Petition — Dowell v. United States

lis Supreme Court. US

83-1440 | “rire”

fri 24 (Gee

No.

FLARE 81 AVAS.

CLERK

IN THE

Hupreme Court of the Anited States

OcTOBER TERM, 1983

JAMES DOWELL.

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RICHARD F. WALSH

Room 1220

53 West Jackson Blvd.

Chicago, Illinois 60604

312-427-6050

Attorney for Petitioner

as

a

=

Pandick Midwest, Inc., Chicago © 454-7600

QUESTION PRESENTED

Whether a per se rule should be adopted holding that a

narcotics transaction is such an inherently dangerous exigent

circumstance as to justifying entry into a dwelling without a

warrant.

Statement.

Reason for

Conclusion

ECE RS a

FEET EERE EEE EEE EEE EEE REET EEE EEE EE EEE EEE EEE EEE EEE HEHE EEE E OEE ES

iii

INDEX TO AUTHORITIES

Cases

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

Johnson v. United States, 333 U.S. 10 (1948).........

Katz v. United States, 389 U.S. 347 (1967)..........4.

Michigan v. Tyler, 436 U.S. 499 (1978)...

Mincey v. Arizona, 437 U.S. 385 (1978) .......cceceee

Payton v. New York, 455 U.S. 573 (1980) ...............

Sherman v. United States, 356 U.S. 369 (1958) .....

South Dakota v. Opperman, 428 U.S. 364 (1976)...

Steagold v. United States, 451 U.S. 204 (1981)......

Stoner v. California, 376 U.S. 483 (1964)........00..

PO, GIP, Be Witte UC PGB D scccecsccsscccccvssecesnsecece

United States v. Johnson, 457 U.S. 537 ( 1982).......

Vale v. Louisana, 399 U.S. 30 (1970) ....ccccceccceeeeees

Root v. Gauper, 438 F.2d 361 (8th Cir. 1971).........

United States v. Barone, 330 F.2d 543 (2nd Cir.

United States v. Kunkler. 679 F.2d 187 (9th Cir.

ae

United States v. Williams, 633 F.2d 742 (8th Cir.

Constitution, Statutes and Rules

United States Constitution. Fourth Amendment.....

4

iv

INDEX TO APPENDIX

PAGE

Opinion of the United States Court of Appeals for

ae I CO voticittnnspttinscrscestcitiniiiitiomenren la

Order of the United States District Court................. 8a

Report and Recommendations of United States

I ies tatistnneinconesinnijnisistinibssinsttapentnipeannpsiibalenntoniiiee 13a

Text:

Fourth Amendment to the Constitution of the

tf RE a Low Cae One 26a

IN THE

Supreme Court of the United States

OcToOBER TERM, 1983

JAMES DOWELL,

Petitioner,

v.

UNITED STATES OF AMERICA.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, by his attorney, petition for a Writ of Certiorari

to review the judgment of the United States Court of Appeals

for the Seventh Circuit affirming his conviction.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is as yet unreported and is reproduced in the

appendix. The opinion of the district court is unreported and is

reproduced in the appendix. The findings and recommenda-

tions of the United States Magistrate are unreported and are

reproduced in the appendix.

2

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on January 9, 1984. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

Constitutional provisions involved pursuant to Supreme

Court Rule 21.1(f) the following constitutional provision is set

forth in the appendix:

United States Constitution, Fourth Amendment.

_ STATEMENT OF FACTS

James Platts, a drug dealer, turned himself into agents of

the Drug Enforcement Administration because he believed he

was about to be arrested. After agreeing to cooperate, Platts

had a series of telephone conversations with petitioner James

Dowell in which Platts agreed to provide a buyer for a quantity

of cocaine.

On March 12, 1982, Dowell called Platts and advised that

he had checked into the Budgetel Motel in Harvey, Illinois.

Dowell told Platts that the transaction could be completed at

Platt’s convenience and that Platts could pick-up the cocaine or

bring his buyer to the area.

Platts and government agents met in a nearby parking lot.

Platts was instructed to go to the motel room and determine

who was in the room and whether any cocaine was in the room.

Platts was to return immediately and report to the agents.

Platts went to the room where he was greeted by Dowell

and co-defendant Larry Luther Brown. Dowell produced a

shaving kit from which Platts took a plastic bag containing

cocaine. Platts and Brown indulged in the drug and the bag of

cocaine was replaced in the shaving kit.

Platts advised that his buyer was in a nearby hotel. Dowell

offered the use of the room to complete the transaction. Platts

3

then left the room on the excuse that he was going to the lobby

to call his buyer.

Platts had spent approximately twenty minutes in the room

and several more searching the lobby for the agent. The agent

noted Platts condition and Platts admitted using cocaine. The

agent instructed Platts to go back to the room and to call the

lobby when he got there.

Platts went to the room but did not call the lobby

immediately because he was again indulging in the cocaine.

Meanwhile, the agents gathered in the lobby and requested that

a security guard accompany them with a key to the room.

Wicxhin fifteen minutes of Platts’ departure from the lobby, the

agents entered the room and arrested Dowell and Brown. Ina

search of the room the shaving kit containing the cocaine was

seized.

The court below affirmed the petitioner’s conviction and

held that the warrantless entry into the room was permissible

because the agents, based on the inherent dangerous situation

the informer was in, were justified in their apprehension for his

safety.

REASONS FOR GRANTING THE WRIT

It is a cardinal principle that searches conducted without

prior judicial approval are per se unreasonable and are viola-

tive of the Fourth Amendment except for a few well established

exceptions. Katz v. United States, 389 U.S. 347 (1967): South

Dakota v. Opperman, 428 U.S. 364 (1976); Vale v. Louisana,

» 399 U.S. 30 (1970). One such exception authorized entry into

a dwelling place without judicial approval because of some

exigent circumstance. Payton v. New York, 455 US. 573

(1980); Steagold v. United States, 451 U.S. 204 (1981); United

States v. Johnson, 457 U.S. 537 (1982). The Fourth Amend-

ment protection prohibiting entry without judicial approval or

an exigency applies equally to a motel room as it does to a more

4

permanent dwelling place. Stoner v. California, 376 U.S. 483

(1964); Johnson v. United States, 333 U.S. 10 (1948).

One recognized exigency justifying a warrantless entry into

a dwelling is the reasonable belief that someone within is in

need of immediate assistance. Mincey v. Arizona, 437 U.S. 385

(1978). Once lawfully inside the dwelling, officers may seize

evidence discovered in plain view. Michigan v. Tylor, 436 U.S.

49 (1978); Coolidge v. New Hampshire, 403 U.S. 443 (1971).

An objective test of whether the facts available to the

Officers at the time of entry would cause a reasonable man to

believe that entry was necessary must be applied in determining

whether the entry was justified. Mincey v. Arizona, supra; Terry

v. Ohio, 392 U.S. 1 (1968); United States v. Donavan,, 485

F.2d 201 (6th Cir. 1973); Root v. Gauper, 438 F.2d 361 (8th

Cir. 1971).

The principles stated above are well settled. However, the

application of these principles in deciding whether an entry was

warranted has evolved from the truly emergency situations such

as screams heard by officers. United States v. Barone, 330 F.2d

543 (2d Cir. 1964). This evolution has progressed, as evi-

denced by the opinion below, toward the adoption of a per se

finding that a drug transaction is an inherently dangerous

situation justifying the warrantless entry into a dwelling place.

United States v. Bradley, 455 F.2d 1181 ( Ist Cir. 1972); United

States v. Williams, 633 F.2d 742 (9th Cir. 1980); United States

v. Kunkler, 679 F.2d 187 (9th Cir. 1982). The court below

specifically adopted such a per se finding:

This was a drug deal involving several hundred grams of

cocaine and tens of thousands of dollars. The results of

betrayal were severe and the consequences of Platts’

exposure potentially gruesome. The position of Platts was

inherently dangerous and his failure to telephone Irwin

together with his state of impaired mental agility gave

Irwin sufficient reason to fear for Platts’ immediate safety.

5

In fact, the informer here, acting as a government agent,

caused any reason for apprehension that may have existed

because he was using cocaine rather than making the call he

was instructed to make. Cf. Sherman v. United States, 356 U.S.

369 (1958).

Any per se rule that a particular situation justifies dis-

pensing with the general Fourth Amendment requirement of a

judicially approved warrant is contrary to the many decisions of

this Court holding that warrantless entries are per se unreason-

able. This Court should grant the petition here to decide

whether the lower courts can rely upon such per se findings in

upholding warrantless entries into dwelling places.

6 —

CONCLUSION

For the reasons discussed above, this Court ought to issue

its Writ of Certiorari to the United States Court of Appeals for

the Seventh Circuit to review the court’s judgment in the instai.t

case.

Respectfully submitted,

RICHARD F. WALSH

Room 1220

53 West Jackson Blvd.

Chicago, Illinois 60604

312-427-6050

Attorney for Petitioner

APPENDIX

in the

Rnited States Court of Appeals

Bor the Seventh Cirrntt

Nos. 83-1061 and 83-1316

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v-

JAMES DOWELL and LUTHER LaRRY Brown,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 82 CR 1691 and 8 CR 169-2—Thomas R. McMillen, Judge.

ARGUED SEPTEMBER 15, 1983—DECIDED JANUARY 9, 1984

Before PELL and CupDAny, Circuit Judges, and GRANT,

Senior District Judge.*

PELL, Circuit Judge. On March 12, 1982, agents of

the Drug Enforcement Administration (DEA) entered

appellants’ hotel room without a warrant and seized ap-

proximately 700 grams of cocaine later used to convict

a of several offenses relating to the possession

of the controlled substance. Appellant Dowell received a

three-year prison sentence to be followed by a five-year

* Robert A. Grant, Senior District Judge of the Northern District

of Indiana, sitting by designation.

2a

Nos. 83-1061 & 83-1316

period of _— mandatory parole, and appellant Brown

received a four-year n term to be followed by le

of the same and duration. Appellants raise cal one

issue on appeal. They contend that the trial court should

have suppressed the drug evidence used against them be-

cause the DEA seized it pursuant to a warrantless entry.

The Government responds that the warrantless entry was

— ed by exigent circumstances. For the reasons stated

low, we affirm appellants’ convictions.

I. Facts

In February 1982, James Platts, fearing imminent ar-

rest for his activity as a drug trafficker, made contact

with the offices of the DEA in Chicago and agreed to co-

operate in a plan to gather evidence against

drug suppliers James Dowell and Luther Larry Brown,

two men with whom Platts had had prior dealings. On

February 26, DEA agent Bob Irwin directed Platts to

finalize plans for a $42,000 drug deal with Dowell. Ac-

cording to the plan, Dowell was personally to transport

eS 700 grams of cocaine from Florida to

hicago, where Platts was to act as a middleman in a

further ‘“‘sale’’ to an outside buyer.

On March 12, 1982, Dowell arrived in Chicago and

registered along with appellant Brown at the Budgetel

Motel in South Holland, Illinois. At about 9:00 p.m. on

that day, Dowell telephoned Platts to report his arrival

and Platts requested a meeting at the Budgetel with Dowell

and the outside buyer to transact the deal and display

the cocaine to his buyer. Agent Irwin apparently was to

pose as the outside buyer and personally garner evidence

against Dowell. Dowell initially approved of the meeting,

but later suggested that Platts take his buyer to some

location near the Budgetel. Platts agreed to have his

buyer rent a hotel room in the area. Apparently, Platts

intended to invite Irwin, posing as the outside buyer, to

the meeting once it was underway.

3a

Nos. 83-1061 & 83-1316

Irwin and Platts proceeded to South Holland and

telephoned Dowell from the lobby of the local Sheraton

Hotel. Dowell instructed Platts to come to room 248 at

the Budgetel and purchase the cocaine. Irwin testified that

he stayed in the lobby of the Budgetel and instructed

Platts to enter room 248, find out who was in the room,

see if there were narcotics or weapons there and then

return to the lobby under the pretext of needing to con-

sult his outside buyer. According to Irwin, Platts was ap-

prehensive about being exposed as an informant.

Platts entered room 248 where he found Dowell and

Brown. Dowell went into the adjoining room and returned

with a vinyl shaving kit which he handed to Platts. Platts

opened it and took out a plastic bag containing the co-

caine. Platts inspected the cocaine, tested it and then

Brown and he snorted several sample doses. Dowell then

took the rei back, —— it in the vinyl shaving kit

and placed the kit on the bed in room 248. After remain-

ing in the room approximately fifteen to twenty minutes,

Platts told Brown and Dowell he had to return to the

lobby to telephone his buyer.

Platts found Irwin in the lobby after several minutes

of searching. Irwin learned that Dowell and Brown both

were present and that they had the cocaine with them.

Irwin also learned, counter to all expectations, that Platts

had ingested cocaine and was experiencing the drug’s ef-

fect. According to Irwin, Platts was agitated and fear-

ful that Dowell and Brown would interpret his further

absence as evidence of betrayal. Irwin also testified that

Platts told him during this lobby conversation that Brown

would likely have a gun. Platts testified that he could not

recall making such a statement. After debriefing Platts,

Irwin had Platts copy down the number of the pay phone

in the Budgetel lobby and return to room 248, from where

he was immediately to place a call and obtain further in-

structions. Platts reentered room 248 and told Dowell that

he spoke with his buyer and that the buyer was counting

his money. Platts delayed calling Irwin because he did

not want to awaken suspicion. Meanwhile, Irwin had

4a

Nos. 83-1061 & 83-1316

gathered several agents in the lobby and awaited Platts’

oe After fifteen po ee when no call =

orthcoming, Irwin a motel security guard unlock

doors to room 248 and adjoining room 246. The DEA

agents entered both rooms and apprehended Dowell and

Brown as they fled from room 248 to room 246. Inside

room 248, the unzippered eyenty A with a yor al

protruding from the top was on bed. Irwin perfo

a field test on the white_powder in the plastic bag and

confirmed it was cocaine. Later Irwin told Platts he

rt the raid because he feared for Platts’ immediate

ety.

After the indictment issued, appellants moved to sup-

press the evidence seized pursuant to the warrantless en-

try. The motions were referred to a United States magis-

trate for a hearing. The magistrate recommended to the

district judge that the motions be denied because the war-

rantless entry was justified by exigent circumstances. The

district judge adopted the magistrate’s recommendation,

= both appellants were subsequently convicted at jury

II. Discussion

The exigent circumstances doctrine is an exception to

the Fourth Amendment’s protection against searches con-

ducted without prior approval by a judge or istrate.

The doctrine recognizes that “warrantless entry by crim-

inal law enforcement officials may be legal when there

is a compelling need for official action and no time to

secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509

(1978). The doctrine has been applied where law enforce-

ment agents fear imminent destruction of evidence, Ker

v. California, 374 U.S. 23, 39-40 (1963), escape of a sus-

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

- danger to their lives or the lives of others, id.

ince the doctrine is an exception to the ordinary Fourth

Amendment warrant requirement, the Government has the

burden of showing that the warrantless entry fits within

Sa

Nos. 83-1061 & 83-1316

the ag” sone United States v. Jeffers, 342 U.S. 48, 51

(1951). Moreover, this court maintains that law enforce-

ment officials may not deliberately wait for exigent cir-

cumstances to arise and then exploit the exception to

justify warrantless entry. United States v. Berkwitt, 619

2d 649, 654 (7th Cir. 1980). Finally, in applying the doc-

trine, an objective standard governs the reasonableness

of law enforcement officials’ belief that exigent cir-

cumstances have arisen. See rg v. Ohio, 392 U.S. 1,

21-22 (1968); Root v. Gauper, 438 F.2d 361 (8th Cir. 1971).

Appellants argue that there is an insufficient factual

basis in this case to support finding exigent circumstances.

The magistrate and the district judge relied on four prin-

cipal facts to find exigent circumstances. First, Platts’ role

as undercover informant was potentially subject to ex-

posure. Second, Platts failed to follow his instruction to

telephone immediately after returning to room 248. Third,

Platts was under the influence of cocaine. Fourth, it was

likely that there were in the room. The first three

facts are firmly establi in the record. The fourth fact

is not as well established. Although Irwin testified that

Platts revealed to him the presence of guns in the room

during their lobby conversation, Platts testified he could

not recall any discussion in the lobby concerning guns.

Appellants argue that the magistrate mechanically adopted

Irwin’s version of what transpired in the lobby and that

reliance on the fourth fact casts doubt on the finding of

exigent circumstances.

Appellants’ argument fails for two reasons. First, the

district judge made a de novo review of the magistrate’s

determination and also concluded that Irwin was more

credible than Platts. Absent inherent improbability, this

court will not disturb the district court’s fin on the

credibility issue. See United States v. Grabiec, F.2d

313 (7th Cir. 1977). Second, reliance on the fourth fact

is not vital; we believe that the first three facts taken

alone would lead a man of reasonable caution to conclude

that entry without delay was essential. This was a drug

deal involving several hundred grams of cocaine and tens

6a

Nos. 83-1061 & 83-1316

of thousands of dollars. The results of betrayal were

severe and the consequences of Platts’ exposure poten-

tially gruesome. The position of Platts was onstage |

and his failure to telephone Irwin together wi

his state of impaired mental ty gave Irwin sufficient

reason to fear for Platts’ immediate safety.!

The Eighth Circuit recently faced a case bearing fac-

tual ity to the instant case. In United States v.

Williams, F.2d 742 (1980), the DEA provided an in-

formant with fake cocaine, which she was to sell to a drug

trafficker at a public airport; DEA agents monitoring the

scene intended to arrest the trafficker when he exchanged

his money for the fake cocaine. The trafficker, however,

was unwilling to complete the sale until he tested the “co-

caine” at a location distant from the airport. The infor-

mant, seeking to avoid suspicion, agreed to drive off with

the trafficker to defendant’s house. The DEA was un-

prepared for this turn of events, which left the informant

in an unmonitored setting where she ran a substantial risk

of exposure. DEA agents later located the informant’s car

adjacent to defendant’s house and entered the house with-

out oe a warrant. The Eighth Circuit found the

entry justified because of the risk of exposure and the

ee violence of the drug trafficker. We agree with the

ighth Circuit’s analysis and find that the danger to the

informant in the instant case appeared even more acute

because his promised telephone call failed to materialize.

Appellants do not claim, and we do not find that the

DEA deliberately waited for dangerous circumstances to

arise or otherwise exploited the exigent circumstances ex-

7a

Nos. 83-1061 & 83-1316

ception. Accordingly, the warrantless entry into the hotel

room did not constitute a Fourth Amendment violation.

Since the entry was within constitutional bounds, the

DEA agents lawfully seized the cocaine, which lay in open

view on the motel room bed. See Coolidge v. New Hamp-

shire, 403 U.S. 448, 464-73 (1971).

CONCLUSION

Having considered all the arguments urged by the parties

to this appeal, we conclude that the motion to suppress

use of the cocaine as evidence at trial was properly

denied, and appellant’s convictions accordingly are

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

UNrtep States District COURT

Northern District of Illinois

Eastern Division

United States of America,

Plaintiff,

No. 82 CR 169-1

v. &

James Dowell and Luther 82 CR 169-2

Larry Brown,

Defendants.

DECISION ON OBJECTIONS TO

MAGISTRATE’S REPORTS

By a report dated June 4, 1982, the magistrate acted upon

the defendants’ pretrial motions relating to discovery and return

of property. Her decisions on discovery matters are unassail-

able unless “clearly erroneous or contrary to law.” 28 U.S.C.

§ 636(b)-(a)(A). Defendant Dowell filed objections to this

report on June 15, 1982 which we find to be of no substance,

with the exception that the goyernment should file a bill of

particulars specifying whether the conspiracies alleged in

Counts 2 and 3 of the Indictment are the same as those alleged

in Count |. The magistrate apparently so found at the top of

page 3 of her report dated June 4, 1982.

The other rulings of the magistrate with respect to dis-

covery matters are adopted by the court. Although most of the

discovery requests were either complied with voluntarily by the

government or denied by the magistrate, some affirmative

action is required by the magistrate’s report. The court will

require the government to report such compliance prior to trial.

The magistrate did not rule on the issue of recordings

which were made of conversations between the government's

9a

informant and a defendant. This motion has been withdrawn,

apparently because the recordings were consensual. United

States v. Horton, 601 F.2d 319 (7th Cir. 1979). If the

conversations are to be played for the benefit of the jury, the

court will also make a preliminary determination of the exis-

tence of a conspiracy and will give an interim instruction to the

jury concerning the use of the statements against an alleged co-

conspirator. We believe that such a determination can be made

by the court on the evidence which will have been presented to

the jury by that time, thereby avoiding a pretrial hearing on the

question of the existence of a conspiracy. United States v.

Allen, 596 F.2d 227, 230 (7th Cir. 1979), cert. den, 444 U.S.

871 (1979).

On August 10, 1982, after hearing evidence, the magistrate

issued a second report and recommendations on the motions to

suppress. Defendant Dowell filed objections on August 23,

1982 and the government filed objections to one portion of the

report on August 20, 1982.

The government’s objection relates to the magistrate’s

order that it return $2,880 which were taken from defendant

Dowell’s suitcase. The objection is based upon the contention

that this money had been administratively forfeited before the

defendant filed a motion for its return. This contention is

erroneous as a matter of fact, because the forfeiture had not

been completed until after defendant filed his motion. He

therefore had a right to a decision from the magistrate and from

this court under Rule 41(e), and the decision of the magistrate

in his favor is correct. Bramble v. Richardson, 498 F.2d 968

(10th Cir. 1974), cert. den, 419 U.S. 1069 (1974). The

government has returned the truck and firearm taken from

Dowell at the time of his arrest.

Therefore, only the motion to suppress the contraband

cocaine seized in Room 248 of the Budgetel Motel remains to

be reviewed. We find and conclude that the entry by the

government agents into this motel room without a warrant was

justified by the exigent circumstances which had arisen, making

10a

it impracticable to obtain a warrant. Michigan v. Tyler, 436

U.S. 499, 509-11 (1978); see also United States v. Watson, 423

US. 411 (1976).

The magistrate’s report and recommendations dated Au-

gust 10, 1982 are unusually detailed and persuasive in this

respect.

One must consider the agent’s state of mind immediately

prior to making an unauthorized entry into a motel room. He

knew that two individuals were in the room in the possession of

a substantial quantity of cocaine which they wished to sell. He

also had reason to believe that one or more of them might be

armed. His informant was apparently taking liberal samples of

the cocaine while he was in the motel room and did not make

the scheduled telephone call out of the room on his second visit.

We think it would be an unreasonable requirement under all

these circumstances to expect the government agent to obtain a

search warrant at approximately 11:00 o’clock p.m. from a

judge or a magistrate who was probably a distance of one-half

hour’s travel from the scene.

We are cognizant of the general principle that issues of

credibility on motions to suppress should not be irrevocably

delegated to magistrates and that this court must make a de

novo review of the magistrate’s recommendations on such

motions. On the other hand, magistrates do have the authority

to take evidence and make recommendations on motions of this

kind, and it would be an unnecessary duplication of judicial

efforts for us to hold an evidentiary hearing on the same issues

and with the same witnesses who were heard by the magistrate

unless there is reason to believe that the magistrate improperly

evaluated the testimony.

The magistrate alluded to a conflict in the testimony of the

informant and the government agent on the question of wheth-

er the defendants were armed. We do not believe this

inconsistency is particularly significant, because the agent had

lla

independent grounds for believing the defendants were armed

based on prior experience and knew that the informant had

previously carried a weapon to protect himself against the

defendants. It is what the agent reasonably believed and not

what the informant says he told him which is significant, and

the magistrate’s acceptance of the agent’s version of this fact is

completely reasonable. The recommendations of the magis-

trate on page 8 of her report dated August 10, 1982 are adopted

by the court. United States v. Williams, 633 F.2d 742 (8th Cir.

1980) and United States v. Acevedo, 627 F.2d 68 (7th Cir.

1980).

We further agree with the magistrate’s conclusions that this

was not a consensual entry and that defendant Dowell had

standing to suppress, as well as does Brown. We might point

out, in this connection, that the two defendants were using

Room 246 and 248 more or less interchangeably, but that both

rooms were not the equivalent of “private homes” since they

could be readily entered by anyone who had possession of a

pass key, such as the night clerk. Neither party has discussed

the distinction between temporarily rented motel rooms and

private residences vis-a-vis the Fourth Amendment, but we are

inclined to believe that they are somewhat more analogous to

automobiles than to private residences, insofar as a reasonable

expectation of privacy is involved.

Defendants further contend that the cocaine was not in

plain view, citing page 101 of the transcript. However, Agent

Irwin testified that he could see that the shaving kit was

unzipped, that it contained a plastic bag, and that both the bag

and the kit were open so that he could see a white powder in

the bag. We fail to find any evidence cited by defendants in

their objections that the cocaine was not in plain view. The

magistrate’s findings therefore at the top of page 10 of her

report are clearly correct and the seizure of the contraband was

lawful, assuming, as we do, that the entry into the room was

also lawful.

12a

The court therefore adopts the recommendations contained

on page 13 of the magistrate’s report for the reasons and with

the amplifications stated above.

This case will be called on Monday, September 27, 1982 at

2:00 p.m. for status and to be set for trial.

ENTER:

/s/ THOMAS R. MCMILLEN

Thomas R. McMillen

Judge, U. S. District Court

DATED: Sept. 17, 1982

13a

IN THE UNITED STATES DISTRICT COURT

For the Northern District of Illinois

Eastern Division

United States of America

v. 82 CR 169

James Dowell and

Luther Larry Brown

To: The HONORABLE THOMAS R. McMILLEN, Judge,

United States District Court

REPORT AND RECOMMENDATIONS

OF

MAGISTRATE OLGA JURCO

Defendants are charged with dealing in cocaine. Approxi-

mately 700 grams of the drug were seized on March 12, 1982

when defendants were arrested by the Drug Enforcement

Administration in Room 248 of the Budgetel Motel registered

to defendant Brown.

The standing of defendant Dowell to suppress the con-

traband evidence has been challenged by the government.

Defendant Dowell had been registered to Room 246. In

addition, the defendant Dowell has moved for reconsideration

of denial of his motion under Rule 41 for the return of $2880.00

taken from his luggage in Room 248. The denial had been

premised on administrative completion of forfeiture. Ruling

and consideration of these motions will be dealt with later in

this Report and Recommendation.

Defendants moved to suppress seizure of the cocaine and

to suppress statements made after arrest. Basic to the decision

on the motion to suppress use of the contraband as evidence is

resolution of whether the entry and seizure by Drug Enforce-

l4a

ment Administration agents was in violation of constitutional

rights. The arrests of defendants and the seizure of the cocaine

and other property were without an arrest warrant, Payton v.

New York, 445 U.S. 573 (1980), or search warrant, Chimel v.

California, 395 U.S. 752 (1969); Ker v. California, 374 U.S. 23

(1963). The entry was made without first knocking and

announcing identity or purpose. Sabbath v. United States, 391

U.S. 585 (1968). It is not argued that the same degree of

protection does not exist because a hotel room as distinguished

from a home was involved. It is the government’s burden to

show justification for a warrantless entry and it contends that

exigent circumstances existed requiring the warrantless entry by

agents. The government’s statement of facts in its post-hearing

brief pp. 1-7 is substantially accurate.

On February 8, 1982, Platts came to the DEA office; he

told Agent Irwin that he was involved in the distribution of

cocaine and marihuana; that three suitcases had arrived at

O’Hare from Florida and one of these, a yellow suitcase,

contained some cocaine which Platts had brought from Florida,

given to him by Mr. Dowell; that he did not claim the luggage

because he thought DEA was “onto him.” Platts returned to the

DEA office the next day because he thought the yellow suitcase,

which was under an assumed name, might be picked up by

someone else. Agent Irwin later that day claimed the luggage.

The following day Platts opened the yellow suitcase in the DEA

office and retrieved a clear plastic bag containing approxi-

mately 650 grams of cocaine.

Agent Irwin, through Platts, who agreed to cooperate,

initiated an inquiry to Dowell for the purchase of a large

quantity of cocaine. On February 16 and on February 26

arrangements were made through Platts in telephone conversa-

tions with Dowell, recorded with Platts’ consent, respecting the

price and delivery of cocaine to the Chicago area. Platts met

Dowell at the Hinsdale Oasis on February 26 to pay Dowell

money on a debt he owed Dowell on prior deals and for a

15a

sample of cocaine for the putative purchase. In a recorded

telephone conversation of March 9 initiated by Platts, Dowell

stated the contraband would be brought sometime during the

night. Agent Irwin and other agents set up surveillance March

9 at O’Hare Airport of all flights coming from Florida, giving

the surveillance agents the description of Larry Brown as

related to him by Platts who thought Brown would deliver the

cocaine. However, on March 10 Dowell called Platts to say he

was enroute and there was a possibility that Dowell or Larry

might fly out of Atlanta. On March 11 Dowell called Platt

again stating he would arrive noon March 11. Platt asked

Dowell whether he was bringing the cocaine, the price, and was

told it was 700 grams and the price was $42,000. Platt

indicated he could get $53,000 and could give Dowell $8000 or

$9000 on a $100,000 or $131,000 debt he owed Dowell on prior

dealings. That conversation was tape-recorded (GX 6B). On

March 12 around 7 AM, Dowell called Platts that he was still

enroute and would be in touch with him in the early evening.

Platts received a call from Dowell at about 9 PM and was

checking into the Budgetel Motel, that Platt could pick up the

cocaine or bring his buyer. Platts replied he would come down

there. That conversation was tape-recorded (GX 7B).

Agent Irwin and Platts drove separately to another meet-

ing point with other agents in the near vicinity of the Budgetel

Motel. Thereafter, Agent Irwin, with Platts driving, proceeded

to the Sheraton Hotel, where at around 10:30 PM Platts called

the Budgetel Motel asking for James Dowell’s room. He spoke

to Dowell who told him to come to Room 246; and then Dowell

changed it to Room 248. The conversation was overheard by

Agent Irwin. Approximately 15 minutes later, Agent Irwin and

Platts proceeded to the Budgetel Motel. During that trip, Agent

Irwin told Platts he was to go in, see what was in the room,

return to Agent Irwin to report, and to allay Platts’ concern,

stated that if an arrest became necessary he would also be

arrested. Platts went in the back entrance of the motel to Room

248. knocked on the door and was admitted by defendant

l6a

Dowell. In the room with Dowell was Larry Brown. Dowell

briefly left Room 248 to go into the adjoining room and

returned with a brown shaving case which he opened and

passed a plastic bag to Platts who opened it, smelled it, tasted it

and “snorted” some of the cocaine. Brown also took some.

Platts left the room about 15 to 20 minutes later, using the

excuse that he was going to call his buyer from the lobby phone

to bring the money.

Agent Irwin had become concerned because of the “long”

delay in Platts’ return. Platts eventually met Agent Irwin in the

lobby by the pay phone as arranged. On inquiry, Platts said

everything was OK; that Larry was there, Dowell was there,

and the cocaine was in the room. Agent Irwin testified that

Platts was “very agitated” and anxious to get back to the room

because he felt nervous about being away in that they would

Start interpreting his delayed return to the room as being a

double-cross or something (Irwin 70, Platts 179-181B). Platts

admitted he was nervous because he didn’t know if there was

anyone else involved in the deal in the area and snorting

cocaine made him a little uneasy, nervous, giving him a light

euphoric effect. Agent Irwin asked Platts whether he was high

on cocaine and Platts said he had taken some. To Agent Irwin,

that was an unexpected occurrence. However, he instructed

Platts to return to the room to be certain Brown and Dowell

and the cocaine were still there and immediately call him from

the pay phone in the hallway of the motel to let Irwin know he

was all right. Platts wrote the number of the telephone on a

match cover and put it in his pocket. Agent Irwin relayed

information to the other agents that the cocaine was in the room

and waited for the call from Platts; he waited for 15 or 20

minutes.

When no call was made, Agent Irwin made his identity

known to the night clerk and asked for passkeys to Rooms 246

and 248. A security guard accompanied the five agents and

Agent Irwin, and used the keys to these rooms to unlock the

doors. Agent Irwin opened the door to Room 246, entered with

other Officers; no announcement of identify or purpose was

17a

made; he had his weapon drawn. Defendants Brown and

Dowell were running into Room 246 where they were arrested

by Agent Irwin, handcuffed and placed on beds in Room 246.

No Miranda warnings were given to either defendant by the

agents. Agent Duckhorn and other agents simultaneously

entered Room 248, found Platts, arrested him.

Subsequent to the arrests, Platts stated he had not called

Irwin because he was trying to make the deal go as smoothly as

possible and he didn’t want to rush things. On his return to

Room 248, he again took some more of the cocaine which was

on the bed. He had been in the room about 20 minutes when

the agents entered. Agent Irwin later told him he was worried

about his safety and that is why they came in so early.

Defendants contended that the fact that Agent Irwin

permitted Platts to return to Room 248, knowing that Platts

had used cocaine, cannot be reconciled with his fear that by not

receiving the later call from Platts, and by the time a warrant

could be obtained, he “might go in there and find Platts dead”

(Irwin 131). Agent Irwin testified that before Platts went into

the room he said there would be guns there and Irwin assured

him that if it was necessary to make an arrest, they would

appear to arrest him also (Irwin 66, 90); that Platts said Mr.

Brown would- have a weapon (Irwin 91, 92, 117). Platts had

no recollection of telling Agent Irwin during the lobby conver-

sation anything with respect to Mr. Brown and weapons ( Platts

181C, 181E) and testified he did not inform Agent Irwin that

Brown would probably have a weapon (181B). The testimony

of both Irwin and Platts shows that Platts, on a prior occasion

known to Agent Irwin, met two of Dowell'’s people, Cosgrove

and Dino, in Bolingbrook. Unbeknownst to Agent Irwin, who

was on surveillance, Platts carried a firearm; he told Irwin he

carried a weapon because he was afraid because some of

Dowell’s people carried weapons sometimes and was in fear of

his safety (Plats 181B-E, 213). He further had told Agent

Irwin on February 8th and 9th that Brown was a former police

officer from whom he had purchased cocaine.

18a

Agent Irwin testified it was his plan, after he received

Platts’ call, to enter Room 248 as the ostensible buyer for the

700 grams. He admitted that he had no “flashroll” to pay for it;

he intended to postpone the completion of the transaction to the

next day to make arrangements for the money; that he would

make efforts to persuade Dowell and Brown to postpone the

transaction. Defendants construe this as being another element

to be considered negatively in weighing the concern he ex-

pressed for Platts’ safety, particularly after he instructed Platts

to return, knowing he had ingested cocaine.

This testimony must also be considered as to the existence

of intent to enter Room 248 for the sole purpose of arresting

and seizing the evidence. Agent Irwin had sufficient probable

cause to arrest following his meeting in the lobby with Platts.

He intended to carry through on his role as buyer. The failure

of Platts to call, his earlier cocaine use in Room 248, the

previous information in February given to Agent Irwin of his

fear of Dowell’s people, and the credibility to be given to

testimony of the lobby conversation between Platts and Agent

Irwin are critical to the reasonability of the judgment exercised

by Agent Irwin to enter Room 248. It is to be noted that Agent

Irwin, after the arrests, expressed to Platts his grave concern for

his safety. These circumstances resulted in the drug agents

entering without prior notice of authority and purpose required,

Sabbath v. United States, supra, and the ensuing property and

evidence seizures. Ker v. California, supra. The interpretation

of the objective facts concidedly raise a close question. Dis-

cussed by Justice Powell, in his concurring opinion in United

States v. Watson, 423 U.S. 411( 1976) is the dilemma facing

arresting Officers:

“* * * Good police practice often requires postponing an

arrest, even after probable cause has been established. in

order to place the, suspect under surveillance or otherwise

develop further evidence necessary to prove guilt to a jury.

Under the holding of the Court of Appeals such additional

19a

investigative work could imperil the entire prosecution.

Should the officers fail to obtain a warrant initially, and

later be required by unforeseen circumstances to arrest

immediately with no chance to procure a last-minute

warrant, they would risk a court decision that the

subsequent exigency did not excuse their failure to get a

warrant in the interim since they first developed probable

cause. If the officers attempted to meet such a contingency

by procuriag a warrant as soon as they had probable cause

and then merely held it during their subsequent in-

vestigation, they would risk a court decision that the

warrant had grown stale by the time it was used. Law

enforcement personnel caught in this squeeze could ensure

validity of their arrests only by obtaining a warrant and

arresting as soon as probable cause existed, thereby fore-

closing the possibility of gathering vital »additional evi-

dence from the suspect’s continued actions. * * *”

Delay in seeking an arrest or search warrant, even when known

contraband was in Room 248, does not negate possibility of

subsequent exigent circumstances requiring warrantless entry.

Dowell, according to Platts, was a dealer in narcotics. Agent

Irwin believed, on information from Platts, that there might be

weapons in the room. Not only was it believed Platts was in

danger, but it must be considered that such probability posed a

risk to law enforcement agents. I would conclude that Agent

Irwin’s actions was not based on unfounded fear and belief of

imminent danger to Platts. The exigency and emergency was

neither created by the arresting officers, nor was entry made for

the sole purpose of arresting the defendants. I would recom-

mend to the Court that a finding be made that the testimony of

Agent Irwin as to the lobby conversation is more believable

than that of Platts. In balancing the objective facts, | would

recommend to the Court that it find there was reasonable

grounds for the belief of Agent Irwin that there was an

immediate need for agents’ assistance for protection of life and

that risk of harm to Platts was imminent if agents delayed until

an arrest warrant and search warrant were obtained; that it was

not motivated by intent to arrest and seize evidence.

20a

The government alternatively argues that the entry should

be equated to a consensual entry under the authority of United

States v. White, 660 F.2d 1178 (7th Cir. 1981). It contends

that the defendants’ consensual entry of Platts into Room 248

on the first and second occasion make unnecessary a determina-

tion of the legality of the later entry of the agents because Platts

was still in Room 248. Therefore, their entry was not a separate

intrustion of constitutional dimension because Platts was acting

in the capacity of the government’s agent. This argument is not

persuasive and is not accepted.

Defendant Brown argues that basis for an arrest warrant

for Dowell existed on February 26 when he met Platts at the

Hinsdale Oasis and a transfer of 65% grams of marihuana was

made under the surveillance of Agent Irwin. It is urged a

warrant of arrest should have been requested at that time. Such

a contention was considered and rejected in United States v.

Salmasian, 515 F.Supp. 690 (D. Md. 1891). District Judge

Elfin stated at p. 689:

“*** requiring a warrant as to the earlier-committed

crimes would seriously interfere with a legitimate police

inquiry without any countervailing justification. Once a

warrant would have been obtained, there would have been

a positive duty on the government to execute the same

promptly; where, as here, it is believed that the person

named in the warrant may shortly commit additional and

more serious crimes than those able to be listed in the

warrant and is under surveillance for the same, this

requirement of promptness might well force the police

‘either to abandon prosecution of the already-committed

crimes or to move in prematurely and destroy any hopes of

prosecution of the prospective crimes. * * * ”

Having recommended a finding that the no knock-no

announcement entry was made under rapidly-arisen exigent

circumstances, the legality of the search must be addressed. If

the entry was within constitutional bounds, seizure of property

2la

in open view involves no invasion of privacy and is presump-

tively reasonable where there is probable cause to associate the

property with criminal activity. Payton v. New York, 445 US.

573 (1980); United States v. Watson, supra. The facts with

regard to the packet of cocaine show it was in open view. The

shaving kit was lying on the top of the bed in Room 248; the kit

was open; the plastic container with cocaine was visible and

open. Platts’ testimony was that the kit and container, which he

had opened, was on the bed just before the entry effected by

DEA agents. Scope of search incident to arrest as delineated in

Chimel v. United States, supra, is not here applicable. When-

ever an Officer makes usual observation of contraband from a

vantage point he rightfully occupies, he has not made an illegal

search within the Fourth Amendment since one who placed an

object in plain view has not exhibited actual or subjective

expectation of privacy in the object. The seizure of the cocaine

was lawful under the open view doctrine.

The standing of Dowell to suppress seizure of the con-

traband is next considered. The burden rests on one who seeks

to suppress to prove his legitimate expectation of privacy has

been violated. From all the evidence relating to the registration

of Room 246 to Dowell and Room 248 to Brown, their request

for adjoining rooms, the pass-key to the door between the

rooms, the fact that after the arrests all the luggage was in

Room 246, that Platts met Dowell in Room 248 and that

Dowell went into Room 246 and returned with the shaving kit

to Room 248, I conclude that Dowell and Brown had equal

interest in Room 248, and that both defendants Brown and

Dowell intended to use Room 248 as their place to transact

business with Platts and/or his buyer. Standing does not

depend on property rights in the invaded place; it is whether the

area was one where there was reasonable expectation of

privacy. Dowell had expectation of privacy in Room 248.

Therefore, Dowell has standing to move to suppress the

cocaine.

fe 22a

Next for consideration is Dowell’s motion for return of

property and the motion of both defendants for suppression of

the tape recordings. The defendant Dowell’s motions for return

of truck and firearm taken from him following arrest on March

12, 1982 has been mooted because the government has re-

turned these articles to defendant Dowell. The defendants

have withdrawn their motions to suppress use of recorded

telephone conversations between Platts and Dowell conceding

that Platts was acting as an informant of the government at the

time of their recording.

There remains the issue of the seizure of $2880 from

Dowell’s luggage in Room 246. In this respect, the application

of the principles of search incident to arrest set forth in Chimel,

Supra, are to be weighed. Arkansas v. Sanders, 442 U.S. 753.

Also to be considered are the motions of Brown and Dowell

when, without Miranda warning, each, when asked, identified

their “open” luggage and Brown’s answer to Agent Irwin’s

question.

Agent Irwin and other agents entered into Room 248

under previously found exigent circumstances. Agent Irwin

testified that after arresting and handcuffing Brown and Do-

well, who were entering Room 248 from Room 246, and

placing them face down on the beds in that room, he went into

Room 246, saw the contraband on the bed and field tested it.

On returning from Room 248 to Room 246, he testified three

pieces of luggage were open, but he did not know who, when

and how the luggage was opened. One of the officers showed

him a shaving kit which had come from Dowell’s luggage. This

contained the currency. In Brown's luggage was found addi-

tional cocaine. There is no evidence presented by the govern-

ment from which to conclude that, other than the luggage of the

female occupant of Room 248, the luggage of Brown and

Dowell was open at the time of Agent Irwin's and other agents’

entry. Chimel establishes that protective searches incident to

23a

arrest are essential. It does not, however, sanction opening of

closed luggage. Chimel articulated the standards by which

searches incident to arrest must be measured.

“(I]t is entirely reasonable for the arresting officer to

search for and seize any evidence on the arrestee’s person

in order to prevent its concealment of destruction. And the

area into which an arrestee might reach in order to grab a

weapon or evidentiary items must, of course, be governed

by a like rule. A gun on a table or in a drawer in front of

one who is arrested can be as dangerous to the arresting

Officer as one concealed in the clothing of the person

arrested. There is ample justification, therefore, for a

search of the arrestee’s person and the area ‘within his

immediate control’ construing that phrase to mean the area

from within which he might gain possession of a weapon

or destructible evidence.

“There is no comparable justification, however, for

routinely searching rooms other than that in which an

arrest occurs—or, for that matter, for searching through all

the desk drawers or other closed or concealed areas in that

room itself.”

I would recommend the Court find that the seizure of currency

belonging to Mr. Dowell was beyond the scope of Chimel. The

order previously entered is vacated.

Defendant Brown moves to suppress an incriminating

statement that additional white powder found in his luggage

was cocaine because it was elicited from him by questions of

Agent Irwin; that neither Agent Irwin nor any other agent had

advised him of his Miranda rights. It is also contended that

they were asked by Agent Irwin to identify which of the

luggage seized belonged to them. The agents’ testimony is that

no Miranda warnings were given to Dowell and Brown at the

time of their arrests in Room 248. Statements of Brown and

Dowell identifying luggage and Brown's response to question-

ing were a violation of the precepts of Miranda v. Arizona, 384

U.S. 436 (1966). The defendants’ motions should be granted.

24a

It is recommended the Court find:

1. The testimony of Platts and Agent Irwin establishes that

probable cause existed to believe that crime was about to be

committed or was being committed by defendants Dowell and

Brown in Room 248, Budgetel Motel.

2. The agents’ entry into Rooms 246 and 248 of the

Budgetel Motel without notice of identity or purpose was based

on reasonable belief of a substantial risk of harm occurring to

their cooperating individual, Platts. The testimony of Agent

Irwin as to probable presence of weapons in Room 248 is more

credibie than that of Platts, the cooperating individual.

3. Emergency and exigent circumstances justified warrant-

less entry without an arrest and/or search warrant.

4, The defendant Dowell has standing to move to suppress

the seized cucaine.

5. The 700 grams of cocaine was legitimately seized, being

in plain view. The facts with regard to the packet of cocaine

show it was in open view. The shaving kit was lying on the top

of the bed in Room 248; the kit was open; the plastic container

with cocaine was visible and open.

6. The government has failed to sustain its burden to show

tha’ the seizure and search of defendants’ luggage was neces-

Sary either as a protective sweep to protect the arresting officers

or to preserve evidence. The government is directed to return

the $2880.00 to defendant Dowell.

7. The agents failed to inform defendants after their arrest

of their rights under Miranda. The statements of defendants

Dowell and Brown in identifying their luggage, and Brown's

admission under questioning from Agent Irwin are in violation

of their constitutional rights.

It is recommended the Court deny defendants’ motion to

suppress the use of the cocaine as evidence in this case. It is

25a

recommended the Court grant defendant Dowell’s motion for

return of the $2880.00. It is recommended the Court grant

defendants’ motion to suppress any statements of defendants

respecting said luggage or the contents.

Parties are given ten (10) days from date hereof, unless

otherwise ordered by the Court, to file objections to said Report

and Recommendations with the Honorable Thomas R.

McMillen.

Respectfully submitted,

/s/ OLGa JuRCO

Olga Jurco,

United States Magistrate

August 10, 1982

Attachments:

Hearing Transcript

Post-Hearing Briefs of the Parties

Pretrial Motions of the Parties

cc: Dan K. Webb,

United States Attorney

Attention: AUSA D. C. Bohan

1500 Dirksen Building

Chicago, Illinois 60604

Richard F. Walsh, Esquire

53 West Jackson Boulevard, #1220

Chicago, Illinois 60604

Donald L. Ferguson, Esquire

2915 S.W. 27th Avenue

Miami, Florida 33133

26a

Amend 4 CONSTITUTION

AMENDMENT 4

Unreasonable searches and seizures.

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affimation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.