Record and brief — Haley v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL RAY HALEY

WILLIAM HARRY RIEHL,

Petitioners

VS.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PETITION, ARGUMENT AND APPENDIX OF PETITIONERS

.

W. STUART CALWELL, JR.

Counsel of Record

Counsel for Petitioners

CALWELL, McCORMICK &

PEYTON, L. C.

2602 First Avenue

Nitro, West Virginia 25143

MICHAEL C. ALLEN, Esq.

Counsel of Record

240 Capitol Street

Charleston, West Virginia 25301

Dunbar Printing Co., Dunbar, W. Va.

QUESTIONS PRESENTED

1. Where state trooper tears open green opague garbage

bag found in defendants’ car trunk during stop for traffic

violation, whether mayijuana found therein should be

suppressed pursuant to Robbins v. California, U.S.

___.. (1981).

2. Where circumstances require a warrant before

defendants’ car can be searched and the search is directed

by agent of federal government whether a search warrant

substantially complying with Rule 41(a) of the Federal

Rules of Criminal Procedure is required to meet minimum

Fourth Amendment requirements.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........ ee... 1

I cctesaieennoanesenee 2

SIR ap mee see 2

CONSTITUTIONAL AND STATUTORY

cual senpceitaataanstivscniinninsbiveieitbhaedaciasent 2

STATEMENT OF THE CASE .......... 2

IIE -cabiiissecsesacsinnenctsitienabeisserhicstiibinveinichatdeanetce 5

cc iactnahansssCibieneseontiacoocnaialatans 11

TABLE OF CASES

Cases Page

Byers v. United States, 273 U.S. 28,

TEES SARE PERL Re OI LESS ce 6, 8

Cady Vv. Dombrowski, 413 U.S. 433 (1973).............. 6

Carroll v. United States, 267 U.S. 132 ( ees 8

Chambers Vv. Maroney, 399 U.S. 42 (1970)................ 6, 8

Elkins v. United States, 364 U.S. 206 (1960) .......... 8,9

Lustig Vv. United States, 338 U.S.

a asneansebebanene 6, 7,8

Robbins v. California, 5

I 72 sessahnbniendsetebanimnsanmaioesiaias 1,5

State of New York v. Belton, __. U.S. _____ (1981) 8

Texas V. White, 423 U.S. 67 (1978).......................0.- 6

United States v. Burke,.17 F.2d 377

a aad 9, 10

United States v. Hamlin, 540 F.2d 742

I sls enenalen nee ~

United States Vv. Haynie, 647 F.2d 227,

233 (4th Cir. 1974)................ AS RAE ros SO VPP 6

United States v. Johnson, 451 F.2d ———

(5th Cir.

United States v. Navarro, 400 F.2d ———

(5th Cir. )..

United States v. Sifuentes, 504 F.2d 845

(4th Cir. 1978)....

United States v. Seidlitz, 589 F.2d 152

(4th Cir. 1978).

United States v. Sellers, 483 F.2d 37

(6th Cir. 1978).....................

Wong Sun v. United States, 371 U.S. 471 (1963)

INDEX TO APPENDIX

Fourth Circuit Opinion of January 21, 1982...

Order of United States District Court for Southern

District of W. Va. July 1, 1980.

8, 9, 10

6

10

IN THE

Supreme Court of the United States

OCTOBER TERM 1981

MICHAEL RAY HALEY

WILLIAM HARRY RIEHL,

Petitioners

We

UNITED STATES OF AMERICA,'

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

To the Honorable, the Chief Justice and Associates Justices

of the Supreme Court of the United States.

Michael Ray Haley and William Harry Riehl, the

petitioners herein, pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for tre Fourth Circuit entered in the above-entitled case on

January 21, 1982.

QUESTIONS PRESENTED

1. Where state trooper tears open green opague garbage

bag found in defendants’ car trunk during stop for traffic

violation, whether marijuana found therein should be

suppressed pursuant to Robbins v. California, U.S.

(1981).

2. Where circumstances require a warrant before

defendants’ car can be searched and the search is directed

by agent of federal government whether a search warrant

substantially complying with Rule 41(a) of the Federal

Rules of Criminal Procedure is required to meet minimum

Fourth Amendment requirements.

‘Caption contains all parties.

er! t~—‘s—SS

2 ;

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit reported at F2d (4th Cir. 1981)

is reproduced in Appendix A hereto, infra page . The

order of the United States District Court for the Southern

District of West Virginia is reproduced at page . infra.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit was entered on January 21, 1981. The

jurisdiction of the Court is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. U. S. Constitution Amendment IV.

2. USCS Rules of Criminal Procedure, Rule 41(a).

STATEMENT OF THE CASE

Michael Ray Haley and William Harry Riehl were

indicted on February 28, 1980, by a Federal Grand Jury in

Charleston, West Virginia. Each was charged with

violating 18 U.S.C. § 841 (a) (3) and (2) and 21 U.S.C. § 841

(a) (1) and (2).

Approximately 204 pounds of marijuana were seized

during a search of defendants’ car by state and federal

authorities on February 10, 1980. Defendants each filed

motions to suppress this evidence. At the close of an

evidentiary hearing held before Judge Charles Haden, II,

on April 10, 1980, the motions were denied.

On April 28, 1980, the date scheduled for trial,

defendants Haley and Riehi each filed a Motion To

Reconsider his Motion To Suppress and, in addition, each

defendant filed an Amended Motion To Suppress Evidence

based on Rule 41 of The Federal Rules of Criminal

Procedure considerations. Following an evidentiary

hearing that same day, Judge Haden lifted and vacated his

former ruling on defendants’ motions and granted

defendants’ renewed and amended motions to suppress

3

evidence. On July 2, 1980, Judge Haden entered an Order

confirming his ruling.

The Government appealed this ruling to the United

States Court of Appeals for the Fourth Circuit. The Fourth

Circuit reversed Judge Haden and defendants now

petition for certiorari.

The pertinent facts are as follows:

During the late morning hours of February 10, 1980,

Michael Ray Haley and William Harry Riehl were

traveling in a borrowed car north along I-79 near

Charleston, West Virginia. Haley was driving. Trooper

Clayton Alford, driving routine road patrol, stopped Haley

for speeding. Trooper Alford had no other reason for the

stop.

While Haley was seated in the front passenger seat of

Alford’s police cruiser, Alford detected the odor of what he

believed to be marijuana smoke. He asked Haley if he had

been smoking marijuana or been around anyone else

smoking marijuana. Haley denied that he had.

During the process of writing a speeding ticket, Alford

learned that the car belonged to a resident of Flordia, who

had lent the car to William Riehl and Haley.

After writing the ticket, Alford approached the

passenger side of the car, and Riehl, who was still seated

there, rolled down the window. Alford asked Riehl if he

had been smoxing marijuana or if he had been around

anyone who had. Riehl denied it. There was no evidence

that anything but marijuana smoke was smelled. Both

defendants then refused to consent to a search of the car.

Upon this refusal, Trooper Alford advised Haley and

Riehl! that he was going to obtain a search warrant for the

vehicle and until then they would be detained and not free

to leave. Once in the patrol car, defendant Riehl testified

that Alford offered to “dump” any marijuana defendants

had: and that he was not “into busting a couple of kids going

on vacation”. Riehl then admitted that there was a small

amount of marijuana in the car. Along with Trooper

4

Alford, he went to the front passenger side of the car and

produced from under the seat a small bag which appeared

to contain marijuana. Haley and Riehl were placed under

arrest and Alford called a tow truck.

James Laner, an employee of Copley Wrecker Service,

arrived a short time later. After Laner had secured the

vehicle to the tow truck, Trooper Alford proceeded to

unlock the car’s trunk. Several garbage bags, apparently

full, were viewed. Alford testified that he immediately

shut the trunk lid. Laner testified, however, that Alford

reached in, tore one of the bags open, and exclaimed to

Laner, “Just what I thought”

Alford directed that the car be towed to Company B

headquarters in South Charleston, West Virginia. Enroute

there, Alford requested special drug units to meet him. In

turn, Randolph James, Drug Enforcement

Administration, appeared at Company B to assist.

During the course of the afternoon of February 10, 1980,

Agent James assisted in procuring a “state court” search

warrant,* and helped search defendants’ car. Six plastic

bags were found in the back seat of the car and eleven

plastic bags and two boxes, all full of marijuana, were

found in the trunk.

“Although Alford testified at the April 10, 1980 hearing that he didn't

tear open the bag and that he was able to observe what he thought was

marijuana through a small hole already there, the District Judge

discredited this testimony and instead relied on the version supplied by

Laner.

‘Agent James testified at the April 28 hearing regarding the search

warrant:

Q: How was this affidavit prepared?

A: Trooper Alford ... I wrote it out. | wrote the affidavit out.

Q: You wrote it out?

A: Just roughed out notes. Okay. He and I, Trooper Alford and I,

went through the probable cause of the facts and roughed them

out.

5

ARGUMENT

(1) The Robbins v. California,

Question.

The District Judge discredited Trooper Alford’s

testimony where it was contradicted hy tow truck driver

Laner as to the ripping open of the garbage bag found in

the trunk of defendants’ car. Alford testified that he saw

marijuana through a hole in the bag. Laner testified that

Alford stuck his fingers in the bag and ripped it open, thus

exposing the marijuana. The District Court credited

Laner’s version. Any conflict, therefore, between Laner

and Alford must be resolved against Alford. The garbage

bag, thus, was a sealed container within the meaning of

Robbins Vv. California, USS. (1981).

Under the rule of Robbins, supra, only a container which

“so clearly announce{s] its contents, whether by its

distinctive configuration, its transparency, or otherwise.

that its contents are obvious to an observer”, may be opened

without a warrant. fz There is no

evidence in this case of any of the factors identified in

Robbins as creating an exception to the search warrant

requirement.

There was no distinctive odor coming from the bag or

trunk; there was no distinctive configuration belying the

contents of the bag; the container was not open and was not

transparent.

Alford, therefore, engaged in an unlawful, warrantless

search of the garbage bag. The evidence must, therefore,

be suppressed as fruit of the poison tree. Wong Sun V.

United States, 371 U.S. 471 (1963).

(2) The U.S.C.S. Rules of Criminal Procedure, Rule 41(a)

Question.

Assume that Trooper Alford was telling the truth; that

he didn’t tear open the garbage bag found in defendant’s

ear trunk. In that event, he acted correctly in determining

he needed a warrant to search defendant’s car. Any

circumstances that might have justified an automebile

exception search had been extinguished by the time Alford

U.S. —— (1981)

6

got around to opening the trunk. Chambers V. Maroney,

399 U.S. 42, 51 (1970); United States v. Haynie, 637 F.2d

227, 233 (4th Cir. 1980); United States v. Sifuentes, 504 F.2d

845 (4th Cir. 1974). Likewise, any “station house” exception

was by then extinguished. Teras v. White, 423 U.S. 67

(1925); Cady v. Dombrowski, 413 US. 438 (1973);

Chambers Vv. Maroney, supra. Defendants’ car was not

readily mobile; Alford had no prior or immediate

knowledge of the contents of the car; the search of the car

was remote in time and place from the arrest; the

marijuana was not in “plain view”.

A search warrant was therefore required. In this case

the warrant must have been in substantial compliance

with Rule 41(a).

Federal Agent James effectively took charge of the

investigation once defendants’ car was impounded at state

police headquarters.

The critical issue where a local investigation becomes a

federal undertaking is whether the federal government's

entry is made in accordance with Fourth Amendment

principles. In this connection, Byers v. Un ited States, 273

U.S. 28, 33 (1926) provides:

“We cannot avoid the conclusion that the participation

of the agent in the search was under color of his federal

office and that the search in substance and effect was a

joint operation of the local and federal officers. In that

view’, so far as this inquiry is concerned, the effect is

the same as though he had engaged in the undertaking

as one exclusively his own” (Emphasis added).

Stated another way, the question is whether or not the

actions of the federal agent at the time he joins or

participates in the search are lawful under Fourth

“The crux of the doctrine is that a search is a search by a federal

official if he hada hand init . . . Itis immaterial whether a federal agent

originated the idea or joined in it while the search was in progress. So

long as he was in it before the object of the search was completely

accomplished, he must be deemed to have participated in it.” Lustig V.

United States, 338 U.S. 74, 78-79 (1949).

~

‘

Amendment and federal standards. For example, in Lustig

v. United States, 338 U.S. 74, 79 (1948), Federal Agent

Greene, who was charged with enforcing the

counterfeiting laws joined the search of a hotel room by city

police after it had already begun. Articles were selected by

Greene which were later used as evidence in a federal

prosecution. Holding that the evidence should have been

suppressed on federal participation grounds, this Court

examined the exclusive actions of the federal agent:

“Where there is participation on the part of the

Federal officers it is not necessary to consider what

would be the result if the search had been conducted

entirely by State officers”. Lustig, supra ai 79.

The Court continued:

“Nor is the search here defensible as incidental to a

lawful arrest. Greene never made the arrest, he knew

that Lustig and Reynolds were not present when he

entered the room...” Lustig, supra at 80.

The issue, therefore, in this case is not whether the

actions of Trooper Alford and other local officials were

proper for state prosecution purposes; but whether federal

agent James, independent of the stream of events prior to

his participation, could have constitutionally searched

defendants’ car on behalf of the federal government absent

a valid “federal search warrant”.

A federal warrant was required for the following

reasons:

a. The investigation was a federal undertaking.

Federal Agent James became actively involved in the

investigation sometime between 1:00 p.m. and 3:00 p.m. on

February 10, 1980. He arrived at Company B

headquarters; he was driving a government automobile; he

agreed and approved of necessity for a search warrant; he

helped Alford write the affidavit for the state search

warrant; he physically searched defendants’ car, finding

six bags of marijuana in the back seat and eleven bags and

8

two boxes in the trunk®; he became involved because of his

expertise (as did the federal agent in Lustig, supra); and he

was called in not only for the search, but to assist in any way

desired. At this point, the investigation became a “federal

undertaking”. See Byers v. United States, supra; Lustig V.

United States, supra; U.S. v. Seidlitz, 589 F.2d 152 (4th Cir.

1978); U.S. v. Hamlin, 540 F.2d 742 (4th Cir. 1976); U.S. v.

Johnson, 451 F.2d 1321 (4th Cir. 1971); and U.S. Vv.

Navarro, 400 F.2d 315 (5th Cir. 1968).

b. When Agent James entered the investigation, noset

of circumstances existed permitting the federal

government a warrantless search of defendants’

automobile.

When the federal government, by Agent James, entered

the case, the defendants’ car was safely impounded at

Company B headquarters; the defendants Haley and Riehl

were under arrest for possession of a small bag of

marijuana; Agent James was told by local officials that

defendants’ car hadn’t been searched but that marijuana

was suspected to be in the car; Agent James was told by

Trooper Curdle:

“That there had been a traffic stop; that it involved two

individuals from Florida, and that there had been

some drugs seized, marijuana seized, and that they

felt that there possibly was additional marijuana in

the car”.

Based on the facts as known by Agent James at that time

he had no justification for a warrantless search of

defendants’ car. Chambers Vv. Maroney, 399 U.S. 42 (1970);

Carroll v. U.S., 267 U.S. 132 (1925); State of New York v.

Belton, U.S. No. 80-328 (1981).

Citing Elkins v. United States, 364 U.S. 206 (1960)

below, the government erroneously concluded that it is no

longer necessary to test the manner in which a federal

‘At the April 28, 1980 hearing the government stipulated Agent

James’ participation.

9

officer participates in a search so long as someone involved

doesn’t violate the Fourth Amendment - amounting to a

“silver platter” doctrine.® Elkins v. United States, supra, of

course did not involve a joint investigation by local and

federal officials but rather tested the sufficiency of state

seized evidence in a later federal prosecution. Here, the

Federal Government participated in the seizing of the

evidence. In differentiating between Elkins, supra, and

the class of cases to which the instant one belongs, the Court

in U.S. v. Burke, 517 F.2d 277 (2nd Cir. 1975) noted at page

382:

“The cases that have caused difficulty are those where

warrants have been issued by state judges as the result

of a mingling of state and federal law enforcement”.

In the instant case, Agent James was not relieved of

Fourth Amendment responsibilities by the actions of the

local officials whether those actions were proper or not.

The overriding consideration is to test the constitutionality

of the moment of federal intervention and action.

c. Substantial compliance with Rule 41 is required to

satisfy Fourth Amendment.

James, an experienced agent considered to be expert,

concurred that a search warrant was required to search

defendants’ car under the circumstances. Where a warrant

is required for Federal purposes, as here, the Fourth

Amendment can only be satisfied by complying with the

basic requirements of Rule 41. Petitioners recognize that

all deviation from the technical requirements of Rule 41

are not of equal weight and that ail deviations do not in

every case result in a violation of the Fourth Amendment.

The case of Navarro v. U.S., 400 F.2d 315 (5th Cir. 1968)

applied the requirement that Rule 41 warrants issued by

state judges must be issued by a judge of a state court of

record. A failure of this requirement would be a basic

"This would be the precise development that Judge Wisdom feared in

Navarro V. U.S., 400 F.2d 315, 317 (5th Cir. 1968).

10

defect. The Court, in United States v. Burke, supra, at 385,

observed:

“While Navarro applied the exclusionary rule, the

defect there was basic; since the issuing judge was not of

a state cour. of record; there was in effect no warrant at

all for federal purposes.” (Emphasis added).

In the instant case, regardless of what the government

contends about the stream of state events justifying a

warrantless search of defendants’ car, the fact isa warrant

was required and the search warrant issuing judge was not

a state court of record. The defect was basic.’ The effect

was: no warrant at all for federal purposes. No exception to

the Fourth Amendment applied, and, therefore, the

warrantless search by Agent James requires suppression

of the evidence. Quoting Judge Wisdom in Navarro, supra,

at 317:

“While federal officers had not attempted to avoid the

requirements of Rule 41 by seeking the assistance of

City officers and while federal and local officers

officers ought .. . to be encouraged to cooperate, such

cooperation should comply with the rules, since

permitting the continuance of other practice herein

might well lead to a limited revival of the ‘silver

platter’ practice”. 400 F.2d at 319-320.

The instant case squarely presents the “Rule 41(a) issue”

addressed by the 5th Circuit in Navarro v. United States,

400 F.2d 315 (5th Cir. 1968). The Fourth Circuit’s

treatment of the issue in this case creates a conflict among

the circuits. The tacit ruling of the Court below is that

unless federal agents are present at the beginning of the

complained of transaction, then the question of “federal

participation” is not raised.

‘It must be pointed out that the case of ['nited States V. Sellers, 483

F.2d 37 (Sth Cir. 1973), relied on below and quoted extensively by the

government was decided when Rule 41 had been amended to not require

the state court tobe a record court. Since then, of course, the Rule has been

changed to it’s original form requiring the warrant to issue from astate

court of record.

ll

The 4th Circuit should have addressed the issue and

affirmed the district judge’s ruling, suppressing the

evidence in accordance with the principles laid down by

the 5th Circuit in Navarro, supra.

CONCLUSION

For the reasons, points and authorities cited above,

petitioners pray that a writ of certiorari be granted.

W. STUART CALWELL, JR.

CALWELL, McCORMICK &

PEYTON, L. C.

2602 First Avenue

Nitro, West Virginia 25143

Counsel for Petitioners

1A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-5105

UNITED STATES OF AMERICA,

Appellant,

VS

MICHAEL RAY HALEY;

WILLIAM HARRY RIEHL

Appellees.

Appeal from the United States District Court for the

Southern District of West Virginia, at Charleston. Charles

H. Haden II, District Judge.

Argued: October 8, 1981 Decided: January 21, 1982

Before WINTER, Chief Judge, BRYAN, Senior Circuit

Judge, and HALL, Circuit Judge.

Marye L. Wright, Assistant United States Attorney

(Wayne A. Rich, Jr., Acting United States Attorney on

brief) for Appellant; W. Stuart Calwell, Jr. (Calwell,

McCormick & Peyton, L. C. on brief) and Michael C. Allen

for Appellees.

2A

HALL, Circuit Judge:

The United States appeals from a district court order

suppressing the introduction into evidence of marijuana

which state police officers and a Federal Drug

Enforcement agent seized from the defendants’

automobile. Suppression was ordered because the officers

failed to obtain a search warrant from a state court of

record as required by Rule 41 of the Federal Rules of

Criminal Procedure. We conclude that compliance with

Rule 41 was unnecessary because the circumstances

justified a warrantless search, and therefore reverse the

suppression order and remand the case for further

proceedings.

In the late morning hours of February 10, 1980, West

Virginia State Trooper Clayton Alford was on routine road

patrol on Interstate 79 just north of Charleston, West

Virginia. Alford observed a 1977 Chevrolet Impala

bearing Florida license plates traveling north at 74 miles

an hour. He pursued the vehicle and ordered its driver to

stop. Upon stopping, the driver, Michael Haley,

immediately got out, met Alford at the rear of the car, and

then went with Alford to sit in the trooper’s police cruiser.

While sitting in the cruiser, Alford smelled an intense

odor of marijuana emanating from Haley’s body. In

response to Alford’s questioning, Haley denied that he had

been smoking marijuana or that he had been in the

presence of anyone who had.

The registration revealed that the automobile was

registered in Florida to Daniel G. Azzole. Haley said that

Azzole was a friend of his passenger, William Riehl, and

that Riehl had borrowed the car for a trip.

Having detected the marijuana odor on Haley, the

officer suspected that the automobile was carrying

marijuana. After writing a speeding citation, Alford left

Haley in the cruiser and walked to the passenger side of the

vehicle where Riehl was seated. When Riehl rolled down

the window, Alford again smelled an intense marijuana

odor inside the car and on Riehl’s body.

3A

The defendants refused to consent to a search of their

automobile, so Alford placed them in the cruiser and told

them that he would get a search warrant. Riehl then

admitted that a small quantity of marijuana was in the car.

He led Alford to the passenger side where he removed from

beneath the seat a small bag containing marijuana and

some pills. Alford placed both defendants under arrest and

radioed for a tow truck to tow the car to the state police

barracks in South Charleston.

When the tow truck arrived, Alford removed the keys

from the car’s ignition and opened the trunk. The trunk

was completely filled with large garbage bags made of an

opaque plastic. According to Alford, one bag had a two-

inch hole through which he could see marijuana. The tow

truck operator testified that the trooper “stuck his fingers

in the bag and ripped the bag open.”! In any event, Alford

decided he had better get asearch warrant, so he closed the

trunk and directed the tow truck operator to take the car to

the state police barracks.

Alford notified the officers on duty at the barracks that

he was bringing in the defendants and their automobile.

Those officers contacted Randy James, a Federal Drug

Enforcement agent, and informed him of the morning’s

occurrences. Jame: went to the barracks, helped Alford

prepare an affidavit for a search warrant and

accompanied the officers to the Kanawha County

Courthouse where Alford presented the affidavit to a

county magistrate.

The magistrate gave Alford a document which Alford

believed was a search warrant.? The officers and James

returned to the barracks and searched the car. The search

'The tow truck operator did not explicity state whether Alford

punched a hold in the bag or whether he simply widened a pre-existing

hole. Because of the other circumstances surrounding the incident, we

do not find it necessary to remand this factual question for resolution.

2The record indicates that Alford did not receive a search warrant,

but rather a copy of his own affidavit.

4A

produced six garbage bags of marijuana under some

clothing on the back seat of the car, and eleven garbage

bags and two cardboard boxes of marijuana in the trunk.

In all, two hundred and four pounds of marijuana were

seized.

Haley and Riehl were indicted for violations of 18 U.S.C.

§2 and §1952(a) (3), and 21 U.S.C. §84l(a) (1). The

defendants’ first motion to suppress introduction of

marijuana was denied on the ground that contraband was

seized during a valid warrantless search. Upon a motion to

reconsider, the court vacated its earlier decision and ruled

that because a federal agent had participated in the search,

the warrant should have been procured from a court of

record pursuant to Rule 41. Because West Virginia

magistrate courts are not courts of record, the district

court ordered the suppression of the contraband.

On appeal, the government first contends that the

officer’s failure to comply with Rule 41 was non-prejudicial

because the state search warrant procedure satisfied

Fourth Amendment requirements. However, the record

discloses that a valid state warrant was never issued, so the

government’s argument completely lacks a factual basis.

Therefore, we do not address this contention.

Alternatively, the government argues that the

circumstances justify a warrantless search of the vehicle

and the containers found inside. We agree. When a law

enforcement officer stops a moving vehicle, and the officer

has probable cause to believe that the vehicle is carrying

contraband, the vehicle may be searched without a

warrant either at the scene or later at the police station.

Chambers Vv. Maroney, 399 U.S. 42 (1970); United States v.

Muhammed, No. 79-5274/75 (4th Cir., Sept. 1, 1981).

Sufficient probable cause arises when the officer smells

marijuana inside the vehicle. United States v. Sifuentes,

504 F.2d 845 (4th Cir. 1974). In addition, the officers may

search any sealed container located inside the vehicle if the

container’s contents can be inferred from its outward

appearance, distinctive configuration, transparency or

5A

other characteristics, thereby bringing the contents within

plain view. Robbins v. California, US. 1018.

Ct. 2841 (1981). Another characteristic which brings the

contents into plain view is the odor given off by those

contents. United States v. Haynie. 637 F.2d 227 (4th Cir.

1980); Sifuentes, 504 F.2d at 848.

This case fits squarely within the foregoing criteria. The

automobile was moving at a high rate of speed when

stopped by Trooper Alford. The strong marijuana odor

emanating from the vehicle and the small bag of

marijuana found under the seat gave Alford probable

cause to believe that still more marijuana was inside,

thereby justifying a warrantless search either at the scene

or at the police barracks. Further, the numerous garbage

bags found during the search were packed with a coarse

substance which was obviously marijuana. This distinctive

configuration together with the intense marijuana odor

brought the contraband into plain view and justified its

seizure.*

We therefore conclude that the search of the defendants’

vehicle and the containers located therein were legitimate

warrantless searches.‘ Accordingly, the suppression order

entered by the district court is reversed and this case is

remanded for further proceedings.

REVERSED AND REMANDED.

*We do not imply that both distinctive configuration and odor are

necessary to justify the search of the containers. This Court has

previously held that odor alone is sufficient cause to search such

containers as cardboard boxes. Sifuentes, 504 F.2d at 848. In this case,

the presence of both factors emphasizes the legitimacy of the search.

‘The defendants also argue that federal agent James could

lawfully participate in the station house search because the

circumstances which confronted James when he first entered the case

did not justify a warrantless search. According to the defendants, James

was confronted by a car which was in police custody and thus he had no

reason to proceed withcut a warrant. To the defendants, the events

which occurred prior to James’ appearance were irrelevant.

The error in the defendants’ argument is that it fails to focus upon the

nature of the search. Station house searches are recognized exceptions to

6A

(Footnote 4 continued)

the warrant requirement, and are justified by events which occur when

the vehicle is initially stopped on the highway. These characteristics are

not dependent upon the governmental affiliation of the officers involved.

Thus, once the search becomes permissible, it makes no difference for

Fourth Amendment purpose: whether a particular officer joins in at the

— ~¢ or during the interval between the stop and the conclusion of

the search.

7A

WINTER, Chief Judge, dissenting:

Because I am persuaded that the majority misreads the

record as to facts critical to a proper application of the law

regarding warrantless searches, I respectfully dissent. I

would affirm the suppression order entered by the district

court.

The case involves Trooper Alford’s search of a garbage

bag which he found in the trunk of defendants’ car. It is the

majority’s thesis that Trooper Alford had probable cause to

search the trunk because he detected the odor of marijuana

and that the intense odor, together with the distinctive

configuration of the garbage bags, brought the contraband

into plain view and justified its seizure.

I.

Nothing in the record supports the majority’s implied

factual premise that the trunk or the garbage bags gave off

an odor of marijuana. Alford’s testimony is that (1) he

opened the trunk to take an inventory; (2) he saw

marijuana through a hole in one of the garbage bags found

in the trunk; and (3) he closed the trunk immediately after

spotting the marijuana through the hole. Nowhere in the

record does Alford suggest that he opened the trunk

because it smelled of marijuana. Nowhere does he even

hint that the bags themselves gave off the telltale odor,

This, of course, is not to suggest that the smell of

marijuana played no role in the episode. Alford testified

that he detected the odor on Haley’s person while the twoof

them were sitting in the police cruiser. Alford stated that

he again smelled marijuana—or, more precisely,

marijuana smoke—when he opened the passenger door of

the car and spoke with Riehl.

Concededly, on cross-examination Alford stated: “I

knowed for a fact that there was a strong odor of marijuana

coming from the vehicle.” In context, it is clear that this

remark refers to the impressions which Alford formed

8A

from his perusal of the passenger compartment and not to

any odor coming from the trunk or the bags subsequently

found there.!

Thus there is no factual basis for the majority’s

contention that any distinctive odor of marijuana

emanated from the trunk of the car or the garbage bags

contained therein. This brings me to the majority’s

assertion that the bags had a “distinctive configuration”

which brought their illicit contents into “plain view.”

Alford did not testify that any “distinctive

configuration” of the garbage bags bespoke their contents.

Any such conclusion is foreclosed, moreover, by Robbins v.

California, U.S. (1981), which, so long as it

remains the law, controls this case.* There a plurality of the

‘Alford made the statement on cross-examination by way of

explaining why he wished to search the car after defendants produced a

small bag of marijuana from under the front seat:

Q: It was the marijuana that you were worried about?

A: No sir. The fact that it appeared that they were hiding

something in the vehicle.

Q: It was the fact that they wouldn‘t let you search their car; is that

right?

A: Yes, sir.

Q: What did you suspect was in the vehicle?

A: I did not know what was in the vehicle at that point.

Q: But you knew something was?

A: Well, I knowed that for some reason they didn't want me to

search the vehicle. ] knowed for a fact that there was a strony

odor of marijuana coming from the vehicle.

Q: That was explained by the little bag of marijuana almost an

ounce, twenty-three grams; isn't that right?

A: Yes, sir.

Q: That was the smoke that you smelled; was it?

A: Possibly.

Q: But you had an instinctive feeling that there was something in

that car; is that what you are saying?

A: Yes, sir.

Q: And that was because these boys didn’t want you to search the

car?

A: Yes, sir. (Emphasis addec)

“The Supreme Court has granted certiorari in a case largely

indistinguishable from Robbins and has directed counsel to address the

question of whether the Court should reconsider Robbins. See United

States Vv. Ross, 50 U.S.L.W. 3278 (October 13, 1981).

9A

Court held that “a container may not be opened without a

warrant, even if it is found during the course of the lawful

search of an automobile.” U.S. at This rule

excepts only containers the contents of which are

effectively in plain view either because the container is

open or “so clearly announce{s] its contents, whether by its

distinctive configuration, its transparency, or otherwise,

that its contents are obvious to an observer.” U.S. at

Justice Powell, the fifth vote necessary to a

judgment, concurred on the ground that “the manner in

which the package at issue was carefully wrapped and

sealed evidenced petitioner’s expectation of privacy in its

contents.” U.S. at The Chief Justice concurred

in the judgment invalidating the search without opinion.

Like the plastic packages in Robbins, the garbage bags

here were closed, opaque, and packed in a locked trunk.’

Even under Justice Powell’s theory, therefore, the

containers were protected from a warrantless search

because their physical characteristics and _ location

“evidenced [defendants’] expectation of privacy in [their]

contents.” See also U.S. at (plurality opinion).

Furthermore, the plastic bags cannot be said to have made

their “contents...obvious to an observer” by any

“distinctive configuration.” Garbage bags are commonly

used to store and transport many things besides

contraband, and the fact that several such containers were

found in the trunk does not exclude myriad innocent uses.

The inference that the garbage bags contained marijuana

undoubtedly seemed compelling to Alford, who, (like the

officer in Robbins) had just discovered marijuana in the

front seat. The Robbins Court held, however, that such an

inference is not reasonable within the meaning of the

Fourth Amendment.

*As noted above, Alford testified that one of the bags had a two-inch

hole in it—a point I will address hereafter. For present purposes, it is

sufficient to note that the majority’s plain view theory disavows any

reliance upon this questionable evidence.

10A

I]

As I have shown, the record does not support an assertion

that Alford detected the odor of marijuana emanating

from the bags or the trunk, and there is no legal or factual

basis for a claim that the bags revealed their contents by

any distinctive configuration. I am brought, then, to a

contention of the government noticed but not relied upon

by the majority in upholding the validity of the search. It is

the claim that Alford could see the contents of one bag

because it had a hole in it.

Alford did testify that he saw marijuana through a hole

in one of the bags, and he also testified that he neither

created the hole in the bag, nor widened it. However,

Laner, the tow truck operator, testified that Alford

“reached his hand in and tore one of the big bags

open ....[{H]e stuck his fingers in the bag and ripped the

bag open.” The district court discredited Alford’s

testimony “where it was contradicted by Mr. Laner as to

the ripping open of the garbage bag containing marijuana

in the trunk of the car.” This credibility determination is

one that we cannot disturb.

In its statement of facts, the majority suggests that

Laner’s testimony and Alford’s testimony are not

necessarily inconsistent: “The truck operator did not

explicitly state whether Alford punched a hole in the bag

or whether he simply widened a pre-existing hole.”

Concededly, Laner was never specifically asked whether

there was a hole in the bag before Alford ripped it open. As

I read the transcript, however, Laner clea: ly implied that

any hole was of Alford’s making. The district court,

moreover, found that Alford testified falsely when he

denied ripping the bag. Any ambiguity in the conflict

between Laner’s and Alford’s testimony must therefore be

resolved against Alford.

Alford engaged in a warrantless search when he ripped

the garbage bag open. Because there is no basis in fact or

law for applying the plain view exception to the warrant

11A

requirement, I would affirm the district court’s order

suppressing the use of evidence illegally obtained.*

‘In response to defendants’ first suppression motion, the district court

upheld the validity of the search under the Fourth Amendment. In my

view, that ruling was erroneous. The trial judge later vacated that

ruling and suppressed the evidence because a subsequent stationhouse

search was conducted under a state warrant that failed to meet the

requirements of Federal Rule of Criminal Procedure 41(a). This

position is somewhat problematical, because, if the roadside search was

valid, it is unclear why a warrant was required for the ensuing search at

the stationhouse. Since I conclude that Alford’s initial search of the

garbage bag was unlawful under the Fourth Amendment, however, I

would suppress as tainted fruit the evidence seized at the stationhouse.

Like the majority, I find it unnecessary to address the rule 41(a) issue.

13A

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON

CRIMINAL NO. 80-20010-01

UNITED STATES OF AMERICA

VS.

MICHAEL RAY HALEY and

WILLIAM HARRY RIEHL

ORDER

On the 28th day of April, 1980, came the United States of

America by James S. Arnold and Marye L. Wright,

Assistant U.S. Attorneys, and came also the defendant,

Michael Ray Haley, in person and by W. Stuart Calwell,

Jr., his attorney, and came also the defendant, William

Harry Riehl, in person and by Michael C. Allen, his

counsel, for hearing upon defendant’s pre-trial motions to

reconsider defendants’ earlier motion tosuppress evidence

and return personal property and on defendants’ amended

motion to suppress evidence filed in this matter.

Thereupon, the Court heard evidence adduced on behalf

of the United States of America and on behalf of the

defendants, and argument of counsel in connection with

the aforesaid motions.

Whereupon, the Court makes the following findings of

fact and conclusions of law:

FINDINGS OF FACT

1. Defendants, Michael Ray Haley and William Harry

Riehl, were traveling north on Interstate 79 on February

10, 1980, when Haley were stopped by Trooper Alford,

West Virginia Department of Public Safety, near milepost

6 north of Charleston, Kanawha County, West Virginia, for

a speeding violation;

2. Defendants were traveling in a borrowed automobile;

3. Defendants were arrested on state court charges of

possession of marijuana with intent to deliver;

14A

4. Defendants’ car was impounded at the South

Charleston State Police Detachment, 725 Jefferson Road,

South Charleston, West Virginia;

5. Randy James, Federal Drug Enforcement

Administration, was called to assist on the case February

10, 1980;

6. Federal Agent James participated in the

procurement of a state court search warrant before

Kanawha County, West Virginia Magistrate John Miller

on February 10, 1980;

7. Federal Agent James participated in the search of

defendants’ vehicle;

8. Federal Agent James had sufficient time to obtain a

search warrant pursuant to Rule 41 of Federal Rules of

Criminal Procedure prior to the search of defendants car;

CONCLUSIONS OF LAW

9. The defendants have standing to assert their Fourth

Amendment rights relative to the search of the automobile;

10. The search of defendants’ automobile was a federal

undertaking and as such the requirements of Rule 41,

Federal Rules of Criminal Procedure apply;

11. The search of defendants’ car did not comply with

Rule 41 of the Federal Rules of Criminal Procedure

inasmuch as no search warrant was obtained either froma

federal magistrate, a federal judge, or a state court of

record;

It is accordingly ORDERED:

12. That the Court’s earlier order denying defendants’

motion to suppress evidence and return personal property

be and the sarne hereby is vacated;

13. That the defendants’ amended motion to suppress

evidence and return personal property be and the same

hereby is granted and the evidence seized from defendants’

car is hereby ORDERED suppressed.

ENTERED this Ist day of July, 1980.

s/Charles H. Haden II

Judge

15A

s/W. Stuart Calwell, Jr.

CALWELL, McCORMICK &

PEYTON, L. C.

2602 First Avenue

Nitro, West Virginia 25143

Counsel for Defendant

s/Michael C. Allen

240 Capitol Street

Charleston, West Virginia 25301

Counsel for Defendant

Inspected by:

s/James S. Arnold

Assistant Prosecuting Attorney

— oe ee eee sO Se ee

No. 81-1815

Office - Supreme Court, ;

FILED

{DER L. STE

Iu the Supreme Court of the United States —

OcTOBER TERM, 1981

MICHAEL Ray HALEY AND WILLIAM HARRY RIEHL,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney —

Department of Justice

Washington, D.C. 20530

(202) 633-2217

MAY 24 1982

“

QUESTION PRESENTED

Whether, in the circumstances of this case, a warrant was

required to conduct a station house search of plastic gar-

bage bags found in a lawful probable cause search of the

trunk and passenger compartment of petitioners’ car.

(I)

TABLE OF CONTENTS

Page

SEED ccccccncccccccccccceccqececcececes l

PI .ccbceecescdecceestsccccocceecececcees l

TTT CTT TT TTT TTT TT TTT TTT Tree l

PS cc cccccccccccccccccecccccccccccceccces 4

SEED cccccccecccccccssacececccoccccccceces 6

TABLE OF AUTHORITIES

Cases:

Chambers v. Maroney, 399 U.S. 42 .......+00+: 6

Robbins v. California, No. 80-148

PE EEE wneSdececccccccccecscoscces 4,5

United States v. Johnson, No. 80-1608,

argued February 24, 1982 ...........seeeeees 6

United States v. Ross, No. 80-2209,

argued March 1, 1982 ..........eeeeeeeees 5, 6

Constitution, statutes and rules:

United States Constitution, Fourth

PEAT cc cccccccstnaccccccccccccasccee 6

Be Wels SOUND occccscvccodccccccceccces l

Be UUEEED cc cccccccccccccccccccecces l

Fed. R. Crim. P.:

ES ccccccccescdccccesceccccescccece 4

i -cbn ee sebdetasoocesecesesecese 6

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1981

No. 81-1815

MICHAEL RAY HALEY AND WILLIAM HARRY RIEHL,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1 A-11A) is

reported at 669 F. 2d 201.

JURISDICTION

The judgment of the court of appeals was entered on

January 21, 1982. The petition for a writ of certiorari was

filed on March 22, 1982. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners were charged in a two count indictment with

travelling in interstate commerce with intent to carry on an

unlawful activity, namely, the possession and distribution

of marijuana, in violation of 18 U.S.C. 1952(a)(3), and with

possession of marijuana with intent to distribute it, in viola-

tion of 21 U.S.C. 841(a)(1). Prior to trial, the district court

2

suppressed the marijuana as the fruit of an illegal search

(Pet. App. 13A-14A). The court of appeals reversed (Pet.

App. 1A-11A).

1. The evidence at the suppression hearing showed that

on February 10, 1980, petitioners were stopped for speeding

while driving on an interstate highway in West Virginia. As

Trooper Clayton Alford wrote out a traffic citatior, he

noticed a strong smell of marijuana emanating from Haley.

He later noticed the same odor coming from the passenger

compartment of Haley’s car.! When questioned about the

smell, Haley denied that he had any marijuana, and both

petitioners refused Trooper Alford permission to search the

car. But after Alford advised the two men that he intended

to obtain a search warrant, petitioner Riehl acknowledged

that the car contained marijuana. He removed a small

plastic bag from under the front seat on the passenger side

of the car and gave it to Alford. Trooper Alford arrested the

two men for possession of marijuana. After receiving

Miranda warnings, Haley also produced a small bag of

marijuana (Tr. 3-14).?

Trooper Alford called for a truck to tow petitioners’ car

to the police station. When the truck arrived, he removed

the keys from the car and opened the trunk to take a mental

inventory of the contents.’ Inside, the trooper saw several

green plastic garbage bags. The trooper then either ripped a

bag open and saw the marijuana or widened a pre-existing

'The car did not belong to either petitioner, but rather was registered

to a friend who did not accompany them on their trip. Both Haley's

driver's license and the motor vehicle registration were issued in Florida

(Tr. 7-8).

“Tr.” denotes the transcript of the April 10, 1980, suppression

hearing.

3As Alford explained, he scanned the contents of the trunk to protect

himself in case petitioners subsequently claimed that something was

missing (Tr. 14-15).

3

hole through which marijuana was visible. He showed the

tow truck driver the contraband. (Tr. 14-15, 79-82.)*

Thereafter, the car was towed to police headquarters and

Trooper Alford went to a local magistrate to obtain a search

warrant. With the assistance of an agent of the federal Drug

Enforcement Administration, Alford applied for a warrant

and swore out an affidavit. However, he apparently departed

with only a copy of the affidavit and complaint, but without

a search warrant, since the record fails to disclose that any

warrant had actuaily been issued. Upon returning to head-

quarters, he and several of his colleagues searched the car.

Eleven bags and two boxes of marijuana were found in the

trunk, and six garbage bags containing marijuana were

seized from the back seat. These six bags had been con-

cealed underneath clothing (Tr. 16-21, 27, 29).

2. Following the suppression hearing, the district court

credited all of the testimony of Trooper Alford, except his

denial of having ripped open the garbage bag in the trunk.

On that one point, the court credited the contrary testimony

of the tow truck driver (Tr. 101). The district court initially

denied the suppression motion (Tr. 101-108), concluding

that the search was supported by probable cause and fell

within the automobile and inventory exceptions to the war-

rant requirement (Tr. 103-107). Thereafter, the court vacated

‘The trooper testified that the bag was already torn and the marijuana

visible when he opened the trunk, and that he did not widen the hole (Tr.

15-16, 60). The tow truck operator testified (Tr. 82) that Alford had

ripped the bag. The district court credited the operator's testimony to

the extent of the conflict (Tr. 101), but the majority of the court of

appeals thought it unclear whether the court had discredited all of

Alford’s testimony on this point or only his assertion that he had not

widened a pre-existing hole. Because the case was decided on other

grounds the majority thought it unnecessary to resolve this question or

to remar.d for further findings (Pet. App. 3A n.1). Judge Winter,

dissenting, concluded that the district court had discredited Alford’s

testimony about the bag in the trunk in its entirety (id. at 10A).

4

its oral ruling and issued a written order, suppressing the

marijuana seized from both the trunk and the passenger

compartment on the ground that Trooper Alford had not -

complied with Rule 41, Fed. R. Crim. P. (Pet. App.

13A-14A).

A divided court of appeals reversed (Pet. App. 1 A-11A).

The court held that the officers had probable cause to

believe that the car contained marijuana and were permit-

ted to search the car either on the scene or later at the police

station when the car was impounded. The court held further

that the officers were authorized to open the garbage bags

because their contents could be inferred from their outward

appearance and odor (Pet. App. 4A-5A; footnote omitted):

[T]he numerous garbage bags found during the search

were packed with a coarse substance which was

obviously marijuana. This distinctive configuration

together with the intense marijuana odor brought the

contraband into plain view and justified its seizure.

The court accordingly distinguished the case from Robbins

v. California, No. 80-148 (July 1, 1981).

Chief Judge Winter dissented on the ground that the

record does not support an application to the searches in

this case of the plain view exception to the warrant require-

ment (Pet. App. 7A-11A).

ARGUMENT

1. Petitioners contend (Pet. 5-11) that the green garbage

bags were opened unlawfully by the state troopers, and that

therefore the court of appeals should not have reversed the

order of the district court suppressing the marijuana. What-

ever the merits of the petitioners’ contentions, they are not

presently ripe for review by this Court. Petitioners have yet

to be tried, and the district court has stayed further proceed-

ings pending disposition of these petitions. Tne court of

appeals’ decision places petitioners in precisely the position

5

they would have occupied if the district court had denied

their motion to suppress in the first instance. They would

not have been permitted to appeal such a ruling prior to

trial. If petitioners are acquitted following a trial on the

merits, their contentions will be moot. If, on the other hand,

petitioners are convicted, they will then be able to present

their present contention to this Court, together with any

other claims they may have, in petitions for a writ of certio-

rari seeking review of final judgments against them. Accord-

ingly, review by this Court of the court of appeals’ decision

would be premature at this time.

2. Petitioners’ principal attack on the legality of the

search of the marijuana-laden garbage bags relies (Pet. 5)

on the holding of this Court in Robbins v. California, No.

80-148 (July 1, 1981). While the result in Robbins is pre-

sently being reconsidered by this Court in United States v.

Ross, No. 80-2209, argued March 1, 1982, there is no need

to hold this petition for Ross. It is true that, if the govern-

ment prevails in Ross, the Court’s decision would very

likely foreclose petitioners’ claim, eliminating any need to

consider the alternative grounds for upholding the search

upon which the court of appeals’ majority relied. This,

however, simply counsels in favor of allowing the trial to

proceed and deferring further appellate consideration of the

legal issues surrounding the search until after conviction, if

any.’ We also note our position that the decision in

>Moreover, much of the dispute between the majority and the dissent

in the court of appeals concerns the circumstances relating particularly

to the search of the contents of the trunk of the automobile in which

petitioners were transporting the marijuana. Nearly half of the mari-

juana was, however, found in the bags in the back seat of the automo-

bile. In order for petitioners to avoid conviction, they may well have to

obtai:. suppression of both lots of marijuana. It ‘> possible that the

prosecution will introduce only the marijuana from the back seat at

trial, which would entirely moot the portion of the controversy sur-

rounding the marijuana in the trunk. This possibility further supports

6

Robbins, even if adhered to in Ross, could not properly be

applied to the search in the instant case, which antedated

Robbins by nearly a year and a half. The Court’s decision in

United States v. Johnson, No. 80-1608, argued February

24, 1982, will shed further light on this point, but the pend-

dency of Johnson similarly affords no reason for holding

this petition and delaying further proceedings in the district

court in this case.®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

May 1982

the conclusion that it is premature at this point to attempt further

review of the issue presented by the petition. The question whether there

is here an issue worthy of review (which we do not believe there is) can

intelligently be resolved only after trial.

*Petitioners also contend (Pet. 5-11) that because Trooper Alford

secured assistance from a federal DEA agent, this was a federal! search

and that Alford violated Fed. R. Crim. P. 41(a) in seeking a search

warrant from a local magistrate tather than a judge of a state court of

record. There is no occasion to consider this contention, for the court of

appeals determined (Pet. App. 2A, 4A) that no state warrant was ever

issued and accordingly rested its decision upon the conclusion that the

search fell within an exception to the warrant requirement of the Fourth

Amendment. And, contrary to petitioners’ submission (Pet. 8-9), the

circumstances that justified a warrantless search did not evaporate

when the federal agent entered into the picture. Petitioner's argument is

irreconcilable with Chambers v. Maroney, 399 U.S. 42 (1970).

DOJ-1982-05