Opposition — Leichtling v. United States

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Supreme Court, U.S.

FILED

& MIANL2 1983

No. 82-633

ea ALEXANDER L. STEVAS

Ju the Supreme Court of the Hnited States

OcTOBER TERM, 1982

Lee S. LeicuTLinG, D.D.S., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

James G. LINDSAY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the affidavit submitted to the magistrate con-

tained sufficient facts to support issuance of a search war-

rant for petitioner's home.

(I)

TABLE OF CONTENTS

‘ TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S. 108 .........6.0005:

Andresen v. Maryland, 427 U.S. 463 ...........

Barnes v. United States, 412 U.S. 837 ..........

Jones v. United States, 362 U.S. 257 .........+.-

Spinelli v. United States, 393 U.S.410 .........

United States v. Allen, 588 F.2d 1100,

cert. denied, 411 U.S. 965 ........... cc eeenes

United States v. Flanagan, 423 F.2d 745 ........

United States v. Lockett, 674 F.2d 843 .........

United States v. Lucarz, 430 F.2d 1051 .........

United States v. McGlynn, 671 F.2d 1140 .......

United States v. Taylor, 599 F.2d 832 ..........

United States v. Ventresca, 380 U.S. 102 .......

United States v. Watson, 423 U.S. 411 .........

Statutes:

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In the Supreme Court of the Huited States

OCTOBER Term, 1982

No. 82-633

Lee S. LeicutTiinG, D.D.S., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

The opinion of the court of appeals (Pet. App. A-! to

A-9) is reported at 684 F.2d 553.

' JURISDICTION

The judgment of the court of appeals was entered on July

19, 1982. A petition for rehearing was denied on August 10,

1982, and the petition for a writ of certiorari was filed on

October 9, 1982. The jurisdiction of this Court is invoked

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

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Missouri, petitioner was con-

victed on six counts of obtaining a controlled substance by

fraud, in violation of 21 U.S.C. 843(a)(3), and on one count

of possession of cocaine with intent to distribute, in

violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced

to three years’ imprisonment on each of the first six counts,

the sentences on counts I, il and III to run consecutively to

each other but concurrently with the consecutive sentences

on counts IV, V, and VI. He was sentenced to a ten year

term of imprisonment and three years’ special parole on

Count VII, to run concurrently with the other sentences.

The court of appeals affirmed (Pet. App. A-1 to A-9).

Petitioner was a dentist practicing in Desoto, Missouri.

From July 1979 until his arrest on July 17, 1981, petitioner

entered the Desoto Pharmacy each month and wrote a

prescription for methaqualone in the name of Eleanor Har-

ris (Tr. 63-68). Petitioner took the methaqualone with him

and either paid for it at the time of the transaction or

charged it to his account (Tr. 71-72). Petitioner told the

pharmacist that Mrs. Harris was damaging her dental work

by grinding her teeth and that the methaqualone was

intended to control the grinding (Tr. 71). In fact, Mrs.

Harris had not seen petitioner since 1978, had never had a

problem with grinding her teeth, and had never received any

methaqualone from petitioner (Tr. 81-82, 83-87).

During the period between May 1978 and July 1981 the

pharmacist at the Rock Road Pharmacy in Desoto, Mis-

souri, filled some 18 prescriptions for a total of 28.75 ounces

of cocaine hydrochloride written by and for petitioner

(Gov't Exh. 30; Tr. 91-99). Petitioner paid for each of these

prescriptions with a personal check (Tr. 99-100). He indi-

cated to the pharmacist that the cocaine was used in 5%

solution as a mouthwash for root canal patients (Tr. 10!).

Petitioner's secretary, his dental assistant, and his dental

hygienist were unaware of these purchases or of any profes-

sional use of cocaine hydrochloride in petitioner's office

(Tr. 113-115, 118-120, 125-126). Samples of mouthwash

taken from petitioner's office contained no cocaine (Tr. 136,

143). Petitioner's 1981 renewal Drug Enforcement Admin-

istration (DEA) registration indicated that he did not

intend to handle Schedule II narcotics, a category that

included cocaine (Tr. 162, 165-166).

In May 1981, DEA agents were informed that the Rock

Road Pharmacy had ordered two ounces of cocaine to be

delivered to the pharmacy on May 22, 1981 (Tr. 6-7). On

that date DEA agents observed petitioner enter the phar-

macy, remain inside for about ten minutes, then emerge

carrying a brown attache case that apparently contained

two bottles, and drive toward his house (Tr. 7-8). On July

10, 1981, a DEA agent observed petitioner enter the phar-

macy, obtain two bottles of cocaine, place the bottles in his

attache case, drive to his house, and take the attache case

into the house (Tr. 8-9, 169-172). As a result of the DEA

agents’ observations, a warrant was obtained for the search

of petitioner's home.

Government agents went to petitioner's house on July 17,

1981, and informed him that they wished to discuss his

cocaine purchases (Tr. 173). With petitioner's consent, the

agents entered the home and then read him his Miranda

rights (Tr. 173-175). Petitioner agreed to be interviewed and

advised the agents that he used the cocaine in a mouth rinse

but that none of his office employees was aware of it (Tr.

176-177). When asked about the cocaine he had purchased

on July 10, petitioner agreed to turn it over to the agents; he

obtained the two bottles, one partially empty, from his

bedroom (Tr. 177-178, 180). At that point, petitioner was

arrested and the search warrant for his house was executed.

The search revealed a number of bottles of mannitol (a

common Gilutent fox illegally-used cocaine), a number of

empty bottles containing traces of cocaine, two bottles of

methaqualone tablets, three scales (one with traces of

cocaine), and various other equipment utilized in preparing

cocaine for illegal distribution (Pet. App. A-8 to A-9). A

search of petitioner's car disclosed another scale and three

bottles labeled “cocaine hydrochloride” (id. at A-9).

ARGUMENT

Petitioner’s sole contention is that the affidavit (Pet.

App. A-17 to A-19) in support of the search warrant did not

establish the requisite probable cause to believe that con-

traband would be found in his house. The crux of petition-

er’s argument is that the affidavit — which states that the

affiant saw petitioner obtain bottles of what was believed to

be cocaine, place them in a brown vinyl case, and then

“drive to[his] residence” (Pet. App. A-18; emphasis added)

— does not specifically state that petitioner, after driving to

his residence, went into his residence with the cocaine. This

argument has no merit.!

‘As noted above, petitioner voluntarily surrendered the two bottles of

cocaine that formed the basis of Count VII (possession of cocaine

hydrochloride with intent to distribute) prior to the execution of the

search warrant. Althoigh various items discovered in the house pro-

vided additional evidence indicating intent to distribute (see Pet. App.

A-8 to A-9), that intent was inferable from the bottles labeled “cocaine

hydrochloride” found in petitioner's car, the scale found in petitioner's

car, petitioner's numerous prescriptions for cocaine and methaqualone

from the pharmacies, the samples of mouthwash seized from petition-

er’s dental office, the testimony of petitioner's patient for whom the

methaqualone prescriptions had been written but who had never

received any methaqualone, and the testimony of petitioner's em-

ployees who were unaware of any professional use of cocaine hydro-

chloride by petitioner or of any purchases of cocaine hydrochloride for

professional! use by petitioner. Thus, the validity of petitioner's convic-

tion on Count V!I does not depend on the adequacy of the affidavit and

resulting search warrant. Since the sentence on Count VII was concur-

rent to and exceeded the sentences on all other counts, this Court may

apply its discretionary concurrent-sentence doctrine and decline to

review petitioner's case. Andresen v. Maryland, 427 U.S. 463, 469 n.4

(1976); Barnes v. United States, 412 U.S. 837, 848 n.16 (1973).

The affidavit states (Pet. App. A-18):

A subsequent surveillance established by the affiant

and other DEA Agents revealed that on July 10, 1981,

an additional shipment consisting of two one-ounce

bottles of pharmaceutical cocaine to be delivered to the

Rock Road Pharmacy at DeSoto, Missouri. On the

same date, a surveillance of Rock Road Pharmacy

revealed the subject Lee Leichtling to enter the phar-

macy and receive two one-ounce bottles from tiie

pharmacist and depart the store. At this time, surveil-

ling agents observed the subject Lee Leichtling to place

a pharmacy bag inside a brown vinyl case which

appeared to be identical to the case he used on May 22,

1981; thereafter, the subject Lee Leichtling entered a

blue Mercedes automobile which is registered to him,

and proceeded to drive to the above-described

residence.

Based in significant part upon his observation of these

activities, the DEA agent averred that he had reason to

believe that there was a quantity of cocaine in petitioner's

house (Pet. App. A-20 to A-21).

This Court has held that “affidavits for search warrants

courts in a commonsense and realistic fashion.” United

States v. Ventresca, 380 U.S. 102, 108 (1965). Here the

DEA agent had personally observed the circumstances that

led him to believe there was cocaine in petitioner's house.

“[ W Jhere [the underlying) circumstances are detailed, where

reason for crediting the source of the information is given,

and when a magistrate has found probable cause, the courts

should not invalidate the warrant by interpreting the affi-

davit in a hypertechnical, rather than a commonsense,

manner.” /d. at 109. Moreover, the issuing magistrate may

properly rely upon normal inferences to be drawn from the

facts presented to him. See, e.g., United States v. McGlynn,

671 F.2d 1140, 1146 (8th Cir. 1982), United States v. Allen,

$88 F.2d 1100, 1106 (Sth Cir.), cert. denied, 441 U.S. 965

(1979); United States v. Lucarz, 430 F.2d 1051, 1055 (9th

Cir. 1970). And, as this Court consistently has recognized,

“determination of probable cause [by a magis: tate issuing a

warrant] should be paid great deference by reviewing

courts,” Spinelli v. United States, 393 U.S. 410, 419 (1969);

see also United States v. Watson, 423 U.S. 411, 423 (1976);

Aguilar v. Texas, 378 U.S. 108, 111 (1964); Jones v.

United States, 362 U.S. 257, 270-271 (1960).

Here, petitioner was seen driving to his house with a large

amount of pharmaceutical quality cocaine hydrochloride;

he was not authorized to possess cocaine, which is not

generally used in dental practice (Pet. App. A-18 to A-19).

The affidavii’s statement that petitioner drove “to” his

home with an illegal substance clearly raises the reasonable

inference that he took it into his home. Thus, this case

differs from those upon which petitioner relies (Pet. 6-10).

Unlike United States v. Flanagan, 423 F.2d 745 (Sth Cir. |

1970), and United States v. Lockett, 674 F.2d 843, 846

(11th Cir. 1982), where the courts noted that the contraband

had not been observed in or near the nremises to be

searched, here the DEA agent saw petitioner drive to his

home with cocaine.? Accordingly, the affidavit in this case

would pass muster in all courts of appeals.

In any event, it is undisputed that the affiant actually

observed petitioner take the cocaine into his house (Tr. 9).

In these circumstances, it would have been unreasonable for

the magistrate to conclude, as petitioner suggests (Pet. 8),

This case also differs from United States v. Taylor, $99 F.2d 832

(8th Cir. 1979), for the reasons noted by the court of appeals (Pet. App.

A-5).

that the cocaine was more likely to be iocated at the dentist's

office. Both the trial court (Tr. 33) and the court of appeals

(Pet. App. A-6) found that the affidavit stated facts suffi-

cient to show probable cause. Further review by this Court

of that purely factual determination is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.