Petition — Rhoades v. Arkansas

“Ottice-Susreme Court, U.S.

iL 2s

FER & 16

STEVAS,

CLERK

80-1356

’

IN THE :

Supreme Court Of The United States

OCTOBER TERM, 1980

Allan Rhoades and

David Emmerling Petitioners,

vs.

Arkansas Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

/ R. David Lewis

1109 Kavanaugh

Little Rock, Arkansas 72205

501/664-0818

Counsel for Petitioners

i.

QUESTIONS PRESENTED FOR REVIEW

1. Does the Fourth Amendment of the Constitution of the

United States bar the warrantless routine felony arrest and

search of defendants in their home, by ten police officers,

given ample probable cause andaexigent circumstances,

because one of those officers had been invited in on prior

occasions for negotiations of a marijuana sale?

2. If consent to an officer’s entry to the home may be

implied because of the officer’s earlier entries under the

misrepresentation that he was coming to purchase

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

permit the officer, to enter and, once inside, to arrest the

defendants and forceably seize the marijuana, or, on the

other hand, do Coolidge v. New Hampshire, 403 U.S. 443

(1961), Trupiano v. United States, 334 U.S. 699 (1948) and

Payton v. New York, US. ____, 100 S.Ct. 1371 63

L.Ed. 2d 639 (1980) prohibit it?

3. Ifan undercover officer has ample probable cause to

obtain a search warrant and ample opportunity to do so,

must he obtain a warrant before a search or may he enter

the home of the defendants by consent deceitfully obtained

and conduct a search?

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ii.

CONTENTS

Page

iy TB yd.) 4s yy | | a i iene mc: > e i

po A gp ts yc 9 | «SR nea ara Sr mg iii

OPINIONS BELOW............ sis deed gee eee 1

EE CA es 5 c:\-0 <p 400 5 BA ne ee 2

THE CONSTITUTIONAL PROVISIONS INVOLVED... .2

STATEMENT OF THE CASE... Senne eee SPREE 3

Facts including references to the record when

federal questions were raised................... 3

Probable Cause Hearing...............0.00005 3

MOET EV ile ans ov bebe eh a> ewes gS OR ORR RE 5

TOYS 6. eves ccvscescances cedure 9

REASONS RELIED UPON FOR ALLOWANCE OF THE

WES 6S cece btannvevideknssbeeknheeeni gee 10

1. The Lewis Decision Sufficiently Defines the Limits of

its Application and Review Will Reaffirm or Reduce

Those Limits to -Exclude the Extension by the

Arkansas Court and Others.................... 10

2. Review is Necessary to Resolve Conflicts Between the

Lewis Decision as Interpreted by the Circuit Courts

and the States’ Highest Courts................. 13

3. Review is Necessary to Resolve Conflicts Between

Lewis and Later Decisions of this Court Which Have

Possibly Overruled Lewits..................00. 16

EE ioe oc ceeoess ils ceed baeres Cokaeeuee 18

ED "sao. c's 5 ols’ oeawid' acn.0.00 «ne he web tee 20

iii

TABLE OF AUTHORITIES

Cases

Page

Arkansas v. Sanders, cf a oF se

2586, L.Ed. BG ete SON EER ae ey cue ons 9

Chapman v. United States, 365 U.S. 610, 81 S.Ct.

ec ER | a Oe Per ee ee ree 4

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

LR eS > | See 5

Dissent, Lewis and Osburn, 385 U.S. 340, 87 S.Ct.

eg Pe OF. er een ern 13

Gibbs ‘v. State, 225 Ark. 997, 504 S.W.2d 719 (1974). ...... 5

Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261,

ee MR os se oy sk Roe a ees 5

Hoffa v. United States,385 U.S. 293, 87 S.Ct. 408, 17

a I a ee eg 16

Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17

Se ME ass ei ek ak ov keke a vie Peak ee 5

Lo-Ji Sales, Inc. v. New York, ____. U.S. ___., 99

Ry RE rane 17

S.Ct. 2319,

-%

iv.

McDonald v. United States, 335 U.S. 451, 69 S.Ct.

es a SS og ce a ed wie ta ht ok dine awa es

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,

L.Ed. 2d EL SES Re cc eA

Osburn v. United States, 385 U.S. 323, 87 S.Ct. 429

Oy I as ae tien sc ecwcs od aedoews

Patterson v. People, 168 Colo. 417, 451 P. 2d

Ne NEN hc kawsbs we ecad ss bid

Payton v. New York, US. : S.Ct.

Se RO ee eee ree

People v. Greathouse, Colo. , 476 P. 2d

ERRORS eG a nl oe ae eR ER Ia a

People v. Henry,

IGN aS 7g Pa EC er ur oN ed a Boa

Preces v. Florida, Fla. , 378 So.2d 77 (1979) .:.....

Rhoades & Emmerling v. State of Ark., 270 Ark.

962, S.W.2d Re LN eee

Trupiano v. United States, 334 U.S. 699, 68 S.Ct.

1229, L.Ed. DR Sk a ania shy Ap a als

United States v. Dohm, 597 F. 2d 535 (5th Cir. 1979). ....

United States v. J. B. Kramer Grocery Co., 294 F.

PU. Be GN PAM IIIa oink ea diewbbescevebeness

United States v. Phillips, 497 F.2d 113, (9th Cir.

ARGS GRR SE OE Ee RA a or OP Sy OD

v.

Constitutional Provisions

United States Constitution, Amendment 4.

United States Constitution, Amendment 14

Statutes

Eee pee

TR Ea SR aera irom ge ee oa

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

BO vincsiccion

Allan Rhoades and

David Emmerling Petitioners,

vs.

Arkansas Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the Arkansas

Supreme Court in this case.

2.

OPINIONS BELOW

The opinion of the Arkansas Court of Appeals appears

as Rhoades and Emmerling v. State, 270 Ark. 962, ___

S.W.2d ___ (1980) and is reproduced in the Appendix, infra,

The orders of the Court of Appeals denying rehearing and

of the Arkansas Supreme Court denying review were

without opinion. The order of the Arkansas Supreme Court

denying review is also reproduced in the Appendix, infra.

ry

2

JURISDICTION

The Arkansas Court of Appeals entered its decree

on October 29, 1980. A petition for rehearing in the

Arkansas Court of Appeals was submitted November 19,

1980, and denied December 3, 1980. A petition for review of

this decision by the Arkansas Supreme Court was

submitted November 24, 1980, and denied December 8,

1980. Sixty days from December 8, 1980, is February 6,

1981.

This court has jurisdiction under 12 U.S.C. §1257 (3).

CONSITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, AMENDMENT 4

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

UNITED STATES CONSTITUTION, AMENDMENT 14

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the

laws.

3

STATEMENT OF THE CASE

Petitioners were accused by felony information of

committing the offense of possession of a controlled

substance with intent to deliver, to wit, 120 pounds of

marijuana, a felony. After a hearing on the petitioner's

motion to suppress, they were tried, convicted, and fined

$10,000 apiece and sentenced to two and one-half years in

the Arkansas Department of Corrections. Petitioners’

convictions were affirmed on appeal to the Arkansas Court

of Appeals and the Arkansas Supreme Court denied review.

Facts, including references to the record when federal

questions were raised.

Probable Cause Hearing

The facts which developed at the hearing to

determine probable cause were that the Arkansas State

Police conveyed information to Mike Sylvester of the Little

Rock Police Department that an individual in Michigan,

Kevin Ishmael, had set up the marijuana transaction with

the petitioners in Arkansas. Officer Sylvester met with Mr.

Ishmael at the Little Rock Airport October 31, 1978. On

leaving the terminal he was met by Rhoades and rode in

the Rhoades vehicle to the Rhoades’ residence. Officer

Sylvester observed about six pounds of marijuana at the

home. When Officer Sylvester told petitioner Rhoades that

the marijuana was deficient in quality, Rhoades suggested

they visit petitioner Emmerling in another county.

Officer Sylvester drove petitioner Rhoades to

petitioner Emmerling’s home in an undercover police car.

At that point officer Sylvester and petitioners loaded

approximately sixty pounds of marijuana into the police car

4

which officer Sylvester drove to Rhoades’ residence and

helped Rhoades load into his home.

About 9 p.m. Officer Sylvester left the company of

the petitioners for the evening during which interval Mr.

Emmerling delivered approximately forty more pounds

of marijuana to Rhoades’ residence. Officer Sylvester called

at 10:15 a.m. and talked to Rhoades who stated that the rest

of the marijuana was at the residence. Officer Sylvester

arrived at the residence at 11:00 a.m. and upon entering the

residence saw large quantities of marijuana. The officer

assisted the petitioners in weighing and bagging the ©

marijuana at Rhoades’ residence.

Officer Sylvester left the residence at 11:30 for a

conference with the other officers. Officer Sylvester stated

that he returned to the residence and on a pre-arranged

signal the remaining officers came to the residence and

assisted in the arrest of the petitioners.

At the conclusion of that hearing petitioners moved

to suppress all of the evidence on the grounds that there

was no search warrant and any consent was obtained by

fraud. That motion was overruled. (T. 126)

Between that hearing and trial petitioners filed a

motion to suppress on the grounds there was no search

warrant, no arrest warrant, nor consent, nor exigent

circumstances, citing Chapman v. United States, 365 U.S.

610, 81 S.Ct. 776, 5 L.Ed.2d 824 (1961); Trupiano v. United

States, 334 U.S. 699, 68 S.Ct. 1229 ___ L.Ed. _____ (1948)

and Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).

(T. 126-129)

5

Petitioners filed an additional motion to suppress

prior to trial on grounds of fraud and deceit, citing Gouled v.

United States, 255 U.S.2 98, 41 S.Ct. 261, 65 L.Ed. 647

(1971); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

202, 29 L.Ed.2d 564 (1971); United States v. J.B. Kramer

Grocery Co., 294 F.Supp. 265 (E.D. Ark. 1969); and Gibbs v.

State, 255 Ark. 997, 504 S.W.2d 719 (1974). (T. 31-T. 33) In

response thereto the state cited Lewis v. United States, 385

U.S. 206, 87 S.Ct. 424, 17 L.Ed. 312 (1966) and Garrison v.

State, 257 Ark. 139, 515 S.W.2d 221 (1974). The record does

not reveal that these motions were specifically ruled on

prior to trial although they were effectively ruled on during

the trial.

‘Trial

At trial the evidence which was delivered at the

hearing on probable cause appeared in more detail.

Officer Sylvester stated that he came in contact with

Allan Rhoades at 1:45 in the afternoon. After arriving at the

Rhoades’ home he saw three or four pounds of marijuana of

poor quality and rejected it. At 3:10 p.m. Mrs. Rhoades

drove Sylvester to a Ford dealership where he picked up a

leased car which was used by him in his undercover

capacity. He returned to the Rhoades residence at

approximately 4:20 that afternoon.

Upon returning, Rhoades said that he had contacted

petitioner Emmerling and had made arrangements for

Rhoades and the officer to drive to Fairfield Bay to pick up

approximately fifty pounds of marijuana from Emmerling.

Rhoades and officer Sylvester arrived in the police car at

Emmerling’s residence at 6:45 p.m. At that time Emmerling

exhibited two large green garbage bags of marijuana to the

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6

officer and the officer took a quarter pound sample. The

petitioners agreed to sell marijuana to him at that time.

Emmerling agreed to drive to Texarkana, Texas during the

night and meet the officer and Rhoades at Rhoades’

residence the next morning with more marijuana.

At approximately 7:00 p.m. officer Sylvester left the

two petitioners at Emmerling’s residence and met with

other police officers on the outskirts of town. He returned

to the Emmierling residence approximately twenty-five

minutes later.

At this point in. the trial the petitioners renewed all

objections and movea for a continuing objection to

references to marijuana during the trial. The Court stated it

would consider the continuing objections made but did not

rule on the objection. (T. 145)

After Sylvester returned to the Emmerling

residence, Emmerling loaded about thirty more pounds of

marijuana into the trunk of the police car. Rhoades and the

officer then transported the marijuana back to Rhoades’

residence and the officer assisted Rhoades in loading the

marijuana into the house. He left Rhoades’ residence at 9:00

p.m. and was not in the presence of either of the petitioners

until 11:00 the next morning. When he called the petitioners

the next morning they told him on the telephone that

Emmerling was back from Texas and the petitioners were

ready to complete the transaction. The officer returned to

the Rhoades’ residence and assisted the petitioners in

weighing and bagging the marijuana into twenty-three five

pound bags.

The officer left at that time and advised the

surveillance team what he had viewed inside the residence.

7

The officers agreed that when Sylvester backed his vehicle

to the front door of the residence and opened the trunk that

the rest of the surveillance team was to come to the

residence and assist him in apprehending the petitioners.

The officer returned to Rhoades’ residence at

approximately 11:50 and at that time he observed the rest of

the marijuana packaged. He left the residence again telling

petitioners he had the money in a bank bag in the trunk of

his vehicle. He went outside, got in his vehicle and backed it

up to the front door of the residence, opening the trunk. He

stalled for a short period of time to give the surveillance

officers a reasonable amount of time to arrive and then

entered the residence and advised the petitioners that he

was a narcotics officer. At that time ten other officers

éntered the residence. Along with the marijuana, they

seized an address book.

At this point petitioners renewed their objection to

the introduction of the marijuana in evidence on the

grounds of a lack of a search warrant, which objection was

denied. (T. 153)

Officer Sylveste testified that he was known to

petitioners as a purchaser of marijuana. He had

participated in smoking in that he had simulated smoking

marijuana. He had mentioned the sum of $30,000, but never

had a nickle and never had any intention of going through

with the transaction. His sole purpose was to amass a

quantity of marijuana and arrest the defendants for

possession.

He was at the residence several times but never had

a search warrant. At no time did he ask to search the

residence. He had never alerted the petitioners that he was

8

working for the state police as an undercover officer. They

were under the assumption that he was selling narcotics

himself and that his name was Michael.

He stated he moved the duffle bag into the house and

that Emmerling had stated it was marijuana. He knew what

was in the green plastic bags that were moved into the

house. He knew where the bags were and where the house

was. He knew he had until 9:00 p.m. until the next morning

about 11:50 to get a warrant. The officer testified in

chambers that he had obtained search warrants two or

three hundred times over the last five years.

Late in the trial petitioners again moved to suppress

the evidence on the grounds that the officer had no

justification for not getting a search warrant. That motion

was overruled. (T. 183)

At the conclusion of the state’s case the motions

were renewed although the record does not reflect that trial

court disposed of the renewed motions. (T. 220-221)

Petitioners submitted an instruction that the burden

of proof on entrapment lay with the state, relying on

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 ___ L.Ed.2d

____ (1975). That instruction was refused.

The defendants were each convicted of possession of

marijuana with intent to deliver, sentenced to two and one-

half years in the Arkansas Department of Corrections and

fined $10,000 apiece.

9

APPEAL

On appeal to the Arkansas Court of Appeals the

petitioners argued that the evidence seized should not have

been admitted because there was no search or arrest

warrant in the fact of ample probable cause and time to

obtain a warrant. They cited the cases cited to the trial

court and in addition, cited Arkansas v. Sanders, ___ U.S.

—— 99 S.Ct. 2586 ___ L.Ed.2d ____ (1979) and Payton v.

New York, ____ US. : S.Ct. ___ 63 L.Ed.2d 639

(1980). The state, on appeal, relied principally on Lewis v.

United States, supra.

Petitioners also argued that the state should have

had the burden of proof on entrapment, citing Mullaney v.

Wilbur, supra.

THE RULING BELOW

The Arkansas Court acknowledged that it was being

asked to extend the rationale in Lewis, supra, where an

arrest occurred as a result of analysis of contraband which

was purchased and carried away by an undercover agent

who had gained entry by deception. In the present case a

forceable seizure occurred on the premises to which entry

had been gained by deception, according to the facts as

construed by the Arkanas court. Petitioners contend that

entry was not gained by deception in the present case, but

that the officer along with all the other surveillance officers

entered the residence uninvited and by force although the

petitioners expected the undercover officer to return as he

had stated he was merely going to his car to get the bank

bag. However, he had no bank bag and never intended to

purchase the marijuana.

10

The Arkansas Court relied on Patterson v. People,

____ Colo. ___, 451 P.2d 445 (1969). That court approved of

a seizure of stolen goods by an undercover officer who was

present in the home of the defendant under the guise of

being a prospective purchaser of the stolen goods.

In its opinion the Arkansas Court acknowledged

petitioner’s arguments from Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022 __._ L.Ed.2d _____ (1971);

Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, __

L.Ed.2d ___ (1948) and Payton v. New York, ___ U.S. __,

___ S.Ct. ___, 63 L.Ed.2d 639 (1980), but stated:

“It is enough, however, to say here that none of these

cases involve the exception created by the Lewis case

which was based upon an invited entry for the purpose

of a transaction involving contraband, and thus a

waiver of Fourth Amendment rights.”

The Arkansas court held defendants had the burden

of proof on entrapment, at least in state court citing Ark.

Stat. 41-110 (4) and 41-209.

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT OF CERTIORARI

1. The Lewis Decision Sufficiently Defines the Limits

of its Application and Review Will Reaffirm or Reduce Those

Limits to Exclude the Extension by the Arkansas Court and

Others.

The undercover officer in Lewis, after identifying

himself with a false name, purchased marijuana from Lewis.

He carried the marijuana from the premises without

forceable seizure. He repeated the same procedure two

ll

weeks later and Lewis was arrested some four months

later. The marijuana which was taken from the defendant’s

home with his consent was introduced and the defendant

was convicted. The court said:

“During neither of his visits to petitioner’s home, did

agent hear, or take anything that was not

contemplated, and in fact intended, by petitioner as a

necessary part of his illegal business.”

It is obvious that the present case is a completely different

situation involving entry by implied consent but resulting in

forceable seizure of marijuana. The Arkansas Court

recognized this and stated it was entending Lewis to these

facts.

The Lewis opinion further said:

“But when, as here, the home is converted into a

commercial center to which outsiders are invited for

purposes of 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.”

This does not mean however, that once an agent obtains

entry by deceit that he can enter in the future by force with

ten other officers for other purposes, that is, arrest. That is,

the Fourth Amendment is not waived for all purposes, for

all times or for all people. It also does not mean that Lewis

waived the Fourth Amendment because of his unlawful act

as this rationale would limit the protection of the Fourth

Amendment to the innocent. Neither does it mean that a

store does not have Fourth Amendment protections.

12

The Lewis opinion further commented:

“Of course, this does not mean that, whenever entry is

obtained by invitation and the locus is characterized as

a place of business, an agent is authorized to conduct a

general search for incriminating materials; a citation to

the Gouled case, supra, is sufficient to dispose of that

contention.”

The search in this case resulted in not only the seizure of

the marijuana but of an address book of one of the

petitioners which would indicate that this was indeed a

general search.

The present situation was not intended by this Court

to be included within the Lewis rationale. Footnote four to

Lewis states:

“Counsel further suggested that, if the agent had

arrested petitioner at the latter’s home and then

conducted a search incidental to the arrest, no

constitutional problem would be presented.”

The petitioners before the bar do not so stipulate and insist

that such a search was unconstitutional under, among other

cases, Trupiano v. United States, 334 U.S. 699, 68 S.Ct.

1229, 92 L.Ed. 1663 (1948), where arrest was deemed legal

but the search illegal because there was probable cause to

search for the items seized and ample opportunity to obtain:

a warrant just as in the present situation.

The Lewis decision expressly distinguished the

Lewis facts from the present facts. The opinion states:

“Finally, petitioner also relies on . . . MeDonald v.

United States, 335 U.S. 451, 69 S.Ct. 191, $3 L.Ed. 153

(1948); and Johnson v. United States, 33 U.S. 10, 68

|

13

S.Ct. 367, 92 L.Ed. 436 (1948). But those cases all dealt

with the exclusion of evidence that had been forceably

seized against the suspect’s desires and without the

authorization conferred by search warrants. A reading

of them will readily demonstrate that they are

inopposite to the facts of this case; and, in this area,

each case must be judged on its own particular facts.”

Those facts which the Lewis court expressly

excluded from the rationale of that decision, are the facts of

the present case. In McDonald there was a lawful arrest

because the officers saw the defendant committing an

offense. However, the court rejected the search because

there were no compelling reasons to justify the absence of a

search wari %t.

There was a powerful dissent to Lewis and Osburn v.

United States, 385 U.S. 323, 17 L.Ed.2d 394, 87 S.Ct. 429

(1967), decided the same day as Lewis which dissent

appeared at 385 U.S. 340, 87 S.Ct. ___, 17 L.Ed. 405 in

which Justice Douglas stated:

“Entering another’s home in disguise to obtain

evidence is a “search” that should bring into play all

the protective features of the Fourth Amendment.

When the agent in Lewis had reason for believing that

petitioner possessed narcotics, a search warrant

should have been obtained.”

w~

Petitioners feel Justice Douglas was right and

submit that the Lewis decision should be re-examined to

either reaffirm its limits or reduce them to require a

warrant whenever probable cause exists, disguise or not.

2. Review is Necessary to Resolve Conflicts Between

the Lewis Decision as Interpreted by the Circuit Courts and

the States’ Highest Courts.

°%

7?

14

If this court accepts the view of the 9th Circuit in

United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974), of

Lewis then this case must be reversed. There, narcotics

officers entered Phillips’ office by the ruse of having

uniformed officers knock on the door at midnight asking for

entry to investigate a report of burglary. There had been no

such report. When the door was opened, the uniformed

policemen entered followed immediately by narcotics

agents. Once inside, the narcotics agents announced they

were securing the premises prior to getting a warrant. The

defendant voluntarily surrendered cocaine. That court

distinguished these facts from Lewis because in Lewis the

officer was invited in for the very purposes contemplated

by the occupant where as in Phillips the officer was invited

in for the stated purpose of a burglary investigation but he

was actually entering to arrest Phillips. In the present case

of course, the petitioners were led to believe that the officer

was entering for the purpose of paying for narcotics when in

fact, he had no such intention and intended to arrest them

and search the house, assisted by the other officers who

entered behind him.

A similarily limiting view of Lewis appears in United

States v. Jones, 292 F. Supp. (1010 D.D.C. 1968). There an

informant was carrying a transmitter without a warrant.

The court ruled not only can the transmissions from the

transmitter not be introduced but the informant cannot

testify as to conversations which were transmitted when a

warrant could have been obtained. In the present case since

a warrant could have been obtained, the product of the

entry, marijuana, not conversations, is not admissible.

The Fifth Circuit took the opposite view from the

Ninth Circuit in United States v. Dohm, 597 F.2d 535 (5th

Cir. 1979) reversed on other grounds on rehearing, 618 F.2d

15

1169 (5th Cir. 1980). The court approved the forcible entry of

an undercover agent and other agents after the undercover

agent had previously been invited by deception. Lewis was

cited as authority. However, there are two major factual

distinctions between that and the present case. Firstly, in

that case there was no probable cause for search because

the agent did not know what the source of supply of the

narcotics was until he got here immediately prior to the re-

entry. Secondly, the court said: .

“Immediate re-entry with minimum disturbance was

‘necessary to prevent disposal of the cocaine, a powder

which can easily be flushed down 2 toilet’ ”.

The same cannot be said for 100 pounds of marijuana.

However, the Fifth Circuit’s reliance on Lewis makes it a

dangerous extension of Lewis merely than a case of exigent

circumstances as it should have been.

Colorado Supreme Court decisions seem to be

expanding the rationale of the Lewis case in the direction

that the Arkansas court did. In Patterson v. People, ___

Colo. __, 451 P.2d 445 (1969) cited in the Arkansas Court of

Appeals’ opinion, the sheriff was invited to Patterson’s

apartment for the purpose of transacting an illegal sale of

an aircraft radio. The aircraft radio was displayed to the

sheriff. A few minutes later three officers appeared at the

door and Patterson was arrested. Lewis was authority for

that decision affirming the conviction. However, that

opinion also indicates that a warrant could not have been

obtained prior to entry by the sheriff because:

“When the sheriff came to Patterson's apartment, he

was merely investigating the possibility that Patterson

may have been involved in the airport theft.”

16

The opinion then states that an officer has no

obligation to cease his investigative activities at the first

appearance of probable cause, citing Hoffa v. United States,

385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1967). Petitioners

do not contend that the investigation should have ceased,

only that a warrant should have been obtained before it

continued.

See also People v. Henry, 482 P.2d 357 (1971) and

People v. Greathouse, ___ Colo. ___ 476 P.2d 259 (1970) for

similar holdings. Neither of the searches in those cases

appeared to be with probable cause.

. This Court denied on December 2, 1980, review of

the decision in the Preces v. Florida, __ Fla. __, 378 So.2d

77 (1979), which is factually similar to the present case.

Petitioners submit that entry by deception after probable.

cause is obtained is probably a daily occurrence in every

state of the union and this court should grant certiorari to

re-analyze Lewis in light of the divergent opinions of it.

3. Review is Necessary To Resolve Conflicts Between

Lewis and Later Decisions of This Court Which Have Possibly

‘Overruled Lewis.

The Arkansas Court stated that Lewis is an

exception to Coolidge v. New Hampshire, supra, Trupiano v.

United States, supra and Payton v. New York, supra, all of

which require warrants where there is probable cause. Since

Lewis does not refer to any of these decisions and they do not

refer to Lewis it would appear that there is no authority for

that statement. Additionally, the obligation to obtain a warrant

in the absence of exigent circumstances where probable cause

exists was strengthened in Arkansas v. Sanders, ___ US. |

—_—, 99 S.Ct. 2586 ___ L.Ed.2d (1979). That case also did not |

appear to make an exception for searches by deceit.

17

Further weakening the decision in Lewis was the

decision in Lo-Ji Sales, Inc. v. New York, ___ U.S. ___ 99

S.Ct. 2319, ___ L.Ed.2d ____ (1979). Lewis is usually cited

for the proposition that when one opens his home for

commercial endeavors he waives the Fourth Amendment.

The court in Lo-Ji held:

“But there is no basis for the notion that because a

retail store invites the public to enter, it consents to

wholesale searches and seizures that do not conform to

the Fourth Amendment guarantees. See Lewis v.

United States, [supraj.”

18

CONCLUSION

Petitioners see no reason why the obligation to

obtain a warrant upon probable cause should not apply to

undercover agents who could also obtain entry by consent.

In the present case Officer Sylvester had from 9:00 p.m.

until 11:30 a.m. the next day to obtain a warrant. He could

not say that he did not have probable cause as he had seen

the marijuana, transported the marijuana, loaded it into the

home of the petitioners himself, and had a sample of it in his

possession. If this was not probable cause, there has never

been probable cause.

If there was ever a question which reaches into the

heart of every city on virtually every day it is whether a

warrantless undercover narcotics officer can enter the home

of a defendant when he could have obtained a search warrant

if he had wanted to. The frequency of this question together

with an apparent division of views of Lewis, make it

appropriate for this Court to make the obligations of

undercover officers more clear.

Deceit has largely displaced investigation in criminal

prosecutions. Petitioners submit that the framers of the

Fourth Amendment would be surprised to find an exception

for government deceit in the Constitution of the country

they established because of government oppression.

Respectfully submitted,

R. David Lewis

Attorney for Petitioners

19

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies of the foregoing

PETITION FOR WRIT OF CERTIORARI with APPENDIX

aave been served by mail on counsel for respondent,

addressed as follows: Honorable Steve Clark, Attorney

General for the State of Arkanas, Justice Building, State

Capitol Grounds, Little Rock, Arkansas 72201, this

day of February, 1981.

R. David Lewis

20

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

ARKANSAS COURT OF APPEALS

Opinion Delivered October 29, 1980

No. CACR 80-31

ALLAN RHOADES and APPEAL FROM THE CIRCUIT

DAVID EMMERLING, COURT OF FAULKNER

COUNTY, 12TH JUDICIAL

Appellants DISTRICT

v.

HONORABLE GEORGE F.

STATE OF ARKANSAS, HARTUJE, Circuit Judge

Appellee Affirmed.

DAVID NEWBERN, Judge

The main question presented is whether the trial

court erred in admitting into evidence marijuana seized at

the time the appellants were arrested. That issue centers

upon the decision in Lewis v. United States, 385 U.S. 206, 87

S.Ct. 424 (1966), and the problem presented when an

undercover police agent obtains entry into a suspect's home

by ruse, and the entry results in the seizure of contraband.

The state has asked us to extend the rationale of the Lewis

case. There, an arrest occurred as a result of analysis of

contraband which was purchased and carried away by an

undercover police agent who had gained entry by deception.

Here, a “seizure” occurred on the premises to which entry

had been obtained by deception. We agree the Lewis

rationale may be so extended, and thus we affirm. The

21

appellants have raised other points which will also be

discussed.

With the assistance of undercover police officer

Sylvester, the appellants assembled a large quantity of

marijuana at the mobile home of the appellant Rhoades and

his spouse. The reason it was brought there was so that it

might be purchased by Sylvester who was posing as a “big

money man” who wanted to purchase a large quantity of

marijuana. Sylvester had been introduced to Mr. and Mrs.

Rhoades by a police informant who had worked with

Michigan authorities and who had informed Arkansas

officials that a large quantity of marijuana could be

purchased from the Rhoades. Sylvester had rejected the

first offer of marijuana by the Rhoades because it was of

insufficient quality. This led them to seek more and better

marijuana from appellant Emmerling’s home at Fairfield

Bay and from another source in Texarkana. Sylvester

ultimately helped place the assembled marijuana in some 24

bags in the Rhoades’ home. On the pretext of leaving to

obtain the purchase money from his car, Sylvester moved

his car to the front door of the Rhoades’ home and raised the

trunk lid, thus signaling an assembled surveillance team of

officers to approach the home. Sylvester then entered again

and announced he was a police officer and that the

appellants were under arrest for possession of marijuana.

No warrant for the arrest or search or seizure had been

issued.

1. Warrantless seizure.

In Lewis v. United States, supra, the undercover

police officer, as in this case, had been invited into the

defendants’ home for the purpose of purchasing narcotics,

22 .

and the defendants contended the intrusion violated the

Fourth Amendment to the United States Constitution.

There, no warrant had been issued as in this case, but there

is an important factual distinction between the cases. In

Lewis, no contraband was seized. Rather, marijuana was

purchased by the undercover police officer and taken away

from defendants’ home. The arrest occurred later.

The contention of the defendant in the Lewis case

was that the entry upon his premises was obtained by fraud

and that thus the marijuana removed from his premises

should not have been introduced into evidence. The United

States Supreme Court rejected that contention and stated:

Without question, the home is accorded the full range

of Fourth Amendment protections. See Amos v.

United States, 255 U.S. 313 (1921); Harris v. United

States, 331 U.S. 145, 151, n. 15 (1947). But when, as

here, the home is converted into a commercial center to

which outsiders are invited for purposes of transacting

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 government 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

oecupant. [206 U.S. at pg. 211].

Thus, under the facts of the Lewis case the protection of the

Fourth Amendment was held to have been forfeited by the

defendant.

Certainly the principle behind the Lewis decision is

broad enough to apply here. We have found it thus applied in

one other jurisdiction. In the case of Patterson v. People, 451

P.2d 445 (Colo. 1969) 168 Colo. Rptr. 417, there was a seizure of

stolen goods by an undercover sheriff's officer who was

23

present in the home of the defendant under the guise of being

a prospective purchaser of the stolen goods. The Colorado

Supreme Court cited the Lewis case and the language quoted

above for the proposition that “when one opens his home to

the transaction of business and invites another to come in and

trade with him,” he loses his right to privacy which would

otherwise be protected by the Fourth Amendment. See also,

People v. Henry, 482 P.2d 357 (Colo. 1971).

With respect to this point, the appellants have cited a

number of other cases dealing with search and seizure. For

example, they have cited Coolidge v. New Hampshire, 403

US. 448, 91 S.Ct. 2022 (1971), and its progeny for the

proposition that a warrantless search may not be conducted

absent exigent circumstances, and for the proposition that the

“plain view doctrine” does not apply in a case such as this one.

They have also cited Trupiano v. United States, 334 U.S. 699,

68 S.Ct. 1229 (1948), for the point that an arrest incident to

which evidence theretofore known to be present at the place

of arrest does not authorize a warrantless search and seizure,

and the most recent Payton v. New York, 63 L.Ed.2d 639

(1980), which dealt with a warrantless entrance into a

suspect's home to make a routine felony arrest absent exigent

circumstances. We understand the point the appellants seek

to make with these citations, and we understand and share the

reluctance of the United States Supreme Court to permit

searches and seizures in violation of the privacies guaranteed

by the Fourth Amendment. It is enough, however, to say here

that none of these cases involved the exception created by the

Lewis case which was based upon an invited entrance for the

purpose of a transaction involving contraband, and thus a

waiver of Fourth Amendment rights.

We hasten to point out that we do not believe the

United States Supreme Court intended in the Lewis case to

24

condone just any action which might be taken by law

enforcement officials who gain entry by deceit for the

purpose of conducting a contraband transaction. Their

actions must be reasonable under the circumstances. The

opinion in the Lewis case states at least one limitation, i.e.,

that an invited entry does not authorize “a general search

for incriminating material.” (385 U.S. at 211). We can readily

imagine many other limitations, and thus we emphasize

each case involving the extension of the Lewis doctrine, as

by the Colorado Court and here, must depend upon the facts

showing reasonableness or unreasonableness of the

activities of the police.

2. Entrapment.

For the proposition that the appellants have been

entrapped, they cite United States v. Twigg, 588 F.2d 373

(3rd Cir. 1978), and United States v. Hastings, 477 F. Supp.

534 (E.D. Ark. 1977). The Twigg case is inapplicable because

there it was clear that government authorities supplied the

suspect the most difficult ingredient to obtain for the

manufacture of an illegal drug as well as a large percentage

of necessary laboratory equipment, and they even supplied

the place in which the laboratory was set up. The conduct of

the police was labeled “outrageous” by the court. The same

label was applied in the Hastings case where a government

informant actually stole an item for the purpose of selling it

to the defendants who were then charged with purchasing

stolen property. In the case before us there has been no

such “cutrageous” conduct. Rather, this seems to have been

a routine undercover operation. The initial inducement to

commit the offense charged did not come from government

authorities. It is obvious the appellants were well

predisposed to obtain and sell marijuana to the officer.

Merely affording one an opportunity to do that which he is

25

otherwise ready, willing and able to do is not entrapment.

Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

3. Evidence obtained by fraud and deceit.

This point is closely related to the first two. Here the

appellants contend their motion to suppress the evidence

obtained by fraud and deceit should have been granted. The

appellants’ basic citation is Gouled v. United States, 255

U.S. 298, 41 S.Ct. 261 (1921). That case was distinguished by

the Supreme Court in the Lewis opinion because it involved

not only entry by deceit, but a subsequent ransacking of the

premises for the purpose of obtaining a particular piece of

evidence. Equally distinguishable is the appellants’ citation

of Barnato v. State, 88 Nev. 508, 501 P.2d 643 (1972), in

which the opinion dealt with officers who entered premises

for an announced purpose completely unrelated to

searching for marijuana but then surreptitiously took a leaf,

which turned out to be marijuana, without the knowledge or

consent of the suspect. Neither of those cases involved an

invited entry for the purpose of conducting a transaction

involving contraband which was ultimately seized.

The appellants also cite United States v. J.D.

Kramer Grocery Co., 294 F. Supp. 65 (E.D. Ark. 1969).

There, an officer obtained entry by misrepresentation

which was also coercive in that he stated to the suspect that

he had a right to inspect the premises without a warrant.

Also cited are White v. State, 261 Ark. 23 D, 545 S.W.2d 641

(1977), where a consent to search was found negated by the

suspect's drunkenness and Gibbs v. State, 259 Ark. 997, 504

S.W.2d 719 (1974), in which our supreme court dealt with a

seizure of allegedly obscene material absent a prior hearing

to determine whether it was or was not obscene. In the

course of the Gibbs opinion, the supreme court referred to.

26

the state’s contention that the seizure was consensual and

said that conteution lacked merit because the suspect on the

premises did not know that the persons who came in and

asked to see the movies in question were police officers.

Neither the White case nor the Gibbs case involved a

taking of such obvious contraband as the marijuana in this

case. In Gibbs, the opinion does not say how the result

would have differed had the suspect known the officers

were policemen. That factor was not crucial to the result in

that case where the real issue concerned “prior restraint”

and the First Amendment requirement of a hearing before

seizure to determine if the matter in question is obscene.

4. Entrapment burden of proof

The appellants cite several cases holding that the

burden of proof should be upon the government to show

lack of entrapment. The cases cited, however, deal with that

burden as it is assigned in the federal courts. In this

jurisdiction, entrapment is an affirmative defense, and the

court was correct in instructing the jury that the appellants

had the burden of proof on this issue. See, Ark. Stat. Ann.,

§41-209 (1) (Repl. 1977), and Ark. Stat. Ann. §41-110 (4)

(Repl. 1977), and Spears v. State, supra.

5. Sentencing instruction.

The appellants argue they were entitled to an

instruction to the effect that the jury could find them guilty

and give them no fine or imprisonment. The argument is

that because Ark. Stat. Ann., §41-803 (3) (Repl. 1977), states

that a defendant convicted of other than capital murder may

be sentenced to a term of imprisonment, a fine, or both, and

because the fine for a class C felony, in accordance with

27

Ark. Stat. Ann., §41-1101 (1) (b) (Repl. 1977), is “not more

than $10,000,” the jury could have chosen the fine

alternative and rendered a fine of zero dollars. While we

applaud the appellants’ counsel's originality displayed in

this argument, we agree with the appellee that the court,

and not the jury, has the power to suspend imposition of

sentence. See Ark. Stat. Ann., §41-803 (4) (Repl. 1977). We

agree with the appellee that it was correct for the court to

refuse to give an instruction which would have had the

effect of permitting the jury to do that which is reserved for

the court.

6. The amount of marijuana possessed.

The appellants’ final argument is that because the

expert who testified at the trial tested less than an ounce of

marijuana taken from that which was seized, there was no

evidence they possessed more than an ounce, and thus the

evidence was insufficient to convict them of possession of

more than one ounce of marijuana. The testimony in

question came from the appellee’s expert who said he took a

sample from each of the 24 bags which had been seized. The

net weight of the substance seized was 99 pounds.

Each of the 24 samples weighed approximately one

gram. The amount tested was thus less than one ounce. The

testimony of the expert was that in his opinion each of the

bags contained marijuana. To say that there was no

evidence that more than an ounce of marijuana was present

would require us to assume the expert, in taking a “sample”

from each bag was somehow able to obtain virtually all of

the marijuana in each and that the remainder of the 99

pounds was some other substance. Such an assumption

would be, to say the least, unreasonable.

Affirmed.

28

LAW OR CHANCERY MANDATE

STATE OF ARKANSAS, )

(SCT.

Inthe Supreme Court )

BE IT REMEMBERED, That at a term of the

Supreme Court of the State of Arkansas, begun and held at

the Court Room in the City of Little Rock, on the 6th day,

being the first Monday of October, A.D. 1980, amongst

others were the following proceedings, to-wit:

On the 8th day of December, A.D. 1980, a day of said

term

ALLAN RHOADES &

DAVID EMMERLING

Appellants Appeal from Faulkner

Circuit Court

No. CR 80-247 vs. District

STATE OF ARKANSAS

Appellee

Petition for Review is denied.