Petition for Writ of Certiorari — Hebert v. United States

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NO.

Supreme Court of the United States

OCTOBER TERM, 1984

ROYCE DAVID HEBERT,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GERALD H. GOLDSTEIN

RALPH A. LOPEZ

GOLDSTEIN, GOLDSTEIN & HILLEY

29th Floor Tower Life Building

San Antonio, Texas 78205

Attorneys for Petitioner,

ROYCE DAVID HEBERT

a a A REE I DR EE acs

Alpha Law Brief Co., Inc_—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED

WHAT STANDARD SHOULD BE APPLIED TO

REVIEW A WARRANT CONTAINING INFOR-

MATION GAINED FROM AN ADMITTEDLY

ILLEGAL PRIOR SEARCH OF THE SAME PREM-

ISES: THE FRANKS “REDACTION” ANALY-

SIS APPLIED BY THIS COURT IN USS. V.

KARO OR THE “ATTENUATION” ANALY-

SIS UTILIZED BY THIS COURT IN SEGURO

V. U.S.?

WHETHER THE FRUITS OF A RESIDENTIAL

SEARCH SHOULD BE ADMITTED WHERE A

SUBSTANTIAL PORTION OF THE SEARCH

WARRANT AFFIDAVIT FOR THOSE PREM-

ISES WAS COME AT BY THE EXPLOITATION

OF A PRIOR, {LLEGAL, WARRANTLESS

SEARCH OF THOSE SAME PREMISES, THAT

SAME DAY?

Ul

TABLE OF CONTENTS

QUESTIONS PRESENTED 2.5 .cscsiessecsccadsatens

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CONSTITUTIONAL PROVISION INVOLVED .........

SEATEDERING 0F TRS GAMES 50 <6 05h se deccaias sadkane

THE WARRANT TO SEARCH HEBERT’S RESI-

DENCE WAS BASED UPON AFFIANT BRAZIEL’S

SURREPTITIOUS, WARRANTLESS ENTRY UPON

TEEID PREM Sivns 5555055050 OFLC

SURREPTITIOUS, WARRANTLESS ENTRY NOT

MENTIONED IN AFFIDAVIT ............00s00e.

FRUITS OF ILLEGAL SEARCH OF PRIVATE RESI-

DENCE UTILIZED AS PROBABLE CAUSE TO OB-

TAIN WARRANT FOR SUBSEQUENT SEARCH OF

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1. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S ANALYSIS IN SEGURA V.

CNITED STATE 05.6 ckicdcgeaee eee eee

THIS COURT HAS SUGGESTED SOMETHING

MORE THAN SIMPLE FRANKS ANALYSIS IS

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WHAT TEST TO APPLY: “REDACTION” VS. “AT-

TENUATION” AMALQOUB. oiaccseindccckones css

2. EVEN IF THE FRANKS’ “REDACTION” ANAL-

SIS WERE APPROPRIATE, THE TRIAL COURT’S

EXORCISM WAS INSUFFICIENT TO REMOVE

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APPENDIX A—Opinion of the United States Court of

Appeats, Fs. COO cs oo oc vranc ink

Ill

TABLE OF AUTHORITIES

CASES

Brown v. Illinois, 442 U.S. 590, 600 (1975) .............

Dunnaway v. New York, 422 U.S. 200 (1975) ..........

Fixwell v. Wainwright, 492 F.2d 480 (Sth Cir. 1974) ....

Florida v. Royer, 460 U.S. 491 (1983) ............0555.

Franks v. Delaware, 42% U.S. 154 (1978)...............

Oliver v. U.S., 104 S.Ct. 1735, 1742-3, n.12 .............

Segura v. United States, 468 U-S. , 82 L.Ed.2d 599

SUE cb sa mceantasdseccedeepecesadcscccsccsescses

U.S. v. Cruz, 581 F.2d 535 (Sth Cir. 1978) .............

US. v. Davis, 423 F.2d 974 (Sth Cir. 1970) ............

U.S. v. Karo, 468 US. , 82 L.Ed.2d 530 (1984) ....

US'S. v. Parker, 772 F.2d 179 (Sth Cir. 1983) ...........

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

NO.

N THE

Supreme Court of the United States

OCTOBER TERM, 1984

ROYCE DAVID HEBERT,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Royce David Hebert, the Petitioner herein, prays that

a Writ of Certiorari, issue to review the Judgment and

Opinion of the United States Court of Appeals for the

Fifth Circuit entered in this cause February 11, 1985.

OPINION BELOW

The Opinion of the Court of Appeals is reported at

753 F.2d 1301 and is printed as Appendix “A” hereto.

JURISDICTION

The judgment of the Court of Appeals was entered

on February 11, 1985 and the mandate returned on

2

March 5, 1985. Petitioner invokes the jurisdiction of

this Court under 28 U.S.C. § 1254(1) by timely filing

this Petition for Writ of Certiorari to the Fifth Circuit

Court of Appeals.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment provides: “The right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures,

shall not be violated, and no 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”.

STATEMENT OF THE CASE

I. Course of Proceedings and Disposition in Court

Below:

On May 3, 1983, Petitioner ROYCE DAVID HE-

BERT was charged in a four count indictment with

conspiring to distribute [Count One], aiding and abetting

the distribution [Count Two] and unlawfully distri-

buting [Count Four] marijuana.

Prior to trial, Petitioner Hebert moved to suppress

all evidence seized from his Austin, Texas home (evi-

dence which served as the only basis implicating Hebert

in this offense) arguing that same was the fruit of a

prior illegal warrantless search of those same premises.

Although agreeing that the prior warrantless entry of

his property by DEA Agent Braziel constituted a “severe

invasion” of Hebert’s premises, the District Court, after

hearing on his Motion, denied same.

3

Consequently, Hebert entered a plea of guilty to one

count of conspiracy [21 U.S.C. § 841(a)(1)], reserving

his right to appeal the District Court’s denial of his

motion to suppress. On March 23, 1984, Appellant was

found guilty and sentenced to five years incarceration

and a $15,000 fine. On the 11th day of February, 1985,

the Fifth Circuit Court of Appeals affirmed Appellant

Hebert’s conviction. While agreeing with the District

Court that Agent Braziel’s entry on the premises was

illegal, the Court below concluded that the warrant was

based on sufficient probable cause and Agent Braziel’s

prior illegal observations constituted “only a small part

of the information presented to the magistrate”.

Appellant timely files this Application for Certiorari,

seeking review by this Court.

STATEMENT OF RELEVANT FACTS

CONTESTED SEAKCH

On November 2, 1982, Federal, State and local offi-

cers searched Appellant Hebert’s residence at 1713 Syl-

van Drive, Austin, Texas, seizing the only evidence

implicating Hebert in this offense [Rec. Vol. X, p. 10-11].

It is this search, based upon a warrant obtained and

executed by DEA Agent Richard Braziel, that is the

subject of this appeal.

THE WARRANT TO SEARCH HEBERT’S RESI-

DENCE WAS BASED UPON AFFIANT

BRAZIEL’S SURREPTITIOUS, WAR-

RANTLESS ENTRY UPON

THOSE PREMISES

Agent Braziel’s sworn affidavit to search Hebert’s

Sylvan Drive property recited observations Braziel ob-

4

tained by surreptitiously entering upon those same resi-

dential premises the day before.

“The surveillance observed Aaron Maxwell, a Black

male, exit JoJo’s restaurant [sic] and enter the blue

and white 1977 Chevrolet . . . and drive it to 1713

Sylvan Drive, in Austin, Texas, a few blocks from

the JoJo’s restaurant [sic]. S/A Braziel observed

the vehicle pull into the garage and the garage

door then closed. S/A Braziel further heard a car

trunk lid being opened. Further, $/A Braziel heard

a noise like heavy objects being thrown in a trunk

of a vehicle, after which the trunk lid slamed [sic].

The garage door opened and blue and white Chev-

rolet bearing 1984 Texas License plate PCQ658,

driven by Aaron Maxwell backed out of the garage.”

[Rec. Vol. X, p. 144].

SURREPTITIOUS, WARRANTLESS ENTRY

NOT MENTIONED IN AFFIDAVIT

However, what was not mentioned in the affidavit

provided to the Magistrate is that Agent Braziel ac-

complished these observations only by surreptitiously

entering Hebert’s residential property, “creeping up” next

to Hebert’s house and pressing his nose and ear against

the garage door. [Rec. Vol. X, at 55].

From this distance, with his nose pressed up to the

garage door, Agent Braziel testified he “heard the trunk

lid open on the vehicle”, what he believed to be

“ . . heavy object being thrown into the trunk” and

smelled what he said was the “odor of marijuana coming

from the . . . garage door” [Rec. Vol. X, p. 55].

5

FRUITS OF ILLEGAL SEARCH OF PRIVATE

RESIDENCE UTILIZED AS PROBABLE

CAUSE TO OBTAIN WARRANT FOR

SUBSEQUENT SEARCH OF THAT

SAME ABODE

As a result of what Agent Braziel allegedly heard and

smelled while the Chevrolet was at the Sylvan Drive

address he ordered the arrest of Allen Granger, who

was observed leaving the restaurant parking lot in that

same Chevrolet which Aaron Maxwell had driven from

the residence on Sylvan Drive [Rec. Vol. X, pp. 56-71].

Agent Braziel stated that after Granger’s arrest he could

detect the same “strong odor of marijuana coming from

the ‘vehicle’ in which Granger was arrested” [Rec. Vol.

X, pp. 56-7, 102]. This statement was in turn included

in Braziel’s affidavit as part of the probable cause asserted

for the warrant to search Hebert’s house on Sylvan Drive

[Rec. Vol. II, p. 145].

Again, what Agent Braziel did not mention in his

affidavit for a warrant to search Hebert’s residence is

the fact that the probable cause for arresting Granger

in the first place was based in large part upon Agent

Braziel’s illegal observations at those same premises.

Here, Granger’s arrest in the Chevrolet automobile

was based, in substantial part, upon the fruits of the

prior illegal, surreptitious entry of Hebert’s Sylvan Drive

residence and the fact that Braziel overheard what he

believed to be the loading of the vehicle’s trunk and

smelled what he believed to be marijuana emanating

from the garage where the Chevrolet was located. The

government then utilized the fruits of that arrest as

probable cause to re-enter and search that same residence.

6

MOTION TO SUPPRESS

Prior to trial Hebert moved to suppress the evidence

discovered as a result of the search of his Sylvan Drive

residence on November 2, 1982 [Rec. Vol. V, p. 111],

arguing that Agent Braziel’s initial warrantless activities

in the bushes next to Hebert’s garage door the day be-

fore constituted an illegal search and that without the

fruits of this initial illegality or the stale information

recited in the affidavit, probable cause to search the resi-

dence was lacking [See: Rec. Vol. V, pp. 105-109].

After hearings on the Motion to Suppress, the Trial

Court concluded that when Agent Braziel surreptitiously

entered Hebert’s residential property “at night” and

listened at the garage door, “pressing his nose to that

door”, same “constituted an invasion of the curtilage

of that property sufficient to constitute a search without

a warrant” [Rec. Vol. I, p. 15], noting that:

“The curtilage of a private home is given a greater

privacy expectation than an ordinary building or

automobile. . . . These facts present a severe invasion

of privacy.” (emphasis supplied) District Court’s

Order [Rec. Vol. I, p. 15].

As a remedy for this “severe invasion” of Hebert’s

privacy the trial Court applied a Franks v. Delaware

analysis and “struck from the affidavit” only the “state-

ment in the affidavit regarding the three thuds heard

1. See: Fixell v. Wainwright, 492 F.2d 480 (Sth Cir. 1974) and

U.S. v. Davis, 423 F.2d 974 (Sth Cir. 1970) where the Court held

a government agent’s nighttime entry into an unfenced yard sur-

rounding a private residence constituted a “severe invasion of pri-

vacy”. And see: Oliver v. U.S., 104 S.Ct. 1735, 1742-3, n. 12, where

this Court reaffirmed it’s “recognition that the curtilage remains

within the protection of the Fourth Amendment”’.

7

by Agent Braziel” while pressed against Hebert’s garage

door [Rec. Vol. I, p. 15].

The trial Court left undisturbed, however, Braziel’s

recitation that “[A]t the time of [Granger’s] arrest Agent

Braziel noticed the odor of marijuana coming from

Granger’s vehicle” [Rec. Vol. I, p. 13], even though

there could be little question that Braziel’s decision to

arrest Granger in that vehicle was based in substantial

part on the fact that Braziel had heard what he believed

to be the loading of the auto’s trunk and smelied what

he believed to be the same odor of marijuana while that

vehicle was inside Hebert’s garage.

In effect the trial court allowed Braziel to utilize as

support for a warrant to search a private residence, in-

formation gained as the result of an arrest which itself

was based in substantial part upon a prior illegal entry

of that very same residence that same day.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S ANALYSIS IN SEGURA V.

UNITED STATES:

THIS COURT HAS SUGGESTED SOMETHING

MORE THAN SIMPLE FRANKS

ANALYSIS IS NEEDED

In determining whether a search warrant for residen-

tial premises has been tainted by an admittedly illegal,

prior, warrantless search of those same premises, the

proper test is whether the prior illegal intrusion contri-

buted “in any way to the discovery of the evidence seized

under the warrant”. Segura v. U.S. 468 U.S.___, 82 L. Ed.

8

2d 599 (1984). Such an “attenuation” test looks to

whether the warrant search “was a means sufficiently

distinguishable to purge the evidence of any taint arising

from the entry”. Segura v. U.S., 468 U.S.___, 86 L.Ed.2d

at p. 614. See also: Brown v. Illinois, 422 U.S. 590, 600

(1975); Dunnaway v. New York, 442 U.S. 200 (1975);

Florida v. Royer, 103 S.Ct. 1319, 1328 (1983).

In applying such an “attenuation” analysis, this Court

has looked to the purposefulness of the officer’s conduct.

Brown v. Illinois, 422 U.S. at p. 600 [listing the “purpose

and flagrancy of the official misconduct” as a factor];

U.S. v. Dunnaway, Supra; U.S. v. Parker, 722 F.2d 179

(Sth Cir. 1983); U.S. v. Cruz, 581 F.2d 535 (Sth Cir.

1978) en banc [the information was discovered as a

result of a search having no purpose other than their

discovery].

There can be little doubt as to Agent Braziel’s purpose

in iliegally entering the curtilage of Hebert’s residence.

It was to obtain information.

WHAT TEST TO APPLY: “REDACTION”

VS. “ATTENUATION” ANALYSIS

A serious question in need of resolution is what test

courts should apply when information obtained from

a prior illegal entry is utilized to secure a warrant to re-

enter and search those same premises: the Franks “re-

daction” analysis applied by the Court in Karo or the

“attenuation” analysis utilized by the Court in Segura.

Three days before the decision in Segura, this Court

in U.S. v. Karo, 468 U.S. 530, 82 L.Ed.2d 530 (1984)

applied a Franks v. Delaware “redaction” analysis to

9

excise from a warrant information obtained by officers

from the prior illegal monitoring of an electronic tran-

sponder placed within a home. U.S. v. Karo, Supra, at

p. 544.

“That information [from the beeper], which was

included in the warrant affidavit, would also in-

validate the warrant for the search of the house if

it proved to be critical to establishing probable

cause for the issuance of the warrant. However, if

sufficient untainted evidence was presented in the

warrant affidavit to establish probable cause, the

warrant was nevertheless valid.” U.S. v. Karo, Supra,

at p. 544.

However, the Court took pains to note that the “moni-

toring of a electronic device such as a beeper is, of

course, less intrusive” than a search. (emphasis supplied)

U.S. v. Karo, Supra, at p. 541.

Conversely, the prior illegality here, just as that in

Segura constituted a prior illegal entry onto private

premises.

The police in Segura had illegally entered an apart-

ment the day before a search warrant was obtained

and executed for those premises. Unlike the instant facts,

the affidavit there did not contain any information

obtained as a result of the initial entry. Thus, the Court

could have used the “redaction” analysis from Franks

v. Delaware to sustain the validity of the search con-

ducted pursuant to the warrant.

Instead, the Court, citing Wong Sun v. United States,

371 U.S. 471 (1963), focused upon whether the search

warrant was a means sufficiently distinguishable to purge

the evidence of any taint arising from the prior entry,

10

Segura, Supra, at p. 608. The Court ultimately concluded

that suppression of the fruits of the search conducted

pursuant to a warrant was unnecessary because “the

illegal entry into [defendants’] apartment did not con-

tribute in any way to discovery of the evidence seized

under the warrant.” The Court observed:

“None of the information on which the warrant

was secured was derived from or related in any

way to the initial entry into petitioners’ apartment;

the information came from the agents well before

the initial entry. No information obtained during the

initial entry or occupation of the apartment was

needed or used by the agents to secure the warrant.

It is therefore beyond dispute that the information

possessed by the agents before they entered the

apartment constituted an independent source for

the discovery and seizure of the evidence now chal-

lenged. This evidence was discovered the day follow-

ing the entry, during the search conducted under

a valid warrant; it was the product of a search,

that search, wholly unrelated to the prior entry.

The valid warrant search was a ‘means sufficiently

distinguishable’ to purge the evidence of any ‘taint’

arising from the entry.” Segura v. U.S., Supra, 82

L.Ed.2d at p. 614.

It would be difficult to argue seriously that Agent

Braziel’s illegal observations at the Sylvan Drive residence

the day before he included same in his warrant affidavit

“did not contribute in any way to the discovery of evi-

dence seized under the warrant”, Segura v. U.S.,—~—

Supra, at p. 614.

The warrant to search Hebert’s residence is not “at-

tenuated” from, but rather is substantially based upon ©

the prior illegal entry of that same residence, on that

11

same day. Agent Braziel’s purpose in entering those

premises was to gain information regarding the Chevro-

let vehicle he had seen enter the garage. It was what

Braziel heard and smelled while the car was inside that

caused him to stop that vehicle and it was what he

smelled at the time he arrested its occupants that he

related to the Magistrate as probable cause to re-enter

and search Hebert’s residence. The sequence of these

events are inextricably intertwined with the Agent’s initial

illegal entry of those premises. The fruits of these per-

adventures should have been suppressed. This Court

should grant the Petition for Writ of Certiorari.

2. EVEN IF THE FRANKS’ “REDACTION”

ANALYSIS WERE APPROPRIATE, THE

TRIAL COURT’S EXORCISM WAS IN-

SUFFICIENT TO REMOVE THE TAINT.

As a remedy for what the trial Court below described

as a “severe” invasion of Hebert’s privacy, that Court

excised the portion “regarding the three thuds heard by

Agent Braziel”.

If, as both Courts below suggest, the eavesdropping

at the garage door constituted a “severe invasion of

[Hebert’s] privacy”, then the only other information that

was acquired by these officers which could have possibly

ripened into probable cause was the odor of marijuana

emanating from Granger’s car after he was arrested.

However, arrest was based upon Agent Braziel’s be-

lief that marijuana was secreted in Granger’s vehicle.

Granger’s car was seized because of what Agent Braziel

had heard and smelled while eavesdropping at petitioner’s

garage door.

12

“Q. Why did you decide to stop and arrest Mr.

Granger in the Chevrolet automobile?

A. Based on everything I just got through saying

I felt like the vehicle was loaded with marijuana

and no surveillance officers saw anything re-

moved from the trunk of the car.”

Therefore, Granger’s arrest and the subsequent smell

of marijuana from the Chevrolet are the direct fruit

of Braziel’s prior “severe invasion of privacy” of petition-

ers home. Accordingly, it should not serve as probable

cause to re-enter and search the same residence with a

warrant.

To do so would allow officers to lift an illegal search

by its own bootstraps, converting a prior illegal, war-

rantless search into probable cause to issue a warrant

for the same residence.

Properly redacted, the affidavit did not set forth prob-

able cause for a search of either 1713 Sylvan Drive or

Granger’s car.

It is clear that the trial court properly excised the

portion of the affidavit “regarding the three thuds heard

by Agent Braziel.” However, at a minimum, the trial

court should as well have excised that portion of the

affidavit which recites that Agent Braziel smelled the

odor of marijuana emanating from the trunk of the car

in which Granger was arrested; that arrest being the

direct and temporally proximate result of a prior war-

rantless illegal search of the very premises which the

officers sought to reenter and search.

Agent Braziel should not have been allowed to utilize

as support for a warrant to search this private residence

13

information gained as a result of an arrest which was

itself based in substantial part upon a prior illegal entry

of that same residence. The fruits of that search should

have been suppressed. The Petition for Writ of Certiorari

should be granted.

CONCLUSION

There is a serious question in need of resolution as

to what test courts should apply when information ob-

tained from a prior illegal entry is utilized to secure a

warrant to re-enter those same premises. The recent

decisions of the Honorable Court are in conflict. A Writ

of Certiorari should issue to review the Judgment and

Opinion of the Fifth Circuit and resolve this dispute.

Respectfully submitted,

GERALD H. GOLDSTEIN

RALPH A. LOPEZ

GOLDSTEIN, GOLDSTEIN & HILLEY

29th Floor Tower Life Building

San Antonio, Texas 78205

GERALD H. GOLDSTEIN

Texas Bar #08101000

Attorneys for Petitioner,

ROYCE DAVID HEBERT

14

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing

Petition for Writ of Certiorari have been mailed to the

U.S. Attorney’s Office, Western District of Texas, on this

the 3d day of May, 1985.

GERALD H. GOLDSTEIN

A-1

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

V.

Clifford J. ANTONE,

Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appellee,

v.

Royce David HEBERT,

Defendant-Appellant.

Plaintiff-Appellee,

Vv.

|

|

UNITED STATES of America, :

|

Mikal Habeeb AMUNY,

Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Aaron MAXWELL,

Defendant-Appellant.

Nos. 84-1299, 84-1302, 84-1308 and 84-1315.

United States Court of Appeals, Fifth Circuit

February 11, 1985.

Pursuant to their pleas, defendants were convicted in

the United States District Court for the Western District

A-2

of Texas, James R. Nowlin, J., on marijuana conspiracy

charges, and they appealed. The Court of Appeals, Gee,

Circuit Judge, held that: (1) probable cause existed for

warrantless arrests of certain defendants at restaurant;

(2) district court had a sufficient factual basis to accept

certain defendant’s guilty pleas; (3) defendant, whose

fingerprints were found only on a spiral-ring notebook in

the house, lacked standing to contest search of the house

which was found to have contained marijuana; and (4)

search warrant was based on sufficient probable cause

even without evidence supplied by DEA agent’s illegal

entry into house; thus, trial court’s redaction of the search

warrant and ruling admitting the evidence obtained in the

search of defendant’s residence were correct.

Affirmed.

Edward C. Prado, U.S. Atty., Sidney Powell, Archie

Carl Pierce, Asst. U.S. Attorneys., San Antonio, Tex., for

plaintiff-appellee.

Charles R. Burton, Michael Tigar, Amanda Birrell,

Austin, Tex., for Antone.

Gerald H. Goldstein, Ralph A. Lopez, San Antonio,

Tex., for Hebert.

Dick DeGuerirt; Houston, Tex., for Amuny.

Michael Kennedy, Joseph Calluori, New York City,

for Maxwell.

Appeals from the United States District Court for the

Western District of Texas.

Before GEE, REAVLEY and RANDALL, Circuit

Judges.

GEE, Circuit Judge:

A-3

The appellants, Clifford J. Antone, Mikal Habeeb

Amuny, Aaron Maxwell, and Royce Hebert, were indicted

on charges relating to marijuana possession and distribu-

tion. After the district court denied their pretrial motions

to suppress evidence, the appellants each pleaded guilty

to one count of conspiracy, reserving their rights to appeal

the district court’s rulings to this Court. We hold that the

district court’s rulings were correct and affirm the appel-

lants’ convictions.

The charges against the appellants in this case arise

from the same factual background. Each appellant, how-

ever, advances different arguments in this appeal. Our

opinion therefore first presents a summary of the facts of

the case and then separately analyzes each appellant’s

claims.

I. Facts

During late October 1982, United States Customs

Officer David Harrison received information from a con-

fidential informant who had previously provided Harrison

with information that led to six arrests and five convic-

tions on marijuana charges. The informant stated that

Allan Granger and a person named Randy were to meet

Clifford Antone and Mikal Amuny in Austin, Texas to

obtain a quantity of marijuana. The informant also said

that the marijuana was to be flown to Austin, but that he

did not know where the plane was to land.

Officer Harrison immediately relayed this information

to Drug Enforcement Administration (DEA) Agent Rich-

ard Braziel in Austin. Agent Braziel called Robert Nester-

off, a narcotics officer with the Texas Department of Pub-

lic Safety, and asked him to conduct surveillance of

A-4

Antone’s and Amuny’s residences and of a club operated

by Antone. Nesteroff did so, but observed nothing out of

the ordinary.

On November | the informant told Officer Harrison

than Granger was in the Austin area and that the mari-

juana had arrived there. The informant stated that Gran-

ger was to meet Antone and Amuny at 7:00 that evening

to receive the marijuana, adding that Granger was driving

a white and blue Chevrolet Monte Carlo with Texas

license number PCQ-658. Harrison relayed this informa-

tion to Braziel. Braziel, who had been investigating An-

tone and Amuny since 1979, knew from another reliable

informant that Antone usually conducted drug transac-

tions in the parking lots of Jo-Jo’s and Denny’s restau-

rants located at the intersection of Oltorf Street and Inter-

state 35 in Austin and that Antone used a black or His-

panic male to make the pick up and delivery.

Agent Braziel and several other agents established sur-

veillance of the residences of Antone and Amuny and of

the Jo-Jo’s and Denny’s restaurants. Between 7:00 and

7:30 p.m., Braziel saw Antone in the Jo-Jo’s parking lot

standing next to a black Lincoln Continental registered to

Amuny and talking with an unidentified black male. A

second black male, later identified as appellant Aaron

Maxwell, climbed out of a Chevrolet pickup camper and

walked over to Antone and the unknown man. The three

men talked briefly, and Antone and the unknown man

then left in the Lincoln. Maxwell followed in his camper,

and the two vehicles arrived at Antone’s house a short

time later.

Officer Nesteroff had been watching Amuny’s residence, ~

where a blue Oldsmobile was parked. At about 7:00 p.m.,

a Buick registered to Amuny arrived. Shortly thereafter,

A-5

Maxwell arrived in the camper, parked, and drove away

in the blue Oldsmobile. Maxwell drove first to one of

Antone’s nightclubs, then to Jo-Jo’s restaurant. Mean-

while, the agents at Antone’s residence observed Amuny’s

Buick parked on the wrong side of the street and blocking

Antone’s driveway. Antone and Amuny got into the Buick

and drove to Jo-Jo’s. Agents at Jo-Jo’s spotted Granger's

Monte Carlo at Jo-Jo’s at this time.

Ten minutes later, Maxwell left in Granger’s Monte

Carlo and drove to a nearby convenience store where he

made a brief telephone call. He then drove to a house at

1713 Sylvan Drive that the agents believed to be a “stash

house” for marijuana. Royce Hebert was the owner of this

house. Maxwell drove into the garage, closing the garage

door behind him. Agent Braziel. pursuing the car on foot,

ran beside the house and hid in bushes near the garage.

Braziel heard “thuds” of something heavy being put into

the trunk of the car and then heard the trunk lid slammed.

The garage door opened and Maxwell drove the car away.

Braziel then approached the garage and was able to smell

marijuana when he put his nose close to the door.

Maxwell drove Granger’s car back to Jo-Jo’s and went

inside. After a few minutes Granger left the restaurant,

got into his car, and drove away. The agents followed

Granger to the first traffic light on an access road to the

interstate and blocked his car. As the agents approached

his car, they noticed a strong odor of marijuana. The

agents arrested Granger and later obtained a warrant to

search Granger’s car. The search disclosed 56 pounds of

marijuana in the trunk.

Meanwhile, other agents arrested Antone, Amuny, and

Maxwell as they were leaving the restaurant. The agents

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also obtained a search warrant for the house on Sylvan

Drive. The search of that house disclosed a basement full

of marijuana and that the two upstairs bedrooms were

being used for growing, drying, and packaging marijuana.

The agents also found several firearms in the master bed-

room and scales and marijuana processing equipment in

the hall closet. The agents found over 800 pounds of

marijuane in the house, along with numerous documents

and ledgers indicating marijuana buyers, amounts pur-

chased, and prices.

After the appellants’ arrest, a grand jury returned a

three-count indictment against them, which was _ super-

ceded by a four-count indictment. This indictment

charged the appellants with distribution of marijuana,

possession of marijuana with intent to distribute, and con-

spiracy to distribute and to possess with intent to dis-

tribute marijuana. The appellants made several pretrial

evidentiary motions, which the district court denied. The

appellants then entered into plea agreements under which

they pleaded guilty to one count of conspiracy and pre-

served their rights to appeal the district court’s rulings

on their pretrial motions. The district court accepted the

appellants’ guilty pleas, sentenced each appellant to five

years imprisonment, and fined each $15,000.

II. Discussion of Appellants’ Cases

A. Appellant Clifford J. Antone

Antone appeals from the district court’s ruling that the

agents had sufficient probable cause to arrest him at Jo-

Jo’s without a warrant and the court’s refusal on that

basis to suppress his arrest and the search of his person.

made incident to the arrest. Antone also argues that he

anise eas ected 0snisa

A-7

pleaded guilty involuntarily and that the district court had

an insufficient factual basis upon which to accept his

guilty plea.

1. Warrantless Arrest

[1,2] Antone contends that the agents lacked probable

cause to arrest him at Jo-Jo’s without a warrant. Probable

cause to arrest exists when the facts and circumstances

within the knowledge of the arresting officer are sufficient

to cause a person of reasonable caution to believe that

an offense has been or is being committed. United States

v. Woolery, 670 F.2d 513, 515 (Sth Cir.), cert. denied,

459 U.S. 835, 103 S.Ct. 78, 74 L.Ed.2d 75 (1982). The

probable cause issue must be analyzed under the “totality

of the circumstances” as to whether there is a “fair prob-

ability” that a crime is occurring. Illinois v. Gates, 462

USS. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983);

United States v. Marbury, 732 F.2d 390, 395-96 (Sth

Cir. 1984). The probable cause requirement does “not

demand any showing that such a belief is correct or more

likely true than false.” Texas v. Brown, 460 U.S. 730,

103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983).

[3] The facts of this case indicate that the agents had

probable cause to arrest Antone and to conduct a search

incident to the arrest. Before Antone’s arrest, the agents

had received specific and detailed information concerning

the marijuana transaction from informants who had pro-

vided reliable information in the past. The informants

told the agents when, where, and how the transaction

would occur. The agents’ surveillance corroborated the

informants’ tips. These facts, viewed in the totality of the

circumstances, established probable cause. See United

States v. Cisneros-Mireles, 739 F.2d 1000, 1002-03 (Sth

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Cir. 1984); United States v. Mendoza, 722 F.2d 96, 101-

02 (Sth Cir. 1983).

2.- Factual Basis of Guilty Plea

Antone next contends that the district court erred in

accepting his guilty plea because the government failed

to establish a sufficient factual basis of his guilt. Antone

argues that the facts the government offered show merely

that Antone was in the Jo-Jo’s restaurant at the time the

alleged criminal activity occurred, adding that the district

court had no basis to conclude that he understood the

charges against him at the time he pleaded guilty because

the district court did not inform him of the “esoteric na-

ture of the conspiracy count.”

[4,5] These contentions are meritless. To support a

guilty plea, the prosecutor must present evidence to the

subjective satisfaction of the district court which indicates

that a defendant actually committed the offense to which

he is pleading guilty. United States v. Davila, 698 F.2d

715 (Sth Cir. 1983). At the re-arraignment hearing (at

which the district court accepted the appellants’ guilty

pleas), the prosecutor set forth the facts he expected the

evidence at trial to show and read pertinent portions of

the indictment. He stated that he would introduce evi-

dence to show that the agents observed Antone talking

with a black male in Jo-Jo’s parking lot on the evening

of November 1 and that the agents observed Amuny

and Antone drive together from Antone’s residence to

Jo-Jo’s that evening. The prosecutor also stated that he

would show that personal documents belonging to Antone

were found in the agents’ search of the house on Sylvan

Drive and that the agents found a beeper device on An- —

tone’s person and a corresponding beeper in the house.

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Finally, the prosecutor stated that eight telephone calls

were made from July 1 to October 16, 1982, between a

phone used by Allan Granger and Antone’s residence or

the beeper found on Antone at the time of his arrest. The

prosecutor’s presentation of these facts provided the dis-

trict court with a sufficient basis on which to conclude

that Antone was guilty of the offense to which he was

pleading guilty.’

In addition, the district court followed the dictates of

Rule 11 of the Federal Rules of Criminal Procedure to

the letter at Amntone’s sentencing hearing in assessing

whether Antone understood the charge against him and

the significance of his guilty plea. See United States v.

Araiza, 693 F.2d 382, 384 (Sth Cir. 1982). The court

specifically asked Antone whether he had committed the

offenses charged, and Antone answered, “Yes, sir.” The

court then asked Antone: “That’s what you are pleading

guilty to?” and Antone again replied “Yes, sir.” Moreover,

Antone was represented by two competent and experi-

1. In addition, each defendant was present when the indictment

was read in open court. Count One, to which the defendants pleaded

guilty, stated in pertinent part:

On or about November Ist, 1982, in the Western District of

Texas and diverse other places to the grand jurors unknown

Defendants Clifford J. Antone, Mikal Habeeb Amuny, Allan

Joseph Granger, Royce David Hebert also known as Roy Sneed,

and Aaron Maxwell unlawfully, willfully, knowingly did combine,

conspire, confederate and agree together and with each other to

distribute and possess with intent to distribute marijuana, a

Schedule 1 controlled substance contrary to Title 21, United

States Code, Section 841(a)(1) and in violation of Title 21,

United States Code, Section 846.

Thereafter the court addressed each in identical terms regarding the

charge. Antone’s colloquy with the court was as follows:

THE COURT: Mr. Antone, is that what you did?

MR. ANTONE: Yes, sir.

THE COURT: That’s what you are pleading guilty to?

MR. ANTONE: Yes, sir.

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enced criminal trial attorneys during this phase of the

proceedings. Nothing in the record indicates that Antone

failed to understand the charges against him. See United

States v. Dayton, 604 F.2d 931, 938 (Sth Cir. 1979) (en

banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63

L.Ed.2d 320 (1980).

3. Voluntariness of Antone’s Plea

[6] Antone’s final contentions concern the voluntari-

ness of his guilty plea and alleged government misconduct.

Antone contends that the government deceived him by

stating that only Royce Hebert had standing to object to

the search of the house on Sylvan Drive. Because of this

“misrepresentation,” Antone argues, he believed that the

evidence seized in the search of the house could be used

against him at trial. Therefore, Antone contends, he

pleaded guilty involuntarily. Antone also claims that the

government violated its plea agreement with him by pro-

viding Texas authorities with information that they used

to levy a sales tax on the marijuana transactions in which

Antone took part.

These contentions are meritless. The record discloses

no action or misrepresentation by the government that

prevented Antone from establishing his standing to con-

test the search. See Rakas v. Illinois, 439 U.S. 128, 133-

34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387, 394-95

(1978). Furthermore, the record indicates that Antone

had no reasonable expectation of privacy in the house.

Finally, the record contains no evidence regarding the

Texas tax authorities on Antone’s alleged tax liability.

This issue is therefore not properly before us.

A-11

B. Appellant Mikal Habeeb Amuny

Amuny argues on appeal that the agents lacked prob-

able cause to arrest him at JoJo’s restaurant and that

the district court had an insufficient factual basis upon

which to accept his guilty plea.

1. Warrantless Arrest

Amuny contends, as did Antone, that the agents lacked

probable cause to arrest him as he left Jo-Jo’s restaurant.

Amuny’s argument is identical to Antone’s on this point.

For the reasons stated in the discussion of Antone’s

argument on this issue, we hold that the district court

correctly ruled that the agents had sufficient probable

cause to arrest Amuny without a warrant.

2. Factual Basis of Guilty Plea

[7] Amuny also contends that the district court had

an insufficient factual basis on which to accept his guilty

plea. As we have noted earlier, the prosecutor must pre-

sent evidence sufficient to provide the district court with

a basis to conclude to the court’s subjective satisfaction

that a defedant is guilty of the offense to which ke is

pleading guilty before the court can accept the guilty

plea. United States v. Davila, 698 F.2d 715 (Sth Cir.

1983). Here, the prosecutor’s summary of evidence to be

presented at trial (which Amuny quotes and adopts as

his statement of what the evidence would have shown)

indicates that the district court had ample facts to satisiy

itself of Amuny’s guilt. These facts included evidence of

Amuny’s fingerprints, personal belongings, and trans-

action records found in the house on Sylvan Drive and

testimony concerning Amuny’s association with the other

defendants. The district court did not err in accepting

Amuny’s guilty plea.

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C. Appellant Aaron Maxwell

The sole issue that Maxwell raises on appeal is whether

the district court properly denied his motion to suppress

evidence taken from the house on Sylvan Drive. After

Maxwell’s arrest and indictment, he sought to challenge

the agents’ search of the house. Maxwell contends that he

had standing to contest this search and that the magistrate

lacked probable cause to issue the warrant. In ruling on

Maxwell’s motion to suppress, the district court concluded

that Maxwell had no standing to object to the search. The

court also ruled that the agents’ affidavit supporting their

request for a search warrant contained sufficient facts to

establish probable cause and to justify the magistrate’s

issuance of a search warrant.

[8-10] We conclude that the district court correctly

ruled that Maxwell lacked standing to contest the search

of the house on Sylvan Drive. A defendant has the burden

of establishing his right to contest a search or seizure of a

person or property. United States v. Salvucci, 448 US.

83, 86, 100 S.Ct. 2547, 2549-50, 65 L.Ed.2d 619, 624-

25 (1980). To establish standing to contest a search, the

defendant must show that he had a “legitimate expecta-

tion of privacy” in the area search. Rakas v. Illinois, 439

U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401

(1978). A defendant’s legitimate presence on the searched

premises, without more, is insufficient to establish stand-

ing. Id. at 142-43, 99 S.Ct. 430, 58 L.Ed.2d at 400-01.

[11] Under the standard the Supreme Court has set

forth, Maxwell has no standing to contest the search of

the house. The agents found no clothes or personal be-

longings of Maxwell’s in the house. Maxwell’s fingerprints -

were found only on a spiral-ring notebook in the house.

A-13

The only evidence Maxwell presented to the district court

in support of his contention were Maxwell’s own affidavit

and an affidavit of Royce Hebert. The district court’s con-

clusion that Maxwell had no legitimate expectation of

privacy in the house and that Maxwell therefore lacked

standing to contest the search was correct. See United

States v. Briones-Garza, 680 F.2d 417, 420 (Sth Cir.),

cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d

181 (1982). The probable cause issue is discussed in the

next segment of our opinion.

D. Appellant Royce Hebert

After his arrest and indictment, Hebert mcved to sup-

press all evidence seized from the house on Sylvan Drive,

which was his residence. Hebert argued that Agent Bra-

ziel’s entry onto the premises without a warrant when

Maxwell drove into the garage tainted the search of the

house conducted after the agents had obtained a warrant.

Because of this taint, Hebert contends, the district court

was required to suppress the evidence seized in the search

as a “fruit of the poisonous tree.”

The district court agreed that Braziel’s entry onto the

premises was illegal. The court, however, refused to sup-

press the evidence, ruling that even absent Braziel’s ob-

servations sufficient probable cause existed to justify the

issuance of the search warrant. The court therefore used

the remedy the Supreme Court authorized in Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d

667 (1978), and “purged the taint” by redacting the

portions of the agents’ affidavit that related to Braziel’s

illegal entry. On appeal, Hebert contends that the district

court’s redaction remedy was insufficient to purge the

evidence of the taint of Braziel’s illegal entry and that

the court should have suppressed the evidence.

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{i2, 13] A court should interpret a search warrant

and its supporting probable cause in a realistic and com-

monsense manner. United States v. Maestas, 546 F.2d

1177, 1180 (5th Cir. 1977). Viewing the search war-

rant involved here in this manner, we conclude that the

watrant was clearly based on sufficient probable cause

even without the evidence supplied by Braziel’s illegal

entry. The affidavit the agents submitted to the magi-

strate to support their request for a search warrant set

out numerous facts in great detail; Agent Braziel’s ob-

servations constitute only a small part of the information

presented to the magistrate. The district court’s redaction

of the search warrant and the court’s ruling on the ad-

missibility of the evidence obtained in the search of

Hebert’s residence were correct.

For the reasons stated, we conclude that the district

court’s evidentiary rulings and the court’s acceptance of

the appellants’ guilty pleas were correct. The judgment

of the district court is therefore

AFFIRMED.