Brief for the United States — King v. United States

> me a cnerses ann aetna

Ju the Supreme Court of the Ruited States

OCTOBER TERM, 1973

No. 72-1577

GorDON R. KING, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 27-28)

is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 24, 1973. The petition for a writ of certiorari

was filed on May 23, 1973. The jurisdiction of this

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

QUESTION PRESENTED

Whether a search of an apartment with a warrant

was invalid because based on evidence observed by

police officers during a prior entry into the premises,

with an arrest warrant, in search of a dangerous felon,

or because of the manner in which the officers gained

entrance when the search warrant was executed.

¥ (1)

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Virginia, petitioner was

convicted of possessing two unregistered hand gre-

nades, in violation of 26 U.S.C. 5861(d), and was

sentenced to eight years’ imprisonment. The court of

appeals affirmed (Pet. App. 27-28).

The evidence adduced at trial and at a pretrial hear-

ing on petitioner’s motion to suppress showed that on

February 25, 1972, a bank in Arlington, Virginia was

robbed. State police investigating the robbery deter-

mined that it had been committed by one George

Garland, who had been residing under an assumed

name at a motel (H. 23-25).! Further investigation

revealed that Garland had made several calls from the

motel to an apartment leased to Mrs. Pamela Worrall,

located at 5001 Seminary Road, Alexandria, Virginia;

that one call had been made immediately after the

robbery; that Garland might have been staying at

the Worrall apartment; and that on the day after the

robbery Mrs. Worrall was overheard commenting that

her friend, Garland, had committed a bank robbery

(H. 26-27). In addition, Garland’s car was located in

the parking lot of the apartment house (H. 32-33, T. 37).

On February 29, local and federal officers, armed

with a warrant for Garland’s arrest, went to the office

of the resident manager of Mrs. Worrali’s apartment

building. After learning that Garland had recently been

'“H.” refers to the transcript of the pretrial hearing, with the

exception of the separately paginated transcript of testimony by

detective John W. Turner (“T.”). “Tr.” refers to the transcript

of trial. A copy of each of these is being lodged with the Clerk of

this Court.

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seen in the building (T. 10), the officers attempted to

execute the warrant. Although they believed that Gar-

land would not answer telephones or respond to knocks

on the door, the officers nevertheless first telephoned

the apartment from the resident manager’s office.

Receiving no answer, the officers went upstairs and

knocked on the door of Mrs. Worrall’s apartment for

several minutes. Again there was no response (H.

28-31). They then used a pass key to open the door.

While searching for Garland, Alexandria detective

John Turner saw in plain view on top of a kitchen

cupboard a large and unusual smoking pipe. On

closer inspection of the pipe, detective Turner found

marijuana residue in the pipe bowl and marijuana

stems and seeds in a dish beside the pipe (T. 15-16,

19). No one was found in the apartment. The pipe and

marijuana were left behind, and a piece of cellophane

tape was attached to the door and door frame in a

manner designed to give evidence of any entry into

the apartment (T. 24).

For the next several days, detective Turner and

other local officers with him made daily checks of the

apartment, and found the tape on the door apparently

intact when they passed by (T. 25-26). In fact, however,

between February 29 and March 6 the door had been

opened several times. During this period, Mrs. Worrall

and Garland were vacationing in Florida (Tr. 237, 255).

Both petitioner, who paid the apartment rent and a

$100 weekly allowance to Mrs. Worrall (Tr. 231-232),

and the latter’s sister, Mrs. Malinal Williford, had keys

to the apartment and had visited the apartment during

the week prior to March 6, 1972.

On March 6, at about 1:00 p.m., Mrs. Williford met

petitioner at the apartment for the purpose of receiving

PES ATES LORS PRN PPS —

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$320 to be wired by her to her sister in Florida (Tr. 293),

She left at approximately 2:30 p.m. and, at 4:00 p.m,

telephoned the apartment to inform petitioner that the

money had been sent (Tr. 294).

Earlier that same day, detectives Turner and Roy

Nash submitted their affidavit (Pet. App. 19-21) to a local

justice of the peace, who thereafter issued a warrant

authorizing them to search Mrs. Worrall’s apartment.

At approximately 4:30 p.m., several Alexandria police

officers, including Turner and Nash, attempted to

execute the warrant. They knocked on the door for

several minutes and received no response (T. 27-28).

Then a pass key was inserted into the door lock by

the resident manager, and the door opened slightly:

an inside chain latch prevented the door from opening

further. Petitioner was observed on the living room

sofa. He asked who was there, and Turner replied.

“Police officers, open the door” (T. 29). Petitioner

complied. He was then informed of the warrant, and the

search of the apartment ensued (T. 38-39). Two live

hand grenades were discovered in the living roon

closet wrapped in a towel inside a paper bag (H. 29-30

Tr. 197-198).

The following day, petitioner met Mrs. Williford out

side the apartment building and informed her of the

police search. Petitioner said, “I’m really worried. —

had those grenades up there. They took the grenades |

had up there” (Tr. 295). Two days later, when Mrs

Williford informed petitioner that the police intendec

to interview her, petitioner gave her a_ telephon

number where he could be reached and said, “Don’

say anything. You don’t even know me” (Tr. 300-301).

In his defense, petitioner admitted his association wit

Mrs. Worrall and his free access to her apartment bu

5

denied keeping any personal possessions in her apart

ment other than more than $60,000 found there in the

course of the search. Petitioner claimed that he never

opened the living room closet and denied knowing that

the grenades were there (Tr. 356-383). In rebuttal,

a police detective testified that in response to police

questioning after his arrest, petitioner denied having an

apartment key, knowing who resided there, or owning

the $60,000. Petitioner told the police officer that he

had been admitted to the apartment by an unknown

friend (Tr. 397-399).

ARGUMENT

Petitioner maintains that the February 29 entry

into the apartment in search of Garland was illegal

because there was no probable cause to believe Garland

was there, that the discovery at that time of the mari-

juana atop a cupboard shelf was not lawful under the

plain view doctrine, and that the March 6 search

disclosing the hand grenades was invalid because

it was based upon the prior allegedly illegal entry and

because the police had failed to make their purpose

known before entering the premises. None of these

clams has merit. The police acted reasonably and

pursuant to valid warrants in all phases of the in-

vestigation.

1. The information known to the police about

Garland, the bank robber, when they made their entry

into Mrs. Worrall’s apartment on February 29 was

sufficient to provide a reasonable basis to believe that

Garland may have been inside. That information, obtained

from police investigation and reports of informants, in-

cluded knowledge that Garland had made several recent

telephone calls to the apartment; that the resident

manager of the apartment building had recognized

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Garland’s photograph and had stated that she had see

him in the building “recently” (T. 10); that Garland

automobile had been found on the parking lot of th

apartment house; that Garland was supposedly stayin

in the area of the apartment building; and that Pamel

Worrall had been heard to state that Garland, he

“friend,” had robbed a bank. Because ample caus

existed for the police officers to believe that Garlan

was in Mrs. Worrall’s apartment, their entry therei

was lawful. See Warden v. Hayden, 387 U.S. 29%

United States v. Price, 345 F. 2d 256, 259 (C.A. 2

United States v. Sims, 231 F. Supp. 251, 254 (D. Md.)

2. Having made a iawful entry into the apartmer

without encountering anyone, the police officers acte

reasonably in making a search of the premises for th

felon. Warden v. Hayden, supra. When, in the cours

of that search, a police detective with narcotic

experience observed a unique smoking pipe in plai

view atop a kitchen cupboard, his conduct in returnin

to the kitchen to examine the pipe after the fruitle:

search for the felon had been completed cannot fair!

be deemed to be unreasonable. Detective Turner

actions fall well within the plain view doctrine, whic

“has been applied where a police officer is not searchin

for evidence against the accused, but nonetheless i

advertently comes across an incriminating object

Coolidge v. New Hampshire, 403 U.S. 443, 466.

2United States v. Watson, 307 F. Supp. 173 (D.D.C.), reli

upon by petitioner (Pet. 10), is not in conflict with the governmen

argument. In Watson, Judge Gasch ruled that officers with <

arrest warrant should not have entered an apartment when thi

had no reason to believe anyone was inside. However, Jud,

Gasch agreed that entry is lawful if a policeman “has reasonat

cause to believe the defendant is within” (id. at 175).

Oo ABC IRCA

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Recognizing that the initial observation of the

unusual smoking pipe would be deemed inadvertent,

petitioner claims nevertheless that the officer had no

right to examine it when it was out of his reach on

top of the cupboard, and that detective Turner’s dis-

covery of the marijuana by climbing on the counter to

lift the pipe down was therefore unlawful (Pet. 14).

Contrary to that contention, the plain view doctrine has

never been so restricted as to forbid a closer inspection

of an incriminating object found in plain view. See

United States v. Drew, 451 F. 2d 230 (C.A. 5).

3. The affidavit submitted by detectives Turner and

Nash supporting the warrant issued on March 6 to

search Mrs. Worrall’s apartment for narcotics con-

tained information regarding the pursuit of George

Garland to this apartment, the entry on February 29

and discovery of the smoking pipe and marijuana, and

the use of cellophane tape on the door and door

frame, coupled with daily checks of the door which

gave the detectives reason to believe that no one had

entered the apartment since February 29 (Pet. App.

19-21). Certainly those averments, based largely upon

the personal activities of the affiants, furnished probable

cause for a detached judicial officer to issue a warrant.

The information was not, as petitioner alleges, “stale”

(Pet. 6) because the events had occurred six days

before, particularly in light of the statements that

the officers had strong reason to believe that no one

had entered the premises since they had last observed

the contraband. See United States v. Guinn, 454 F. 2d

29, 36 (C.A. 5), certiorari denied, 407 U.S. 911; Coury

v. United States, 426 F. 2d 1354 (C.A. 6). The fact

that this information proved to be erroneous because of

circumstances unknown to the affiants (T. 23-26) did

8

not affect the integrity of the affidavit or negate the

validity of its issuance. Rugendorf v. United States,’

376 U.S. 528, 532. 4

4. Although they evidently expected the apartment to

be unoccupied on March 6, the policemen knocked on >

the door for several minutes before attempting to

gain entrance with a pass key. When the lack of any

response to their knocking had indicated that no one was

inside, the officers could rightfully expect that any

announcement would serve as a useless gesture. United

States v. Hawkins, 243 F. Supp. 429 (E.D. Tenn);

United States v. Watson, 307 F. Supp. 173, 176, n. 2

(D.D.C.); cf. United States v. Gervato, 340 F. Supp.

454 (E.D. Pa.). When they unexpectedly found the

entrance barred from within by a chain latch, the police

officers properly made no further attempt to enter on

their own. They instead identified themselves, waited

for petitioner to unlock the door, and presented him

with a copy of the search warrant before beginning their

search. That conduct cannot fairly be deemed unreason-

able or violative of petitioner’s right to privacy.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be

denied.

ROBERT H. Bork,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

JEROME M. FEIT,

MERVYN HAMBURG,

Attorneys.

JuLy 1973.

POb-1973-07