# Petition for Writ of Certiorari — Crabtree v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 852

## Text

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

Page
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LIST OF PARTIES TO Rg ie 2) li
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2276%3A1. Public record. Not legal advice.