Petition — Arthur Wayne Baldwin v. United States

ith FILED

80-1031 ¥

DEC 24 1980

No. 80-___ [MICHAEL RODAK, JR, cy

eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ARTHUR WAYNE BALDWIN, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

GREGORY B. CRAIG

WILLIAMS & CONNOLLY

1000 Hill Building

Washington, D.C. 20006

(202) 331-5036

Counsel of Record

CHARLES S. SIMS

BRUCE J. ENNIS

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, New York 10036

Counsel for Petitioner

a, ee 2 EE - aT

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

Arthur Wayne Baldwin petitions for a

writ of certiorari to review the judgment

of the United States Court of Appeals for

the Sixth Circuit in this case.

QUESTION PRESENTED

Whether petitioner's Fourth Amend-

ment rights were violated when the gov-

ernment -- without a search warrant, with-

out probable cause (or even reasonable sus-

picion) to believe that petitioner was

engaged in the commission of a crime, in

the absence of exigent circumstances, and

for the express purpose of gathering evi-

dence against petitioner -- placed an

undercover police officer in the private

employ of petitioner, and that police

officer, over a period of six months,

while working as a household handyman,

chauffeur, and companion for petitioner's

a

-ii-

son and while living in petitioner's

residence, surreptitiously gathered

evidence from petitioner's home for use

against petitioner at trial.

“$3 i+

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

PETITION

I.

II.

CONCLUSION

THE OPINION BELOW

DECIDES AN IMPORTANT

QUESTION OF FEDERAL

LAW IN CONFLICT WITH

THIS COURT'S DECISION

IN GOULED v. UNITED

STATES.

THE DECISION BELOW

IS IN CONFLICT WITH

THE PRINCIPLES AND

APPROACH OF PAYTON

v. NEW YORK.

10

23

28

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX C

-—V=

TABLE OF AUTHORITIES

Cases: Page

Coolidge v. New Hampshire,

403 BeSe 443 (1971) e*eeeeese#egrseste#erst#8 ft @ 14

Gouled v. United States,

255 U.S. 298 (1920) ... 10-13, passim

Hoffa v. United States,

385 U.S. 293 (1966) eeeveee 14-19, 22

Katz v. United States,

mee Gete SEP CASOT) ceoccees 14-15, 26

Lewis v. United States,

385 U.S. 206 (1966) eeee 14-16, 20-22

Mapp v. Ohio,

367 0.8 643 (1960) e*eeseeteeeeeeeceee @ 10

Payton v. New York,

445 U.S. 573 (1979) eoeeeeeeeeer 23-27

Silverman v. United States,

365 U.S. 505 (1960) *eeee#eeeee#ee#ee#ee#e#€* 25

United States v. Baldwin,

aan won £oem Cir. 1960) cceccee 1

United States v. Hare,

589 F.2d 1291 (6th Cir. 1979) .... 14

United States v. Henry,

U.S. , 100 S. Ct.

2183 (1980) a= eee eeeeeeeesgee eg ee ee 8 6 26

United States v. Jeffers,

342 Uehe 48 (1951) e*eeoee#eeesegeee#ee#ee#se##e*@ 15

—Y

-vi-

Cases: Page

United States v. Payner,

U.S. 7] 100 S.Ct.

2439 (1980) eeeeeveveeeeeeeeee eevee ee 10

United States v. United States

District Court (Keith),

407 U.S. 297 (1971) e*eeoe<eeeeee#e#e#e#e#es 27

United States v. White,

Bn Use 745 (ISTO) secocccocee 18, 19

Vale v. Louisiana,

399 U.S. 30 (1969) e*eee7e2exee#e+ee#*ee#eee#ee#e#e#e@ 15

Warden v. Hayden,

387 U.S. 294 (1966) eeeeee7#2eee#ee#ee#eee#e## 12

Other Authorities:

The Fourth Amendment,

United States

Constitution ..esecceceees 2, Passim

-l-

OPINIONS BELOW

The Order of the Court of Appeals

denying the Motion for a Rehearing En Banc

ano Judge Jones' dissent (joined by Judge

Keith) are ‘anemone (Appendix A at

la). The opinion of the Court of Appeais

affirming the District Court's judgment is

reported at 621 F.2d 251 (6th Cir. 1980)

(Appendix B at 20a). The opinions of the

District Court denying the defendant's Mo-

tion to Suppress issued on June 13, 1977

(Appendix C at 29a) and August 22, 1977

(Appendix D at 37a) are unreported.

JURISDICTION

The opinion of the Court of Appeals

affirming the District Court's judgment

1l/ Chief Judge Edwards joined in dissent

from denial of an en banc hearing "in

view of the importance and difficulty

of the issues." Appendix A at 18a.

g%

°%

-2-

below was entered on May 21, 1980. The

Petition for Rehearing En Banc was denied

on September 30, 1980. Justice Stewart

issued an order on November 29, 1980 ex-

tending the date for the filing of this

Petition for a Writ of Certiorari up to

and including December 29, 1980. The

jurisdiction of this Court is invoked un-

der 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution states:

"The right of the people

to be secure in their persons,

houses, papers and effects

against unreasonable searches

and seizures shall not be vio-

lated, and no warrants shall

issue, but upon probable cause,

supported by oath or affirma-

tion, and particularly describ-

ing the place to be searched,

and the persons or things to be

seized."

-*%

«Fu

STATEMENT OF THE CASE

Joseph Ross Hoing was secretly

Sworn in as an undercover police officer

with the Memphis Police Department on

April 29, 1974, receiving the same rank

and pay as other Memphis patrolmen and

vested with the same power and authority.

That same date, Officer Hoing was

assigned to cover the petitioner, Arthur

Baldwin, a newcomer to Memphis engaged

in the business of running certain top-

less entertainment night spots known as

The Playgirl Clubs. Although the Memphis

Police Department had no probable cause

Or even reasonable suspicion to believe

that Baldwin was involved in the commis-

sion of any crimes, Officer Hoing was

instructed to place Baldwin under sur-

veillance, to frequent The Playgirl

Clubs, and to report back "what he saw

every day, what you hear, whether it

|

-4-

was right or wrong, left or right." Tr.

at Tal

In July, 1975, Officer Hoing

learned that Baldwin's chauffeur had

been fired and reported that fact to his

Superior. Although the Memphis police,

after nearly fifteen months of surveil-

lance, still lacked any reason to believe

that Baldwin was engaged in any kind of

illegal activity, Hearing Tr. at ae

Officer Hoing was instructed to make ev-

ery effort to enter Baldwin's employ as

his private driver. Tr. at 27. Hoing

applied for the job, was interviewed by

2/ References to the transcript of the

trial of this case appear as "Tr.

at ."

3/ On June 10, 1977, the District Court

held an evidentiary hearing on peti-

tioner's Motion to Suppress. Refer-

ences to the transcript of that

hearing appear as "Hearing Tr. at

"

—%

-5-

Baldwin, and began driving for Baldwin

the very next day (July 11, 1975). That

same day, Hoing moved in with Baldwin ("I

just started staying with him." Tr. at

270), shared one of the two bedrooms in

Baldwin's apartment with Baldwin's four-

teen-year-old son, Wayne, and moved with

Baldwin and his son from the apartment

to a much larger residence in October,

1975.

Officer Hoing lived with Baldwin and

his son from July 11, 1975 until December

1975. He reported on a daily basis to

his superiors in the police department,

who were fully aware of Hoing's activi-

ties living with and working for Arthur

Baldwin. Hearing Tr. at 17. Officer

Hoing's superiors in turn consulted with

the Mayor of the City, the head City At-

torney, the Attorney General's office,

and the Office of the United States

-§-

Attorney as to the legality of Hoing's

saeiiciene Tr. at 24-25. No search

warrant was ever sought or issued.

Hoing's tasks were those of a gener-

al household handyman as well as those of

a driver. Hoing helped Baldwin in his

move from apartment to house, in packing

Baldwin's suitcase for trips, and in

looking after Baldwin's son when Baldwin

was out of town. The District Court

found: "“Hoing had the general run of de-

fendant's house with [Baldwin's] permis-

sion and was essentially living in the

defendant's house at the time of the

ee eee

4/ That these authorities apparently

condoned Hoing's activities implies

that this practice may well be com

monplace or at least recurring.

involved seizures .. ." Appendix D at

39a.

Officer Hoing spotted a book that

Baldwin was reading entitled "Cocaine and

Its Uses" and also observed Baldwin inhal-

ing a white powdery substance. Hoing's

Superiors instructed him to procure a

sample. Hearing Tr. at 60; Tr. at 66.

Hoing carried out his instructions by

stealing some of the material from a

small plastic bag that Hoing saw lying

on the top of Baldwin's bedroom dresser.

On two other occasions, Hoing collected

5/ At the evidentiary hearing, Baldwin

vehemently disputed Hoing's claim

that Baldwin had given him general,

unrestricted access to his (Bald-

win's) bedroom as well as to the

rest of the house. The District

Court found, however, "[T]here seems

to have been no reason why Baldwin

would have directed Hoing not to en-

ter his bedroom." Appendix C at

34a-35a.

-8-

two additional samples, one from a table

top in Baldwin's bedroom and one from the

back of Baldwin's automobile. All three

samples were introduced into evidence at

the trial over Baldwin's objection.

On August 22, 1977, the jury con-

victed Arthur Baldwin on three counts of

simple possession of cocaine in violation

of 21 U.S.C. § 844(a) and one count of

possession with intent to distribute in

violation of 21 U.S.C. § 844(a)(1). On

March 23, 1979, the District Court sus-

pended the imposition of sentence and

placed the defendant on probation for a

period of two years.

Ga

REASONS FOR GRANTING THE PETITION

This case poses the stark and unprec-

edented issue of whether tr2 Fourth Amend-

ment imposes any constraints on the ac-

tivities of an undercover law enforcement

officer who, without a search warrant and

with no probable cause or even reasonable

suspicion to believe that the subject of

his investigation was engaged in criminal

activity or that the subject's residence

was being used for illicit purposes, in-

serts himself as a household employee in

the subject's home and lives with the sub-

ject for a period of several months for

the express purpose of conducting twenty-

four hour surveillance of and gathering

evidence against the targeted individual.

We are aware of no case in which this

Court has been confronted with a more

pervasive and Orwellian intrusion by gov-

ernment authorities into the sanctity of

-10=-

a private residence.

I.

THE OPINION BELOW DECIDES AN IMPOR-

TANT QUESTION OF FEDERAL LAW IN CON-

FLICT WITH THIS COURT'S DECISION IN

GOULED v. UNITED STATES

The decision of the Court of Appeals

conflicts with this Court's decision in

Gouled v. United States, 255 U.S. 298

(1921).

In Gouled, a business acquaintance

(Cohen) gained admission to the office of

an individual (Gouled) suspected by the

federal authorities of being engaged ina

conspiracy to defraud the United States.

Pretending to make a friendly social call,

The conduct of the law enforcement

authorities in this case is every

bit as obnoxious as that of the IRS

agents in United States v. Payner,

___ U.S. __, 100 S.Ct. 2439 (1980),

except that Baldwin has none of

Payner's standing problems. For that

reason, an exercise of this Court's

Supervisory powers would be fully war-

ranted here. See Mapp v. Ohio, 367

U.S. 643 (1960) and the cases cited at

100 S.Ct. at 2450-2451.

-ll-

Cohen visited Gouled in his office under

orders of law officers and for the purpose

of gathering evidence. During the ensuing

conversation, Gouled left his office for a

moment, and, in his absence, Cohen seized

and subsequently carried away several

documents that were later introduced into

evidence against Gouled at trial.

The government contended that an in-

dividual's Fourth Amendment rights are not

violated "if an officer goes to the ac-

cused and asks and is granted permission

to enter his house or his office." Once

on the premises with the consent of the

accused, the government argued, "the Con-

Stitution does not require [the officer]

to shut his eyes to any evidence of crime

that may be open to his observation."

255 U.S. at 301.

In a unanimous decision, this

Court rejected the government's argument

-12-

and held Cohen's conduct unconstitutional.

The Court reasoned that a warrantless sei-

zure of evidence following entry obtained

by stealth or deception is no less offen-

sive to the Fourth Amendment than is the

warrantless seizure of evidence following

entry obtained "by an illegal threat or

show of force, amounting to coercion,"

because "[t]he security and privacy of

the home . . . would be as much invaded

and the search and seizure would be as

much against [the homeowner's] will in

the one case as in the other, and it must

therefore be regarded as equally in viola-

tion of his constitutional rights." 255

7/

U.S- at 305-306.

7/ In Warden v. Hayden, 387 U.S. 294,

302-309 (1966), the Supreme Court

overruled the "mere evidence" rule

which appeared in Gouled. That rule

stated that search warrants "may not be

(Footnote continued)

-13-

If the search and seizure condemned

by the Supreme Court in Gouled failed to

pass constitutional muster, surely the

search and seizure in this case -- involv-

ing a far more intrusive penetration into

a private residence over a longer period

of time with even less cause -- must also

be rejected as unconstitutional.

Without addressing Gouled, the Court

of Appeals concluded that Officer Hoing's

conduct did not offend the Constitution

Or violate Baldwin's Fourth Amendment

(Footnote continued)

T/ used . . . solely for the purpose of

making search to secure evidence

to be used... ina criminal or

penal proceeding." 255 U.S. at 309.

(Papers were also taken from Gou-

led's office under two search war-

rants.) The heart of Gouled, how-

ever, deals with the impropriety of

Cohen's warrantless search and seizure

of documents from Gouled's office.

Warden v. Hayden, supra, left that

aspect of Gouled undisturbed.

-14-

rights because "[t]he Fourth Amendment

does not protect wrongdoers from mis-

placed confidence in their associates,"

Hoffa v. United States, 385 U.S. 293

(1966); because "an agent may legiti-

mately gain entrance into a house by mis-

representing his identity," Lewis v.

United States, 385 U.S. 206 (1966); and

because, once in Baldwin's residence,

Officer Hoing's subsequent seizure of

cocaine samples was simply a "gathering

of evidence... in state view," United

States v. Hare, 589 F.2d 1291 (6th Cir.

1979). Appendix B at 24a-25a.

The panel's conclusion directly con-

tradicts the general rule that, in the ab-

sence of exigent circumstances, a police

officer must obtain a search warrant be-

fore searching a home and seizing evi-

dence. Coolidge v. New Hampshire, 403

U.S. 443 (1971); Katz v. United States,

on ine

389 U.S. 347 (1967). The government has

Shown no exigent circumstances in this

case that would eliminate the need for a

search warrant. Vale v. Louisiana, 399

U.S. 30 (1970). Officer Hoing's presence

in Baldwin's home was plainly unconstitu-

tional, and his subsequent search of

Baldwin's residence and seizure of evi-

dence cannot be justified by the "plain

view" doctrine. United States v. Jef-

fers, 342 U.S. 48 (1951).

The panel's heavy reliance on Hoffa

and Lewis is mystifying in light of the

fact that each of these cases expressly

affirms Gouled v. United States. In

Hoffa, the Court stated, with a citation

to Gouled, that, "The Fourth Amendment

can certainly be violated by guileful as

well as by forcible intrusions into a con-

stitutionally protected area." 385 U.S.

at 301. And in Lewis, the Court stated

®

-16-

that an undercover agent's entry of a sus-

pect's residence upon invitation and for

the express purpose of consummating an il-

legal transaction "does not mean that,

whenever entry is obtained by invitation

+ « « an agent is authorized to conduct a

general search for incriminating materi-

als; a citation to the Gouled case is suf-

ficient to dispose of that contention."

385 U.S. at 2ll.

The Court of Appeals' reliance on

Hoffa and Lewis is misplaced, however,

for other, equally important reasons.

Hoffa differs from this case in at

least two important respects. First,

whereas Hoing was a total stranger to

Baldwin, at least initially, the infor-

mant in Hoffa (Edward Partin) was a pre-

existing friend and associate of Jimmy

Hoffa's. Whereas Hoing was a Memphis

patrolman specifically programmed by

-j7-

Memphis law enforcement authorities to

insinuate himself into Baldwin's private

life, Partin, already Hoffa's confidante,

agreed to cooperate with the police on

his own initiative. 385 U.S. at 298-299.

Placing an undercover policeman into a

private residence under false pretenses

to spy on the inhabitants, as occurred

in this case, is quintessentially dif-

ferent from taking advantage of a male-

factor's misplaced reliance on the trust-

worthiness of an accomplice, as occurred

in Hoffa. One is a government~-inspired

and implemented intrusion into the sanc-

tity of the home; the other involves the

government benefitting innocently from a

"wrongdoer's misplaced belief that a

person to whom he voluntarily confides

his wrongdoing will not reveal it."

Id. at 302. The Hoffa Court explicitly

| **

-18-

recognized the significance of this

distinction when it noted that,

"The applicability of the

Fourth Amendment if Partin had

been a stranger to the petitioner

is a question we do not decide."

385 U.S. at 302 n. 6,

and cited Gouled with approval.

Second, Hoffa involved the uncon-

cealed overhearing by Partin of conversa-

tions that were "either directed to him

or knowingly carried on in his presence,"

385 U.S. at 302, while this case involves

the surreptitious removal of tangible evi-

dence from Baldwin's bedroom. As Judge

Jones observed about Hoffa and United

States v. White, 401 U.S. 745 (1970):

"These cases should be interpreted

as making a participant in a conver-

sation free to record or repeat it

without having first to secure a

warrant. The rationale for this

approach is, I believe, a function

of the nature of conversations. A

conversation belongs equally to all

participants. Thus, no one can have

an expectation of privacy about the

-19-

use of a conversation by a partic-

ipant." Appendix A at lla-l2a.

The Court of Appeals' decision

amounts to a dangerous extension of

Hoffa. Nothing in Hoffa suggests that

the Supreme Court intended the "misplaced

reliance" doctrine to be a declaration of

independence from the Fourth Amendment

for undercover policemen; and there is

nothing in Hoffa (or any other case) to

Support broadening the narrow exception

to the Fourth Amendment accorded the war-

rantless "seizure" of a conversation by

one of its participants to include the

warrantless seizure of other kinds of

evidence. See, e.g., United States v.

White, supra, 401 U.S. at 752.

-*

-20-

The Court of Appeals‘ resort to

Lewis v. United States, supra, is simi-

8/

larly inapposite. In Lewis (unlike

here), there was no search; the subject

handed the marijuana to the undercover

agent on the porch. More importantly, in

Lewis (unlike here), the undercover agent

was explicitly invited into the subject's

home for the pre-arrenged and mutually

understood purpose of committing a crime.

In Lewis, the intrusion was limited to a

Single entry of a home which had been

"converted into a commercial center to

8/ In Lewis, a federal narcotics under-

cover agent, on a tip, telephoned

the subject's residence to inquire

about the possibility of purchasing

marijuana. After identifying him-

self as "Jimmy the Pollack", the

agent was told, "Yes, I believe,

Jimmy, I can take care of you."

The agent was invited to the sub-

ject's house where, after intro-

ducing himself, he purchased mari-

juana from the subject.

-2l1-

which outsiders [were] invited for pur-

anees of transacting unlawful business."

The Court found that, in such circum-

Stances, "that business is entitled to

no greater sanctity than if it were car-

ried on in a store, a garage, a car or

on the street." 385 U.S. at 211. In ad-

dition, the "seizure" of the marijuana in

Lewis occurred in connection with the "very

purposes [of the visit] contemplated by

the occupant," id, and resulted in no

intrusion upon the privacy of the household.

It is one thing for an undercover

policeman to enter a residence with the

certain, advance knowledge that he is

there to witness the commission of a

crime; it is entirely different for the

police to insert an undercover agent into

a private residence in the guise of a

long-term household employee for the pur-

pose of engaging in a perpetual roving

-22-

commission to discover whether or not the

homeowner is engaged in crime. Baldwin

invited Hoing into his home to assist him

in a variety of unexceptional, if not mun-

dane, tasks. Unlike the agent in Lewis,

Hoing was not invited in to engage in il-

legal trade or to commit a criminal of-

9/

fense.

Neither Lewis nor Hoffa can fairly

be read to sanction the kind of prolonged

undercover fishing expedition conducted

9/ The government can find little

comfort in Lewis and Hoffa for yet

another reason. With respect to

undercover police activity general-

ly, the Lewis Court noted that no

hard and fast rules could be drawn:

"({T]he particular circumstances of

each case govern the admissibility

of evidence obtained by strategem or

deception." 385 U.S. at 208. Simi-

larly, in Hoffa the Court cautioned,

"By nothing we say here do we either

foresee or foreclose factual situa-

tions to which the Fourth Amendment

may be applicable." 385 U.S. at

301-302.

—-23-

by the Memphis Police Department in this

case. And because Hoing's presence in

Baldwin's home was, in the first in-

stance, unconstitutional, the "plain

view" doctrine simply does not come

into play.

II. THE DECISION BELOW IS IN CONFLICT

WITH THE PRINCIPLES AND APPROACH

OF PAYTON v. NEW YORK.

The Court of Appeals' decision in

this case is wholly inconsistent with the

principles and approach adopted by this

Court in Payton v. New York, 445 U.S. 573

(1980). There the Court struck down a

New York State statute permitting the

police to make a warrantless, nonconsen-

sual entry into a suspect's home for the

purpose of carrying out a felony arrest.

And the Court suppressed certain incrim-

inating evidence found "in plain view"

in the course of two such actions. The

-24-

Supreme Court's own analogy -- comparing

warrantless entries for the purpose of

carrying out a search (this case) with

warrantless entries to make an arrest

10/

(Payton) -- makes the logic and lan-

guage of Payton all the more applicable

to the conduct at issue here. The Court

stated:

"The Fourth Amendment protects

the individual's 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

10/ The Court observed that,

"{A]ny differences in the

intrusiveness of entries

to search and entries to

arrest are merely ones of

degree rather than kind.

The two intrusions share

this fundamental charac-

teristic: the breach of

the entrance to an indi-

vidual's home." 445 U.S.

at 589.

-25-

specific constitutional terms:

‘The right of the people to be

secure in their .. . houses...

shall not be violated.' That

language unequivocally establishes

the proposition that '[a]t the

very core [of the Fourth Amendment]

stands the right of a man to re-

treat into his own home and there

be free from unreasonable govern-

mental intrusion.' Silverman v.

United States, 365 U.S. 505, 5ll.

In terms that apply equally to

seizures of property and to sei-

zures of persons, the Fourth

Amendment has drawn a firm line

at the entrance to the house.

Absent exigent circumstances,

that threshold may not reason-

ably be crossed without a war-

rant." Id. at 589-590 (emphasis

added).

If applied generally, the decision

by the Court of Appeals would exempt vir-

tually all undercover activity, no mat-

ter how pernicious, from the reach of the

Fourth Amendment. More particularly, if

Officer Hoing's invasion of Arthur Bald-

win's home is upheld, the Fourth Amend-

ment stands a fair chance of being seri-

ously crippled if not wholly vitiated.

-26-

The path to successful circumvention will

be clear and unmistakable. Conduct that

the Fourth Amendment would sharply con-

demn if carried on directly and openly

by law officers would hereafter be coun-

tenanced if 7 tenia by ruse, stealth

and trickery.

In Katz, Supra, 407 U.S. at 359,

this Court wrote, “Wherever a man may be,

he is entitled to know that he will re-

main free from unreasonable searches and

seizures." Four years later, the Court

added that the "physical entry of the

home is the chief evil against which

ll/ It is inconceivable that the Fourth

Amendment could provide less protec-

tion against the ruses and devices

of ingenious police officers for the

citizen in the privacy of his or her

home than does the Sixth Amendment

for a defendant's relationship with

his attorney. See, United States v.

Henry, U.S. _, 100 S. Ct. 2183

(1980).

=2J<

the wording of the Fourth Amendment is

12/

directed." And just this year, the

Court wrote:

"[Nleither history nor this

Nation's experience requires

us to disregard the overriding

respect for the sanctity of the

home that has been embedded in

our traditions since the origins

of the Republic." Payton v. New

York, supra, 445 U.S. at 601.

To forestall a betrayal of those tradi-

tions, this Court should review the de-

cision of the Court of Appeals in this

case.

12/7 United States v. United States Dis-

trict Court (Keith), 407 U.S. 297,

313 (1971).

.%

-*%

-28—

CONCLUSION

A writ of certiorari should be is-

sued to review the judgment below.

Respectfully submitted,

Gregory B. Craig

Williams & Connolly

The Hill Building

Washington, D.C. 20006

(202) 331-5036

Counsel of Record

Charles S. Sims

Bruce J. Ennis

American Civil Liberties

Union

132 West 43rd Street

New York, New York 10036

Counsel for Petitioner

Dated:

Washington, D.C.

December, 1980

APPENDIX

Appendix A

No. 79-5128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V. ORDER

ARTHUR WAYNE BALDWIN,

Defendant~Appellant

mee eee eee eee ee ee

Before: KENNEDY and MARTIN, Circuit

Judges; PECK, Senior Circuit

Judge.

The decision in this case is reported

at 621 F.2d 251 (6th Cir. 1980). A motion

to reconsider the case has been filed

along with a request that the active

judges of the circuit be polled to con-

Sider rehearing the case en banc. Rule

35, Federal Rules of Appellate Procedure.

A majority of the circuit having con-

sidered and voted against en banc and the

panel having reviewed the motion to re-

consider, it is hereby ordered that both

motions be denied.

ENTERED BY ORDER OF THE COURT

s/

—~—_ oe

No. 79-5128, UNITED STATES OF AMERICA

V. ARTHUR WAYNE, BALDWIN JONES, Circuit

Judge, dissenting, in which KEITH, Circuit

Judge, joins. A majority of this court

has denied plaintiff's petition to rehear

this case en banc. Because I believe the

panel's decision is contrary to the re-

quirements of the Fourth Amendment, I dis-

sent from the denial of the petition.

I. INTRODUCTION

The government secreted a police

officer in the legitimate employ of the

appellant Baldwin. This policeman, while

employed in the home of appellant, pro-

ceeded to secure from the residence sev-

eral samples of cocaine without Baldwin's

knowledge or consent.

The central issue is whether the

government is required to secure a search

warrant in order to place an undercover

-3a-

agent as an employee, in a private home,

for a period of several months. The panel

upholds the district court's ruling that

the seizure of these samples was constitu-

tional because the agent was "lawfully"

present and the evidence seized was in

"plain view." By implication the panel

further holds that the discovery and sei-

zure of the evidence was inadvertent.

I believe that the panel's decision

errs in its application of the "plain

view" doctrine and in its holding that

Baldwin consented to the presence of the

undercover agent in his home. As a re-

sult, the panel's decision expands the

circumstances in which a search warrant is

not required. Such an expansion collides

with the Fourth Amendment's guarantee to

citizens of security “in their persons,

houses, papers, and effects, against un-

reasonable searches and seizures" and its

-4a-

protection "of the sanctity of man's home

and the privacies of life." Boyd v.

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

It was the clear design and attempt

of the government to conduct surveillance

on Baldwin's activities and to seize evi-

dence within his home. There is no evi-

dence in the record that Baldwin waived

his rights to the security of his home.

In short, the panel's reasoning is unper-

Suasive, because the initial entry by the

undercover agent into Baldwin's home was

unconstitutional. Consequently, the sub-

sequent search and seizure within his home

cannot be justified by the "plain view"

doctrine. United States v. Jeffers, 342

U.S. 48 (1951).

If. WARRANT REQUIREMENT

The general rule is that a police of-

ficer must obtain a Search warrant before

-Sa-

searching a home and seizing evidence.

Coolidge v. New Hampshire, 403 U.S. 443

(1971); Katz v. United States, 389 U.S.

347 (1967); Gouled v. United States, 255

U.S. 298 (1921). A warrant is unnecessary

only rarely when the government can show

exigent circumstances of constitutional

magnitude. Vale v. Louisiana, 399 U.S. 30

(1970). The government, in my view, has

not shown an exigent circumstance that

would eliminate the need for a search war-

rant. The Supreme Court said almost 60

years ago:

[W]hether entrance to the home

or office .. . be obtained by a

representative .. . of the gov-

ernment .. . by stealth...

or in the guise of a business

call, and whether the owner be

present or not when he enters,

any search and seizure subse-

quently and secretly made in

his absence falls within the

scope of the prohibition of the

Fourth Amendment.

Gouled v. United States, 255 U.S. 298, 306

(1921) (emphasis added). Gouled continues

-6a-

to stand as good law. In approving the

use of informants to report conversations

in which they participated, the court

cites Gouled as an example of impermis-

Sible guileful activity. Hoffa v. United

States, 385 U.S. 293, 301 (1966). Simi-

larly the court in approving the seizure

of drugs involved in a drug transaction

expressly distinguishes Gouled. Lewis v.

United States, 385 U.S. 206, 210 (1966).

The court said in Lewis:

But when, as here, the home is

converted into a commercial

center to which outsiders are

invited for purposes of trans-

acting unlawful business, that

business is entitled to no

greater sanctity than if it were

carried on in a store, a garage,

a car, Or on the street. A gov-

ernment agent, in the same manner

as a private person, may accept

an invitation to do business and

may enter upon the premises for

the very purposes contemplated

by the occupant. Of course, this

does not mean that, whenever en-

try is obtained by invitation

-7J7a-

and the locus is characterized

as a place of business, an agent

is authorized to conduct a gen-

eral search for incriminating

materials; a citation to the

Gouled case, supra, is sufficient

to dispose of that contention.

Id. at 211 (emphasis added). In Lewis

agents did not search the home and only

introduced as evidence the specific drugs

purchased in the transaction at the defen-

dant's home. Baldwin did not invite

anyone in for illegal trade or business.

In sum, the Supréme Court has held

that agents may not secretly invade the

home of a private citizen without a war-

rant. Since there clearly was such an

invasion in this case, the evidence was

illegally seized.

III. ENTRY BY RUSE

The Supreme Court has held that, in

order to effectuate a purchase of illegal

substances, agents may gain entry by a

-8a-

ruse. Lewis v. United States, 385 U.S.

206 (1966). The panel extends this rule

to the entry of a police officer for a

legitimate purpose (in this case employ-

ment as a handyman and Chauffeur). Under

the rule proposed by the panel, the Memphis

police officer could pose as a plumber,

electrician, or phone company representa-

tive and, having lawfully secured entry

seize evidence which was in "plain view."

Unless Fourth Amendment protections are

applied, the police could target specific

individuals for any reason and secure entry

in the hope of finding incriminating evi-

dence, e.g., it is not impossible to think

of law enforcement officials targeting

"unpopular" judges, politicians or private

individuals. I do not believe the Fourth

Amendment would permit a policeman to gain

Such employment and in the course of that

-9a-

employment conduct a search and seize evi-

dence in "plain view."

The Supreme Court has held that OSHA

agents may not make safety checks of non-

public parts of a business without securing

a search warrant. Marshall v. Barlow's,

Inc., 436 U.S. 307 (1978). I do not be-

lieve that we could permit these OSHA

agents to gain entry by securine employ-

ment through a ruse and thereby find OSHA

violations in "plain view," without such

an intrusion violating the Fourth Amend-

ment. Similarly, the Internal Revenue

Service cannot hire its agents out as

income tax consultants and seize evidence

in plaintiff's records as being in "plain

view." Yet that is where we are led by

the panel's opinion in this case.

Two lines of precedent may seem to

support the panel's opinion but upon close

-10a-

examination it is clear they do not. First

are the cases in which the government has

secreted agents into the homes of defen-

dants in order to record their conversa-

tions or to have the informant repeat them.

United States v. White, 401 U.S. 745

(1971); Hoffa v. United States, 385 U.S.

293 (1966). These cases mark a narrow

exception to the general rule that without

a warrant the government may not intrude

anywhere that a citizen has an expectation

Of privacy. United States v. Katz, 389

1/

U.S. 347 (1967). These cases should be

interpreted as making a participant in a

conversation free to record or repeat it

without having first to secure a warrant.

The rationale for this approach is, I be-

lieve, a function of the nature of conver-

sations. A conversation belongs equally

to all participants. Thus, no one can

-lla-

have an expectation of privacy about the

use of a conversation by a participant.

Nothing in White or Hoffa supports an

extension beyond conversations to other

kinds of seizures of evidence. First, as

noted before, Hoffa explicitly reaffirms

the soundness of Gouled. Second, after

Katz, Hoffa must be read in its narrowest

terms. Though Katz did not overrule Hoffa,

Katz sets forth a heightened concern about

privacy interests protected by the Fourth

Amendment. Hoffa, merely permits the use

of informants in carefully defined circum-

stances.

Second, we must distinguish the

Situation in which a defendant invites

an undercover agent into his home for an

illegitimate activity. In this situation,

the government agents have probable cause

to believe that a crime is about to be

-l2a-

committed. It is impossible for them to

refuse admittance and to seek a search

Warrant. Coolidge v. New Hampshire, 403

U.S. 443 (1971). The seizure of evidence

takes place shortly after the illegal

transaction occurred, and the agent or

police officer involved is present. Lewis

v. United States, 385 U.S. 206 (1966)

(purchase of drugs by an agent); United

States v. Glassel, 488 F.2d 143 (1973),

cert. denied, 416 U.S. 941 (1974) (agent

went into home to purchase drugs). None

of these circumstances is present here.

A person who employs someone for a legiti-

mate purpose does not give the undercover

police officer or agent probable cause to

believe that crime is in progress. There

is no reason for permitting the government

to intrude into the privacy of an individ-

ual's home without that probable cause.

-l3a-

If there are other circumstances which

would constitute probable cause and neces~-

sitate intrusion into a defendant's home,

police officers can secure a search war-

rant.

The panel does cite one case, United

States v. Raines, 536 F.2d 796 (8th Cir.

1976), cert. denied, 429 U.S. 925 (1976),

which states in dicta a rule inconsistent

with this approach. In Raines, a federal

agent posing as a friend of defendant's

associate who was jailed gained entry to

the defendant's apartment. However, even

in this case the agents did not secure any

evidence which was supposedly in "plain

view." The defendant turned over to the

agents the evidence with apparent consent.

Thus, the panel's view of the scope of the

Fourth Amendment approves a new and more

dangerous government intrusion into the

-l4a-

privacy granted individuals by the Con-

Stitution.

IV. "PLAIN VIEW"

The panel, in my opinion, also errs in

its application of the "plain view" doctrine.

The "plain view" doctrine requires, first,

that the initiation of the Search be jus-

tified. As discussed above, I would hold

that the undercover agent's entry and con-

tinued presence in Baldwin's home was un-

lawful. Second, under the "plain view"

doctrine, the discovery of the evidence

must be inadvertent. Coolidge v. New

Hampshire, 403 U.S. 443 (1971).

The courts have consistently held

that police and government agents cannot

circumvent this rule by maneuvering evi-

dence into "plain view." United States v.

Hare, 589 F.2d 1291 (6th Cir. 1979); Fank-

boner v. Robinson, 391 F. Supp. 542 (W.D.

-15a-

Va. 1975), rev'd on other grounds without

opinion sub nom., 538 F.2d 324 (4th Cir.

1976). In Hare a panel of this Circuit

interpreted inadvertent action as uninten-

tional action. In my view when the under-

cover police officer secreted himself in

the employ of a private citizen to gain

entry into his home, the undercover police

officer was intentionally maneuvering the

evidence into "plain view." It also ap-

pears that the police officers could have

secured a search warrant, but did not, in

violation of the Fourth Amendment. Cool-

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

It is inconceivable that the "plain view"

principle, which is premised on the pres-

ence of exigent circumstances, could jus-

tify the seizure of evidence by an under-

cover agent who had been living in Bald-

win's home for several months. This

-l6a-

unlimited and unchecked invasion of Bald-

win's privacy makes compelling the need

for judicial supervision by means of a

search warrant. This term the Supreme

Court said "the Fourth Amendment has drawn

a firm line at the entrace to the house.

Absent exigent circumstances, that thresh-

Old may not reasonably be crossed without

a warrant." Payton v. New York, __—iU.S.

(1980) (emphasis added). If we apply

that general principle to this case, I do

not believe the panel's view of this in-

trusion on Baldwin's rights can withstand

scrutiny.

V.

I fear that the court's holding de-

prives persons of their constitutional

rights once the government places the label

of "suspect" upon them. In order to meet

the Fourth Amendment's requirements of

-i fa~

7%

reasonableness, I am convinced that police

must obtain a search warrant in order to

plant an agent as a household employee or

in other legitimate activities in order to

seize evidence in anyone's home. In addi-

tion, agents may have to secure search

warrants in order to seize any piece of

evidence. Such a rule would be consistent

with the cases which permit police offi-

cers to seize evidence in “plain view"

without adopting a rule which severely

limits the scope of the Fourth Amendment.

This proposed rule would not inhibit the

legitimate undercover activities of the

police.

Chief Judge Edwards has authorized me

to say that in view of the importance and

difficulty of the issues in this appeal,

he joins in dissent from denial of an en

banc hearing.

-18a-

Accordingly, I respectfully dissent.

FOOTNOTE

For a thorough discussion of the ex--

pectation of privacy issue see United

States v. Bailey, No. 79-5092 Slip.

Op. (6th Cir., July 31, 1980) (Judge

Celebrezze, Keith and Phillips).

-19a-

Appendix B

NO. 79-5128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V. |

ARTHUR WAYNE BALDWIN,

Defendant-Appellant

me eee eee ee ee ee ee”

re ee ee ee ee ee _—

Before: KENNEDY and MARTIN, Circuit

Judges; and PECK, Senior

Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Arthur Wayne Baldwin appeals from a

jury conviction on three counts of posses-

sion of cocaine and one count of posses-

sion with intent to distribute cocaine.

-20a-

These offenses are set out in 21 U.S.C.

§§ 844(a) and 84l(a)(1), respectively.

Baldwin contends that the government's

evidence, gathered by an undercover police

agent, was obtained in violation of the

Fourth Amendment's search and seizure

provision. We disagree and affirm the

convictions.

In 1975, the Memphis, Tennessee

Police Department assigned Joseph Hoing

the duty of conducting surveillance of

Baldwin and the local nightclubs he

operated. Pursuant to this assignment,

Hoing gained Baldwin's confidence and

obtained employment as Baldwin's chauffeur

and general handyman. Hoing acted in this

capacity from July, 1975 untii Baldwin's

imprisonment for tax evasion in December,

1975. Hoing also worked at Baldwin's

Playgirl Clubs, first as a bartender and

-2la-

later as a club manager. Between July and

October, 1975, Baldwin and Hoing shared a

two-bedroom apartment. When Baldwin moved

to a house, Hoing occupied a downstairs

bedroom. Hoing testified that he had free

access to all parts of both residences,

including Baldwin's bedroom.

In the course of their association,

Hoing observed Baldwin use and distribute

a white powder which Hoing believed to be

cocaine. On four occasions, Hoing ob-

tained samples of this powder, subsequently

identified as cocaine by the police lab-

oratory. The first two samples came from

a tabletop in Baldwin's bedroom. Hoing

found the third while cleaning the floor-

board of Baldwin's autoiuobile, part of his

job as chauffeur. He retrieved the fourth

sample when Baldwin instructed him to

bring some "coke" from a dresser drawer to

-22a-

one of the nightclubs. Three of these

samples were introduced into evidence,

over Baldwin's objections. The trial

judge conducted a hearing on Baldwin's

motion to Suppress and issued a memo-

randum and order denying the motion.

On appeal, Baldwin argues that the

manner in which the government obtained

evidence against him violated the Fourth

Amendment. By analogy to the rules gov-

erning the use of electronic surveillance,

he contends that Hoing's undercover ac-

tivities, including his seizure of co-

caine samples, were illegal in the absence

of a search warrant. We disagree. Neither

the defendant's brief nor our own research

has revealed any precedent to support the

suggestion that the Fourth Amendment re-

guires law enforcement agencies to seek

prior judicial approval in the form of a

-23a-

warrant before utilizing an undercover

agent.

Baldwin emphasizes throughout his

argument that he never consented to the

presence of a "police spy" in his home

The Fourth Amendment, however, does not

protect wrongdoers from misplaced confi-

dence in their associates. Hoffa v.

United States, 385 U.S. 293, 87 S. Ct. 408,

17 L.~Ed.2d 374 (1966). On the contrary,

an agent may legitimately gain entrance

into a houge by misrepresenting his iden-

tity. Lewis v. United States, 385 U.S.

206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

The fact that Baldwin would not knowingly

have invited a police agent to share his

house does not render Hoing's presence

there illegal. We are not inclined to

disturb the trial judge's ruling that

Hoing did not exceed his authority when

-24a-

he entered Baldwin's bedroom or swept out

Baldwin's car.

If we accept the legality of

Howing's undercover activites generally,

we must still determine whether or not his

seizure of cocaine samples violates the

Fourth Amendment. Our cocaine samples

violates the Fourth Amendment. Our anal-

ysis begins with a basic constitutional

rule:

Searches conducted outside the

judicial process, without prior

approval by judge or magistrate

are per se unreasonable under

the Fourth Amendment - subject

only to a few specifically es-

tablished and well-delineated

exceptions.

Katz v. United States, 389 U.S. 347, 357,

88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1067).

The "plain view" doctrine is one such ex-

ception. United States v. Hare, 589 F.2d

1291 (6th Cir. 1979). On three occasions

-25a-

.%

-* *

Hoing confiscated cocaine that was in

"plain view" on a tabletop and the floor

of a car. Those seizures were well

within the rule of Hare, supra. Hoing

obtained the fourth sample pursuant to

Baldwin's specific instructions to bring

him some cocaine. There is no evidence

that Hoing ransacked Baldwin's personal

belongings in his search for contraband.

Lewis v. United States, supra.

Two leading cases Support our con-

clusions. United States v. Glassel, 488

F.2d 143 (9th Cir. 1973), cert. denied,

416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d

292 (1974), and United States v. Raines,

536 F.2d 796 (8th Cir.), cert. denied,

429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d

293 (1976). In Glassel, a police in-

former and an undercover narcotics agent

negotiated the sale of cocaine with the

-26a-

defendant. They were invited into a house

where Glassel met them and agreed to ex-

change the drugs. The court rejected

Glassel's fourth amendment argument and

upheld the seizure of cocaine. In Raines,

an agent posed as a friend of a drug

dealer who had already been arrested.

In this guise, the agent was invited into

Raines' home to explain to him what had

happened to their "mutual friend." The

agent then revealed his true identity and

informed eins that he believed marked

currency and drugs were on the premises.

The Court upheld Raines' arrest and the

agent's seizure of contraband.

In summary, Baldwin cannot invoke

the protection of the Fourth Amendment to

invalidate his convictions. Hoing's pres-

ence in the Baldwin household was legal,

as was his gathering of evidence which was

=-27a>

invalidate his convictions. Hoing's pres-

ence in the Baldwin household was legal,

as was his gathering of evidence which was

in plain view. Accordingly, the judgment

of the district court is affirmed.

-28a-

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA,

)

)

)

)

ARTHUR WAYNE BALDWIN, )

| )

Defendant )

)

)

MEMORANDUM DECISION AND ORDER

DENYING MOTION TO SUPPRESS

This cause is before the Court on the

motion of the defendant Baldwin to sup-

press certain evidence obtained by the

Government which is claimed by the Govern-

ment to be cocaine. An evidentiary hearing

has been held at which witnesses testified

-29a-

for the parties. The evidence that is

sought to be suppressed was obtained by an

officer of the Memphis Police Department

working in an undercover capacity.

It appears that Joe Hoing became an

officer in the Memphis Police Department

in April 1974 and was assigned an under-

cover capacity at the time he became an

officer. As aa of his job, Hoing began

to frequent the Playgirl Clubs here in

Memphis which were owned and operated by

the defendant Baldwin. Hoing first met

Baldwin in May of 1974 and, on recommenda-_

tion of one of Baldwin's bartenders, Hoing

went to work for Baldwin as a chauffeur

and handyman in July of 1975. At the time,

Baldwin had three or four automobiles to

be looked after and also appears to have

had custody of his fourteen year old son

who also had to be looked after. Hoing,

-30a-

as part of his job, not only acted as

chauffeur for Baldwin but also ran errands

and kept company with Baldwin's son.

In July of 1975, Baldwin took an

apartment on Raines Road here in Memphis

which was occupied, in addition to him-

self, by his girl friend or common law

wife, one Kathy Davis, by the son, Wayne

Baldwin, and, acocording to Hoing, by

Hoing himself. While Baldwin and Kathy

Davis denied that Hoing actually lived

in the apartment, it is without dispute

that, as part of his job, Hoing was re-

quired to be in and around the apartment

a great deal of the time between July of

1975 and October 1, 1975, on which latter

date Baldwin moved to a house.

When Baldwin moved to the house, also

in Memphis, it, again, was occupied by, in

addition to Baldwin himself, Kathy Davis

-3la-

-%

and his son, Wayne, and, according to

Hoing, by Hoing himself. Baldwin and Davis

deny that Hoing lived there for more than

a very short period, but it is without

dispute that his work required him to come

and go from the house on many occasions

and daily.

One of the samples claimed to be co-

caine was obtained by Hoing from Baldwin's

apartment on Raines Road, specifically

from the top of a dresser in his bedroom.

Hoing testified that he entered the bed-

room while Baldwin was taking a shower for

the purpose of talking to him, and saw a

white powdered substance lying on the

dresser, and he therefore took a sample of

it. Another sample was obtained from the

house, which was on Viking Road, in Octo-

ber of 1975. Hoing testified that, while

Standing in the door of the large master

-32a-

bedroom in which Baldwin and Davis slept,

he saw a plastic bagqqy which appeared to

have powder on it on a dresser, and there-

fore he took a sample of it. The third

sample was obtained by Hoing, he testi-

fied, when requested by Baldwin to clean

some trash out of the back end of Bald-

win's automobile; while this sample ap-

pears to be covered by the motion to sup-

press, it was not contended at the hearing

that such was suppressible. In any case,

there appears no ground to suppress it as

will be seen.

As we understand Baldwin's conten-

tion, it is that if, as he testified, Hoing

entered the bedroom in the apartment on

Raines Road or entered the bedroom in the

house on Viking Road, he did so without

authority and against the express direc-

tion from Baldwin. Thus, it is contended

-33a-

by Baldwin, the seizure of the samples was

illegal because Hoing had no consent from

Ba’ dwin to be where he was at the time he

obtained the samples. (While Baldwin does

not make a separate contention that Hoing

did not have reasonable cause to believe

that the substances he seized were co-

caine, it appears clear that he did have

such reasonable cause.)

The Court has reached the conclusion

that, in view of the nature of Hoing's em-

ployment, it is unreasonable to believe

that he did not have the run of both the

apartment on Raines Road and the house on

Viking Road. Certainly his employment was

extremely general, being both a chauffeur

and handyman, and his work seems to have

taken him throughout both places of abode.

Moreover, there seems to have been no rea-

son why Baldwin would have directed Hoing

-34a-

not to enter his bedroom. The proof is

undisputed that Baldwin, in Hoing's pres-

ence, used cocaine openly and on one occa-

sion sent Hoing on a mission to go to the

home and pick up some cocaine for Baldwin.

Still further, the proof is also without

dispute that neither the apartment on

Raines Road nor the house on Viking Road

were kept locked so that there does not

appear to have been any attempt on the

part of Baldwin generally to maintain

secrecy with respect to such abodes. And,

of course, with respect to the sample ob-

tained while cleaning out the automobile,

it was Hoing's specific job to do this

kind of work.

As a further indication of the rela-

tionship between Baldwin and Hoing and to

Support Hoing's contention that he had the

run of both abodes, shortly after these

-35a-

events, when it became necessary for Bald-

win to enter a federal institution as the

result of an income tax fraud conviction

in the State of Washington, Hoing was made

president of the corporation that owned

Baldwin's Playgirl Clubs.

Accordingly, it is the finding and

conclusion of the court that Hoing had

reasonable cause to believe that the pow-

ders he observed were cocaine and that,

at the time he seized the samples, he was

in position to see these powders with the

consent of defendant Baldwin.

It is therefore ORDERED that the

motion to suppress be and the same is

hereby denied.

ENTER this 13th day of June, 1977.

/s/

BAILEY BROWN

CHIEF JUDGE.

-36a-

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA, _ )

)

Vv. ) Cre No. 77-20011

)

ARTHUR WAYNE BALDWIN, )

)

Defendant )

)

a caaitaeneceninreniae a )

MEMORANDUM

In this case, a pretrial motion was

filed to suppress certain evidence and

this Court entered a memorandum decision

and order denying the motion to suppress

on June 13, 1977. As will be seen from

the memorandum, the basic contention of

the defendant was that the undercover

“Jia

policeman, Hoing, did not have the defen-

dant's permission or consent to be where

he was at the time he seized the sample

alleged to be cocaine. This court con-

cluded, as reflected by the memorandum

decision, that Hoing did have such con-

sent and therefore denied the motion to

Suppress.

During the trial, defendant renewed

the motion to suppress based on the con-

tention, in addition to that above dis-

cussed, that even if Hoing did have the

defendant's permission or consent the sei-

zure of the samples without a warrant was

an invalid seizure, basing this claim pri-

marily on Gouled v. United States, 65 L.Ed.

298. The Government, in turn, relied on

United States v. Glassel, 488 F.2d 143

(9th Cir. 1973) and United States v.

Raines, 536 F.2d 796 (8th Cir. 1976).

-38a-

While this question is not without

difficulty, this Court concluded at the

time the matter was presented during the

trial and still is of the opinion that the

evidence should not be suppressed. We hbe-

lieve that the circumstance presented here

can be distinguished from that in Gouled

in the important respect that here the

undercover policeman, Hoing, had the gen-

eral run of defendant's house with his

permission and was essentially living in

the defendant's house at the time of the

involved seizures. Moreover, while as an

undercover policeman, Hoing was instructed

to and did have his eyes and ears open

with respect to criminal activity, at the

time he came upon the white powder from

which he seized the samples, he was not

conducting a search ard therefore, it

would seem that the seizures would come

-39a-

within the “plain view" exception. Fur-

ther, it should be emphasized that there

was no evidence that the undercover po-

liceman, Hoing, was ransacking for evi-

dence at the time he came upon the white

powders from which he took the samples.

For completeness, we point out that

one of the samples was taken from a bag

which was among refuse on the floor of

defendants' automobile that Hoing was re-

quested, as chauffeur, to clean up and

throw away. All we have said with re-

spect to the other two samples would

apply, a fortiori, to this situation.

The motion to suppress was therefore

denied as reflected by the record at the

trial.

ENTER this 22 day of August, 1977.

/s/

BAILEY BROWN

CHIEF JUDGE

-40a-