Petition — Fletcher v. United States

Office Supre me Court, U.S. |

oh & D |

80-1657 i ioe |

No. 4pR 2 ae ;

ANNIE

gene CLERK ee

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980 ’

LYNN EDWARD FLETCHER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM B. MOFFITT

J. FLowerRs MARK

NINA J. GINSBERG

MARK & MOFFITT, P.C.

1001 Duke Street

Alexandria, Virginia 22314

(703) 549-4333

GERALD BRUCE LEE

LAW OFFICES OF

GERALD BRUCE LEE

1001 Duke Street

Alexandria, Virginia 22314

(703) 549-1172

Attorneys for Petitioner.

ERA EERE KT SERENA RBRENRADEREONS eR Lo ET

Washington, OC « THIEL PRESS © (202) 638-4621

April 2, 1981

literal acnidl

IT.

Iil.

(:)

QUESTIONS PRESENTED

Whether a finding of probable cause to arrest

persons suspected of criminal activity could consti-

tutionally have authorized the blanket arrest, with-

out a warrant, of visitors at a private hotel room,

where the sole basis for the blanket arrest, was the

visitors’ presence in the hotel room and the belief by

DEA agents that the room was frequented by

persons connected with the suspected criminal

activity? |

Whether the arrest, without a warrant of petitioner,

in a private hotel room, was constitutionally author-

ized where DEA agents could not establish petition-

er’s actual connection with either the premises, or

the suspected unlawful activity, and where his arrest

was based upon mere propinquity of his person to

others independently suspected of criminal activity?

Whether the sixth amendment guaranty of effective

assistance of counsel and the fifth amendment right

to due process of law were violated when the

District Court denied petitioner’s motion for con-

tinuance after petitioner was abandoned by retained

counsel and forced to proceed to trial with substi-

tute counsel who acknowledged his unpreparedness

to proceed.

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION OF THE COURT BELOW

JURISDICTION

II.

Ill.

CONCLUSION

(:t)

‘TABLE OF CONTENTS

The Decision Of The Court Of Appeals, Uphold-

ing A Finding Of Probable Cause For Petitioner’s

Arrest, Which Was Based Solely Upon His Pres-

ence In And Around A Private Hotel Room And

Association With Persons Suspected Of Criminal

_ Activity, Is In Direct Conflict With Prior Decisions

Of This Court And The Circuit Courts Of Appeals

Which Require That A Particularized Nexus Be

Established Between The Petitioner And The Sus-

pected Unlawful Activity .... 6... 6+ +e e ee eee

The Decision Of The Court of Appeals, Upholding

A Finding Of Probable Cause For Petitioner’s

Arrest In A Private Hotel Room, Based Solely

Upon His Presence, Raises Important Questions

Not Answered In Ybarra v. lilinois, Concerning

Whether The Public Or Private Character Of A

Premises In Which A Defendant Is Arrested May

Contribute To A Finding Of Particularized Prob-

abie Camee ok oc 666 aS eee ee so

The Decision Of The Court Of Appeals Denying

Petitioner’s Motion For A Continuance After

Petitioner Was Abandoned By Retained Counsel

And Forced To Trial With Substitute Counsel

Who Acknowledged His Own Unpreparedness

Raises Important Fifth and Sixth Amendment

Questions Concerning Which There Is A Conflict

In The Circuits And A Particular Need For Uni-

form Standards

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

1.

(iii)

APPENDICES: Page.

A. United States v. Lynn Edward Fletcher, No. »

79-5068 (4th Cir., Dec. 18, 1980) (Judgment) ....... la

B. United States v. Haynie et al., Nos. 79-5052,

79-5053, 79-5068, 79-5069, 79-5070 (4th Cir.

Dec. 18, 1980) (Opinion) .........-+- 522s eees 2a

C. United States v. Lynn Edward Fletcher, No. 79-

5068 (4th Cir., Feb. 19, 1981) (Order denying

Petition for Rehearing)............-eeeeeeeees 25a

D. United States v. Lynn Edward Fletcher, No. 79-

5068 (4th Cir., Feb. 25, 1981) (Order denying

stay Of miamdate).. ice eee ewes vanes 26a

E. United States v. Lynn Edward Fletcher, No. 79-

5068 (4th Cir., March 4, 1981) (Order staying

ee SOE RI OE COe yt oe ee 27a

TABLE OF AUTHORITIES

Cases:

Beck v. Ohio, 379 U.S. 89 (1964)... 66. ee eee eee ee eee 8

Gandy v. State of Alabama, 569 F.2d 1318 (5th Cir.

A eae ae ea ek a ae "ay aaa 17, 18, 19

Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973) ...... 11, 12

Michigan, v. Summers, 407 Mich. 432, 286 N.W.2d

226 (1979), cert. granted, __U.S. —__, S.Ct.

____, 66 L.Ed.2d 127 (1980) (No. 79-1794)........ 13,14

Payton v. New York, 445 U.S. 573 (1980)... ..-----0 00s 8

Powell v. State of Alabama, 287 U.S. 45 (1932) ........+-. 15

Sibron v. New York, 392 U.S. 40 (1968) .........:... 9,10

Ungar v. Sarafite, 376 U.S. 575 (1964)... 6-6 ee ee eee ees 15

United States v. Ashcroft, 607 F.2d 1167 (5th Cir.

Ree ito ane en en eto oc ae or a 12

United States v. Bragan, 499 F.2d 376 (4th Cir.

CSREES ear ain ieee Pay ee ee a 17

United States v. Burton, 584 F.2d 485 (5th Cir. 1978). ..... 19

(1)

Cases, continued: Page

United States v. Collins, 439 F.2d 610 (D.C. Cir. 1971)..... 12

United States v. DeRi, 332 U.S. 581 (1948).........-- 9,10

United States v. Fisher, 477 F.2d 300 (4th Cir.

ie) PERNA Oy aie ee er Sere eat ee ee ee ee re 16

United States v. Haynie, 637 F.3d 227 (4th Cir.

SOT) f acdic ¢ sae Naiaie te Hee Re ne ee 2,9, 13, 14

United States v. Hunter, 550 F.2d 1066 (6th Cir.

yy Mana Ir are mee gt OY Se Oe a 12

United States v. Inman, 384 F.2d 783 (4th Cir. 1973) ......- 17

United States v. Marx, 555 F.2d 874 (4th Cir. 1977)....... 17

United States v. Miller, 546 F.2d 251 (8th Cir. 1976)....... 12

United States v. Seay, 432 F.2d 395 (5th Cir. 1970) ....... 12

United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976)..... 19

United States v. Wright, 557 F.2d 376 (6th Cir. 1978) ...... 12

Ybarra v. Illinois, 444 U.S. 85 (1979) ......65-- 9,11, 12, 13

Constitutional Provisions:

Amendment IV, United States Constitution........-- 2,8,9

Amendment V, United States Constitution.......-.- 2, 14, 20

Amendment VI, United States Constitution........ 2, 14, 20

Rules and Regulations:

Rule 20, Rules of the United States Supreme Ces aaa oe 2

MOT MRA iia Re bo hd eon 5a tesa Ue 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

LYNN EDWAR) FLETCHER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Lynn Edward Fletcher, by his under-

signed counsel, respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fourth Circuit entered in

this proceeding on December 18, 1980, rehearing denied

on February 19, 1981.

2

OPINION OF THE COURT BELOW

The Opinion of the Court of Appeals for the Fourth

Circuit is reported at 637 F.2d 227 (4th Cir. 1980). The

Order denying rehearing was filed on February 19, 1981.

JURISDICTION

The Judgment of the Court of Appeals affirming the

Judgment of the United States District Court was entered

on December 18, 1980. The Petition for Rehearing with

Suggestion for Rehearing En Banc was denied on Febru-

ary 19, 1981. This Petition is filed pursuant to Rule 20,

Rules of the Supreme Court, as amended. The jurisdic-

tion of this Court is invoked pursuant to the provisions of

Title 28, United States Code §1254(1).

CONSTITUTIONAL PROVISIONS _

Amendment IV, Constitution of the United States:

“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.”

Amendment V, Constitution of the United States:

“No person shall...be deprived of life, liberty, or

property, without due process of law...”

Amendment VI, Constitution of the United States:

“In all criminal prosecution, the accused shall enjoy

the right ...to have the Assistance of Counsel for his

defense.”

3

STATEMENT OF THE CASE

On December 4, 1977, agents of the United States

Customs Service intercepted a shipment of hashish at

Dulles International Airport based upon information

from customs broker Frank Bailey. Frank Bailey was

hired by William Coury, an Atlanta businessman, to

arrange for inspection and delivery of the shipment.

Agents of the Customs Service and the Drug Enforce-

ment Administration (DEA) <rranged a controlled deliv-

ery of the hashish to William Coury. Specific arrange-

ments for the delivery were made between Coury and the

cooperating customs broker, Bailey.'

On December 5, 1977, the agents observed Coury at

the Dulles Holiday Inn Motel. At about 7:00 AM, DEA

agents set up surveillance at the motel. Coury was

observed visiting room 141 during the later hours of the

afternoon. He exited in the company of two males,

neither of whom was the Petitioner. The agents also

observed several men enter and depart rooms 141 and

142.

Petitioner was first observed by DEA agents at about

12:30 P.M. on December 5, 1977, in the motel lobby,

and in the dining room of the motel. Petitioner was not

previously known to any of the agents. (A.343a). The

testimony of the agents who conducted the surveillance

was that Petitioner was a visitor, but not a registered

guest of the Holiday Inn and that room 141 was

registered to a Jeff Wheeler.” The only information the

"At Coury’s direction, Bailey called room 141 at the Dulles

Holiday Inn Motel on December 4, 1977, and was referred to

another number. (A.345a-346a).

?DEA agent Feldman testified that he had ascertained from a

room clerk that someone named Lynn Fletcher was staying in

[footnote continued]

4

agents had about the Petitioner was that Petitioner was

seen eating and talking on at least two occasions with

persons observed entering and departing room 141. No

activity indicative of criminal conduct was observed.

(A.348a-349a, 406a-407a).

Later on December 5, 1977, DEA agents arrested two

men picking up the hashish shipment at a Manassas,

Virginia warehouse, and three other subjects, including

William Coury and Donald David Haynie, in a car at a

location in Rockville, Maryland. (A.307a-308a).

After the seizure of the hashish shipment, armed DEA

agents proceeded without warrants to the Holiday Inn to

arrest the men in rooms 141 and 142. When eight agents

entered room 141, Petitioner was reclining on a bed in

front of a television tuned to a sporting event. Another

man was reclining on the other bed and a man was sitting

in a chair. (A.31la). No evidence of cash or contraband

and no furtive movement was noted by the agents.

(A.344a-350a). At least one agent testified that he had no

specific knowledge directly connecting any person

present in room 141 with the illegal hashish shipment.

(A.345a-347a). The four men present in room 141 were

placed under arrest.°

In September, 1978, an indictment was returned

against Petitioner and others in the United States District

room 141 with Jeff Wheeler. Feldman also testified that his

contemporaneous notes indicate only that he observed Petitioner

go to the dining room at 12:00 and that he saw Petitioner later at

3:00. (A.403a, 405a and 470a).

3Two briefcases and luggage were seized from the floor. No

weapons were seized. A search of one briefcase revealed notebooks

and papers of no evidentiary value. The second briefcase contained

a large quantity of United States currency and no identifying data.

5

Court for the Eastern District of Virginia. Gerald B.

Lefcourt of New York entered his appearance as trial

counsel on behalf of Petitioner. Mr. Lefcourt retained

Gerald Bruce Lee of Alexandria, Virginia as local counsel.

Local counsel was informed by Mr. Lefcourt that his

responsibility would not include interviewing the Peti-

tioner, reviewing the United States Attorney’s files,

participation in the defense strategy or planning sessions,

- or drafting or preparing of pleadings.

Petitioner joined in a Motion to Suppress Evidence

based, in part, upon the alleged absence of probable cause

for his arrest. On November 13, 1978, at the hearing on

Petitioner’s motion, local counsel met Petitioner for the

first time outside the courtroom at the United States —

Courthouse. Mr. Lefcourt argued motions for Petitioner

without any participation by Mr. Lee. The District Judge

ordered the Jencks material be furnished to counsel no

sooner than five days prior to trial. On November 17,

1978, the District Court denied Petitioner’s Motion to

Suppress.* Trial was set for November 27, 1978.

On November 22, 1978, Mr. Lefcourt advised local

counsel for the first time of a plea bargain offer made by

the government to Petitioner. Mr. Lefcourt also advised

Mr. Lee that Petitioner was not disposed to accept the

offer and that he (Lefcourt) had told Petitioner that if

*No taint hearing was required in light of the court’s ruling on

the suppression issues. The Court of Appeals, however, made the

unsubstantiated finding that the identification of Petitioner, at the

grand jury or otherwise in the ‘nvestigation by the government

witness Snow, was in no way related to fruits of Petitioner’s arrest.

637 F.2d at 238. The record was not developed along these lines

and Snow never made an in-court identification of Petitioner.

Petitioner seeks a remand for a taint hearing of his conviction is

reversed on a finding of no probable cause.

the case went to trial, Mr. Lee would have to try it.

(S.A.40). Mr. Lee advised Mr. Lefcourt that he was

unfamiliar with the facts underlying the indictment and

that he had never so much as interviewed the Petitioner.

(S.A.41). Mr. Lee was eventually able to contact Peti-

tioner by telephone on\November 23, 1978.

On November 24, 1978, Mr. Lee went to the United

States Attorneys’ office in Alexandria, Virginia, to view

thousands of pages of discovery for the first time.* No

witnesses had yet been subpoenaed for trial on Petition-

er’s behalf.

Mr. Lee informed Mr. Lefcourt by mailgram on

November 24, 1978 that, in his judgment, it was not in

the best interest of their client for him to appear as trial

counsel, as he had not had the opportunity to adequately

prepare for this case. (S.A.41).

The case was called for trial on November 27, 1978.

Mr. Lefcourt failed to appear. Mr. Lefcourt filed no

motion requesting leave to withdraw nor was the court

informed by Mr. Lefcourt of his intention not to appear.

Mr. Lee filed a Motion for a Continuance or Severance

immediately after the case was called, accompanied by

the affidavit of Mr. Lee® and the Affidavit of Petitioner

5At a Chambers conference, not in the record, the District

Judge refused to order the United States Attorney to provide local

counsel with copies of the Jencks material because of the

reproduction costs to the government.

"In the affidavit filed by Mr. Lee with the District Court, Mr.

Lee stated, inter alia, that he had advised Mr. Lefcourt that he was

unfamiliar with the underlying facts of the case and had not

interviewed the Petitioner, that he felt unprepared to go forward

with the trial of this case, and that he eventually had a one hour

interview with the Petitioner. (S.A.41).

7

(S.A.31, 40-44). The affidavit of Petitioner contained the

following averments:

I think the Court ought to be advised as follows: Mr.

Lee was and is not counsel of my choice as trial

counsel in this matter and my only association with

him is as stated in this affidavit. While I have no

question of Mr. Lee’s skill as an advocate, I am

concerned for my defense and freedom as a result of

his complete lack of time to discuss this matter with

me to fully investigate and prepare my defense. I

believe I have an alibi defense to at least one of the

acts charged in the indictment and I have informed

Mr. Lefcourt, but I am informed that no witnesses

have been subpoenaed. (S.A.44).

The District Judge denied Petitioner’s motion and trial

commenced over the objections of Petitioner and local

counsel.

Petitioner was convicted of possession with intent to

distribute marijuana or hashish and was sentenced to a

period of confinement of six months, three years

probation, and a special parole term of two years.

The United States Court of Appeals for the Fourth

Circuit affirmed Petitioner’s conviction on December 18,

1980. Rehearing was denied on February 19, 1981.

REASONS FOR GRANTING THE PETITION

THE DECISION OF THE COURT OF APPEALS,

UPHOLDING A FINDING OF PROBABLE CAUSE

FOR PETITIONER’S ARREST, WHICH WAS BASED

SOLELY UPON HIS PRESENCE IN AND AROUND

A PRIVATE HOTEL ROOM AND ASSOCIATION

WITH PERSONS SUSPECTED OF CRIMINAL

ACTIVITY, IS IN DIRECT CONFLICT WITH PRIOR

DECISIONS OF THIS COURT AND THE CIRCUIT

COURTS OF APPEALS WHICH REQUIRE THAT A

PARTICULARIZED NEXUS BE ESTABLISHED BE-

TWEEN THE PETITIONER AND THE epee

UNLAWFUL ACTIVITY.

It has been sufficiently noted that the warrantless

arrest of a person is a species of seizure required by the

Fourth Amendment to be reasonable. Payton v. New

York, 445 U.S. 573 (1980); Beck v. Ohio, 379 US. 89

(1964).

Petitioner argued that his arrest, without a warrant,

was unreasona_le because it was based solely upon his

presence on December 5, 1977, in room 141 at the Dulles

Holiday Inn motel and association with persons suspected

of criminal activity.

A panel of the United States Court of Appeals for the

Fourth Circuit decided that Petitioner’s arrest in a private

hotel room, without a warrant, was not unconstitutional

because it was supported by the following probable

cause:

Only a small part of the facts surrounding the arrest

show that room 141 was the communication center

from which receipt of the importation of 800

pounds of illegal hashish was arranged by Haynie

and others. Fletcher had been seen in and around

the motel just prior to the arrest and it was known

9

that he was staying in room 141 with Haynie, a key

suspect as the leader of the drug ring. The consignee

of the hashish, one Coury, also visited room 141

that day. (emphasis supplied).”

United States v. Haynie, 637 F.2d 227, 237-38 (4th Cir.

1980).

This holding is in direct conflict with the prior

decisions of this Court in Ybarra v. Illinots, 444 U.S. 85

(1979); Sibron v. New York, 392 U.S. 40 (1968) and

United States v. DeRi, 382 U.S. 581 (1948), and

substantially deviates from the Fourth Amendment con-

cept of limited intrusion which requires that a particu-

larized nexus be established between Petitioner and the

suspected unlawful activity.

The only authority cited by the panel for its decision is

* the partial quotation from the concurring opinion of Mr.

Justice Douglas in Sibron v. New York that:

Consorting with criminals may. in a particular factual

setting be a basis for believing that a criminal project

is under way. 392 U.S. at 68. (emphasis supplied).

637 F.2d at 238. It was the court’s view that:

...in the setting around room 141, the known

communications center for the importation of such

a large amount of illegal drugs, the officers liad

probable cause to arrest everyone who was reason-

ably connected with the known _ participants.

Fletcher was so connected.

Id.

The partial reference to the concurring opinion strains

the Justice’s meaning which refers only to the possible

’The testimony of the DEA agents who conducted the

surveillance at the Holiday Inn was that Petitioner was not a

registered guest at the motel and that room 141 was registered to a

Jeff Wheeler. (A.348a-349a, 403a-407a).

10

existence of a criminal project. The full text is coinciden-

tally omitted from the court’s opinion and contains the

remaining sentences:

Yet talking with addicts without more rises no

higher than suspicion. That is all was have here; and

if it is sufficient for a “seizure” and a “search” then

there is no such thing as privacy for this vast group

of “‘sick”’ people.

392 U.S. at 68 (Douglas, J. concurring). At this time of

the arrest in Sibron, the officer had observed the

petitioner continually from the hours of 4:00 p.m. to

12:00 a.m. In this time, the officer saw Sibron conversing

with six or eight persons whom he knew to be narcotics

addicts. The officer heard none of these conversations

and saw nothing pass between the petitioner and any of

the others. Before he was arrested, Sibron was observed

entering a restaurant and talking with three more known

addicts. This Court dismissed any notion that there was

probable cause to arrest the petitioner. 392 U.S. at 62.

The principle. underlying Sibron is derived from the

holding in United States v. DeRi, 332 U.S. 581 (1948). In

DeRi, the defendant was a passenger in a car with a

person implicated by a police informant for possessing

counterfeit gas rationing coupons. This Court held that:

We are not convinced that a person, by mere

presence in a suspected car, loses immunities from

search of his person to which he would otherwise be

entitled.

332 U.S. at 587. This limitation on presence was not

affected by a simultaneous determination by the Court

that “there is better reason to assume that no passenger

in a car loaded with liquor would remain innocent of

knowledge of the car’s cargo...” Id. at 586-87.

11

In Ybarra v. Illinois, 444 U.S. 85 (1979), the Court

observed that where the standard is probable cause

-..a search or seizure of a person must be sup-

ported by probable cause particularized with respect

to that person. This requirement cannot be undercut

or avoided by simply pointing to the fact that

coincidentally there exists probable cause to search

or seize another or to search the premises where the

person may happen to be.

444 U.S. at 91. The facts in Ybarra were that Ybarra was

present, along with several other customers, in a public

tavern at a time when the police had a warrant, based on

probable cause, to search the tavern and the bartender.

Like Petitioner’s case, the police did not recognize Ybarra

and had no independent reason to believe that he had

committed, or was committing any offense. Ybarra made

no gestures indicative of criminal conduct, made no

movements suggesting an attempt to conceal evidence or

contraband, and said nothing of a suspicious nature. It

was the Court’s view that “‘a person’s mere propinquity

to others independently suspected of criminal activity

does not, without more, give rise to probable cause to

search that person.” Jd.

The Courts of Appeals are consistent in dealing with

presence and association. In Holloway v. Wolff, 482 F.2d

110 (8th Cir. 1973), the Eighth Circuit heard a case

similar to Petitioner’s. In Holloway, the defendant was

present at the residence of a friend where police had

probable | cause‘ to believe that tavern robbers were

meeting. The \police were looking for two black males and

the defendant was black. The court stated that “probable

cause to believe that the culprits were meeting at the

residence would prove insufficient for arresting anyone

who happened to be on the premises without some

12

evidence linking the individual to the crime.”’ 482 F.2d at

116. See United States v. Collins, 439 F.2d 610, 614-15

(D.C.Cir. 1971).

In United States v. Wright, 557 F.2d 376 (6th Cir.

1978), the defendant was arrested with one of a group of

four airline tickets to Bangkok, Thailand, another of

which was issued to a major drug dealer. The court found

no probable cause, concluding that all the agent knew

about Wright at the time of his arrest was “‘that he had

undesirable associates and travelled to questionable

places” 577 F.2d at 380. See also United States v.

Hunter, 550 F.2d 1066 (6th Cir. 1977); United States v.

Miller, 546 F.2d 251 (8th Cir. 1976); United States v.

Seay, 432 F.2d 395 (5th Cir. 1970); Compare United

States v. Ashcroft, 607 F.2d 1167 (5th Cir. 1979).

The record in Petitioner’s case contains no factor or

combination of factors which support the departure from

established precedent by the Fourth Circuit in making its

finding of probable cause for Petitioner’s arrest.

II.

THE DECISION OF THE COURT OF APPEALS,

UPHOLDING A FINDING OF PROBABLE CAUSE

FOR PETITIONER’S ARREST IN A PRIVATE

HOTEL ROOM, BASED SOLELY UPON HIS PRES-

ENCE, RAISES IMPORTANT QUESTIONS NOT °-

ANSWERED IN YBARRA V. ILLINOIS, CONCERN-

ING WHETHER THE PUBLIC OR PRIVATE CHAR-

ACTER OF A PREMISES IN WHICH A DEFENDANT

IS ARRESTED MAY CONTRIBUTE TO A FINDING

OF PARTICULARIZED PROBABLE CAUSE,

It follows from Ybarra v. Illinots, that a warrant to

search a place cannot normally be construed to authorize

indiscriminate governmental intrusions into the privacy

of each individual in that place. The finding of no

~

13

probable cause to search customers in a public tavern

focused on the requirement that some particularized

evidence link the individual to the crime. Ybarra provided

no answer to the question whether probable cause may

be inferred from the “public” or “private” nature of the

premises, or whether the “public” or “‘private”’ character

of a premises may contribute to the sum total of

information giving rise to probable cause.

The decision of the Fourth Circuit in Petitioner’s case

attributes probable cause to what it determined was the

necessary involvement of anyone present at a private

hotel room from which the receipt of illegal hashish was

arranged. “Certainly in the setting around room 141”,

the court stated, ‘“‘the known communications center for

the importation of such a large amount of illegal drugs,

the officers had probable cause to arrest everyone who

was reasonably connected with the known participants.”

United States v. Haynie, 637 F.2d at 238. The private

character of the hotel room was viewed by the court as

sufficient to reasonably connect everyone present with

the known participants. The compact public tavern in

Ybarra did not, under similar circumstances, give rise to

the same inferences.

This term, the Court granted a Writ of Certiorari to the

Supreme Court of Michigan in Michigan v. Summers, 407

Mich. 432, 286 N.W.3d 226 (1979), cert. granted,

US. ; S.Ct. » 66 L.Ed.2d 127

(1980), (No. 79-1794), to decide whether a premises

search warrant for a private residence may be expanded

to justify the search of an unnamed individual, absent

conduct directing suspicion to that individual. The

8In Summers, the owner of a private residence was detained

during the execution of a search warrant. As the officers arrived,

[footnote continued]

14

public-private dichotomy is equally implicated in Mich-

igan v. Summers and Petitioner’s case, and should be

decided to prevent conflicting results in the circuits.

Ill.

THE DECISION OF THE COURT OF APPEALS

DENYING PETITIONER’S MOTION FOR A CON-

TINUANCE AFTER PETITIONER WAS ABAN-

DONED BY RETAINED COUNSEL AND FORCED

TO TRIAL WITH SUBSTITUTE COUNSEL WHO

ACKNOWLEDGED HIS OWN UNPREPAREDNESS

RAISES IMPORTANT FIFTH AND SIXTH AMEND-

MENT QUESTIONS CONCERNING WHICH THERE

IS A CONFLICT IN THE CIRCUITS AND A PARTIC-

ULAR NEED FOR UNIFORM STANDARDS.

This case comes before this Court in the unique

posture of having had two lower courts completely ignore

the Constitutional implications of the unauthorized

abandonment of Petitioner by retained trial counsel on

the day of the trial.? Petitioner was then forced to

proceed to trial with counsel he had not chosen and with

counsel who acknowledged prior to the commencement

of the trial that he was unprepared.

As early as 1932, this Court stated:

It is true that great inexcusable delay in the

enforcement of our criminal law is one of the grave

they saw a man, later identified as Summers, leave the front door

of the house. Summers was searched after a search of the residence

produced suspected narcotics.

*The only discussion of Petitioner’s right to counsel argument

appears in the final paragraph of the F ourth Circuit’s opinion.

We have also considered the remaining assignments of error

including ... the denial of a motion for continuance... We

think all of these arguments are without merit.

United States v. Haynie, 637 F.2d at 238.

15

evils of our time. Continuances are frequently

granted for unnecessarily long periods of time and

delays incident to the disposition of motions or

motions for new trial and hearings upon appeal have

come in many cases to be a distinct reproach to the

administration of justice. The prompt disposition of

criminal cases is to be commended and encouraged.

But in reaching that result a defendant, charged with

a serious crime, must not be stripped of his right to

have sufficient time to advise with counsel and

prepare his defense.

Powell v. State of Alabama, 287 U.S. 45, 59 (1932).

In an effort to strike a balance between the sometimes

competing interest of society in the prompt disposition

of a criminal case, and the right of the defendant to be

represented by counsel who has had an adequate time to

prepare, this Court has stated:

...it is not every denial of a request for more time

that violates due process even if the party fails to

offer evidence or is compelled to defend without

counsel. Contrariwise a myopic insistent upon ex-

peditiousness in the face of a justifiable request for

delay can render the right to defend with counsel an

empty formality. (citations omitted).

Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

Petitioner does not concede that the District Court’s

view was not myopic.'® The myopia of a particular trial

1°U).S. District Judge Oren R. Lewis, sitting in the Eastern

District of Virginia, was quoted in the Washington Star as saying:

“We continue to try a case in a day, which is unheard of.”’

*e eK *

Continuances, requests for more time, are rarely granted.

Lewis said that if an attorney says his schedule is too busy to

[footnote continued]

16

judge should not be the focus of this inquiry. A better

view would focus on whether the request for a continu-

ance was made in good faith, without intent to delay, and

ultimately, whether the continuance of the case was

essential to the fair and impartial administration of

justice and consistent with the goals of the Sixth

Amendment.

The various circuits have taken differing approaches to

the problem posed by this type of case. These varying

approaches have led to a variety of inconsistent results

amongst the circuits as well as within the same circuit.

The decisions of the Fourth and Fifth Circuits provide

the best examples of such inconsistencies.

A view of prior Fourth Circuit precedent illustrates an

established pattern of inconsistency in deciding similar

cases. In United States v. Fisher, 477 F.2d 300 (4th Cir.

1973), a panel of the Fourth Circuit was confronted with

the following, facts. At the arraignment, the defendant

appeared with one attorney. It was later determined that

the defendant could not afford this particular attorney.

The defendant then retained another attorney who had a

trial scheduled on the same day as the defendant’s trial. A

continuance was denied. The first attorney was called by

the Clerk of the Court and obtained the file from the

second attorney. When the case was called for trial, the

original attorney moved for a continuance. The motion

was denied and the attorney was permitted thirty

minutes to consult with his client and case proceeded to

trial. The panel held in reversing the defendant’s convic-

tion (1) that although the defense was conducted

go to trial, he tells the defendant to get another attorney.

Lewis said the court in Alexandria has been run this way.

Washington Star, Feb. 10, 1981, Local Section at 1, col. 2-5.

17

aggressively, inevitable prejudice resulted from the lack of

preparation by counsel, and (2) that conviction without

effective legal representation is a misplaced sanction for

the shortcomings of a defendant’s attorneys. 477 F.2d at

303.

In United States v. Inman, 384 F.2d 783 (4th Cir.

1973), defendant’s appointed counsel was fired immedi-

ately prior to trial by the defendant and defendant’s

mother retained new counsel. Retained counsel requested

a continuance. In upholding the defendant’s conviction,

the panel held that the outermost reach of discretion was

exercised. While an attorney needs reasonable time to

prepare for trial, counsel entered his appearance late after

the case was set for approximately two months and the

fact that the jurors and witness had been summoned

militating against the grant of the continuance. 483 F.2d

at 740. The punitive treatment of trial counsel in United

States v. Marx, 555 F.2d 874 (4th Cir. 1977), materially

differs from the results in other Fourth Circuit cases. In

‘Marx, the attorney, was convicted of criminal contempt

when he abandoned his client as Mr. Lefcourt did. The

District Court acknowledged that Marx’s behavior mate-

rially interfered with the trial and resulted in an

obstruction of the administration of justice.!! See also

United States v. ragan, 499 F.2d 376 (4th Cir. 19 74),}2

The Fifth Circuit decisions, while more consistent intra

Circuit, are certainly inconsistent with the Fourth Circuit

decisions: Gandy v. State of Alabama, 589 F.2d 1318

‘In Petitioner’s case, the government conceded in rule to show

cause issued against Gerald Lefcourt, that Lynn Fletcher’s trial was

adversely affected by Lefcourt’s failure to appear.

'2All of the Fourth Circuit cases cited originated in the Eastern

District of Virginia.

18

(5th Cir. 1978), well illustrates the Fifth Circuit rule. The

court described the facts in the following manner:

The docket was called in the Jefferson County

Circuit Court on February 22, 1971, and when the

case against Petitioner was announced a Mr. Rainey

told the court that Coleman, Petitioner’s retained

attorney, would be present on the next day, but

that he did not have the authority to announce

ready for the defense. At this point a strange

sequence of events occurred. The case came on for

trial the next day, February 23, 1971. The defense

never formally announced ready; and Coleman

advised the court that on the following day he

would be engaged in the trial of a civil action in the

Circuit Court of Talledega County and a jury had

already been struck for the case the previous day

with out-of-town witnesses having been subpoenaed.

There is no indication in the record that Coleman

made any effort to postpone or substitute other

counsel in the civil case. Instead, he announced his

intention to attend the other trial and moved for a

continuance until the civil trial in Talledega County,

was complete. In the face of this ultimatum, the

trial court did not even suggest that Coleman’s

abandonment would not be tolerated. Rather, he

presented an attitude of insensitivity for Petitioner’s

rights by seemingly countenancing the proposed

desertion by an officer of his court. After brief

arguments, the motion for a continuance was

denied. When it become obvious that Petitioner

would be compelled to proceed to trial immediately,

arrangements were made for J. Sherrill Hancock,

Coleman’s law partner, to assist in the case. Both

Coleman and Hancock, strenuously objected to the

denial of the motion for continuance. It is uncontro-

verted in the record that Coleman was familiar with

the case and was prepared for trial. It is also

19

uncontroverted in the record that Hancock had no

relation to the case prior to February 23, 1971, and

was completely unfamiliar and unprepared. Never-

theless, the trial began. Coleman was present for the

remainder of the day and, along with Hancock,

conducted the defense. When the trial reconvened

on February 24, 1971, Coleman was not present and

Hancock conducted the defense. Petitioner was

found guilty and punishment was fixed at ten years

imprisonment.

569 F.2d at 1320. The Court stated that the proper

exercise of discretion under these circumstances requires

a delicate balancing between the defendant’s due process

right to adequate representation by counsel of his own

choice and the general interest in the prompt and

efficient administration of justice. The court held that

what is fair or reasonable depends upon the surrounding

circumstances. The factors that should be considered are

(1) the length of the requested delay; (2) whether lead

counsel has an associate who is adequately prepared to

try the case; (3) whether other continuances have been

requested and granted; (4) the balanced convenience or

inconvenience to the litigants, witnesses, opposing coun-

sel and the court; (5) whether the requested delay is for a

legitimate reason or whether it is dilatory and contrived

and (6) whether there are other unique factors present.

569 F.2d at 1324. See also United States v. Burton, 584

F.2d 485 (5th Cir. 1978); United States v. Uptain, 531

F.2d 1281 (5th Cir. 1976). |

The total absence of a uniform standard for evaluating

the prejudice to a defendant forced to trial with counsel

whose effectiveness is materially impaired by lack of

preparation has fostered inconsistent results and im-

proper and unsupported judicial speculation concerning

the effect of different counsel on the outcome of a trial.

20

Formulation of a uniform standard by this Court is

necessary to avoid continued speculation and disparate

results in the Courts of Appeals.

The standard followed by the Fifth Circuit is the

standard most consistent with the recognized objects of

the Fifth and Sixth Amendments and should be the test

adopted by this Court.

CONCLUSION

For the reasons stated, Petitioner prays that this Court

issue a Writ of Certiorari.

Respectfully submitted,

WILLIAM B. MOFFITT

J. FLOWERS MARK

NINA J. GINSBERG

MARK & MOFFITT, P.C.

1001 Duke Street

Alexandria, Virginia 22314

(703) 549-4333

GERALD BRUCE LEE

LAW OFFICES OF

GERALD BRUCE LEE

1001 Duke Street

Alexandria, Virginia 22314

(703) 549-1172

Attorneys for Petitioner.

April 2, 1981

la

APPENDIX A

JUDGMENT

United States Court of Appeals

for the

Fourth Circuit

No. 79-5068

United States of America,

Appellee,

vs.

Lynn Edward Fletcher,

Appellant. .

Appeal from the United States District Court for the

Eastern District of Virginia.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the satd

District Court appealed from, in this cause, be, and the

same is hereby, affirmed.

William K. Slate II

CLERK

[Filed Dec. 18, 1980]

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5052

UNITED STATES OF AMERICA

Vv

DONALD DAVID HAYNIE

No. 79-5053

UNITED STATES OF AMERICA

MICHAEL V LCEK

No. 79-5068

UNITED STATES OF AMERICA

Vv

LYNN EDWARD FLETCHER

No. 79-5069

UNITED STATES OF AMERICA

‘PAUL MAX JENKINS

Appellee

Appellant

3a

No. 79-5070

UNITED STATES OF AMERICA

Appellee

v.

JEAN A. MORRISSETTE

Appellant

Appeals from the United States District Court for the

Eastern District of Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge.

Argued August 21, 1980 Decided December 18, 1980

Before RUSSELL, WIDENER, and PHILLIPS, Circuit

Judges. :

Michael Kennedy for Appellant David Haynie; William V.

Moffitt (Lowe, Mark, Moffitt, Ford and Barton, on brief)

for Appellant Lynn Edward Fletcher; (Michael R. Abram-

ovic on brief) for Appellant Michael Vicek; (William A.

Powers on brief) for Appellant Michael Vicek; (Gerald B.

Lee, Wiggs, Lee & McClerklin, on brief) for Appellant

Lynn Edward Fletcher; (Sheryl E. Reich on brief) for

Appellants; (J. Frederick Sinclair on brief) for Appellant

Paul Max Jenkins; (Larry G. Turner, Turner & Morris, on

brief) for Appellant Jean A. Morrissette; (Sebastian K. D.

Graber, Norman A. Townsend, Graber, Stettler & Town-

send, on brief) for Appellants Donald David Haynie,

Michael Vicek and Jean A. Morissette; Justin W.

Williams, United States Attorney (Karen A. Rebrovich,

4a

Special Assistant United States Attorney, Lori L. Levin,

Third Year Law Student, Jerel Yamamoto, Third Year

Law Student, on brief) for Appellee.

WIDENER, Circuit Judge:

Appellants, Donald David Haynie, Lynn Edward

Fletcher, Michael Vicek, Paul Max Jenkins and Jean

Morrissette, were convicted in the United States District

Court for the Eastern District of Virginia of conspiracy to

possess marijuana or hashish with the intent to distribute

under 21 U.S.C. §§ 846, 963. In addition, Haynie was

convicted of conspiracy to import hashish, 21 U.S.C.

§ § 952(a), 963; importation of hashish, 21 U.S.C.

§ § 952(a), 960 and 18 U.S.C. § 2; and two counts of

engaging in interstate travel for the purpose of carrying

on an unlawful activity, 18 U.S.C. §§ 2, 1952(a)(13).

From these convictions appellants now seek relief. We

affirm.

Appellants raise substantial questions with regard to

evidence obtained by searches and introduced in the trial.

They contend that the fruits of these searches introduced

at trial were obtained in violation of the Fourth Amend-

ment and were inadmissible. The trial court conducted an

evidentiary hearing and denied appellants’ motion to sup-

press. On appeal, the government contends that the

searches were valid, and, even if not, no appellant has

standing to challenge the propriety of the searches and

seizures in question. We find it unnecessary to address the

issue of standing because we hold that the searches and

seizures complained of were not invalid under the Fourth

Amendment.

¢ 5a

The Airport Search

At approximately 1:30 a.m. on June 1, 1977, Norman

Handshaw (a co-indictee) and one John Bates approached

a security screening area in the Palm Beach International

Airport. Upon their attempting to enter the hoarding area

to wait for an associate arriving at that gate, airport secur-

ity guards requested that Handshaw open the briefcase he

was carrying. After expressing his unwillingness and in-

ability to open the case, Handshaw again expressed the

desire to pass through the screening area. The security

officers again refused Handshaw admittance and Hand-

shaw suggested that he and Bates leave the screening area

and await the arrival of the flight elsewhere in the airport.

Michael O’Brien, a deputy of the Palm Beach County

Sheriff’s Office assigned to the airport, observed this ex-

change and noted that Handshaw appeared to be very

nervous, had begun sweating noticeably and stammered

while discussing the briefcase. Based upon his observa-

tions, O’Brien became concerned about the possibility

that Handshaw’s briefcase might contain an explosive de-

vice and directed that the case be passed through an

X-ray scanning machine. The X-ray revealed a number of

regular, rectangular packages inside the case. Upon observ-

ing this, Deputy O’Brien escorted Handshaw and Bates

to a lounge in the airport sheriff’s office and secured the

assistance of Sergeant William Tremmer, head of the nar-

cotics task force of the Palm Beach County Sheriff’s Of-

fice. Sergeant Tremmer passed the briefcase through the

X-ray scanner a second time and then questioned Hand-

shaw concerning its contents. After Handshaw gave con-

flicting explanations of his knowledge of and interest in

the briefcase, Sergeant Tremmer asked whether Hand-

shaw owned the case and was told that he did not. Hand-

shaw subsequently surrendered the case in return for a

6a

property receipt. At the conclusion of this interview, Ser-

geant Tremmer applied for and received a warrant to

search the briefcase. In executing that warrant he found

$95,020 inside the case. It is the admission at trial of

evidence of this search and seizure to which appellants

now object.

Initially, it is clear that the officer’s examination of

Handshaw’s briefcase by means of an X-ray scanner was a

search within the meaning of the Fourth Amendment.

See United States v. Epperson, 454 F2d 769, 770 (4th

Cir. 1972), cert. denied, 406 U.S. 947 (1972) (use of

magnetometer constitutes search). It is also clear that a

search conducted without a warrant is unreasonable un-

less it falls within one of the classes of permissible war-

rantless searches. Cady v. Dombrowski, 413 U.S. 433,

439 (1973). Here, the search of Handshaw’s briefcase

falls squarely within one of such classes, and probably

within another, which we do not decide.

In United States v. DeAngelo, 584 F2d 46 (4th Cir.

1978), cert. denied, 440 U.S. 935 (1979), we upheld the

validity of an airline boarding search on facts remarkably

similar to those presented here on the ground that it was

conducted with the consent of the defendant as well as

the ground that the search was not unreasonable. There,

DeAngelo presented himself at an airport security screen-

ing station and submitted his briefcase to X-ray examina-

tion in the presence of signs warning that physical inspec-

tion might be requested. When the X-ray examination

proved suspicious and DeAngelo was advised that a physi-

cal inspection was necessary, he protested that he pre-

ferred not to take the flight rather than permit the

inspection. Security officers nonetheless opened his brief-

case and found quantities of marijuana and hashish. We

held that:

7a

DeAngelo had a choice of traveling by air or by

some other means. The signs in the terminal gave

him fair notice that if in the course of the total

screening process a physical inspection of his hand

luggage should be considered necessary to assure the

safety of the traveling public, he could be required

to submit to it for that purpose. When he voluntar-

ily entered upon the screening process DeAngelo ac-

quiesced in its full potential scope as represented to

him if, as it developed, that should be requested.

Allowing him to withdraw his luggage when the

x-ray raised the suspicions of the security officers

would frustrate the regulations purpose of deterring

hijacking.

584 F2d at 47-48.

After DeAngelo, this case presents no novel aspect.

Handshaw voluntarily entered the screening process at

the Palm Beach International Airport by presenting him-

self to security personnel manning an X-ray scanner.

While there is no evidence here that signs described the

scope of the prospective searches, Handshaw’s repeated

expressions of his desire to be admitted to the boarding

area through a security check point employing an X-ray

scanner cannot be construed as other than a knowing

consent to the fuli scope of the search conducted.

As in DeAngelo, we do not think that Handshaw’s at-

tempt to withdraw irom the screening process should be

recognized as an act vitiating his consent. While there is a

division among the circuits on this point,! the rule

adopted in DeAngelo and reaffirmed here is both prudent

and necessary. The danger protected against, air piracy, is

'Cf. United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973),

with United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976),

cert. denied, 431 U.S. 940 (1977).

8a

as great today as it has ever been. It appears to us that a

rule under which consent to a screening search is limited

by the ability to withdraw at any time could only encour-

age attempted hijackings by providing a secure exit

shoulc aetection be threatened.

We also believe the search and seizure was not unrea-

sonable within the meaning of the Fourth Amendment.

The Hanson, Massachusetts Searches

On or around July 14, 1977, the police department of

the town of Hanson, Massachusetts received an anony-

mous telephone call advising that there was a large

amount of marijuana in the area of 437 McQuan Street,

which was the residence of a Mr. & Mrs. Bizier. At ap-

proximately 4:00 p.m. that day, Sergeant John Conroy

and another officer surveyed the houses in that area, and,

although Conroy was of the opinion that there may have

been some marijuana growing at the rear of the Biziers’

house, they discovered no other concrete evidence of its

presence in the area.” During their examination of the

area, the officers were approached by Mr. and Mrs. Bizier

who asked the reason for their presence. Sergeant Conroy

described the Biziers’ demeanor as nervous, but nothing

else of substance transpired during the conversation, and

the officers departed.

Approximately two weeks later, on July 28, 1977, the

Hanson Police Department received a second anonymous

telephone’ call concerning 437 McQuan Street. The caller

At this stage of his investigation, Sergeant Conroy’s suspicion

was principally directed at the Smith residence next door to 437

McQuan Street, for he had sisted investigated another mari-

juana case at that house.

7%

9a

asked whether the police had 437 McQuan Street under

surveillance and stated that they should “[g]et down

there and note the positions of the cars in the driveway,

because there is going to be a drop there tonight, and I

am not kidding.”

As a result of this call, Sergeants Conroy and Toomey

began surveillance of the Bizier residence at 9:15 p.m.,

from an unmarked car parked across the street.? At that

time, they noted two vehicles on the Biziers’ property

arranged with room in the driveway for two more. During

the course of the evening the officers observed Bizier

leave the house twice, once to look up and down the

street for a few seconds. They also observed the front

door open and close a third time when Bizier apparently

tended to the dog.

At approximately 11:35 p.m. the officers observed

two vehicles, a white Duster and a blue Chrysler, arrive

together, back into the Biziers’ driveway and park side by

side. Two people emerged from each car and conferred

for a moment near the trunk of the Duster. One of the

party then restarted the Duster and backed it farther up

the driveway to the corner of the garage. All four individ-

uals then disappeared behind the house. About four min-

utes after that time, three returned to the Duster and

opened its trunk. Sergeant Conroy heard a rustling sound,

and, with Sergeant Toomey, crossed McQuan Street with

weapon at his side to arrest suspects. As they approached

the group, the Duster’s trunk was slammed shut. While

the suspects were being secured, one of their number

(Kenneth Larry Bates) began to walk away from the offi-

° Upon hearing the second tip, it occurred to Sergeant Conroy

that 437 McQuan Street and not the Smith residence had been the

object of the first tip.

>=

10a

cers and returned only after Sergeant Conroy’s second

order to halt. Sergeant Conroy noticed a pungent smell

which he identified as marijuana emanating from the

back of the Duster at this point. At about the same time,

Sergeant Toomey noticed vegetable material which he be-

lieved to be marijuana on the rear bumper of the Duster

and on the ground underneath.* Upon securing the trunk

key trom the pocket of one of the suspects, Sergeant

Toomey opened the Duster’s trunk, and the officers ob-

served five burlap bales of a brownish-green herb-like sub-

stance. The trunk was full of it. One of the bales had a

tear at the corner and Sergeant Conroy identified its con-

tents as marijuana.

Sergeant Conroy then realized that one of the four

men connected with the drop was still missing, and pro-

ceeded to the front door of the Biziers’ house, while

Sergeant Miggs, one of two later arriving officers,

watched the back door. Mr. Bizier opened the front door

and, after being advised of Conroy’s identity, began to

back into the house, saying, “Oh, my God, it’s the

police.” Sergeant Conroy followed him into a living area

in which Mrs. Bizier and Jean Morrissette were seated and

requested that everyone remain where they were. Morris-

sette arose and walked into a darkened room adjoining

the living room. Sergeant Conroy stated that Morrissette

stepped into the dark room and, with three quarters of

his body obscured, made a motion with his arm. The

officer trained his weapon on Morrissette and said,

“‘(d] on’t do it.” Morrissette then slowly returned to the

living room and was placed under arrest.

“

4 Sergeant Toomey testified that Officer Taber had also com-

mented on its presence there.

lla

Because Mr. Bizier had become hysterical and in order

not to awaken the Biziers’ sick child, Sergeant Conroy

moved Morrissette into the kitchen to administer the

_Mtranda warning. Once in the kitchen, Sergeant Conroy

saw some notebooks, one of which was open, in plain

view on the kitchen table, and $6,285.00 in cash in plain

view on the kitchen counter. He seized these items as

evidence.

Meanwhile, Sergeant Toomey had entered the house.

Both he and Sergeant Conroy reported an odor of mari-

juana in the house which was particularly strong in the

area of the door leading to the cellar stairway. Sergeant

Toomey, aware that the basement had not been entered,

descended the stairs to look for other people, and dis-

covered a substantial number of bales of marijuana on the

basement floor and in an open coal bin. He then pro-

ceeded to look in the upstairs portion of the house for

people, and, finding no others present, reported what he

had observed in the basement to Sergeant Conroy.

Defendants assert that the initial arrest of the three

suspects at the rear of the Duster was made without prob-

able cause. The argument goes that the officers would not

have been in a position to see or smell the marijuana in

the car but for this allegedly illegal arrest and that all

subsequent discoveries were, thus, tainted and inadmissi-

ble. It is further contended that even if the initial arrests

were proper, the opening of the trunk and search of the

kitchen and basement of the house were unreasonable in

the absence of a warrant.

The Fourth Amendment, applicable to the States

through the Fourteenth Amendment, Mapp v. Ohio, 367

U.S. 643 (1961), states: “The right of the people to be

secure in their persons ... against unreasonable searches

and seizures, shall not be violated and no Warrants shall

12a

issue, but upon probable cause... .”” There is no question

that the three individuals accosted by Sergeant Conroy

and his partner outside the Bizier residence were seized

within the meaning of the Fourth Amendment and were

placed under sufficient restraint to require a showing of

probable cause. Dunaway v. New York, 47 U.S.L.W.

4635 (June 5, 1979). The question is whether the infor-

mation knowhf to the police at the time of the arrest was

sufficient to make such a showing.

The tip received by police on July 28, 1977 was, stand-

ing alone, insufficient to supply probable cause for the

arrests. Under the two pronged test of Aguilar v. Texas,

378 U.S. 108 (1964), and Spinelli v. United States, 393

U.S. 410 (1969), a tip must contain information suffi-

cient to permit an independent determination that the

informant is reliable and that his information is based on

something more substantial than casual rumor. The

anonymous tip received here, on its face and uncorrobor-

ated, fails to disclose enough information to demonstrate

either fact.

Subsequent evidence gained during police investigation

may, however, serve to corroborate a tip, insufficient in

itself. Draper v. United States, 358 U.S. 307 (1959). In

United States v. Branch, 565 F2d 274 (4th Cir. 1977), we

observed that where the details of a tip were adequately

corroborated by police investigation,* both the reliability

of the informant and the substantiality in fact of his

information are established.

In the present case, the officers had been told by the

informant to note the position of the cars in the drive-

5Corroboration in Branch, supra, consisted of the observation

of a “variety of facts’’ consistent with the tip. The opinion sets

them out.

13a

way. On arrival at the Bizier house, they found two

Volkswagens in the driveway, obviously arranged so that

other cars could enter. They had been told that the nar-

cotics drop would take place that night. The two addi-

tional cars, the Chrysler and the Duster, arrived at about

11:30 p.m. that night, as predicted. The tip could only

have been understood to indicate that the narcotics drop

involved the automobiles in the driveway, and the offi-

cers observed a gathering and discussion around the trunk

of the Duster, and the backing up of the Duster and

opening of its trunk, again consistent with the tip of the

informer. The officers heard a rustling sound during the

examination of the contents of the trunk of the Duster,

again consistent with the tip that the narcotics drop in-

volved the automobiles. Upon the approach of the offi-

cers toward the men gathered around the cars in the

driveway, the open trunk of the Duster was slammed

shut, again consistent with the tip that a narcotics drop

was taking place. Also consistent with a narcotics drop

was the lateness of the hour.

Although the identity of the informant was undis-

closed and thus his realiability had not been ascertained

prior to the time the arrest took place, each detail of the

informant’s tip had been verified by the time of the ar-

rest. The date was the same; the time was the same; the

place was the same, even to the driveway; the automo-

biles in the driveway were involved, all as predicted; and,

as in Draper, by the time the arrest was made, the officers

had corroborated every facet of the information given —

except whether the men present had accomplished their

mission and had the marijuana on hand. Draper, p. 13. As

in Draper, we think there was probable cause for the

arrests in the driveway. While the tip alone and its subse-

quent detailed independent corroboration furnished suffi-

l4a

cient probable cause for the initial arrests, the officers

also knew of the earlier tip, the suspected marijuana

plants at the address, and the nervous behavior of the

Biziers on the earlier occasion, which would at the least

fortify the reasonableness of the officers’ actions.

We are thus of opinion there was probable cause to

arrest the three men in the driveway.

Contemporaneously with the first three arrests, Ser-

geant Conroy detected the odor of marijuana emanating

from the back of the Duster, and Sergeant Toomey ob-

served marijuana on the rear bumper and on the ground

underneath. This established probable cause for the

search of the trunk as well as placing the search within

the plain view doctrine, for this circuit has held that

probable cause may be supported by the detection of

distinctive odors, as well as by sight. United States v.

Sifuentes, 504 F2d 845 (4th Cir. 1974) (marijuana); Uni-

ted States v. Gills, 357 F2d 299 (4th Cir. 1966) (moon-

shine whiskey). See also United States v. Burrow, 396

F.Supp. 890, 895-96 (D. Md. 1975) (marijuana).

This leaves the question of the justification of the war-

rantless search of the trunk of the car which took place.

We think it justified under the plain view doctrine.

As we have expressed above, the officers had a right to

be where they were to effect the arrests. Their discovery

of the marijuana was inadvertent, Coolidge v. New Hamp-

shire, 403 U.S. 433, 469 (1971), because the officers did

not know the location of the marijuana in advance and

intend to seize it, they could not have obtained a warrant

to search the trunk of the Duster which they had never

seen and could not have described to a magistrate. Similar

circumstances are specifically referred to in Coolidge at p.

l5a

482.° Being where they had a right to be, they not only

smelled marijuana, they observed it on the rear bumper

of the car in plain view. This gave them the right to open

the trunk of the Duster to search for it. We think there is

no distinction between the marijuana in sight on the

bumper and that smelled in the trunk. Both were in plain

view within the meaning of the Fourth Amendment if

they were “obvious to the senses.” Sifuentes, p. 848.

In Sifuentes, the marijuana involved was in closed card-

board boxes on the seat of a van which had been im-

pounded by the police. The police smelled the marijuana

when they opened the door of the van to drive it away,

and they examined the contents of the closed boxes. The

court held that ‘“‘these facts combined to place the con-

traband in plain view, that is, obvious to the senses.” We

think the marijuana in the trunk of the Duster was no less

in plain view than the marijuana in the boxes on the seat

of the van in Sifuentes.

While we are aware that Coolidge stated that “‘[t]he

word ‘automobile’ is not a talisman in whose presence the

Fourth Amendment fades away and disappears,” 403

U.S. at 461, we note that several of the facts justifying an

automobile search under the doctrine established in

Carroll v. United States, 267 U.S. 132 (1925), and cases

following, are present. One of the men involved in the

narcotics drop was at large; there was contraband in-

volved, marijuana; a police guard would have been neces-

sary to immobolize the Duster during the period of more

6“We did not indicate there [a search incident to arrest in Chi-

mel v. California, 395 U.S. ___ (19 __)], and do not suggest here,

that the police must obtain a warrant if they anticipate they will

obtain specific evidence in the course of a search.” 403 U.S. at

482.

16a

than an hour necessary to get a warrant; and at least the

seizure of the vehicle would have been necessary without

a warrant, if not its contents. Coolidge, p. 462; Chambers

v. Maroney, 399 U.S. 42, 51-52 (1970). But, because we

think the marijuana in the trunk of the Duster was in

plain view within the contemplation of Sifuentes, we

need not decide whether the automobile exception has

application here to render the evidence of the contents of

the trunk admissible. We also need not decide the validity

of other grounds which the government says should sus-

tain the search of the trunk.

Since Payton v. New York, 48 L.W. 4375 (April 15,

1980), it is clear that the entry, without a warrant, into

the private home of the suspect to arrest him routinely

for a felony is invalid under the Fourth Amendment. In

both cases involved in Payton, probable cause existed to

believe that the suspect was guilty of a felony and that

each suspect was in the home where the polic searched;

indeed, upon knocking at the door of suspect Riddick’s

home, and having the door opened by a child, the police

saw Riddick. In Payton’s case, a shell casing was found as

a result of the search for him was admitted in his murder

trial, and in Riddick’s narcotics and related paraphernalia

were found in a search for weapons, which were later

introduced into evidence in a trial on narcotics chages.

While the two homes involved in the Payton case were

those of the suspects, we need not decide what different

rules, if any, exist for arrest without a warrant in the

home of the person arrested and in the home of another,

Cf. Wallace v. King, No. 78-1399 (4th Cir. 1980), for the

rule of the Payton case does not apply where there are

exigent circumstances. “Absent exigent circumstances,

that threshold [of the home] may not reasonably be

crossed without a warrant.” 48 L.W. 4375, 4380. With

17a

that in mind, we think the entry of the officers into the

Bizier home was authorized by the doctrine of hot pur-

suit, which was recognized in Payton as the prevailing

rule at the time of the adoption of the Bill of Rights, 48

L.W. 4375, 4382. —

In Warden v. Hayden, 387 U.S. 294 (1976), the Court

recognized the doctrine of hot pursuit as an exception to

the Fourth Amendment requirement of a warrant, saying

“The exigencies of the situation made that course impera-

tive.”” 387 U.S. at 298. In Warden, a cab company in

Baltimore was robbed at about 8:00 a.m. on its business

premises. Two cab drivers in the vicinity followed the

robber to a given street address and notified the company

dispatcher that the robber had entered that house. The

dispatcher relayed the information to the police, who

arrived at the house within minutes. The entry of the

house to search for the suspect followed. The exigencies

of the situation there were described as a danger to the

lives of the officers or others, and the court approved a

thorough search of the house for persons and weapons as

the only way of insuring that the suspect was the only

man present and that the police had control of all weap-

ons which could be used against them or the effect an

escape. Speed was described by the court as essential. In

the case before us, four men other than Bizier were initi-

ally seen taking part in the narcotics drop, yet only three

were initially arrested, so the other one remained at large.

The fourth man was last seen going behind the Bizier

house. It would have taken an hour to procure a warrant

for a man whose identity was unknown, for we remember

that Conroy knew Bizier and Bizier’s wife, having spoken

to them previously and having seen Bizier outside the

house on three previous occasions that very evening. At

hand in the trunk of the Duster were five bales of mari-

18a

juana weighing 30 to 40 pounds each, so the narcotics

drop in which the fourth man was involved was of consid-

erable magnitude; and it was apparent that a large scale

narcotics operation was involved, not merely a small

scale street-corner transaction, or an outdoor barbecue as

suggested, possibly in jest, by the defendants at trial. To

have kept all the occupants of the Bizier residence in the

home during the time a warrant could have been obtained

would have amounted to no less than a siege of the pre-

mises, no more authorized in law than a warrantless entry

absent exigent circumstances. An officer was sent to

watch the rear of the house but had not apprehended the

fourth man. The fourth man involved in the narcotics

drop not having been observed outside the house, it was

reasonable to assume that he was inside. Conroy testified

that he intended to go in the house to arrest the fourth

man and to see if there was any contraband which was

going to be destroyed. He knocked at the door and iden-

tified himself as a police officer, at which time Bizier,

who had answered the door, became hysterical and

backed off. The entry was thus made without either

Bizier’s expressed consent or opposition. The Biziers had

a small, sick daughter in a darkened room adjacent to the

room in which Morrissette was arrested, so, in order not

to disturb the child, Conroy took Morrissette into the

kitchen, where he sat Morrissette down at the table to

give him his Miranda rights, which was done. While

Conroy was in the kitchen, he observed, on the table

in plain view, two notebooks containing records of mari-

juana transactions, and on the kitchen counter in plain

view was a sum in excess of $6,000. These items were

seized as evidence. The house smelled of marijuana. Con-

roy could smell it when he came in the front door. In

was particularly strong at a door leading to the basement.

Both Conroy and Sergeant Toomey smeiled it. Toomey,

19a

who meanwhile had been let in the back door by Bizier,

in looking around to see if anyone else was present,

found more bales of marijuana and other narcotics para-

phernalia in the basement which were also seized. No

other search was made by the officers.

As we have indicated, we think Conroy’s entry was

justified as an entry in hot pursuit of Morrissette. The

fourth man had vanished just moments before; it was only

reasonable to believe he was in the house; and speed was

essential. The notebooks and money were in plain view of

the officers in the kitchen, where Controy had taken

Morrissette in order to avoid distrubing the sick child.

The marijuana in the basement was smelled by the offi-

cers and thus was in plain view under Sifuentes. Even

were that not true, the officers had a right to check the

house to see if anyone else were present, an elementary

precaution for their own safety, and the intrusion they

made into the house was no more than was necessary to

effect the arrest and take elementary precautions for

their own safety. Morrissette’s wallet was also seized by

Conroy, it having been discovered by Conroy on the

child’s bed in the darkened room after Morrissette tried

to remove himself to that room at the time he was ar-

rested. If issue be made of this seizure’, we think it was

incident to the arrest. We think the search made of the

premises was quite limited and entirely in keeping with

the rule of Chimel v. California, 395 U.S. 752 (1900),

which has been construed in Coolidge at p. 466, a part of

note 24: ‘‘Where, however, the arresting officer inadver-

tently comes within plain view of a piece of evidence, not

concealed, although outside the area under the immediate

control of the arrestee, the officer may seize it, so long as

7 The seizure of the wallet.

ra

20a

the plain view was obtained in the course of an appro-

priately limited search of the arrestee.”

We are thus of opinion the evidence taken from the

Duster and from 427 McQuan Street was admissible. We

note in passing that, for reasons best known to them-

selves, neither the government nor the defendants have

had transcribed the argument on the motions to suppress

which included the court’s rulings on the same. We also

do not address the question of whether or not the offi-

cers were entitled to enter the premises to prevent the

destruction of evidence. They had a right to enter to

effect Morrissette’s arrest, and the articles seized in the

house were validly taken pursuant to that right. That

another motive may have been in mind also should not

serve to downgrade perfectly valid actions of the officers,

even if additional motive were not valid, which we do not

intimate.

The Banyon Road Search

During part of 1977, Haynie resided in a house at 235

Banyon Road on Palm Beach, Florida. This house was

rented from a Dr. Richard Wright pursuant to a lease, the

term of which expired in November of that year. Upon

returning from a trip on December 10, 1977, Dr. Wright

became aware that the house was vacant. He took posses-

sion of the house, got the key back from a real estate

agent, and removed the property remaining there to a

warehouse and contacted Haynie concerning certain dam-

ages to the house. Haynie and Dr. Wright met to discuss

these damages, and Haynie stated that he would make

good the cost of any repairs. Haynie was then given per-

mission to go to the warehouse in order to search for

some money he had apparently hidden in the television

set.

2la

Dr. Wright did not see Haynie at the house at any time

after November 1977 although he frequently visited the

property between December 10 of that year and January

24, 1978. During these visits, Dr. Wright found the house

unoccupied at all times with the exception of one in-

stance in December 1977. On that occasion, Dr. Wright

contacted the local police with regard to a Mr. Justice

who was in the house, unconscious. Upon responding to

this call, police noted that the telephones were discon-

nected and that the house was devoid of food and

clothing.

On January 24, 1978, Officer David Kelley of the Palm

Beach Police Department conducted a warrantless search

of the house after receiving the written consent of Dr.

Wright. Dr. Wright stated that Haynie was no longer living

in the house and that it had not been occupied since early

December of the previous year. Several crates and a tin

can with a false bottom were seized during that search.

Haynie contends that this warrantless search was not

justified by Dr. Wright’s consent. Referring to the Florida

law of property, he claims that the mere termination of

lease is insufficient to terminate a landlord-tenant rela-

tionship and vest a possessory interest in the landlord.

Thus, he argues, if Dr. Wright had no right to regain

possession of the premises, neither would he have the

right to consent to their search.

While we agree that, absent extraordinary circum-

stances, a landlord may not give an effective consent for

the search of his tenant’s property, Chapman v. United

States, 365 U.S. 610 (1961), it is equally true that,

“[t] here can be nothing unlawful in the Government’s

appropriation of...abandoned property.” Abel v.

United States, 362 U.S. 217, 241 (1960). Further, appel-

lant misconstrues the nature of the inquiry under the

22a

Fourth Amendment if he assumes that property rights

conferred by State landlord and tenant law are exclu-

sively determinative of constitutional rights. In Chapman

the Supreme Court declined to “... import into the law

surrounding the constitutional right to be free from un-

reasonable searches and seizures subtle distinctions, devel-

oped and refined by the common law in evolving the

body of private property law....” 365 U.S. at 617.

Thus, “[t]he proper test for abandonment is not whether

all formal property rights have been relinquished, but

whether the complaining party retains a reasonable ex-

pectation of privacy in the-articles alleged to be aban-

doned.”’ United States v. Wilson, 472 F2d 901, 903 (9th

Cir. 1973). In Wilson, a tenant had departed from his

apartment and failed to make two weekly payments of

his rent at the time of a warrantless search. In spite of the

fact that the defendant had left some clothing and a tele-

vision set on the premises, the court held that any reason-

able expectation of privacy in the apartment was termi-

nated and that a warrantless search conducted with the

consent of the landlord was valid.

The present case presents a similar situation. Here, the

lease expired nearly two months before the search.

Haynie had not been seen at the premises for six weeks,

and testimony indicates that the house contained no

clothing or food and was without telephone service for a

like period. Furthermore, Haynie did not protest the re-

moval of his personalty from the property during his De-

cember meeting with Dr. Wright as might reasonably be

expected of an individual who intended to remain in pos-

session of his residence. These facts indicate that Haynie

intended to permanently abandon the property and re-

tained no expectation of privacy therein. Therefore,

where police gained entry to 235 Banyon Road with the

23a

consent of the owner, they were justified in conducting a

warrantless search on the basis that the residence and its

contents had been abandoned by Haynie.

The claim of the defendant Fletcher deserves brief at-

tention. He asserts that his arrest at room 141 of the

Holiday Inn near Dulles Airport was without probable

cause based upon his mere presence in the room. His

argument then goes that his photograph taken as result of

the claimed illegal arrest was unlawfully used in grand

jury proceedings, and also that the witness Snow would

have been unable to identify him had it not been for the

photograph.

We do not agree with any of the claims.

We think his arrest was based upon probable cause.

Only a small part of the facts surrounding the arrest show

that room 141 was the communications center from

which receipt of the importation of 800 pounds of illegal

hashish was arranged by Haynie and others. Fletcher had

been seen in and around the motel just prior to the arrest,

and it was known that he was staying in room 141 with

Haynie, a key suspect as the leader of the drug ring. The

consignee of the hashish, one Coury, also visited room

141 that day. “Consorting with criminals may in a partic-

ular factual setting be basis for believing that a criminal

project is under way.” Sibron v. New York, 392 U.S. 40,

68 (1968) (Mr. Justice Douglas concurring). Certainly in

the setting around room 141, the known communications

center for the importation of such a large amount of

illegal drugs, the officers had probable cause to arrest

everyone who was reasonably connected with the known

participants. Fletcher was so connected.

Even if Fletcher’s arrest were improper, use of the

photograph before the grand jury was not illegal. United

States v. Calandra, 414 U.S. 338 (1974); Stone v. Powell,

24a

428 U.S. 465, 485 (1976). Additionally, in United States

v. Crews, 48 L.W. 4324, 4328-29 (May 25, 1980), five

justices of the Supreme Court agreed that a defendant’s

face is not suppressible evidence as the fruit of an illegal

arrest.

In all events, the only evidence in the records is that

Fletcher was arrested in room 141, December 5, 1977.

The witness Snow, a member of the drug ring, did not go

over to the government until February 1978. Shortly be-

fore that time, in 1978, and following Fletcher’s previous

arrest at room 141 in December 1977, Fletcher was the

keeper of a house which Snow used in connection with

the illicit drug operation. At that time, and before Snow

went over to the government, Fietcher told Snow about

the arrest at room 141. Thus, Fletcher had told Snow

about the arrest at room 141 before Snow went over to

the government and before Snow had access to the pho-

tographs taken by the government at the time of the

arrest in room 141. So far as it relates to Snow’s testi-

mony, Fletcher’s claim also has no factual foundation. In

passing, we note that the identification of Fletcher has

been in no way related to his arrest photograph, either by

Snow, or before the grand jury, or otherwise in the

investigation.

We have also considered the remaining assignments of

error including the admissibility and sufficiency of evi-

dence; the suppression of evidence by the prosecution;

the denial of a motion for continuance; the jurisdiction

of the court; and the imposition of sentence upon

Haynie. We think all of these arguments are without

merit.

Accordingly, the judgments of convictions are

AFFIRMED.

25a

APPENDIX C

United States Court of Appeals

for the

Fourth Circuit

No. 79-5068

Lynn Edward Fletcher

Appellant

United States of America

Appellee

ORDER

There having been no request for a poll of the court on

the petition for rehearing en banc, it is accordingly AD-

JUDGED and ORDERED that rehearing en banc shall be,

and the same hereby is, denied.

The panel has considered the petition for rehearing and

is of opinion it is without merit.

It is accordingly ADJUDGED and ORDERED that the

petition for rehearing shall be, and the same hereby is,

denied.

With the concurrences of Judge Russell and Judge

~ Phillips.

For the Court

[Filed Feb. 19, 1981]

7%

26a

APPENDIX D

United States Court of Appeals

for the

Fourth Circuit

No. 79-5068

United States of America,

Appellee,

versus

Lynn Edward Fletcher,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge.

Upon consideration of a motion of the appellant, by

counsel, for stay of mandate pending application to the

Supreme Court of the United States for a writ of

certiorari,

IT IS ORDERED that the motion is DENIED.

For the Court - by Direction.

/s/ William K. Slate, II

Clerk

[Filed Feb. 25, 1981]

27a

APPENDIX E

United States Court of Appeals

for the

Fourth Circuit

No. 79-5068

United States of America,

Appellee,

versus

Lynn Edward Fletcher,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge.

Upon consideration of the motion to reconsider the

Court’s February 25, 1981, order denying a stay of the

mandate,

IT IS ORDERED that the motion to reconsider is

granted in light of the fact that petitioner may serve his

full six-month sentence prior to a decision on the merits

of his petition by the Supreme Court of the United

States. A stay of the mandate is granted for this reason

only.

For the Court - by Direction.

/s/ William K. Slate, II

CLERK

[Filed March 4, 1981]