# Petition — Fletcher v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1566%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 972 ## Text 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) = 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1566%3A1. Public record. Not legal advice.