasonable searches and seizures,

Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971),

“‘except in certain carefully defined classes of cases, a

search of private property without proper consent is

‘unreasonable’ unless it has been authorized by a valid

search warrant.’’ Camara v. Municipal Court, 387 U.S.

523, 528-529 (1967); Michigan v. Tyler, 3436 U.S. 499,

506 (1978).

16

Logically, this requirement ensures the continued

sanctity of the amendment’s underlying purpose of pro-

tecting an individual’s reasonable expectation of privacy,

as set forth in Katz. Therefore, this Court has held that:

‘“‘The presence of a search warrant serves a high

function. Absent some grave emergency, the Fourth

Amendment has interposed a magistrate between the

citizen and the police. This was done not to shield

criminals nor to make the home a safe haven for il-

legal activities. It was done so that an objective

mind might weigh the need to invade that privacy in

order to enforce the law. The right to privacy was

deemed too precious to entrust to the discretion of

those whose job is the detection of crime and the ar-

rest Of criminals. .. We cannot be true to that con-

Stitutional requirement and excuse the absence of a

search warrant without a showing by those who seek

exemption from the constitutional mandate that the

exigencics of the situation made that course im-

perative.’”’ McDonald v. United States, 335 U.S.

451, 455-456 (1948).

Not only does this prevent hindsight from coloring the

evaluation of the reasonableness of a search or seizure,

United States v. Martinex-Fuente 428 U.S. 543, 565

(1976), citing United States v. Watson, 423 U.S. 411,

455-456, n. 22(1976) (Marshall, J. dissenting), but it also

guards against erosion of the basic precepts of a

democratic society. The classic statement of this purpose

embodies the rationale of the Court’s preference for

17

judicially approved warrants. As_ stated by Justice

Jackson in Johnson vy. 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 the support of the usual in-

ferences which reasonable men draw from evidence.

Its protection consists in requiring that those in-

ferences be drawn by a neutral and detached

magistrate instead of being judged by the officer

engaged in the often competitive enterprise of fer-

reting out crime. Any assumption that evidence suf-

ficient to support a magistrate’s disinterested deter-

mination 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 decure 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 individual 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 officier, not by a

policeman or government enforcement agent.’

Moreover, while the amendment’s proscriptions are

deemed to protect people, not places, Katz, supra, the

private homes of individuals have always evoked the

need for heightened protection. In Stone v. Powell, 428

U.S. 465 (1976), the Court concluded that ‘‘the Amend-

18

ment was primarily a reaction to the evils associated with

the use of the general warrant in England and the writs

of assistance in the Colonies, and was intended to pro-

tect the ‘sanctity of a man’s home and the privacies of

life from searches under unchecked general authority.”’

(Citations and note omitted). In addition, ‘‘physical en-

try of the home is the chief evil against which the wor-

ding of the Fourth Amendment is directed.’’ United

States v. United States District Court, 407 U.S. 297, 313

(1972). Only last term this Court held that it is a ‘* ‘basic

principle of Fourth Amendment law’ that searches and

seizures inside a home without a warrant are presump-

tively unreasonable’’. Payton v. New York, U.S.

» 9 S.Cr. Bit, , 27 CrL 3033, 3036

(1980). The Payton Court merely reaffirmed previous

Supreme Court holdings. Agnello v. United States, 269

U.S. 20, 32 (1925) (‘‘The search of a private dwelling

without a warrant is in itself unreasonable and abhorrent

to our laws’’.); Vale v. Louisiana, 399 U.S. 30, 34 (1970)

(‘* ‘Belief, however well founded, that an article sought

is concealed in a dwelling house furnishes no justifica-

tion for a search of that place without a warrant’ ”’,

citing Agnello v. United States, 269 U.S. at 33).

In the case at bar, the Drug Enforcement Ad-

ministration officials had no warrant to search the Carey

Court residence. The existence of an arrest warrant does

not provide the Fourth Amendment protection to the

third party’s expectation of privacy in his own home

mandated by the Fourth Amendment and court prece-

dent. Payton, supra. More important, the government

19

agents cannot justify their warrantless entry into Peti-

tioner’s home by any recognized exigent circumstance

which will obviate the need for a search warrant. The ex-

ceptions include: (a) a search incident to and following a

~ lawful arrest, Chimel v. California, 395 U.S. 752 (1969);

(b) a search of a vehicle with probable cause, Carroll v.

United States, 267 U.S. 132 (1975); (c) a consent search,

Johnson v. United States, 333 U.S. 10 (1948); Bumper v.

North Carolina, 391 U.S. 543 (1968); (d) a search with

probable cause for and in hot pursuit of a tleeing and

dangerous felony suspect, Warden vy. Hayden, 387 U.S.

294 (1967); (e) a search of abandoned real estate or per-

sonal property, Abel v. United States, 362 U.S. 217

(1960); (f) a search under urgent necessity, United States

v. Barone, 330 F.2d 543 (2nd Cir. 1964), cert. denied,

377 U.S. 1004 (1964); (g) a search pursuant to custodial

prerogative, South Dakota v. Opperman, 428 U.S. 364

(1976); (h) a search with probable cause, necessary to

prevent loss or destruction of the thing to be seized,

United States v. Barone, supra; Johnsen v. United

States, supra; and (i) a search in which evidence is en-

countered inadvertently, in plain view, when the officers

are lawfully on the premises, Coolidge v. New Hamp-

Shire, supra.

In addition, there is recognized a ‘‘general exigen-

cy’’ exception which requires an analysis of several fac-

tors to determine whether there ‘‘is such a compelling

necessity for immediate action as will not brook the

delay of obtaining a warrant.’ United States v. Adams,

621 F.2d 41,44 (Ist Cir. 1980). In Dorman v. United

States, 435 F.2d 385, 392-393 (D.C. Cir. 1970), the court

20

found sufficient exigency to affirm the denial of suppres-

sion of certain stolen goods seized upon the warrantless,

unconsented, nonforceable entry into an armed robber’s

home. The entry occurred after police obtained eye-

witness identification of Dorman and at a time when no

magistrate was readily available. 435 F.2d at 387-388.

Among the factors enumerated were: (a) the violent

character of the offense; (b) the existence of a reasonable

belief that the suspect was armed; (c) the clear showing

of probable cause that the suspect had committed the

crime alleged; (d) the presence of strong reason to

belicve the suspect was on the premises; (e) the

likelihood that the suspect would escape if not swiftly

apprehended; and (f) the fact that the entry, though not

consented to, was nevertheless made peaceably.

Thus, the contrast between Dorman, siipra, and the

case at bar is stark. Here, the offense for which the

suspect was sought was non-violent. There existed no

reasonable belief that the suspect was armed. Any belief

that the suspect was still on the premises was less than

strong. The entry was not only non-consentual, but was

lacking in peaceableness as well, being effectuated by

numerous officers armed with shotguns and brandished

pistols. And, there was no showing of any increased

danger to the community or the officers that made the

bypass of a detached judicial officer imperative. Indeed,

the officers had ample time and opportunity to seck a

search warrant from a magistrate, a course of action

that would have been consistent both with effective law

21

enforcement and with the expectation of privacy so

understandably valued in a democratic society. Instead,

they chose to perform the magistrate’s job for him.

Moreover, while there was an Outstanding arrest

warrant for the suspect Lyons, the agents did not possess

it at the time of the raid, and only one agent allegedly

knew Lyons by sight. Although for purposes of this peti-

lion probable cause of Lyons’ presence at the house is

assumed, One circuit judge below entertained strony

doubts. United States v. Gaultney, 615 F.2d 642, 644

(Sth Cir, 1980) (Kravitch, J., dissciting). Importantly,

there was no urgency for the raid, the agents having had

for two days the relevant information that the Suspect

allegedly would be at the house ‘‘for a while’. Nor was

there any evidence of impending flight.

Significantly, this Court, in interpreting the stringen-

cy of the warrant requirements, has not expanded the ex-

ceptions to the warrant necessity beyond these well-

delineated boundaries. Supra, pg. 15. Therefore, ‘‘the

mere fact that law enforcement may be made more effi-

cient can never by itself justify disregard of the Fourth

Amendment”’. Mincey v. Arizona, supra, 437 U.S. at

393. In Mincey, the police attempted to justify an exten-

sive multi-day, warrantless search of defendant’s

residence following the murder of a police officer as a

“murder scene exception’’. 437 U.S. at 392. In rejecting

this theory, the Court stated:

“The Fourth Amendment reflects the view of those

who wrote the Bill of Rights that the privacy of a

person’s home and property may not be totally

22

sacrificed in the name of maximum simplicity in en-

forcement of the criminal law.’’ 437 U.S. at 393.

Earlier, the Supreme Court had rejected a further

exception to Fourth Amendment warrant protections by

holding that ‘‘there is no dimunition in a _ person’s

reasonable expectation of privacy nor in the protection

of the Fourth Amendment simply because the official

conducting the search wears the uniform of a firefighter

rather than a policeman, or because his purpose is to

ascertain the cause of a fire rather than to look for

evidence of a crime, or because the fire might have been

started deliberately.’’ Michigan v. Tyler, 436 U.S. 499,

506 (1978).

However, in the face of these clear limitations, cases

hold that an arrest warrant for a suspect is itself an ex-

ception to the search warrant requirement, when the ex-

istence of the arrest warrant is used to gain access to the

third person’s dwelling to effect a search for the suspect.

Petitioner contends that these cases deviate from the

Amendment’s history and purpose. In United States v.

McKinney, 379 F.2d 259 (6th Cir. 1967), it was held that

‘“‘there is good reason to hold the issuance of an arrest

warrant is itself an exceptional circumstance obviating

the need for a search warrant.’’ Relying on a combina-

tion of the ‘‘inherent mobility of the suspect’’, and the

magistrate’s previous finding of probable cause to

believe that the named suspect committed the offense,

the court held that these two factors would justify a

search for the suspect provided that the police officers

reasonably believed he could be found on the premises

searched. 379 F.2d at 263.

23

However, upon further scrutiny of McKinney’s

facts, it becomes apparent that the fugitive was extreme-

ly transient, having robbed an Indiana bank, rented a

Cleveland apartment, and travelled by auto with ap-

pellant to Boston and back. A search warrant was ex-

ecuted at his apartment without result. The FBI also

received information about the suspect staying with a

few friends of appellant’s. Thus, the record

demonstrated that this particular fugitive was highly

mobile. These facts and the helding Suggest that his

mobility was viewed by the appellate panel as an exigent

circumstance in and of itself, which arguably could then

lessen the FBI’s duty to obtain search warrants. In fact,

the court cited Johnson v. United States, supra, for the

proposition that a suspect fleeing or likely to take flight

would militate against the necessity of a search warrant.

Ibid. Therefore, it appears that the holding in McKin-

ney, supra, turned more on the inherent mobility of this

fugitive, than it did upon the novel notion that suspects

named in all arrest warrants are inherently highly

mobile.

Similarly, in the case sub judice, the Fifth Circuit

panel specifically followed the previous circuit opinion of

United States v. Cravero, 545 F.2d 406 (Sth Cir. 1976),

rehearing and rehearing en banc denied, 545 F.2d 420

(Sth Cir. 1977). United States v. Gaultney, 606 F.2d 540,

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

and denied in part, petition for rehearing en banc

denied, 615 F.2d 642 (Sth Cir. 1980). The latter Cravero

panel reversed the former, holding that the arrest war-

24

rant was an express exception to the search warrant

requirement.

‘*The law of this circuit ... is 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. (Cites

omitted). **** Reasonable belief embodies the same

standards of reasonableness [as 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 certain premises

without an additional trip to the magistrate and

without exigent circumstances. 545 F.2d at 421.

(Note and citations omitted) (Emphasis supplied).

Accord, United States v. Harper, 550 F.2d 610 (10th

Cir. 1977); United States v. Brown, 467 F.2d 419 (D.C.

Cir. 1972); Commonwealth v. Terebieniec, 408 A.2d

1120 (Sup. Ct. Pa. 1979).

Petitioner contends that Cravero and its progeny

create numerous constitutional errors of analysis and

misapply to the specific facts of their cases the general

principles therein enunciated. In regard to the latter

claim, the rule in Cravero paints with too broad a brush.

Cravero allows police officers to ignore the absence of

exigent circumstances and to substitute their judgment

for the magistrate’s, even though there existed in

Cravero exigent circumstances of the very type

catalogued in Dorman, supra. One suspect was heavily

armed and had a reputation for violence. United States

v. Cravero, 545 F.2d at 413, n. 13. The agents cut off

25

surveillance of the house when it became likely that their

informant’s ‘‘cover had been blown.’’ After the agents

knocked on the door and announced possession of arrest

warrants, they heard someone inside inform the others

of the police pressence. 545 F.2d at 413. Cravero was

brandishing a pistol and the agents heard noises from a

bathroom. Fearing the existence of the violent fugititve,

the agents entered the bathroom, finding another defen-

dant and contraband. /bid. These factors are themselves

exigent circumstances which distinguish Petitioner’s case

from the circuit’s unnecessarily broad and consititu-

tionally infirm general rule. Under this anlysis, the

Cravero ruling exceeds the scope of its own facts and

gravely erodes the fundamental protections of the Fourth

Amendment.

Constitutionally, the Cravero rule, as applied in

Petitioner’s case below, violated this court’s holding that

‘“‘only in exigent circumstances will the judgment of the

police as to probable cause serve as sufficient authoriza-

tion for a search.’’ Chambers v. Maroney, 399 U.S. 42,

51 (1970). The government has never shown exigency.

‘‘Where, as here, officers are not responding to an

emergency, there must be compelling reasons to justify

the absence of a search warrant. A search without a war-

rant demands exceptional circumstances.’’ McDonald v.

United States, supra, 335 U.S. at 454 (cites omitted).

Moreover, the authorization for entry into the third per-

son’s home which Cravero permits circumvents the war-

rant procedure that is designed to minimize the dangers

of the needless physical intrusions by government agents

26

that the Fourth Amendment was directed against. See,

generally, Payton v. New York, U.S. , 100

S.Ct. 1371, , 27 Cr.L. 3033, 3036 (1980).

In short, the unfettered discretion which Cravero

places in the hands of government agents armed only

with an arrest warrant is made possible only by an im-

plicit rejection (or at least a misreading) of well-reasoned

and carefully developed authority in the area of Fourth

Amendment law. Such power in the hands of the

government is inconsistent with the aims of a free and

democratic society.

B. Under the Fourth Amendment, there exists

no logical distinction between searches for

**persons’’ and searches for ‘‘things’’.

The Fourth Amendment provides:

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, sup-

ported by Oath or affirmation and _ particularly

describing the place to be searched, and the persons

or things to be seized.

The explicit language of the Fourth Amendment,

read in light of its history, purpose and judicial applica-

tion, justifies no logical distinction between police entries

to search for ‘‘persons’’ and police entries to search for

‘things’. Payton v. New York, U.S. ;

100 S.Ct.1371, , 27 Cr.L. 3033, 3036 (1980).

Through this amendment, the citizenry is guarded from

27

‘“‘unreasonable searches and seizures’’ in its **persons,

houses, papers and effects.’? A reading of the final

quoted portion comprehends no distinction between

‘“persons’’ on the one hand and ‘‘houses, papers, and

effects’? on the other. Thus, the purpose and effect of

the Fourth Amendment guarantees should apply equally

to both categories. By the express terms of the ‘‘search

and seizure’’ clause, these categories require the inter-

position of the judgment of the magistrate between the

citizen and the police, so that the prohibition against

unreasonable intrusions upon a person’s reasonable ex-

pectation of privacy, is not abridged. Katz v. United

States, supra; Johnson vy. United States, supra;

McDonald v. United States, supra.

Furthermore, the Amendment, literally read, man-

dates the issuance of warrants only upon a showing of

probable cause, with two additional requirements, name-

ly, particular descriptions of (1) the places to be search-

ed, and (2) the persons or things to be seized. This une-

quivocal language not only places persons and things on

the same constitutional footing in terms of particularity

of description, but would seem to apply to both

categories the threshold requirement of particularly

describing the place where the warrant shall be executed

in order to effect a search fo. and seizure of either the

person(s) or object(s).

Such a literal construction is consistent with the

history, purpose and_ judicial interpretation of the

Amendment. While indiscriminate searches and seizures

conducted under the authority of general warrants were

28

the immediate evils that lead to the Amendment, its final

form protected the right to be free from unreasonable

searches and seizures and required the warrants issued to

be particular and based upon probable cause. The

Amendment’s history, purpose and interpretation con-

verge into the basic policy of protecting a citizen’s

reasonable expectation of personal security by interpos-

ing between the public and the authorities the shield of

the neutral and detached magistrate, who, except in cer-

tain circumstances, is charged with the authority to issue

search warrants only for a particular place and only after

a showing of probable cause.

In Boyd v. United States, 116 U.S. 616, 630 (1886),

this Court, reflecting upon the opinion in Entick v. Car-

rington, 19 How. St. Tr. 1029 (1765), stated:

The principles laid down in this opinion affect the

very essence of constitutional liberty and security

... they apply to all invasions on the part of the

government and its employe’s [sic] of the sanctity of

a man’s home and the privacies of life. It is not the

breaking of his doors and rummaging of his drawers

that constituted the essence of the offense; but it is

the invasion of his indefeasible right of personal

security, personal liberty and private property .. .”’

Therefore, since the language of the Amendment

‘“‘applies equally to the seizures of persons and to

seizures of property,’’ Payton v. New York, U.S.

, 100 S.Ct. 1371, , 27 Cr.L. 3033, 3036

(1980), and the purpose of the Amendment is to protect

against arbitrary governmental violations of a home, a

29

judicial determination (except in the certain well-defined

circumstances) should control any contemplated entry,

regardless of whether what is sought is a person or a

thing. Thus, the Supreme Court in Payton, supra, held

that ‘‘any differences in the intrusiveness of entries to

search and entries to arrest are merely ones of degree

rather than kind.’’ The Court continued:

The two intrusions share this fundamental

characteristic: the breach of the entrance to an in-

dividual’s home. The Fourth Amendment protects

the zone of privacy in a variety of settings. In none

is the zone of privacy more clearly defined than

when bounded by the unambiguous physical dimen-

sions of an individual’s home — a zone that finds

its roots in clear and specific constitutional terms:

‘the right of the people to be secure in their .. .

houses ... shall not be violated.’ That language

unequivocally established the proposition that ‘at

the very core [of the Fourth Amendment] stands the

right of a man to retreat into his own home and

there be free from unreasonable government intru-

sion.’ Silverman v. United States, 365 U.S. 505,

S11. In terms that apply equally to seizures of pro-

perty and seizures of persons, the Fourth Amend-

ment has drawn a firm line at the entrance of the

house. Absent exigent circumstances, that threshold

may not reasonably be crossed without a warrant.

U.S. » 100 S.Ct. 1371, ____, 27 Cr.L. at

3037 (emphasis supplied). See, Note, The Neglected

Fourth Amendment Problem in Arrest Entries, 23 Stan-

ford L. Rev. 995, 998 (1971)(There appears to be no

reason why the constitutional preference for judicial,

30

rather than police, determination that a named thing is

in a named place should not include within its scope the

determination that a named person is in a named place);

Rotenbert and Tanzer, Searching for the Person to Be

Seized, 35 Ohio St. L. J., 56, 76 (1974) (No convincing

reason why search and seizure procedures do not include

search for the person within their protections.)

Petitioner contends that the lack of a logical distinc-

tion between searches for persons and searches for things

is nowhere clearer than in the situation where the citizen

whose guaranteed expectation of privacy is unreasonably

invaded is a third person not named in the arrest war-

rant Or a person against whom the evidence sought will

not be used. In Zurcher v. Stanford Daily, 436 U.S. 547

(1978), it was recognized that:

In criminal investigations, a warrant to search for

recoverable items is reasonable ‘only when there is

probable cause to believe that they will be un-

covered in a particular dwelling.’ Search warrants

are not directed at persons; they authorize the

search of ‘places’ and the seizure of ‘things’, and as

a constitutional matter they need not even name the

person from whom the things will be seized.

436 U.S. at 555 (cite omitted).

Yet, if the subject of the search were a person nam-

ed in an arrest warrant, valid under United States v.

Cravero, supra, regardiess of the lack of any exception

to the search warrant requirement or the absence of ex-

igént circumstances, the decision to intrude upon the

legitimate expectations of privacy of the third person

31

would be in the sole discretion of the police officers. The

arrest warrant would ensure merely that there had been a

judicial finding of probable cause that a particular per-

son had committed a particular offense; no judicial con-

sideration of the place in which the arrest is to be made

would exist. The effect is to give the police a dangerous

degree of freedom in searching for the person and to in-

vite derrogation of Fourth Amendment guarantees.

Note, The Neglected Fourth Amendment Problem in Ar-

rest Entries, supra, at 997.

As one commentator discerned, ‘‘A prior judicial

determination of the grounds to arrest the person the

police believe is therein would primarily protect that per-

son, 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.’

W. LaFave, 2 Search and Seizure, §6.1 (1978).

The better view, and the one constitutionally con-

sistent with the Fourth Amendment, is that the war-

rantless entry of a dwelling to arrest be put on the same

constitutional footing as a warrantless entry of a dwell-

ing to search. Entry in both instances is per se

unreasonable unless ‘‘exigent circumstances’’ justify the

failure to obtain a warrant. United States v. Shye, 492

F.2d 886, 891 (6th Cir. 1974). ‘‘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 contra-

band for evidence.’’ Rice v. Wolff, 513 F.2d 1280, 1291

(8th Cir. 1975), rev’d on other grounds, sub nom Stone

32

v. Powell, 428 U.S. 465 (1976). See, generally, United

States v. Prescott, 581 F.2d 1343, 1349 (9th Cir. 1978).

Only then will third parties be guaranteed the same con-

stitutional protection for the security of their home that

they receive when the government seeks to seize in-

animate objects from their residences.

C. The ‘‘Cravero rule’’ is inconsistent with the

reaffirmation of Fourth Amendment doc-

trine in Payton v. New York, supra.

In Payton, supra, it was held that ‘‘tor Fourth

Amendment purposes an arrest warrai founded on pro-

bable cause implicitly 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. __-_———*vULS.

, 100 S.Ct. 1371 27 Cr.L. at 3041.

ee

In Payton, supra, the State, which had legislatively

authorized its police officers to enter a private residence

without a warrant and with force, if necessary, to make

a routine felony arrest, argued that only a search war-

rant based upon probable cause to believe the suspect is

at home at a given time can adequately protect the

suspect’s privacy interests that are at stake. Since that re-

quirement was ‘‘manifestly impractical’’, the State in-

sisted that no warrant of any kind was needed.

The response of this Court adds further support for

Petitioner’s contention that the Fifth Circuit erred in his

case, and that in applying Cravero, misapplied Fourth

Amendment doctrine. The arrest warrant requirement,

this Court held in Payton, supra, while presumably less

33

protective of the citizen than a search warrant, ‘‘never-

theless suffice[s] to interpose the magistrate’s determina-

tion of prebable cause between the zealous officer and

the citizen. If there is sufficient evidence of a citizen’s

Participation in a felony to persuade a judicial officer

that his arrest is justified, it is constitutionally reasonable

to require him to open his doors to the Officers of the

law.”’ U.S. pw oar. 1971; 27

Cr.L. at 3041.

Petitioner’s case stands in marked contrast to

Payton and is even less related to Cravero. At the time

of the raid by the Drug Enforcement Administration

agents, Petitioner was not a fugitive, Suspect, or for that

matter, even known by the agents to be on the premises.

As far as they knew, one of those houses on the Carey

Court lot was the residence of a Mr. Fisher. Significant-

ly, as far as the record indicates, no law enforcement of-

ficer had been before a magistrate on the Ricky Lyons

matter for six months. Clearly there was no interposing

of a magistrate between these zealous Officers and the

citizen in this case. The arrest warrant, directed at

Lyons, is as protective of Petitioner’s privacy interests as

no warrant at all, and therefore this unreasonable intru-

sion cannot be upheld. Coolidge v. New Hampshire, 403

U.S. 443 (1971).

Additionally, since there were no exigent cir-

cumsiances in Petitioner’s case, the competing govern-

mental interests are outweighed by the sanctity of Peti-

tioner’s privacy interests in his home. Payton v. New

York, supra, 27 Cr.L. 3033, 3041 (Blackmon, J., con-

34

curring). Therefore, the lack of protection afforded by

the arrest warrant to any person but the suspect himself

requires that the police apply to the magistrate to obtain

judicial authorization for intruding upon the third per-

son’s premises.

The holdings and rationales of Payton and Cravero

are patently inconsistent. A crucial point in the case sub

judice is that the co-existence of the doctrines of Payton

and Cravero will allow police officers to enter, for exam-

ple, Petitioner’s home to arrest ‘‘Payton’’ based on the

exact same determinations that police would utilize to

enter Payton’s own residence to arrest him. Thus, the

result would be the same in either case, despite the total

dearth of any relation between Petitioner and the facts

which gave rise to the issuance of the arrest warrant for

the suspect. The arrest warrant, affording no Fourth

Amendment protection to Petitioner, therefore violates

the Amendment’s prohibition against unwarranted intru-

sions into a citizen’s privacy. Payton v. New York,

supra, 27 Cr.L at 3037, n. 26.

Moreover, Cravero makes the citizen’s expectation

of privacy and security a hollow right. It is true, of

course, that the ‘‘reasonableness of the officer’s judg-

ment is always subject to judicial review’’. United States

v. Cravero, supra, 545 F.2nd at 421. But when the

remedy of unlawful police action is restricted to the

citizen’s right to go into a court of law to seek redress,

as opposed to the additional security provided by the

knowledge that the police officer is subject to a prior

judicial approval, the intrinsic value, if not the substance

itself of the Fourth Amendment is nullified.

35

Furthemore, a Cravero arrest warrant would allow

police, based on thier own determination of probable

cause, to make arrest entries without search warrants,

whether or not exigent circumstances existed. However,

arrest warrants are not substitutes for search warrants.

Rice v. Wolff, supra, 513 F.2d at 1280-1281. Accord,

Government of the Virgin Islands v. Gereau, 502 F.2d

914 (3rd Cir. 1974) (‘‘Although police have warrants for

the arrest of suspects, they may enter premises, at least

of third persons, to search for those Suspects Only in ex-

igent circumstances where the police officers also have

probable cause to believe that the suspects may be

within.’’ 502 F.2d at 928 (emphasis supplied)); Fisher v.

Volz, 496 F.2d 333 (3rd Cir. 1974) (Arrest warrant, pro-

bable cause, and exigent circumstances will allow police

to dispense with search warrants.)

Moreover, in Wallace v. King, 626 F.2d 1157 (4th

Cir. 1980), the Court held that not only must police of-

ficers have an arrest warrant for the suspect and pro-

bable cause to believe that he is on the premises sought

to be entered but ‘‘there must also exist an appropriate

exception to the warrant requirement. . . .’’ Additional-

ly, the Court recognized that:

Reasonable or probable cause to believe that a per-

son for whom an arrest warrant has been issued is

on the premises, standing alone, is not sufficient.

* * *

An arrest warrant indicates only that there is pro-

bable cause to believe the suspect committed a

crime; it affords no basis to believe that the suspect

36

is in a stranger’s house.’’ (cite omitted) 626 F.2d at

1161 (emphasis supplied)

In conclusion, ‘‘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.’’ W.

LaFave, 2 Search and Seizure, §6.1 (1978). To hold

otherwise is to abandon the legacy of the Fourth

Amendment.

37

CONCLUSION

WHEREFORE, Petitioner prays that the judgment of

the United States Court of Appeals for the Fifth Circuit

be reversed and that the evidence seized as a result of the

unlawful police entry and search be suppressed in con-

formance with the dictates of the Fourth Amendment.

Respectfully submitted,

JOHN RICHARD YOUNG

Court-appointed Counsel

for Petitioner

MARTIN & YOUNG

Attorneys at Law

Suite 504

44 Broad Street, N.W.

Atlanta, Georgia 30303

(404) 577-2225