# Petition — Arthur Wayne Baldwin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1012%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1045 ## Text 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 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1012%3A1. Public record. Not legal advice.