Petition — Williams v. United States

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R O pe ‘4 6 2 | Supreme Court, U.S,

FILED

No. | NOV 42 1980

gH: ROR we. CLERK |

IN THE Bie

Supreme Court of the United States

OCTOBER TERM, 1980

FLEUR WILLIAMS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

FARRELL C. GLASSER AND

BARRY TURNER

Attorneys for Petitioner

150 East 58th Street

New York, New York 10022

(212) 752-6610

QUESTIONS PRESENTED

1. Does the Fourth Amendment of the

United States Constitution permit Drug

Enforcement Administration Agents to

enter a third person's home to execute a

one year old arrest warrant for another,

without first obtaining a search warrant

where there are no exigent circumstances

or other exceptions to the warrant

requirement?

2. Did the trial Judge in the Federal

District Court err in not requiring the

government to produce citizen witnesses

at the hearing on the motion to suppress

the Physical Evidence? |

PARTIES BEFORE COURT OF APPEALS

1. David Manley = Appellant

2. Fluer Williams - Appellant

3. United States of

America - Appellee

(i)

TABLE OF CONTENTS

Questions Presented

Parties Before Court of

Pres 6 ye @ 8-6 ©« © « © e

Table of Authorities .....

Opinions Below ....«-«e«e-.

MerasGsGtigowm . «+ 0 « ew ew ow tw

Constitutional Provisions

Se ee

Statement of the Case ......

Reasons for Granting the Writ .

THERE IS A CONFLICT BETWEEN

THE U. S. COURT OF APPEALS

FOR THE FOURTH AND SECOND

CIRCUITS AS TO WHETHER TO

ALLOW LAW ENFORCEMENT AGENTS

TO ENTER A THIRD PERSONS HOME

WITH ONLY AN ARREST

WARRANT--ABSENT EXIGENT

CIRCUMSTANCES ....+ +. ~»

THE DECISION OF THE SECOND

CIRCUIT AFFIRMING THE

DECISION OF THE DISTRICT

COURT IN NOT REQUIRING THE

GOVERNMENT TO PRODUCE CITIZE™

WITNESSES AT THE HEARING ON

THE MOTION TO SUPPRESS

PHYSICAL EVIDENCE WAS

CONTRARY TO APPLICABLE

DECISIONS OF THIS COURT .. .

erat at a ee Sg gh ew

(ii)

Page

Appendix A - Opinion, U.S. Court of

Appeals, Second Circuit,

September 15, 1980

Appendix B - 1) Memorandum and Order

Re: In Camera Hearing

U. S. District Court,

Eastern District of New

York

- 2) Memorandum and Order

Re: Motion to Suppress

Physical Evidence

U.S. District Court,

Eastern District of New

York

Amended Memorandum and Order

Appendix C 1) Indictment

2) Arrest Warrant

3) Judgement, U.S. District

Court, Eastern District

of New York

(iii)

TABLE OF AUTHORITIES

Cases

Accarino v. US,

Chimel_v. California, 395

U.S. 752,

23 L.Ed.

89 S. Ct. 203

2d 685 (1969)

Se ee - New Ham sass:

<oae

443, 91 S.Ct.

Dorman _v. US, 435 F2d 385

isthe « DCs (1970) 7 . .

Fisher v. Volz, 496 F2d 341

(Cie 5: 3074) «

179 F.2d 456

2022

Government of Virgin Islands

v. Gereau, 502 F2d 914 (3rd

Cttaa eeee? « ‘s

In Re United States

965

Re £88 Ost s, 29TT) .

Johnson v. U.S., 333 U.S.

10, 68 S.Ct. 367,

2d 436 (1948) .

92 L.

Katz v. U.S., 389 U.S. 34

88 S.Ct. 507,

STG C2087). ss

19 L.Ed.

McDonald v. U.S., 335 U.S.

251, 69 S.Ct. 367,

L. Ed. 2d 436 (1948) dite

Miller v. U.S., 357 U.S.

2 L.Ed. 1332,

Payton v. New York,

78 S.Ct.

F2d

Ed.

301,

1190

U.S.

(No. 78- 5420 and 78-5421,

decided April 15,

1980)

(iv)

Page

28,

32,

Portomene v. U.S., 221 F2d

582 7 * . . . . . . . . . .

Roviaro v. U.S., 353 U.S. 53,

Ve: Bs te. Cees 1 LE. . 26

639 (1953) . . . . . . . . >

Sorrentino v. U.S., 163 F2d

627 . . . 7 . . a . 7 . . *

U.S. v. Alexander, 495 F2d

mi me & Pere i} er ee

U.S. v. Arboledo, F2d

ng (2d Cir., June 9, 1980)

U.S. V. Conforti, 200 F2d 365

U.S. v. Elgisser, 334 F2d 110

U.S. v. Houle, 603 F2d 1297 .

(8th Cir., 1979)

United States v. Jarvis,

560 F2d 494 (2d Cir., 1977)

U.S. v. On Lee, 193 F2d, 306

Se Mess BOE hb ee Bes

United States v. Prescott,

581 F2d 1343 (9th Cir.,

1978) . . - . 7 . . . . + +

United States v. Reed, 572

ee O13. CSE. Cil., Cerey .. .

U.S. v. Robinson, 325 F2d

See Cee a5 LOOEE 28 oe os

U.S. _v. Santiago, 327 F2d

575 ° ° . * ° . . * . ° * .

U.S. v. Tucker, 38 F2d 110. .

(v)

26,

United States v. Watson, 423

U.S. 411, 96 S.Ct. 820, 46

L.Ed. 2d 598 (1976) .... . 26

Wallace v. King bn,

case Citi, ceen 1, 189607) 5. 13

(vi)

No.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

FLEUR WILLIAMS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

FLEUR WILLIAMS - APPELLANT BELOW

PETITIONS FOR A WRIT OF CERTIORARI

TO REVIEW THE JUDGMENT OF

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

(vii)

OPINIONS BELOW

The opinion of the Court of Appeals,

decided September 15, 1980 (App. A) is

not yet reported.

The District Court's opinion (App. B

1) on the motion to suppress physical

evidence was not reported. The District

Court judgment is set forth at Appendix B

JURISDICTION

On September 15, 1980, the Court of

Appeals for the Second Circuit entered

its opinion affirming the District Court

decision below. The jur.sdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution 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

(viii)

cause, supported by Oath or

affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized."

The Sixth Amendment to the

Constitution provides:

"In all criminal

prosecutions, the accused

shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State

and district wherein the crime

shall have been conmitted,

which district shall have been

previously ascertained by law,

and to be informed of the

nature and cause of the

accusation; to be confronted

with the witnesses against

him; to have compulsory

process for obtaining

witnesses in his favor, and to

have the Assistance of Counsel

for his defense."

(ix)

| /

STATEMENT OF THE CASE

On the evening of April 12, 1979, at

about midnight, Drug Enforcement

Administration ("DEA") agents executed an

arrest warrant one year after the warrant

was issued at the home of Fleur

Williams. After entering Williams’ home,

the agents found various contraband, but

did not find the subject of the arrest

warrant. The DEA agents arrested Fleur

Williams and David Manley for possession

of the contraband. Williams was the

owner of the house and present at the

“time of the raid. Manley was visiting

Williams and was found to have two

thousand two hundred and twenty dollars

in his pocket (P. 26). Four other

people, three women and a man, were also

present but not arrested.

Donald Grant, also known as Danny

Warren, was the subject of that arrest

warrant which was issued on April 12,

1978 by a magistrate in the southern

district of New York. Subsequently,

after indictment for drug trafficing, a

superseding warrant for his arrest was

issued. These warrants listed the names

‘Danny Warren a/k/a/ Danny Williams a/k/a

Donald Grant a/k/a Rolls Royce Danny

a/k/a Champagne Danny. No description or

address was mentioned in the warrant.

All the DEA agents who testified at the

hearing on the motion to suppress the

physical evidence in the Federal District

Court were aware of this outstanding

warrant for Donald Grant. However, only

one agent, Agent Ward, had actually seen

Danny Warren in person, and Ward was not

present when the other agents entered

Williams's home (P. 24). Agent Ward in

his testimony described Danny Warren as a

man in his mid 30's, approximately 6'1"

to 6'2" (P. 25). Fleur Williams is a

man, 23 years of age and about 5'9"

tall. No agent had obtained an official

police description compiled as a result

of Danny Warren's prior arrest record (P.

36). The agents had established that

Danny Warren lived in Manhattan at two

locations; one, in Harlem and the other

in the upper east side. The agents had

established that Danny Warren was black,

West Indian and drove a Rolls Royce. For

9 months, from April, 1978 to January of

1979, there seemed to have been little

learned as to the whereabouts of Danny

Warren. DEA Agent Raymond Kobyra,

testified that in January of 1979, he had

a conversation with an out-of-state

confidential informant who told him that

Danny Warren rrior to January, 1979, had

made short visits to the United States

and on some of those visits had come to

New York (P. 28). The informant also

told Kobyra that Danny Warren, when in

New York on those previous occassions had

his Rolls Royce serviced at Haug Motors.

Again, from January until April, a period

of 3 months, there seemed to have been no

progress in the agents' investigation.

In the beginning of April, 1979, Agent

Kobyra went to Haug Motors for the first

time with a photograph of Danny Warren,

which he claims to have received from

Danny Warren's mother. With the use of

this photograph, Agent Kobyra questioned

the employees at Haug Motors. Only one

employee appeared to be able to identify

the photo displayed to him (P. 29). This

employee mistakenly thinking the

photograph was a picture of Fleur

Williams, a recent customer known to him

as Billy, gave the agent the address of

that customer. That employee, however,

indicated to Agent Kobyra that the person

he identified had only become a customer

of Haug Motors within the last 3 months,

a fact inconsistent with the information

Kobyra had received in January from his

Out-of-state informant (P. 39). Despite

this ineonsistency and after a delay of

two more weeks, Kobyra proceeded to 191

Berry Hill Court, West Hempstead, Long

Island, New York, the address given to

him by the employee at Haug Motors.

Kobyra displayed the same photograph he

had previously displayed to the employee

at Haug Motors to the local police and

mailmen; none of whom made an

identification. The photograph was also

displayed to two neighbors of Fleur

Williams at a house on Berry Hill Court

(P. 30). Neither of these neighbors had

ever spoken to Williams or seen him at a

close distance. Berry Hill Court

consisted of numerous houses, all of

which were occupied by white families

except for the Williams' home (P. 40).

Both neighbors, after identifying the

photos as an occupant of #191, were told

to call the agents when they saw him

arrive home. Neither neighbor was asked

to describe the individual they had

identified. Kobyra received a call late

on the evening of April 12 that someone

had driven up to and entered 191 Berry

Hill Court in a black chevrolet. The

neighbor did not see the person who

entered the house. After this call,

Kobyra and his fellow agents dietnden to

191 Berry Hill Court. Agent Kobyra and

Shea observed Williams at the front door

but did not recognize him to be Danny

Warren (P. 42). Williams was 5'9" and 23

years old as opposed to Warren, 6' and in

his 40's. Williams retreated into his

home. Agent Kobyra and Agent Shea

approached the front door of Fleur

Williams' home, displayed their weapons

and by the use or threatened use of

force, gained entry (P. 43). Agent Shea

immediately confronted Fleur Williams and

restrained him by the front door, placing

him in a prone sandh ton and handeuffing

him. Agent Kobyra proceeded up the

stairs into the kitchen to the rear door,

helped DEA Agent Papantonio and another

agent enter the premises and then

proceeded to search the house.

While in the kitchen, Kobyra observed

a scale (Exhibit 8), with white powder on

it (Exhibit 1), and on the kitchen

counter along side the scale, additional

white powder (Exhibit 2). Kobyra then

proceeded down a hallway and entered the

master bedroom, confronted a woman named

Shirley Faggart, spoke to her, and then

left her alone in that room (Pp. 33-35).

Kobyra further observed plastic bags of

marijuana under a glass table in the

hallway (Exhibits 5A-5F) and a strainer

and two spoons found on the kitchen

counter (Exhibit 9). Later Kobyra

returned to the master bedroom and found

on the dresser another bag of white

powder (Pp. 33-35), not seen by Kobyra

the first time in that room. Another DEA

agent, Papantonio, searched the master

bedroom closet after Kobyra had done so

and found a silver revolver on the top

shelf (Exhibit 10) (P. 35). After the

search of the house was completed, Kobyra

asked Fleur Williams, the owner of the

house, if he would consent to a further

search of the house. Kobyra testified

that Fleur Williams gave that consent and

the search revealed brown garbage bags

containing marijuana in a kitchen cabinet

(Exhibit 4), marijuana in an opaque

garbage bag on the floor of a bedroom

closet (Exhibit 6), two bottles of

lactose in a dresser drawer in the

bedroom (Exhibit 7), and a small

automatic pistol on a shelf in the

bedroom closet (Exhibit 11). The

defentants were given their Miranda

rights by DEA Agent Shea in the living

room of the house.

The defendants were charged in a four

count superseding indictment. The first

count charged the defendants, Fleur

Williams and David Manley, with

knowlingly and intentionally conspiring

to violate Section 841(a)(1) of Title 21,

United States Code. Count 2 of the

superseding indictment charged Fleur

Williams with knowlingly and

intentionally possessing with intent to

distribute approximately 188 grams of

cocaine in violation of Title 21, United

States Code, Section 841(a)(1). Count 3

of the superseding indictment charged the

defendant, David Manley, with knowlingly

and intentionally attempting to possess

with intent to distribute approximately

55 grams of cocaine in violation of Title

21, United States Code, Section

841(a)(1). The fourth count of the

superseding indictment charged the

defendant, Fleur Williams, with

knowlingly receiving a fire arm which has

been shipped and transported in foreign

commerce in violation of Title 18, United

States Code, Section 922(h) and 924(a).

This count of the indictment was later

severed from the indictment and excluded

from the trial.

A hearing on the motion to suppress

the physical evidence was held before the

Honorable Justice George C. Pratt in the

Federal District Court for the Eastern

District of New York. The Government

refused to identify and produce the

employee at Haug Motors who had

identified the photograph of Donald Grant

as Fleur Williams and also refused to

identify and produce the neighbors, the

only other identification witnesses.

Judge Pratt, however, did have an in

camera hearing with the neighbors, but

excluded defense counsel, allowing only

submission of suggested questions.

After the hearing on the motion to

Suppress, Judge Pratt held the entry

pursuant to the arrest warrant and

subsequent search to be valid but

suppressed all contraband found as the

result of the consent search, ruling that

said consent was not given freely and

voluntarily.

On September 6, 1979, the defendants

were tried before the Honorable Justice

George Pratt and a jury for knowingly and

intentionally possessing cocaine with

intent to distribute in violation of

Title 21, United States Code, Section 846

and for knowingly and intentionally

possessing cocaine with the intent to

distribute same in violation of Title 21,

United States Code, Section 841(a)(1).

At the end of the entire case, the court

dismissed the conspiracy count leaving

only the possession with intent to

distribute count as to each defendant.

After trial, the defendants were found

guilty of knowingly possessing cocaine

with the intent to distribute same in

violation of Title 21, United States

Code, Section 841(a)(1). Williams was

later sentenced to six years imprisonment

to be followed by a six year term of

special parole.

Fleur Williams appealed from his

judgment of conviction to the U.S. Court

of Appeals for the Second Circut. On

September 15, 1980, the Second Circuit

affirmed the lower court decision. The

appellant files this peition for writ of

certiorari from that decision.

REASONS FOR GRANTING THE WRIT

A. THERE IS A CONFLICT BETWEEN THE U. S.

COURT OF APPEALS FOR THE FOURTH AND

SECOND CIRCUITS AS TO WHETHER TO ALLOW

LAW: ENFORCEMENT AGENTS TO ENTER A

THIRD PERSONS HOME WITH ONLY AN ARREST

WARRANT AND ABSENT

EXIGENT CIRCUMSTANCES.

The Fourth Circuit held in Wallace v.

King, F. 2d _—s « (C..A.w 4, July 1,

1980) that a seacrh warrant would be

required absent an exception to the

warrant clause of the Fourth Amendment,

despite the existence of an arrest

warrant.

The Second Circuit held in United

States v. Arboleda, Slip Op. 3397, 3407

n. 6 (2nd Cir., June 9, 1980) that a

search warrant was not required; but only

"peasonable belief" that the party sought

will be found on the premises.

That is the issue in this case, i.e.,

whether the agents could lawfully enter

the home of Fleur Williams to execute the

arrest warrant for Donald Grant. Was

there not the necessity that exigent

circumstances existed before the agents

could enter into the premises of Fleur

‘Williams without a search warrant? It is

obvious from the delay in Agent Kobyra's

investigation over a period of one year

that there were no exigent

circumstances. Cases dealing with this

issue concern law enforcement officers

entering homes in pursuit of an

individual they wish to arrest and where

in some instances they had reasonable

cause to believe that the individuals had

committed felonies and had statutory

authority to make such an arrest. In the

case of Accarino v. U.S., 179 F.2d 456,

the court stated at page 458:

"tWhere, 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

warrant demands exceptional

circumstances as we held in

Johnson v. United States,

supra (333 U.S. 10, 68 S.ct.

367, 92 L.Ed. 436)...we cannot

allow the Constitutional

barrier that protects the

privacy of the individual to

be hurdled so easily.'" Supra.

The court emphasized that the need for

a search warrant was not just a mere

formality, but served a high function.

""We are not dealing with

formalities. The presence of

a search warrant serves a high

function. Absence some grave

emergency, the Fourth

Amendment has imposed a

magistrate between the citizen

and the police. This was done

not to shield criminals nor to

make the home a safe haven for

illegal activities. It was

done so that an objective mind

might weigh a need to invade

the privacy in order to

enforce the law. The right of

privacy has deemed too

precious to entrust to the

discretion of those whose job

it is the detection of crime

and the arrest of criminals.

Power is a heady thing; and

history shows that police

acting on their own cannot be

trusted. And so the

Constitution requires a

magistrate to pass on the

desire cf the police before

they violate the privacy of

the home. We cannot be true

to the Constitutional

requirement and excuse the

absence of a search warrant

without a showing of those who

seek exemption from the

Constitutional Mandate that

the exigencies of the

situation made the cost

imperative.'" Supra at page

458.

The mandate discussed in the Accarino

decision should have been followed by the

agents in this case. We know now after

the fact that the information the agents

relied upon was not reliable, was

inconsistent, and in the end, led to the

invasion of a persons home, not the

subject of the agents' investigation. If

an independent magistrate had reviewed

the information as required by Accarino,

then the invasion into Fleur Williams'

home may never have occurred. It seems

logical that if the courts reject the

right of the police to enter into

premises after having witnessed a felony

committed in their preserce, that it

would be just as improper for the police

to enter into those premises with an

arrest warrant, absent an address and

description. The court in the Accarino

case emphasized in their decision that a

government official cannot invade a

private home, unless (1) a magistrate has

authorized him to do so pursuant to a

search warrant, or (2) an immediate major

crisis in the performance of duty affords

neither time nor opportunity to apply to

a magistrate, i.e. the existence of

exigent circumstances. Neither of these

circumstances existed in the case at bar.

The warrant which Kobyra knew was

outstanding for one year did not describe

the person for whom they were looking

for, but only contained the name Donald

Grant along with three other aliases used

by that individual. It should be noted

that Kobyra nor any of the other agents

had the warrant with them the night they

———— lh Arlt lt ~~

entered Fleur Williams' home. At no time

did any of the agents announce their

purpose and authority when they entered

into the home of Fleur Williams (P. 31,

48). In Miller v. U.S., 357 U.S. 301, 2

L.Ed. 1332, 78 S.Ct. 1190. The court

stated at page 313:

"Every householder, the good

and the bad, the guilty and

the innocent, is entitled to

the protection designed to

secure the common interest

against unlawful invasion of

the house. The petitioner

could not be lawfully arrested

in his home by officers

breaking in without first

giving him notice of their

authority and purpose.

Because the petitioner did not

receive that notice before the

officers broke the door to

invade his home, the arrest

was unlawful and the evidence

seized should have been

suppressed."

Here again the same behavior which

this Court has found to be abhorrent was

practiced by the agents when they entered

into Fleur Williams' home. To allow

agents to enter into ones home based upon

an arrest warrant, especially an arrest

warrant that has been outstanding for a

long period of time without having a

magistrate determine whether probable

cause existed to believe that that person

can be found in particular premises would

make the language in the Fourth Amendment

a nullity. A considerable body of law

has developed to protect the individual's

belongings from unreasonable search and

seizure in his home. It would be

ridiculous to assert that the identical

considerations do not operate to

safeguard the individual himself in the

same setting. In the case of United

States v. Prescott, 581 F.2d 1343 (9th

Cir., 1978), the court stated at page

1349:

"The sanctity of the home is

no less threatened when the

object of police entry is a

seizure of a person, rather

than a thing. A magistrate's

disinterested determination

that government intrusion is

warranted is no less desirable

when the policeman's quarry is

a suspect rather than a piece

of evidence...The third

circuit is of the opinion that

in such a case, a search

warrant, not just an arrest

warrant is required.

Government of Virgin Islands

v. Gereau, (ord Cir., 1974)

584 F.2d 914, 928."

The Court in the Prescott case

emphasized that the difference between a

search warrant and an arrest warrant is

artificial and the Fourth Amendment makes

no distinction. In the case at bar, the

warrant which Agent Kobyra was carrying

merely indicated a name with three

aliases. It fell far short of what would

be required to enter ones home as

mandated by the Fourth Amendment. That

combined with the fact that the warrant

was a year old should have mandated that

the law enforcement officers take

whatever information they had to an

impartial magistrate before authority was

granted to enter into Fleur Williams'

home. The court, when issuing that

arrest warrant, did not foresee that in a

year's time that warrant would be used to

enter a third persons home. furthermore,

the arrest warrant lacked particularity,

a Fourth Amendment requirement, and,

therefore, could not be used as a

substitute for a search warrant as

mandated by the Fourth Amendment. The

Prescott court addressed this problem

when they stated at page 1350:

"The warrant, whatever it is

called, must describe ‘the

place to be searched,' here

apartment 544 and 'the persons

or things to be seized,' here

Duvernay and the parcels."

A warrant for the arrest of a suspect

may indicate that the police officer has

probable cause to believe the suspect

committed a crime; it affords no basis to

believe that the suspect is in some

strangers home. Reliance by police

officers on arrest warrants to enter

homes offers too many opportunities for

abuse, provides little comfort to a

citizen peacefully in his home and

affords insufficient protection against

invasion of his privacy. Unless there

are exigent circumstances, together with

an arrest warrant, the court should not

permit entry into a third persons home to

execute said warrant unless and before

all the facts the law enforcement

officers have in their possession are

weighed by objective and independent

magistrates. This issue was confronted

in the case of Government of Virgin

Islands v. Gereau, 502 F.2d 914 (3rd Cir.

1974). In that case, the police got a

tip from an informant that certain

suspects were at 527 Hospital Street, and

the FBI then proceeded immediately to

that location. The suspects were

involved in eight murders and were

heavily armed, giving rise to the

existence of exigent circumstances. When

the FBI arrived at the scene, three of

the five suspects the FBI were looking

for, came out of the building and were

immediately arrested. The arrest of

suspects corroborated the informa

informant had given and it was probable

that the other two suspects were still in

the building. Clearly this case is

distinguished from the case at bar in

that there existed exigent circumstances

requiring immediate action by the FBI to

enter the premises. In the case at bar

no such exigencies existed. The court in

the Government of Virgin Islands v.

Gereau stated:

"This court has made clear,

however, that arrest warrants

are not substitutes for search

warrants. See Fisher v. Volz,

496 F.2d 333, 3382-343 (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 exigent

circumstances where the police

officers also have probable

cause to believe the suspects

may be within." Supra.

The facts clearly indeate that Agent

Kobyra did not have a situation which

would constitute exigent circumstances

nor did he respond in a manner which

would lead one to believe there were

exigent circumstances existing. He

waited three months before going to Haug

Motors, two weeks before responding to

Berry Hill Court, and several more hours

before returning to Berry Hill Court to

enter the premises of Fleur Williams.

In Dorman v. U.S., 435 F.2d 385

(1970), the court held the Fourth

Amendment must give way where the

circumstances did not tolerate delay.

They discussed the principle of urgent

need, i.e. exigency, and they held that

only in light of exigent circumstances

the need of avoidance of the Fourth

Amendment requirement can be upheld.

Dorman involves the robbery of a clothing

store that took place only two hours

earlier. The victims in that robbery

made an identification of the defendants

immediately, and the entrance by law

enforcement officers was into the home of

the defendant himself. The court stated

at page 389:

"The requirements of a

warrant, as now generally

understood, rests primarily on

the conception that it is for

a judicial officer, and not

the prosecutor or the police,

to determine whether the

security of our society, which

is essential to the

maintainance of law, requires

that the right of privacy

yield to a right of entry,

search and seizure, and what

limitation and specification

of entry may be appropriate

and reasonable."

The proposition that the Fourth

Amendment should impose the same

restrictions on arrests as search and

seizures, was reiterated by Justice

Powell in the United States v. Watson

decision, 423 U.S. 411, 96 S.Ct. 820, 46

L.Ed. 2d 598 (1976).

The sanctity of the home is the most

important right the Fourth Amendment

seeks to protect. U.S. v. Houle, 603

F.2d 1297 (8th Cir., 1979), United States

v. Reed, 572 F.2d 412 (2nd Cir., 1978),

United States v. Jarvis, 560 F.2d 494

(2nd Cir., 1977). Judge Frank also

eloquently described the sanctity of the

home in his opinion when he said:

"A man can still control a

small part of his environment,

his house, he can retreat

thence from outsiders secure

in the we Sot that they

cannot get at him without

disobeying the Constitution.

That is still a sizeable hunk

of liberty worth protecting

from encroachment. A sane,

decent, civilized society must

provide some such oasis, some

shelter from publie serutiny,

some insulated enclosure, some

enclave, some enviolate place

which is a mans castle. U.S.

v. On Lee, 193 F.2d 306,

315-16 (2nd Cir.)(Frank J.

dissenting) aff'd 343 U.S.

747, 72 S.Ct. 967, 96 L.Ed.

1270 (1952)." Supra.

The Reed case, supra, reviews the

question under what circumstances the

Fourth Amendment permits federal law

enforcement officers to enter a suspects

home in order to effect a felony arrest

for which the officers have both

statutory authority and probable cause

but no search warrant. The case involved

purchases of heroine by the DEA from Reed

and another named Goldsmith and a

subsequent arrest of Reed and Goldsmith

in Reed's apartment some two and a half

months after the last transaction. In

that case, the agents knew both Reed and

Goldsmith in that they had purchased

heroine directly from the two of them.

Certainly, the agents had probable cause

to arrest Reed and Goldsmith and had the

statutory authority to do so, but the

court held that it was required for the

agents to procure an arrest warrant

before such an arrest could be made in

the home of Reed. The court stated that

a judge or magistrate should first review

all the facts before a warrant would be

issued to enter the home. Katz v. United

States, 389 U.S. 345, 357, 88 S.Ct. 507,

514, 19 L.Ed. 2d 576 (1967), Coolidge v.

New Hampshire, 403 U.S. 443, 454-55, 479,

91 S.Ct. 2022, Chimel v. California, 395

U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed. 2d

685 (1969). The Reed case reviewed the

holdings in Miller, supra, McDonald v.

United States, 335 U.S. 451, 453, 456, 69

S.Ct. 191, 192, 93 L.Ed. 153 (1948),

Johnson v. United States, 333 U.S. 10,

14, 68 S.Ct. 367, 92 L.Ed. 2d 436 (1948),

Dorman, supra, Katz v. United States, 389

U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576

(1967), and many other cases in which the

sanctity of the home is described as the

core of the Fourth Amendment and invasion

into ones home is just the type of

serious governmental intrusion that the

Fourth Amendment was designed to

circumscribe by the general requirement

of judicial determination of probable

cause. The court stated at page 424:

"We emphasize that no matter

who the officer is or what his

mission, a government official

cannot invade a private home,

unless (1) a magistrate has

authorized him to do so, or

(2) an immediate major crisis

in the performance of duty

affords neither time nor

opportunity to apply to a

magistrate." U.S. v. Reed,

Supra, page 424.

The court concurred with the findings

in the cases they reviewed and held that

the invasion into the home to arrest the

defendant was illegal without a warrant,

notwithstanding the fact that the agents

had probable cause and statutory

authority to make the arrest. In the

Reed case, the agents had actually

purchased drugs from the defendant and

had probable cause to arrest the

defendant. The court still required the

DEA agents to present their evidence to

an independent m¢istrate. In the case

at bar, the agents should have taken the

information they had acquired to an

independent magistrate in order to weigh

that evidence to see if there was

probable cause to believe that the

subject of their warrant was the person

residing at 191 Berry Hill Court. It

should be emphasized that the only

determination a magistrate had made in

this case was that there existed probable

cause that Danny Warren had violated the

narcotics law; not that he would be found

at Fleur Willams' home.

The Fourth Amendment forbids police

entry into a private home to search for

and seize an object without a warrant.

In the case of an arrest of a person,

where the invasion of personal privacy

interest is that much greater, the

protection afforded by the amendment

should not be cast aside based solely

upon the arresting officers subjective

notion of probable cause. A citizens

guarantee to be free from unreasonable

governmental intrusions does not rest

upon whether the intrusion was for the

purpose of an arrest or whether the

intrusion was for the purpose of search

and seizure. Both intrusions must be

dealt with on an equal basis in order to

preserve the validity of the Fourth

Amendment. If we said otherwise, a

police officer armed with an arrest

warrant, believing the’ subject of the

warrant was at a particular location,

could circumvent the warrant clauses of

the Fourth Amendment. Under those

circumstances, the police officer should

not execute on those premises without

first having an independent magistrate

weigh that evidence, unless exigent

circumstances exist. To say otherwise

would result in a flood of searches by

law enforcement officers armec with

arrest warrants only and thereby in

effect voiding the mandate of the Fourth

Amendment. At the core of the Fourth

Amendment, whether in the context of a

search or an arrest, is the fundamental

concept that any governmental intrusion

into an individual's home or expectation

of privacy, must be strictly

circumscribed. The courts have

unanimously held that the decision to

enter a dwelling should not rest with an

officer in the field but rather with the

detached and disinterested magistrate.

Johnson v. United States, 333 U.S. 10.

Justice Cooke of the New York State

Court of Appeals stated this proposition

in his dissenting opinion in People v.

Payton, 45 N.Y. 2d 300 (1978) (later

reversed by this Court, _ U.S. ,

No. 78-5420 and 78-5421, decided April

15, 1980). He said that prior judicial

approval should control any contemplated

entry, regardless of the purpose for

which the entry is sought. He went on to

say that arrest entries must be included

within the scope of the Fourth Amendment,

for while such entries are for persons,

not things, they are nevertheless

violations of privacy, the chief evil

that the Fourth Amendment was designed to

deter. The two conflicting interests

here are that on one hand the state has

an interest in apprehending felons and

maintaining an orderly society, and on

the other, the individual has an interest

in the maximum security within his home.

This security is not an absolute one, but

one which must be tempered in certain

circumstances when exigency exists.

Lacking these exigencies, a citizen

should be secure in the privacy of his

home unless a judicial officer has

determined otherwise. These guarantees

should be applicable not only in cases of

entry to search for and seize property,

but in instances of entry to search for

and seize persons as well. It is not an

onerous burden to place upon a police

officer to first obtain judicial approval

before entering ones home to make an

arrest. It would not have been an

onerous burden on Agent Kobyra to have

first gone to a magistrate, presented the

facts and let the magistrate make the

decision as to whether there was probable

cause to believe that the person named in

the arrest warrant issued approximately

one year earlier was then at 191 Berry

Hill Court.

This court adopted Justice Cooks'

dessenting opinion in Payton, supra, when

it reversed the New York Court of Appeals

decision. Payton v. New York--US--(No.

785420 and 785421, decided April 15,

1980). Justice Stevens stated at page 16

of Payton, supra:

", . .The Fourth Amendment

protests the individuals

privacy in a variety of

settings. In none is the zone

of privacy more clearly

defined than when bounded by

the unambiguous physical

dimensions of an individual's

home a zone that finds its

roots in clear and specific

constitutional terms: ‘the

right of people to be secure

in their ...homes... shall not

be violated'. That language

unequivocally establishes 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

intrusion. Silverman v.

United States, 365 US 505,

511. In terms that apply

equally to seizures of

property and to seizures of

persons, the Fourth Amendment

has drawn a fine line at the

entrance to the house. Absent

exigent circumstances, that

threshold may not reasonably

be crossed without a warrant."

The Payton decision addressed the

problem that the only way to adequately

protect the privacy of a house was to

seek a search warrant based on probable

cause the suspect was at home at a given

time. It was suggested that if a

magistrate has determined there is

justification for an arrest warrant to be

issued, it is constitutionally reasonable

to require him to open his doors to the

police and, therefore, an arrest warrant

implicitly carries a limited authority in

entering the suspect's dwelling.

However, in the case at bar the agents

had a year old arrest warrant and had no

known dwelling location for the subject

during that year. The address the agents

knew as the residence of Donald Grant had

long since been vacated. If the agents

had a reasonable belief that the subject

of their arrest warrant would be found at

the home of Fleur Williams, an

independant judicial officer should have

weighed their information before

authorization was issued to enter the

home of the petitioner. The implicity

authority to enter the house of the

subject of an arrest warrant discussed in

Payton, supra, could not apply to the

home of a third party. It is in this

situation that an independant magistrate

must intercede to insure the integrity of

the Fourth Amendment despite the

existence of an arrest warrant.

In the ease of United States v.

Jarvis, 360 F.2d 494 (2d Cir., 1977), the

underlying facts were very similar to the

case at bar. In that case, agents armed

with an arrest warrant for John Doe

entered into Jarvis' home and arrested

him pursuant to that John Doe warrant.

The warrant did not contain any

description of the person sought,

however, a co-defendant's wife made a

positive identification of Jarvis in a

photo and Jarvis' car was traced to his

address.

In the Jarvis case, the agents were

seeking to enter the home of the person

they believed was mentioned in the John

Doe warrant. In the case at bar, the

agents were seeking to enter a home, not

the home of the person who was the

subject of the arrest warrant. The John

Doe warrant, which the court stated, did

not sufficiently describe the person

sought, is much like the warrant for

Donald Grant in that there is no

description but only a series of four

names which are as nondescript as the

name John Doe. Since the agents had

never viewed Donald Grant, they knew as

much or less about Donald Grant as the

agents in the Jarvis case knew about John

Doe. The court in the Jarvis case stated

at page 495:

"If the prosecution were

permitted to arrest on the

basis of ‘John Doe' warrants

supplemented by extringent

evidence, the requirement for

a particularized warrant,

issued by a magistrate, would

become a nullity." U.S. v.

Jarvis, supra, page 495.

In adherence to the Jarvis decision,

it was incumbent on the agents to have

taken all the information they had

acquired concerning 191 Berry Hill Court

to a magistrate to determine whether

there was probable cause to believe that

the subject of the arrest warrant could

presently be found at 191 Berry Hill

Court. The federal agents waited for

approximately two weeks before going to

191 Berry Hill Court. The delay of a few

more hours to obtain a valid search

warrant from a magistrate would not have |

inconvenienced the agents.

The issue, whether a search warrant is

a constitutional prerequisite to every

search for a person named in an arrest

warrant on the premises of a third person

has not been decided by this Court. The

conflict in the U. S. Court of Appeals

was created whan the Fourth Circuit

decided Wallace v. King, F2d ,

(CA 4, July 1, 1980). This decision

conflicted with the Second Circuit;

decision in United States v., Arboleda,

Slip Op. 3397, 3407 n. 6 (2d Cir., June

9, 1980).

The Fourth Circuit in Wallace, supra,

noted that the issue was left undecided

in Payton v. New York, US .

27 CRL 3033 (1980). The Court found that

not to require a search warrant

controvened the "particularity"

requirement of the Fourth Amendment and

undercut the rationale upon which Fourth

Amendment jurisprudence is founded. The

Fourth Circuit reiterated that an arrest

warrant indicates only that there is

probable cause to believe the suspect

committed a crime, it affords no basis to

believe that the suspect is in a

stranger's house (Fisher v. Volz, 496 F2d

at 341).

If search warrant procedures are at

all meaningful for property searches,

then it should be meaningful also for

searches for persons. Searches precedent

to arrest, unbounded by search warrant

requirements and judicial determinations

of probable cause, become a possible

effective means of undercutting the

restrictions of the Fourth Amendment and

the policies behind them, and may lead to

police use of broad exploratory searches

for persons in order to provide lawful

presence and inadvertent discovery of

evidence. Therefore, when federal agents

have no warrant authorizing the entry

into a particular home and no

circumstances necessitating immediate

police action, it is constitutionally

imperative to preclude law enforcement

officers from effecting a forceable or

nonconsentual entry into a third person's

home to execute an arrest warrant.

Although it would be improper to judge

Agent Kobyra's actions by what resulted,

it is interesting to see that the result

was an invasion into the home of a person

other than that which was the subject of

the arrest warrant. If no contraband

were found in Fleur Williams' home, the

invasion by the DEA would have been

repugnent to our notions of privacy and

safety in our homes. The colored

judgment of law enforcement officials in

ferreting out crime must be reviewed to

prevent just such a mistake and to give

substance to the Fourth Amendment. To

accomplish this end, the conflict on this

issue must be resolved by following the

rationale of the Fourth Circuit.

B. THE DECISION OF THE SECOND CIRCUIT

AFFIRMING THE DECISION OF THE DISTRICT

COURT IN NOT REQUIRING THE GOVERNMENT

TO PRODUCE CITIZEN WITNESSES AT THE

HEARING ON THE MOTION TO SUPPRESS

PHYSICAL EVIDENCE WAS CONTRARY TO

APPLICABLE DECISIONS OF THIS COURT

Agent Kobyra was informed by the

employee at Haug Motors that the person

depicted in the photograph presented to

the employee was using the address, 191

Berry Hill Court. The employee's

testimony is the only testimony which

brought Kobyra to that location. It was

important to have that witness produced

in court so that the defense could

cross-examine the witness and determine

the basis for the identitteatien, how

well he knew the person he thought was

depicted in that photograph, what was the

name of the person depicted in the

photograph, hew often he saw the person

depicted in the photograph, and if the

identification was consistent with the

information Kobyra had received from his

confidential informant. Not only did the

court refuse to direct the government to

produce the witness and supply the name

and address of the witness, but also

refused to have an in camera hearing.

The only other witnesses who identified

the picture were the two neighbors, both

of whom were in one house on Berry Hill

Court. Their identities were not

disclosed nor were they produced in court

despite objections by the defense (pp.

62, 63). The community, and in

particular the block of Berry Hill Court,

consists of all white families. When the

agents showed the picture of a black

person to the neighbors without using a

photo aray, the procedure was so

Suggestive especially considering the

ethnic make-up of the community (all

white), that the identification must be

considered unreliable. The court should

have allowed the defense to question

these witnesses to see if in fact their

identifications were reliable. These

three witnesses constituted the essence,

core or main bulk of the agents alleged

reasonable belief that Donald Grant was

in the house. Denying defense counsel

the right to examine these witnesses,

denied the defense the opportunity to

show the court that the agents actions

were unreasonable. Nothing other than

the testimony of these three witnesses

could have given the agents reasonable

cause or probable cause to believe that

Donald Grant was in the home at 191 Berry

Hill Court. To deny defense counsel the

right to cross-examine the identification

witnesses was in fact to deny defense a

hearing on the motion to suppress the

physical evidence. It appears from the

courts memo from the in camera hearing

with the two neighbors that these

neighbors did not know Fleur Williams

very well, had never met him personally,

and although it is not clear, did not

have an opportunity to observe their

neighbor at a close distance. This

became apparent after the fact since

their identification was mistaken. If

these neighbors had been examined by

defense counsel, it could have been

determined whether the movements of Fleur

Williams were consistent with the

movements of Donald Grant as related by

the confidential informant. It is

important to note that the neighbor who

telephoned Agent Kobyra did not see Fleur

Williams, Donald Grant or anyone else in

particular, enter the home at 191 Berry

Will Court. All he saw was a black

chevrolet pull up to the house and

someone enter. The neighbor did not

specify who entered, whether he could see

him, or whether he could tell if more

than one person entered.

Disclosure of these citizen witnesses

is necessary to guard against any

fabrication by the agents and to

establish the reasonableness of the

agents conduct. It should be emphasized

that these citizen witnesses were not

confidential informants who supplied the

government on a continous basis with

information. the only reason the

government offered for not disclosing or

producing these witnesses was a fear by

the witnesses of some form of physical

reprisal (P. 38). This representation is

an unsubstantiated assertion and

unfounded. The courts have found that

even if there was such a likelihood, this

alone did not warrant the invoking of the

privilege of nondisclosure. In Re United

States, 565 F.2d 19 (2nd Cir., 1977). In

that case the court stated at page 22:

"However, the likelihood of

physical reprisal is not a

prerequisite to the invocation

of the privilege..." Supra,

page 22.

None of the three witnesses that made

the identification were shown to be

reliable. None of these witnesses had

given information to the agents on a

prior occasion. The only way a fair

determination of the issues on the motion

to suppress could have been resolved

would have been to examine these

witnesses. In Re United States, supra,

Roviaro v. U. S., 353 U.S. 53, 77 S.Ct.

623, 1 L.Ed. 2d 639 (1953); U.S. v.

Alexander, 495 F.2d 552, 553 (2d Cir.,

1974).

A discussion of the fairness of

producing a witness was discussed in

Roviaro, supra, at page 60.

"A further limitation on the

applicability of the privilege

arises from the fundamental

requirements of fairness.

Where the disclosure of an

informer's identity, or of the

contents of his

communications, is relevant

and helpful to the defense of

an accused, or is essential to

a fair determination of a

cause, the privilege must give

way...-Most of the federal

cases involving this

limitation on the scope of the

informants privilege have

arisen where the legality of a

search without a warrant is an

issue and the communications

of an informer are claimed to

establish probable cause. In

these cases, the government

has been required to disclose

the identity of the informant

unless there are sufficient

evidence apart from the

confidential communication."

Supra, page 60.

The courts have consistently held that

the identity of an informant must be

disclosed whenever the informants

testimony is relevant and helpful to an

accused. Portomene v. U.S., 221 F.2d

582; U.S. v. Conforti, 200 F.2d 365;

Sorrentino v. U.S., 163 F.2d 627. The

problem has always been one of balancing

public interest. Those interests involve

the flow of information as opposed to the

defendant's right to prepare his defense.

The only way in determining whether

the agents had reasonable cause to

believe that Donald Grant was in the

premises at 191 Berry Hill Court was to

question the employee at Haug Motors and

the two neighbors who identified the

photograph. Their testimony would have

been extremely significant in determining

the relevant factors on the motion to

suppress. It is important to note that

all the other information the agents had

gathered would not, in and of themselves,

give probable cause to believe Donald

Grant was located at 191 Berry Hill

Court. The courts have stated that

disclosure is compulsory whenever the

informants communications are essential

to the establishment of probable cause.

U.S. v. Tucker, 380 F.2d 204 (2nd Cir.,

1967); U.S. v. Elgisser, 334 F.2d 110;

United States v. Santiago, 327 F.2d 575;

United States v. Rosario, 327 F.2d 561

(2nd Cir., 1964); United States v.

Robinson, 325 F.2d 391 (2nd Cir., 1963).

The only information concerning 191 Berry

Hill Court was the information given by

the citizen witnesses and therefore, they

should have been disclosed, as was held

in the Robinson case, supra.

The government should have disclosed

and produced the citizen witnesses not

only to guard against fabrication of the

agents, but so that the reasonableness of

the agents actions, the reliability of

the informants statements, and the basis

for the informants knowledge could have

been properly determined. The

nondisclosure by the government of the

citizen witnesses in effect denied the

defendants an effective hearing on the

motion to suppress, and therefore, was in

violation of the defendants right of due

process and right of confrontation as

guaranteed by the Constitution.

CONCLUS ION

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

FARRELL C. GLASSER

BARRY TURNER

150 East 58th Street

New York, New York 10022

(212) 752-6610

Attorney for Petitioner

FLEUR WILLIAMS

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-—~p>—

Nos. 971, 996—September Term, 1979

(Argued April 25, 1980 Decided September 15, 1980)

Docket Nos. 79-1428, 79-1454

UNITED STATES OF AMERICA,

Appellee,

Vv.

DAVID MANLEY and FLUER WILLIAMS,

Appellants.

Before:

WATERMAN, MESKILL and NEWMAN,

Circuit Judges.

—

' Appeal from judgments of conviction entered in the

United States District Court for the Eastern District of

New York after trial before Hon. George C. Pratt and a

jury pursuant to which verdicts were returned finding

appellant Williams guilty of possession of narcotics

5569

with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), and appellant Manley guilty of attempting

to commit that crime contrary to 21 U.S.C. § 846.

Affirmed.

STANLEY SCHIMMEL, Brooklyn, New York, for

Appellant Manley.

BARRY TURNER, New York, New York, for

Appellant Williams.

Davip V. KIRBY, Assistant United States

Attorney, Eastern District of New York,

Brooklyn, New York (Edward R. Kor-

man, United States Attorney, Harvey

M. Stone, Assistant United States At-

torney, Eastern District of New York,

Brooklyn, New York, of counsel), for

the United States of America.

MESKILL, Circuit Judge:

Fluer Williams and David Manley appeal from

judgments of conviction entered in the United States

District Court for the Eastern District of New York

after a jury trial before Hon. George C. Pratt. Williams

was adjudged guilty of possession of narcotics with

intent to distribute, in violation of 21 U.S.C.

§ 841(a(1), and Manley guilty of attempting to

commit that offense, in violation of 21 U.S.C. § 846.

Numerous claims of error are raised by appellants, the

most hotly contested of which concerns the propriety of

5570

the entry made by agents of the Drug Enforcement

Administration into Williams’ home in order to execute

an arrest warrant for a fugitive whom they erroneously

believed to be on the premises. Appellants also

complain of certain evidentiary rulings made in the

course of the suppression hearing. In addition, Manley,

arrested in Williams’ home following the entry of the

agents, assails the sufficiency of the evidence upon

which his conviction for attempted possession of

narcotics is based. For the reasons which follow, we

deem these claims as well as others advanced by

appellants to be without merit and accordingly affirm

the judgments of conviction.

Pursuant to a lengthy suppression hearing, the

district court expressly found, or the uncontradicted

testimony established, the following. In early 1978, one

Danny Warren, whose true name was Donald Grant and

who used a number of aliases including Danny Williams

as well as the more colorful nicknames “Champagne

Danny” and “Rolls-Royce Danny,” was indicted in the

United States District Court for the Southern District

of New York for drug trafficking. Warren failed to

surrender and consequently, in April of 1978, a

warrant was issued for his arrest. The DEA investiga-

tion had revealed that Warren maintained two Manhat-

tan residences, but that significant activities concerning

his narcotics operations occurred on Long Island. The

fugitive was described in DEA files as a black male of

West Indian or Jamaican origin, approximately 6’0”

tall, of medium build and in his mid or late forties.

5571

Additionally, according to information credited by the

DEA, Warren was of a violent disposition, and was

likely to be armed.

Attempts to apprehend Warren were futile during

1978, but in January, 1979, DEA agent Raymond

Kobyra, who had participated in the grand jury

investigation but had never actually seen Warren,

received information from a reliable out-of-state in-

formant that Warren had been seen in the United

States the preceding month, that he made occasional

trips to the New York area and that his Rolls Royce

was frequently taken for repairs or servicing to Haug

Motors, a Manhattan foreign car dealership. Armed

with at least two photographs of the fugitive, including

one obtained from a woman believed by Kobyra to be

Warren’s mother, Agent Kobyra on April 12 paid a

visit to Haug Motors where one of the employees

identified Warren as a recent customer whose Rolls

Royce was serviced at the shop. A check of Haug

Motors’ records revealed that the individual presented

himself there as one Williams, that he owned a black

and tan Rolls Royce bearing Washington, D.C. license

plates, and that he listed his home address as 191 Berry

Hill Court, West Hempstead, Long Island. A further

check of the license plate number indicated that the

automobile was registered to a female named Williams

or Williamson who listed a home address in an

impoverished section of Washington, D.C.

That afternoon, Agent Kobyra proceeded to the

vicinity of 191 Berry Hill Court, where he questioned a

number of persons. Two neighbors, without prompting,

recognized Warren’s photograph as portraying the

occupant of the nearby one-family dwelling at No. 191.

5572

They described that individual as a black male of

Jamaican origin, in his mid-forties, approximately 5’8”

to 5/10” in height, and of medium build. They stated

that their neighbor maintained a lavish lifestyle, kept

irregular hours, was often away for extended periods of

time, and drove a Rolls Royce.

Later that night, at approximately 10:00 p.m., in

accordance with Agent Kobyra’s earlier request, one of

these neighbors telephoned Agent Kobyra and stated

that the occupant of 191 Berry Hill Court had arrived

at his home. After summoning a number of other DEA

agents for assistance for executing the warrant, Agent

Kobyra, accompanied by Agent Shea, drove past the

suspect’s home at about midnight and observed a black

male gazing out a picture window. After they parked

the car somewhat beyond No. 191, the agents noticed

that this individual had opened the front door and was

lingering just outside the entranceway.

After radioing instructions to two other agents to

position themselves at the rear of the house, Agents

Kobyra and Shea quickly approached the figure on the

landing above them, identified themselves as law

enforcement officers, and asked to speak with him. The

individual thereupon beat a hasty retreat to the interior

of the home, locking the door behind him. On reaching

the front landing, Agent Kobyra perceived either

through the glass of the front door or through an

adjacent window, a second black male, dressed in a

burgundy colored shirt, darting from the kitchen,

located in the rear of the house, towards other rooms.

One or both of the agents had by this time drawn their

revolvers, and by brandishing them induced the

individual they had initially observed to open the front

door.

5573

After having gained entry, Agent Shea, who like

Kobyra had participated in the investigation of Warren

but had never actually seen him, immediately placed

the individual face down, in a prone position, and

handcuffed him. The party apprehended was not in fact

Warren but appellant Williams, who is described as

over 6’0”" tall, of medium build, and 23 years of age.

Agent Shea also placed in custody one Deborah

Robinson, Manley’s sister-in-law, who was standing in

full view upon an elevated landing inside the house

when the agents burst in.

Apparently no conversation between Agents Kobyra

or Shea and Williams took place at this juncture, and

the state of mind of the agents upon confronting

appellant is not entirely clear. Agent Kobyra confirmed

in his testimony that immediately after gaining forcible

admittance to the house he exclaimed “Where's

Warren?,” thus intimating doubt that Williams was the

party sought. During the hearing, however, the agent

stated emphatically, and his testimony was credited by

the district judge, that given the strength of his belief

that Warren was on the premises, he was not prepared

to concede error until the house had been searched for

the fugitive and Williams had established his identity

as someone other than Warren through some authorita-

tive method such as fingerprinting.

Detailed reflection was impossible in any case at this

stage since events were unfolding rapidly. Immediately

after Williams had been subdued, Kobyra rushed

through to the kitchen, located in the rear of the house,

to admit Agents Papantoniou and Yaniello. Approxi-

mately 30 seconds to a minute had elapsed between the

forced admittance through the front door and the entry

5574

of the back-up agents through the kitchen door. At this

point, the agents observed in plain view on the kitchen

table a triple beam scale, together with spoons and a

strainer, and two mounds of a white, powdery

substance, one resting upon the scale and the other on

the table beside it.

The agents, aware of the presence of others in the

house, a! 1 in accordance with standard operating

procedure, conducted a security check of the premises.

Agent Kobyra proceeded to the main bedroom where he

encountered one Shirley Faggart, a companion of

Williams, reclining on the bed. He searched the room,

including its spacious closet, for other persons. Kobyra

then left, but shortly thereafter returned with Agent

Papantoniou, who discovered in plain view in the closet

a small caliber revolver, and upon a dresser, again in

plain sight, an additional packet of cocaine. Also

pursuant to this security check, the agents inadver-

tently discovered two bags of marijuana in the hallway

which had been placed under a glass-top table. At the

same time, Agent Yaniello discovered Manley, ap-

parently attempting to conceal himself in a small,

unkempt bedroom. Manley was placed in custody in the

same manner as Williams, that is, handcuffed while

lying face down in a prone position.

Having secured the house, the agents assembled its

various inhabitants in the living room and conducted a

pat-down of appellants which yielded from Manley a

wallet containing $2,222 in cash. Williams’ wallet was

recovered in the kitchen and was found to contain

identification documents for three different persons. At

about this time, a third black male, one John Harold,

accompanied by a woman and a child, arrived at the

5575

house, looking for Williams. The three were detained

and Harold was frisked and found to be carrying a gun.

After the suspects had been read their rights, and

each had signified his understanding, the agents

questioned them. Manley stated that he had come for a

social visit, that he had no knowledge of the presence in

the house of narcotics, and that he would not know

what cocaine looked like in any event. He further

claimed that the money found on his person was the

proceeds of his business, a food store located in

Brooklyn. Williams, for his part, explained that the

various identification documents found in his wallet

were related to trouble he was having with the motor

vehicle department over his license and stated that he

too was unaware of the presence of narcotics on his

premises. He noted that he had recently been visited by

two women friends, whose names he could not recall,

and that any contraband that might be found within

the house was no doubt left by them.

Subsequently, the agents requested permission from

Williams to conduct a full-scale search of the house to

which the agents believed Williams assented on the

condition that he could accompany them. During this

purported consent search, Agent Kobyra discovered in

the main bedroom a second handgun, several sacks of

marijuana and two bottles of lactose, a commonly used

dilutant of certain narcotics. Williams thereupon

withdrew his consent to the search, which ceased. All

detainees were then released save for Williams and

Manley who were held for booking.

While en route to the Metropolitan Correctional

Center, Williams stated to Agent Kobyra that the

cocaine belonged to him and not to Manley. The

5576

following morning, Manley, while being transported to

his arraignment in the Eastern District stated that the

police had arrested the wrong person, implying that

Harold was the intended purchaser of the narcotics

found in Williams’ house.

Appellants were subsequently named in a four count

indictment which averred, in its first count, that they

had conspired to possess the narcotics found in

Williams’ home with the intent to distribute them. The

second count charged Williams with possession and the

third charged Manley with attempted possession. The

final count, which was not submitted to the jury and

which was subsequently dismissed, charged Williams, a

previously convicted felon, with illicit possession of a

firearm. Appellants moved to suppress all evidence

obtained as a result of the arrests and the searches of

Williams’ house, essentially on the grounds that

probable cause did not exist to execute the arrest

warrant in Williams’ home, that the searches thereof

were unauthorized and beyond the lawful scope of the

arrests and that the statements made by appellants

were involuntary.

Following an extensive hearing, the district court

concluded that the agents, whose testimony was

credited, had acted in good faith, that they possessed a

sufficient basis to attempt to execute the warrant in

Williams’ home, that the limited security check of the

premises ancillary to the arrests was proper, and that

the statements made by appellants were voluntary.

Judge Pratt concluded, however, that the government

had not adequately demonstrated that Williams’

consent to the search of his house was freely given, and

consequently suppressed the evidence uncovered by

that search, to wit, the second handgun, certain bags of

5577

marijuana, and the two bottles of lactose. Further, after

an in camera examination by Judge Pratt of the two

neighbors interviewed by the DEA on April 12, 1979,

Judge Pratt held that Agent Kobyra’s testimony

concerning their pertinent statements and activities

was fully substantiated, and the court consequently

upheld the refusal of the United States Attorney to

reveal their identities to defense counsel.

Trial commenced on September 6, 1979, and at the

conclusion of the government’s case, the court, upon

motion, dismissed the conspiracy charge due to the

failure of the government to establish any agreement or

understanding between Manley and Williams. Subse-

quently, the jury returned verdicts adjudging Williams

guilty of possession and Manley guilty of attempted

possession of narcotics. Williams was later sentenced to

six years’ imprisonment to be followed by a six year

term of special parole. Manley was sentenced to a three

year term of imprisonment, which was suspended save

for six months, to be followed by three years’ special

parole. The propriety of these sentences has not been

challenged on this appeal.

Il.

Appellants contend that there existed insufficient

justification for attempting to execute the arrest

warrant at Williams’ home, and further assail the

district court’s refusal to order disclosure of the

identities of the two neighbors who had identified

Williams from Warren’s photograph on the ground that

their inability to examine the neighbors prejudiced

their ability to demonstrate the agents’ lack of

5578

reasonable belief that the fugitive was on the premises

of 191 Berry Hill Court. Further, the propriety of the

initial search made following the forcible entry of the

agents is challenged, and the introduction at trial of

evidence seized pursuant to that search is assigned as

error. Finally, Manley argues that his arrest was

without probable cause, that its fruits, including the

money found on his person and his inculpatory

statements, should have been suppressed, and that in

any event, the proof was insufficient to support his

conviction for attempted possession of narcotics. These

assertions are considered in turn.

A. Reasonable Belief or Probable Cause for the

Execution of the Arrest Warrant.

Citing what appears to them as laxity in the

investigative work which led the agents to 191 Berry

Hill Court, appellants argue, in essence, that there

existed insufficient probable cause to believe that the

fugitive was to be found within. They note that four

months elapsed between receipt of the original,

purportedly reliable information from the confidential

informant concerning Warren’s patronage of Haug

Motors and Agent Kobyra’s appearance there. Appel-

lants further note that the investigators never procured

an accurate physical description of their quarry,

although this information was available from their own

files or those of other law enforcement organizations,

and argue that had an accurate description been

obtained, the agents would have instantly realized their

mistake when they first confronted Williams. More-

over, they charge that the agents could not have

reasonably relied upon the recognition of Warren’s

5579

photograph by the two neighbors since those individ-

uals had had little or no contact with the occupant of

No. 191 and were unable to discern distinguishing

traits or features among blacks.

The law in this Circuit now holds that police may

enter a dwelling to execute an arrest warrant for a

person other than its owner or tenant where there

exists “reasonable belief” that the party sought will be

found therein. United States v. Arboleda, slip op. 3397,

3407 n.6 (2d Cir. June 9, 1980) (Friendly, J.); see also

United States v. Cravero, 545 F.2d 406, 421 (5th Cir.

1976), cert. denied, 429 U.S 1100 (1977). It would

appear that the “reasonable belief” standard, as it has

been applied in this jurisdiction, may require less

justification than the more familiar probable cause test.

But see United States v. Arboleda, supra at 3416

(Oakes, J., dissenting); United States v. Hammond, 585

F.2d 26, 28 (2d Cir. 1978). In the instant case, of

course, the agents believed they were entering the

residence of the person for whom an arrest warrant had

been issued. Putting aside, however, the question of

whether for present purposes 191 Berry Hill Court

could be deemed the residence of someone other than

the fugitive such that the agents would be required to

demonstrate some measure of certainty regarding the

presence there of the party sought before attempting to

execute the warrant within the house, we need not base

our disposition of the issue on adherence to the

“reasonable belief” standard as opposed to a probable

cause standard. A curso..” review of the relevant facts

establishes that the agents had ample justification, well

beyond that which would be required to satisfy the

potentially more stringent probable cause standard, in

5580

concluding that the elusive Warren would be found

within 191 Berry Hill Court. Warren was known to

utilize the alias “Williams.” An employee of a

Manhattan car dealership had identified a photograph

of Warren as a picture of a customer who owned a Rolls

Royce, used the name Williams, and lived at 191 Berry

Hill Court. Warren was reportedly in the United States,

and was believed to have previously directed criminal

activities centered on Long Island. The confusion

between Williams and Warren was understandably

exacerbated by the fact that they had similar lifestyles,

were both described as of Jamaican ancestry and had

certain physical likenesses, albeit upon closer inspec-

tion, they were different in appearance. Perhaps most

compelling, three citizens had made positive identifica-

tions of Williams as the fugitive being sought from the

photograph of Warren displayed by Agent Kobyra, and

one of the neighbors later called DEA headquarters to

say that the individual was currently at home. See

United States v. Arboleda, supra, at 3407 n.6. As the ,

agents approached, appellant hastily retreated to the

interior of his house where he briefly attempted to

barricade himself. In light of the foregoing, the agents

were fully justified in attempting to execute their

arrest warrant. While appellant was, as it later

developed, the victim of circumstance, those circum-

stances were no less real or compelling to the agents

because they ultimately turned out to be remarkable

coincidences. Cf. Hill v. California, 401 U.S. 797 (1971);

United States v. Rosario, 543 F.2d 6, 8 (2d Cir. 1976).

Adoption of appellants’ position would require that

the execution of an arrest warrant on the premises of a

third party, or at least in a residence whose right to

occupancy was in question, be accompanied by some-

5581

thing approaching a certainty of success. Such a

position, of course, must be rejected. The Supreme

Court long ago observed that “In dealing with probable

cause ... we deal with probabilities,” Brinegar uv.

United States, 338 U.S. 160, 175 (1949). It is therefore

of no consequence that a more thorough or more

probing investigation might have cast doubt upon the

lead Agent Kobyra was following. As we recently noted

in a factually different but theoretically analogous

context,

The essence of probable cause is a reasonable,

objective basis for belief in a suspect’s guilt,

although not necessarily proof of guilt beyond a

reasonable doubt.

* * * * *

[W]hile the rule of probable cause does impose a

requirement on police to act with more than mere

suspicion of wrongdoing, the rule also gives police

a permit to act with less than absolute certainty of

guilt.

United States v. Webb, slip op. 2597, 2605 (2d Cir.

Apr. 28, 1980) (emphasis in original).

Appellants’ further assertion that ‘ e attempted

execution of the warrant was attributable to the agents’

desire to search an innocent person’s home is equally

without factual foundation. Arguably, Williams could

have avoided the entry of the law enforcement officers

into his home had he permitted them to question him

as he lingered on his front landing. By fleeing to the

interior of his home after the agents had announced

their identities and intentions, Williams himself created

an exigent circumstance which plainly justified the

5582

. 3

forcible entry into his home and the subsequent

security check of the premises. United States v. Gomez,

slip op. 4853, 4370-71 (2d Cir. July 11, 1980); United

States v. Soyka, 394 F.2d 448, 453-54 (2d Cir. 1968)

(en banc, per Friendly, J.), cert. denied, 393 U.S. 1095

(1969).

‘' Our review of the facts leads us to conclude that the

agents, at a minimum, possessed probable cause to seek

to execute the arrest warrant at 191 Berry Hill Court,

and perforce, they had a “reasonable belief” in Warren’s

presence there. Indeed, given the resources and

evasiveness of the fugitive, they would have been

remiss in their duties had they not acted expeditiously

on the information Agent Kobyra had developed.

B. Nondisclosure of the Identities of Informants.

In assessing the agents’ conduct, the district court did

not err in refusing to compel the government to reveal

the identities of the individuals who had mistakenly

recognized the Warren photograph as portraying

Williams. Appellants’ counsel wished to examine these

witnesses, particularly the two neighbors, to test Agent

Kobyra’s testimony regarding their statements, and to

ascertain if they had a sufficient familiarity with the

occupant of 191 Berry Hill Court to render reasonable

the agents’ reliance on their recognition of the Warren

photograph.

Appellants bear the burden of demonstrating entitle-

ment to this information, In re United States, 565 F.2d

19, 23 (2d Cir. 1977), cert. denied, 436 U.S. 962 (1978),

a matter which lies within the sound discretion of the

district court. United States v. Hyatt, 565 F.2d 229,

231 (2d Cir. 1977). There is no rule or precedent

5583

requiring the government to reveal to defendants the

identities of persons supplying it with confidential

information. Rather, as was held in Roviaro v. United

States, 353 U.S. 53 (1957), the trial judge must in each

case weigh the interests of the defendant in obtaining

such information against the government’s desire to

encourage the free flow of such information from its

citizens. In striking these individualized balances, the

Supreme Court has indicated that the most persuasive

case for disclosure is where the examination of the

informant is necessary to vindicate a defense on the

merits and where the withholding of the information

will thereby compromise the truth-finding function of

the trial. Conversely, the Supreme Court has observed

that the need for disclosure is far less compelling when

it is sought in connection with pretrial issues, such as

the propriety of search or seizure, which do not bear

upon the ultimate question of guilt or innocence.

McCray v. Illinois, 386 U.S. 300, 311-12 (1967).

Noting the limitation placed upon Roviaro by

McCray, this Court has taken the view that while

disclosure is not absolutely precluded when sought in

regard to a suppression hearing, it will be deemed

appropriate only where the information supplied by

such persons constitutes the “essence,” “core” or “main

bulk” of the probable cause upon which the authorities

have relied, and where the critical information ascribed

to these individuals is not in any significant manner

corroborated by independent evidence. United States v.

Comissiv.:7, 429 F.2d 834, 838-39 (2d Cir. 1970).

It is readily apparent that Judge Pratt was, if

anything, considerably more accommodating to appel-

lants’ demand than was necessary. The data provided

by the informants in this case related solely to the issue

5584

of justification for attempting to execute the arrest

warrant, a matter even more remote from a defense on

the merits than the usual search and seizure con-

troversy, and light years away from the question of

actual guilt or innocence. Appellants sought to examine

these informants not primarily to determine if they had

in fact made the statements and supplied the

information attributed to them, but principally to

ascertain if their responses could reasonably have been

considered reliable by law enforcement agents. One

might well question whether, in light of McCray,

disclosure of their identities could ever be properly

compelled in such a situation. In any event, appellants’

access to this information was properly denied under

the test enunciated in United States v. Comissiong,

supra.

The government’s concession to the contrary notwith-

standing, it appears that there existed sufficient

evidence independent of the three misidentifications of

Warren’s photograph to have established reasonable

belief, if not probable cause, to think the fugitive would

be found at 191 Berry Hill Court. For example, Warren

was known to use the alias Williams, to drive a

distinctive Rolls Royce which was serviced at a

particular Manhattan dealership, and to make occa-

sional, surreptitious trips to the New York metropolitan

area where a grand jury had determined that he

previously directed a narcotics operation which was

centered on Long Island. Further inquiry revealed that

the Rolls Royce thought to belong to Warren was

falsely registered. The DEA agents observed from a

distance a physical resemblance between Williams and

their prey, and their suspicions were galvanized when,

upon their approach, appellant fled into his house.

5585

erates Cain a earenentnetnes

Reasonable belief to execute an arrest warrant requires

no more.

Even if the “essence,” “core” or “main bulk” of the

justification for execution of the warrant was derived

from the citizen-informants, the independent evidence

gathered by the agents as set forth above, was

unquestionably adequate to corroborate the statements

attributed by Agent Kobyra to those individuals and to

render disclosure of their identities unnecessary under

the second prong of the Comissiong test. For example,

each gave a roughly accurate physical and ethnic

description of the fugitive and each, without prompt-

ing, volunteered that Williams possessed a Rolls Royce.

Finally, Judge Pratt’s in camera examination of the

informants living near 191 Berry Hill Court completely

vindicated Agent Kobyra’s testimony, and thereby

allayed any reasonable concern that these individuals

lacked a basis for making the identification or that

Agent Kobyra had misrepresented their statements or

actions. Accordingly, there was no error in the district

court’s thoughtful resolution of this matter.

C. Legality of the Search Pursuant to the Execution of

the Arrest Warrant.

Appellants, on diametrically opposed grounds, chal-

lenge the legality of the limited search made pursuant

to the execution of the arrest warrant. Williams presses

the theory that the agents upon their entry into his

home instantaneously realized their mistake, that

further intrusion was consequently unwarranted and

that the agents should have immediately and apologeti-

cally withdrawn. Manley, on the other hand, urges that

the agents must have believed on entry that they had

5586 vd

apprehended the fugitive, and with their mission

accomplished, could not have lawfully rummaged

through the house.

The conflict between appellants’ contentions is

enlightening, for it dramatically demonstrates that in

all probability the agents did not reach any conclusion

as to the success of their endeavor at the very moment

they gained admission to Williams’ home. Neither

Agent Kobyra nor Agent Shea had ever seen Warren in

person, and following their forcible entry, made under

conditions which were reasonably perceived as danger-

ous, they did not engage Williams in a lengthy colloquy

about his true identity, nor did Williams volunteer his

name. On the contrary, Agent Kobyra almost immedi-

ately bolted to the rear of the house to admit the back-

up agents, and in the course of that activity observed

cocaine and narcotics paraphernalia in plain view.

Under the circumstances, there is every reason to credit

Agent Kobyra’s testimony, as Judge Pratt did, to the

effect that it was only after completion of the initial

search that he began to doubt that Williams was

Warren, and even then was not prepared to concede his

mistake until some dispositive procedure, such as

fingerprinting, had verified Williams’ true identity.

The agents’ states of mind are irrelevant, however,

for under either scenario posed by appellants, there is

no doubt that they were entitled to conduct the limited,

plain view search of the premises which Judge Pratt

properly assumed to have been permissible. Accepting

Williams’ theory that the agents spontaneously realized

their mistake, they were nonetheless entitled to look

through the house given the strength of their

justification in executing the warrant and their having

glimpsed, prior to entry, a second black male darting

5587

across the upstairs landing, who might have reasonably

been thought to be the elusive Warren. Accepting

Manley’s contention that the agents were initially

confident that they had captured the fugitive inside the

front door, they were nevertheless entitled to make a

“security check” of the premises, a practice which this

Court has most recently approved in United States v.

Gomez, supra, slip op. at 4372, and United States v.

Agapito, 620 F.2d 324, 335-37 (2d Cir. 1980), petition

for cert. filed, 48 U.S.L.W. 3822 (U.S. June 6, 1980).

See also United States v. Christophe, 470 F.2d 865, 869

(2d Cir. 1972), cert. denied, 411 U.S. 964 (1973). Under

these cases, agents effecting an arrest upon private

premises who reasonably fear that other persons are

lurking within who pose a threat to their safety or are

likely to destroy evidence, may conduct a pass-through

of the premises to determine the presence of any such

persons. The conditions warranting this type of limited

search were plainly present in the instant case because

the agents were aware both before and immediately

after entry of the presence of other people, and because

Warren was presumed to be of a violent nature, likely

to be armed, and possibly accompanied by criminal co-

conspirators. Accordingly, the arresting agents had

abundant reason for securing the premises and the

evidence in plain view discovered during the course of

this procedure was properly admitted at trial. United

States v. Liberti, 616 F.2d 34, 36-37 (2d Cir. 1980).

Judge Pratt’s delineation between the materials seized

pursuant to this search and those uncovered during the

impermissible “consent search” was carefully made and

his rulings in that regard are not clearly erroneous.

5588

D. Sufficiency of the Evidence Supporting Manley’s

Conviction

Manley argues that the evidence was insufficient to

support his conviction for attempted possession of

narcotics with intent to distribute. Preliminarily, he

contends that his arrest was unjustified and that the

cash horde discovered on his person and: his incriminat-

ing statements made pursuant to his arrest should have

been swpressed. Further, he asserts that the jury could

not have properly concluded that his behavior rose to

the level of a criminal attempt to violate the narcotics

law. We disagree.

There is no substance to Manley’s initial argument

since at the time he was detained the agents had

probable cause to believe he had engaged in a criminal

act. It will be recalled that his arrest came after the

agents had spotted him running from a room in which a

substantial quantity of cocaine and narcotics parapher-

nalia were in plain sight and some portion of that

cocaine was in the process of being measured. Manley

thereupon attempted to conceal himself from the

agents. Cf. United States v. Gomez, supra, slip op. at

4370. Under these circumstances, the agents were

justified in placing him in custody, United States v.

Webb, supra, slip op. at 2605-08. Consequently, the

money found on his person and his subsequently

uttered inculpatory statements were properly received

at trial.

We also reject appellant’s second contention, that his

behavior fell short of an illicit attempt. There is no

general federal statute proscribing attempt, and it is

therefore actionable only where, as in the present case,

a specific criminal statute makes impermissible its

5589

attempted as well as actual violation. United States v.

York, 578 F.2d 1036, 1038 (5th Cir.), cert. denied, 439

U.S. 1005 (1978). This Court, along with the Fifth

Circuit, has adopted the view set forth in Section 5.01

of the American Law Institute’s Model Penal Code

(Proposed Official Draft 1962), that the requisite

elements of attempt are an intent to engage in criminal

conduct and the performance of acts which constitute a

“substantial step” towards the commission of the

substantive offense. United States v. Jackson, 560 F.2d

112, 117-20 (2d Cir.), cert. denied, 434 U.S. 941 (1977);

United States v. Stallworth, 543 F.2d 1038, 1040 (2d

Cir. 1976); see also United States v. Mandujano, 499

F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 US.

1114 (1975), and see United States v. Alvarez, 610 F.2d

1250, 1254 n.3 (5th Cir. 1980); United States v.

Oviedo, 525 F.2d 8&1, 885-86 (5th Cir. 1976).

A substantial step must be something more than

mere preparation, yet may be less than the last act

necessary before the actual commission of the substan-

tive crime, and thus the finder of fact may give weight

to that which has already been done as well as that

which remains to be accomplished before commission of

the substantive crime. United States v. Jackson, supra,

560 F.2d at 118-19. In order for behavior to be

punishable as an attempt, it need not be incompatible

with innocence, yet it must be necessary to the

consummation of the crime and be of such a nature that

a reasonable observer, viewing it in context could

conclude beyond a reasonable doubt that it was

undertaken in accordance with a design to violate the

statute.

As we noted in United States v. Busic, 549 F.2d 252,

257 n.9 (2d Cir. 1977), “Judicial inquiry into whether a

defendant is chargeable with an attempt is necessarily

5590

predictive and focuses on the point when the accused’s

conduct has progressed sufficiently to minimize the risk

of an unfair conviction.” A second useful formulation

may be found in United States v. Monholland, 607 F.2d

1311, 1318 (10th Cir. 1979):

The cases universally hold that mere intention to

commit a specified crime does not amount to an

attempt. It is essential that the defendant, with the

intent of committing the particular crime, do some

overt act adapted to, approximating, and which in

the ordinary and likely course of things will result

in, the commission of the particular crime.

Whether conduct represents a substantial step

towards the fulfillment of a criminal design is a

determination so dependent on the particular factual

context of each case that, of necessity, there can be no

litmus test to guide the reviewing courts. With respect

to the case at bar, however, it is clear that the district

judge properly submitted the matter to the trier of fact,

and that the jury’s verdict was supported by evidence

amply demonstrating both essential elements of

criminal attempt. There can be no doubt that the

evidence warranted a finding that Manley possessed the

requisite state of mind. The circumstances constituting

the probable cause for his arrest have been noted above

and plainly bespeak an evil intent. Additionally,

following his detention he was found to be carrying a

large sum of money, roughly equivalent to the purchase

price of the quantity of cocaine found on the scale. His

explanations for his presence at Williams’ home and for

the extravagant amount of cash he was carrying were

unpersuasive if not inherently improbable. Certain of

5591

his post-arrest statements could reasonably have been

construed as falsely exculpatory while others might

well be interpreted as admissions. Furthermore, he took

the stand at trial and the jury was entitled not only to

reject his testimony, but to draw adverse inferences

from what could reasonably have been viewed as a

fabrication. United States v. Tramunti, 500 F.2d 1334,

1338 (2d Cir.), cert. denied, 419 U.S. 1079 (1974).

A somewhat more difficult question arises with

respect to the second essential element of intent,

namely, the proximity of Manley’s conduct to the

accomplishment of the crime. In essence, Manley is

being punished for intending to purchase narcotics, and

in furtherance of that design, carrying to Williams’

home a sufficient amount of cash to consummate the

transaction and participating in the weighing of the

contraband. There is no challenge to the court’s

instruction on this facet of attempt, and Judge Pratt

properly charged the jury that in order to find Manley

guilty, his conduct, objectively evaluated, must have

been a “substantial step” towards the acquisition of

narcotics. The issue posed on appeal is simply whether

Manley’s actions as described above can, as a matter of

law, be viewed as having crossed the frequently

imperceptible boundary from preparation into the

forbidden territory of attempt. We answer this question

in the affirmative.

By his own testimony, Manley enjoyed only the most

casual relationship with Williams, deriving almost

entirely from Williams’ occasional purchase of a

sandwich at Manley’s Brooklyn food store. Notwith-

standing the insubstantiality of their acquaintance,

Manley asserts that on Thursday, April 12, 1979, he

5592

received, for the first time, a purely social invitation to

visit Williams at home that very night. Manley, who

testified to working long and regular hours at his store

further claimed to have accepted that week-night

invitation, though he had never been to Williams’ home

before. He claimed that after having closed his store at

10:00 p.m., and after having already returned home

and eaten dinner, he drove a considerable distance, late

at night, from his home in Brooklyn to Williams’ home

in West Hempstead, Long Island, purely for purposes of

socializing.

More significantly, Manley brought with him on this

social call, a very considerable amount of cash, the

nocturnal transportation of which, through a high-

crime area of Brooklyn seems most surprising both

because it was unnecessary to his visit’s reputed

purpose and in light of his earlier assertion that he felt

Brooklyn to be sufficiently dangerous as to require him

to carry a gun. Manley explained that a portion of this

money was to be used the following day for legitimate

business expenses; however, the jury was fully entitled

to reject that partial justification, particularly in light

of the fact that the amount of cash Manley was

carrying, according to expert testimony, was roughly

equivalent to the wholesale purchase price of the

quantity of cocaine found on the scale seized in the

kitchen. It bears repeating in this connection that

Manley was seen running from a room in which cocaine

' was found lying in the open, both on the scale and on

the table. Cocaine is a powdery substance, soluble in

liquid and otherwise easily susceptible to spoilage or

unintended dispersion, and the jury could thus have

properly concluded that at the time the agents made

5593

“=.

their approach to the house, Manley himself was

engaged in its weighing. His attempt to conceal himself

does little to bolster his claim of innocence.

Under these circumstances, we decline to reverse the

jury’s determination that Manley’s conduct constituted

a “substantial step” towards the actual possession of

narcotics. We recognize that this question is always a

troublesome one for both judge and jury, and it

presents a particularly thorny issue when the offense

being attempted is the simple possession of a substance

which is easily concealed, rather than mechanically

more complex crimes, such as bank robbery, which

involve numerous preliminary steps uniquely criminal

and generally incompatible with innocent purpose.

Despite the evidentiary difficulties inherent in

establishing a criminal attempt to possess narcotics,

courts have sustained verdicts where the evidence

might be viewed as less compelling than the instant

case. See United States v. Mandujano, supra (receipt of

$650 from undercover agcnt in exchange for unfulfilled

promise to procure narcotics held a “substantial step”).

On review of the proof submitted in the case at bar, we

find that the jury was justified in concluding that

Manley’s conduct was part of an attempt to possess

narcotics. Indeed, it is hard to conceive of any

additional preliminary steps which he could have taken

short of the actual acquisition of the narcotics. In sum,

the facts of this case render the likelihood of an unfair

conviction minimal.

We have carefully considered the various other claims

of error raised by appellants and find them to be

without sufficient merit to warrant discussion.

The judgments of conviction are affirmed.

5594

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Ca he Soe 66 fw se X DOCKET NO.

79 CR

UNITED STATES OF AMERICA, 249(S)

MEMORANDUM

- against - DECISION

* FLEUR A. WILLIAMS and

DAVID MANLEY,

Defendants.

PRATT, J:

An in camera hearing was held on July

13, 1979, at which the court questioned

the two "neighbor witnesses" who had been

described in earlier testimony on the

suppression hearing as people who had

identified the person living at the home

of defendant Fleur Williams as the

individual shown in the photographs which

are in evidence as exhibits 13 and A.

The court questioned the witnesses

and learned from witness #1 that two

agents, Kobyra and another whose name was

forgotten, came to the house on April 12,

1979, and asked if #1 knew the person

-l-

living in the premises at 191 Berry Hill

Court. #1 acknowledged having seem him

going in and out. Kobyra showed #1 a

photograph which #1 thought was Exhibit

A. #1 identified the picture as being

the person seen going in and coming out

of the house and told Kobyra that Kobyra

said they wanted to catch up to the

person in the photograph and asked if #1

would call him the next time #1 saw the

car around the place. Kobyra stated that

the person in the photograph might be out

of town and they might not see him soon,

but telephone numbers were exchanged.

Later in the day, at about 6:30 or

7:00 p.m., Kobyra called #1 to see if

anything had happened and was told

nothing had. At about 9:30 or 10:00

p.m., #1 saw, not the Rolls Royce but the

black Chevrolet pull into the garage at

191 Berry Hill Court, but did not see who

was in the car. #1 called Kobyra and

reported to him that the black car had

been driven into the garage.

#1 also testified that the man in

question had been living alone at the

subject premises and that a cleaning

woman came in about once a week. #1 had

never seen the Rolls Royce being driven

but had seen it washed on some occasions

in the driveway, and had seen it parked

in the two car garage. #1 testified that

the man in question had lived in the

subject premises for 4 or 5 months before

April, 1979. #1 had seen the Individual

both in daylight and at night as he was

coming and going from the premises. #1

was not present in the neighborhood when

the agents arrived and carried out their

raids.

With respect to witness #2, Kobyra

made the same approach as with #1. When

asked about knowing the person living in

191 Berry Hill Court, #2 responded "you

-3-

mean the one with the Rolls Royce?".

When then shown the photograph which #2

thought was Exhibit A, but might have

been Exhibit 13, #2 said that it was the

man who! lived at the subject premises.

#2 had seen the person coming and going,

had never talked to him personally, and

had never been closer to him than across

the street. #2 agreed to notify Kobyra

if the resident of the subject premises

should return. #2 did not thereafter

talk to Kobyra or any of the other

agents, and #2 was not present in the

neighborhood when the agents arrived for

the raid. .

Both #1 and #2 testified that agent

Kobyra had done all the talking for the

agents, had not said he was looking for a

black man or for a West Indian, had not

initially brought up the Rolls Royce, and

had not mentioned any names of the man he

was looking for.

~_— =<

Both #1 and #2 testified that they

were fearful of being identified in this

matter and desired that their identity be

kept secret. After hearing the

witnesses' testimony, the court was

satisfied that there was a reasonable

basis for keeping the identity of these

two witnesses confidential, that their

testimony has no bearing on the guilt or

innocence of the defendant, and that the

government's requests for the in camera

hearing and that their testimony be

sealed were justified. The court ordered

that the record be sealed, indicating

that this memorandum would be the

information made available to defendant

for purposes of the hearing and the

motion.

Dated: Westbury, New York

July 17, 1979.

~ GEORGE C. PRATT ———

U. S. DISTRICT JUDGE

o$-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

PE AR ORO LR EO ee | ae a X DOCKET NO,

79 CR 249

UNITED STATES OF AMERICA,

MEMORANDUM

AND ORDER

- against -

DAVID MANLEY and

FLEUR A. WILLIAMS,

Defendants.

PRATT, J:

Possessing a one year old arrest

warrant for Donald Grant, and believing

in good faith that he was in the single

family residence at 191 Berry Hill Court,

West Hempstead, Nassau County, New York,

DEA agents, at about midnight on April

12, 1979, forcibly entered the house, saw

scales and white powder on the kitchen

counter, restrained the liberty of the

seven occupants, searched the house for

Donald Grant, discovered numerous items

of contraband and formally arrested the

two defendants, David Manley and Fleur A.

Williams,, who have been indicted for the

-l]-

conspiracy and substantive violations of

distributing cocaine and possessing it

with intent to distribute.

Both defendants have moved to

suppress the following evidence taken by

the agents from the premises:

Hearing

Exhibit # Description

] Cocaine found on sale

in kitchen

2 Cocaine found alongside

scale in kitchen

3 | Cocaine found in bag on

dresser in bedroom

4 Marijuana found in

brown garbage bags in

kitchen cabinet

5A - 5F Marijuana found in

clear plastic bags

under glass top table

in hallway

6 Marijuana in opaque

garbage bag on floor of

bedroom closet

7 Two bottles of lactose

found in drawer of

dresser in bedroom

8 Weighing scale found on

kitchen counter

Hearing

Exhibit # Description

9 Strainer and two spoons

found on kitehen counter

10 Silver revolver found

on shelf of closet in

bedroom

1] Small automatic pistol

found on shelf of

closet in bedroom

In addition, defendant Manley seeks

to suppress some $2,200 in cash (Ex. 12)

found when agents searched his person

upon his arrest, as well as certain

statements made by him at the premises

and on the following day while traveling

to or from the courthouse in Brooklyn for

arraignment. Defendant Williams, also

seeks to suppress certain statements made

by him at the premises.

The court held an evidentiary hearing

that began on June 1, 1979. Before the

date scheduled for continuation of the

hearing, however, defendant Williams was

seriously injured in an accident and

-3-

spent several days in the hospital with

two broken arms. When defendant Williams

had recovered sufficienty, the hearing

was continued on July 6, 1979, at the end

of which the court requested to hear the

testimony of two neighbor witnesses in

camera. Decision on the motion was

reserved, and a briefing schedule

established whereby all briefs were to be

submitted to the court by July 30, 1979.

This memorandum and order constitutes the

court's findings of fact and conclusions

of law.

In April, 1978, a warrant was issued

out of the United States District Court

for the Southern District of New York for

the arrest of one Donald Grant, a person

known to DEA agents as a black Jamaican

male, a “high roller" who lived well,

dressed well, spent a lot of money, and

traveled around and out of the country .

frequently. Grant was known by a number

of aliases, including Danny Warren, Danny

Williams, Champagne Danny, and Rolls

Royce Danny.

In early 1979, agent Kobyra received

information from a previously reliable

out of state informant that Donald Grant

often got his Rolls Royce serviced at a

dealership in Manhattan called Haug

Motors, that he had seen Grant in the

United States as late as December, 1978,

“that Grant often made trips in and out of

the United States for short periods of

time and that some of those trips were to

New York. Kobyra then went to Haug

Motors where he showed two different

people several photos, including one of

Donald Grant. One of the employees

recognized grant and identified him as a

customer. Haug Motors' records disclosed

that the car, a brown and black Rolls

Royce with Washington, D.C., license

plates, was owned by a man named

o§-

Williams, one of Grant's aliases, who

lived at 191 Berry Hill Court.

Kobyra went to the neighborhood of

191 Berry Hill Court and spoke to the

mailman, the local police, and neighbors,

showing them the photograph of Donald

Grant which had been identified by the

Haug Motors employee. Two of the

neighbors say they recognized the

photograph as that of a person living at

191 Berry Hill Court. Each said that he

was a night person, with no steady work

and drove a black and brown Rolls Royce

with Washington, D.C., license plates as

well as a black Chevrolet Monte Carlo.

He seemed to come and go from time to

time, and frequently be gone for extended

periods of time. A check of the license

plate of the Rolls Royce showed that it

was registered to an address in a slum

area in Washington, D.C., and the name on

the mailbox there was that of a female

=§-

called either Williams or Williamson.

Kobyra asked each of the neighbors

who had identified the photo to notify

him if they saw the individual return to

the house. That evening, Kobyra received

a call from one of the neighbors who

stated that the individual living at 191

Berry Hill Court had just returned home

and was presently there.

Kobyra called other DEA agents and

advised them to meet Kobyra and agent

Shea at the premises. Kobyra and Shea

traveled to the premises together,

arriving shortly before midnight. After

conferring with agents Yanniello and

Papantoniou, Kobyra and Shea drove down

Berry Hill Court past #191. They noticed

a black male standing in front of a

picture window in the living room,

looking out onto the street. They parked

their car beyond #191 and then saw that

the person who had been standing in the

oFa

window was now outside or in the doorway

with door open.

Kobyra advised agents Yanniello and

Papantoniou to secure the rear of the

house. Kobyra and Shea then approached

the house. When Kobyra identified

himself to the man standing in the

doorway and said he wanted to talk to

him, the man slanmed the door and locked

it. Kobyra and Shea tried to get in.

One drew his gun and pointed it at the

man through the window alongside the

door. At that point the man, later

identified as defendant Williams, opened

the door.

The two agents entered the house

which was a high ranch type with a small

foyer in front of the door, with steps

leading down to a lower level, and up to

the main level of the house. Shea

immediately put Williams on the floor of

the foyer, and Kobyra ran up the stairs

and through the kitchen to the back door

in order to let agents Yaniello and

Papantoniou in. The back door was nailed

shut and had to be forced open by the two

agents from the outside. As Kobyra ran

through the kitchen to the back door he

saw on the counter in plain view scales,

(EX. 8), white powder, (Exs. 1 & 2), a

strainer and spoons (Ex.9).

After helping the other two agents to

get in, Kobyra began to search through

the house to find Donald Grant. In a

back bedroom he found Shirley Faggart

sitting on a bed. He also saw white

powder in a clear plastic envelope (Ex.

3) on the dresser. A quick search of the

bedroom closet produced a silver revolver

(Ex. 10) which was in plain view. Kobyra

went elsewhere in the house which was

also being examined by other agents, to

find Donald Grant. In the hall under a

glass top table were six clear plastic

-9-

bags of marijuana (Exs. 5A - 5F). In the

house at thet time were defendants

Williams and Manley, Manley's wife and

child and Williams' girlfriend. While

the agents were there, another couple

arrived. All seven of them were

assembled in the living room, read their

Miranda rights, and questioned about the

circumstances.

Donald Grant was nowhere to be

found. Apparently, in identifying the

photograph shown to them by agent Kobyra,

the employee at Haugh Motors as well as

the two neighbors had identified

defendant Fleur Williams for the person

in the photograph, Donald Grant.

Agent Kobyra testified that after the

initial excitement calmed down the

defendant Williams had been given his

Miranda rights in the living room,

Williams, on request "consented" to a

more thorough search of the premises. In

-10-

the course of that search, conducted

after all of the occupants in the house

had been assembled at gunpoint in the

living room and after the premises had

been completely secured, agents

discovered four large brown plastic

garbage bags of marijuana (Ex. 4) inside

a closed cabinet in the kitchen, two

bottles of lactose (Ex. 7), used for

cutting cocaine, in a dresser drawer in

the bedroom, a small automatic pistol

(Ex. 11) in the closet in the bedroom and

another large bag of marijuana (Ex. 6) on

the floor of a closet. The government

has failed to show that Williams'

"consent" to this second search was

freely and voluntarily given.

Consequently, the motion to suppress

Exhibits 4, 6, 7 and 11 is granted.

All else on this motion depends on

the constitutionality of the agents'

entering of the premises. Exhibits 1, 2,

-ll-

3, 5A through 5F, 8, 9 and 10 all were in

plain view of the agents as they went

through the house seeking to find Donald

Grant in order to arrest him. Based on

those discovered drugs and drug

paraphernalia the agents had probable

cause to arrest Manley and Williams.

Exhibit 12, the $2,200 taken from

defendant Manley, was obtained on a

search incident to Manley's arrest. All

of the statements sought to be suppressed

were made after Miranda warnings had been

given, and there is no clai. that they

were not voluntary statements.

Manley's claim that he did not hear

or understand the Miranda warnings is

rejected by the court. While Manley does

suffer from some loss of hearing, the

court finds that he understood what he

had been told and also that he understood

that he had no obligation to speak either

in explaining why he had $2,000 cash on

=} %-

him, or, the neaxt day while travelling

with the agents, in telling the agents

they had let the wrong guy go when they

let the buyer leave.

Thus, the central issue presented by

defendants is whether the agents had any

right to be in 191 Berry Hill Court in

the first place. If they did not, then

of course, contraband in the house could

not lawfully be seized even though it was

in plain view of people inside the

house. Defendants assert that the agents

did not act in good faith, that they did

not believe that Donald Grant was in the

house, that the warrant for the arrest of

Donald Grant was stale, having been

issued approximately one year earlier,

and that the agents simply used the

warrant for Donald Grant's arrest as a

pretext for forcibly entering defendant

William's house at a time when they knew

-13-

or suspected that contraband was there.

Defendants also argue that even when

they have an arrest warrant, government

agents may not enter and search a house

for a person without having, in addition,

a search warrant. Even if no search

warrant is required, defendants argue

that the agents lacked probable cause to

believe that Donald Grant, the subject of

the arrest warrant, was actually in the

premises. As a third argument,

defendants claim that the search of the

house was too extensive and too intensive

to be authorized under the guise of

searching for Donald Grant in order to

arrest him. Finally, they argue that the

arrest warrant was invalid because it was

too old

Considerable judicial attention has

been focused in recent years on arrests

in private homes. In United States v.

Reed, 572 F2d (CA2 1978), Judge Meskill

af 4<

analyzed the leading cases and held that

* * * in the absence of a

warrant to arrest a suspect at

home, and in the absence of

exigent circumstance, federal

law enforcement officers are

prohibited by the Fourth

Amendment from entering the

home of a suspect to evict a

felony arrest for which they

otherwise have both statutory

authority and probable cause.

572 F2d at 424

(emphasis supplied).

Counsel have not cited, nd the court has

been unable to discover, any case where

authorities hav been denied the right to

enter a home to execute an arrest warrant

when they had parobable cause to believe

the arrestee was present.

Here, there is no question that a

warrant existed. Although defendants

argue that it was invalid because of its

age, they have cited no authority to

Support the contention. Arrest warrants

do not expire with any particular time

period. The evidence discloses

continuing official interest in Donald

-15§-

Grant, the subject of the warrant and an

active, though perhaps not overly

diligent, investigation as to his

whereabouts. It would be a strange rule,

to say the elast, if a fugitive's success

in evading capture could, through mere

lapse of time, invalidate the vary

warrant from which he was fleeing. The

court finds and concludes, therefore,

that the arrest warrant itself was valid,

even though it had been outstanding for

some twelve months.

The court also rejects defendant's

contention that in addition to the arrest

warrant the agents were required to

obtain a search warrant. While there has

been some judicial suggestion that an

arrest warrant should either designate

the authorized ptlace of arrest or be

accompanied by a search warrant naming

the place where agents can search for the

arrestee, see Dorman v. U.S., 435 F2d 385

-16-

at 395-96 and footnote 25 (CA DC 1970),

the court had found no case in this

circuit interpreting the fourth amendment

to require such specificity, and no such

requirement has yet been imposed by rule

or statute.

SWffective August 1, 1979, FRCrP 41

was amended so as to permit a search

warrant to be issued to search for and

seize any "person for whose arrest there

is probable cause." Of course, that

amendment was not in effect in April of

this year when the agents entered

defendant Williams' house. Even if it

were effective, however, the amended rule

only permits such a search warrant, it

does not require one.

Discussing the amendment to authorize

a warrant to search for persons, the

Advisory Committee noted:

It has sometimes been

contended that a search

warrant should be required for

-17-

a nonexigent entry to arrest

even when the premises to be

entered are those of the

person to be arrested.

Rotenberg & Tanzer, Searching

for the Person to be Seized,

35 Ohio St.L.J. 56, 69

(1974). Case authority in

support is lacking, and it may

be that the protections of a

search warrant are less

important in such a situation

because ordinarily

"rudimentary police procedure

dictates that a suspect's

residence be eliminated as a

possible hiding place before a

search is conducted

elswhere." ORT TA V.

rovieri, aay -2d 10,

Spe oA it 115 ih.

Despite these uncertainties,

the fact remains that in some

circuits under some

circumstance a search warrant

is required to enter private

premises to arrest. Moreover,

the law on this subject is in

a sufficient state of

uncertainty that this position

may be taken by other courts.

It is thus important that Rule

41 clearly express that a

search warrant for this

purpose may issue. And even

if future decisions head the

other direction, the need for

the amendment would still

exist. It is clear that law

enforcement officers "may not

constitutionally enter the

home of a private individual

to search for another person,

-18-

though he be named in a valid

arrest warrant in their

possession, absent probable

cause to believe that the

named suspect is present

within at the time." Fisher

v. Volz, a procedure whereby

he may have this probable

cause determination made by a

neutral and detached

magistrate in advance of the

entry.

Communication from the

Chief Justice, House

Document No. 96-112

at 128.

A few courts have held that entry

into a third party's home to search for a

person for whom an arrest warrant has

been issued must be supported by both

probable cause to believe the arrestee is

there and exigent circumstances. Virgin

Island v. Gereau, 502, F2d 914 (CA3

1974); Fisher v. Volz, 496 F2d 333 (CA3

1974); Huotari v. Vanderport, 380 F Supp

645 (D Minn 1974). As this court views

the present state of law, however, all

that the agents regguired in addition to

the arrest warrant was probable cause to

-19-

’*

believe that Donald Grant was in the

premises.

Defendants, of course, argue that the

agents lacked probable cause to believe

that Donald Grant was in the premises,

and that in fact, they knew that the

occupant of the premises was not Grant

but defendant Fleur Williams. If

defendants were correct and the agents

did act in such bad faith, then, of

course, the motion to suppress would be

granted. However, the court disagrees

with defendants' evaluation of the

agents’ conduct and state of mind.

The agents had a valid warrant for

Grant's arrest. They knew him to be

elusive, to travel in and out of the

United States, to drive a Rolls Royce

that was serviced at Haugh Motors, to be

&@ black male Jamaican, and to live

expensively. When they received the tip

that he might be in the New York area and

-20-

that he sometimes had his Rolls Royce

serviced at Haug Motors, they took a

photograph of Grant to Haug Motors and

were told that the person in that

photograph did have a Rolls Royce, that

he was a black Jamaican, and that he

lived at 191 Berry Hill Court. From

there, the agents obtained further

eyewitness identification of the

photograph as being that of a person

living at 191 Berry Hill Court.

The agents also knew that Grant used

a variety of aliases including the name

Williams. The Rolls Royce garaged at 191

Berry Hill Court and serviced at Haugh

Motors was registered in the name of a

person named Williams and Williamson.

The agents also knew that the occupant at

191 Berry Hill Court came and went at odd

hours, did not follow a normal work

pattern, and was frequently gone for long

periods.

-21-

Thus, when agent Kobyra received a

call that the man in the picture had just

returned to 191 Berry Hill Court, he had

probable cause to believe that Donald

Grant, the person for whom he hada valid

arrest warrant, was actually in those

premises. The court finds that the

agents acted carefully, reasonably and in

good faith.

The arrest warrant, coupled with the

good faith belief, based on probable

cause, that the subject was in the house,

gave constitutional authority to the

agents to enter the house and search it

for Donald Grant. In the course of that

search they discovered much of the

contraband in plain view, thereby

providing a valid basis for arresting the

defendants without a warrant.

The court recognizes that special

protection under the fourth amendment

must be granted a person in his own home,

protections which extend against both

searches and arrests. However, where a

valid arrest warrant has been issued and

a government agent acting in good faith

has probable cause to believe that the

subject of the warrant is actually within

a residence, entry of that house to

arrest the subject is not unreasonable

within the meaning of the constitution.

Even defendants acknowledge in their

post-hearing memorandum that Donald

Grant's absence from the premises does

not render the entry unreasonable. The

test is whether the officers acted in

good faith and whether they had probable

cause to believe that the subject of the

warrant was in the premises.

Based on the testimony of the

witnesses at the hearing, as well as of

the two neighbors taken at the in camera

hearing, the court finds the testimony of

agent Kobyra as to the cricumstance

-23-

leading to the entry of the house to be

credible. The neighbors did identify the

person in the photograph as the one who

was living in the premises, and on of the

neighbors later reported that he was then

in the house. There was some difference

between the agent and the neighbors as to

which of the two photographs in evidence

was shown to the neighbors. The court

does not consider the difference

significant and disagrees with counsel's

evaluation of the photographs, both of

which were of Donald Grant. To the

court's eye, the differences between the

two photographs were not nearly as marked

as claimed by defendant's counsel, and

both of the photographs might reaasonably

and in good faith have been mistaken as

being of defendant Williams.

Accordingly, defendants' motion to

suppress Exhibits 4, 6, 7, and 11 is

granted. Their motion to suppress

o%Z=

Exhibits 1, 2, 3, 5A 8, 9, 10 and 12, as

well as the statements made by Manley and

Williams referred to above, is denied.

Counsel are reminded that jury

selection is scheduled for August 29,

1979.

SO ORDERED

Dated: Westbury, New York

August 15, 1979.

GEORGE C. PRATT

U.S. DISTRICT COURT

-25-

* >

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ee eeer eee eee eee X DOCKET NO.

79 CR 249

UNITED STATES OF AMERICA,

MEMORANDUM

AND ORDER

- against -

DAVID MANLEY and

FLEUR A. WILLIAMS,

Defendants.

PRATT, J:

Counsel for defendants having pointed

out an error in the court's memorandum

and order dated August 15, 1979, said

memorandum and order is hereby amended as

follows:

On page 5 the second sentence of the

first paragraph is amended to read as

follows:

That evening, Kobyra received

a call from one of the

neighbors who stated that the

black Chevrolet driven by the

individual living at 191 Berry

Hill Court had just returned

to that address and someone

had entered the house and was

presently there.

On page 13, the last sentence of the

-j-

first full paragraph is amended to read

as follows:

From there, the agents

obtained further eyewitness

identification of the

photograph as being that of a

person living at 191 Berry

Hill Court, who drove both a

Rolls Royce and black

Chevrolet.

On pages 13 and 14 the sentence

beginning the carry-over paragraph is

amended to read as follows:

Thus, when agent Kobyra

received a call that the black

Chevrolet, which had

previously been driven by the

man in the picture, had just

returned to 191 Berry Hill

Court, he had probable cause

to believe that Donald Grant,

the person for whom he had a

valid arrest warrant, was

actually in those premises.

In all other respects the court's

memorandum and order of August 15, 1975,

remains unchanged.

SO ORDERED.

Dated: Westbury, New York

September 7, 1979.

~ GEORGE C. PRATT

U.S. DISTRICT JUDGE

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, SUPERCEDING

INDICTMENT

- against -

DAVID MANLEY, and

FLEUR A. WILLIAMS, also known

as "Anthony Watson",

Defendants.

GRAND JURY CHARGES:

COUNT ONE

On or about the 13th day of April,

1979, within the Eastern District of New

York, the defendants, DAVID MANLEY and

FLEUR A. WILLIAMS, also known as "Anthony

Watson", together with others known to

the Grand Jury, did knowingly and

intentionally conspire to violate Section

841(a)(1) of Title 21, United States Code.

1. It was part of said conspiracy

that the defendants and co- conspirators

would knowingly and intentionally

ej-

distribute and possess with intent to

distribute quantities of cocaine

hydrochloride, a Schedule II narcotic

drug controlled substance, and quantities

of marijuana, a Schedule I controlled

substance.

2. It was further part of said

conspiracy that the defendants and

co-conspirators would conceal the

existence of the conspiracy and would

take steps designed to prevent disclosure

of their activities. (Title 21, United

States Code, Section 846).

COUNT TWO

On or about the 13th day of April,

1979, within the Eastern District of New

York, the defendant, FLEUR A. WILLIAMS,

also known as "Anthony Watson", did

knowingly and intentionally possess with

intent to distribute approximately one

hundred eighty eight (188) grams of

7¥

cocaine hydrochloride, a Schedule II

narcotic drug controlled substance.

(Title 21, United States Code, Section

841(a)(1).

COUNT THREE

On or about the 13th day of April,

1979, within the Eastern District of New

York, the defendant, DAVID MANLEY, did

knowingly and intentionally attempt ‘to

possess with intent to distribute

approximately fifty five (55) grams of

cocaine hydrochloride, a Schedule II

narcotic drug controlled substance in

violation of Title 21, United States

Code, Section 84l(a)(1). (Title 21,

United States Code, Section 841(a)(1) and

846).

COUNT FOUR

On or about the 13th day of April,

1979, within the Eastern District of New

York, the defendant, FLEUR A. WILLIAMS,

-3-

€*

also known as “Anthony Watson", having

been convicted on the 9th day of January,

1976 at White Plains, New York, of

Criminal Possession of a Controlled

Substance, a crime punishable by

imprisonment for a term exceeding one

year knowingly did receive a firearm,

such firearm being a Star, 9 millimeter,

automatic pistol, serial no. 467102,

which had been shipped and transported in

foreign commerce from Spain to the United

States. (Title 18, United States Code,

Section 922(h) and 924(a)).

A TRUE BILL.

Surrogate's

Warrant of Arrest

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF NEW YORK

Magistrate's Docket No. 78

Case No. 416

a | x

UNITED STATES OF AMERICA

v. :

DANNY WARREN, a/k/a Danny :

Williams, a/k/a Donald WARRANT OF

Grant, a/k/a Rolls Royce : ARREST

Danny, a/k/a Champagne

Danny and Jerry Arnold, $

Defendants. :

To ANY U.S. MARSHAL OR AUTHORIZED OFFICER:

You are hereby comanded to arrest

DANNY WARREN (as herein above described,

and bring him forthwith before the

nearest available United States

Magistrate to answer to a complaint

charging him with Distribution,

° >

possession Narcotic Drug, in violation of

U.S.C. Title, 21, Sections 812, 841(a)(1)

and 841(b)(1)(A).

Date April 12, 1978.

SOL SCHREIBER

FILED

IN CLERK'S OFFICE

U.S. DISTRICT COURT E.D., N.Y.

EASTERN DISTRICT OF NEW YORK

DEFENDANT

~~ FLUER A. WILLIAMS Docket No. 79 CR

249(S-1)

JUDGMENT AND PROBATION/COMMITMENT ORDER

COUNSEL

In the presence of the

attorney for the

government the defendant

appeared in person (Month Day Year)

on this date CB 14 79)

( ) WITHOUT COUNSEL

(x) WITH COUNSEL

However the court advised defendant of

aght to counsel and asked whether

efendant desired to have counsel

appointed by the court and the

defendant thereupon waived assistance

of counsel.

BARRY TURNER

(Name of Counsel)

PLEA

T) GUILTY, and the court being

satisfied that there is a factual basis

for the plea,

( ) NOLO CONTENDERE,

(x) NOT GUILTY

FINDING & JUDGMENT

Defendant has been convicted of the

offense(s) of violating Title 21,

United States Code, Section 841(a)(1).

SENTENCE OR PROBATION ORDER,

SPECIAL CONDITIONS OF PROBATION

ADDITIONAL CONDITIONS OF PROBATION

~The court asked whether defendant had

anything to say why judgment should not

be pronounced. Because no sufficient

cause to contrary was shown, or

appeared to the court, the court

adjudged the defendant guilty as

charged and convicted and ordered

that: The defendant is hereby

committed to the custody of the

Attorney General or his authorized

representative for imprisonment for a

period of 6 years plus a Special Parole

Term of 6 years. Execution of Sentence

stayed pending outcome of the appeal.

On motion of the Assistant United

States Attorney underlying indictments

79 CR 249 and 79 CR 249(S) and counts 1

and 4 of 79 CR 249(S-1) are dismissed.

In addition to the special conditions

of probation imposed above, it is

hereby ordered that the general

conditions of probation set out on the

reverse side of this judgment be

imposed. The Court may change the

conditions of probation, reduce or

extend the period of probation, and at

any time during the probation period or

within a maximum probation period of

five years permitted by Law, may issue

a warrant and revoke probation for a

violation occurring during the

probation period.

ADDITIONAL CONDITIONS OF PROBATION

~ The court orders commitment to the

custody of the Attorney General and

reconmends,

It is ordered that

the Clerk deliver a

certified copy of

this judgment and

commitment to the

U.S. Marshall or

other qualified

officer

Signed by

(x) U.S. District Judge

( ) U.S. Magistrate

Date 11/14/79

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