Petition — Apker v. United States

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83 L é (} () ete on U.S.

No.

OCT 7 1983

IN THE ALEXANDER L. STEVaS,

CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1983

GARY D. APKER,

CALVIN DAVENPORT,

RAYMOND GEARHART,

a/k/a "Buzzard",

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of

Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN R. WYLDE

JACK S. NORDBY

430 Oak Grove St., #205

Minneapolis, MN 55403

(612) 874-6426

ALAN CAPLAN

1741 East 24th Street

Cleveland, OH 44114

COUNSEL FOR PETITIONERS

QUESTIONS PRESENTED

Are search warrants purporting to

allow seizure of "indicia" of memberships

in associations not per se illegal ever

consistent with First Amendment rights of

assembly? Can the judicially created

"inevitable discovery” exception to the

exlusionary rule, about which the circuits

are in conflict, be used to prevent sup-

pression of items seized under the pur-

ported authority of an "indicia" warrant

found to be unacceptable according to

Fourth Amendment principles?

In this case the appellate court,

paying but slight attention to First

Amendment considerations, generally

approved, in a case of first impression,

"indicia" warrants but found the particu-

lar warrants to be insufficient to meet

Fourth Amendment criteria. The court

refused to order suppression of the

illegal seized items, holding that their

nt .

“ Sr eet Oe? we

2 Tae int ee eee

discovery was inevitable during the course

of a second state warranted search. The

court found no significance in the fact

that the state warrants could have been

based upon the fruits of the first search,

which was conducted pursuant to the purpor-

ted authority of the prior invalid federal

warrant.

Neither the validity of "indicia" war-

rants nor the rule of "inevitable dis-

covery” have been examined by this Court.

The former is an issue but recently pre-

sented to two federal appellate courts

whose reasoning appears to conflict. The

later issue has been resolved in opposite

ways by the several federal appellate

courts.

REPORTS OF OPINIONS BELOW

The opinion below appears at 705 F.2d

293 (8th Cir. 1983).

JURISDICTION

Date of Judgment Sought to be

Reviewed: April 24, 1983.

Date of Order Denying Rehearing:

August 8, 1983.

Statutory Provision Believed to Con-

fer Jurisdiction: 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS

Amendment I

Congress shall make no law respect-

ing an establishment of religion, or pro-

hibiting the free exercise thereof; or #

abridging the freedom of speech, or of the

press; or the right of the people peace-

ably to assemble, and to petition the

Government for a redress of grievances.

Amendment IV

The right of the people to be secure

in their persons, houses, papers, and

iii

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things to

be seized.

TABLE OF CONTENTS

Questions Presented ......+e6-s. i

Reports of Opinions Below ..... iii

WUPeROBGCiGh.« « « co « 6 oc eo 6 se o. SO

Constitutional Provisions ..... iii

Table of Authorities .......e.-s v

Statement of the Case ...... .- 1

Argument... 2s sce ce cece e es 11

Comgiusion .« esc eceseseee 21

APPENDIX INDEX

Opinion of the United States Court of

Appeals for the Eighth Circuit .. A-l

Order Denying Rehearing ..... . A-72

TABLE OF AUTHORITIES

Court Decisions:

Gibson v. Florida Legislative Investiga-

tion Committee, 372 U.S. 534

| GE car ane ea ae 1l

NAACP v. Alabama ex rel. Patterson, "357

U.S. 449 (1958) .. ° 1l

United States v. Griffin, 502 p, 24a 959

(6th Cir. 1974). ... 15

United States v. Rubio, 703. F. 124 1124

(9th Cir. 1983). ... . at va 12

Warden v. Hayden, 387 U.S. 294

(3967) . 2 « « 12

Zurcher v. Stanford “Daily, 436 U. s. "547

—

ee Ges @ 6 8 Oe, 6 ee wt ee

U.S. Constitutional Provisions:

Amendment IT ..«e«e 12, 13, 14, 39, 21

Amendment IV... . 13, 14, 16, 19, 21

Rules and Statutes:

Dea. Beene base «.« «se 2 ¢ « iii

In The

SUPREME COURT OF THE UNITED STATES

October Term 1983

No.

GARY D. APKER,

CALVIN DAVENPORT,

- RAYMOND GEARHART,

a/k/a "Buzzard",

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

The facts relative to the resolutions

of the issues raised by this petition are

succinctly presented by the appellate

court in its opinion.-— In the interest

of brevity they will not be completly re-

cited except as necessary to emphasize the

importance of this case.

Petitioners and seven others2/ were

charged in a three count indictment by a

grand jury in the District of Nebraska on

February 27, 1981. Count I charged all

with conspiring to distribute methamphe-

tamine. Counts II and III charged peti-

tioner Apker and four others with posses-

sion of the same drug with intent to

distribute in 1978 and 1976 respectively.

Count I alleged that the conspiracy, nine

years in duration, was conducted through

the Hells Angels Motorcycle Club. All

YVintra pp. A-1l through A-71l.

2/o¢ those ten, six, including Peti-

tioners were jointly tried. Judgments of

Acquittal discharged one, a second did not

appeal, and a petition for rehearing is

currently pending with respect to the third.

“A

defendants were past or present members

of the club with one exception, and she

was the widow of a member, 2/

After the indictment was returned,

arrest warrants were obtained for each of

the defendants named therein, and search

warrants for the purported residence of

the defendants authorizing a search for

"indicia" of membership in, and/or associa-

tion with, the Hells Angels Motorcycle

Club. Bail was set on the warrants in

the amount of $200,000 cash for each

defendant.

At approximately 4:00 a.m. on Feb-

ruary 28, teams of law enforcement officers

from the United States Attorneys Office,

U.S. Bureau of Alcohol, Tobacco, and

Firearms (AFT), U.S. Drug Enforcement

Agency (DEA), Nebraska State Patrol (NSP),

nis is the defendant whose peti-

tion for rehearing is still pending.

a %

gilt ee ae

Zh z “ y 7 ae * ah ee f

Douglas County Sheriff's Office (DCSO),

and Omaha Police Division (OPD) met at

OPD headquarters. There they were add-

ressed by various Federal and local offi-

cers with respect to plans and procedures

for executing the arrest and indicia search

warrants, including Acting United States

Attorney Thomas Thalken and the head of

the OPD Special Intelligence Unit, Lt.

Michael Fleharty.

At the briefing those present were

told that in executing the indicia search

warrant they should be looking for property

that would document affiliation with the

Hells Angels. They were given to under-

stand that they could open every drawer

in any residence, and that even a sealed

envelope could be opened to determine

whether or not there might be something

inside that would relate to membership in

or association with the Hells Angels Motor-

cycle Club.

They were told that each officer

involved in the execution of the indicia

search warrant should individually decide

whether or not a particular item should be

seized. They were further given to under-

stand that their discretion in this regard

was unlimited.

Despite the fact that the indicia

search warrant did not mention firearms or

controlled substances, those present at the

briefing were told to be on the lookout for

guns and drugs. They were also told that,

in the event that suspected controlled

substances were observed during the execu-

tion of the federal indicia search warrant,

machinery had been establised to obtain a

State of Nebraska search warrant quickly.

A judge or magistrate was standing by, and

typists and other state and federal law

enforcement leadership personnel, includ-

ing Lt. Fleharty and acting U.S. Attorney

Thalken, were available to assist in this

process.

During the execution of the two

federal warrants drugs and guns were dis-

covered at the various residence where

petitioners were arrested. These items

were seized. State search warrants for

the seizure of drugs were issued by the

personnel who were standing by and subse-

quently executed. A superceding indictment

containing fifteen Counts was returned on

April 23. This indictment added counts of

possession of controlled substances (seized

on February 28) with intent to distribute

as well as unlawful possession of firearms

by felons.

“otions for Judgment of Acquittal at

the close of the government's case on the

conspiracy counts were granted in favor of

all defendants. The jury returned guilty

verdicts of the lesser offense of posses-

sion of controlled substances on those

counts which charged possession with intent

to distribute, and convicted petitioners

of unlawful possession of firearms. It is

these convictions which were appealed.

The “indicia” warrants purported to

authorize the seizure of specific articles

of clothing distinctive to the club,

plaques and mirrors inscribed with the

club name, “other items which give the

names of members of the Hells Angels,”

photographs of club members, lists of

members locally and nationally, and club

records and papers to determine membership.

The affidavits recited that these articles

were necessary to establish association

with the club to prove involvement in the

alleged conspiratorial activities.

Before the appellate court petitioners

contended that the federal “indicia” war-

rants were invalid as an infringement upon

First Amendment rights to Freedom of

Association. The appellate court was

faced with a case of first impression.

Indeed, the issue has been presented to

only one other federal appellant court,

the Court of Appeals for the Ninth Circuit,

in a case which was being considered

Simultaneously. These courts did not agree

on the appropriate disposition of the issue,

positions which will be considered in more

detail in the Argument. The Eighth Circuit

rejected petitioners’ First Amendment

claims, and decided the case almost exclu-

sively on a Fourth Amendment analysis.

The court found that there was a suffi-

cient nexus between the items sought in

the "indicia" warrants and the alleged

criminal behavior to support their issu-

ance. The court did, nevertheless, hold

the warrants to be invalid by applying

the doctrine of "scrupulous exactitude”

to the particularity requirement of the

Fourth Amendment because of the First

Amendment protection applicable to member-

ship in the Hells Angels Motorcycle Club.

Although the court was satisfied that the

izems of clothing were described with

sufficient particularity the "other items”

authorized to be seized to determine club

membership were not.

Petitioners also argued that the

warrants violated the Fourth Amendment

in that they were but a pretext for gaining

entry to the residences to conduct general

searches for guns and drugs, and that they

were overly broad and not issued upon pro-

bable cause. The appellate court observed

that the pretextual argument was not

frivolous but did not vitiate the warrant

on those grounds as applying a “clearly

erroneous" standard.

Despite holding the "indicia" warrants

invalid, however, the appellate court con-

cluded that suppression was not required

by applying, for the first time in the

Eighth Circuit, an “inevitable discovery"

exception to the exclusionary rule.

The court concluded that some police

activity could surround the execution of

the valid federal arrest warrants and that

the later state search warrants issued for

the seizure of drugs would have resulted

in the inevitable discovery, not only of

drugs but the firearms. ;

The Judgment of appellate court was

entered on April 19, 1983, and a petition

for rehearing was denied on August 8,

1983.4/

4/tntra, pp. A-72.

ARGUMENT

THIS CASE PRESENTS SPECIAL AND

IMPORTANT REASONS WHY THIS

COURT SHOULD REVIEW THE

OPINION OF THE COURT BELOW:

THE CONSTITUTIONAL IMPLICA-

TIONS OF INDICIA SEARCH

WARRANTS, AN ISSUE WHICH

HAS BEEN PRESENTED TO BUT

ONE OTHER FEDERAL COURT OF

APPEALS AND HAS NOT BEEN

RULED UPON BY THIS COURT;

AND THE INEVITABLE DISCOVERY

EXCEPTION TO THE EXCLUSIONARY

RULE CONCERNING WHICH THERE

IS A CONFLICT AMONG FEDERAL

COURTS OF APPEAL.

The Eighth Circuit did not reach the

First Amendment claims of petitioners

justifying invalidation of the "indicia"

warrants, deciding that its "sufficient

nexus" conclusion was dispositive. The

Court did, however, recognize the possible

First Amendment implications of the "indi-

cia" warrants, citing Gibson v. Florida

Legislative Investigation Committee, 372

U.S. 539 (1963) and NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449 (1958). The

court concluded, nevertheless, that proof

of membership in the club would "help show

appellants’ associations with each other

and their opportunity to use the Hells

Angels organization for illegal activi-

ties .2/

The Ninth Circuit was presented with

an identical issue-in United States v. Rubio,

703 F.2d 1124 (9th Cir. 1983). The Rubio

court placed greater First Amendment sig-

nificance on membership in a group or

association not per se illegal, even faced

with a allegation of illegal activity by

some individual members of the association.

Establishing an association does not

establish support for a warrant for the

seizure of indicia of that association.

Nor would the "mere evidence" rule of

Warden v. Hayden®/ support the warrant

3/705 F.2a 293, 298 (8th Cir. 1983)

(emphasis supplied).

7387 U.S. 294 (1967).

according to Rubio court. [W]Jhere there

is no allegation that the enterprise is

wholly illegitimate .. . evidence of mere

association would not necessarily aid in

obtaining a conviction. "2/

This court must mandate a more scrupu-

lous adherence to the right of freedom of

association. To justify a First Amendment

infringement by reliance upon the word

"particularly" in the Fourth Amendment is

far too tenuous a "safeguard" of the people

to peacefully assemble. Why is the seizure

of a particular article of clothing appro-

ved when the seizure of other items pro-

tected by the First Amendment is decried?

Is it permissible to seize a membership

roster merely because a police officer can

generally describe its container?

There has never been a suggestion in

this case that the warrants were issued

Y ya. at p. 1129.

for any purpose other than to seize evi-

dence of petitioners' membership in the

Hells Angels Motorcycle Club (unless it

is the pretextual possibilities of the

search spoken of by the appellate court),

and here lies the rub of any “indicia”

search warrants. The government can allege

that any organization is engaged in crim-

inal activity, preferably conspiratorial

in nature, and launch an exploratory search

for particularly described evidence of

association, as opposed to particularly

described evidence of wrongdoing, which

may yield evidence of possible criminal

activity.

The analysis by the Eighth Circuit

is simply not satisfactory. The Fourth

Amendment intrusion into areas protected

by the First Amendment deserves at least

as careful an exposition as that provided

by the Ninth Circuit and more. To repeat,

protection is not provided by requiring

merely a particularized description of the

indicia of association, rather it is the

particularized description of a subject's

criminal activity which must be required.

The principle of Zurcher v. Stanford

Daily®/should apply at the threshold of

the residence and not merely after entry

has been attained.

After holding the "indicia" warrant

invalid, the appellate court adopted an

"inevitable discovery" rule and applied it

to avoid suppression of the guns which are

predicate for the instant convictions.

The Sixth Circuit has rejected this

rule in United States v. Griffin, 502 F.2d

959, 961 (6th Cir.), cert. denied, 419 U.S.

1050 (1974). That court held that such

speculation is beyond judicial review and

would “tend in actual practice to emascu-

late the search warrant requirement of

8/436 U.S. 547 (1978).

the Fourth Amendment . "2/ Although, as the

Eighth Circuit Court of Appeals pointed out,

the majority of federal appellate courts

have embraced this "exception" to the exclu-

sionary rule, it is submitted that this

Court should take this opportunity to prune

such a speculative concept from the Fourth

Amendment. In any event, the circumstances

of this case do not admit of any such doc-

trine, and the appellate court was incor-

rect in applying it here.

The appellate court held that although

the warrants and seizures of the firearms

were invalid, the firearms would have been

discovered under the later state warrants

for drugs, based on so-called “plain view"

cbservations. The appellate court accepted

the government's position that even if the

guns were seized under the invalid federal

warrants before the state warrants were

obtained the "inevitable discovery" rule

operates to frustrate suppression. This

eee

reasoning overlooks several important

facts.

In the first place, the "indicia"

searches were unlawful ab initio, and even

if the entries were lawful they would only

have justified arrests and not searches;

the contraband was discovered during the

"indicia search," beyond the scope of

apprehending the suspects and securing

the premises.

Secondly, the officers had been

specifically briefed and instructed to

look for firearms and drugs, thus, the

finding of these items could not possibly

be "inadvertent" or justified under any

plain view doctrine.

Thirdly, no warrants were ever ob-

tained for seizure of the firearms; the

later state-issued warrants were only for

drugs, and no logical or Constitutional

distinction can justify seizure of the

firearms without benefit of warrants.

The appellate court, incongruously,

despite its application of the "inevitable

discovery” rule, rejected the government's

proferred "plain view-severance” rationale

(adopted by Judge Bright, dissenting (in part)

holding that “indicia warrants by their

very nature are potentially subject to

abuse." Yet it was only by an even more

dangerous and attenuated application of a

"plain view" species of rationale-the

"inevitable discovery" theory-that the

court affirmed these convictions.

It is, therefore, contended that the

reasoning of the Sixth Circuit in Griffin

is correct, and that any concept of inevi-

table discovery can involve merely judicial

speculation beyond the realm of valid appel-

late activity. Such a rule should be re-

jected by this Court, and this case pro-

vides an excellent opportunity for doing

so. The existence of the state warrants

should not undermine this positinn as the

appellate court indicated that its appli-

cation of the inevitable discovery rule

is operative regardless of the timing of

the discovery of the firearms.

As a concluding thrust petitioners

urge this court to consider the pretextual

ramifications of the warrants in this case,

a point not lost upon the appellate court,

to exercise its jurisdiction to vitiate

at least this indicia warrant and the

application of the inevitable discovery

rule at least in this case. The highly

sensitive First and Fourth Amendment

aspects of the “indicia” warrants them-

selves, distinguish this case from the

“inevitable discovery" cases relied upon

by the appellate court. The appellate

court did observe that pretexts can at

time go unnoticed by a magistrate and

the possibility of an almost unlimited

search may prove very tempting for law

enforcement officials.

After first recognizing that the

Claims of pretext by petitioners were "not

frivolous" the appellate court, neverthe-

less, refused to invalidate the search on

those grounds, overlooking several facts:

(1) the officers conducting these highly

organized simultaneous searches (based only

on the conspiracy charges and "indicia"

warrants) were told to expect to find fire-

arms and drugs; (2) machinery was in place

to obtain drug warrants, but no effort or

plans were even made to obtain firearm

warrants; (3) the federal magistrate who

issued the indicia warrants was not infor-

med of these expectations and intentions;

(4) the officers were given and in fact

exercised unlimited discretion in their

broad and probing searches under the pre-

text of the "indicia" warrant; (5) certain

items were seized which were utterly be-

yond any of the warrants or even the "in-

evitable discovery" rationale. Nothing

supports a finding that the searches and

seizures were anything but pretextual; on

the contrary all of the facts confirm it.

The grave threat to individual liberties

guaranteed by the First and Fourth Amend-

ments which are posed by such clearly non-

frivolous and factually supported claims

that the searches were pretextual in nature

is another factor clearly deserving of this

Court's consideration.

CONCLUSION

This case is a uniquely appropriate

one to bring before this Court at this

early opportunity the question of the val-

idity and/or permissible scope for "indicia"

search warrants as well as standards, if

any, for this issuance and use. This is

one of but two cases which have been

decided by federal appellate courts invol-

ving this issue and neither court, while

somewhat in conflict, fully address the

significant problems which are presented.

Further, this case gives this Court

an appropriate forum from which to address

the concept of an "inevitable discovery”

exception to the exclusionary rule, con-

cerning which there is a conflict among the

circuits. This is a singular case for this

issue either in general or under the

specific facts herein.

Respectfully submitted,

JOHN R. WYLDE

JACK S. NORDBY

430 Oak Grove St.

Suite 205

Minneapolis, MN 55403

ALAN CAPLAN

1741 E. 24th Street

Cleveland, OH 44114

Counsel for Petitioners

A-1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-1168

United States of America, ad

Appellee, ed

Vv. *

Gary D. Apker, ad

Appellant. id

No. 82-1169

United States of America, *

Appellee, *

Vv. *

Calvin Davenport, ad

Appellant.

No. 82-1201

United States of America, *

Appellee, *

Vv. *

Raymond Gearhart *

a/k/a "Buzzard," *

Appellant. *

United States of America, bd

Appellee, *

Vv. *

Janice Fitzgerald, *

”

Appellant. *

Submitted: December 15, 1982

Filed: April 19, 1983

Before BRIGHT, Circuit Judge, FLOYD R.

GIBSON, Senior Circuit Judge, and

McMILLIAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Gary Apker, Calvin Davenport, Ray-

mond Gearhart, and Janice Fitzgerald each

appeals a conviction under 18 U.S.C. app.

§ 1202(a) (1) (1976) for being a felon in

possession of a firearm. They make two

major arguments: (1) the searches which

produced the firearms admitted against

them were executed pursuant to warrants

which were invalid under both the Fourth

and First Amendments, and (2) they were

prejudiced by the joinder of a conspiracy

count with the counts from which they

appeal,

We find that the warrants violated

the Fourth Amendment particularity re-

quirement, but that the joinder was not

prejudicial. We also find that the fire-

arms admitted against Apker, Davenport,

and Gearhart were nevertheless properly

admitted under an exception to the exclu-

A-4

sionary rule and therefore their convic-

tions are affirmed. The firearms admitted

against Fitzgerald should have been exclu-

ded and therefore her conviction is re-

versed.

I. Facts

Apker, Davenport, and Gearhart are

members of the Hells Angels of Omaha and

Fitzgerald is the widow of a Hells Angels

member. On February 18, 1981 a grand

jury in the District of Nebraska returned

a three-count indictment against the four

appellants and six other persons. The

indictment alleged that the indictees

were members of the Hells Angels (or in

Fitzgerald's case, an associate), and

that as members they were involved in a

conspiracy to distribute methamphetamine

in violation of 21 U.S.C. §§ 841(a) (1)

and 846 (1976). The indictment charged

that as part of the conspiracy the Hells

Angels attempted to gain a monopoly on

A-5

the methamphetamine traffic in Omaha and

used threats, beatings, torture, and mur-

der against persons who distributed meth-

amphetamines not acquired from the Hells

Angels. Pursuant to the indictment,

arrest warrants were obtained.

On February 27, 1982, "indicia search

warrants" also were obtained for premises

alleged to be the residences of some of

the indictees, including all four appel-

lants. The indicia warrants did not

authorize the seizure of contraband or

fruits or instrumentalities of crime.

Rather, they authorized the seizure of

indicia of membership in the Hells Angels.

All the indicia warrants were identical

in their description of the things to be

seized. The entire description is as

follows:

A. Sleeveless leather and

jean jackets with a Death's

Head insignia with wings on

the back with the notation

"Hell's Angels” written

A-6

above the Death's Head and

the state that the party

is a member of, in this

case Nebraska, is written

beneath the Death's Head

symbol (commonly and here-

after referred to as

"Hells Angels's Colors").

B. A metal belt buckle

which states "Hell's

Angels" on it.

C. Certain plaques, mirrors

and other items which give

the names of members of

the Hell's Angels.

D. Photographs which depict

the association of members

of the Hell's Angels.

E. Telephone books with

telephone numbers listed

therein of members of

the Hell's Angels, which

includes local and na-

tional members.

F. Certain papers relating

to Club activities,

expenditures, financial

records, Club rules and

regulations.

G. Red T-shirts with

"Hell's Angels” printed

on them.

The affidavit supporting the search

warrants said the indicia were necessary

A-7

because proving the indictees'associations

with the Hells Angels was necessary to

prove their involvement in the alleged

Hells Angels drug conspiracy.

The arrest and search warrants were

executed at approximately 7:00 a.m. on

February 28, 1981, by teams of federal

and state law enforcement officers. Be-

fore the warrants were served the officers

met at the Omaha police headquarters and

were briefed as to the execution of the

warrants. They were told that appellants

had felony convictions and therefore

could not lawfully possess firearms. They

were told to be on the lookout for guns

and drugs. They were also told that a

judge would be standing by to execute

state search warrants if drugs were

found,

Apker, Davenport, and Gearhart were

served at residences they were apparently

« Sakae 4

A-8

sharing with a woman.+ Guns and drugs

were found at each residence. Fitzgerald

was served at a residence where another

woman was present. Guns, but not drugs,

were found at her residence. The discov-

ery of the drugs lead to state search

warrants which were executed the same

morning. On April 23, 1981, the super-

seding indictment, under which appellants

were tried, charged all four appellants

with being felons in possession of fire-

arms and charged Apker, Davenport and

Gearhart with possession of a controlled

substance with intent to distribute.

Jury selection for the trial of

appellants and two others“ began on Sep-

lone residence at which Davenport was

found was apparently the woman's. There

was some dispute as to whether the other

residences were those of appellants or not.

The evidence on this point is discussed

at pages 19, 28-30, infra.

2of the ten persons indicted, only

six were tried because the other four

remained at large.

A-9

tember 2, 1981, and the government's

opening statement came one month later.

On November 3, 1981, the district court?

dismissed the conspiracy counts. The

remaining counts were submitted co the

jury on November 12, 1981, and the ver-

dicts were returned on November 25, 1981.

Apker, Davenport, and Gearhart were

found guilty of simple possession of a

controlled substance, rather than posses-

sion with intent to distribute. Each

received a sentence of one year for

these counts and they do not appeal the

drug convictions. All four appellants

were found guilty of being a felon in

possession of a firearm and received

two-year sentences. It is the firearm

3the Honorable Albert G. Schatz,

United States District Judge, District

of Nebraska.

A-10

convictions that are being appealed. 4

II. Validity of the Indica Warrants

Appellants argue that the indicia

warrants are invalid because they vio-

late both the Fourth Amendment and the

First Amendment. In evaluating these

Claims we are largely writing on a clean

slate. Counsel have informed us that to

the best of their knowledge indicia war-

rants have been used only once before

their use in the instant case. These

were obtained in June 1979 in connection

with the prosecution of California Hells

Angels members under the Racketeer Influ-

enced and Corrupt Organizations Act (RICO).

40of the other two defendants tried

with appellants, one was charged only on

one conspiracy count and the court dis-

missed that count. The other defendant

was convicted only on a charge of simple

possession of a controlled substance, was

sentenced to one year, and apparently has

not appealed. All defendants were given

credit for the nine months they spent in

jail pending rial. Appellants’ sentences

were stayed pending appeal.

A-1l

18 U.S.C. § 1962(c) (1976). One appellate

court decision discusses the indicia war-

rants, United States v. Chesher, 678 F.2d

1353 (9th Cir. 1982), but it was decided

on an issue not raised in the instant

case. The Chesher court ruled that the

defendant was entitled to a hearing on

the issue of whether probable cause was

based on a recklessly false statement,

and that tne indicia warrant issued was

not justified without finding proof of

his current associations with the Hells

Angels. Id. at 1362-64. Another case

dealing with the same set of indicia

warrants involved in Chesher is now

pending before the Ninth Circuit. United

States v. Rubio, No. 80-1577 (9th Cir.).

A. Fourth Amendment

Appellants’ Fourth Amendment argu-

ments can be put into four groups: (1)

indicia of membership in a legal organiza-

tion, i.e., the Helis Angeis, cannot be

A-12

the proper subject of a search because

there is not a sufficient nexus between

the evidence sought and the crime being

investigated, (2) the warrants had the

effect of being general warrants because

they failed to describe the things to be

seized with sufficient particularity,

(3) the affidavit supporting the applica-

tion for the search warrants did not

establish probable cause to believe that

there would be indicia of membership in

the Hells Angels at the searched premises,

and (4) the indicia warrants were obtained

as a pretext to search for guns and

drugs.> We find that there was a suffi-

cient nexus between the indicia of mem-

bership in the Hells Angels Motorcycle

Club of Nebraska (Hells Angels) and the

Sappellants have not framed their

issues precisely as we have, but we feel

our statement of the issues makes for

better understanding and analysis of

appellants’ arguements.

is a

A-13

crime charged, there was probable cause

for the warrants, and the warrants were

not pretextual. However, we find that in

light of the heightened scrutiny required

by the First Amendment interests involved,

the warrants failed to describe the items

to be seized with sufficient particularity,

and therefore the warrants were invalid

under the Fourth Amendment.

1. Indicia as the Valid Subject of

a Search: The Nexus Requirement.

Appellants’ first Fourth Amendment

issue is whether there is a sufficient

nexus between membership in a legal organ-

ization (the Hells Angels) and criminal

activity so as to justify a search for

indicia of membership. Appellants argue

there was no nexus between membership and

illegal activity. The government argues

that the indictment's allegation that one

of the purposes of the Hells Angels was

a criminal conspiracy establishes a nexus

A-14

between membership and criminal activity.

The rule is well settled that police

searches are not limited to instrumenta-

lities or fruits of crime or contraband.

Police can search for "mere evidence” of

crime if there is a nexus between the item

to be seized and criminal behavior. Warden

v. Hayden, 387 U.S. 294, 307 (1967). A

magistrate must determine whether there is

probable cause to believe that the evidence

sought will "aid in a particular apprehen-

sion or conviction.” Id. When dealing

with fruits, instrumentalities, or contra-

band, the nexus between the item to be

seized and criminal behavior is automati-

cally provided. But in the case of "mere

evidence," such as the indicia of member-

ship in the Hells Angels, finding the

nexus can be more difficult.

The government puts forth two justi-

fications for a search for indicia of

membership in the Hells Angels. The first

A-15

is that appellants' membership in the

Hells Angels would tend to show their

association with each other in support

of the conspiracy charge. The second is

that proof of membership would help estab-

lish the charge in the indictment that

appellants and others used the Hells

Angels organization for criminal activity,

i.e., controlling the methamphetamine

traffic in Omaha. There can be no doubt

that establishing appellants’ membership

in the Hells Angels would not establish

that they were engaged in an illegal

conspiracy; however, we believe that

proof of membership in the Hells Angels

would "aid in a particular .. . convic-

tion" because such proof would be proba-

tive on the issue. Proof of membership

would help show appellants' associations

with each other and their opportunity to

use the Hells Angels organization for

illegal activities.

A-16

A wide variety of items might be

admitted into evidence in a conspiracy

trial; the district court has particularly

broad discretion in a conspiracy trial in

determining which items will be admitted

into evidence. United States v. Skillman,

442 F.2d 542, 551-52 (8th Cir.), cert.

denied, 404 U.S. 833 (1971). We have held

that proof of association with a political

organization is admissible in a conspiracy

trial to show the association of defendants

with each other. United States v. Baum-

garten, 517 F.2d 1020, 1029 (8th Cir.),

cert. denied, 423 U.S. 878 (1975) (evidence

concerning the history of Students for a

Democratic Society relevant and admissible

to show the association of defendants with

one another). While proof of association

or acquaintance alone is not enough to

establish the conspiracy, it has suffi-

cient bearing on the issue to make it

admissible. United States v. Giese, 597

A-17

F.2d 1170, 1187 (9th Cir.), cert. denied,

444 U.S. 979 (1979). Furthermore, evi-

dence of appellants’ association with the

Hells Angels would help to prove their

opportunity to use the Hells Angels organ-

ization for criminal activities.

Appellants suggest that their First

Amendment right of association is involved

in this case and we should examine the

nexus requirement with more scrutiny when

the First Amendment is involved. While

the Supreme Court has indicated that a

higher standard of scrutiny is necessary

in Fourth Amendment cases with First

Amendment implications, it has done so in

the context of applying the Fourth Amend-

ment particularity requirement. Stanford

v. Texas, 379 U.S. 476, 485 (1965);

Zurcher v. Stanford Daily, 436 U.S. 547,

564 (1978). We discuss this heightened

scrutiny as it relates to the particular-

ity requirement at pages 12-14, infra.

A-18

Appellants also argue the indicia had

no relevance because they had freely pro-

claimed their association with the Hells

Angels. However, the police cannot be

expected to know what elements of proof

suspects will concede. Indeed, perhaps it

is only because of the evidence seized

that appellants have been willing to con-

cede membership in the Hells Angels. It

is entirely possible that in some cases

the indicia of membership would provide

crucial evidence in a case, either to show

the association of the alleged co-conspira-

tors with each other or to show that the

mode of operation of the conspirators was

to use the Hells Angels organization.

Therefore, we find that there is a suffi-

ciently close nexus between the items

seized and alleged criminal behavior.

2. Particularity in the Description

of the Items to be Seized.

The second major Fourth Amendment

A-19

issue is whether the indicia warrants

satisfied the Fourth Amendment require-

ment that warrants "particularly describ[e]

the... things to be seized." Some

items were described with specificity,

such as Hells Angels leather and jean

jackets, red Hells Angels T-shirts, a

Hells Angels belt buckle, and photographs

depicting the association of members of

the Hells Angels. Other items were less

specific, such as telephone books with

the number of Hells Angels members (local

and national) and papers relating to Hells

Angels activities, expenditures, rules

and regulations. The broadest description

was for "items which give the names of

A-20

members of the Hells Angels."®

a. General Principles.

The Supreme Court has repeatedly

stated the underlying considerations be-

hind the particularity requirement. The

requirement "makes general searches...

impossible and prevents the seizure of

one thing under a warrant describing

another. As to what is to be taken,

nothing is left to the discretion of the

officer executing the warrant." Andresen

v. Maryland, 427 U.S. 463, 480 (1976),

quoting Stanford v. Texas, 379 U.S. at 485.

6The warrants authorized searches for

“certain plaques, mirrors and other items

which give the names of members of the

Hells Angels." We do not see the words

“plaques and mirrors” as significantly

limiting the scope of the phrase "other

items." No class of objects is readiiy

apparent to us that would be defined by

"plaques and mirrors," so as to limit the

scope of the phrase “other items." Com-

are Andresen v. Md., 427 U.S. 463, 480-

fT (1576) (phrase “evidence of crime"

refers only to evidence of the crime

described in the warrant).

A-21

See also United States v. Clark, 531 F.2d

928, 931 (8th Cir. 1976). The problem

posed by a general warrant " is not of

intrusion per se, but of a general, explo-

ratory rummaging in a person's belongings.”

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

467 (1971). In applying the particularity

requirement, we recognize that "the degree

of specificity required is flexible and

may vary depending on the circumstances

and the type of items involved." United

States v. Muckenthaler, 584 F.2d 240, 245

(8th Cir. 1978). The Supreme Court has

said: "A seizure reasonable as to one

type of material in one setting may be

unreasonable in a different setting or

with respect to another kind of material."

Roaden v. Kentucky, 413 U.S. 496, 501 (1973).

- The district court, in finding that

the indicia warrants met the particularity

requirement, relied on United States v.

Dennis, 625 F.2d 782 (8th Cir. 1980) and

A-22

Andresen, 427 U.S. 463. Dennis dealt

with a defendant charged with loansharking.

Federal authorities obtained a search

warrant for "certain books and records (or

items of evidence) relating to the extor-

tionate credit transaction business." We

held that the warrant in Dennis was valid

because "(w]here the precise identity of

goods cannot be ascertained at the time

the warrant is issued, naming only the

generic class of items will suffice because

less particularity can be reasonably ex-

pected than for goods (such as those

stolen) whose exact identity is already

known at the time of issuance.” 625 U.S.

at 792, quoting United States v. Johnson,

541 F.2d 1311,

1314 (8th Cir. 1976); see also United

States v. Coppage, 635 F.2d 683, 687 (8th

Cir. 1980) (warrant found valid which

authorized search for “books, records,

chemical equipment, and personal papers

A-23

relating to the manufacture and distribu-

tion of methamohetamine"). The language

of the warrant in Dennis was very similar

to that of the indicia warrants issued

here. However, we must follow the princi-

ples of Roaden and Muckenthaler and examine

the totality of the circumstances--includ-

ing the First Amendment interests involved,

the nature of the items to be seized, and

the nature of an indicia warrant.

b. Level of Scrutiny: "Scrupulous

Exactitude,."

Appellants argue that we should exa-

mine the warrants with more scrutiny because

First Amendment associational rights are

involved. The Supreme Court has stated:

"Where the materials sought to be seized

may be protected by the First Amendment,

the requirements of the Fourth Amendment

must be applied with ‘scrupulous exacti-

tude.'" Zurcher, 436 U.S. at 564, quoting

Stanford v. Texas, 379 U.S. at 485. In

.s,

A-24

Stanford v. Texas, a warrant authorized

the seizure of "books, records, pamphlets,

cards, receipts, lists, memoranda, pcitures,

recordings and other written instruments

concerning the Communist Party of Texas."

The Supreme Court held that the warrant

was to braod, in violation of the Fourth

Amendment particularity requirement. 379

U.S. at 478-80, 486. The Supreme Court

stated: "[T]he constitutional requirement

that warrants must particularly describe

the 'things to be seized' is to be accorded

the most scrupulous exactitude when the

‘things' are books, and the basis for

their seizure is the ideas which they con-

tain... . No less a standard could be

faithful to First Amendment freedoms."

379 U.S. at 485 (citations and footnote

omitted), The language of the instant

warrants is similar to that in the

Stanford v. Texas warrant.

A-25

In Zurcher the "scrupulous exactitude"

standard was applied. The Supreme Court

upheld the search of a newspaper's office

for photgraphs of a violent clash between

demonstrators and police at the Stanford

University Hospital. The Court emphasized

that the "scrupulous exactitude" standard

does not erect a barrier to searches:

[T]he prior cases do no more

than insist that the courts

apply the warrant require-

ments with particular exact~-

itude when First Amendment

interests would be endangered

by the search. As we see it,

no more than this is required

where the warrant requested

is for the seizure of criminal

evidence reasonably believed

to be on the premises occupied

by a newspaper. Properly

administered, the precondi-

tions for a warrant--probable

cause, specificity with res-

pect to the place to be

searched and the items to be

seized, the overall reason-

ableness--should afford suffi-

cient protection against the

harms that are assertedly

threatened by warrants for

searching newspaper offices.

436 U.S. at 565.

A-26

The government argues that the

“scrupulous exactitude" standard is not

applicable to the instant case. The

government points out that the documents

to be seized were not being sought for

the ideas they contained, rather they

were sought. because they constituted

indicia of membership in an organization

appellants allegedly used for unlawful

activities.’ Stanford v. Texas specifi-

cally distinguished the books in that case

from the type of books in the Dennis case:

"A 'book' which is no more than a ledger

of an enterprise thus might stand on a

quite different constitutional footing

from the books involved in the present

case." 379 U.S. at 485 n.16.

Nevertheless, we conclude that First

Amendment interests are involved in this

T?here is a sufficient nexus between

the alleged illegal activity and the items

to be seized. See pages 7-9, supra.

A-27

case and therefore the "scrupulous exacti-

tude” standard is appropriate. We reach

this conclusion for two reasons. First,

in Stanford v. Texas, membership in the

Communist Party was per se illegal, so

seizure of some of the books involved

there would have constituted indicia of

membership in an organization which would

be unlawful. The Supreme Court neverthe-

less require "scrupulous exactitude” for

the particularity requirement. Second,

although in this case the items were not

seized for their ideas, as were the books

in Stanford v. Texas, they were seized

for the associations they demonstrated.

Just as the ideas in a book are protected

by the First Amendment, so are associations

so protected. See NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 462 (1958).

Evidence of membership in a particular

organization can severely affect the exer-

cise of First Amendment rights, possibly

A-28

through reprisals in the community. NAACP,

357 U.S. at 462063. Admittedly, the Hells

Angels is not as respected an organization

as the NAACP. However, to ensure the pro-

tection of the associational rights of

desirable organizations, it is necessary

that warrants for searches for evidence of

membership in bona fide organizations meet

the Fourth Amendment requirements with

scrupulous exactitude. ® Analogously, the

Supreme Court in formulating the "scrupu-

lous exactitude" requirement in Stanford

v. Texas, relied on Marcus v. Search War-

rant, 367 U.D. 717 (1961), where the Court

held that certain procedures had to be

followed in the seizure of publications

unprotected by the First Amendment (obscene

Bot all associations of individuals

implicate the right of association. For

instance, we can find no cases finding

criminal conspiracies themselves within

the realm of the freedom of association.

Here, it is membership in the Hells Angels,

not membership in the alleged conspiracy,

that is arguably protected.

A-29

publications) to ensure that protected

publications were not seized or held for

too long a period of time. 367 U.S. at 730-

31, 737. The same rationale applies to

organizations, requiring scrupulous

exactitude to ensure that protected assoc-

iations are not endangered. Thus, the

possible implication of protected First

Amendment associational rights in this

case requires the scrupulous exactitude

standard.

c. Application of the Law.

When we apply the particularity re-

quirement with scrupulous exactitude, we

conclude that the indicia warrants were

inadequate. First, we note that even

outside the First Amendment, a search for

documents poses particular dangers:

[T]here are grave dangers

inherent in executing a

warrant authorizing a search

and seizure of a person's

papers that are not neces-

sarily present in executing

a warrant to search for

Tt. ’ ein onto Eien it Ande

A-30

physical objects whose

relevance is more easily

ascertainable. In searches

for papers, it is certain

that some innocuous doc?-

ments will be examined, at

least cursorily, in order

to determine whether they

are, in fact, among those

papers authorized to be

seized... . [R]lespon-

sible officials, including

judicial officials, must

take care to assure that

they are conducted in a

manner that minimizes

unwarranted intrusions

upon privacy.

Andresen, 427 U.S. at 482 n.1l. In United

States v. Bennett, 409 F.2d 888, 897 (2nd

Cir. 1969), cert. denied, 396 U.S. 852

(1969), 402 U.S. 984 (1971), Judge Friendly

put the concern this way:

The reason why we shrink

from allowing a personal

diary to be the object of

a search is that the entire

diary must be read to dis-

cover whether there are

incriminating entries;

most of us would feel

rather differently with

respect to a "diary" whose

cover page bore the title

"Robberies I Have Performed."

Similarly the abhorrence

generally felt with respect

to “rummaging” through the

A-31

contents of a desk to find an

incriminating letter would not

exist in the same measure if the

letter were lying in plain view.

The dangers of document searches described

in Andresen and Bennett are present in the

instant case: the warrants authorized

searches for papers relating to Hells

Angels activities, items with names of

Hells Angels members, and telephone books

with names and numbers of Hells Angels

members. The dangers of document searches

alone was not enough for the Supreme Court

to find the warrant in Andresen invalid

or for us to find the warrant in Dennis

invalid; however, the "Scrupulous exacti-

tude" standard triggered by First Amend-

ment concerns was no involved in Andresen

or Dennis.

Second, we are mindful of the proposi-

tion that a warrant must be as specific

as possible. United States v. Wuagneux,

683 F.2d 1343, 1349 (lith Cir. 1982);

A-32

see Dennis, 625 F.2d at 792.”

Third, we believe that a high degree

of specificity is particularly needed

with an indicia warrant. The indicia

warrants, like many warrants for searches

for documents, authorized the perusal of

almost any document in the subject's resi-

dence. The indicia warrants, like many

warrants, authorized the search of nearly

every corner of the residence. Unlike

most warrants, these warrants were issued

to obtain evidence on just one fact--mem-

bership in the Hells Angels. Unlike most

warrants, the evidence on this issue would

9united States v. Davis, 542 F.2d 743,

745 (8th Cir.), cert. denied, 429 U.S. 1004

(1976), which held that a warrant need not

list the serial numbers of stolen cur-

rency, is consistent with the "as specific

as possible” rule. In Davis, the serial

numbers of only some of the stolen cur-

rency were known, so a listing of the

serial numbers would not have limited

the scope of the search. If all the

serial numbers are known, they should be

listed. unites Srates Vv. anal

F.2d 804, ° .

A-33

be needlessly cumulative once enough evi-

dence was obtained to establish membership.

While additional evidence would usually

show the breadth of criminal activity, in

the instant case additional evidence would

at some point have no additional probative

value in determining membership. There-

fore, some of the items in the indicia

warrant would do nothing to aid in the

conviction. An indicia warrant allows an

almost unlimited search for the purported

purpose of obtaining evidence on a very

narrow matter for which only a limited

amount of evidence would be useful. As a

result, there was a tremendous potential

for abuse. -° Given the potential for

abuse, we feel the indicia sought should

be specifically identified in the warrant,

and if this te impossible there should be

10we do not find that there was abuse

in the instant case. See pages 20-21,

infra.

A-34

an explanation as to why it is impossible

and whether the non-specified items could

actually aid in the conviction.

We are not asking law enforcement

officials to assess exactly how much

evidence is needed for a conviction. In

the situation where fruits or instrumental-

ity of crime are being sought, more evi-

dence of this type would tend to show a

broader scope of criminal activity. The

same reasoning would apply to many types

of "mere evidence.” For instance, if docu-

ments are being sought to show that a

suspect is loansharking, more documents

would show a broader scope of criminal

activity. And even when indicia are

being sought just to prove membership, we

would permit the accumulation of evidence

when the items were specifically identi-

fied because the specific identification

would help prevent a free-wheeling search

into a person's possessions.

A-35

Part of the warrant in this case would

meet this standard. The description of

the jackets, the belt buckles, T-shirts,

photographs ,11 and plaques and mirrors

are sufficiently specific. If the warrants

said no more they would be valid. But the

search for "other items" with names of

members, telephone books, and papers

relating to the Hells Angels is too

general for a search for indicia to prove

membership in the Hells Angels. Such

evidence would be unnecessarily cumulative.

Such items may be seizable with more

specific information. For instance, a

search of a suspect's personal telephone

book to see if alleged co-conspirators

were listed would not be needlessly cumu-

11lpnotographs could sometimes be

the best evidence of indicia membership.

Among the items seized in this case were

snapshots that might be called Hells

Angels team pictures. They show ten men

standing behind a Hells Angels banner

which is being held up by two of the men.

A-36

lative. However, the telephone books were

not sought for such a purpose. The pur-

pose of the search was simply to find

indicia of membership. A search for indi-

cia for the purpose of proving membership

in an organization should be limited to

specifically enumerated items whose rele-

vance and probative value is shown.

The practical effect of the warrant

in the instant case is that it was very

close to a general warrant. We will

require that such a broad warrant for

such a narrow purpose specifically enumer-

ate the items to be seized or at least

explain why a more specific showing cannot

be made and why the evidence is needed.

3. Probable Cause

Appellants next argue that the indicia

warrants lacked probable cause. They argue

that the indictment, which was incorpor-

ated by reference into the application for

the search warrant, did not provide a

A-37

basis for the search warrant and there was

not probable cause to believe the indicia

would be found at the searched premises.

We find there was probable cause for the

warrants. ‘

Probable cause to search requires (1)

a finding of probability of criminal acti-~

vity, and (2) a finding or probability of

concealment of evidence on specific pre-

mises. United States v. Deggendorf, 626

F.2d 47, 51 (8th Cir.), cert. denied, 449

U.S. 986 (1980). The indictment satisfied

the first element, providing the probable

cause for criminal activity. The Supreme

Court has held that an arrest warrant can

be based on an indictment "because the

grand jury's determination that probable

cause existed for the indictment also

establishes that element for the purpose

of issuing a warrant for the apprehension

of the person so charged." Giordenello v.

United States, 357 U.S. 480, 487 (1958).

A-38

More recently the Supreme Court has stated:

{[A]n indictment, ‘fair upon its

face,’ and returned by a '‘'pro-

perly constitued grand jury,

conclusively determines the

existence of probable cause and

requires issuance of an arrest

warrant without further inquiry.

The willingness to let a grand

jury's judgment substitute for

that of a neutral and detached

magistrate is attributable to

the grand jury's relationship

to the courts and its histori-

cal role of protecting indi-

viduals from unjust prosecu-

tion.

Gerstein v. Pugh, 420 U.S. 103, 117 n. 19

(1975) (citations omitted). If an indict-

ment can be used to establish the proba-

bility of criminal activity for an arrest

warrant we see no reason why an indictment

should not be able to establish probabil-

ity of criminal activity for a search

warrant. Of course, before a search

warrant can be issued, the second prong--

probability of concealment of evidence at

a specific premises--must be met. Appel-

lants challenge the warrant on this basis

as well.

A-39

We agree with the district court

that this contention has little merit.

Probable cause to believe Hells Angels

indicia was based on several factors.

Appellants’ associations with the Hells

Angels were based in part on the indict-

ment which alleged that Fitzgerald was a

widow of a Hells Angels member and the

other appellants were Hells Angels members

at the time of the indictment. Appel-

_lants' links to the particular residences

to be searched were based in part on

official records, such as utility records

in the case of Apker, land ownership

records in the case of Gearhart, and

postal records in Fitzgerald's case.

Other support for the search warrant came

from confidential informants. The affida-

vit in the application for the search

warrants said the confidential informants,

who were proved reliable in the past and

based their information on personal know- ;

A-40

ledge, had observed Davenport's Hells

Angels colors at the fourth searched

premises and the informants said Apker,

Davenport, and Gearhart were Hells Angels

members. Most of the remainder of the

support observations of unnamed police

officers that vehicles registered to or

driven by each appellant were seen at the

respective searched residences. The affi-

davit also said police officers observed

that Fitzgerald's husband had received a

Hells Angels funeral and she had retrieved

his Hells Angels ring and belt buckles.

The affidavit clearly provided ample

support for the search warrants. This was

buttressed by the observation of police

officers, who are entitled to a presump-

tion of credibility when they are the

unnamed informants in an affidavit suppor-

ting a search warrant application. United

States v. Beusch, 596 F.2d 871, 874 (9th

Cir. 1979); United States v. Harrick, 582

ye?

A-41

F.2d 329, 332 (4th Cir. 1978); see United

States v. Ventresca, 389 U.S. 102, 111

(1965). The information from the inform-

ants alone could have support the search

warrant, because their credibility was

shown by their record for reliability and

their personal knowledge. United States

v. Fleming, 566 F.2d 623, 625 (8th Cir.

1977). When all the factors are considered

there was clearly probable cause to believe

the indicia would be found at the designated

residences.

4. Pretext.

The last Fourth Amendment argument of

appellants is that the indicia warrants

were obtained merely as a pretext for a

general search for guns and drugs. Appel-

lants argue that the true purpose of the

search was not disclosed to the magistrate

issuing the warrant. The true purpose was

shown by the presearch meeting at which

officers wer eold to be on the lookout for

A-42

guns and drugs and the fact that machinery

was set up to quickly issue state search

warrants.

The scope of a search is limited by

its authorization. Walter v. United States,

447 U.S. 649, 656 (1980). "The search

must be one directed in good faith toward

the objects specified in the warrant or

for other means and instrumentalities by

which the crime charged has been committed.

It must not be a general exploratory

search... ." Gurleski v. United States,

405 F.2d 253, 258 (5th Cir. 1968), cert.

denied, 395 U.S. 977, 981 (1969), cited

with approval in United States v. Rettig,

589 F.2d 418, 423 (9th Cir. 1978).

Appellants' allegations are not frivo-

lous, particularly when on considers the

manpower and time devoted to the searches

and the very limited probative value of

the items sought under the indicia warrants.

See pages 16-18, supra. Compare Rettig,

A-43

589 F.2d at 421 (indicia of residence in a

household sought under warrant which also

authorized seizuire of marijuana). How-

ever, the ture purpose or bad faith of the

police is a question of fact, and the

district court's findings of fact on a

motion to suppress are ordinarily subject

to the clearly erroneous standard of review.

United States v. Williams, 604 F.2d 1102,

1121 (8th Cir. 1979). The district court

found that the manner of execution of the

warrants (as opposed to the warrants on

their face) did not make for a general

search. Implicit in this finding is the

finding that law enforcement officers did

not use the indicia warrants as a pretext

to search for items other than those speci-

fied in the warrant. In light of the

justifications for the eresenien meeting

put forth by the government, such as the

need to point out that the persons to be

arrested had firearm disabilities, we do

i =

A-44

not find the district court's conclusion

clearly erroneous.

B. First Amendment.

Appellants argue that the indicia

warrants were invalid under the First

Amendment as well as the Fourth Amendment.

They argue that the warrants infringed

their right of association.

As we stated previously, there was a

sufficient nexus between the items to be

seized and criminal behavior to justify a

search warrant. The Supreme Court said

in Zurcher: "(T]he prior cases do no more

than insist that the courts apply the

warrant requirements with particular exact-

itude when First Amendment interest would

be endangered by the search.” 437 U.S. at

565.

There is some support for appellants’

position in another line of cases high-

lighted by NAACP v., Alabama ex rel. Pat-

terson, 357 U.S. 449 (1958), and Gibson v.

A-45

Florida Legislative Investigation Commit-

tee, 371 U.S. 539 (1963). In these cases

the Supreme Court reversed contempt con-

victions of person who refused to produce

NAACP membership lists based on the members’

associational rights. In NAACP, the State

of Alabama brought an equity suit to oust

the NAACP from Alabama. In the course of

the action the trial court ordered the

NAACP to produce many of its records, in-

cluding its membership lists. The NAACP

refused to produce the membership lists

and was held in contempt. The Supreme

Court reversed, finding that Alabama had

not show a compelling state interest to

justify subordination of First Amendment

associational rights. 357 U.S. at 463,

466. In Gibson the president of the Miami,

Florida branch of the NAACP refused to

bring membership lists to a committee

hearing to assist him in answering ques-

tions on whether fourteen alleged Commun-

Boe ye

A-46

ists were members of the Miami NAACP.

Gibson was held in contempt for this

refusal. The Supreme Court held there was

not a sufficient nexus between the member-

ship list ard a compelling state interest

in investigating Communists to justify

compelled disclosure. 372 U.S. at 546,

554-57. Appellants argue that they are

entitled to the protection offered by

these cases.

The compelling state interest test

articulated in NAACP and Gibson would appear

to be more protective than the tests applied

for the Fourth Amendment. Also, we are not

inclined to see the distinction between

contempt judgments and search warrants

important in this particular context; the

harm to associational rights would be the

same whether the membership lists were

outlined by the threat of a contempt

judgment or by means of a search warrant.

However, other factors make the NAACP

A-47

cases inapplicable to the instant case.

First, the NAACP cases deal with

mebership lists only. Therefore, these

cases are relevant only as to that part

of the warrants authorizing seizure of

membership lists. Second, in the NAACP

cases there was evidence that harm would

result from disclosure of the membership

list. NAACP, 357 U.S. at 462-63; Gibson,

372 U.S. at 548 n.3. In the instant case

we are dealing with a group whose members

sometimes publicly identify themselves as

Hells Angels members by their dress, so

additional harm from disclosure of member-

ship lists is unlikely. Third, it is

very possible that the state could meet

the compelling state interest test in the

instant case. The Supreme Court has up-

held compelled disclosure of Klu Klux Klan

membership lists, taking judicial notice

of the Klan's unlawful activities. New

York ex rel. Bryant v. Zimmerman, 278 U.S.

A-48

63, 75-77 (1928) distinguished in NAACP,

357 U.S. at 465-66. In a post-NAACP case,

the Supreme Court upheld compelled disclo-

sure of the membership list of the Commun-

ist Party of the United States because the

Subversive Activities Control Board could

rationally conclude that the Communist

Party used violent means to destroy govern-

ment. Communist Party of the United States

v. SACB, 367 U.S. 1, 90-105 (1961). See

also L. Tribe, American Constitutional Law

§ 12-23, at 708 (1978).

Because of our ¢« sposition of the

Fourth Amendment issue, we need not deter-

mine the potential harm from Hells Angels

membership disclosure or whether there is

a sufficient state interest to justify

membership disclosure. On the record

before us, however, appellants clearly

have not made out a First Amendment claim

requiring invalidation of the part of the

warrants authorizing searches for member-

A-49

ship lists.

III. Suppression of the Evidence

The government argues that even if the

indicia warrants were invalid, the guns

admitted against three of the appellants

were admissible because they were properly

seized during execution of the arrest

warrants or were seized or would have been

seized pursuant to state search warrants.

During the execution of arrest warrants

for Apker, Davenport, and Gearhart, law

enforcement officers observed suspected

controlled substances in plain view, and

as a result they obtained a state search

warrant for each premises. Officers saw

the suspected controlled substances at

Apker's residence while conducting a

"sweep search,” i.e., a search for the

purpose of looking for persons at the

premises who might present a security risk.

United States v. Briddle, 436 F.2d 4, 6-8

(8th Cir. 1970), cert. denied, 401 U.S.

A-50

921 (1971). At the residence where

Davenport was found, officers saw the

suspected drugs in the kitchen when they

followed Davenport into the kitchen to

get his clothes. Police have a right to

accompany a person under custodial arrest

in his residence. Washington v. Chrisman,

455 U.S. 1, 6-7 (1982). At Gearhart's

residence police were searching Gearhart's

bedroom for weapons before allowing an

undressed woman to get dressed in the

privacy of the bedroom. ?? There is no

question that the discovery of the sus-

pected controlled substances at each resi-

dence was proper and that therefore the

state search warrants were valid. Nothing

was discovered during the sweep search at

Fitzgerald's residence and no state search

warrant was obtained for that residence.

12, eter the guns were found police

told her to get dressed in the bathroom.

A-51

The record does not make clear which

guns were seized pursuant to the invalid

federal warrants before the state warrants

were obtained. The government argues that

this question need not be resolved because

even if the guns were obtained under the

invalid indicia warrants, it is enough

that they would have been seized under the

valid state warrants.

The government's position is based on

the "inevitable discovery" exception to the

exclusionary rule. This exception allows

illegally obtained evidence to be admitted

if it would have been discovered in the

course of a proper investigation. C.

Wright , Federal Practice and Procedure,

§ 408, at 453-55, § 677, at 794-95 (1982).

The Supreme Court has not explicitly

passed on this eception, id., nor have we.

United States v. Kelly, 547 F.2d 82, 85-86

(8th Cir. 1977). The First, Second, Third,

Fifth, Seventh, Ninth and Eleventh Circuits

A-52

have adopted the inevitable discovery excep-

tion. United States v. Bienvenue, 632 F.2d

910, 913-14 (lst Cir. 1980); United States

v. Ceccolini, 542 F.2d 136, 140 (2nd Cir.

1976), rev'd on other grounds, 435 U.S.

268, 273 (1978); Government of Virgin

Islands y. Gereau, 502 F.2d 914, 927-28

(3rd Cir. 1974), cert. denied, 420 U.S.

909 (1975), 424 U.S. 917 (1976); United

States v. Brookins, 614 F.2d 1037, 1042,

1042 n.2 (5th Cir. 1980);° United States

ex rel. Ownes v. Twomey, 508 F.2d 858,

865-66 (7th Cir. 1974); United States v.

Kandik, 633 F.2d 1334, 1336 (9th Cir. 1980).

Only the Sixth Circuit has explicityly

rejected the inevitable discovery excep-

tion. United States v. Griffin, 502 F.2d

13 nis case would be controlling for

the Eleventh Circuit as well, because the

Eleventh Circuit follows the precedent of

the old Fifth Circuit. Bonner v. City of

Prichard, 661 F.2d 1206, 1207 (1961).

A-53

959, 961 (6th Cir.), cert. denied, 419 U.S.

1050 (1974).

The inevitable discovery exception

usually arises in a slightly different

context than the one in this case. Ordin-

arily the element that made the seizure

illegal was a prior illegality, i.e., the

seizure in question was illegal because it

was "the fruit of the poisonous tree.”

Wong Sun v. United States, 371 U.S. 471,

484-88 (1963). In the instant case the

seizure was illegal because the warrant

was invalid and not because of a prior

illegality. However, we do not see a

basis for distinguishing between the

causes of the illegality. In fact, the

policy behind the exclusionary rule sup-

ports application of the "inevitable

discovery" exception to this case more

than it supports another exception to the

exclusionary rule. In Wong Sun Justice

Brennan stated the exclusionary rule does

A-54

not apply when the "connection between

the lawless conduct of the police and the

discovery of the challenged evidence has

"become so attenuated as to dissipate the

taint.'" 371 U.S. at 487, quoting Nardone

v. United States, 308 U.S. 338, 341 (1939).

The Court refused to apply a "but for”

test; the fact that the evidence would not

have come to light but for the illegal

actions of police does not require exclu-

sion. Id. at 487-88. In the instant case

the evidence passes the "but for" test;

regardless of illegal police conduct, the

evidence would have been discovered.

Furthermore, the deterrent effect of

the exclusionary rule would remain because

at the time police engage in an illegal

search they would not know whether or not

a latter, legal discovery was inevitable.

For instance, a police officer would not

feel free to conduct a warrantless search

while his partner is seeking a warrant.

b. &

A-55

The officer would not know whether the

warrant would be issued and what the scope

of the search allowed by the warrant would

be. Also, in this case the time lapse be-

tween execution of the federal and state

warrants was only a couple of hours.

Therefore, we join the great majority

of e circuits and apply the inevitable

discovery rule. In this case the illegal

warrant clearly did no more than hasten the

discovery of the guns. We do not think

that probative evidence should be excluded

merely because an invalid warrant affected

the timing of the discovery of the evidence.

The guns admitted against Apker, Davenport,

and Gearhart would be admissible under the

inevitable discovery exception to the ex-

Cclusionary rule. The government admits

that if the indicia warrants are invalid

no weapons would be admissible against

A-56

Fitsgerald.>*

Another question relating to the

suppression of the evidence is whether we

should sever the general parts of the

warrant and suppress only those items

which could not have been seized pursuant

to the specific parts of the warrant.

This is the approach suggested by the

dissent.

The approach of severing the general

parts of a warrant, rather than casnitawios

the entire warrant invalid, has been

embraced by four circuits, although in a

more narrow version than that suggested

by the dissent. United States v. Riggs,

690 F.2d 298 (lst Cir. 1982); United States

v. Christine, 687 F.2d 749 (3d Cir. 1982);

14snree guns were found in a bedroom

at Fitzgerald's residence while the indi-

cia warrant was being executed. A pistol

was found in a woman's coat pocket in the

Closet. A rifle was behind a dresser and |

a shotgun was in the closet.

aa i

oa “Tiere. ah

A-57

United STates v. Cardwell, 680 F.2d 75

(9th Cir. 1982); United States v. Cook,

657 F.2d 730 (5th Cir. 1981). Although

these courts accepted the severance appro-

ach in principle, no court has permitted

the admission of items found in plain view

while executing the specific parts of the

warrant. We would have to adopt an expan-

sive, plain view-severance approach to

allow the guns to be admitted in this

case. In Riggs and Cook, the courts were

addressing the admissibility of items which

were specifically described in the warrant.

In Christine, a concurring judge would

have adopted the plan view-severance appro-

ach, but the majority did not adopt that

rule. In Cardwell, the severance approach

was embraced only in dicta; the court did

not discuss a plain view extension.

The version of the plain view exten-

sion suggested by the dissent is particu-

larly expansive. There is nothing in the

A-58

record to show whether the police found the

guns at defendants' residences when they

were looking for the specific items or the

general items. Nevertheless, the dissent

would exclude evidence only if it “could

not have been seized" pursuant to the

specific parts of the warrant. This is an

unnecessary expansion of the severance rule

adopted by several circuits, and could lead

to what in effect would be a general warrant.

A plain view-severance approach is

particularly inappropriate with indicia

warrants. Indicia warrants by their nature

are potentially subject to abuse. See p.

16, supra. Pretext can at times go un-

detected by a magistrate, and the possibi-

lity of an almost unlimited search may be

too tempting for law enforcement officials.

The effect of adopting a plain view-seve-

rance approach could be to uphold seizures

pursuant to all but the most general

indicia warrants. Therefore, we reject

‘My

ns 9

» at ‘ Pl mh as | pain San

A-59

that approach in this case.

IV. Joinder of the Conspiracy Count

Appellants arge they were irremediably

prejudiced by the joinder at trial of the

conspiracy count and the other charges.

Most of the trial was devoted to the con-

spiracy count, with much of the evidence

being conditionally admitted. The district

court conditionally admitted the testimony

of alleged co-conspirators pending the

court's determination of whether a con-

spiracy was proved by a preponderance of

the independent evidence. The district

court eventually found that a conspiracy

had not been show, so it ordered the evi-

dence stricken. The court dismissed the

conspiracy counts at the close of the

government's case. Appellants argue that

the evidence as to the conspiracy domi-

nated the trial and was extremely inflam-

matory and prejudicial, making the only

proper remedy judgment of acquittal or

A-60

dismissal on the non-conspiracy counts.

Appellants moved for dismissal or judgment

of acquittal at the close of the govern-

ment's case, which we will assume arguendo

was implicitly a motion for relief from

prejudicial joinder pursuant to Fed. R.

Crim. P. 14,

We do not think that the district

court erred in refusing to order a new

trial for appeallants, much less in not

ordering dismissal or judgment of acquittal.

The conspiracy evidence was conditionally

admitted pending production of independent

evidence of a conspiracy. We explicitly

approved such procedures in United States

v. Bell, 573 F.2d 1040, 1044 (8th Cir.

1978). Although the court could have

required that the independent evidence of

conspiracy be produced first, United States

v, Macklin, 573 F.2d 1046, 1049 n.3 (8th

Cir. 1978) it is in the district court's

discretion to determine which procedure

A-61

to use. Id. The district court's conclu-

sion that the evidenc from the conspiracy

count was not irremediably prejudicial

was reasonable from the perspective of

this appeal. The conditionally admitted

evidence went almost entirely to drug

dealings, and the convictions for drug pos-

session have not been appealed. No evi-

dence was admitted on the most inflamma-

tory part of the conspiracy charge--murder

and torture--although the government did

“make a reference to this in its opening

statement. An order for a mistriai is in

the district court's discretion, United

States v. Wade, 467 F.2d 1226, 1229 (8th

Cir. 1972), cert. denied, 410 U.S. 933

(1973), as is an order for relief from

prejudicial joinder under Fed. R. Crim.

P. 14. United States v. Sanders, 563 F.2d

379, 384 (8th Cir. 1977), cert, denied,

434 U.S. 1020 (1978), The district court

did not abuse its discretion in believing

ial

A-62

cautionary instructions were adequate

rather than ordering a mistrial, dis-

missal, or judgment of acquittal.

V. Sufficiency of the Evidence

Appellants argue that the evidence

was insufficient to sustain a conviction.

Their primary argument is that evidence of

constructive possession was inadequate

when one considers that each appellant

was not alone in the house where the guns

were found and appellants’ fingerprints

were not on the guns. We find the evidence

sufficient as to Apker, Davenport, and

Gearhart. 15

When we bear in mind the general

standards, it is easy to see that the evi-

dence is sufficient to sustain the verdicts

against Apker, Davenport, and Gearhart. As

150. need not address the sufficiency

of the evidence as to Fitzgerald; her con-

viction must be reversed because the guns

found at her residence are not admissible.

A-63

we said in Durns v. United States, 562 F.2d

542 (8th Cir.), cert. denied, 434 U.S. 959

(1977):

On appellate review of the

sufficiency of the evidence, the

court must view the evidence in

the light most favorable to the

verdict rendered. It must accept

as established any and all rea-

sonable inferences from the

evidence that tend to support

the jury's verdict. The evi-

dence need not "exclude every

reasonable hypothesis except that

of guilt[; it is enough] that

it be sufficient to convince the

jury beyond a reasonable doubt

that the defendant is guilty.”

Id. at 545-46 (citations omitted). A con-

viction for possession of a firearm by a

felon can be based on constructive posses-

sion or joint possession. United States

v. Polk, 574 F.2d 964, 965 (8th Cir.),

cert. denied, 439 U.S. 849 (1978). Con-

structive possession can be established by

a showing that the firearm was seized at

the defendant's residence. Id,

As to Apker, he was arrested at a home

he shared with Patricia Weeks and her twelve-

ae ll

A-64

and thirteen-year-old children. His Hells

Angels colors were in the bedroom and the

gun was found in a shaving kit in the

bedroom. With his Hells Angels colors in

the house anc the fact that the gun was in

a shaving kit, the jury could reasonably

conclude that the gun was constructively

possessed by Apker.

As to Davenport, three firearms were

found at Mary Spethman's residence. A tos

license in Davenport's name gave Spethman's

house as his address. The weapons were in

the bedroom, the only room with an unmade

bed. One of the guns was found in a dresser

drawer with Hells Angels T-shirts. The

evidence is adequate to show possession by

Davenport, especially with regard to the

gun found with the T-shirts.

Davenport also complains about a com-

ment made by the prosecutor in his summation

relating to the evidence against Davenport.

The prosecutor said there was no evidence

A-65

that Mary Spethman was a member of the NRA

[National Rifle Association]. We do not

believe this statement was an improper

comment on Davenport's failure to testify.

It did not violate his right against self-

incrimination or shift the burden of proof

to the defendant because the comment did

not refer to a matter about which only

Davenport could testify. United States

v. Hagar, 505 F.2d 737, 740 (8th Cir.

1974). Furthermore, the district court

ordered the jury to disregard the comment,

and the court has broad discretion in

dealing with closing arguments. United

States v. Young, 618 F.2d 1281, 1289 (8th

Cir.), cert. denied, 449 U.S. 844 (1980).

We find no abuse of discretion here. As to

Gearhart, he was arrested at a residence

he shared with Tracy Nadrchal. Utility

bills indicated he lived there. There

were two guns under the mattress, two in

a bedroom closet, two on top of a hutch

A-66

in the bedroom, and seventeen inside a

nailed-shut wooden crate in the living

room. Again, a jury could reasonably con-

clude Gearhart possessed some or all of

the weapons. The evidence is sufficient

to sustain the sinidteriaes: 6f Apker,

Davenport, and Gearhart.

VI. Conclusion

The indicia warrants in this case

were too broad to meet the particularity

requirement of the Fourth Amendment in

light of the First Amendment associational

interests involved. Nevertheless, the

guns which were or may have been seized

pursuant to the invalid indicia warrants

are admissible against Apker, Davenport,

and Gearhart because it was inevitable

that the guns would have been discovered.

during the execution of the valid state

search warrants. Therefore, the convic-

tions of Apker, Davenport, and Gearhart

are affirmed. There is no basis for not

A-67

applying the exclusionary rule to the guns

found at Fitzgerald's residence, so her

conviction is reversed and her case

remanded to the district court.

Affirmed in part; reversed in part.

BRIGHT, Circuit Judge, concurring in part

and dissenting in part.

I concur in affirming the convictions

of Apker, Davenport, and Gearhart, but would

also affirm appellant Fitzgerald's convic-

tion. In affirming, however, I would not

adopt the "inevitable discovery rule” as

grounds for curing the defective warrants.

In the context of this case, where the

federal warrants are only partially flawed,

and where the nature of the flaw is a fail-

ure to comply with the particularity

requirement, I would sever the valid por-

tions of the warrants and suppress only

those items which could not have been seized

pursuant to a legitimate execution of the

valide portions of the warrants.

A-68

As the majority finds on page 17 of

its opinion, the warrants described with

sufficient specificity the jackets, belt

buckles, T-shirts, photographs, plaques,

and mirrors that were sought by the police.

Continuing, the majority notes that "[i]f

the warrants said no more they would be

valid. The majority holds the warrants

invalid, however, because the warrants also

include items that are not described with

sufficient particularity.

As an alternative to applying the

inevitable discovery rule, I would apply

the remedy of partial suppression, adopted

most recently by the First Circuit in

United States v. Riggs, 690 F.2d 298

(lst Cir. 1982), a case that also involves

items protected by the first amendment.

In concluding that partial suppression

remedied the warrant's flaws, the Riggs

court noted the reasoning of Professor

LaFave:

A-69

[I]t would be harsch medi-

cine indeed if a warrant

which was issued on probable

cause and which did particu-

larly describe certain items

were to be invalidated in

toto merely because the

affiant and magistrate erred

in seeking and permitting

a search for other items

as well... . It would

be ironic, to say the least,

if the efforts of the police

to therefore "advise the

court of everything which

conceivably might be found

in the premises" should

result in the warrant

being declared invalid in

its entirety. [Id. at 300

(quoting 2 W. LaFave, Search

and Seizure § 4.6(f) at

111-12 (1978)).]

The Third, Fifth, and Ninth Circuits have

also adopted the remedy of partial suppres-

sion. United States v. Christine, 687 F.2d

749 (3d Cir. 1982); United States v. Cook,

657 F.2d 730 (5th Cir. 1981); see United

States v. Cardwell, 680 F.2d 75 (9th Cir.

1982) (accepting partial suppression but

finding no portion c* the warrant suffi-

cient to withstand the particularity and

probable cause requirements).

‘a z

ia "

A-70

A logical and just extension of that

rule is to admit those items, such as guns

in this case, which could have been dis-

covered in plain view pursuant to execution

of the valid portions of the warrants.

Indeed, if the warrants had authorized only

a search for a jacket, and the guns had

been found in plain view pursuant to a

search for the jacket, a sufficient number

of the guns discovered in this case would

have been admissible to sustain the

convictions.

That partial suppression does not

weaken the particularity requirement is

evidence by the Ninth Circuit's holding

in United States v. Cardwell, supra, 680

F.2d at 79. If no part of a warrant can

be salvaged because no severable part

refers to an item with specificity and

probable cause, then all of the materials

seized under the defective warrant must

be suppressed. Id.

A-71

Nor does this approach invite abuse

through use of warrants describing one

thing for purposes of searching for anot-

her. The warrants mush still meet the

probable cause requirement. Moreover,

the warrants must still be executed in

a manner consistent with the authorization

given the officers in the warrant.

The same protections cannot be assured

in applying the inevitable discovery rule,

which, in my opinion, invites standardless

conjecture in hypothesizing whether or not

police, during a routine police investiga-

tion, would inevitably have discoverd the

evidence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-72

United States Court of Appeals

POR THE EIGHTH CIRCUIT

No. 82-1168/1169/

1201

United States of

America,

Appellee,

vs.

Gary D. Apker,

Calvin Davenport,

Raymond Gearhart,

Appellants.

September Term 1982

Appeals from the

United States

District Court for

the District of

Nebraska

ee ee ee ee ee ee ee ee ee ee Se

The Court, having considered appel-

lants' petition for rehearing and sugges-

tions for rehearing en banc and being now

fully advised in the premises, hereby

orders the petition for rehearing and

suggestions for rehearing en banc denied.

August 8, 1983

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