Petition — Whitten v. United States

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ce - Supreme Court, U.S.

FILED

NOY 25 1983

ALEXANDER L. STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

KENNETH JOE WHITTEN,

- Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE NINTH Circuit

JERRY D. PATCHEN

8303 Southwest Freeway

Suite 909

Houston, Texas 77074

713/981-4545

Attorney for Petitioner

QUESTIONS PRESENTED

1. Whether an appropriate remedy pursuant to the

dictates of the Fourth (4th) Amendment to the United States

Constitution is to admit items into evidence which are seized

within the authorization of a warrant even though the admit-

ted evidence, in addition to other seized items not offered into

evidence, is seized as a result of a search conducted in a man-

ner found to exceed the bounds of reasonableness and limita-

tions of the warrant?

2. Whether the Fourth (4th) Amendment and the “plain

view” exception to the warrant requirement can be construed

in such a manner as to permit the warrantless rewinding and

listening to a tape from a telephone answering machine?

TABLE OF CONTENTS

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Reasons for Granting the Writ: .................. 6

I. As To The Constitutionality Of The Search

Conducted at 115 South Midway Drive,

Epoumenee, (Mmsormis...................e. 6

II. As To The Constitutionality Of The Seizure

and The Search Of The Tape Recording at

9898 Silva Road, El Cajon, California ...... 10

eee 18

EE 19

I. Opinion Of The Court Of Appeals For The

i oles esa ccs sec cee. A-1

II. Order Denying Petition For Rehearing ....... A-31

: iil

TABLE OF AUTHORITIES

Cases

PAGE

Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) 7

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

SONG oes wana dinate eink wise kas ouce's 11, 13, 15, 16

Elkins v. United States, 364 U.S. 206 (1960) ...... 6

Jones v. United States, 357 U.S. 493 (1958) ....... 15

Katz v. United States, 389 U.S. 347 (1967) ......... 6, 14

Linkletter v. Walker, 381 U.S. 618 (1965) ......... 6

Mapp v. Ohio, 367 U.S. 643 (1961) .............. 6

McDonald v. United States, 335 U.S. 451 (1948)... 15

Payton v. New York, 445 U.S. 573 (1980) ......... 11

Stanley v. Georgia, 394 U.S. 557 (1969)............ 9,13

A ee 6,7

United States v. Jeffers, 342 U.S. 48 (1951) ....... 15

United States v. Poller, 43 F.2d 911 (2nd Cir. 1930) 6

United States v. Rabinowitz, 339 U.S. 56 (1950) ... 9

Walter v. United States, 447 U.S. 649 (1980) ....9, 11, 12

Warden v. Hayden, 387 U.S. 294 (1967) .......... 6

Constitutional Provisions

United States Constitution, Fourth (4th)

CL... Se GaSe eae oh te ee i Oe

Miscellaneous

2 La Fave, SEARCH AND SEIZURE, §4.11(c) and

UE nae s 355-4 sp e-L ek be eae eee re 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

KENNETH JOE WHITTEN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE NINTH CIRCUIT

KENNETH JOE WHITTEN, your petitioner, prays that

a Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Ninth Circuit entered

in the above entitled case May 25, 1983. A petition for

rehearing was denied September 30, 1983.

OPINION BELOW

The opinion of the Court of Appeals is reported at 706 F.2d

1000. A copy is set forth in the Appendix. The opinion of the

Court of Appeals on petition for rehearing is unreported. A

copy is set forth in the Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered May

25, 1983. Petition for Rehearing was denied September 30,

1983.

Jurisdiction to issue the writ is invoked pursuant to the

provisions of Title 28, Section 1254(1), United States Code.

CONSTITUTIONAL PROVISIONS

The Fourth (4th) Amendment to the Constitution of the

United States provides:

“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 War-

rants 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.”

STATEMENT OF THE CASE

On August 7, 1981, the Grand Jury for the United States

District Court for the Southern District of California

returned a twenty-one (21) count indictment naming Peti-

tioner, KENNETH JOE WHITTEN, and twenty-three (23)

other individuals as Defendants in connection with an investi-

gation spearheaded by the Drug Enforcement Administration

(DEA) concerning the manufacture and distribution of

methamphetamine. Shortly thereafter, on August 18, 1981,

Petitioner, KENNETH JOE WHITTEN, was arrested in

Alpine, California.

The investigation had commenced on April 2, 1980. On

that date, an individual named Deborah Howard was arrested

at Las Vegas, Nevada. Ms. Howard agreed to cooperate with

law enforcement agents and provided them with informa-

tion concerning the manufacture and distribution of

methamphetamine. According to Deborah Howard,

methamphetamine was being manufactured at a sight bearing

the street address of 115 South Midway Drive, Escondido,

California. Based upon the information supplied by Ms.

Howard, a search warrant was obtained and on April 15,

1980, DEA agents commenced a search at 115 South

Midway Drive.

The search resulted in seizure of more than one thousand

(1,000) photographs, several hundred documents, and a

variety of other items. The documents, photographs, and

other materials were moved to the DEA offices where they

were received to develop leads and other evidence in the case.

The final result being, over a year later, the indictment of

KENNETH JOE WHITTEN on August 7, 1981.

The indictment of August 7, 1981 had been sealed so that

the DEA could effectuate and coordinate arrests of a substan-

tial number of Co-Defendants before the existence of the

indictment was generally known. Originally, the DEA

planned to effect the arrest on August 19, 1981, but an agent

in Texas precipitously served Defendant Jack Gish with an

arrest warrant on August 18, 1981. Mr. Gish was at the time

incarcerated in the Texas Department of Corrections. Upon

discovering the premature execution of the arrest warrant for

Mr. Gish, DEA agents in the San Diego area proceeded

immediately to a location at 9898 Silva Road in El Cajon,

California, which they believed to be the residence of KEN-

NETH JOE WHITTEN. Appropriately, the agents obtained

a “Prescott” warrant authorizing them to search the premises

at 9898 Silva Road for the person of KENNETH JOE

WHITTEN.

The testimony reflects that some thirty to ninety (30-90)

minutes after the search for WHITTEN had been completed,

the DEA agents heard an incoming telephone call which was

broadcast into the room by a telephone answering machine

which was simultaneously recording the caller's message. An

agent recognized the voice of the caller as being WHITTEN's

wife, Sue Hickey, also named as a Co-Defendant in this case.

After some discussion as to whether or not the tape should be

replayed so that the agents could listen to and hear the

recorded message, the agents rewound the tape. The tape was

rewound past the Hickey call; thereupon, the agents listened

to the entire tape and learned from an earlier message, by a

different caller, the location of WHITTEN and the location

of additional evidence. Based upon this information, KEN-

NETH JOE WHITTEN was arrested and the additional

evidence was seized.

Following the arrest of Petitioner, a superseding indictment

was returned adding an additional three (3) counts arising out

of the evidence obtained in the course of effecting the arrest

of Petitioner. The case was called to trial by a jury commenc-

ing February 23, 1982, before the Honorable Judge Howard

B. Turrentine, United States District Judge, presiding. After

seven (7) days of testimony, the jury retired to consider their

verdict and on March 8, 1982, Petitioner was found guilty on

all counts for which he had been charged. May 10, 1982,

Petitioner was sentenced to serve twenty (20) years imprison-

ment on the continuing criminal enterprise conviction, five (5)

years on each of the conspiracy counts, five (5) years on the

interstate travel count, and four (4) years on each of the other

counts. Additionally, the Petitioner was ordered to pay fines

totaling TWO HUNDRED THOUSAND AND NO/100

DOLLARS ($200,000.00).

Prior to trial, Petitioner filed various pre-trial motions

including, specifically, a Motion to suppress the evidence

seized pursuant to the search conducted at 115 South

Midway Drive and a Motion to suppress the evidence seized

during the execution of the Prescott warrant at 9898 Silva

Road in El Cajon, California. After considering testimony,

written motions, and argument of counsel, the District Court

overruled Petitioner's pre-trial motions initially from the

bench and thereafter by order filed by January 7, 1982.

Accordingly, on appeal to the United States Court of Appeals

for the Ninth (9th) Circuit, the Petitioner asserted, among

other issues, that the District Court erroneously overruled

Petitioner's Motion to suppress the evidence and the fruits

thereof seized pursuant to the unreasonable search conducted

at 115 South Midway Drive, and that the District Court addi-

tionally erroneously overruled Petitioner's Motion challeng-

ing the officers’ conduct in their warrantless rewinding and

listening to the tape on the telephone answering machine dur-

ing the execution of the Prescott warrant at 9898 Silva Road,

El Cajon, California.

As to Petitioner’s contentions regarding the search con-

ducted at 115 South Midway Drive, Escondido, California,

one of the basis upon which the Petitioner challenged the

search was that the executing officers exceeded the scope of

the warrant and transformed the judicial authorization into a

general exploratory search. The Court of Appeals, in con-

cluding that “although the manner in which it was conducted

was in some respects irregular,” held that the search was

lawful and found that even though the search was not

“scrupulously confined to the terms of the warrant,” it did not

“necessarily follow that all of the evidence seized must be

suppressed.” In sum, the Court of Appeals concluded that

the executing officers did conduct an unconstitutional, general

search by exceeding the limitations of the warrant, neverthe-

less, permitted introduction of evidence seized during that

illegal search on the theory that the only evidence actually

introduced at trial were items which could have been lawfully

seized pursuant to the warrant if it had been properly

executed.

As to Petitioner’s challenge to the search at 9898 Silva

Road, El Cajon, California, one of the grounds upon which

Petitioner relied in seeking to suppress evidence was that the

officers’ conduct in rewinding and listening to the tape on the

telephone answering device, after having executed a Prescott

warrant and after having ascertained that WHITTEN was

not present at that location, was violative of the Fourth (4th)

Amendment to the Constitution of the United States. The

Court of Appeals rejected various arguments to the challenge

of the search of the tape and concluded, as did the District

Court, that: (a) there was no legitimate expectation of

privacy in the Hickey call, either “live” or “taped”, and (b)

the subsequent search of the contents of all earlier recorded

messages was authorized and valid pursuant to the “plain

view” exception to the warrant requirement.

REASONS FOR GRANTING THE WRIT

I. As To The Constitutionality Of The Search Conducted At

115 South Midway Drive, Escondido, California

The Fourth Amendment condemns “unreasonable”

searches and seizures. The Supreme Court has heretofore

held that suppression of evidence seized as a result of an

“unreasonable” search is the appropriate remedy. In regards

to this principle, this Court has commented:

“The Fourth Amendment proceeds as much by limita-

tions upon the scope of governmental action as by impos-

ing preconditions upon its initation. Compare Katz v.

United States, 389 U.S. 347, 354-356, 88 S.Ct. 507, 514,

19 L.Ed.2d 576 (1967). The entire deterrent purpose of

the rule excluding evidence seized in violation of the

Fourth Amendment rests on the assumption that ‘limita-

tions upon the fruit to be gather tend to limit the quest

itself.” United States v. Poller, 43 F.2d 911, 914, 74

A.L.R. 1382 (C.A.2d Cir. 1930); see, e.g., Linkletter v.

Walker, 381 U.S. 618, 629-635, 85 S.Ct. 1731, 1741, 14

L.Ed.2d 601 (1965); Mapp v. Ohio, 367 US. 643, 81

S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United

States, 364 U.S. 206, 216-221, 80 S.Ct. 1437, 1446, 4

L.Ed.2d 1669 (1960). Thus, evidence may not be

introduced if it was discovered by means of seizure and

search which were not reasonably related in scope to the

justification for their initiation. Warden v. Hayden, 387

U.S. 294, 310, 87 S.Ct. 1642, 1652, 18 L.Ed.2d 782

(1967) (Mr. Justice Fortas, concurring).”

Terry v. Ohio, 392 U.S. 1, 28-29 (1968).

Notwithstanding this general rule, in the instant case, the

Ninth Circuit's holding carves out a new exception to the

rule, to wit: even if a search is conducted in an unreasonable

manuer, evidence resulting therefrom need not be suppressed

if it could have been properly seized in the course of a

“reasonable” search. The implication of this new doctrine,

which this Court has not heretofore undertaken, constitutes a

very substantial curtailment of the suppression rule and sets

forth a novel holding of monumental significance in Fourth

Amendment jurisprudence. Accordingly, the issue warrants

the scrutiny and consideration of this Court and a determina-

tion as to whether the conduct in this case meets the Fourth

Amendment's general proscriptions against unreasonable

searches and seizures.

“([Tjhe Fourth Amendment confines an officer executing a

search warrant strictly within the bounds set by the war-

rant[.]” Bivens v. Six Unknown Agents, 403 U.S. 388, 394

n.7 (1971). Accordingly, the warrant cannot be executed in

such a manner that constitutes an unconstitutional, general,

exploratory rummaging prohibited by the Fourth (4th)

Amendment. The search itself must be executed in a

“reasonable” manner, limited in scope and intensity. (See,

e.g, Terry v. Ohio, 392 U.S. 1 (1968) wherein this Court

stated that in the past the Court has found that a search

reasonable at its inception may violate the Fourth (4th)

Amendment by virtue of its “intolerable intensity and

scope’).

In the instant case, the interpretation by the agents of the

language of the warrant transformed the judicial authoriza-

tion fundamentally into a license for wholesale, unbridled

investigatory rummaging through and seizure of all personal

belongings and private papers located at the subject’s prem-

ises. To Agent Austin, the individual in charge of the execu-

tion of the warrant and interpretation thereof, the term “‘cor-

respondence” contained in the warrant encompassed any

piece of paper that had the name of somebody on it that was

on the premises. Additionally, the term “photographs” was

interpreted to mean not merely all observable pictures on the

premises, but even undeveloped film found in cameras. The

agents made no effort*whatsoever to limit their seizure to the

specific items mentioned in the warrant. None of the agents

were shown a copy of either the warrant or the affidavit. The

agent in charge, Agent Austin, did not even have the warrant

in his possession during the search. The briefing session con-

ducted at the DEA office prior to the execution of the search

warrant focused on the deployment plan strategy rather than

training the agents concerning the scope of the search to be

conducted. The strategy of the executing officers was simply

to seize anything which, at first glance, appeared to have

some relevance to the investigation irrespective to whether or

not the item was specified in the warrant, iake the seized

items back to the DEA office where they could be perused and

return the seized materials not covered in the warrant upon

request “later on if it was not relevant to providing us with

some kind of information.”’ Resultingly, the agents received a

large number of items which were clearly not within the scope

of the search warrant nor, for that matter, relevant to the

investigation.

In sum, virtually all constitutional imperatives were disre-

garded by the agents in this case. The agents were looking for

anything that could be used as evidence, irrespective of

whether such items were in the descriptions contained in the

warrant. Unconstrained by any warrant particularity limita-

tions, the agents were admittedly on an exploratory fishing

expedition hoping “to develop other names of people who

might be involved” and “to develop other leads that might

lead to other areas in furtherance of this investigation.” It is

difficult to imagine a more indiscriminate, general rummag-

ing through a persons belongings than the search and seizure

which occurred ai South Midway Drive on April 15, 1980. It

would seem that Mr. Justice Stewart possessed clairvoyance

predicting precisely the events that transpired in connection

with the search and seizure herein complained of when he

wrote in Stanley v. Georgia, 394 U.S. 557, 571-72 (1969):

“Even in the much criticized case of United States v.

Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the

Court emphasized that ‘exploratory searches *** cannot

be undertaken by officers with or without a warrant.’ /d,

at 62, 70 S.Ct., at 434. This record presents a bald

violation of that basic constitutional rule. To condone

what happened here is to invite a government official to

use a seemingly precise and legal warrant only as a ticket

to get into a man’s home, and, once inside, to launch

forth upon unconfined searches and indiscriminate

seizutes as if armed with all the unbridled and illegal

pow ~ of a general warrant.”

See also, Walter v. United States, 447 U.S. 649 (1980).

The Ninth Circuit, however, remarkably upheld the Dis-

trict Court's denial of Petitioner's Motion to Suppress on this

issue, stating that the search was not scrupulously confined to

the terms of the warrant and they disapproved “of the

removal by the agents from the house of large quantities of

papers, photographs, and other items which might have been

relevant to who lived or worked there. Nevertheless, since (a)

all the items seized at Midway Road were later admitted into

evidence were items which the DEA agents were authorized

to take under the warrant, (b) the judge ordered the return of

the non-relevant items, and (c) the search did not reflect

flagrant disregard for the terms of the warrant, the Court

held the admissibility of items which did fall within the

authorization of the warrant was unaffected. Moreover, the

Court did not address the problem of the tainted use of the

illegally seized items being utilized as investigative leads to

develop evidence which was introduced at trial (as the agents

had admittedly done). The Court concluded, in essence, that

the search taken as a whole exceeded the bounds of reason-

ableness; nonethe'ess, the fruits of that search need not be

suppressed because if the search had been “reasonable” its

result would have been the seizure of the evidence ultimately

introduced at trial.

In so holding, the decision sets forth a new exception, not

yet addressed by this Court, to the heretofore Supreme Court

holding that suppression of evidence seized as a result of an

“unreasonable” search is the appropriate course of action.

Petitioner submits to this Court that this novel issue and hold-

ing merits, warrants and justifies the grant of Certiorari to

review the judgment below.

II. As To Constitutionality Of The Seizure And The Search

Of The Tape Recording At 9898 Silva Road, El Cajon,

California

The decision below raises significant Fourth (4th) Amend-

ment questions involving the limitations of “a legitimate

expectation of privacy” and an extension of the “plain view”

exception to the warrant requirement which merit considera-

tion by this Court.

The rewinding and listening to the telephone answering

device (and the subsequent warrantless seizure thereof) is

plainly, indisputably, and blatantly violative of the proscrip-

tions of the Fourth (4th) Amendment to the Constitution of

the United States. In the instant case, the agents had a war-

rant authorizing them to conduct a very limited search,

mainly a search of the premises for the person of KENNETH

WHITTEN. After they had ascertained that WHITTEN

was not present at location, they unlawfully remained on the

premises and thereafter extended the search to listen to the

tape on the telephone answering device. Clearly, this action

was not authorized by the warrant.

“When an official search is properly authorized —

whether by consent or by the issuance of a valid warrant

— the scope of the search is limited by the terms of its

authorization. Consent to search a garage would not

implicitly authorize a search of an adjoining house; a

warrant to search for a stolen refrigerator would not

authorize the opening of desk drawers. Because “indis-

criminate searches and seizures conducted under the

authority of “general warrants” were the immediate evils

that motivated the signing and adoption of the Rourth

(4th) Amendment,” Payton v. New York, 445 U.S. 573,

583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639, that Amend-

ment requires that the scope of every authorized search

to be particularly described.”

Walter v. United States, 447 U.S. 649, 656-657 (1980).

Consistently with the constitutional mandate that “even

searches deemed necessary and supported by a magistrate’s

determination of probable cause should be as limited as pos-

sible,” Coolidge v. New Hampshire, 403 U.S. 443, 467

(1971), the warrant in this case authorized the search at the

premises of 9898 Silva Road only “for the person specified”

and permitted the seizure only of “him/her”. The scope of

the search authorized was explicitly limited to those

parameters.

Nevertheless, in overruling Petitioner's challenge to the

search of the tape, the Court of Appeals found, as did the

District Court: first, there was no legitimate expectation of

privacy in the Hickey call, either “live” or taped”, and,

second, the subsequent search of the contents of the earlier

recorded messages were authorized pursuant to the “plain

view” exception to the warrant requirement.

With respect to the first issue, i.e., a finding of no legitimate

expectation of privacy in the Hickey call, the Ninth Circuit

conceptually failed to differentiate between the “live com-

munication by Hickey and the “taped” recording memorial-

izing that communication. In so doing, the Ninth Circuit's

decision in this case is in direct conflict with, and cannot be

reconciled, with this Court’s decision in Walter v. United

States, 447 U.S. 649 (1980). In Walter, the Defendant had

“broadcast” the contents of certain films by placing them in

boxes which contained explicit descriptions of the contents, as

well as suggestive drawings. Nonetheless, the Supreme Court

ruled that informing third parties of the contents of the film

did not destroy the legitimate expectation of privacy in the

films themselves. Because the agents had viewed the films

without a search warrant, the Court held that the viewing of

the films constituted a search of their contents and that,

notwithstanding the fact that their possession of the films was

lawful, the agents needed a search warrant before they could

view the films.

The Walter case is of obvious controlling significance in the

present case and the same analysis and results should obtain

here. Accordingly, even assuming as the lower courts held in

the instant case, that there was no legitimate expectation of

privacy in the “live” Hickey call, Petitioner's argument is

directed toward the seizure of the “tape” which memorialized

the Hickey message; specifically, Petitioner challenges the

lower courts finding that there was no legitimate expection of

privacy in the tangible property, i.e., the taped recording

which memorialized the Hickey call and other previously

recorded messages. Pursuant to the dictates of the Fourth

(4th) Amendment as set forth in Walter, the lower courts

should have appropriately found that merely informing the

overhearers of part of the contents of the tape, by permitting

the live conversation to be heard in the room, did not deprive

Petitioner from maintaining a legitimate expectation of

privacy in the tape itself.

Additionally, with regard to the second issue addressed,

i.e., the Ninth Circuit’s upholding the search of the earlier

recorded messages pursuant to the “plain view” exception to

the warrant requirement, the Court upheld the search on this

basis by inappropriately failing to address Petitioner's argu-

ment that the “plain view” exception was unavailable because

the agents were not lawfully on the premises, and ultimately

concluding that the trial court’s finding that the agents con-

duct was inadvertent in completely rewinding the tape and

hearing the earlier recorded messages in their entirety was

not a clearly erroneous ruling.

In so holding, the Ninth Circuit has avoided directly

addressing an important Fourth (4th) Amendment issue, to

wit: whether the “plain view” exception to the warrant

requirement can be construed in such a manner as to permit

the warrantless rewinding of and listening to a tape from a

telephone answering machine. Moreover, and of equal

importance, in finding that the warrantless search and seizure

of the tape was justified pursuant to the “plain view” excep-

tion, the Ninth Circuit decision is in direct conflict with this

Court’s decisions which set forth the “immediately apparent

incriminating” requirement of evidence seized in plain view.

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

Stanley v. Georgia, 394 U.S. 557 (1969).

The Ninth Circuit discusses two issues in their application

of the “plain view" exception to this case: first, whether at the

time the agents came across the recorded messages they were

lawfully on the premises, and, second, assuming their lawful

presence, whether they came across it inadvertently.

With regard to the first issue, the Ninth Circuit held that

Petitioner's argument that agents were not lawfully on the

premises was unavailable because it had not properly been

brought to the attention of the trial court. Petitioner would

have this Court note that the Ninth Circuit’s conclusion that

the Petitioner did not adequately raise this issue in the trial

court (assuming it was Petitioner’s responsibility to do so), is

premised upon an improper construction of the record. The

opinion seems to treat counsel’s statement that he “mean(t]

to give the government equal time to respond” as a partial

concession that the government had not been put adequately

on notice of the issue and argument. In reality, counsel's

comment referred to the fact that the Court had set strict

time limits on concluding oral arguments, and counsel was

merely trying to give the government a fair opportunity for

oral argument before the 4:30 deadline imposed by the court.

In point of fact, as footnote 3 of the panel’s opinion demon-

strates, counsel did clearly bring to the court’s attention Peti-

tioner’s position that the agents were not legitimately on the

premises at the time of overhearing of the telephone call, and

the government responded to that argument. The govern-

ment clearly understood that the Petitioner was arguing that

the agents were no longer lawfully on the premises at the time

the Hickey call was overheard, and sought to answer that

argument.

Nevertheless, and without waiving the foregoing objection,

if, as the Ninth Circuit concludes, the record is insufficiently

developed to permit appellate consideration of the lawfulness

or unlawfulness of the agents presence on the premises, then a

fortiorari the Government, not the Petitioner, failed to dis-

charge their burden of proof. “[T}he most basic constitu-

tional rule in this [Fourth (4th) Amendment] area is that

‘searches conducted outside the judicial process, without prior

approval by the judge or magistrate, are per se unreasonable

under the Fourth (4th) Amendment — subject only to a few

specifically established and well delineated exceptions.”

[Footnote citing Katz v. United States, 389 U.S. 347 (1967)

omitted.] The exceptions are ‘jealously and carefully drawn’

{footnote citing Jones v. United States, 357 U.S. 493 (1958)

omitted] and there must be ‘a showing by those who seek

exemptions * * * that the exigencies of the situation made

that course imperative.” [Footnote citing McDonald v. United

States, 335 U.S. 451 (1948) omitted]. /T/he burden is on

those seeking the exemption to show the need for it. [Foot-

note citing United States v. Jeffers, 342 U.S. 48, 51 (1951)

omitted].". Coolidge v. New Hampshire, 403 U.S. 443, 454-

55 (1971) (emphasis supplied).

Since the Government was relying on an exception to the

warrant requirement to justify the warrantless search, it was

for the Government to show, by record evidence, that the

agents were lawfully on the premises. Given the Ninth Cir-

cuit’s rationale that the record is insufficiently factually

developed to permit a determination as to whether the officers

were lawfully on the premises, the Petitioner should have

prevailed on this issue as a matter of law. Accordingly, the

decision effectively reversed the burden of proof on the issue,

transferring to Petitioner the burden of disproving that which

the Government has a burden affirmatively to establish. This

jolding is clearly irreconcilable with existing Supreme Court

authority.

Had the Ninth Circuit appropriately confronted the issue,

the Court would have had to determine whether the officers

were lawfully on the premises at the time they overheard the

Hickey call since the “plain view” exception applies only

when the officers inadvertently see something at a place where

they are lawfully authorized to be. Coolidge v. New Hamp-

shire, 403 U.S. 443 (1970). In the instant case, the exception

was clearly inapplicable in that, at the time the officers

overheard the call, they had already completed the search

pursuant to the Prescott warrant some thirty (30) to ninety

(90) minutes earlier. The agents had no reason to remain

inside the premises after completion of their execution of the

Prescott warrant; therefore, at the time the call was

overheard, the officers presence at the scene could not be

characterized as either legitimate or lawful.

Furthermore, with regard to the second issue addressed by

the Ninth Circuit in respect to the “plain view” exception,

i.e., a finding that the officers conduct was inadvertent in

completely rewinding and hearing the earlier recorded

messages, the Court merely concludes that the trial court's

finding of “inadvertence” was not clearly erroneous. The

Ninth Circuit seemingly came to this conclusion by concep-

tually failing to adequately differentiate between the live con-

versation the agents overheard and the the tape recording

embodying that and other conversations. (See discussion

supra). Therefore, by inappropriately legitimizing the con-

duct of the agents in rewinding the tape for the specific pur-

pose of listening to the Hickey call on the basis that Petitioner

had no legitimate expectation of privacy in the Hickey call,

either live or taped, the Court was then able to justify the

rewinding past the Hickey call under the “inadvertence”

theory.

Respectfully, even if this analysis appears to be some

explanation for how the Ninth Circuit arrived at their

remarkable conclusion that the deliberate rewinding of the

tape was inadvertent, there is no explanation for the Court

announcing a decision which completely fails to meet the

“immediately apparent incriminating” requirement of the

“plain view” doctrine.

This Court set forth in Coolidge v. New Hampshire, 403

U.S. 443 (1970), that the plain view exception “is legitimate

only where it is immediately apparent to the police that they

have evidence before them; the “plain view” doctrine may not

be used to extend a general exploratory search from one

object to another until something incriminating at last

emerges.” See generally 2 La Fave, SEARCH AND SEIZURE,

§ 4.11(c) and § 6 7(b) and cases cited therein.

In the instant case, what and all the agents heard (prior to

replaying the tape) was: (1) Sue Hickey’s voice and (2) a

message either to the effect that “the narcs [were] looking for

{her]" or simply requesting that KENNY call her. Indeed, it

was precisely because the agents had not heard anything

incriminating when the conversation was initially overheard,

that they felt constrained to replay the tape in hopes of learn-

ing something new which they had not heard before. Had the

agents sought a warrant to search the tape after hearing the

Sue Hickey call, one clearly could not have issued, for there

was no probable cause sufficient to show a nexus between the

evidence sought to be seized and criminal conduct.

If the information at hand is not sufficient to constitute

probable cause to search, it certainly is not sufficient to

permit a warrantless search. Yet, that is, effectively, the

result of the Ninth Circuit’s opinion thereby rendering the

decision in conflict with the dictates of the Fourth (4th)

Amendment to the United States Constitution.

In sum, the Ninth Circuit's decision with regard to the

“tape” issue is far reaching in that the Court significantly

curtails application of “the legitimate expectation of privacy”

principle and thereafter extends the application of the “plain

view” exception. The opinion effectively sets forth a decision

in conflict with decisions of this Court in the area of Fourth

(4th) Amendment jurisprudence. Accordingly, Supreme

Court consideration of this issue is clearly indicated.

CONCLUSION

For the foregoing reasons a writ of certiorari should issue

to review the judgment and opinion of the Ninth Circuit.

Respectfully Submitted,

Suite 909

Houston, Texas 77074

713/981-4545

Attorney for Petitioner

CERTIFICATE OF SERVICE

I, JERRY D. PATCHEN, as Counsel for Petitioner

herein, hereby certify that three (3) true and correct copies of

the foregoing Petition for a Writ of Certiorari have been

served upon the Solicitor General of the United States by

placement in the United States mails, first-class, postage

prepaid, on this the . 25 day of November, 1983.

REX E. LEE

Solicitor General of the United States

Department of Justice,

Office of the Solicitor General

10th & Pennsylvania, NW

Room 5614

Washington, D.C. 20530

S. PATCHEN

APPENDIX

A-|

United States Court of Appeals

For THE NINTH Circuit

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, Nos. 82-1315

82-1293

Vv. 82-1294

82-1303

KENNETH JOE WHITTEN

JOHN ELMER GAIEFSKY

Jack Wayne GISH

RICHARD LAWRENCE SHIMEL,

D.C. No. &1-1049-T

Defendants-Appellants. |

OPINION

Argued and Submitted — January 5, 1983

Decided — May 25, 1983

APPEAL FROM THE UNITED STATES District CourT

FOR THE SOUTHERN DiSTRICT OF CALIFORNIA

Honorable Howard B. Turrentine, District Judge, Presiding

Before: FARRIS and ALARCON, Circuit Judges, and

SCHWARZER.*

SCHWARZER, District Judge:

Kenneth Whitten and twenty-three codefendants were

charged in a twenty-four count indictment with making and sell-

ing methamphetamine. The trial court severed the case against

four defendants, Whitten, Shimel, Gaiefsky, and Gish, who now

* The Honorable William W Schwarzer, United States District Judge

for the Northern District of California sitting by designation.

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appeal from their convictions of various narcotics offenses in

violation of 21 U.S.C. §§ 841(a)(1), 846, 843(b), and 848.

Appellants were charged with operating illegal meth-

amphetamine laboratories in Texas and California and with

marketing the drug in a number of states. A key point of dis-

tribution was Las Vegas, where Debra Howard was arrested, on

unrelated charges, on April 2, 1980. Howard agreed to cooper-

ate with federal drug enforcement officials. Based on her

information, the police in California and Texas made a number

of arrests and searched a number of different locations. Appel-

lants challenge the legality of these searches and seizures. They

also contest the sufficiency of the evidence supporting their con-

victions and challenge various evidentiary rulings of the trial

court. We will consider the claims raised by each appellant in

turn.

WHITTEN’S APPEAL

I. Sufficiency of the Evidence

A. Money Order Counts

Appellant Whitten was convicted of seven counts of using

Western Union money orders to facilitate the distribution of

methamphetamine (Counts 10-17). The indictment names

specific dates on or about which telegraphic money orders were

used in drug transactions. At trial, the government introduced

into evidence more than thirty money orders and Western Union

money order applications. For each date named in the indict-

ment, there is a corresponding money order in which one of the

indicted coconspirators or a government witness is the recipient

of a large sum of money. The amounts vary but are generally

between $2,000 and $6,000.

Roger Loving, an indicted coconspirator separately tried, tes-

tified that Whitten customarily used money orders for drug

sales. He also testified to personally receiving money orders from

a woman named “Pat” in Lubbock, Texas. On Whitten’s

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instructions, he cashed the money orders and gave him the

proceeds. Count 13 of the indictment charges Whitten with use

of a Western Union money order on or about March 28, 1980, to

aid methamphetamine sales. A money order dated March 28,

1980, in the amount of $2,115.65 made out to Roger Loving

from Pat Sharp of Lubbock, Texas, was introduced at trial.

Patti Hickey, mother of one of the indicted conspirators, testi-

fied that on four or five occasions she picked up money for Whit-

ten at Western Union. Counts 14 and 16 are based on evidence

of money orders for $4,000 and $6,000 sent to Patti Hickey in

February and March of 1980. Counts 10, 11 and 12 are based on

money orders in amounts between $2,000 and $6,000 sent

directly to Whitten. Count 15 is based on a money order sent to

Jerry Gish, an indicted conspirator separately tried. Count 17 is

based on a money order sent to Jahn Gaiefsky, a codefendant in

this case.

Whitten challenges the sufficiency of the evidence to sustain

his convictions on Counts 10 through 17 charging violations of

21 U.S.C. § 843(b). He argues that while there is evidence that

money orders were sometimes used by defendants to effect sales

of methamphetamine, there is no evidence that these particular

money orders sent via wiregram on specified dates constituted

payments for illicitly distributed narcotics.

The test of sufficiency of evidence is whether “any rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original). The test is not whether the

evidence excludes every hypothesis but that of guilt but whether

the trier of fact could reasonably arrive at the conclusion of

guilt. United States v. Rojas. 458 F.2d 1355, 1356 (9th Cir.

1972). The essential elements of the offense with which Whitten

is charged in Counts 10 through 17 are: (1) knowing or inten-

tional (2) use of a telegraphic money order (3) to aid or facili-

tate the distribution of methamphetamine. 21 U.S.C. § 843(b);

A-4

United States Vv. Barnes, 68\ F.2d 717, 723 (11th Cir. 1982);

United States v. Rey, 641 F.2d 222, 224 n.6 (Sth Cir.), cert.

denied, 454 U.S. 861 (1981).

Testimony by coconspirators provided ample evidence that

money orders were often used by Whitten in drug sales, that

their use was purposeful, and that it aided the distribution of

narcotics. The question is whether the government so limited

itself by bringing multiple counts and naming specific dates that

it failed to sustain its burden of proving the actual violations

charged in the indictment.

In United States v. Murray, 492 F.2d 178, 186 (9th Cir.

1973), cert. denied, 419 U.S. 942 (1974) a conviction under

§ 843(b) was reversed for insufficient evidence that telephone

calls were used to facilitate the importation of narcotics; the only

evidence was tape recordings of calls made by persons other than

defendants. There was no evidence that defendants customarily

placed their orders for narcotics by phone, that they knew these

calls were made, or that these particular calls had any connec-

tion with their particular narcotics transactions. /d. at 186-87.

In United States v. Rodriguez, 546 F.2d 302 (9th Cir. 1976), a

conviction under § 843(b) was reversed where the indictment

charged but the government failed to prove use of a telephone to

facilitate the distribution of cocaine on a specified date. Because

the government elected to set forth the date and location of the

telephone call, it was obligated to submit evidence to support its

charge. /d. at 308. See also United States v. Valdivia, 492 F.2d

199, 207 (9th Cir. 1973), cert. denied, 416 U.S. 940 (1974).

This case is distinguishable from Rodriguez, in which there

was no evidence that the phone call referred to in the indictment

was ever made, and from Murray, in which there was no

evidence linking the phone calls to the defendants charged with

the offense. Here, two witnesses testified that on instruction from

Whitten, they had personally picked up and cashed money

orders at various times and that Whitten used money orders to

A-5

effect drug sales. The physical evidence submitted by the govern-

ment consisted of numerous money orders and money order

applications dating from the period of the conspiracy. For each

date named in the indictment, there is a corresponding money

order for a large sum sent to one of the conspirators or to Patti

Hickey, who testified that Whitten asked her to pick up money

for him at Western Union on several occasions. The quantity of

money orders and the dollar values involved corroborate the tes-

timony that Whitten often used money orders for drug sales.

Not only are the sums large, but the money orders were received

in quick succession. On March 12, 1980, Whitten was sent one

money order for $2,000 and another for $3,000. Less than one

week later, on March 17, 1980, he personally received $6,000 via

Western Union.

These facts, together with evidence that certain of the

individuals named as remitters of the money sent via telegram

were generally associated with appellant in narcotics activities,

are sufficient to make this question one for the jury. See United

States v. Lerma, 657 F.2d 786, 787-89 (Sth Cir. 1981), cert.

denied, 455 U.S. 921 (1982) (evidence of a large number of calls

between a narcotics buyer and defendant who was identified as

the seller sufficient to establish a violation of § 843(b)); United

States Vv. Cooper, 606 F.2d 96, 98 (Sth Cir. 1979), cert. denied,

444 U.S. 1024 (1980) (testimony that witness sent several

money orders and that some of the money used for heroin suf-

ficient to support a conviction on two counts of § 843(b)). Direct

testimony linking particular money orders to specific drug trans-

actions would have been preferable. However, we conclude that

a rational trier of fact could reasonably have found Whitten

guilty of the crimes charged in Counts 10 through 17. The judg-

ment on those counts is affirmed.

B. Manufacture Count

Whitten was charged in Count 4 with manufacturing

methamphetamine between April 15, 1980, and May 5, 1980.

A-6

The government's only relevant evidence showing that Whitten

was making the drug on those dates was the statement of Roger

Loving, an indicted coconspirator senarately tried, that “Kenny

was Out cooking somewhere” during that period.

The uncurroborated testimony of an accomplice is enough to

sustain a conviction, United States Vv. Johnson, 454 F.2d 700

(9th Cir. 1972), unless the testimony is “incredible or insubstan-

tial on its face.’ Suh/ v. United States, 390 F.2d 547, 550 (9th

Cir.), cert. denied, 391 U.S. 964 (1968). Loving’s testimony was

not patently incredible. In the context of the evidence at trial,

the jurors could reasonably have found on the strength of that

testimony that Whitten was guilty of the crime charged beyond

a reasonable doubt. Jackson vy. Virginia, 443 U.S. 307, 319

(1979). The evidence is sufficient, therefore, to sustain his con-

viction on Count 4, and the judgment is affirmed.

II. Duplicitous Counts

Whitten was convicted of two counts of conspiracy to

manufacture and possess a controlled substance in violation of

21 U.S.C. § 846 (Counts | and 2). The trial judge sentenced him

to five year terms on each conspiracy count to run consecutively

to each other, but concurrently with consecutive five year

sentences imposed on Counts 3, 4, 5, and 6. Whitten was also

convicted of engaging in a continuing criminal enterprise to vio-

late the drug laws under 21 U.S.C. § 848 (Count 23) and

sentenced to twenty years, to run concurrently with the

sentences imposed on Counts 3, 4, 5 and 6. Relying on the

Supreme Court's decision in Jeffers v. United States, 432 US

137 (1977), Whitten argues that the convictions on the con-

spiracy counts must be vacated because they are lesser offenses

included in the continuing criminal enterprise conviction.

We need not address this question. The twenty year sentence

on the continuing criminal enterprise count is concurrent with

the four consecutive five year sentences Counts 3, 4, 5 and 6.

Because the judgment on those counts is affirmed, we need not

A-7

consider the validity of the sentence imposed on Count 23.

United States \. Barker, 675 F.2d 1055, 1059 (9th Cir. 1982);

United States V. Valenzuela, 596 F.2d 1361, 1365 (9th Cir.),

cert. denied, 444 U.S. 865 (1979); United States \. Walis, 577

F.2d 690, 699 (9th Cir.), cert. denied, 439 U.S. 893 (1978).

Ill. The Search and Seizure Issues

Whitten attacks his convictions on the ground that they are

the product of evidence which was illegally seized in a series of

searches and which should have been suppressed.

A. The Midway Drive Search

Debra Howard, the key informant in this case, told Drug

Enforcement Administration (“DEA"’) agents that meth-

amphetamine was being manufactured in a cottage at 115 South

Midway Drive, Escondido, California. She explained that Whit-

ten and others lived in a large stucco house at the front of the

property. On April 15, 1980, ten to twelve DEA agents searched

both buildings under the authority of a warrant issued by a

federal magistrate. The warrant by its terms authorized the

search of both the large stucco house and the cottage at that

address.

Only remnants of a laboratory remained in the cottage

because Whitten had been alerted to the raid by the arrest of

several accomplices in Las Vegas on April 2, 1980. From the

large house, the agents seized a large number of photographs

and documents including some items conceded to be irrelevant

such as jewelry, love letters, marriage papers, and photos not

containing evidence of crime. The agents returned the jewelry to

its owners. They also seized two locked metal boxes from the

bedroom of the large stucco house and returned with them to the

office. A thorough investigation of the boxes’ contents revealed a

large number of irrelevant items. But at the bottom of the boxes

the agents found drug paraphernalia including a gram scale and

precursor chemicals.

A-8

Whitten claims that the search violated the Fourth Amend-

ment because there was no probable cause to search the large

stucco house, because the warrant lacked particularity as to the

items to be seized, and because the search exceeded the scope of

the warrant. Although the manner in which it was conducted

was in some respects irregular, we hold that the search was

lawful.

Probable cause

Whitten contends that even if the informant’s tip justified the

search of the cottage, there was no probable cause to search the

large stucco house at the front of the property. When a structure

is divided into more than one residential unit, or where two resi-

dences are located on a single parcel of property, there must be

cause to search each unit. United States v. Whitney, 633 F.2d

902, 907 (9th Cir. 1980), cert. denied, 450 U.S. 1004 (1981).

But a warrant may authorize a search of an entire street address

while reciting probable cause as to only a portion of the premises

if they are occupied in common rather than individually, if a

multiunit building is used as a single entity, if the defendant was

in control of the whole premises, or if the entire premises are

suspect. United States v. Gilman, 684 F.2d 616, 618 (9th Cir.

1982).

The trial judge found that the large house and the cottage

were used as a single unit. Although the affidavit in support of

the warrant focused on the cottage which was used as a

laboratory, the issuing magistrate and the trial judge reasonably

concluded that the entire compound was under the control of

Whitten. The district court’s finding that there were probable

cause to search both houses was not clearly erroneous. United

States v. O'Connor, 658 F.2d 688, 690 (9th Cir. 1981).'

' We would affirm that finding even if we were to subject the probable

cause determination to independent review as a question of law.

A-9

Particularity of the Warrant

The Fourth Amendment protects the “right of the people to

be secure in their persons, houses, papers, and effects.” U.S.

Const. amend. IV. No warrants may issue except those which

particularly describe the persons and things to be seized. /d.

Fear of general warrants and of indiscriminate rummaging

among personal belongings motivated the adoption of the Fourth

Amendment. Payton v. New York, 445 U.S. 573, 583 (1980).

Whitten contends that the search warrant authorizing in part

the seizure of “telephone books, diaries, photographs, utility

bills, telephone bills, and any other papers indicating the owner-

ship or occupancy of said residence’ was impermissibly broad.

We have upheld warrants authorizing the seizure of items

which establish the identity of persons in control of premises.

United States v. Marques, 600 F.2d 742, 751 n.5 (9th Cir.

1979) cert. denied, 444 U.S. 1019 (1980) (“articles of personal

property tending to establish the identity of persons and control

of premises”); United States v. Rettig, 589 F.2d 418, 421 (9th

Cir. 1978) (“indicia of the identity of the residents of said house

including, but not limited to, cancelled mail, keys, rent receipts,

utility bills, deeds, leases and photographs”); United States v.

Honore, 450 F.2d 31, 33 (9th Cir. 1971), cert. denied, 404 U.S.

1048 (1972) (“articles ... tending to establish the identify [sic]

of the persons in control of the premises ... including but not

limited to utility company receipts, rent receipts, cancelled mail

envelopes, and keys’). While a warrant authorizing seizure of

any photographs or diaries might have been unreasonable, here

the scope of those words was qualified by the accompanying

language “indicating the ownership or occupancy of said resi-

dence.’ Moreover, the issuing magistrate properly took into

account the nature of the crime involved in issuing the warrant.

United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976).

Where multiple defendants were suspected to have utilized the

A-10

premises as a laboratory and headquarters for a large-scale ille-

gal drug operation, it was reasonable to authorize the arresting

agents to search for evidence showing who occupied and con-

trolled the premises.

Accordingly, appellant's attack on the breadth of the warrant

is unfounded.

Scope of the Search

A search must be confined to the terms and limitations of the

warrant authorizing it. Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 394 n.7 (1971).

Searches which require an examination of books, papers and

personal effects in a suspect’s home are “an especially sensitive

matter calling for careful exercise of the magistrate’s judicial

supervision and control.” United States v. Rettig, 589 F.2d 418,

423 (9th Cir. 1978). Whitten contends that the agents who

searched 115 South Midway Drive rummaged through the

belongings of its residents and seized materials not described in

the warrant.

The facts surrounding the execution of the warrant are these.

Austin, the agent in charge of the South Midway search, and the

ten to twelve agents assigned to the search attended a thirty

minute pre-search briefing. A deployment strategy was adopted

and the agents were instructed to take only what was authorized

by the warrant. They did not read the warrant itself. Agent

Austin testified that he understood that he was empowered to

seize not only evidence as to who owned the house, who lived

there, and who received mail there, but also every piece of paper

with a name on it and every photo with a person in it.

The agents took more than a thousand photographs from the

house. Agent Austin explained that he was trying to be selective

but did not have time to go through all the photos; he therefore

took the lot intending to look through them more thoroughly

later. Two metal strong boxes were taken from the bedroom of

A-1]

the stucco house and their contents examined at the DEA offices.

The boxes contained love letters, jewelry, marriage, divorce, and

custody papers, a billing statement from a lawyer, a probation

report, and form printed checks. Underneath these items, the

agents found drug paraphernalia and precursor chemicals.

There is a question whether the agents conducting the search

were adequately briefed on the terms of the warrant and

whether they respected the limitation barring seizure of items

not mentioned in the warrant. See United States v. Heldt, 668

F.2d 1238, 1254-69 (D.C. Cir. 1981), cert. denied, 102 S. Ct.

1971(1982). Officers conducting a search should read the war-

rant or otherwise become fully familiar with its contents, and

should carefully review the lists of items which may be seized. A

better understanding of the warrant by the agents who searched

115 South Midway Drive on April 15, 1980, might have avoided

some of the problems which have occupied the parties and the

courts in this lengthy litigation.

We disapprove the removal by the agents from the house of

large quantities of papers, photographs, and other items which

might have been relevant to who lived or worked there. The

Midway search points up the practical difficulties in executing a

warrant for “indicia of ownership and control of the premises.”

Although it may be intrusive for police officers to remain in a

home and make a careful examination of items to determine

whether they fall within the description of the warrant, it is

equally intrusive for them to carry off papers and personal

effects indiscriminately for later review. Cf. United States v.

Heldt, 668 F.2d at 1267. Wholesale adoption of the latter prac-

tice would be “to invite a government official to use a seemingly

precise and legal warrant only as a ticket to get into a man’s

home, and, once inside, to launch forth upon unconfined searches

and indiscriminate seizures as if armed with all the unbridled

and illegal power of a general warrant.” Stanley v. Georgia, 394

U.S. 557, 572 (1969)(Stewart, J., concurring).

A-12

Although the search was not scrupulously confined to the

terms of the warrant, it does not follow necessarily that all of the

evidence seized must be suppressed. United States v. Daniels,

549 F.2d 665, 668 (9th Cir. 1977); Heldt, 688 F.2d at 1259. We

agree with the approach taken by the Court of Appeals for the

District of Columbia in Heldt:

Absent ... flagrant disregard [for the terms of the war-

rant], the appropriate rule seems to be that where officers

seize some items outside the scope of a valid warrant, this

by itself will not affect the admissibility of other con-

temporaneously seized items which do fall within the

warrant.

688 F.2d at 1259.

That reasoning should be applied here. All of the items seized

at Midway Road and admitted into evidence were things which

the DEA agents were authorized to take under the warrant. The

trial judge ordered the return of nonrelevant items. The search

did not reflect flagrant disregard for the terms of the warrant.

For these reasons, the motions to suppress were properly denied.

B. The Silva Road Search

On August 18, 1981, DEA agents obtained a warrant

authorizing them to search for and arrest Kenneth Whitten at

9898 Silva Road in El Cajon, California. They did not find

Whitten at Silva Road but remained on the premises for a period

of time — between thirty and ninety minutes.? While they were

in the house, a telephone answering machine in the living room

received, recorded and broadcast a call to Whitten from Susanne

Hickey, an indicted coconspirator tried separately. After listen-

ing to the incoming call which was automatically recorded and

played aloud, the agents rewound the tape in order to hear the

message a second time. Inadvertently they rewound it past the

* The testimony of the various agents who searched the Silva Road

house is in conflict on this point, but neither the government nor

defendants pursued it at trial.

A-13

Hickey cal! to the beginning of the tape. When they played it

back, they overheard a recording of a call from a woman who

had recently rented a house to Whitten. The agents called the

number which she had left and learned that the rented house

was on Lyons Valley Road in Alpine. A number of agents went

to the Alpine address and there arrested Whitten.

While present at Silva Road, the agents also seized an orange

notebook which lay closed on a coffee table in the living room

and a yellow tablet found on top of the refrigerator open to the

second or third page. The notebook and tablet were both

introduced into evidence. Whitten contends that his Fourth

Amendment rights were violated when the agents played back

the recorded messages on the answering machine and when they

seized the orange notebook and the yellow tablet.

Tape Recordings

The trial judge denied the motion to suppress the recorded

messages, finding that there was no reasonable expectation of

privacy in the contents of any of the communications because

the first was broadcast aloud and the others were inadvertently

overheard. The motion to suppress was properly denied.

The occupants of Silva Road had no legitimate expectation of

' privacy in the contents of the Hickey call because the speaker on

the recording machine had been turned on, making incoming

calls clearly audible to any person present in the room where the

answering device was located. Katz v. United States, 389 US.

347 (1967). See also United States v. Kenny, 645 F.2d 1323,

1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981), (phone con-

versation recorded by party to conversation acting as govern-

ment informant); United States v. Ortiz, 603 F.2d 76, 79 (9th

Cir. 1979), cert. denied, 444 U.S. 1020 (1980) (inside of gas

station visible from a public place); United States v. Coplen, 541

F.2d 211, 214-15 (9th Cir. 1976), cert. denied, 429 U.S. 1073

(1977) (interior of airplane visible from parking lot of airport);

United States v. Fisch, 474 F.2d 1071, 1076-77 (9th Cir.), cert.

A-14

denied, 412 U.S. 921 (1973) (conversation audible in adjoining

motel room). Here, as the trial judge found, the volume on the

device was turned up so high that it could be heard outside as

well as inside the house.

A different question is presented by the contents of the earlier

recorded message which was not overheard by the agents until

the tape was rewound and replayed. The government contends

that even if appellant did have a legitimate expectation of

privacy in the contents of the earlier call, the agents came across

it in “plain view” when, seeking to verify the contents of the

Hickey message, they accidentally rewound the tape past the

earlier message.

Under the “plain view” exception to the warrant requirement,

an Officer who is lawfully present at a location may seize any-

thing which immediately appears to be evidence and whose dis-

covery is inadvertent. Washington v. Chrisman, 455 U.S. 1, 5-6

(1982); Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Application of the “plain view” exception to this case raises two

issues: first, whether at the time the agents came across the

recorded message they were lawfully on the premises, and,

second, assuming their lawful presence, whether they came

across it inadvertently.

With respect to the first issue, appellant does not dispute that

the initial entry into and search of the Silva Road house was

lawful under the Prescott warrant. United States v. Prescott,

581 F.2d 1343 (9th Cir. 1978). He argues for the first time on

appeal, however, that the “plain view’ exception cannot be

invoked because the agents, having failed to find Whitten, were

no longer lawfully present when they discovered the message on

the tape. Appellant did not raise this issue in the motion to

suppress or the supporting memorandum filed in the trial court.

The only reference to it is found in a passing comment by

defense counsel at the end of his oral argument on the motion

A-15

to suppress: counsel there described it as an “extraneous” issuc.’

The irial court was not asked to and did not make a finding on it.

As a general rule, an issue not presented to the trial court

cannot be raised for the first time on appeal. People of the Ter-

ritory of Guam v. Okada, 694 F.2d 565, 570 n.8 (9th Cir.

1982); United States \. Patrin, 575 F.2d 708, 712 (9th Cir.

1978) (citing Singleton vy. Wulff, 428 U.S. 106, 120 (1976)).

Several policies underlie this rule. It would be unfair to surprise

litigants on appeal by final decision of an issue on which they

had no opportunity to introduce evidence. Hormel \. Helvering,

312 U.S. $52, 556 (1941); Singleton v. Wulff, 428 U.S. 106, 120

(1976). Judicial economy and sound judicial administration

require that issues critical to the conduct of the trial, such as

grounds for suppressing evidence, be presented initially to the

trial judge for decision.‘

* Counsel's remarks on this issue were as follows:

I don’t believe the Prescott warrant will allow you, or certainly

aot an arrest warrant will allow you to stay there, because both of

them are premised, and necessarily, Your Honor, on the assump-

tion that he’s there now, and if you don’t have reasonable cause to

believe he’s there now, you can't enter even with a Prescott

warrant.

Now, when it turns out that you were wrong, you have to leave,

you can maintain surveillance, and if you see him coming in, go

get another Prescott warrant, no problem with that, or in a case

where you're entering a person's residence if that’s the person

you're seeking to arrest, no problem with entering, time and again,

and | would suppose pursuant to that arrest warrant. But a

Prescott warrant doesn't give you a right to camp out in a man’s

house, and that’s what constitutes an unreasonable extension.

So we're not even sure they were legitimately on the premises at

the time they heard the tape.

. But all of those issues are extraneous, and in the interest of

fairness, | mean to give the government equal time to respond.

(R.T. 821-22)

‘See Wainwright v. Sykes, 433 U.S. 72, 88-90 (1977). where the

Court, in enforcing a contemporancous-objeciion rule, stressed its

importance in permitting the trial judge to make necessary factual

A-16

Exceptions to the general rule are recugnized where a new

theory or issue arises while an appeal is pending because of a

change in the law, Hormel, 312 U.S. at 557-58; Singleton, 428

U.S. at 120-21, or where the issue conceded or neglected below

is purely one of law and does not affect or rely on the factual

record developed by the parties, Patrin, 575 F.2d at 112; United

States v. Gabriel, 625 F.2d 830, 832 (9th Cir.), cert. denied, 449

U.S. 1113 (1980), or where plain error has occurred and injus-

tice might otherwise result, Okada, 694 F.2d at 570 n.8; United

States v. Fong, 529 F.2d 55 (9th Cir. 1975).

None of these exceptions applies here. Appellant's argument

is not based on new law. Nor does resolution of the issue in the

context of this case present a pure question of law. Factual ques-

tions such as the precise length of time the agents remained on

the premises, the likelihood that the person specified in the war-

rant might return, and other factors tending to support the

reasonableness of the agents’ continued presence on the premises

under the circumstances might bear decisively on the determina-

tion of the legal question whether the Fourth Amendment was

violated. Finally, given the strength of the evidence against

appellant in this case, and the fact that the exclusionary rule is a

judicially created remedy to effectuate rights secured by the

Fourth Amendment and not a constitutional imperative, Stone

V. Powell, 428 U.S. 465, 482-83 (1976), no fundamental injus-

tice will result from our declining to decide a question not

presented to the trial court.

With respect to the second issue, appellant argues that the

contents of the earlier recorded messages were not in plain view

because they could not be revealed without the purposeful use of

the answering machine. Appellant relies principally on Walter v.

United States, 447 U.S. 649, 657 (1980) and State v. Turkal,

determinations, contributing to finality in criminal yee and

conserving social resources. Cf. Partenweederei, MS Belgrano v.

Weigel, 313 F.2d 423, 425 (9th Cir. 1963).

A-17

$99 P.2d 1045 (N.M. 1979) (cited with approval in United

States \. Wright, 667 F.2d 793, 799 n.6 (9th Cir. 1982)). The

cases do not support so broad a proposition. In each of them,

agents lawfully came into possession of tapes or films whose

contents they listened to or viewed without first obtaining a war-

rant. Their purpose was clearly exploratory. It was this deliber-

ate exploration, not the use of a machine, that made the “plain

view” exception inapplicable. See Stanley v. Georgia, 394 U.S.

§57, 71-72 (1969) (Stewart, J., concurring); Coolidge v. New

Hampshire, 403 U.S. at 466-67. The district judge specifically

found that the complete rewinding of the tape and the hearing of

the earlier message were inadvertent. That finding was not

clearly erroneous.

The Orange Notebook and Yellow Pad

The government seeks to justify the seizure of the orange

notebook and the yellow pad on the ground that they are

evidence of criminal activity found in plain view. The “plain

view” exception applies “only where it is immediately apparent

to the police that they have evidence before them; the ‘plain

view’ doctrine may not be used to extend a general exploratory

search from one object to another until something incriminating

at last emerges.’ Coolidge Vv. New Hampshire, 403 US. at 466.

“To assure that warranted searches do not result in ‘exploratory

rummaging’ the plain view doctrine limits the right of seizure to

items, the incriminating nature of which is immediately

apparent to the searching officer.” United States v. Wright, 667

F.2d at 797,

Applying the plain view rule as elaborated in the cases to the

situation here, the seizure of the orange notebook was impermis-

sible. There was nothing facially incriminating about the closed

notebook from which the DEA agents could reasonably have

concluded that it might contain evidence of crime. See State v.

Shinault, 120 Ariz. 213, 584 P.2d 1204 (Ariz. App. 1978).

A-18

The yellow pad, however, was open to the second or third page

when discovered by one of the agents. That page read: “Move

cars to new place. Calls: Sammy Roscoe; 10 [gallons]. Big. Glass

beads, 60 degree adaptor.” In the context of this investigation

into large-scale methamphetamine manufacture and distribu-

tion, the incriminating nature of this evidence was readily

apparent to the agents.

While the admission into evidence of the orange notebook was

error, the error was harmless and does not mandate reversal.

Chapman Vv. California, 386 U.S. 18, 24 (1967). It was admitted

near the end of the trial without any discussion of its contents:

indeed the trial transcript does not disclose its relevance or what

information it contained. In light of the overwhelming evidence

against Whitten, its admission was harmless beyond a reason-

able doubt.

C. The Lyons Valley Road Search

On the basis of the information from the tape recorded

message at Silva Road, the DEA agents proceeded to the Lyons

Valley Road address in the town of Alpine and arrested Whitten

on a warrant as he emerged from the residence on that property.

Parked in the driveway were two motorcycles and a yellow sport-

scar. After arresting Whitten, the agents entered the house and

made a cursory investigation finding methamphetamine on a

table in the living room and on paper plates in the kitchen and a

handgun on the fireplace mantle. Agent Jones approached a shed

adjoining the house and detected strong chemical odors emanat-

ing from it, leading him to believe that the shed contained a drug

laboratory. His suspicions were confirmed upon entry when he

discovered a methamphetamine laboratory in full operation.

Because the area was remote, the agents could not make radio or

telephone contact with their fellow agents. After securing the

house and shed, one of the agents obtained a telephone warrant

for both buildings. Using the warrant, the agents conducted a

more complete search of each building. They photographed the

A-19

rooms and discovered papers such as invoices and car registra-

tions linking Whitten and appellant Richard Shimel to the

locations.

The evidence against Whitten seized from the Lyons Valley

Road residence is of three kinds: (1) methamphetamine powder

and the drug laboratory equipment, (2) photographs of the inte-

rior of the two buildings, and (3) various documents from a

lockbox and from other locations inside the house.

Whitten makes three contentions with respect to this search:

first, that the initial warrantless entry into the house and shed

following his arrest was without legal justification; second, that

the telephone warrant upon which a more thorough search of the

premises was based was defective because overbroad; third, that

the agents failed to comply with the procedural requirements of

Rule 41(c)(2) of the Federal Rules of Criminal Procedure in

applying for the warrant.”

Warrantless Entry

The district court upheld the post-arrest entry, reasoning that

the agents properly conducted a protective sweep of the entire

premises following Whitten’s arrest. The trial judge cited a

number of reasons for the agents’ belief that persons other than

Whitten might be present and dangerous. Three vehicles, not

one, were parked in the driveway. The area was remote and a

number of codefendants were unaccounted for. The agents could

not make radio or telephone contact with other DEA agents.

Members of the drug ring were believed to be armed and in the

general area. And there was evidence suggesting an operating

illegal laboratory and a danger of possible explosion.

* Because we hold that the telephone warrant was overbroad, we do

not reach the questions raised by appeilant rea the

procedure used to obtain the warrant and the requirements of Rule

41(c) of the Federal Rules of Criminal Procedure.

A-20

A protective sweep of a building without a warrant may be

justified by exigent circumstances if the officers reasonably

believe that there might be other persons on the premises who

could pose a danger to them. United States v. Gardner, 627 F.2d

906, 909-10 (9th Cir. 1980). However to excuse this departure

from the usual requirement of a warrant, the executing officers

must be able to “point to specific and articulable facts” support-

ing their belief that other dangerous persons may be in the build-

ing or elsewhere on the premises. United States v. Dugger, 603

F.2d 97, 99 (9th Cir. 1979) (quoting Terry v. Ohio, 392 U.S. 1,

21 (1968)). The circumstances found by the trial judge provide

ample justification for the protective sweep of both the residence

and the laboratory at the Alpine location.

With respect to the shed, additional exigency was created by

the agents’ reasonable belief, under the circumstances, that a

methamphetamine laboratory was in operation. The trial judge

specifically found that the risk of explosion presented an exigent

circumstance that would have justified an immediate warrantless

search. His findings are supported by the record and by the law.

See United States v. Williams, 630 F.2d 1322, 1326-27 (9th

Cir.), cert. denied, 101 S. Ct. 197 (1980) (risk of explosion from

PCP lab in mobile home).

The Telephone Warrant

The Fourth Amendment expressly provides that no warrants

may issue except those “particularly describing the place to be

searched, and the persons and things to be seized.” U.S. Const.

amend. IV. Appellant Whitten contends that the telephone war-

rant subsequently issued which authorized the agents to search

for “methamphetamine and evidence of narcotics trafficking”

was overbroad.

This language of the warrant did not enable the officers

executing it to confine their search to particular items whose

seizure was authorized by the issuing magistrate. In United

States Vv. Crozier, 674 F.2d 1293 (9th Cir. 1982), this court held

A-2]

invalid a warrant which permitted the seizure of “material

evidence of violation of 28 U.S.C. § 841, 846. Manufacture and

possession with intent to distribute amphetamine and con-

spiracy.”” /d. at 1299. The warrant in this case suffers from the

same defect of overbreadth. The term “evidence of narcotics

trafficking” did not adequately confine the discretion of the

agents executing the warrant. Andresen Vv. Maryland, 427 US.

463, 480 (1976).

While the telephone warrant which authorized the search of

Lyons Valley Road was overbroad, its invalidity affects only a

few items. Of the evidence seized there and used against Whit-

ten, only the miscellaneous papers linking him to the location

were the product of the warrant search. The methamphetamine

discovered in the house and the drug laboratory discovered in the

shed were in plain view when the officers conducted the protec-

tive sweep. The trial judge properly denied their suppression.

Coolidge vy. New Hampshire, 403 U.S. 443 (1971). The

photographs of the interior were also properly admitted since

they represent only what was plainly visible to the agents in the

course of their initial lawful sweep of the premises.

The papers tying Whitten to the location — a motorcycle

service order made out to Whitten and several automobile regis-

trations in his name — were not in plain view and were

improperly admitted. In the light of all the evidence presented

against Whitten in the case, however, the admission of these

papers was harmless beyond a reasonable doubt and is not a

basis for reversing his convictions. Chapman v. California, 386

U.S. 18, 24 (1967); United States v. Armstrong, 654 F.2d 1328,

1336 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982).

GAIEFSKY'S APPEAL

John Gaiefsky was arrested in the doorway of his room in the

Las Vegas Hilton Hotel on the morning of April 3, 1981. The

testimony at trial of the arresting DEA agent and one of the

arresting police officers establishes that when Gaiefsky answered

A-22

the door, he was immediately arrested and handcuffed and

placed in a chair inside the room. The agent and officers then

searched the room for a gun which their informant had told

them Gaiefsky carried. The gun was found under a pillow on the

bed. Gaiefsky, who was in his underwear, then asked to get

dressed before being taken to jail. The officers handed him his

clothes. At some time while they were in the room, one of the

arresting Officers observed a bottle containing a white powder on

the table next to the chair where Gaiefsky was sitting. The

powder, but not the gun, was received into evidence at the trial.

Gaiefsky moved to suppress the evidence seized in his room on

three grounds. The first two are without merit. He argues that

there was no probable cause for his arrest because the informa-

tion given by Debra Howard was not sufficiently reliable to meet

the test of Aguilar v. Texas, 378 U.S. 108 (1964). That

information was detailed, however, and was corroborated by

police investigation. United States v. Moreno, 569 F.2d 1049,

1052 (9th Cir.), cert. denied, 435 U.S. 972 (1978). The trial

court's finding of probable cause is amply supported. Gaiefsky

also argues that his arrest violated the rule of Payton v. New

York, 445 U.S. 573 (1980), barring warrantless entry to make

an arrest. A doorway, however, unlike the interior of a hotel

room, is a public place. United States v. Santana, 427 U.S. 38

(1976). No warrant was therefore required to make the arrest.

Gaiefsky’s principal argument is that the warrantless entry

into his room violated the Fourth Amendment. The tria! court

denied the motion to suppress, finding exigent circumstances

because “there was a danger of destruction of evidence, flight

and increased danger to the arresting officers.”

“(A] search or seizure carried out on a suspect's premises

without a warrant is per se unreasonable unless the police can

show that it falls within one of the carefully defined set of excep-

tions based on the premise of ‘exigent circumstances.’ ”

A-23

Coolidge ¥. New Hampshire, 403 U.S. 443, 474-75 (1971);

Payton v. New York, 445 U.S. 573, 586 n.25 (1980).

The court below found exigent circumstances based upon

danger of destruction of evidence, flight, and danger to the

arresting officers. There was no evidence of imminent danger of

destruction of evidence in the room; one of the officers testifed

that he had no information that Gaiefsky was in the process of

destroying evidence and did not know whether anyone else was

in the room. There was no evidence of risk of flight or danger to

the officers; Gaiefsky had been handcuffed immediately on his

arrest and no one testified that the officers suspected the

presence of anyone associated with Gaiefsky in the vicinity.

An arrest on probable cause outside the arrestee’s premises

does not “provide its own ‘exigent circumstance’ so as to justify a

warrantless search of the arrestee’s house.” Vale v. Louisiana,

399 U.S. 30, 35 (1970). The burden is on the government to

establish the availability of an exception to the warrant require-

ment. United States v. Jeffers, 342 U.S. 48, 51 (1951). Inas-

much as evidence of exigent circumstances is totally lacking

from the record, the finding to that extent is clearly erroneous.

Nor can the entry into Gaiefsky's room be justified as a search

incident to arrest. At the time of his arrest in the doorway,

Gaiefsky was handcuffed and nothing in the room was within his

reach. The rule of Chimel v. California, 395 U.S. 752 (1969),

“does not permit the arresting officers to lead the accused from

place to place and use his presence in each location to justify a

‘search incident to the arrest.’ United States v. Mason, 523

F.2d 1122, 1126 (D.C. Cir. 1975). If a search of a house is to be

upheld as incident to an arrest, that arrest must take place inside

the house. Vale v. Louisiana, 399 U.S. at 33-34"

* We are not inclined to follow United States v. Burns, 624 F.2d 95

(10th Cir.), cert. denied sub nom. Reynolds v. United States, 449

U.S. 954 (1980), upholding a search using a drug-detecting police

A-24

Finally, there is no evidence from which one could infer that

Gaiefsky consented to the officers’ entry into the room. Although

the testimony is not wholly clear, it appears that Gaiefsky did

not ask to be allowed to dress unti! after the officers had taken

him into the room immediately upon his arrest and without his

consent. Absent such a “specific request or consent,” the officers’

entry was unlawful. United States v. Anthon, 648 F.2d 669, 675

(10th Cir. 1981), cert. denied, 454 U.S. 1164 (1982) (suspect

arrested in hotel hallway wearing a bathing suit and returned to

his room). See also United States v. Kinney, 638 F.2d 941, 945

(6th Cir.), cert. denied, 452 U.S. 918 (1981); Giacalone v. Lucas,

445 F.2d 1238, 1247 (6th Cir. 1971), cert. denied, 405 U.S. 922

(1972) (“Appellant's decision to walk from the dining room to his

bedroom in order to change into more appropriate clothing was

voluntary and consensual.”’).

The rule governing consent searches is clear. “[{W]here the valid-

ity of a search rests on consent, the State has the burden of proving

that the necessary consent was obtained and that it was freely and

voluntarily given, a burden that is not satisfied by showing a mere

submission to a claim of lawful authority.” Florida v. Royer, 51

U.S.L.W. 4293, 4294 (U.S. March 23, 1983). The government has

failed to sustain that burden.

The drugs seized in the room were relevant evidence support-

ing the charges against Gaiefsky in Counts 2 and 6. The admis-

sion of that evidence was not harmless beyond a reasonable

doubt. Chapman vy. California, 386 U.S. 18, 24 (1967). The

conviction on those counts must therefore be reversed.

dog of a motel room whose occupant had been arrested in the door-

way. The court stated that “[g]enerally, a limited, warrantless

search of a motel room incident to the lawful arrest of its occupants

is permissible. ... This principle applies where, as here, the arrest

occurs at an entrance way.” /d. at 101. This statement appears to us

to be inconsistent with Vale and with Chimel, which authorizes a

search only of the area within an arrestee’s “immediate control.”

Chimel, 395 US. at 763.

A-25

SHIMEL’S APPEAL

Appellant Shimel was convicted of two counts of conspiracy to

manufacture and to distribute methamphetamine (Counts | and

2) and of two additional counts of manufacture and of possession

with intent to distribute the drug on August 18, 1981 (Counts 20

and 21). He was sentenced to concurrent five-year terms on the

conspiracy counts and to five-year terms on the two substantive

offenses to run concurrently with each other, but consecutive to

the conspiracy sentences.

On appeal, Shimel challenges the legality of the warrantless

rewinding of the tape machine at Silva Road which led to the

discovery of evidence linking him to the drug operations at

Lyons Valley Road, Alpine. As discussed above, the inadvertent

discovery of the message on the recording machine at Silva Road

did not, in the circumstances, violate appellant's rights under the

Fourth Amendment. He also contests the Alpine search, the

admission of a hearsay statement, and the sufficiency of the

evidence to support his convictions.

Factual Summary

Using false names, Shimel and Whitten negotiated the rental

of the Lyons Valley Road premises in Alpine. Shimel gave the

owner the first and last month’s rent plus a security deposit. In

the course of the search conducted under the authority of the

telephone warrant which we have found to be overbroad, the

DEA agents found the following evidence linking Shimel to drug

manufacture at Lyons Valley Road: an invoice made out to

Shimel discovered in a steel floor safe and a piece of paper with

his signature on it in a pile of clothes on the back porch of the

house. He was charged in Counts 20 and 21 with manufacture of

methamphetamine and with possession with intent to distribute

the drug on August 18, 1981, the date of the Alpine search. Had

the papers seized from the Lyons Valley house been excluded,

the only remaining evidence tying him with the Alpine lab would

A-26

have been the testimony of the owner of the property that she

rented it to Shimel and took cash from him for the deposits.

Search and Seizure

Where illegally seized evidence is introduced at trial, reversal

is mandated unless the prosecution establishes that it was harm-

less beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 24 (1967); Bumper v. North Carolina, 39\ U.S. $43,

550 (1968). Because of the dearth of other evidence linking

Shimel to actual drug manufacture on August 18, 1981, the

admission into evidence of papers connecting him with activities

at the Alpine house and laboratory was clearly prejudicial.

Accordingly, his convictions on Counts 20 and 21 must be

reversed. As discussed in the following paragraphs, however,

there is ample evidence to support his conspiracy convictions

under the Chapman test.

Sufficiency of the Evidence

There remains to be considered appellant's convictions on the

two conspiracy counts. Shimel charges that the evidence was

insufficient to support these convictions. The test for sufficiency

of evidence is whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 US. 307, 319 (1979)

(emphasis in original). The evidence on the conspiracy charges

consisted of a photograph seized at Midway Road showing

Shimel holding a bag of white powder; testimony by Roger Lov-

ing, an indicted coconspirator, that Whitten told him that

Shimel worked for Whitten in Florida and Houston and had

“cooked” for him at the Houston lab; a money order from Pat

Sharp to Shimel for $1,969 dated March 23, 1981; Shimel’s

fingerprint lifted from glassware found in Whitten’s Houston

lab; and testimony that Shimel with Whitten rented the Lyons

Valley Road premises under false names.

A-27

Loving’s statements concerning what Whitten had told him

about Shimel’s involvement in the drug ring were properly

admitted under Rule 801(d)(2)(E) of the Federal Rules of

Evidence as statements of a coconspirator made during and in

furtherance of the conspiracy. Whitten made the statements to

Loving some eight or nine months after the two had met. Lov-

ing’s business had been doing badly and he was in debt. After

meeting Whitten, he started helping him procure and sell drugs,

as well as selling them on his own. His principal contacts with

Whitten in the first months of the relationship were through

Loving’s daughter. Loving testified that he met Shimel while

visting his daughter, and that Whitten told Loving that Shimel

started out with Whitten in Florida, had “cooked” for him in

Houston, and had worked for him “all this time.”

For a statement to qualify as non-hearsay under the cocon-

spirator provision of the Federal Rules of Evidence, the trial

judge must determine that there is sufficient evidence to support

an inference that the statement was made in furtherance of the

conspiracy. United States v. Eubanks, 59\ F.2d 513, 519 (9th

Cir. 1979). Mere conversations or casual admissions of guilt are

not admissible as declarations to advance the objectives of the

conspiracy. United States v. Moore, 522 F.2d 1068, 1077 (9th

Cir.), cert. denied, 423 U.S. 1049 (1976). On the record before

him, the trial judge could reasonably have conclud-d that Whit-

ten’s statements to Loving were intended, in part, to assure Lov-

ing’s continued participation in Whitten’s drug activities. As

such, they were properly admitted under Rule 801(d)(2)(E).

United States v. Anderson, 642 F.2d 281, 285 (9th Cir. 1981);

United States v. Eubanks, §9| F.2d 513, 520 (9th Cir. 1979):

United States v. Jackson, 549 F.2d 517, 533-34 (8th Cir.), cert.

denied, 430 U.S. 985 (1977): United States v. Dorn, 561 F.2d

1252, 1256 (7th Cir. 1977).

"Appellant also charged that the admission of Loving’s statements

violated the Confrontation Clause of the federal constitution. That

A-28

Loving’s statements together with documentary and other

evidence linking Shimel to the Whitten conspiracy adequately

support the jury's verdict on Count | and 2. The jurors could

reasonably have concluded from this evidence that Shimel was

guilty of the conspiracies charged beyond a reasonable doubt.

Jackson Vv. Virginia, 443 U.S. 307, 317 (1979). Accordingly, his

conviction on Counts | and 2 are affirmed.

GISH’S APPEAL

Appellant Gish was convicted of conspiracy to possess

methamphetamine with intent to distribute in violation of 21

U.S.C. § 846 (Count 2). The trial judge sentenced him to three

years. Gish challenges the denial of an evidentiary hearing to

test the contents of an affidavit supporting a search in Lakeway,

Texas, which yielded evidence implicating him in the Whitten

drug ring. He also claims error in the admission of hearsay

evidence during the suppression hearings and in the instructions

given the jury on conspiracy.

Denial of an Evidentiary Hearing

At a pretrial hearing Gish challenged the truthfulnes of a

sworn statement used by the Texas police to procure a search

warrant. Gish claims that the police deliberately falsified the

affidavit accompanying the warrant and that they invented the

informant who provided the tip on which the warrant was based.

The trial judge denied a request to hold an evidentiary hearing

on the issue of veracity.

A defendant is entitled to an evidentiary hearing to test the

contents of an affidavit supporting a warrant if he shows, by a

preponderance of the evidence, that the affiant deliberately or

recklessly made a false statement necessary to establish probable

cause. Franks v. Delaware, 438 U.S. 154 (1978). The officer

issue was not preserved by a proper objection at trial and we do not

consider it here. See United States v. Traylor, 656 F.2d 1326, 1333

& n. 6 (9th Cir. 1981).

A-29

who prepared the affidavit testified that he had a confidential

informant who had been inside the location searched and seen

methamphetamine. Gish failed to make a preliminary showing

that the officer deliberately or recklessly falsified his affidavit. A

Franks hearing was properly denied by the trial judge. United

States ¥. Young Buffalo, $9\ F.2d 506, $10 (9th Cir.), cert.

denied, 44) US. 950 (1979).

Improper Jury Instructions

Gish claims that the jury instructions on conspiracy were con-

fusing and that the judge commented on the evidence. An appel-

late court must review the instructions as a whole and defer toa

trial judge's language unless he abused his discretion. United

States v. Abushi, 682 F.2d 1289, 1299 (9th Cir. 1982). The

instructions on conspiracy, while lengthy, did not misstate the

law and the jury was permitted to refer to a written copy of the

instructions during its deliberations. Appellant's claim of

prejudice is without merit.

Admission of Hearsay Evidence at Pretrial °

Gish claims that the district judge improperly permitted hear-

Say evidence during the extensive pretrial suppression hearings.

He also asserts that pretrial admission of evidence that guns

were present at a number of locations searched prejudiced him

because the indictment contained no weapons charges.

The trial judge is not bound by the hearsay rule in making

preliminary determinations such as whether evidence is admis-

sible at trial. Fed. R. Evid. 104(a); United States v. Matlock,

415 US. 164, 172-74 (1974). And the district judge properly

considered evidence that guns were found at a number of the

sites searched. The presence of guns was relevant to determining

the legality of those searches. The comments of the trial judge

cited by appellant regarding the numerous guns involved in the

case were made out of the hearing of the jury and thus could not

A-30

have prejudiced the triers of fact. Appellant's conviction is there-

fore affirmed.

The Court has considered other claims made by appellants in

this case and finds them to be without merit. The convictions are

affirmed in part and reversed in part in accordance with this

opinion.

A-3]

United States Court of Appeals

For THe NINTH CIRCUIT

UNITED STATES OF AMERICA, ?

Plaintiff-Appellee,

CA Nos. 82-1315

82-1303

ih DC No. 81-1049-T

(Southern California)

(Filed September 30, 1983)

KENNETH JOE WHITTEN,

RICHARD LAWRENCE SHIMEL,

Defendants-Appellants. J

ORDER

Before: FARRIS and ALARCON, Circuit Judges, and

SCHWARZER,® District Judge.

The panel as constituted in the above case has voted to deny

the petitions for rehearing filed by appellants Whitten and

Shimel. Judge Farris and Judge Alarcon have voted to reject the

suggestions for rehearing en banc and Judge Schwarzer would so

recommend.

The full court has been advised of the suggestions for en banc

hearings and no judge of the court has requested a vote on them.

Fed. R. App. P. 35(b).

The petitions for rehearing are denied and the suggestions for

rehearing en banc are rejected.

* The Honorable William W. Schwarzer, United States District Judge

for the Northern District of California, sitting by designation.

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