Petition for Writ of Certiorari — Crabtree v. United States

Se

(i) Supreme Court, U.S. '

FILED

86-164 JUN 19 1986

No. . JOSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the Anited States

OCTOBER TBRM, 1985

NELLA LOPER CRABTREE

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the Eleventh

Circuit Court of Appeals

CRIMINAL CASE

ROBERT F. CLARK

Post Office Box 2705

Mobile, Alabama 36652

(205) 433-5860

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

I. Did agents of the United States Government en-

ter and search the homeplace of petitioner without a

search warrant, without her consent and on an oc-

casion when exigent circumstances did not exist so

that the fruits of the search should not have been

admitted into evidence at her trial.

II. Did agents of the Government of the United

States search a motor vehicle located behind

petitioner’s house inside the curtilage and on her

property without a search warrant, without her con-

sent and on an occasion when exigent circumstances

did not exist so that the fruits of the search should

not have been admitted into evidence at her trial.

ii

LIST OF PARTIES TO THE PROCEEDING

Nella Loper Crabtree

Richard Wayne Nolan

Sharon Melinda Dueitt

Darryl Lee Raley

United States of America

a.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED ...........cceceeeeeeee 1-2

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JURISDICTIONAL GROUNDS IN THIS COURT ......0c000000-- 5

REASONS FOR GRANTING THE WRIT OF

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TABLE OF AUTHORITIES

CASES:

Amos v. United States, 255 U.S. 313 (1921) .........

Brown v. Texas, 483 U.S. 47 (1979) — ........eeeeeeceeee

Bumper v. North Carolina, 391 U.S. 533 (1968) ..

Katz v. United States, 389 U.S. 337 (1967) _ ..........

People v. Rios, 546 P.2d (Ca. 1976) .......ceeeeceeeeeeees

New York v. Belton, 453 U.S. 454 (1981) .............

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..

U.S. v. Dichiaiente, 445 F.2d 126 (7th Cir. 1971) ..

U.S. v. Robinson, 414 U.S. 218 (1973) ......... eee eee

U.S. v. Tate, 694 Fed.2d 1217 (9th Cir. 1982) _ .....

Vale v. Louisiana, 399 U.S. 30 (1970) .........eeeeeeeee

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OPINIONS BELOW

Petitioner was convicted in a jury trial in the United

States District Court for the Southern District of Al-

abama, Southern Division on April 24, 1985, case

number 85-0036. Her conviction was confirmed by the

Eleventh Circuit Court of Appeals on March 10, 1986,

without opinion on March 10, 1986. United States v.

Crabtree, Fed.2d (1986) (Docket No. 85-7361). A

petition for rehearing was denied by the Eleventh

Circuit on Apes 14, / Fhe |

JURISDICTION

Petitioner was convicted on April 24, 1985. The

Eleventh Circuit Court of Appeals affirmed the con-

viction on March 10, 1986. A petition for re-hearing

was denied by the Eleventh Circuit on Mareh—t6 APRIL 14,

1986. The jurisdiction of this Court is invoked under

28 USC §1257(3) and Rule 17.1(a) of the Rules of the

Supreme Court of the United States.

CONSTITUTIONAL PROVISION INVOLVED

Amendment Four, United States Constitution,

which 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.”’

“In all criminal prosecutions, the accused

shall enjoy the right to ... be confronted

with witnesses against him.”’

STATEMENT OF THE CASE

(A) Proceedings Below |

Petitioner was indicted by a grand jury in the

Southern District of Alabama in March of 1985 for

one count of knowingly and intentionally possessing

with intent to distribute approximately 110 pounds of

Marijuana in violation of 21 U.S.C. §841(a\(1) and 18

U.S.C. §2 (R 1). The defendant filed a motion to

suppress evidence seized in the house and motor ve-

hicle behind her house, which motion was denied im-

mediately preceeding the trial (T 240). At the

conclusion of the trial, petitioner was found guilty and

sentenced to a period of three years in prison with

a special probation term of five years and fined

$5,000.00.

Petitioner filed a motion of appeal on May 28, 1985.

The Eleventh Circuit Court of Appeals affirmed

petitioner’s conviction on March 10, 19085. A petition

for rehearing was denied by The Eleventh Circuit on

March 10, 1986. On March 24, 1986, a Rule 25 de-

cision was issued as an for the mandate.

(B) Facts Material To Consideration Of The Questions

Presented

In late January of 1985, Drug Enforcement Admin-

istration agents of the United STates Department of

Justice received information from Juanita Sanchez,

who had recently been arrested in Mississippi that

she and two other individuals had come to Mobile,

Alabama with a kilogram of Heroin and went to the

residence of petitioner. The following morning, they

returned to petitioner’s residence and picked up two

bales of Marijuana and $38,00.00 in cash. The agents

were told that the Marijuana came from a truck lo-

cated behind petitioner’s residence. Ms. Sanchez ac-

companied the agents to the street where petitioner

lived and pointed out petitioner’s house to the agents.

Two agents were left in the area to conduct surveil-

lance while another agent went back to downtown

Mobile to attempt to obtain a search warrant. The

agents conducting surveillance were approached by

two individuals in the neighborhood regarding their

presence. The agents made up a story as to their

presence in the neighborhood. The two individuals

then drove to a housetrailer located down the road

from petitioner’s home. This contact was reported to

the agent who had gone to obtain a search warrant,

and he decided to go out and “secure the residence

prior to getting the search warrant to assure that no

evidence would be destroyed.” (T 15).

He and several officers then went to the residence

and drove up in the driveway. When he did so, he

observed a quantity of smoke coming from the chim-

ney of the house and detected a strong odor of burn-

ing Marijuana (T 18). He and an officer of the Mobile

County Police Department approached a door of the

house. Petitioner came to the door and the agent

“told her I was a Federal Agent, I would like to

come in and speak with her, and she said, I want to

see some identification. At that time, I put my badge

up to the window of the house, and she opened the

door” (T 19). The agent further testified ‘‘she never

said come in or anything like that,”’ but ‘‘she stepped

back. I said, may I come in and speak with you, and

she opened the door and stepped back and I walked

in’ (T 39). The Sheriff's Department officer with the

agent was dressed in a black or olive drab uniform

and wearing a beret and combat boots (T 38). He also

had a Carbine which he held across his chest at an

angle (T 25).

After obtaining entry to the house, some six to

eight law enforcement agents conducted a search of

the house “‘to secure our safety’. They discovered a

pile of burning Marijuana in the fireplace, a set of

scales, some ziplock type bags and a heat sealer in

a bedroom (T 20).

One of the agents then went into the back yard of

the residence to a disabled motor vehicle located fifty

feet from the residence. He shined his flashlight into

the motor vehicle and observed what appeared to him

to be a bale of Marijuana and a number of garbage

bags containing Marijuana (T 21).

The agent in charge acknowledged on cross ex-

amination that he had made a decision to search and

secure the residence without a warrant prior to the

time he arrived at the residence based on the smoke

and smell coming from the chimney and information

he had been given by an informant (T 34). He had

no information to believe that anyone was in the mo-

tor vehicle behind the house (T 36). He also agreed

that there was no reason he could not have com-

municated with the Magistrate by telephone or radio

during the forty or fifty minutes between the time

he decided to search and secure the house and the

time the house was entered (T 36).

Based on these facts, the trial court determined

that the agents had every reason to believe that Mar-

ijuana was being burned in the residence and that

evidence was therefore being destroyed. The agent,

therefore, had the right to present his badge and ask

permission to enter the home. The court found that

he did so and that petitioner “either expressly or

impliedly gave him permission to enter after he

showed his identification.’’ The court also determined

that it was reasonable for the agent to look into the

van for people at which time he saw Marijuana within

the van in plain view (T 222).

The petitioner had earlier testified that she was in

bed asleep at 11:15 P.M. when she heard her dog

barking. She went toward her kitchen window and

saw ‘“‘a man with a big gun” and another man stand-

ing at her patio door. The man with the gun was

dressed in what she called drab green army fatigues

(T 565). The men said “open up, police.” The man

with the gun made a gesture and she asked to see

a badge which was showed her through the window.

She opened the door and the men came in waving

the gun and told her and another occupant of her

residence to sit down (T 566). One of the men asked

her if it was her house, and she told him it was, at

which time she and the other occupant were placed

under arrest (T 567).

DISTRICT COURT’S BASIS OF JURISDICTION

The District Court had jurisdiction because

Petitioner was indicted for a violation of 21 U.S.C.

§841(aX1) and 18 U.S.C. §2.

ARGUMENT FOR ALLOWANCE OF WRIT

1. By refusing to reverse Petitioner’s conviction

based on evidence seized during a night time war-

7

Ce a

6

rantless search of Petitioner’s home, The Eleventh

Circuit Court of Appeals has ignored the Fourth

Amendment to the United States Constitution. Taken

in the light most favorable to the Government, the

evidence established that two law enforcement offi-

cials, one wearing combat fatigues and carrying a

Carbine, knocked on Petitioner’s door and told her

they wanted to “talk with her’. She opened the door

and the agents walked in. If opening a door in re-

sponse to a law enforcement officer’s request to talk

can be construed as consent to searching one’s home,

the trial court should have at least made a finding

that the consent was voluntarily and freely given.

However, opening one’s door in the face of such au-

thority in the middle of the night should not be con-

sidered consent to search a home as a matter of law.

A warrantless search of a house, particularly during

the night, is per se unreasonable. Katz v. United

States, 389 U.S. 337 (1967). Even if circumstances

justify one of the exceptions to a warrantless search,

there must be a showing that a warrant could not

practicably be obtained. Vale v. Lowisiana, 399 U.S.

30 (1970). A telephonic search warrant was readily

obtainable and could have been obtained almost im-

mediately had there been probable cause under Rule

43(c)2 of the Federal Rules of Criminal Procedure.

The burden of proof is on the Government to show

that a warrantless search or entry, falls within an

emergency or exigency situation. The facts in this

case completely negate such an exception to the re-

quirement for a warrant. Entry into Petitioner’s house

was not attempted until 45 or 50 minutes after a

decision had been made to do so. If there was some

concern about the destruction of evidence, the agents

7

on the scene would have entered the house immedi-

ately rather than waiting 45 or 50 minutes for the

agent in charge to reach the scene from downtown

Mobile. A telephonic search warrant could have been

obtained while the agent in charge was in route to

the scene since a Magistrate was standing by.

In cases involving warrantless searches of homes,

there must be a weighing of the gravity of the public

concerns served by the search, the degree to which

the search advances the public interest and the se-

verity of the interference with the individual’s liberty.

Brown v. Texas, 433 U.S. 47 (1979). The agents had

information that Marijuana was kept in a vehicle be-

hind Petitioner’s house. The vehicle was under sur-

veillance and no testimony indicated that anyone was

making any effort to destroy evidence in the motor

vehicel. The 9th Circuit Court of Appeals has held

that the strong smell of a substance does not provide

probable cause for a warrantless entry. U.S. v. Tate,

694 Fed.2d 1217 (9th Cir. 1982). Clearly, there was

no exigent circumstance demonstrated which required

a warrantless entry into Petitioner’s home.

The Government contends that Petitioner consented

to a search of her home which led to her arrest and

the Marijuana found in the fireplace. Taken in a light

most favorable to the Government, the consent con-

sisted of her opening the door when she was con-

fronted by two agents, one of whom flashed a badge

and another held a rifle. It is significant to note that

the agent did not even ask for permission to enter

her house or search it. He merely told her he would

like to talk with her. She opened the door and the

agents rushed in. While it is unlikely in the first place

that a person burning Marijuana in a fireplace in plain

view from a doorway entrance would consent to a

search, the Government bears the burden of estab-

lishing that the consent was given voluntarily. Amos

v. United States, 255 U.S. 313 (1921). In determining

whether or not consent was given, courts have looked

to the totality of the circumstances surrounding the

consent. Schneckloth v. Bustamonte, 412 U.S. 218

(1973). Among the facts that should be considered are

whether or not the individual giving the consent is

advised of his right to refuse the request, whether

or not it is in fact a search to which one consents

(as opposed in this case to a conversation), whether

or not the consent is in fact freely given or merely

‘acquiescence to a claim of lawful authority’’ Bumper

v. North Carolina, 391 U.S. 533 (1968).

In this case, the trial court never made a specific

finding that Petitioner freely consented to a search

as is required by law. People v. Rios, 546 P.2d (Ca.

1976). In fact, there is no evidence that Petitioner

did anything other than open her door when the

agents asked to talk with her. Testimony of the agents

themselves make it clear that at least they did not

believe at the time they had been given consent to

search the house. They testified that they merely

“walked through the residence to make sure that it

was secure for our safety.”’

The Fourth Amendment simply was not complied

with in this case. Opportunity existed for the agents

to obtain a search warrant, but the elected to proceed

on Petitioner’s consent built on flimsy suppositions

flying the face of the hard facts. Petitioner’s Fourth

Amendment rights have been completely ignored with

respect to the search of her residence in the pro-

ceedings below.

The search of the motor vehicle behind Petitioner’s

home was an even more flagrant disregard for

Petitioner’s rights. At the time the motor vehicle was

searched, Petitioner had been arrested in her home.

Obviously, the motor vehicle was not an area asses-

sible to her and could not be searched pursuant to

the arrest. New York v. Belton, 453 U.S. 454 (1981);

U.S. v. Robinson, 414 U.S. 218 (1978). If opening

one’s door in response to a request by law enforce-

ment officers to talk does constitute consent to search

a home, that consent cannot be construed to consti-

tute consent to search a disabled van located 50 feet

away from the house in the back yard. in U.S. v.

Dichiarinte, 445 F.2d 126 (7th Cir. 1971), the police

obtained consent to search the defendant’s house for

narcotics. During their search, they examined private

papers they found. The court held the search invalid

insofar as the papers seized were concerned.

There is no evidence whatsoever of any consent to

search outside the home. There is no evidence what-

soever that there was any emergency or exigency

involving the search of the disabled motor vehicle

behind the Petitioner’s home. The motor vehicle was

under surveillance and could not move. The failure of

the officers to obtain a warrant prior to searching it

is inexcusable and a flagrant disregard of Petitioner’s

Fourth Amendment rights.

It is important to realize that suppression of the

material found in the motor vehicle is important even

if it were determined that the material found in the

home could be used in evidence. The small amount

of Marijuana found burning in the fireplace was the

only evidence seized in the home which was used

against Petitioner. The exact quantity was never es-

10

tablished. However. a large amount of Marijuana was

found in the van. It too was used against Petitioner

at her trial. The only evidence that Petitioner pos-

sessed Marijuana for sale was the quantity of the

Marijuana itself. Thus, if the evidence found in the

disabled motor vehicle had been excluded, there would

have been no evidence that Petitioner possessed Mar-

ijuana for sale. She could easily have been convicted

only of possession of Marijuana for personal use.

While the procedure used by the Government in

searching Petitioner’s home and property did result

in the seizure of a quantity of Marijuana in retrospect,

the procedures undoubtedly violated Petitioner’s

Fourth Amendment rights. The very essence of the

Fourth Amendment precludes the authoritative knock

on the door in the middle of the night by uniformed

officers of the State. If the Fourth Amendment to

our Constitution is to ever be applied to prevent that

knock on the door in the middle of the night, it must

be applied to the facts raised by Petitioner in this

case. If it does not apply to Petitioner, it simply has

no application.

CONCLUSION

Wherefore, the premises considered, Petitioner re-

spectfully moves this Court to grant her petition for

writ of certiorari to the United States Court of

Appeals for the Eleventh Circuit.

ROBERT F. CLARK

Attorney for Petitioner

Post Office Box 2705

Mobile, Alabama 36652

(205) 4383-5860

ee

ere,

11

CERTIFICATE OF SERVICE

STATE OF ALABAMA

COUNTY OF MOBILE

Before me the undersigned authority, in and for

said State and County, personally appeared Robert

F. Clark, who being known to be and by me being

first duly sworn did depose on oath and say as fol-

lows:

1. My name is Robert F. Clark. I am an attorney

at law, licensed to practice before the Supreme Court

for the State of Alabama and The United States

Supreme Court. I was admitted to practice before the

United States Supreme Court on September 15, 1978.

I have personal knowledge of the matters contained

herein. I certify that on the 19th day of June, 1986,

I did serve the requisite number of copies of the

foregoing to the Clerk of The United States Supreme

Court and the Solicitor General, Department of Jus-

tice, Washington, D. C. 20530, by placing a copy of

the same in the United States Mail, properly ad-

dressed and first class postage prepaid.

/s/ROBERT F. CLARK

Robert F. Clark

12

CERTIFICATE PURSUANT TO RULE 28.4(b)

Petitioner gives notice that 28 U.S.C. §2403(a) may

be applicable in that Petitioner is questioning the con-

stitutionality of an act of Congress, specifically Rule

801(dX2\XE), Public Law 93-595, 88 stat. 1926, and

that a copy of the petition has been served on the

Solicitor General of the United States.

ROBERT F. CLARK

APPENDIX

la

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

INDEX

DOCKET SHEET SHOWING CONVICTION AND

GR SI Re a RO

PS it et Aaa Sa

MOTION TO SUPPRESS AND TRIAL CouRT’s FACTUAL

FINDINGS RELATING THERETO ............cccccccoseccesscceceee

2a

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF ALABAMA

Criminal No. 85-00036

UNITED STATES OF AMERICA

We

NELLA LOPER CRABTREE,

RICHARD WAYNE NOLEN,

SHARRON MELINDA DUEITT, and

DARRELL LEE RALEY

The Grand Jury charges:

Filed

MAR 8 1985

COUNT ONE

On or about the 30th day of January, 1985, in the South-

ern District of Alabama, Southern Division, NELLA LO-

PER CRABTREE and RICHARD WAYNE NOLEN

knowingly and intentionally did unlawfully possess with

intent to distribute approximately 110 pounds of mari-

juana, a Schedule I controlled substance; in violation of

Title 21, United States Code, Section 841(aX1), and Title

18, United States Code, Section 2.

COUNT TWO

On or about the 30th day of January, 1985, in the South-

ern District of Alabama, Southern Division, DARRELL

LEE RALEY knowingly and intentionally did unlawfully

possess with intent to distribute approximately one-half

pound of marijuana, a Schedule I controlled substance; in

3a

violation of Title 21, United States,Code, Section 841(a\1),

and Title 18, United States Code, Section 2.

COUNT THREE

On or about the 30th day of January, 1985, in the South-

ern District of Alabama, Southern Division, RICHARD

WAYNE NOLEN and SHARRON MELINDA DUEITT

knowingly and intentionally did unlawfully possess with

intent to distribute approximately six ounces of cocaine

hydrochloride, a Schedule II controlled substance; in vio-

lation of Title 21, United States Code, Section 841(a\1),

and Title 18, United States Code, Section 2.

COUNT FOUR

On or about the 30th day of January, 1985, in the South-

ern District of Alabama, Southern Division, RICHARD

WAYNE NOLEN and SHARRON MELINDA DUEITT

knowingly and intentionally did unlawfully possess with

intent to distribute approximately 89 tablets of Preludin

(phenmetrazine hydrochloride), a Schedule II controlled

substance; in violation of Title 21, United States Code,

Section 841(aX1), and Title 18, United States Code, Section

2.

COUNT FIVE

On or about the 30th day of January, 1985, in the South-

ern District of Alabama, Southern Division, RICHARD

WAYNE NOLEN and SHARRON MELINDA DUEITT

knowingly and intentionally did unlawfully possess with

intent to distribute approximately one and one-third pounds

of marijuana, a Schedule I controlled substance; in viola-

tion of Title 21, United States Code, Section 841(aX1), and

Title 18, United States Code, Section 2.

A TRUE BILL

/s/Morris Lee McKee

4a

Morris LEE McKEE

FOREMAN, UNITED STATES GRAND JURY

SOUTHERN DISTRICT OF ALABAMA

/s/J. B. Sessions, III

J. B. Sessions, III

UNITED STATES ATTORNEY

March, 1985

5a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-7361

Non-Argument Calendar

D.C. Docket 85-00036

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

NELLA LOPER CRABTREE,

SHARRON MELINDA DUEITT,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Alabama

(March 10, 1986)

Before TJOFLAT, VANCE and KRAVITCH, Circuit

Judges.

PER CURIAM:

AFFIRMED. See Circuit Rule 25.

Judgement Entered: March 10, 1986

For the Court: Spencer D. Mercer, Clerk

By: /s/

Deputy Clerk

ISSUED AS MANDATE: APR 22 1986

6a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Criminal No. 85-0032

UNITED STATES OF AMERICA

vs.

NELLA LOPER CRABTREE

MOTION TO SUPPRESS EVIDENCE

Comes now the defendant in the above styled matter,

by and through his attorney, and moves this Court to

suppress as evidence any and all items seized, test results

concerning items seized, testimony or statements made

about any of the foregoing, and any testimony regarding

any observations made of defendant’s person while

defendant was under arrest that is intended to be used

against the defendant and that are now being held by the

United States Attorney’s office, and as grounds therefore,

would show as follows:

1. That the articles which the United States Attorney

intends to use against defendant were obtained pursuant

to an unlawful search and seizure by members of the Drug

Enforcement Administration, Mobile Police Department,

Mobile County Sheriff's Office or any other law enforce-

ment agency.

2. That search and seizure were made without authority

and without a search warrant.

3. Defendant’s arrest was made without warrant and

without authority and without probable cause to believe

that a felony had been committed, and that the defendant

Ta

had committed it, and therefore, the search and seizure

were not made incident to a lawful arrest.

4, That warrant for defendant’s arrest was issued with-

out a judicial officer first being supplied with sufficient

information to support an independent finding that prob-

able cause to arrest existed and therefore, the items seized

subsequent to that arrest should be suppressed.

5. The complaint upon which the warrant for defendant’s

arrest was based could not support an independent finding

of probable cause to arrest made by a judge. Consequently,

the arrest of defendant was made without probable cause

and the items seized should be suppressed.

6. There is no evidence that the seized items had been

used or about to be used in any way upon which this

criminal charge could arise.

7. The defendant did not violate any law, either mis-

deameanor or felong, in the presence of the officers which

would warrant the arrest.

8. There did not surround the seizure of these items

exigent circumstances that justified a warrantless search

and seizure.

9. The items seized were not in plain view when seized

by police officer. .

10. The defendant’s behavior did not give police officers

reasonable suspicion that criminal activity was afoot, and

therefore did not justify the subsequent search and seizure.

11. Said search and seizure violated defendant’s rights

under Article One, §5, 6 and 7 of the Constitution of

Alabama, and the Fourth, Fifth, Sixth and Fourteenth

Amendments of the United States Constitution.

WHEREFORE, the defendant prays that this Court sup-

press the above articles now being held by the United

States Attorney’s office.

8a

/s/ Robert F. Clark

ROBERT F. CLARK

Attorney for Defendant

CERTIFICATE OF SERVICE

I do hereby certify that I have on this the 14th day of

March, 1984 served a copy of the foregoing pleading on

the United States Attorney for the Southern District of

Alabama by hand delivering same to his office.

/s/ Robert Clark

ROBERT CLARK

9a

MORNING SESSION

APRIL 23, 1985

9:00 a.m.

THE COURT: As I understand it, the only evidence the

government, at this point, seeks to offer, relative to the

van, is what the officer saw when he shined his flashlight

through the window; is that correct?

MR. MILLING: Your Honor, there will also be a sample

drawn from the aileged hundred and eight pounds of mar-

ijuana taken out of there, and there will be photographs

of those bales. And there were, bags, bales and boxes.

THE COURT: Your position is that, having seen it, they

had a right then to proceed to search without a warrant?

MR. MILLING: Yes, sir, plain view.

THE COURT: Well, on these various matters, the facts

are, I think, essentially without dispute. There is some

dispute. I am going to undertake to make some findings.

After I conclude that, if there are matters that you feel

are disputed, which means to be the subject of expressed

findings, if you will let me know, I will undertake to make

those findings.

First, with reference to the search of the Crabtree home,

it is without dispute that the Drug Enforcement Admin-

istration agents had information to the effect that there

were controlled substances located in that home, inciuding

marijuana, and that they undertook a surveillance of the

home.

That, at some point after they undertook their surveil-

lance, their cover was blown, so to speak, when the pickup

truck, the four wheel drive truck, drove up to the car in

which they were located and, thereafter, that truck went

10a

by the Crabtree home for some brief period of time, ap-

parently, before pulling off.

The court is of the opinion that Agent Krusko, at that

time he pulled in the driveway of the Crabtree home, had

the right to do that, at least for the purpose of seeking

consent to enter the home.

Whether or not he intended to enter the home without

consent, it is obvious that at least one of his purposes was

to see if he could get consent to enter the home, because

he asked for consent to enter the home.

After pulling in the driveway, Agent Krusko smelled

marijuana burning, saw smoke coming from the fireplace.

At that point in time, he had every reason to believe that

marijuana was burning in the residence. Reason to believe

that evidence was, in fact, being destroyed, at that mo-

ment, by fire and, at that point, he had, in the court’s

opinion, at least the right to present his badge and ask

permission to enter the home.

The court finds that he did present his identification

and asked permission to enter the home to talk with Mrs.

Crabtree, that she either expressly or impliedly gave him

permission to enter after he showed his identification.

The court is not in a position to make any findings

relative to Mrs. Crabtree’s perception of that. There is no

testimony from which I can find who she may have seen

other than Agent Krusko.

There is no testimony from which I can find how many

police vehicles she may have seen. A member of the SWAT

team with a carbine was with Agent Krusko. At that time,

his location was such that she certainly could have seen

him. Whether she did or not, I have no way of knowing.

After entering the Crabtree home, Agent Krusko saw

marijuana burning in the fireplace, smelled it burning and,

thereafter, arrested the occupants of the home.

lla

I think, incident to that arrest, that he had the right

to search for people in that home. The information that

he had received previously included information that there

were automatic weapons in that home.

There is no evidence that he made any search in the

house, which is not reasonable in terms of looking for

people in the house. The only paraphernalia and drugs

which he was testified he saw were in plain view in the

house. ion?

Insofar as the van is concerned, I think it was reason-

able for Officer Krusko to look in the van for people. It

was located fifty feet, more or less, from the rear door

of the residence. There is no testimony from which I can

find that it was apparent, from the back door, that the

van was inoperable. Upon shining his flashlight in the van,

the marijuana was in plain view.

Now, insofar as the search of the briefcase and suitcase

is concerned, the court finds that Mr. Nolen and Mr. Crab-

tree were detained and questioned, that there was a rea-

sonable suspicion which gave them the right to briefly

detain and question Mr. Nolen and Mr. Crabtree and that

the vehicle in which they were located had, shortly before,

been by the Crabtree home, after which it went by the

Crabtree trailer and, at the time the officers approached

it, it was driving into the woods.

Both Mr. Crabtree Jr. and Mr. Nolen were detained,

frisked and questioned briefly by the officers. I am unable

to find exactly how long a period of time that was. It was

certainly less than thirty minutes.

During a portion of that time, another officer or officers

were making a search in the woods to see if anyone was

out in the woods.

With reference to the briefcase and suitcase, both Mr.

Crabtree and Mr. Nolen were asked by Agent Lamplugh

whether or not they had any objection to this opening the

12a

briefcase and the suitcase, and they advised him that it

didn’t belong to either of them and they had no objection

to it.

I find that neither Mr. Crabtree, Jr. nor Mr. Nolen were

arrested prior to the time they were asked whether or not

they had any objection to the opening of the briefcase or

suitcase.

As I have said, I do not think the detention, under those

circumstances, was illegal, the brief detention, questioning

and frisking.

Insofar as the trailer is concerned, I find that Mr. Crab-

tree, Jr. had been told, prior to the time he was asked

to consent to the search of the trailer, that he was not

under arrest and that he understood that the officers were

asking for his consent to search the trailer.

That he understood that the alternative to his giving

consent was that they would have to get a search warrant

and that he voluntarily gave his consent to the search of

the trailer, which was his trailer, where he lived with his

wife.

Insofar as Mrs. Dueitt is concerned, she is not shown

to have had any expectation of privacy in the suitcase or

briefcase which was located outside the trailer near the

parked car. Doesn’t claim ownership of it.

Insofar as the statement, made by Mr. Nolen at the

scene, is concerned, and thereafter, at the offices of the

Drug Enforcement Administration, the court finds that

Mr. Nolen was advised of his Miranda rights by John

Pigott, that he was arrested only after he claimed own-

ership of the drugs which were found in the suitcase and

briefcase and that he was then informed of his Miranda

rights and that he voluntarily made the statement that he

made on that occasion and that, in fact, he seemed to be

anxious to assume the entire responsibility for the con-

trolled substances that were found at the scene.

13a

Insofar as the statement made at the Crabtree home is

concerned, by Mr. Raley, the court finds that the state-

ment was not one made in response to any custodial in-

terrogation, that it was a spontaneous statement made in

response to a comment by the officer relative to the vol-

ume of marijuana in the fireplace, that it was not a state-

ment made in response to any question, custodial or

otherwise, that it was voluntary, and that there is no

Miranda violation insofar as that statement is concerned.

Now, are there additional facts which any of the parties

feel are disputed, as to which you feel you want the court

to make a finding?

MR. CLARK: Judge, with regard to Mrs. Crabtree, I

would ask the court to make a finding with regard to

when the decision was made by Agent Krusko to search

the house.

My understanding of the testimony, he said he was at

DEA headquarters—on cross-examination, he said he was

at DEA headquarters when he received the call from the

field agents that the cover had been blown, or that some-

one knew that they were there, and it was at that point

that he made the decision to search the Crabtree house.

I believe that was his testimony with regard to the

search. I don’t believe he went on to the curtilage.

His statement of mind was not extra circumstances—it

was to go search, at that point.

In addition, your Honor, with regard to the finding that

she expressly or impliedly permitted the search, I thought

the undisputed testimony was that she said nothing. I don’t

think there was any expression, at least no verbal expres-

sion, one way or the other.

THE COURT: She opened the door.

MR. CLARK: Yes, sir, but I think, under the circum-

stances, where some federal agent shows a badge in your

14a

window, I don’t think the average citizen, at that point,

is going to stand there and let them kick the door down.

I don’t think there is anything in the record that says

what her state of mind was. She did not make any verbal

response. All she did was open the door.

THE COURT: Okay, I am unable to make any finding

that she did make a verbal response. I do find that she

opened the door in a way which the officer understood as

giving him permission to enter.

MR. CLARK: Yes, sir.

THE COURT: Now, as to the decision on the part of

Officer Krusko. As I understand the testimony, he made

the decision that he would go in the house, with or without

consent, after the cover was blown, but you want me to

find exactly what time of the night?

MR. CLARK: Yes, sir. It is my understanding that he

made it at the DEA headquarters to go in the house.

I was asking him about having conversations with the

magistrate. He said the decision was made at that time.

THE COURT: The decision was made after the agent,

who was conducting the surveillance, was approached by

Nolen and Crabtree Jr. in the four wheel drive truck.

Exactly what time of night that was, I am not sure I can

find.

MR CLARK: Yes, sir. What I am saying is—I am trying

to get at the location of Agent Krusko, at that point.

I believe they notified him—the two agents that were

out in the field, Lamplugh and Tidwell, notified Agent

Krusko at DEA headquarters.

THE COURT: My recollection is that he had gone to

DEA headquarters for the purpose of preparing the affi-

davit for a search warrant, and was there at the time that

he was informed by the agents that their cover had been

15a

blown, so to speak, and he then made the decision to go

in without a warrant.

MR CLARK: Yes, sir. That is the decision I was asking

for.

In addition, the van, I believe Agent Krusko said he

was not looking for anyone in the van. He was searching

the van. He was not looking for people at that specific

point in time.

I asked him specifically about having looked at the van.

I believe his testimony was that it appeared that it had

not been moved in some time and that he was not looking

for people when he searched the van.

THE COURT: Well, his conclusion that it had not been

moved for some time was apparently made after closer

inspection of the van, however.

I did not understand that he discerned, from the rear

of the house, that it had not been moved for some time.

MR. CLARK: Well, I thought he had. I thought when

he looked at the van he could tell that it had not been

moved by looking at it.

THE COURT: Well, that conclusion was based, in part,

as I recall, upon his observation that the pistons were

rusty. I don’t think he could see that from the back door,

do you?

MR. CLARK: No, sir, judge. But you could tell, by the

condition of the van, and I assume he could tell, by the

condition of the van, that it had not been moved. It had

been sitting there for some time.

THE COURT: I am unable to make a finding that he

could tell that from the rear of the house. The area was

not lighted, as I recall. I am unable to find that he could

tell from the rear of the house that the van had not been

moved.

16a

MR. CLARK: Yes, sir. I will ask your Honor to make

a finding with regard to his testimony that he was not

looking for people when he was looking in that van.

THE COURT: Well, I don’t recall what he said on that.

Is that what he said, Mr. Milling?

MR. MILLING: Your Honor, special Agent Krusko said

that he had no information, I believe, in answer to a ques-

tion from Mr. Clark, that he had no information that any

people were out there, but I believe his testimony was

that—and the testimony was, that there were four—four,

that they had been told were there ‘rom the informant

and he had been told to search the place to look for people.

THE COURT: Well, I will find that he had information

that there were some—several people in the house. He

didn’t know how many people were there.

I will find, if this is what you are asking me to find,

that he had no information that there were people in the

van.

MR. CLARK: Yes, sir.

THE COURT: But I think it was reasonable, and I find

it was reasonable, to make a look for people in the van,

under these circumstances.

These circumstances, including the fact that he didn’t

know how many people were in the residence at the time

they drove up, that he had information that there were

automatic weapons in the residence and it was nighttime.

I think it was reasonable for him to look for people in

the van.

MR. CLARK: Yes, sir.

MR. MILLING: Your Honor, with reference to the van.

If your Honor recalls the testimony, I believe, when I

called special Agent Krusko back to the stand, he also

testified that as he approached the van he smelled mari-

juana and that the back door was not totally closed shut.

17a

It would not totally close and—it was touching, if your

Honor could make that additional finding. As he ap-

proached the van he also smelled marijuana.

THE COURT: I will find marijuana—as he approached

the van, he smelled marijuana.

MR. MILLING: With reference to his testimony, the

decision as to when, and what his decision was back at

headquarters.

I believe his testimony was that he made the decision

to secure the residence, and I think, on cross-examination,

he stated that that meant to go in and secure the people

and the premises until he could get a search warrant in

order to search for other evidence. I believe, before it was

said, he made the decision to go in and search.

THE COURT: Well, I didn’t mean to say that. I think

he had made the decision to go into that residence with

or without permission.

MR. MILLING: To secure it, yes, sir.

THE COURT: To secure it. I also think, however, as

he drove up the driveway, at least one of his purposes

was to see if he could get consent to enter the residence,

and I do not think, at the point he drove into the driveway,

he had violated anybody’s constitutional rights.

After he drove in the driveway and smelled the mari-

juana and had reason to believe that evidence was being

destroyed, I think he had, at least, the right to use the

badge of his office to see if he could get permission to

enter the residence. That is what he did.

MR. MILLING: Your Honor, it was also the govern-

ment’s position when he got out of the car and saw the

smoke billowing up out of the chimney and smelled the

marijuana, that extenuating circumstances, even absent a

consent, in order to keep the evidence that was burning—

18a

appeared to him to be obviously going up the chimney, he

would have had the right to go into the residence.

THE COURT: Well, certainly those were extenuating

circumstances, in my opinion, the fact that evidence was

being destroyed.

I think all I have to decide is that he had the right to

use the badge of his office, at least to see if he could get

consent to enter the residence, and that is what he did.

MR. MILLING: All right, sir.

MR. DEEN: Judge, after the search of the trailer, we

would ask for a finding of fact that, at the time the con-

sent was asked of Mr. Crabtree, that