Petition — JABARARA v. UNITED STATES (No. 80-7)
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IN TEE
SUPREME COURT OF THE UNITED STATES .
October Term, 1976
No. 8 0 ” rd
CARLA JABARA,
Petitioner,
Ve
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIRD AND MARELLA
By: VINCENT J. MARELLA
340 N. Camden Drive
Suite 300
Beverly Hills, CA 90210
(213) 273-9132
Attorneys for Petitioner
Carla Jabara
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No.
CARLA JABARA,
Petitioner,
Ve
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIRD AND MARELLA
By: VINCENT J. MARELLA
340 N. Camden Drive
Suite 300
Beverly Hills, CA 90210
(213) 273-9132
Attorneys for Petitioner
Carla Jabara
Page
TABLE OF AUTHORITIES a%
OPINION BELOW l
JURISDICTION 1
QUESTIONS PRESENTED 2
STATEMENT 2
: PROCEEDINGS BELOW 2
a STATEMENT OF FACTS 5
ARGUMENT 15
I The Arrest of Petitioner in
her Home Without an Arrest
Warrant Violated Petitioner's
Rights Under the Fourth Amend-
ment of the United States
Constitution 15
II The Introduction of Evidence
Seized in Petitioner's
Apartment and from the Alley
Outside Violated Petitioner's
Rights Under the Fourth Amend-
ment of the United States
Constitution 41
CONCLUSION 44
TOPICAL INDEX
APPENDIX OPINION, U.S. COURT OF
APPEALS FOR THE NINTH
CIRCUIT, FILED APR 2,
1980
TABLE OF AUTHORITIES
Cases
Chappell v. United States
342 F.2d 935
(D.C. Cas. i974)
Dorman v. United States
435 F.2d 385
(€. Cat. i967) as
Fletcher v. Wainwright
399 F.2d 62
(Sth Cir. 1968)
Massachusetts v. Painter
368 F.2d 142
(lst Cir. 1966)
Niro v. United States
388 F.2d 535
(lst Cir. 1968)
Payton v. New York
U.S.
(April 15, 1980) 16, 18,
Silverthorne v. United States
251 U.S. 385 (1920)
United States v. Calhoun
542 F.2d 1094
(9th Cir.) cert. den.
sub. nom.
Stephenson v. United States
429 U.S. 1064 (1977) 33>
a4.
17,
28,
28,
19,
18,
28,
36,
27
18
29
44
44
39
27
42
26
32
39
United States v. Campbell
581 F.2d 22
(2nd Cir. 1978)
United States v. Carriger
541 F.2d 545
(6th Cir. 1976)
United States v. Curran
498 F.2d 34
United States v. Davis
327 F.2d 301
(9th Cir. 1964)
United States v. Flickinger
573 F.2d 1349
(9th Cir. 1978)
United States v. Houle
603 F.2d 1297
(8th Cir. 1979)
United States v. Jarvis
560 F.2d 494
(2nd Cir. 1978)
United States v. Killebrew
560 F.2d 729
(6th Cir. 1977)
United States v. Merritt
293 F.2d 742
(3rd Cir. 1961)
United States v. Phillips
497 F.2d 1131
(9th Cir. 1974)
iii.
28,
39,
27,
31,
29,
30
39
40
34
29
33
17
18
17
44
30
United States v. Prescott
581 F.2d 1343
(9th Cir. 1978)
United States v. Reed
572 F.2d 412
17,
(2nd Cir. 1978) cert. den.
439 U.S. 913
United States v. Santana
427 U.S. 38
United States v. Shye
492 F.2d 886
(6th Cir. 1974)
United States v. Watson
423 U.S. 411 (1976)
Warden v. Hayden
387 U.S. 294 (1967)
Wong Sun v. United States
371 U.S. 471
Statutes
21 U.S.C. § 878
28 U.S.C. § 1254(1)
United States Constitution
20,
Fourth Amendment Ze
iv.
15-17,
17,
30,
28,
41,
19
18
36
39
17
36
31
42
18
42
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No.
CARLA JABARA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OPINION BELOW
The opinion of the Court of Appeals
is not yet reported. A copy of the
opinion is attached in our Appendix
(App. A).
JURISDICTION
The jurisdiction of this Court is
-
invoked pursuant to 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Did the arrest of the Peti-
tioner in her home without an arrest
warrant violate Petitioner's Rights
Under the Fourth Amendment of the
United States Constitution.
2. Did the introduction of evi-
dence seized in Petitioner's apartment
and from the alley outside violate
Petitioner's rights undes the Fourth
Amendment of the United States Consti-
tution?
STATEMENT
1. PROCEEDINGS BELOW
On April 3, 1978, a Federal Grand
Jury for the Central District of
California returned an indictment
charging Petitioner and six other
defendants with conspiracy to possess
with intent to distribute and to
:
distribute narcotics and with various
substantive offenses [C.T. 1-13] .1/
After hearings on numerous pretrial
motions, trial commenced on November 2,
1978 before the Honorable Albert Lee
Stephens, Chief United States District
Judge [R.T. 697]. On December 11, 1978
the jury found all defendants guilty of
all charges in the indictment [C.T.
621-26]. Thereafter, on January 8,
1979 the trial court granted one
defendant's motion for judgment of
acquittal as to Count One (conspiracy)
[C.T. 728-29].
On January 22, 1979, Petitioner was
sentenced by the Court on Counts One
and Ten to the custody of the Attorney
General for a period of five years
1/ "C.T." refers to the Clerk's
transcript on appeal to the Ninth
Circuit Court of Appeals.
3.
with a special parole term of three
years [C.T. 673]. The sentences were
ordered to run concurrently [C.T.
673].
Thereafter Petitioner filed a
timely notice of appeal to the Ninth
Circuit Court of Appeals. On April 4,
1980, the Ninth Circuit issued its
opinion in United States v. Jabara,
_ F.2d =S—i‘ié«Cjs«CHW 79-1095, (9th Cir.
April 4, 1980) (attached as Appendix
A). By that opinion, the Ninth Circuit
upheld the Petitioner's conviction.
On April 23, 1980 Petitioner filed
a Petition for Rehearing and Suggestion
for Rehearing In Banc. On June 5,
1980, the Ninth Circuit denied that
Petition. Petitioner now files this
Petition for Certiori before the United
States Supreme Court.
2. STATEMENT OF FACTS
In April 1977, the Drug Enforcement
Administration (DEA) in Los Angeles,
began its investigation in this case
(R.T. 705) .2/ During that investiga-
tion, and while acting in an undercover
capacity, Agent John Jackson met
Defendant Ella Hood [R.T. 704-705].
From April 1, to April 25 Agent Jackson
had ten to fifteen conversations with
Defendant Hood2/ [R.T. 759]. He also
went to dinner with Defendant Hood and
lent her approximately $500 [R.T. 758,
887].
Agent Jackson tried to purchase
narcotics from Defendant Hood [R.T.
2/ "R.T." refers to the Reporter's
Transcript at trial.
3/ Agent Jackson testified that it was
he who called Defendant Hood most of
the time [R.T. 760].
5.
707, 757). On April 25, 1977, Hood
introduced Agent Jackson to Defendant
Rideout, at Rideout's residence on
Wetherly Drive in Beverly Hills [R.T.
715, 716). At that time, Jackson, Hood
and Rideout discussed price and Jackson
gave Hood $5,400 [R.T. 719]. Rideout
later left her residence and went to an
address on Burton Way in Beverly Hills
[R.T. 815) .4/ She then returned to her
residence on Wetherly Drive, making
an intermediate stop at a gas station
restroom [R.T. 816, 903, 909]. Rideout
then delivered a quantity of heroin to
Jackson [R.T. 732-33].
On April 27, 1977, Agent Jackson
again met with Defendants Hood and
Rideout at Rideout's residence [R.T.
4/ Defendant McClain was seen at 9315A
Burton Way in Beverly Hills [R.T.
6.
735). During that meeting, Agent
Jackson received a sample of cocaine
from Defendant Rideout [R.T. 738-41].
Starting on August 31, 1977, DEA
agents intercepted and recorded tele-
phone conversations on Defendant
Rideout's telephone pursuant to a court
authorized wiretap [R.T. 960-61]. The
wiretap on one of the defendant's
telephones lasted for an initial period
of thirty days and was extended for an
additional twenty days [R.T. 960-61].
Interceptions took place on another of
Defendant Rideout's telephones over a
thirty day period commencing on October
6, 1977 [R.T. 960-61]. In addition to
the wiretaps, DEA agents conducted
videotape surveillance of Defendant
Rideout's residence. This was accom-
plished by setting up a command post
in a hotel located near Defendant
7.
Rideout's apartment [R.T. 1435].
On September 14, 1977, Agent
Jackson contacted Defendant Hood and
told her that he wanted to purchase
approximately $15,000 worth of heroin
Rots FEU} s Later, on that same day,
Jackson met Defendant Hood and gave her
$15,000 [R.T. 743]. After meeting with
Jackson, Hood went to Rideout's resi-
dence [R.T. 819-20]. At approximately
1:30 the following morning Hood re-
turned the money to Agent Jackson; no
narcotics were delivered [R.T. 745-46].
Agent John Peoples was contacted by
Defendant Hood on September 16, 1977
(R.T. 822-29). Peoples met with Hood
later that day [R.T. 822-29]. After
discussing price, Peoples gave Hoou a
total of $14,000 [R.T. 836]. They then
drove to pick up Defendant Rideout and
ultimately made their way to the corner
8.
of Burton Way and Foothill Boulevard in
Beverly Hills [R.T. 837-42]. Hood gave
money to Rideout [R.T. 843]. Rideout
returned to the van carrying a cookie
box [R.T. 854]. Hood later gave the
cookie box to Agent Peoples [R.T. 863].
It contained heroin [R.T. 863].
From approximately November 6,
1977, until March 8, 1978, there were
no interviews conducted by agents in
this investigation [R.T. 397-98].
During that time period the agents
conducted no undercover activity in the
case, nor did they contact any of the
defendants [R.T. 397-98, 597, 626, 628,
630-31].
At some point before March 8, 1978,
it was decided that the agents would
re-establish contact with Defendant
Rideout [R.T. 339]. It was also
decided that Agent Jackson would
9.
attempt to purchase narcotics from
Rideout and arrest her upon delivery of
the drugs [R.T. 401-403, 564].
Based upon this decision, Agent
Jackson recontacted Defendant Rideout
on March 8, 1978 [R.T. 1739-40].
Jackson told Rideout that he wanted to
purchase heroin [R.T. 1741]. Between
March 8 and March 20, Agent Jackson had
approximately ten or twelve conversa-
tions with Defendant Rideout during
which they carried on negotiations
([R.T. 1742-43]. These negotiations
were finalized on March 20 when Agent
Jackson met with Defendant Rideout and
made arrangements for delivery of the
narcotics [R.T. 1743, 1772]. Delivery
had been scheduled for March 20 [R.T.
615], however, Rideout was unable to
produce the narcotics at that time
[R.T. 1776]. Jackson told Rideout that
10.
he would cont.7ct her on the following
day [R.T. 1777].
On March 21, 1978, Jackson had
three or four conversations with
Rideout and met with her [R.T. 1777-
1778). At their meeting, Rideout made
a telephone call after which she and
Jackson drove to the vicinity of St.
Andrews Place and Venice Boulevard in
Los Angeles [R.T. 1781-82]. There
Jackson paid Rideout $5,200.00.
Rideout left the vehicle and later
returned and delivered narcotics to
Agent Jackson [R.T. 1782-1783].
Several days before March 21, 1978,
however, the Assistant United States
Attorney in charge of the investigation
and DEA agents had a meeting to discuss
the arrest of suspects in this in-
vestigation [R.T. 477]. The attorney
in charge was aware that if Defendant
11
Rideout delivered narcotics to Agent
Jackson as a result of the ongoing
negotiations she would be arrested
([R.T. 403, 564]. Most importantly, the
Assistant United States Attorney and
the agents foresaw and anticipated that
arrests of other defendants would occur
after Rideout's [R.T. 404, 407, 564-
65].
On March 20, while Agent Jackson
was negotiating with Defendant Rideout,
DEA agents conducted surveillance at
Petitioner's apartment which was
located at 304 S. Elm Drive, Beverly
Hills [R.T. 571, 1860-61]. Agents
observed Defendant McClain's auto-
mobile in the parking stall behind
Petitioner's apartment building [R.T.
1861]. On that date, March 20, one
DEA agent went to the manager of
Petitioner's building and asked for a
12.
key to Petitioner's apartment [R.T.
545-47]. The agent told the building
Manager that there was going to be an
arrest that day or that evening [R.T.
548] .2/ He said that there might
be a need to get into the apartment
quickly and made reference to breaking
the door down [R.T. 549]. The agent
also asked to be admitted to an area
near Petitioner's apartment. The
Manager admitted the agent to the
vacant apartment next to Petitioner's
[R.T. 547-550]. Later that day the
agent returned the key to the building
Manager, and stated that the arrest
would not be made that day [R.T.
550-52].
On March 21, 1978, after she
5/ The agents did not have an arrest
warrant at the time these preparations
were made, or at any other time.
13.
delivered narcotics to Agent Jackson,
Defendant Rideout was arrested at
approximately 3:30-4:00 p.m. [R.T. 622,
1792] .o/ Shortly thereafter, Defen-
dant Earl Moore was arrested as he
left a building located at 2422 W.
Venice Boulevard [R.T. 1845, 1983].
At approximately 9:40 p.m. on March
21, 1978, at least six DEA agents went
to Petitioner's apartment to arrest her
and Defendant John T. McClain [R.T.
511, 712A, 2364, 2379, 2380). Upon
being admitted to the apartment with
guns drawn, the agents immediately
arrested Petitioner and then arrested
Defendant McClain in the kitchen area
6/ The Respondent contended at the
time of trial that the arrest of
Defendant Rideout provided them with
"exigent circumstances" that avoided
the need to obtain an arrest warrant
for Petitioner.
14.
of the apartment [R.T. 2364]. Agents
later seized a number of items from the
apartment and discovered a quantity
of cocaine located in a driveway
outside Petitioner's apartment build-
ing, four stories beneath Petitioner's
kitchen window [R.T. 2466]. The items
from the apartment and the cocaine were
introduced at time of trial.
Defendant Hood was arrested later
in the evening of March 21, 1978, while
she was in her residence [R.T. 1951].
No warrants were obtained for the
arrest for any defendant, including
Petitioner [R.T. 425, 434, 441].
ARGUMENT
I
The Arrest of Petitioner in her
Home Without an Arrest Warrant
Violated Petitioner's Rights Under
the Fourth Amendment of the United
States Constitution
In the case at bar Petitioner was
15.
arrested in her home by federal narco-
tics agents, without the benefit of an
arrest warrant. This arrest followed a
lengthy criminal investigation. There
were no exigent circumstances to
justify such an arrest and therefore
any evidence seized at the time of the
arrest and introduced at time of trial
was done so in violation of Peti-
tioner's Fourth Amendment rights.
This Court recently held that "[iJt
is a ‘basic principle of Fourth Amend-
ment law’ that searches and seizures
inside a home without a warrant are
presumptively unreasonable." Payton v.
New York, U.S. , (April 15,
1980). In numerous opinions of the
Circuit Courts of Appeal, the arrest of
an individual in his home without a
warrant has been judged unconsti-
tutional when put to the Fourth Amend-
16.
ment's test. See United States v.
Reed, 572 F.2d 412 (2nd Cir. 1978),
cert. denied, 439 U.S. 913; United
States v. Killebrew, 560 F.2d 729 (6th
Cir. 1977); United States v. Shye, 492
F.2d 886 (6th Cir. 1974); United States
v. Houle, 603 F.2d 1297 (8th Cir.
1979); United States v. Prescott, 581
F.2d 1343 (9th Cir. 1978); Dorman v.
United States, 435 F.2d 385 (D.C. Cir.
1969).
The Circuit Courts have often
recognized that a warrantless arrest of
an individual in a residence, although
unreasonable under the Fourth Amend-
ment, may only be justified if a clear
showing of exigent circumstances is
proven by the government._/ United
7/ This Court specifically reserved
what type of emergency or dangerous
(continued)
17.
States v. Reed, supra; United States v.
Jarvis, 560 F.2d 494 (2nd Cir. 1978);
United States v. Calhoun, 542 F.2d 1094
(9th Cir.), cert. denied, sub. nom,
Stephenson v. United States, 429 U.S.
1064 (1977); Dorman v. United States,
Supra; United States v. Prescott,
supra. These cases, and many others,
clearly indicate that despite the
existence of statutory authority for a
8/
warrantless arrest,—’ such an arrest
in a residence, absent exigent circum-
stances, is unconstitutional.
The principle, therefore, is well
established that federal officers must
7/ (continued)
Situations described as “exigent
circumstances" justifies a warrantless
entry into a home for the purpose of
arrest. Payton v. New York, supra.
8/ Warrantless arrests for narcotics
offenses are authorized by Title 21,
United States Code, §878.
18.
obtain an arrest warrant, grounded on
probable cause, prior to arresting an
individual in a residence, Payton v.
New York, supra; only clearly defined
and limited exceptions to this rule can
pass the test of constitutionality
United States v. Prescott, supra. In
the case at bar no valid exception
exists.
The Ninth Circuit in its opinion
affirming Petitioner's conviction held
that there existed sufficient facts
justifying a finding of exigent circum-
stances. Such facts, the Court ruled,
negated the need for government agents
to obtain a warrant. The Circuit Court
below, however, misconstrued the facts
Supporting a claim of exigent circum-
stances. In the case at bar the
evidence clearly demonstrates that
there existed ample time for the agents
19,
to obtain a warrant since they had
anticipated Petitioner's arrest for a
substantial period of time.
As more fully set out in the
Statement of Facts, supra, the evidence
shows that sometime prior to March 8,
1978, agents decided to recontact
Defendant Rideout for the purpose of
9/
purchasing more narcotics from her.=
9/ By March, 1978, the agents had been
investigating this case for approxi-
mately one year. They had conducted a
wiretap on Defendant Rideout's tele-
phone and made at least two purchases
of narcotics from her. All of this had
been completed by November, 1977, after
which nothing happened in the investi-
gation until March 8, 1978. Agents
conducted no investigation and received
no information relating to Petitioner
after November, 1977. Despite this
period of inactivity in the investiga-
tion, agents did not attempt to
obtain a warrant for Petitioner's
arrest. This period of inactivity in
the investigation weighs heavily
against the existence of exigent
circumstances. See United States v.
Reed, supra.
20.
The agents had decided by that time
that when Defendant Rideout delivered
narcotics to the undercover officers
she would be arrested [R.T. 634-35].
The agents were fully aware that
Defendant Rideout's arrest would
trigger the arrests of all other
defendants including Petitioner. Thus,
there is no question from the facts in
the record that agents expected to make
arrests of other defendants in this
case after they arrested Defendant
Rideout .12/
Agent Peoples, who was a super-
vising agent, testified that the agents
anticipated arresting the other defen-
dants in this case after they arrested
10/ The government's contention that
defendant Rideout might cooperate with
them was highly speculative and cannot
be used as a justified criteria for
avoiding the neec for a warrant.
21.
Defendant Rideout. He testified in
part as follows:
"Q. So would it be fair
to say that you, being the
agents in the case, were
anticipating that further
arrests would take place
after Rideout delivered the
narcotics to Agent Jackson?
A. Yes.”
Agent Thompson testified that the
agents involved in this investigation
had meetings during the week before
Petitioner's arrest. According to
Thompson, the arrests of the defendants
in this case were discussed during
those meetings [R.T. 475-77].
That the agents planned to arrest
Petitioner is clear from the fact that
on March 20, 1978, one day prior to her
arrest, agents had Petitioner's apart-
ment under surveillance. On that date
an agent went to the manager of Pe-
titioner's apartment building and
22.
requested and obtained a key to Pe-
titioner's apartment ./ The agent told
the apartment manager that there
was going to be an arrest that day
[R.T. 547-48]. The apartment manager
let the agent into the vacant apartment
next to Petitioner's where the agent
waited with a two-way radio. Ulti-
mately when Defendant Rideout failed
to deliver narcotics to undercover
officers on March 20, 1978, Peti-
tioner's arrest was postponed and the
agent left Petitioner's building and
returned her apartment key to the
building manager. However, on the
following day, March 21, when Defendant
Rideout delivered narcotics, the agents
11/ In its Opinion, the Ninth Circuit
incorrectly implies that the key which
was obtained was for the apartment
adjacent to Petitioner's (Appendix, p.
7).
23.
implemented their plan to arrest the
other defendants in the case including
Petitioner.
From the above it is clear that as
of March 8, 1978, agents expected to
arrest Defendant Rideout, and they were
fully aware that Rideout's arrest would
trigger the arrests of other Defen-
dants including Petitioner.12/ Fur-
thermore, on March 20, one day before
Petitioner's arrest, agents took
steps and positioned themselves to
arrest Petitioner. They also advised
Petitioner's apartment manager of the
forthcoming arrest. Despite this, at
no time did agents make any attempts to
12/ Indeed, according to the Assistant
United States Attorney, Defendant
McClain's arrest was "the ultimate
goal" and "the arrrest of Rideout was
only regarded as a step in that in-
vestigation" [R.T. 402].
24.
obtain a warrant for Petitioner's
arrest.
Contrary to the Ninth Circuit's
reasoning and conclusion, the agents
took steps and made preparations to
arrest Petitioner long before they knew
whether or not Defendant Rideout would
cooperate. It is certainly clear from
this, if not from all else, that
Defendant Rideout's cooperation was
never a factor in the decision of when
to arrest Petitioner.
It is equally apparent that,
contrary to the holding of the Ninth
Circuit, there was no danger of flight
or destruction of evidence. Agents had
Petitioner's apartment under sur-
veillance starting on March 20, one day
before her arrest. Surveillance
clearly could have been maintained
while a warrant was obtained with no
25.
risk of flight or loss of evidence.
See United States v. Calhoun, 542 F.2d
1094 (9th Cir.) cert. den. sub. nom.,
Stephenson v. United States, 429 U.S.
1064 (1977).
In light of the facts in the record
that agents anticipated Petitioner's
arrest and that chece wae ample time to
obtain a warrant, the failure to obtain
a warrant was unjustified. The record
in this case amply demonstrates that
the agents created their own "exi-
gencies," and the Opinion of the Ninth
Circuit effectively emasculates the
warrant requirement by truly permitting
the exception to swallow the rule. For
this Court to uphold the ruling of the
Ninth Circuit, it would be necessary to
expand the concept of "exigent circum-
stances" to such a point that the
entire meaning of the Payton decision
26.
would be lost. This should not be the
effect this Court intended in its
Payton decision.
The term "exigent circumstances" as
it relates to an arrest in a residence,
refers to a situation in which the
necessary delay involved in obtaining a
warrant is outweighed by the need for
immediate action under the circum-
stances of the particular case. United
States v. Flickinger, 573 F.2d 1349,
1355 (9th Cir. 1978). The cases
plainly hold, however, that the fact
that there would be some delay caused
by obtaining a warrant does not neces-
sarily lead to the conclusion that
exigent circumstances exist, since
securing a warrant always entails some
additional time. See Dorman v. United
States, supra [citing Chappell v.
United States, 342 F.2d 935, 938 n.5
ai.
(D.C. Cir. 1974)).
In this area, a number of circuits
have repeatedly recognized that if a
set of circumstances can reasonably be
predicted or anticipated in advance,
they cannot then be termed "exigent"
such that will dispense with the need
for a warrant. United States v.
Calhoun, supra; United States v.
Carriger, 541 F.2d 545 (6th Cir.
1976); Niro v. United States, 388 F.2d
535 (1st Cir. 1968). See also United
States v. Santana, 427 U.S. 38, 48-49
(dissenting opinion of Marshall J.).
There is a heavy burden on the govern-
ment to show that there was a need to
act without a warrant. Dorman v.
United States, supra.
In determining whether or not
exigent circumstances exist, all of the
facts of the case must be considerea.
28.
United States v. Flickenger, supra. A
number of circuits have adopted a set
of factors which should be taken into
account in makins such a determination.
These factors were first set forth in
Dorman v. United States, and include
the following: (1) whether the offense
involved is violent in nature; (2)
whether the suspect is reasonably
believed to be armed; (3) whether there
is a clear showing of probable cause to
believe that the suspect committed the
crime; (4) whether there is strong
reason to believe that the suspect is
in the premises to be entered; (5)
whether there is a likelihood that the
Suspect will escape if not swiftly
apprehended; and (6) the circumstances
Surrounding the entry. United States
v. Phillips, 497 F.2d 1131 (9th Cir.
1974); Dorman v. United States, supra;
29.
United States v. Reed, supra; United
States v. Campbell, 581 F.2d 22, 26 (2d
Cir. 1978). The relevant factors as
they apply to the facts of this case
will be considered below.
First, the alleged crime involved
in the instant case is conspiracy and
possession with intent to distribute
narcotics. Such offenses are certainly
not crimes of violence. See United
States v. Flickinger, supra at 1355;
United States v. Phillips, supra.
Moreover, there was absolutely no
evidence to indicate that Petitioner,
or anyone else in her apartment at the
time of the arrest, was armed. In
United States v. Flickenger, supra, the
Ninth Circuit commented on this topic
and stated:
", . »« When the police
do not have a reasonable
basis for believing the
30.
Suspect is armed beyond
his alleged participation
in nonviolent criminal
activity, that fact alone
is insufficient to demon-
strate exigency."
United States v. Flickenger, supra, 573
F.2d at 1355.
Another factor to consider in
determining whether exigent circum-
Stances exist is the likelihood that
the suspect will escape if not appre-
hended on the spot. See Warden v.
Hayden, 387 U.S. 294 (1967). At the
time of her arrest, Petitioner was in
her apartment and there are no facts
whatsoever that would indicate that she
was preparing or likely to flee [R.T.
512). Agents had Petitioner's resi-
dence under surveillance periodically
for at least twenty-four hours before
her arrest [R.T. 414-15, 545-48, 571,
860-612]. Moreover, at the time of her
31.
arrest, there were at least four agents
present in Petitioner's apartment and
at least two more outside [R.T. 2379,
2380). It is painfully apparent from
this and other events that surveillance
could have continued while a warrant
was obtained.
In United States v. Calhoun,
supra, the Ninth Circuit considered the
circumstances surrounding the war-
rantless arrest of one Sheppard and
observed:
"While it is possible that
Sheppard might have dis-
covered the presence of the
officers in the building
and attempted to flee,
nothing in the record
indicates it was more
likely here than in any
case where there are two or
more suspects and all are
not arrested at once. The
availability of an alterna-
tive further suggests that
exigent circumstances did
not exist. There were
sufficient officers in the
area that, instead of
32.
entry, they might have
maintained surveillance
while a warrant was sought."
United States v. Calhoun, supra, 542
F.2d at 1102 Accord: United States v.
Flickinger, supra, 573 F.2d at 1355.
Similarly, there was no reason to
believe that the time required to
secure a warrant would result in the
destruction of evidence. First of all,
there was absolutely no reason to
believe that there was any evidence in
Petitioner's apartment at the time of
her arrest. Throughout the entire
investigation in this case in Los
Angeles, there was no indication that
Petitioner was involved with illegal
narcotics. There was likewise no
reason to' believe that any evidence
would be destroyed.
The circumstances surrounding the
entry to effectuate the arrest are
33.
another factor to consider. In the
case at bar, at least six agents went
to Petitioner's residence at approxi-
mately 9:35 p.m. [R.T. 511, 712A, 2364,
2379, 2380). Agents knocked at Peti-
tioner's door and with guns drawn
arrested her as soon as she opened the
door as she stood inside her apartment
[R.T. 2364]. Such a substantial
invasion at night, under color of
authority cannot be termed "peaceful"
and is tantamount to a forcible entry.
See United States v. Davis, 327 F.2d
301, 304 (9th Cir. 1964). |
Finally, the facts of the case as a
whole including the circumstances
surrounding the investigation, show
that there were no exigent circum-
stances for the arrest of Petitioner.
The facts show that agents received
information from an informant regarding
34.
Petitioner by January 12, 1977 [R.T.
466-468]. The agents kept this infor-
mation for approximately fourteen
months without developing any signi-
ficant new information regarding
Petitioner, and never during that
fourteen month period sought an arrest
warrant. The Los Angeles investigation
in this case was actively underway by
April 1977 and continued through
October 1977. During that period, a
wiretap was placed on two telephones,
which wiretap ended by October 26, 1977
(R.T. 961]. During that period of the
investigation, a total of three under-
cover narcotics purchases were made
from various defendants in this case
[R.T. 719, 732-733, 741, 743, 822-843,
854, 863]. Still, the agents failed to
seek any arrest warrant for any defen-
35.
13/
dant, including Petitioner.—
After the wiretap concluded, the
investigation apparently became in-
active for a four-month period until
approximately March 8, 1978 ,14/ Et
was not until March 1978 that agents
recontacted Defendant Rideout and
negotiated with her for the delivery of
narcotics [R.T. 1739-43]. These
negotiations extended from March 8 to
March 20 and culminated in a delivery
13/ Although agents are not bound to
seek warrants as soon as they feel they
have established probable cause (See
United States v. Watson, 423 U.S. 411
(1976), their decision not to seek a
warrant must be considered in determing
whether or not an exigency in fact
existed or whether an "exigency" was
created by the actions of the officers.
United States v. Calhoun, Supra, at
1102.
14/ This period of inactivity in the
investigation is a significant factor
weighing heavily against the existence
of exigent circumstances. See United
States v. Reed, supra.
36.
of narcotics and the arrest of Defen-
dant Rideout [R.T. 622, 1742-1743,
1777-1783, 1792]. Despite the ex-
tended negotiations with Defendant
Rideout and the agents' anticipation of
Rideout's arrest, they sought no
warrant for the arrest of Petitioner or
any other defendant in the case [R.T.
425, 428, 565, 567-568]. Instead, by
arresting Defendant Rideout, the agents
set in motion a series of events which
they could have foreseen would lead
them to make a warrantless arrest
of Petitioner in her residence .12/
Certainly, it was entirely fore-
15/ It had been decided prior to
March 20, 1978 that when Rideout
delivered narcotics to Agent Jackson
she would be arrested [R.T. 564].
Moreover, the attorney in charge of the
investigation, as well as the agents,
anticipated that Rideout's arrest would
precipitate other arrests [R.T. 405,
455, 365).
37.
seeable that other arrests might follow
Rideout's.
The facts clearly show that the
agents knew they would arrest Pe-
titioner after Rideout delivered
narcotics. On the day before Peti-
tioner's arrest, when Rideout was
scheduled to deliver narcotics to Agent
Jackson, a DEA agent went to Peti-
tioner's building manager and obtained
a key to Petitioner's partment [R.T.
545-547]. The agent told the building
Manager that an arrest would take place
that day [R.T. 548]. It is apparent
from these facts that, prior to the
actual arrest on March 21, agents
were carefully planning the circum-
stances for Petitioner's arrest.
Despite the fact that agents knew that
they planned to arrest Petitioner, they
took no steps to obtain a warrant [R.T.
38.
In light of the above facts, there
was Clearly no legitimate reason not to
obtain an arrest warrant. See United
States v. Calhoun, Supra; United States
v. Carriger, supra. The agents,
by their actions, in effect created
their own "exigencies." Such conduct
has been condemned by a number of
the Circuits as well as in Justice
Marshall's dissenting opinion in United
States v. Santana, supra. See United
States v. Calhoun, supra; United States
v. Curran; United States v. Carriger,
Supra; Niro v. United States, supra.
In United States v. Curran, supra,
a circuit court evaluated a claim of
exigent circumstances and stated:
"So « »« Bsthough . .. (the
agents] .. . intended to
question the occupants,
they contemplated a search
and seizure. Knowing that
39.
marijuana was present and
knowing that they would
make their presence known
to the occupants, the
officers consciously
established the condition
which the government now
points to as an exigent
circumstance. If exigency
arises because of unreason-
able and deliberate delay
by officers, it is not an
exigent circumstance
capable of dispensing with
the requirement of a
warrant."
United States v. Curran, supra, 498
F.2d at 34.
In the case at bar, the circum-
stances of Petitioner's arrest were
entirely foreseeable to the agents and
whatever exigencies existed were
entirely created by their own actions.
Therefore, the circumstances are not
such that the requirements of a warrant
can be ignored. Petitioner's arrest in
her home at night without a warrant in
the absence of exigent circumstances
40.
violated the Fourth Amendment. The
introduction of evidence seized under
this illegal arrest should have been
suppressed. Petitioner's convictions
using such evidence was improper and
should be reversed.
II
The Introduction of Evidence Seized
in Petitioner's Apartment and from
the Alley Outside Violated Peti-
tioner's Rights Under the Fourth
Amendment of the United States
Constitution
Following the federal agents entry
into Petitioner's home, a small amount
of controlled substances, mannite,
scales and other items were seized
either pursuant to the "“plain-view"
doctrine or under an alleged consent.
Additionally, an amount of cocaine was
found several stories below Peti-
tioner's apartment in the alley. All
of this material was entered in evi-
41.
dence against Petitioner.
As indicated above, the arrest of
Petitioner in her home was without
benefit of a warrant. Since there were
no exigent circumstances to justify
this improper arrest it was in viola-
tion of Petitioner's Fourth Amendment
rights. Any evidence seized as a
result of this unconstitutional incur-
sion would be the fruit of the illegal
act. Wong Sun v. United States, 371
U.S. 471, 484-487 (1963); Silverthorne
v. United States; 251 U.S. 385, 391-392
(1920). See Dunnaway v. New York,
0.8. ,. 99 8§.Ct. 2268 (1979)}--
holding that an arrest of an individual
in violation of his Fourth Amendment
rights tainted and made inadmissible
statements made by him.
Therefore, in the case at bar, the
introduction into evidence of the items
42.
seized within Petitioner's home was
improper and should have been sup-
pressed. The Ninth Circuit in its
opinion held that the arrest was legal
and therefore the material visible to
the agents was admissible. As to the
items later found on the premises, the
Court below held that they were seized
pursuant to a valid consent. However,
as indicated above, the initial entry
into Petitioner's home was unconstitu-
tional since the agents did not possess
a warrant. All of the materials seized
on the premises were fruits of that
initial illegal entry and therefore
should have been suppressed.
As to the cocaine found outside the
Petitioner's apartment, the Ninth
Circuit held that it was abandoned
property and therefore subject to
seizure. However, as indicated above,
43.
the entry into Petitioner's home was
unconstitutional. As such, an item
dispatched as a direct result of the
agent's illegal entry is not abandoned
and therefore not admissible at trial.
Fletcher v. Wainwright, 399 F.2d 62, 64
(Sth Cir. 1968); Massachusetts v.
Painter, 368 F.2d 142 (1st cir. 1966);
United States v. Merritt, 293 F.2d 742
(3rd cir. 1961).
CONCLUSION
For the foregoing reasons, Peti-
tioner respectfully requests that the
Petition for Writ of Certiorari be
granted.
Respectfully submitted,
BIRD AND MARELLA
By: Vincent J. Marella
Attorneys for Petitioner
CARLA JABARA
44.
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) Nos. 79-1095
) 79-1118
Plaintiff-Appellee, ) 79-1225
) 79-1272
v. ) 79-1304
) 79-1355
CARLA JABARA, )
JOHN T. McCLAIN, ) OPINION
EARL MOORE, ) D.C. No. CR
ELLA HOOD, ) 78-314-ALS
EVELYN HATCH, ) FILED
CURTISTINE RIDEOUT, APR 2, 1980
)
Defendants-Appellants. ) Richard H. Deane
) Clerk, U.S.
Court of Appeals
Appeal from the United States
District Court for the Central
District of California The
Honorable Albert L. Stephens Jr.,
Presiding
Before: CHOY, HUG, and SKOPIL, Circuit
Judges.
HUG, Circuit Judge:
This is a consolidated appeal from
convictions on a ten-count indictment
for narcotic offenses. All appellants
were found guilty by the jury of
A-1
conspiring to possess with intent to
distribute, and to sell and distribute,
heroin, cocaine, methaqualone and
marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846. The trial judge
entered judgment on that count against
all appellants, except Moore. As to
Moore, the trial judge granted a motion
for acquittal on the conspiracy count.
All appellants except Hatch were
convicted of various substantive counts
for possession with intent to distri-
bute and distribution of various
narcotics.
FACTS
This case involves an extensive
drug conspiracy, which operated from
May 1974 until March 1978, centering in
Southern California and extending to
other states. Arrests followed an
eleven-month investigation by agents
A-2
of the Drug Enforcement Administration
(DEA). Wiretaps, purchases of drugs
by undercover agents, and physical and
video surveillance were the primary
tools of investigation.
The Government characterized
appellant John McClain as the primary
source of the drugs; he was, however,
well insulated from direct contact with
purchasers. Appellant Carla Jabara
acted as McClain's assistant; appel-
lants Curtistine Rideout, Evelyn Hatch
and Ella Hood were the "runners." They
made the actual pickup of drugs and
sales to purchasers. Appellant Earl
Moore was described as a secondary
distributor of drugs and was involved
in transactions only when McClain was
unavailable.
The DEA began its investigation in
April 1977; DEA special agents, John
A-3
Jackson and John Peoples, negotiated
with Hood and Rideout for the purchase
of heroin. Sales of heroin took
place on April 25, 1977 and September
16, 1977. In both transactions,
undercover agents gave money to Hood
to purchase heroin. Hood gave the
money to Rideout, who proceeded to a
house in Beverly Hills. McClain was
observed at this house. Rideout
returned with heroin and consummated
the sale. One other attempted purchase
in September 1977 failed when no
narcotics were available.
Starting on August 31, 1977 DEA
agents intercepted and recorded tele-
phone conversations on Rideout's
telephone pursuant to a court-autho-
rized wiretap. The wiretap continued
for fifty days. In October a thirty-
day wiretap was placed on another of
A-4
Rideout's phones. In addition to the
wiretaps, DEA agents also conducted
videotape surveillance on Rideout's
residence.
Evidence was introduced at trial
that on September 21, 1977 Rideout made
a telephone call to Alaska. The
following day Wanda Mullins traveled
from Alaska to Rideout's apartment.
Surveillance agents observed Rideout
leave her apartment, “meet with Moore,
and return home. After Rideout re-
turned, Mullins boarded a plane for
Alaska. When she arrived in Anchorage
she was arrested, and a quantity of
cocaine was seized from her.
From November 1977 until March 1978
DEA agents conducted no undercover
activity in the case, nor did they
contact any of the defendants. The
Government contended, however, that
° A-5
during this time it was analyzing
approximately three thousand inter-
cepted calls from the wiretaps on
Rideout's phones.
In March 1978 DEA agents decided to
reestablish contact with Rideout for
the purpose of making another drug
purchase. The DEA had determined,
through the analysis of intercepted
phone calls, that Rideout might co-
operate and aid in the investigation if
she were arrested. It was decided that
if she sold a significant quantity of
narcotics to an agent, she would be
arrested. Based on this decision,
agent Jackson began negotiating with
her for the sale of heroin.
On March 20, 1978, as Jackson
continued to work out a "deal" with
Rideout, other DEA agents conducted
Surveillance on Jabara's apartment.
A-6
One agent met with the building manager
and arranged to be admitted into an
apartment adjacent to Jabara's apart-
ment. The agent told the manager that
an arrest might be made that night.
Later, however, the agent returned the
key and stated that no arrest would be
made that day.
On March 21, Rideout was arrested
shortly after she sold heroin to DEA
agent Jackson. Rideout had obtained
the drug from Moore, who was arrested
the same day. Moore had in his pos-
session some of the recorded funds that
Jackson had paid to Rideout. Moore was
advised of his rights, and signed a
consent .to search form. A search of
his apartment turned up heroin, cocaine
and lactose.
Rideout was not cooperative,
as the agents had hoped, and she made
A-7
attempts to notify other defendants of
her arrest. The DEA contacted a
Magistrate concerning arrest warrants
for the other defendants but realized
that it would require considerable time
to prepare supporting affidavits, and
that the other defendants might be
warned in the meantime. Accordingly,
an Assistant United States Attorney in
charge of the investigation authorized
that arrests be made without warrants.
At approximately 9:35 p.m. on March
21, agents knocked on Jabara's apart-
ment and announced their presence.
Upon being admitted to the apartment
with guns drawn, the agents immediately
arrested Jabara and McClain. Agents
seized a number of items from the
apartment, including nearly $55,000 in
cash. A quantity of cocaine was
discovered located in a driveway
A-8
outside the apartment, four stories
beneath the apartment's kitchen window.
Hood was arrested later that night. No
arrest warrants were obtained for the
arrest of any defendant.
Two days after the arrests, DEA
agents obtained a search warrant for
Jabara's other apartment. Cocaine,
mMannite, a scale and a heat sealer were
seized in the search. Those items were
introduced at the trial against all the
defendants.
ARGUMENTS
The appellants raise thirteen
principal assignments of error. We
will relate additional pertinent facts
in the discussion of each issue.
1. Jabara and Moore argue that
their arrests were not based on pro-
bable cause. Carla Jabara argues
that there was insufficient evidence
A-9
available to the arresting officer to
establish probable cause. Jabara
asserts three principal contentions as
to why the evidence relied on by the
Government did not establish probable
cause for her arrest. First, she
argues that the reliability of certain
government informants was not demon-
strated. Second, she argues that the
information was stale, because the
information allegedly concerned her
conduct in 1975 and the arrest took
place in 1978. Third, she notes that
her voice was never intercepted in the
wiretaps. All of Jabara's contentions
are without merit. The reliability of
the government informants was esta-
blished by their declarations against
penal interest. The information
provided by Antoinette Griffin and
Jeannine Collins implicated them in the
A-10
crime of violating federal narcotics
laws. It is well-settled in this
circuit that a declaration against
penal interest meets the reliability
test of Aguilar v. Texas, 378 U.S. 108
(1964) and Spinelli v. United States,
393 U.S. 410 (1969). See United States
v. Damitz, 495 F.2d 50, 55 (9th Cir.
1974); United States v. Harris, 403
U.S. 573, 583-84 (1971). A review of
the record also discloses that the
information the Government relied on
was not stale. While Jabara contends
that all the information provided to
the Government involved her alleged
activities in 1975, the record clearly
shows that the information concerned
her activities in 1975 and 1977. Thus,
the information was not three years old
as Jabara asserts. While Jabara
correctly contends that the wiretap
A-11
interceptions never recorded her voice,
the fact that her voice was never
intercepted does not negate the other
evidence that established probable
cause. Furthermore, a review of the
record indicates that a wiretap inter-
ception did record conversations
between Jabara's co-defendants which
implicated her in the conspiracy.
We conclude that there was probable
cause to believe that Jabara was
involved in a conspiracy to violate
federal narcotics laws. See United
States v. Watson, 423 U.S. 411, 431 n.4
(1976).
Moore also contends that there was
not probable cause to arrest him for
participation in any illegal drug
activity. Moore further contends that
prior to his arrest the officers
reached into his pocket and pulled out
A-12
a large sum of money, which constituted
an unreasonable warrantless search. A
review of ‘the record demonstrates that
there was probable cause to arrest
Moore for conspiracy to violate federal
narcotics laws. See id. The record
also indicates that the search of
Moore's pocket was incident to the
arrest. See United States v. Chatman,
573 F.2d 565, 567 (9th Cir. 1977).
2. Both McClain and Jabara contend
that exigent circumstances did not
exist at the time of their warrantless
arrests at Jabara's residence at 304 S.
Elm Drive, Beverly Hills. fThe rule is
well-settled in this circuit that
"absent exigent circumstances, police
who have probable cause to arrest a
felony suspect must obtain a warrant
before entering a dwelling to carry
out the arrest." United States v.
A-13
Prescott, 581 F.2d 1343, 1350 (9th Cir.
1978)(footnote omitted). In the
instant case the agents did not have
arrest warrants for Jabara or McClain
at the time of their arrests. Because
the arrests took place at Jabara's
residence, the Government must esta-
blish exigent circumstances in order
for the arrests to be justified under
the Fourth Amendment.
The Government asserts that once
Rideout had been arrested, there was a
danger that her arrest might precipi-
tate the flight of McClain and Jabara
and the destruction of evidence.
Because of intercepted statements of
Rideout the Government had reasonably
anticipated that Rideout would be
willing to cooperate with the Govern-
ment in building its case against the
other defendants; however, Rideout
A-14
proved unwilling to cooperate and her
conduct also indicated that she would
attempt to notify various co-conspira-
tors of her arrest. It was reasonable
to conclude that the affidavits to
Support arrests of the principal
conspirators identified in the investi-
gation could not have been prepared in
time to avert the flight or destruction
of evidence. The trial court, predi-
cating its finding on the possibility
of both flight and destruction of the
evidence, held that there were exigent
circumstances justifying the warrant-
less arrests at Jabara's residence.
The probability of destruction of
evidence and flight do constitute
exigent circumstances. See United
States v. Flickinger, 573 F.2d at 1349,
1356 (9th Cir.), cert. denied, 439 U.S.
836 (1978); United States v. Curran,
A-15
498 F.2d 30, 35-36 (9th Cir. 1974);
United States v. Evans, 481 F.2d 990,
993 (9th Cir. 1973). We conclude that
the trial court's finding was not
clearly erroneous; we affirm the
finding. United States v. Flickinger,
573 F.2d at 1357.
3. Both Jabara and McClain con-
tend that all the evidence seized at
Jabara's South Elm Drive residence
following the arrest should have been
suppressed. They first argue that
exigent circumstances did not exist to
justify their warrantless arrests and
that the evidence should be suppressed
on that ground. For the reasons
discussed above, we find no merit in
this contention.
Jabara and McClain also contend
that the evidence the Government
justified seizing on grounds of plain
A-16
view, abandonment, and consent should
have been suppressed. We conclude that
the seizure of the package containing
‘cocaine and the small tray that were
discovered in the open drawer of the
night table was justified under the
plain view doctrine. See Harris v.
United States, 390 U.S. 234, 236
(1968); Musgrove v. Eyman, 435 F.2d
1235, 1238 (9th Cir. 1971). The
seizure of the shopping bag containing
over ten pounds of cocaine and heroin,
which had been dropped out the window
of the Jabara residence, was justified
on the theory of abandonment. See
United States v. Wilson, 472 F.2d 901,
(9th Cir.), cert. denied, 414 U.S. 868
(1973).
Jabara and McClain argue that
they did not voluntarily consent to the
search of the premises and conclude
A-17
that the evidence seized pursuant to
the purported consent search should
have been suppressed. The trial court
held that Jabara and McClain volun-
tarily consented to the search. We
must apply the "totality of the circum-
stances" test set forth in Schneckloth
v. Bustamonte, 412 U.S. 218 (1973), to
determine whether the trial court's
determination that Jabara and McClain
voluntarily consented to the search was
clearly erroneous. United States v.
Calhoun, 542 F.2d 1094, 1100-02 (9th
Cir. 1976), cert. denied, 429 U.S. 1064
(1977). Jabara and McClain were given
their Miranda warnings and both signed
formal consent search forms which
explicitly stated that they understood
that any evidence, found as a result of
the search, could and would be used
against them in any civil or criminal
A-18
proceedings. In addition, shortly
after McClain's arrest, prior to the
execution of the formal consent search
form, McClain stated that he wanted the
agents to search: the premises and "get
it over with.” We conclude that the
trial court's finding of voluntary
consent cahnot be set aside under the
clearly erroneous standard.
4. Moore argues that the trial
court erred in finding that he con-
sented to the search of his apart-
ment. After he was given his Miranda
warnings, Moore signed a consent search
form. Viewing the "totality of the
circumstances," we find that the trial
court correctly determined that Moore
consented to the search. See id.
5. Both Jabara and McClain assert
that Agent Jackson's affidavit, which
Supported the search warrant for
A-19
Jabara's other residence located at
7767 Hollywood Boulevard, apartment
306, contained four material misrepre-
sentations of fact and that these
misrepresentations of fact served to
vitiate the warrant. They therefore
conclude that all the evidence seized
pursuant to the warrant should have
been suppressed under the Fourth
Amendment. Additionally, Jabara and
McClain argue that once the mis-
representations are excized from the
affidavit, as required by Franks v.
Delaware, 438 U.S. 154 (1978), the
affidavit fails to establish probable
cause that they were part of a conspi-
racy or that facts or instrumentalities
could be found in the apartment.
At the outset, we note that McClain
concedes in his brief that “he had
absolutely nothing to do with the
A-20
[Hollywood Boulevard] apartment."
Therefore, McClain could not challenge
the evidence seized at the Hollywood
Boulevard apartment, because he had no
legitimate expectation of privacy in
the premises. See Rakas v. Illinois,
439 U.S. 128 (1978); Scharf v. United
States Attorney General, 597 F.2d 1240,
1244 (9th Cir. 1979); United States v.
Culbert, 595 F.2d 481, 482 (9th Cir.
1979)(per curiam).
If a defendant can establish that a
warrant affidavit contains (1) a
statement or statements that are either
deliberate falsehoods or made with
reckless disregard for their truth and
(2) the court finds that the challenged
material is necessary to a finding of
probable cause, then the warrant must
be voided. See Franks v. Delaware, 438
U.S. 154, 171-172 (1978); United States
A-21
v. Young Buffalo, 591 F.2d 506, 508-12
(9th Cir.), cert. denied, 441 U.S. 950
(1979). In the instant matter, the
trial court held that the four alleged
misstatements were not intentional
misrepresentations, and that even after
excising the four alleged misstate-
ments, the affidavit was sufficient to
establish probable cause. Upon re-
viewing the record it is apparent the
errors were minor and unintentional.
The findings of the trial court are
well supported by the evidence and
we conclude that the search warrant
was validly issued. See Franks v.
Delaware, 438 U.S. at 171-172; United
States v. Young Buffalo, 591 F.2d at
508-12. The evidence seized at the
Hollywood Boulevard apartment was
properly admitted into evidence.
6. Both McClain and Jabara argue
A-22
6. Both McClain and Jabara argue
that the evidence seized at the Holly-
wood Boulevard apartment should have
been excluded as being irrelevant and
unduly prejudicial. The evidence in
question consisted of quantities of
cocaine and mannite, a scale and a heat
sealer. McClain and Jabara fail to
demonstrate how evidence of narcotics
and narcotics paraphernalia are irrele-
vant in a narcotics conspiracy case.
The evidence was properly found to be
relevant. Fed. R. Evid. 401. Under
the circumstances, the evidence was not
unduly prejudicial and the trial court
did not abuse its discretion in ad-
mitting the evidence. See United
States v. Watkins, 600 F.2d 201, 204
(9th Cir. 1979).
7. Jabara, McClain, Moore, Hatch
and Rideout argue that the wiretaps
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were unlawful.
(a) Standing
The trial court specifically found
that "defendant Jabara lacks standing
to challenge the validity of the wire
intercepts because she [was] not an
‘aggrieved person' within the meaning
of 18 U.S.C. § 2518(10)(a)." Because
Jabara has failed to establish that she
was a party to an intercepted con-
versation or that an intercepted
conversation occurred on her premises,
the finding of the trial court was
correct. See United States v. Calhoun,
542 F.2d 1094, 1097-98, (9th Cir.
1976).
(b) The Affidavits
McClain, Rideout, Hatch, and Moore
argue that the Government failed to
meet the necessity requirements of 18
U.S.C. § 2518(1)(c) in their applica-
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tions for the wiretap authorizations.
They contend that the Government had
adequate alternative means to obtain
the evidence and information it de-
sired. They therefore contend that all
evidence obtained through the two
wiretaps should have been suppressed.
Section 2518(1)(c) requires
the following:
(c) a full and complete
Statement as to whether or
not other investigative
procedures have been tried
and failed or why they
reasonably appear to be
unlikely to succeed if
tried or to be too dan-
gerous;
In the Government's applications for
the wiretap authorizations, the Govern-
ment did submit affidavits by Agent
Jackson to satisfy section 2518(1)(c).
Based on these affidavits, the trial
court held that the “use of traditional
investigative procedures, exclusively,
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would have been likely to jeopardize
the outcome of the investigation, and
that under all the circumstances
presented by this scheme wiretaps were
essential." We have reviewed the
affidavits of Agent Jackson and con-
clude that the trial court correctly
ruled, in accordance with section
2518(1)(c), that the use of traditional
investigative procedures would have
been too dangerous.
(c) The Second Wiretap
Authorization.
McClain, Rideout, Hatch, and Moore
argue that the second wiretap applica-
tion was improper. Attorney General
Griffin Bell, pursuant to 18 U.S.C. §
2516, has specifically authorized the
Assistant Attorney General in charge
of the Criminal Division (Benjamin
Civiletti), and the Assistant Attorney
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General in charge of the Office of
Legal Counsel (John M. Harmon) to
authorize applications to federal
judges for wire intercepts. The second
wiretap authorization was made by
John Harmon, Assistant Attorney General
of the Office of Legal Counsel.
Defendants correctly assert that
the Attorney General's order con-
ditioned Mr. Harmon's power to author-
ize the wiretap application on Mr.
Civiletti's absence from the District
of Columbia or on his unavailability.
From this point they argue that the
Government has the burden of proof of
establishing Mr. Civiletti's unavaila-
bility, as a condition precedent to
Harmon's exercise of that power. They
further contend that in the absence of
some affirmative showing that Mr.
Civiletti was unavailable to authorize
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the wiretap applications, no presump-
tion of regularity is entitled to be
granted to Mr. Harmon's signature.
The defendant has the initial
burden of establishing a prima facie
showing that the condition precedent
has not been met in order to challenge
the wiretap. Because authorization
orders are presumed to be proper, see
United States v. Feldman, 535 F.2d
1175, 1180-81 (9th Cir.), cert. denied,
429 U.S. 940 (1976); United States v.
Turner, 528 F.2d 143, 151 (9th Cir.),
cert. denied, 423 U.S. 996 (1975), the
condition precedent in the instant case
is presumed to have been met. The
defendants have offered no evidence,
aside from their own conjecture and
speculation, to rebut this presumption.
Absent some affirmative showing by the
defendants that the authorization
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application was not properly author-
ized, we will not invalidate the
wiretap order, which was otherwise
properly issued. Cf United States v.
De La Fuente, 548 F.2d 528, 531-37 (5th
Cir.), cert. denied, 431 U.S. 932
(1977) (where the court rejected the
defendants’ argument that the Govern-
ment must authenticate the Attorney
General's signature on an authorization
order as a predicate to the use of the
wiretap evidence).
8. McClain, Rideout, and Jabara
argue that the evidence adduced at
trial was insufficient to prove the
single overall conspiracy charged in
the indictment. They contend that the
evidence proved several separate and
independent conspiracies not charged in
the indictment. McClain, Rideout, and
Jabara also assert that they were
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deprived of their right to a fair trial
because a severance of trials should
have been granted, and that there was a
fatal variance between the proof
adduced at trial and the crime charged
in the complaint. Their axguments of
severance, misjoinder, and variance
are simply a restatement of their basic
contention that the evidence adduced at
trial proved several separate and
independent conspiracies and not the
Single overall conspiracy charged in
the indictment. Hatch argues that
while the evidence adduced at trial may
have been sufficient to prove her
guilty of a separate conspiracy, the
evidence failed to establish that she
was a member of the main conspiracy
charged in the indictment. The issue
is whether the evidence adduced at
trial proved that McClain, Rideout,
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Jabara, and Hatch were members of the
Single overall conspiracy charged in
the complaint.
The essence of the defendants'
argument is that there were six sepa-
rate and independent acts or activities
proved at trial all of which consti-
tuted six separate conspiracies.
According to the defendants these six
separate conspiracies were separated by
time, persons, places, and overt acts.
In United States v. Kearney, 560 F.2d
1358, 1362 (9th Cir.) cert. denied, 434
U.S. 971 (1977), this circuit rejected
a similar contention, stating:
"Appellants assert that
the Government swept
several discrete conspir-
acies into a singie
conspiracy count, and that
this was a misjoinder
which worked to their
prejudice, effecting
"guilt transference" by
associating them with
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reason to know,
distribution of narcotics,
co-defendants involved in
other crimnal acts. In so
contending, appellants
confuse separate acts at
separate times with
Almost any venture,
criminal or legitimate, is
analyzable into a series
of bits, each of which, in
turn, is characterizable
as an independent plan or
goal. The standard for
determining the existence
of a single conspiracy,
however,
", . »« is whether
there was one overall
agreement among the
various parties to
perform various
functions in order
to carry out the
objective of the
conspiracy ...."
(Emphasis in original).
It is sufficient for the Government to
prove that each defendant knew, or had
involved in a broad project for illegal
or her benefits were probably dependent
upon the success of the entire opera-
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that others were
and that his
tion, id. at 1362. "Proof that an
alleged co-conspirator knew that he was
plotting in concert with others to
violate the law is sufficient to raise
the necessary inference that he [or
she] joined in the overall agreement .
- « « It need not even be shown that an
alleged co-conspirator knew all of the
purposes of and all of the participants
in the conspiracy." Id. Viewing the
evidence in the light most favorable to
the Government, Glasser v. United
States, 315 U.S. 60, 80 (1942); United
States v. Rich, 580 F.2d 929, 934 (9th
Ciz.), eert. denied, 439 U.S. 9335
(1978), and drawing all reasonable
inferences from the evidence in favor
of the Government, United States v.
Winn, 577 F.2d 86, 91 (9th Cir. 1978),
we conclude that the evidence was
sufficient to establish the existence
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of a single conspiracy.
Once the existence of a conspiracy
is established, “evidence establishing
beyond a reasonable doubt a connection
of a defendant with the conspiracy,
even though the connection is slight,
is sufficient to convict him with
knowing participation in the con-
Spiracy." United States v. Dunn, 564
F.2d 348, 357 (9th Cir. 1977) (emphasis
in original). A review of the evidence
clearly establishes a connection
between these appellants and the
conspiracy. Thus, the evidence was
sufficient to prove that McClain,
Rideout, Jabara and Hatch were members
of the conspiracy charged in the
indictment.
9. Moore contends that court erred
in denying his motion to sever his
trial from the other defendants. The
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trial court granted Moore's motion for
judgment of acquittal on the conspiracy
charge, but Moore still stands con-
victed on four counts of aiding and
abetting Rideout in the possession of
and distribution of cocaine and heroin.
Moore contends that he was prejudiced
by the trial court's failure to sever
his trial from that of the other
defendants.
The trial court found that joinder
was proper under Fed. R. Crim. P. 8(b),
which provides that joinder of defen-
dants is proper when the parties are
alleged to have participated "in the
same act or transaction or in the same
series of acts or transactions consti-
tuting an offense or offenses." The
court noted further that the proof
against each of the defendants would
"involve substantial portions of proof
A-35
against the co-defendants and that none
of the defendants [would] be prejudiced
by a joint trial." Moore was charged
with conspiracy and other acts which
involve allegations that he partici-
pated with the other defendants in the
Same act or transactions or in the same
series of acts or transactions. "The
trial judge has broad discretion under
Rule 14, Fed. R. Crim. P., to grant or
deny motions for severance, and denial
of such a motion will be reversed only
after an appellant has met the heavy
burden of showing the trial judge
abused that discretion." United States
v. Ortiz, 603 F.2d 76, 78 (9th Cir.
1979). Upon review of the ruling in
light of the evidence we find no abuse
of discretion.
10. Moore argues that the prose-
cutor's comment on his failure to
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produce a witness deprived him of a
fair trial. In closing argument, the
prosecutor commented on the fact that
the jury had heard no testimony from
an unnamed man who a witness claimed
gave money to Moore prior to his arrest
on March 21, 1978. Moore's trial
counsel objected to the prosecutor's
comment and moved for a mistrial. The
trial court denied the motion for
mistrial, instructed the prosecutor not
to comment on that issue, and imme-
diately instructed the jury that Moore
had no obligation to produce any
evidence. Moore argues, without merit,
that the prosecutor's comment deprived
him of his right to a fair trial. The
prosecutor's comment did not involve
privileged testimony or a comment upon
excluded evidence and was not error.
See United States v. Nace, 561 F.2d
A-37
763, 770 (9th Cir. 1977).
11. Hood contends that the trial
court erred when it refused to give an
entrapment instruction on her behalf.
The defense of entrapment consists of
two elements: (1) Government agents
must induce the defendant to commit the
offense; and (2) the defendant's
predisposition must be such that he is
not ready and willing to commit the
offense on any propitious opportunity.
United States v. Glaeser, 550 F.2d 483,
486-87 (9th Cir. 1977). The record
reveals that the conduct of the agents,
at most, amounted to assistance in the
commission of the crime, which is
insufficient to show entrapment. See
United States v. Ratcliffe, 550 F.2d
431, 434 (9th Cir. 1976). In addition,
Hood was clearly predisposed to commit
the crime. She had a prior federal
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conviction for possession of heroin
with intent to distribute; she was
familiar with the code words used in
the narcotics transactions; she never
once rejected outright any involvement
in the narcotics deals; she negotiated
the best price for the sale of narco-
tics to undercover agents, accepted
cash for her services in the narcotics
transactions, and she dealt with two
undercover agents over the course of a
year. Thus, Hood did not meet her
preliminary burden of establishing that
she was induced to commit the crime and
that she was not predisposed to commit
the crime. See United States v.
Hermosillo-Nanez, 545 F.2d 1230, 1232
(9th Cir. 1976); cert. denied, 429 U.S.
1050 (1977).
When the evidence presents no
genuine dispute as to whether the
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defendant was entrapped, there is no
factual issue for the jury, and the
judge has a duty to rule on the defense
as a matter of law. Glaeser, 550 F.2d
at 487. Under the circumstances of
this case, there was no factual issue
for the jury and the trial court
correctly ruled that, as a matter of
law, Hood was not entrapped.
12. Jabara argues that the trial
court erred in admitting irrelevant and
improper character evidence showing
that she was not gainfully employed.
This evidence created the reasonable
inference that Jabara's unexplained
wealth came from the narcotics con-
spiracy, which is relevant in a narco-
tics conspiracy case. See United
States v. Tramunti, 513 F.2d 1087, 1105
(2nd Cir.) cert. denied, 423 U.S. 832
(1975). It was not admitted to show
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conduct in conformance with a character
trait, but rather to show the likeli-
hood that she received funds from the
narcotics conspiracy. The trial court
properly admitted the evidence.
13. Rideout contends that there was
insufficient evidence to convict her on
Counts VI and VII of the indictment,
involving possession and distribution
of four ounces of cocaine on September
aa, 977. The concurrent sentence
doctrine makes it unnecessary for us to
consider Rideout's contention, because
she stands convicted on seven other
counts upon which she was sentenced to
terms of imprisonment that are equal
to, and run concurrent with, the terms
of imprisonment imposed for Counts VI
and VII. See United States v. Romano,
382 U.S. 136, 138 (1965); Barnes v.
United States, 412 U.S. 837, 848 n.16
A-41
(1973); Jordan v. United States,416
F.2d 338, 346 (9th Cir. 1969), cert.
denied, 397 U.S. 920 (1970).
The Government argues that the
trial court erred in granting Moore's
motion for judgment of acquittal as to
the conspiracy charge. We uphold the
ruling of the trial court that, viewing
the evidence in the light most favor-
able to the Government, the evidence
does not support a rational conclusion
that Moore was guilty beyond a reason-
able doubt of the conspiracy charge.
See United States v. Ramos, 558 F.2d
545, 546-47 (9th Cir. 1977); United
States v. Rojas, 554 F.2d 938, 943 (9th
Cir. 1977). We thus affirm the trial
court on this issue.
AFFIRMED
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