Petition for Writ of Certiorari — Yale Broadcasting Company v. Federal Communications Commission

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SUPREME COURT, U. 5S

T3- 824

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

——_—_>——_

No. 73-1208

——

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

LAWRENCE F. BECKER,

Defendant-Appellant.

——¢———

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

———

NEIL H. FINK

3100 Guardian Building

Detroit, Michigan 48226

Attorney for Appellant

Interstate Brief & Record Co., 1036 Beaubien St., Detroit, Michigan 48226

WO. 2-8745—WO. 2-8732

EWN ENA SEITE (REILLY: EP YL HE. MONET RRO RTE RE ORE

ratio.

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EL PIT NE! IRE ATMS MERLIN SEMEN IT EOE MIA Fe 8

t ats ‘

SAT POS Ae

2 RO AOE ERT ae SERIO ICS ~ a e e

Page

1. Opinions Below ............ceeeeeeeeeeeeceess 1

a errr rt rere teers 2

3. Questions Presented ..........++e eee secrete: 2

4. Statutes and Constitutional Provisions Involved 3

5. Statement of the Case............. cece ee eeees +

6. Reasons for Granting the Writ...........++-- By)

Conclusion and Relief.............eeee ee ee ees 40

7. Appendices:

A. Opinion of the Sixth Circuit Court of Appeals 41

B. Dissenting Opinion of the Honorable Wade

McCree, Circuit Judge..........--..e eee 48

C. Opinion and Order Denying Motion to Sup-

press in the United States Distriet Court for

the Eastern District of Michigan........... a7

TABLE OF AUTHORITIES

Cases:

Acearino v United States, 179 F2d 456 (DC Cir

Sree eee Tree ee eee ee ee te a 28

Berlin v State, 19 Md App 48, 277 A2d 468 (1971) 11

Carroll v United States, 267 US 132 (1925).... 18,23

Chambers v Maroney, 399 US 42 (1970)....-- 16, 23, 25

Chimel y California, 395 US 752 (1969)... .2,6,8,9, 10,

13, 14, 16, 19, 23

Coolidge vy New Hampshire, 403 US 443 (1971)... 20

Page

Dorman v United States, 435 F2d 385 (DC Cir

MOTD) aoa vccnvcrvcsenesnsencrsosssensen® 21, 24, 25, 26

Draper v United States, 358 US 307 (1959)...... 33

Giacalone v Lucas, 445 F2d 1238 (6 Cir 1971).... 39

Harris v United States, 331 US 145 (1947)....---- 9

Henry v United States, 361 US 98 (1959)......-- 33

Johnson v United States, 333 US 10 (1948)....-- 23

Jones v United States, 357 US 493 (1958)...... 19

Kleinbart v United States, 489 F2d 511 (1970).... 32

McClure v United States, 332 F2d 19 (9 Cir 1964) 31

McDonald v United States, 335 US 401 (1948).... 27

McKnight v United States, 183 F2d 978 (DC Cir

VDDD) occ evccncceenccensnnecnosunennsssones 28

Meyer v United States, 386 F2d 715 (9 Cir 1967) 32

Miller v. United States, 357 US 301 (1966). ...-. 28

Morrison v United States, 262 F2d 449 (1958).... 18,19

People v Gastello, 67 Cal 2d 586, 432 P2d 7

ROGET) cnn nove cenn nvouvensstavossersneenees

People v Santiago, 71 Cal gd 18, 453 P2d 353

PUNO icc res escenectecrar eee enentin®

Preston v United States, 376 US 364 (1964)......

Schmerber v California, 38+ US 759 (1966)......

Stamps v United States, 436 F2d 1059 (9 Cir 1971)

Terry v Ohio, 392 US 1 (1068)... 2.2 2c ceeeees 18, 20, 23

Trupiano v United States, 334 US 699 (1948)....

iil

Page

United States v Alexander, 346 F2d 561 (6 Cir

| rrrrrer errr re et te 31

United States v Augello, 368 F2d 692 (3 Cir 1966) 31

United States v Baca, 417 F2d 103 (10 Cir 1969)

cert den 404 US 979......... cece cece eee eens 11

United States v Chambers, 382 F2d 910 (6 Cir

denn, Perrier eee a oe 31

United States v DeRi, 332 US 581 (1948)......-. 30

United States v Figueroa, 204 F Supp 641 (DC

NY 1962) affd 323 F2d 729 (2 Cir) cert den

OO TI DB. oo i cco kc conc sscevenecseusevene 35

United States v Green, 465 F2d 620 (DC Cir 1972) 14

United States v Harris, 321 F2d 739 (6 Cir 1963)

37, 38, 39

United States v Harris, 391 F2d 38+ (6 Cir 1968) 31

United States v Harris, 435 F2d 74 (DC Cir 1970) 32

United States v James, 378 F2d 88 (6 Cir 1967) 37

United States v Miles, 449 F2d 1272 (10 Cir 1971) 11

United States v Pierce, 124 F Supp 264 (ND Ohio

1954), affd 224 F2d 281 on opinion below.... 35

United States v Pratter, 465 F2d 227 (7 Cir 1972) 31

United States v Rabinowitz, 339 US 56 (1950).... 9,18

United States v Shve, 12 CrL 2457 (6 Cir 1/23/73) 9,10

United States v Ventresca, 380 US 102 (1965)....

United States v Watson, 307 F Supp 173 (DC Cir

Sa er eee eee eC Teor er Sn rts. 30, 31, 32

Page

United States v Wylie, 462 F2d 1178 (DC Cir 1972) ol

United States v Wysocki, 459 F2d 884 (6 Cir 1972) 25

Vale y Louisiana, 399 US 30 (1970)... .. eee eee 24

Warden v Hayden, 387 US 994 (1967)....-+-+-- 23

Weeks v United States, 933 US 383 (1914)...--- 6

Whitely v Warden of Wyoming State Penitentiary,

41 US 460 (1971)... .ceecrsernncesercccces 33

Won Sun v United States, 371 US 471 (1963).... 33

Worthington v United States, 166 F2d 557 (6 Cir

ccc vc dares anor enater eens res ehes eS) 33, 37

Miscellaneous:

Note, Scope Limitations for Searches Incident to

Arrest, 78 Yale L J, 483 (1969)... 2. secre eee 25-26

Note, 74 Dickinson L Rev 361 (1970)....--- +++ 13

Siegesmund, 23 Stanford L Rev 999 (1971).....+ 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

—_—4+——_-

No. 73-1208

—_—4~——-

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

LAWRENCE EF. BECKER,

Defendant-Appellant.

—_+——_

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

————

1. OPINIONS BELOW

Petitioner was convicted in the United States District

Court for the Eastern Distriet of Michigan, Southern Di-

vision, on September 22, 1972. Sentence was imposed on

November 9, 1972. The Sixth Cireuit Court of Appeals

affirmed the conviction, and on October 5, 1973, handed

le en

[anes Pe ee AES RRP TIE

down an opinion set forth in Appendix A. A dissenting

opinion was also issued by the Honorable Wade MecCree,

Cireuit Judge, and is set forth in Appendix B.

The opinion and order denying suppression of the 1800

pills taken from the closed drawer of the bureau issued

by the trial court is set forth in Appendix C.

2. JURISDICTION

The opinion and judgment of the Sixth Cireuit Court

of Appeals was entered on October 5, 1973. The juris-

diction of this Court is invoked pursuant to 28 USC 1254.

3. QUESTIONS PRESENTED

Was the search of a closed drawer of a bureau three

to five feet away from appellant legal as incident to arrest

under Chimel v California, 390 US 752 (1969), where ap-

peHant had been searched and was under the control of

the arresting officers who had put their guns away!

Was appellant’s Fourth Amendment right to be free

from unreasonable searches and seizures violated by fed-

eral narcotics agent’s warrantless arrest of him in his

home where no exigent cirewmstances existed that pre-

cluded the necessity of obtaining a warrant?

as nearer ac a N

Ill

Was appellant's right under the Fourth Amendment

further violated by the forcible, nighttime entry of his

home in the absence of exigent circumstances?

Did federal agents have sufficient probable cause to be-

lieve that appellant had committed a crime?

Was appellant’s arrest merely a pretext for a search

for tangible evidence?

4. STATUTE AND CONSTITUTIONAL PROVISIONS

The Constitutional provision involved herein:

The Fourth Amendment to the Constitution of the

United States of America:

“The right of the people to be secure in their

persons, houses, papers and effects against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly deseribing the place to be searched,

and the persons or things to be seized.”

Bur

5. STATEMENT OF THE CASE

The appellant, Larry Becker, was arrested in his apart-

ment by federal narcotics agents for conspiracy to violate

federal narcotics laws at around 12:30 a.m. on March 4,

1972.

Prior to that time an undercover agent had overheard

Joseph Jacobini arranging a narcotics transaction by

phoning a certain number and talking with “Larry.” The

number was later identified as Larry Becker's and eight

to ten federal nareotics agents went immediately to his

home where they made a warrantless, forcible entry to

arrest him. A search was made of the entire apartment

and narcotics were found.

A three-count criminal indictment No. 46951 was re-

turned by the Federal Grand Jury for the Eastern Dis-

trict of Michigan alleging Joseph Jacobini, Larry Becker

and one Terry McManus to be in violation of 21 USC S41

(a) (1).

On May 22 and June 28, 1972, a hearing to suppress all

the evidence obtained from the premises of Larry Becker,

appellant herein, was held before the Honorable Cornelia

G, Kennedy in the United States District Court for the

Eastern District of Michigan, Southern Division.

On August 11, 1972, Judge Kennedy issued an order

suppressing all items seized on the second floor but deny-

ing suppression as to the 1800 pills taken by agent Mahon

from the closed drawer of the bureau, holding they were

validly seized incident to arrest.

Trial on this matter took place on September 22, 1972

before Judge Kennedy and appellant was found guilty as

re ee ee ee —

aa See ee SR OR FR RS a ES

to count three of the indictment, the government having

dismissed counts one and two.

Appellant was sentenced on May 9, 1972.

Appellant appealed from the judgment of conviction,

and the Sixth Cireuit Court of Appeals affirmed the con-

viction on October 5, 1973.

6. REASONS FOR GRANTING THE WRIT

The Sixth Cireuit Court of Appeals plainly abandoned

its responsibility to protect the Fourth Amendment right

of all persons to be free from unreasonable searches and

seizures in an ill-considered opinion affirming Appellant’s

conviction based upon illegally seized evidence which

should properly have been suppressed at the District

Court level. In light of past holdings of this Court, and

the facts as brought out in testimony, it is glaringly appar-

ent that the decision below is erroneous.

THE SEARCH OF A CLOSED DRAWER OF A BUREAU

THREE TO FIVE FEET AWAY FROM APPELLANT WAS

NOT LEGAL AS INCIDENT TO ARREST UNDER CHIMEL

vy CALIFORNIA, 395 US 752 (1969), WHERE APPELLANT HAD

BEEN SEARCHED AND WAS UNDER THE CONTROL OF

THE ARRESTING OFFICERS WHO HAD PUT THEIR GUNS

AWAY.

A search incident to a valid arrest has long been recog-

nized as an exception to the Fourth Amendment warrant

requirement. See Weeks v United States, 233 US 383, 392

(1914) (dictum), and cases cited therein. Since 1969, the

permissible scope of such a search has been defined by

Chimel v California, 395 US 752, 763 (1969):

“When an arrest is made, it is reasonable for the

arresting officer to search the person arrested in

order to remove any weapons that the latter might

seek to use in order to resist or effect his escape.

Otherwise, the officer’s safety might well be en-

dangered, and the arrest itself frustrated. In ad-

dition, it is entirely reasonable for the arresting

officer to search for and seize any evidence on the

arrestee’s person in order to prevent its conceal-

ment or destruction. And the area into which an

arrestee might reach in order to grab a weapon

or evidentiary items must, of course, be governed

by a like rule . . . There is ample justification, there-

fore, for a search of the arrestee’s person and the

area ‘within his immediate control’ construing that

phrase to mean the area from within which he

might gain possession of a weapon or destructible

evidence.”

Appellant Larry Becker maintains that the 1800 LSD

pills obtained from the closed bureau drawer were not

seized as the result of a valid search incident to arrest.

The federal agents’ testimony would have the Court be-

lieve that this particular search was for weapons, but the

facts reveal no reason to believe that their safety was in

fact endangered:

1. Eight to ten federal agents with sidearms drawn

forced their way into Larry Becker’s apartment to find

him lying on the couch, dressed informally, not in any

way prepared for their arrival.

2. The agents had no reason whatsoever to believe that

Larry Becker was armed and/or prone to violence, nor

was the crime for which he was being arrested one of vio-

lence (T.#1, 62).

3. Two agents directed him to a position not of his own

choosing where he was placed up against a wall with feet

spread.

OU te ee ae

4. Although he was not handcuffed at the time of the

search, at least two agents, armed and of imposing phy-

sical proportions, were assigned to watch him and were

within his immediate physical presence.

5. Although Larry Becker turned around on a number

of occasions, it was clearly for the purpose of making in-

quiries (A. 14).

6. At the time Agent Mahon went into the closed

drawer, Larry Becker had been searched, effectively “‘neu-

tralized”, and the agents guarding him had put away theit

guns. The officers’ own testimony indicates they were at

that time not in fear of him (A. 10).

-. There is no indication that Larry Becker at any

time made any overt actions toward the bureau.

8. The bureau drawer was closed.

9. Had the agents any concern about their safety, sev-

eral practical and expeditious alternatives not involving

a further warrantless invasion of Larry Becker’s privacy

were available.

Appellant argues that these facts provide the basis for

invalidating the search incident to arrest here under dis-

cussion in four ways.

Searches of Closed Drawers Are Forbidden

in the Very Language of Chimel.

“A gun on a table or ina drawer in front of one

who is arrested can be as dangerous to the arrest-

ing officer as one concealed in the clothing of the

person arrested . . .

‘There is no comparable justification, however,

for routinely searching any room other than that

&.. sadind Ms

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in which an arrest occurs—or, for that matter, for

searching through all the desk drawers or other

closed or concealed areas in that room itself. Chi-

mel, supra, at 763.

In a scathing dissent from the majority opinion in the

instant ease, Circuit Judge MeCree recognized that the

search was unconstitutional:

Applying Chimel’s rationale to these facts, we

must conclude that the opening of the desk drawer

was impermissible. As the majority opinion quotes,

Chimel makes a distinction between a gun on a

table or in a drawer in front of one who is arrested

and desk drawer and closed areas in the room in

which the arrest is made.

United States v Becker, 73-1208, p. 15 (1973).

J. McCree, dissenting (A-56).

Chimel Poses A Purposive Test,

Not An Area Test.

A search such as the instant one offends not only the

language but the purpose of Chimel. Perhaps the most

basic difficulty in applying Chimel arises out of the mean-

ing to be given to the words “‘area within his immediate

control... the area from within which he might gain pos-

session of a weapon or destructible evidence.” Is this stan-

dard properly defined as a general area of specified ra-

dius with the arrestee at the center which may be searched

regardless of the specific circumstances obtaining at the

time of the arrest? Or is it more accurately understood

as a purposive definition requiring each case to be evalu-

ated in terms of the arrestee’s actual capability to reach a

weapon or destroy evidentiary matter?

Appellant maintains that the ‘‘area test” reflects a fun-

damental misunderstanding of the import of Chimel. Prior

to Chimel, the scope of searches incident to arrest was of

such a nature as to allow general, exploratory searches of

an arrestee’s home without reference to the alleged pur-

pose of the search. These cases justified such searches with

words identical to Chimel, ‘‘within his immediate control.”

See e.g., Harris v United States, 331 US 145, 151 (1947)

and United States v Rabinowitz, 330 US 96, 61 (1950).

This Court specifically resisted the temptation to merely

distinguish Harris and Rabinowitz; they were specifically

overruled by Chimel at 768. The fact that Chimel has

been held not 4o be retroactive evidences that it was con-

sidered to be such a sharp break with the past that re-

troactive enforcement would unfairly burden the courts

and law enforcement agencies. The area interpretation of

Chimel, however, differs only in degree from Harris and

Rabinowitz. It still allows arresting officers to make an

exploratory search, only decreasing the permissible para-

meters. It still results in a situation where a citizen’s right

to privacy is determined serendipity by the circumstances

of when and where he is arrested.

The true meaning of the Chimel decision was to make a

change in purpose, not merely degree. Only the purposive

test does this, as some courts have recognized by applying

it although not articulating it as such.

The Sixth Cireuit Court of Appeals has done so recently

in United States v Shye, 12 CrL 2487 (6 Cir, 1/23/73).

Shye, at 2438, upheld the District Court’s finding that a

sack of money taken from behind the water heater of the

defendants’ apartment as incident to arrest was unlaw-

fully seized, saying:

Bicnstrcrciw: iar Pot

“The Court emphasized in Chimel that warrant-

less searches, whether or not incident to arrest,

were the exception, not the rule, and that only the

exigencies of preventive harm to the arresting offi-

cers, the escape of the suspects, or the destruction

of evidence justified search of the arrestee’s person

and of the area within his immediate control. When

the circumstances at which this limited exception

was aimed do not exist, no reason appears for in-

voking it. In this case, the suspects were lined up

against a wall and were quickly searched for wea-

pons, a search which revealed only six bullets in

the pocket of defendant Stevenson. The District

Court found that when the sack of money was

seized, ‘‘the officers had the situation completely

under control,” that the sack was merely one of a

number of items in the closet in which the water

heater was situated, and that a police officer was

positioned between the closet and the nearest sus-

pect. On these facts the court concluded that the

area from which the sack was seized was not within

the suspect’s immediate control as that area is de-

fined in Chimel ...

In the instant case, the majority opinion of the Sixth

Cireuit Court of Appeals distinguished Shye, “insofar as

the record discloses no officer was positioned between

appellant and the desk until Officer Mahon moved to the

desk to look for weapons.” supra, p. 7, and because Becker

was, hands on the wall and spreadeagled, turning around

to ask for a warrant.

Appellant maintains that the officers in the instant case

“had the situation completely under control”. The Court’s

reasoning, which seems to require the existence of a police

officer between an arrestee and any subject, notwithstand-

ing the fact that arresting officers have already subdued

him, is specious.

mee NTE IE LH

United States v Baca, 417 F2d 103 105 (10th Cir 1969),

cert. den. 404 US 979 held the search of an arestee’s apart-

ment could not be justified when he was ‘‘physically con-

fined to a limited area with the 9 x 12 bedroom,” or when

he was “handcuffed with his hands behind his back.” The

Court went on to say:

“Moreover, it cannot be said that the inside of his

bureau drawers, night stand, under the bed or any

similar area was under any type of control by Baca

inasmuch as he was handcuffed with his hands

behind his back and was unable even to dress him-

self. Jd, at 105.”

The Tenth Circuit held on another occasion that the

Trial Court erred in denying a motion to suppress a shot-

gun recovered from the trunk of a car after an arrest on 2

‘‘gas skip” in United States v Miles, 449 F2d 1272, 1273

(1971), saying:

“The police officers both testified that neither

Miles nor Burns could have gotten into the truck.

The search was therefore unreasonable, and a vio-

lation of Miles’ constitutional rights.” (Emphasis

added.)

In Berlin v State, 19 Md App 48, 57, 277 A2d 468, 473

(1971), a New York Court allowed the seizure of an Ex-

empt Narcotics Book because it was in plain sight but in-

dicated :

‘‘The area of immediate control cannot be mea-

sured in feet, or by the arm’s length, but is to be

measured reasonably with respect to the accessibil-

ity of the articles and their nature.”

Appellant would analogize from the words of a pre-

Chimel case, Preston v United States, 376 US 364, (1964) :

ees ME AS ek PEL ON EL RE ENOTES

“The rule allowing contemporaneous searches is

justified, for example, by the need to seize weapons

and other things which might be used to assault an

officer or effect an escape, or as well as by the need

to prevent the destruction of evidence of the crime

—things which might easily happen where the wea-

pon or evidence is on the accused’s person or under

his immediate control. But these justifications are

absent where a search is remote, in time or place

from arrest.” (Emphasis added.)

Appellant contends that these justifications are also

absent when there is no realistic possibility that an arrestee

ean physically reach an area.

As Judge McCree noted in his dissent, supra, at p. 12:

‘‘This maneuver positioned Becker spread-

eagled against the kitchen wall and Finnegan

searched him and found no weapons. The officers

were so sufficiently satisfied that Becker was se-

cured that they put away their firearms and fanned

out throughout the house in what can only be char-

acterized as a general search. Small wonder that

Becker kept turning around to inquire whether

the officers had a warrant. To seize on his consti-

tutional query as evidence that he had not been

secured in order to justify the search of the closed

drawer of the desk 3 to 5 feet away placed in an

impossible dilemma. Unless he submitted to the

unconstitutional search of his house, he invited

the finding that he was endangering the officers and

thereby justified the search the validity of which

he sought to ascertain” (A. 50, 51).

es —a

Officers May Not Routinely Search a Person or

The Immediate Area After An Arrest.

A warrantless search incident to arrest can be justified

only where, in fact, there evists a need to prevent the ar-

restee’s escape, to prevent destruction of evidence, or to

insure the safety of the arresting officers. As such, Chimel

quotes and affirms the teaching of Trupiano v United

States, 334 US 699, 708 (1948), which Rabinowitz over-

ruled:

‘‘A search or seizure without a warrant as an in-

cident to a lawful arrest has always been consid-

ered to be a strictly limited right. It grows out of

the inherent necessities of the situation at the time

of the arrest. But there must be something more in

the way of necessity than merely a lawful arrest.

The mere fact that there is a valid arrest does not

ipso facto legalize a search or seizure without a

warrant. Carroll v United States, supra, 158. Other-

wise, the exception swallows the general principle,

making a search warrant completely unnecessary

wherever there is a lawful arrest. And so there

must be some other factor in the situation that

would make it unreasonable or impracticable to re-

quire the arresting officer to equip himself with a

search warrant.”

Arresting Officers then, are not entitled, merely by vir-

tue of making a valid arrest, to routinely search the per-

son and the area:

‘‘In the rare case where a search is necessary for

the protection of the arresting officer or to prevent

the destruction of evidence, the police have been

given power to conduct a limited search.” Note, 74

Dickinson L Rev 361, 365 (1970).

Biswas. ates iltbitall Sa B ian itabn dec sua ahs

There will be many cases where an arresting officer is not

entitled to make any search at all. Chimel, at 762, discusses

the rationale for a protective search in stop and frisk

situations set out in Terry v Ohio, 392 US 1 (1968) and

indicates that a ‘‘similar analysis underlies” the search in-

cident to arrest principle. Thus, United States v Green,

465 F2d 620, 622 (DC Cir 1972,, points out:

‘*Sanction of searches incident to arrest, how-

ever, ‘does not mean that [the person arrested] is

subject to any and all searches that the arresting

officer may wish to conduct.’ United States v M ils,

US App DC ; F2d (1972) (en bane).

‘({I]n justifying the particular intrusion the police

officer must be able to point to specifie and articu-

lable facts which, taken together with rational in-

ferences reasonably warrant that intrusion.’ Terry

v Ohio, 392 US 1, 21, 88 SCt 1868, 1880, 20 LEd 2d

889 (1968). The touchstone both as to whether the

search is warranted and the propriety of its scope

remains reasonableness.”

Green involved a search growing out of a traffic stop but

the principles of law there enunciated are applicable to

_ any search incident fact situation. In evaluating the facts

of Green, the Court there went on to state:

“While these facts remonstrate fear on the part

of the officers, this is not sufficient for our pur-

poses. The fear must be a reasonable one. As the

Supreme Court has stated, ‘it is imperative that

the facts be judged against an objective standard:

would the facts available to the officer at the mom-

ent of the seizure or search warrant a man of rea-

sonable caution in the belief that the action taken

was appropriate?’ Terry v Ohio, supra, 392 US 1 at

21-22, 88 SCt at 1880.”

Not only would the facts of the instant case not ‘‘war-

rant a man of reasonable caution” in the belief that Larry

Becker posed a threat to the officers’ safety, but, as has

been previously pointed out, the officers’ actions and tes-

timony indicate that they were, in fact, not in fear.

That the resulting search was in fact unreasonable un-

der the circumstances, is immediately apparent. In com-

menting upon the instant case in his dissent, Judge Me-

Cree agreed that the search was impermissible even as—

suming that the primary purpose of the arresting officers

was to effectuate an arrest:

‘‘In this appeal, Becker had been searched and

was disarmed, and the officers felt sufficiently se-

cure to put away their weapons. There were 8 to

10 armed agents in the house. Becker’s only activ-

ity after their entry was to turn away from the

wall to inquire about the existence of a search war-

rant.

Agent Ray testified that when he first saw Becker

(about 5 minutes before the L.S.D. was found),

‘He was secured. There were agents with him and

I thought safe at that point...’

Agent Mahon testified . . . that Becker was “neu-

tralized” within half a minute after he had been

moved to the wall where he was searched. He testi-

fied, ‘I would think after a while once it was finally

determined there was no threat of physical harm,

the weapons were put away.’ Upon being asked by

the Assistant United States Attorney what he

meant by “subdued”, Mahon replied, ‘What I mean

is he was no longer in a position to pull a gun or

anything’.” (A-55)

Petite nritcsitens nsw

Officers May Not Make A Warrantless Search If Other,

Less Intrusive Alternatives Are Available

Even assuming, arguendo, the officers had a legitimate

fear for their safety, obvious alternatives to searching for

weapons existed. The entire thrust of Chimel is to give

meaning to the Fourth Amendment, the vehicle through

which the founding fathers of this country expressed the

high regard which they placed on the individual's right

of privacy:

“The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrants chall issue, but upon prob-

able cause, supported by Oath of affirmation, and

particularly describing the place to be searched,

and the person or things to be seized.” US Const.

Amend. IV.

As Chambers v Maroney, 399 US 42 (1970), illustrates,

when the privacy of a citizen is at stake it is entirely rea-

sonable, in fact imperative, for police and the courts to

consider and utilize the least offensive means of achiev-

ing their desired goal. The Court in Chambers, supra at

51-52, attempted to determine which was the “greater”

and which was the “ lesser” intrusion, an immediate war-

rantless search of a car or impoundment in order to get

a search warrant. The Court could not agree on a signi-

ficant differentiation in that situation, but in the present

case it is clear that merely removing Larry Becker from

the premises to one of the waiting police ears would have

been quicker, easier, more efficacious and certainly less in-

trusive upon his Fourth Amendment rights. This alter-

native was ignored.

OS a ee RS

As Judge McCree noted in his dissent, supra:

“If the sole purpose of the entry was to arrest

Becker the Agents could have removed him from

the house and they would have been miles away on

the journey back to the Federal Building before

this seizure. Becker could just as easily have been

escorted out the door when Agent Finnegan,

‘grabbed him by the arm and directed him over to

the wall to put his hands up against the wall to be

patted down and searched for any weapons.’” (A-

30)

APPELLANT'S FOURTH AMENDMENT RIGHT TO BE FREE

FROM UNREASONABLE SEARCHES AND SEIZURES WAS

VIOLATED BY FEDERAL NARCOTICS AGENTS’ WARRANT-

LESS ARREST IN HIS HOME WHERE NO EXIGENT CIR-

CUMSTANCES EXISTED THAT PRECLUDED THE NECES

SITY OF OBTAINING A WARRANT.

Warrantless Arrest Entries Upon Probable Cause Absent

Exigent Circumstances Violate The Fourth Amendment.

Appellant acknowledges that a warrant for arrest, un-

like a warrant for search, has not been held to be a consti-

tutional requirement. However, it is maintained that this

disparity offends the Fourth Amendment, is conceptually

indefensible and is lately becoming the focus of serious

concern on the part of the courts.

The very language of the Fourth Amendment suggests no

basis for a less rigorous standard for arrest warrants:

“The right of the people to be secure in their

persons. houses, and effects, against unreasonable

searches and sezures, shall not be violated, and no

Warrant shall issue, but upon probable cause sup-

ported by Oath or affirmation and partiuclarly de-

scribing the place to be searched, and the persons

or things to be seized.” US Const, Am LV (Emphasis

added. )

The language does not differentiate between ‘‘persons”

and ‘‘things’ ‘in guaranteeing reasonableness or in deli-

neating what may be seized. And this Court has noted that

an arrest by definition is the seizure of a person. Terry

v Ohio, 392 US 1, 10 (1968).

At least one commentator has dealt specifically with the

problem of warrantless arrest entries. Siegesmund, 23

Stanford L Rev 995 (1971). That author asserts that an

arrest constitutes search for and seizure of a person and

maintains that:

“|. an arrest entry, the entry or search of a

private place to effect an arrest, properly falls

within the range of problems which the Fourth

Amendment addresses, and that, except in cireum-

stances of necessity, the amendment requires a

search warrant before a police officer may enter a

home to effect an arrest.”

The District of Columbia Circuit, which has been the

leader in focusing concern on the problem of warrantless

arrest entries, had earlier taken the same view in Morrison

y United States, 262 F2d 449, 452 (DC Cir 1958) :

“The officers entered the house [Morrison’s] to

make a search. It was, to be sure, a search for a

person rather than the usual search for an article of

property, but it was a search ... It is true [the

officers] intended to arrest [Morrison] if they

found him, and so the ultimate objective was an

arrest. The Government urges that this latter fact

resuires that we apply the rules of law pertaining

to arrest rather than the rules governing search.

But the search was a factual prerequisite to an ar-

rest; it was the first objective of the entry; the

officers did in fact search the house. They entered

to make a search as a necessary prerequisite to possi-

ble arrest.”

The Court in Morrison held that the arrest was illegal in

the absence of a warrant or some emergency, even though

the officers had probable cause to arrest and probable

cause to believe the defendant was in his home.

Appellant maintains that the Courts make a mockery of

the Fourth Amendment when they construe it to provide

more protection for one’s possessions than for one’s very

person. The Fourth Amendment protects persons’ right of

privacy; that right applies no less to the individual him-

self than to his possessions. Freedom to make warrantless

entries inevitably gives rise to abuses such as had to be

corrected by Chimel v California, 395 US 752 (1969) and

those perpetrated in the instant case.

The courts have increasingly begun to recognize the

problem of warrantless arrest entries.

Justice Harlan in Jones v United States, 357 US 498,

499-500 (1958) questioned:

. whether the forceful nighttime entry into

a dwelling to arrest a person reasonably believed

within, upon probable cause that he had committed

a felony, under circumstances where no reason ap-

pears why an arrest warrant could not have been

sought, is consistent with the Fourth Amendment.”

Jones did not have to reach that question, but Justice

Harlan indicated that it raised a “grave constitutional

question” at 499.

This Court pointed out in Terry v Ohio, 392 US 1, 20

(1968), that although they were validating the ‘“‘stop

and frisk” of persons under certain specified conditions,

‘‘We do not retreat from our holdings that the

police must, whenever practicable, obtain advance

judicial approval of searches and seizures through

the warrant procedure [citations omitted], or that

in most instances failure to comply with the war-

rant requirement can only be excused by exigent

circumstances.”

And most recently and most explicitly, in Coolidge

vy New Hampshire, 403 US 448, 477, 478 (1971), this

Court has touched upon the question even though it was

not the ultimate basis for the decision:

“Tt is clear, then, that the notion that the war-

rantless entry of a man’s house in order to arrest

him on probable cause is per se legitimate is in fun-

damental conflict with the basic principle of Fourth

Amendment law that searches and seizures inside a

man’s house without warrant are per se unreason-

able in the absence of some one of a number of well

defined ‘exigent cireumstances’.”’

After evaluating the approach of dissenting Justice White,

the Court decided that:

“Tf we were to agree with Mr. Justice White that

the police may, whenever they have probable cause,

make a warrantless entry for the purpose of making

an arrest, and that seizures and searches of auto-

mobiles are likewise per se reasonable given prob-

able cause, then by the same logic any search or

seizure could be carried out without a warrant, and

we would simply have read the Fourth Amendment

out of the Constitution. Indeed, if Mr. Justice White

is correct that it has generally been assumed that

the Fourth Amendment is not violated by the war-

rantless entry of a man’s house for the purposes of

arrest, it might be wise to re-examine that assump-

tion.” Id, at 480.

However, not all courts have shared Mr. Justice White’s

assumption and it may be instructive for this Court to

examine Dorman v United States, 435 F2d 385 (1970),

where the District of Columbia Circiut held that, absent

exigent circumstances, a warrant is needed to make an ar-

rest in a home:

‘‘The Supreme Court has not explicitly passed

on this question. The literature abounds in discus-

sion of the permissibility of an arrest made without

a warrant, but there is little if any analysis focus-

ing on entry into a dwelling for the purpose of an

arrest. However, we think the pertinent principles,

and their application to the case before us, are

fairly to be apprehended from the Fourth Amend-

ment precedents . . . at 388 sso...

_.. The Fourth Amendment provides protection

even as to arrest in a public place, though in such

cases the requirement is only that there be prob-

able cause and there is no additional requirement of

recourse to a warrant. A greater burden is placed,

however, on officials who enter a home or dwelling

without consent. Freedom from intrusion into the

home or dwelling is the archetype of the privacy

protection secured by the Fourth Amendment. In

general a home may not be searched without a war-

rant notwithstanding probable cause. At 300...

_. . the basic principle, the constitutional safe-

guard that, with room for exceptions, assures citi-

zens the privacy and security of their homes un-

less a judicial officer determines that it must be

overridden, is applicable not only in case of entry

to search for property, but also in case of entry in

order to arrest a suspect. At 390.”

“Keeping Drugs from Going Out for Public Consuaption”

Does Not Constitute A Legitimate Exigent Circumstance

Excusing The Warrant Requirement.

The government contends that there were exigent cir-

cumstances in the instant case which necessitated imme-

diate action and allowed no time to obtain an arrest war-

rant. Their allegation is that prompt action was necessary

or ‘‘the material would go out to the public for consump-

tion.” Appellant maintains that this is not a legitimate

exigent circumstance excusing the obtaining of a warrant.

There are logical problems with the government’s argu-

ment. First, although there were a large number of agents

working on the case and those agents had the telephone

numbers of United States Magistrates and District Judges,

no one made any attempt whatsoever to obtain a warrant.

Second, this explanation of exigency does not coincide

with the near-unanimous stated purpose of the agents in

going to Larry Becker's home, i.e., to arrest him for con-

spiracy to violate the drug laws. Third, the agents pointed

to no concrete specific facts supporting the idea that the

drugs would in fact be immediately going out for public

consumption; how they could validly assume this, especi-

ally where the supposed purchaser of them, Joseph Jaco-

bini, was then in custody, is unclear. And last, on a con-

ceptual basis for the Court to accept this as an exigent

circumstance would be to give blanket permission for

warrantless invasions of the homes of suspected narcotics

dealers because there is always a chance that drugs will

at some point go out for public consumption.

The term “exigent circumstances” cannot be precisely

defined because of the variety of circumstances possible.

Broad categories of exigency, primarily in regard to jus-

tifying warrantless searches, have been laid out by the

courts, however. They are all grounded on some type of

urgent necessity and include:

1. Limited search incident to a valid arrest, if there

exists a danger to the officer’s personal safety or of de-

struction of evidence. Chimel v California, 395 US 752

(1969).

2. Stop and frisk on the street, to insure safety of the

officer or those in the immediate vicinity. Terry v Ohio,

392 US 1 (1968).

3. Hot pursuit of a suspected criminal, to protect of-

ficers and prevent the escaping of fleeing felons. Warden

v Hayden, 387 US 294 (1967).

4. Search of a moving vehicle. Carroll v United States,

267 US 132 (1925); Chambers v Maroney, 339 US 42

(1970).

5. Evidence in the process of destruction. Schmerber

v California, 384 US 757 (1966).

The latter category is the closest to the exigent circum-

stance the government here urges so it is important to

point out that before this category comes into play it must

be shown not only that evidence is in the process of destruc-

tion, but this must be indicated by specific ascertainable

factors. People v Gastello, 67 Cal 2d 586, 432 P2d 706

(1967). Otherwise, a “blanket exception” is created which

the experience of California courts has shown to be unac-

ceptable. People v Santiago, 71 Cal 2d 18, 453 P2d 353

(1969).

It was early decided that police inconvenience or avoid-

ance of delay were not exigent circumstances. Johnson

v United States, 333 US 10 (1948).

Leeann

The high degree of exigency required has most recently

been pointed out by this Court in Vale v Louisiana, 399

US 30 (1970), where the dissent proposed the general

rule that warrantless searches at the scene of the arrest

be permitted if the officers making the arrest ‘‘have prob-

able cause to search and there is a clear danger that the

items for which they may reasonably search will be re-

moved before they return with a warrant” Id, at 39. How-

ever, the Court held such a search did not come within

any of the established exceptions to the warrant require-

ment, including the threatened-destruction exception be-

cause ‘‘[t]he goods ultimately seized were not in the pro-

cess of destruction,” at 30.

There is no reason why the same considerations should

not apply to warrantless arrest entries. Returning again

to Dorman v United States, 439 F2d 385 (1970), the Dis-

trict of Columbia Cirucuit Court held that a “principle

of need” operates to justify a judicial officer in issuing a

warrant authorizing an invasion of the privacy of a home

but a different principle, that of ‘‘urgent need” operates

when the decision is made by an officer rather than the

court. The Court at 392-393 listed factors pertinent to de-

termining whether that degree of need exists:

1. ‘‘that a grave offense is involved, part.cularly one

that is a crime of violence.”

9. «| . that the suspect is reasonably believed to be

armed.”

3 ‘that there exists not merely the minimum of prob-

able cause ... but beyond that a «lear showing of probable

cause...”

4. ‘strong reason to believe tnat the suspect is in the

premises being entered.”

5. ‘ta likelihood that the suspect will escape if not

swiftly apprehended.”

6. “the circumstance that the entry, though not con-

sented, is made peaceably . . . The fact that entry was not

forcible aids in showing reasonableness of police attitude

and conduct.”

7. ‘the fact that an entry is made at night raises

particular concern over its reasonableness . . . and may

elevate the degree of probable cause required.”

The Court went on to point out that the police once in-

side made a search only to locate the suspect: ‘There was

no rummaging of drawers, ete., to cloud the purpose of

the police,” at 394. In upholding the warrantless arrest in

this particular case, the Court also noted that the police

did make an attempt to get a warrant and due to unique

circumstances existing at the time, were unable to reach

a magistrate. Supra, at 394.

It hardly needs to be pointed out that the facts of the

instant case pale when measured by the above criteria.

Nor does the proposed exigent circumstances fall within

one of the recognized exceptions. And, as the Sixth Cir-

euit Court of Appeals has held in United States v Wy-

socki, 459 F2d 884, 888 (1972), exigent circumstances must

be narrowly construed, particularly when they are sought

to be applied to residential invasions.

Appellant would further contend that here again there

exist reasonable, less offensive alternatives. Chambers v

Maroney, 399 US 42 (1970).

Even accepting the validity of the exigent circumstances

for the purposes of argument, the agents could quite eas-

ily have staked out Becker’s apartment thus allowing them

to obtain a warrant: Note, Scope Limitations for

Busuns Wenice

Searches Incident to Arrest, 78 Yale L J 433, 445-446

(1969). As the Honorable J. Shelly Wright pointed out in

dissenting from the validation of the warrantless arrest

entry in Dorman v United States, supra, at 402-403 (1970) :

‘The police, while waiting for a judicial officer to

authorize entry into the home, could simply have

staked out the apartment. In fact, while the group

of officers entered, others did cover the exits to the

building and apartment. The police could have re-

mained outside the apartment until a warrant was

obtained. If Dorman was in the apartment and left

it, the police could have arrested him then. The

difference in approach is not slight. Had the police

followed this procedure, Mrs. Dorman and her

friend might have been spared the shame, shock

and embarassment of the nightime shotgun-bearing

entrance of half a dozen policemen into their home.

Further, the insensitive action of the group remain-

ing inside the home through most of the night

might have been avoided. This is so because, even

if the magistrate or judge had decided that prov-

able cause existed to issue a warrant, he might

have put reasonable limits on its execution—for

example, he might have limited the entry of a home

in its execution to daytime, or he might have made

explicit that the warrant was good only to search

for Dorman and that it was not a license to remain

indefinitely in the apartment.”

By the officers’ own testmony they had the names and

telephone numbers of United States Magistrates and Dis-

trict Judges, yet they made no attempt whatsoever to ob-

tain a warrant; in fact, as Officer McKinion stated, never

since he has been in Detroit has he used these numbers,

and this is exactly the problem. For the Court to validate

this arrest entry and subsequent search would be to en-

courage law enforcement officials to avoid the warrant re-

quirement in a way repugnant to the Fourth Amendment.

As Mr. Justice Douglas pointed out in McDonald v United

States, 335 US 451, 455-456 (1948) :

“The right of privacy was deemed too precious

to entrust to the discretion of those whose job is

the detection of crime and the arrest of criminals.

‘Power is a heady thing; and history shows that the

police acting on their own cannot be trusted. And so

the Constitution requires a magistrate to pass on

the desires of the police before they violate the pri-

vacy of the home.”

APPELLANT’S RIGHTS UNDER THE FOURTH AMENDMENT

WERE FURTHER VIOLATED BY THE FORCIBLE, NIGHT

TIME ENTRY OF HIS HOME, ABSENT EXIGENT CIRCUM-

STANCES.

Appellant contends that if exigent circumstances are

required to make a warrantless arrest entry of a citizen’s

home, then a fortiorari, an even higher degree of exigency,

is required where that entry is forcible:

‘+The right to break open a door to make an ar-

rest requires something more than the mere right to

arrest. The government concedes that even when

officers have a warrant of arrest they may not

break open doors unless there is some degree of

necessity. To execute the warrant for McKnight’s

arrest there was no necessity to break open doors;

or, what comes to the same thing for legal pur-

poses, none but what the officers themselves cre-

ate . . . Since MeKnight’s arrest was accomplished

by a needless and violent invasion of a private

house, it was illegal, particularly since the real

purpose of the invasion was not an arrest but a

A NAA ae ta a» a

search.” McKnight v United States, 183 F2d 977,

1978 (DC Cir, 1950).

Judge Prettyman, after an intensive and scholarly sur-

vey of the early common law, concluded in Accarino v

United States, 179 F2d 456, 464 (DC Cir 1949):

“Tt seems to us clear that from the early days

of the common law the breaking of doors to make

an arrest without a warrant was lawful only if

necessary. Indeed, there was grave doubt among the

great authorities that an officer had any power to

break doors without a warrant. Care should be

taken nowadays that expressions of opinion by

those early writers in support of the existence of

the power are not misconstrued as assertions of an

unqualified power. A man in his own home has a

right of privacy which he does not have when on

the public street. That additional right imposes ad-

ditional requirements upon the power of arrest.”

In 1958, this Honorable Court spoke to this issue in

Miller v United States, 357 US 301, 306-307, saying :

‘“‘From the earliest days, the common law dras-

tically limited the authority of law officers to break

the door of a house to effect an arrest. Such action

invades the precious interest of privacy summed

up in the ancient adage that a man’s house is his

castle.

‘But the common law recognized some author-

ity in law officers to break the door of a dwelling

to arrest for felony. The common-law authorities

differ, however, as to the circumstances in which

this was the case.”

Appellant maintains that police do not, therefore, have

an absolute right to make a forcible entry, especially a for-

cible entry of a man’s home late 2’ night, to make an arrest

even with probable cause. There must be some ascertain-

able necessity requiring such an offensive invasion of

an individual’s privacy.

The government relies on 18 USC 3109 for justification

of the forcible entry:

“The officer may break open any outer or inner

door or window of a house, or any part of a house,

or anything therein, to execute a search warrant,

if, after notice of his authority and purpose, he is

refused admittance or when necessary to liberate

himself or a person aiding him in the execution

of the warrant.”

But, 18 USC 3109, being a codification of the common

law, is subject to this same requirement of necessity be-

fore he “may” break into a dwelling. As appellant pointed

out in the previous section, there existed no legitimate

necessity for the forcible entry of his home.

Further, §3109 incorporates two other requirements

which were not met by the officers in the instant fact si-

tuation.

The Federal Agents Did Not Have Reason to Believe

That Appellant Was in His Home.

Officers must have reasonable cause to believe that the

person sought to be arrested is, in fact, in the residence.

United States v Watson, 307 F Supp 173 (1969). Watson

was a search with an arrest warrant, but the Court there

said:

‘An officer seeking entry in order to effect an

arrest cannot accomplish his task if the person he

is looking for is not inside. Consequently, absent

consent, the officer cannot enter by any means,

breaking or otherwise, unless he has reasonable

edie tan rrctednsionns (re eh AF

cause to believe the defendant is within [citations

omitted].

‘*An arrest warrant is issued solely upon a find-

ing of probable cause to believe that a crime was

committed and that the defendant committed it.

The magistrate does not, in addition, determine

that there is probable cause to believe the defend-

ant can be found at a particular place. Accordi-

ingly, an arrest warrant does not give the police

power to enter an individual’s home unless they

have reasonable cause to believe it is occupied.

“The question before the Court, then, in the first

instance is whether the detective had reasonable

cause to believe the defendant is within [citations

ment. If he did have reasonable cause to believe

the defendant was inside, the Court must then de-

termine whether he had been refused entry within

the meaning of Section 3109, so that entry by break-

ing was justified.

“It is not necessary to reach the latter question,

for the Court concludes that, on the basis of the

known facts, the detective did not have reasonable

cause to believe that the defendant was in the

house or, indeed, that the house was occupied by

anyone. When the detective knocked on the door,

the only positive indication that someone might

have been inside was the noise from the radio. He

did not hear sounds of any other activity. Likewise

the owner received no response when he knocked on

the door a few minutes earlier. Indeed, neither man

observed any activity or persons inside, although

they were present for several minutes beofre they

went in through the rear door. Furthermore, al-

though a telephone call to defendant’s number in-

dicated a ‘busy’ signal, that information had little

probative value at the time entry was effected. In

these circumstances, the Court is unable to find that

the detective had reasonable cause to believe the

defendant was at home.” Jd at 175-176.

The Agents Were Not Refused Entry by the Appellant.

As Watson suggests, even if this Honorable Court were

to find that the federal agents had reasonable cause to

believe Larry Becker was in the house, they must be re-

fused entry before they may break in. This requirement

is specifically included in the language of § 3109.

Watson further points out that no response does not

by itself constitute a refusal. And while refusal is not

limited to affirmative denials, United States v Harris, 391

F2d 384 (6th Cir, 1968), and may therefore be implied

from certain circumstances, the officers must be able to

point to some concrete evidence of refusal. A review of

the appliceble reported cases in this circuit reveals this.

United States v Alexander, 346 F2d 561 (6th Cir, 1965

[man answers the door, pulls shade, sound of retreating

footsteps]; United States v Chambers, 382 F2d 910 (6th

Cir, 1967) [person coming to door, pulling shade and

drawing back]; United States v Harris, 391 F2d 384 (6th

Cir, 1968) [officers knock, hear activity, then silence].

Other circuits have also nade the same requirement.

United States v Augello, 368 F2d 692 (1966) [officers

knock and see defendant’s sister run away from the door

ealling his name]; United States v Pratter, 465 F2d 227

(7th Cir, 1972) [officers did not await refusal, risk of drug

destruction did not justify noncompliance with require-

ment of refusal]; McClure v United States, 332 F2d 19

(9th Cir, 1964) [officers observed mother of defendant

begin to run and upon their knock heard footsteps going

away]; Stamps v United States, 436 F2d 1059 (9th Cir,

1971) [officers heard commotion, then footsteps running

away].

The Ninth Cireuit in Meyer v United States, 386 F2d

715, 718 (1967), a case of non-announcement rather than

refusal, indicated that:

‘‘Under the Fourth Amendment, a specific show-

ing must always be made to justify any kind of

police action tending to disturb the security of the

people in their homes. Unannounced forcible entry

is in itself a serious disturbance of that security

and cannot be justified on a blanket basis. Other-

wise the constitutional test of reasonableness would

turn only on practical expediency, and the amend-

ment’s primary safeguard—the requirement of par-

ticularity—would be lost. Just as the police must

have sufficiency particular reason to enter at all,

so must they have some particular reason to enter

in the manner chosen.”

Law of the District of Columbia Cireuit obviously is

erucial on the whole area of forcible, warrantless entry

to arrest, and on the point of refusal, they too require

some specific showing of refusal. United States v Wylie,

462 F2d 1178 (1972) [police in hot pursuit followed trail

marked by eyewitness, then knocked and shouted for five

minutes;] United States v Harris, 435 F2d 74 (1970) [ offi-

cers heard furniture moving, spotted evidence, were

greeted in a furtive manner]; Kleinburt v United States,

439 F 2d 511 (1970) [officers heard occupants barricading

door).

In Watson, supra, at 176, the District of Columbia Cir-

cuit said:

“Since this is so, it follows that the detective

was not ‘refused admittance’ within the meaning

of Section 3109. Moreover, even if there had been

reasonable cause to believe that the defendant was

inside, it is questionable that the circumstances

here were sufficient to amount to a refusal of en-

try.”

Appellant maintains that other than the initial phone

eall nearly three hours prior, the Record reflects no rea-

son for the agents to believe that defendant was, in fact,

in his apartment and no basis to conclude that they had

been refused admittance. Therefore, their entry, the sub-

sequent arrest and search were all illegal.

FEDERAL AGENTS DID NOT HAVE PROBABLE CAUSE TO

BELIEVE THAT APPELLANT HAD COMMITTED A CRIME.

Appellant contends that the agents did not have proba-

ble cause to arrest him for any crime. Probable cause for

arrest has been defined as ‘‘evidence which would war-

rant a man of reasonable caution in the belief that a fel-

ony had been committed’. Wong Sun v United States, 371

US 471, 479 (1963). The standard is objective, not subjec-

tive. Worthington v United States, 166 F2d 557, 564 (6th

Cir, 1948). Such terms as “reasonable grounds” are the

substantial equivalent to the term “probable cause.” Dra-

per v United States, 358 US 307 (1959).

It is clear that neither mere suspicion (Wong Sun, su

pra, at 479) nor even “strong reason to suspect” (Henry

y United States, 361 US 98 (1959)) are adequate.

Further, the standards for warrantless police action

are at least as high as for action with a warrant ( Whitley

v Warden of Wyoming State Penitentiary, 401 US 560

(1971)), if not higher (United States v Ventresca 380 US

102 (1965) than for arrest without a warrant.

The diversity of decisions on probable cause seems to

to defy easy categorization and really requires a precise

factual analysis of each case. This is especially true of

the facts of this case, because they are somewhat unique.

| eel ol ee oe

The agents testified that their probable cause determi-

nation arose entirely out of the fact that Joseph Jacobini

contacted a certain telephone number, talked to a person

named ‘‘Larry” to arrange for the purchase of more nar-

coties and that this number was traced to appellant Larry

Becker.

First, the method by which the number was obtained

was inherently unreliable. Agent Stepp allegedly memor-

ized the number under the tense conditions of acting as

an undercover agent and then transferred it orally to

another agent only after the intervening events of the

arrest and detention of Jacobini and McManus. The in-

herent unreliability of this is well illustrated by the fact

that at the suppression hearing, Agent Stepp could not

even remember whether Jacobini had originally dialed

manually for the number or gone through the operator.

Second, the agents themselves neither saw nor heard

nor were they informed by anyone that Larry Becker had

done anything. They had never heard his name before

that night (T. #1, 49, 61). They did not know that anyone

was on the other end of the line with Jacobini; that if

there was, who it was; or if it was Larry Becker that he

in fact said anything to Joseph Jacobini that was crimin-

ally punishable. The only crime committed to the best of

Agent Stepp’s knowledge was by Joseph J acobini.

Third, the agents had absolutely no information other

than the phone call to corroborate their suspicions in

regard to Larry Becker. Jacobini, even after he was ar-

rested, did not implicate Larry Becker in any way (T.#1,

55, 56). The officers made no personal observations of

him. They, in ‘fact, did not even know if he was at home

(T.21, 65) or what he looked like (T.#1, 17, 66, 67).

Of the cases that appellant could uncover involving

roughly the same fact situation, at least initially, i.e., a

phone number and a name, the officers involved ultimately

obtained more information before arrest. See, e.g., United

States v Figueroa, 204 F Supp 641 (DC NY, 1962), aff’d

323 F2d 729 (2nd Cir) cert den 376 US 950.

Of special interest is United States v Pierce, 124 F Supp

264 (ND Ohio, 1954) ; aff'd 224 F2d 281 on opinion below.

There officers arrested informer and found on his person

a name and telephone number. Informer told the officers

that he had purchased heroin from this person and then

allowed agents to listen in on a phone conversation while

he arranged a buy. Officers arrested Pierce only after he

showed up as planned, fit perfectly the description by the

informant and was pointed out by the informant.

Of special interest is United States v Pierce, 124 F

Supp (1948). In that case an officer was informed by X

that he was going to buy counterfeit ration coupons from

Y. The officer followed Y and observed him enter the de-

fendant’s car. The officer went to the vehicle and found

X on the back seat holding two counterfeit ration coupons.

The defendant was seated by Y on the front seat. X told

the officer he had received the coupons from Y. All three

were taken into custody. The officer had no warrant for

arrest. At the police station, the defendant was ordered

to place the contents of his pockets on a table. This re-

vealed two gasoline and several fuel oil ration coupons.

Two hours later the defendant was booked and thoroughly

searched, at which time 100 gasoline coupons were found.

All turned out to be counterfeit. The defendant was con-

victed or knowingly possessing counterfeit gasoline cou

pons, a misdemeanor. He contended on appeal that there

was no probable cause for the arrest. The government con-

“pelle chara Nt Tin Peete Gate ee Eee ee

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tended that there were grounds for arrest for the felony

of conspiracy. The Court noted that the only crime com-

mitted in the officer’s presence was by Y, the informant,

who was observed in possession of the coupons. As to Y,

the officer had previous information that would appear

to be corroborated by what he had observed. But there

was no information about the defendant, nor could his

presence in itself give rise to probable cause to arrest for

the illegal possession of the coupons. The question then

became whether there was probable cause to arrest the

defendant on a charge of conspiracy, to which, again, the

Court responded in the negative saying that his mere

presence was not necessarily criminal nor certainly did it

indicate the requisite intent or knowledge.

Appellant maintains that the government here cannot

even point to his presence, only to the suspicion that he

was on the other end of a phone conversation.

A review of the cases on probable cause to arrest for

narcotics violations leads appellant to believe that valida-

tion of the instant arrest as based on sufficient probable

cause would bring the probable cause standard to a new

low.

Incredibly, the Sixth Cireuit Court of Appeals did not

consider whether sufficient grounds existed to support the

District Court’s finding that probable cause existed for

the warrantless arrest of Becker; the Court merely ob-

served that the records, “contain evidence which sup-

ports the finding of the District Judge that there was no

prior opportunity under the circumstances of this case

for the officers to obtain an arrest warrant... 16

Apparently, the Court felt that, in cases where it would

be difficult to obtain a warrant, a finding of probable

cause may be inferred from the results. This is totally

inadequate. As Judge McCree observed, “. . . it was not

established that there was anyone at the other end of

Jacobini’s telephone conversation . . . ” ‘‘These issues are

substantial and should be considered if the conviction is

to be affirmed.” Supra, at 8, 15. (A-48, 57)

APPELLANT’S ARREST WAS MERELY A PRETEXT FOR A

SEARCH FOR TANGIBLE EVIDENCE.

It is clear that an arrest may not be used as a pretext

for a search and that if it is, this alone is sufficient to

suppress the evidence obtained. Worthington v United

States, 166 F2d 557 (6th Cir, 1948); United States v Har-

ris, 321 F2d 739 (6 Cir, 1963); United States v James,

378 F2d 88 (6th Cir, 1967).

While above-cited cases obviously involve some differ-

ing facts and circumstances from the case at bar, this

does not vitiate the general principle nor does it negate

the importance of the Fourth Amendment rights involved.

The Court must look at this particular factor situation

and appellant believes it is clear that:

‘‘Taking into account all-of the admitted facts

and circumstances of the case, including the large

aggregation of agents and police officers, it seems

to us that the agents and officers were interested

in something more than merely making an arrest.

It is clear that their primary purpose was to make

a general exploratory search of the apartment,

with the hope of finding narcotics.” James, supra

at 90.

Appellant asks the Court to consider that the agents’

probable cause, taken in its best light, was weak; that

they made no attempt whatsoever to obtain a warrant al-

Patetivianivwns Sb ach Raikes SI es téciet Wolke bid

though they had the resources to do so; that there were

between eight and ten agents involved; that they made a

farcible entry of a private residence late at night; that

they fanned out through all parts of the home; that a

search incident to arrest was made even though Larry

Becker was clearly no longer a threat to the agents; that

a general search was made involving the seizure of numer-

ous articles in no way related to the alleged charge; that

the agents spent one-half hour in Larry Becker’s apart-

ment upon his arrest.

Some elaboration of the points not dealt with elsewhere

is necessary. Though most of the officers indicated by

their testimony they went to Larry Becker’s residence to

arrest him, the Court is not bound to accept this. As this

Court said in Harris, supra, at 741.

‘All of the agents of the Narcotics Bureau who

testified said that they went out to the defendant's

apartment for the purpose of arresting him for

violating the narcotics laws. The real purpose of

the agents must be determined from all of the facts

and circumstances surrounding the arrest of the

defendant and the search for his apartment. The

court is not bound to accept the purpose as stated

by the agents as controlling.”

It should also be noted that at least one agent, signifi-

cantly enough, the first one to take the stand, thought the

party was going to Larry Becker’s residence for a rea-

son other than arrest: “There are supposed to be 30,000

hits theer and we’re going out there to find out.

In addition to the LSD pills found and seized from the

bureau, the agents fanned out through the house, and in

the course of one-half hour indiscriminately seized a num-

ber of items from appellant’s second floor bedroom and

his roommate’s bedroom. These seizures included items

that could in no way be related to the alleged crime (com-

posite nude picture). Appellant maintains that this illus-

trates the real intent of the agents and directs the Court

to the Honorable Wade H. McCree’s dissent in Giacalone

v Lucas, 445 F2d 1238, 1255 (6th Cir, 1971):

“The majority opinion adopts the conclusion of

the trial judge who found that the weapons * * *

were seized quite early in the law enforcement en-

terprise as the direct product of a lawful good

faith arrest and limited search, incident thereto.

This determination is supportable only by segment-

ing this law enforcement enterprise into discrete

episodes—an approach which is without support in

law and distorts reality.”

The fact that the officers felt that time was of the es-

sence, and that they were no doubt aware that “success-

ful prosecution was virtually impossible without physi-

cal evidence” explains but does not excuse their actions.

Harris, supra, at 742.

In noting that the District Court’s ‘‘finding that the

primary purpose of entry into Becker’s home at the time

of his arrest was not a ruse to permit an exploratory

search of the premises is clearly erroneous,’ Judge Mc-

Cree eloquently observed:

“Tt is inescapable that the primary purpose of

the agents from the beginning was not to effect

an arrest but to conduct a general exploratory

search that had not been authorized by a warrant.”

Supra, at 13. (A-54)

The totality of the facts and circumstances in the in-

stant case makes it clear that the agents were attempting

to achieve that which they could not have done legally by

means of an illegal pretext arrest. Appellant urges that

this Honorable Court not condone activity intended to

sidestep inalienable Constitutional rights.

CONCLUSION AND RELIEF SOUGHT

Wherefore, by reason of the foregoing, Petitioner prays

that this Court issue a Writ of Certiorari to the Sixth

Cireuit Court of Appeals.

Respectfully submitted,

NEIL H. FINK

Attorney for Appeilant

3100 Guardian Building

Detroit, Michigan 48226

APPENDIX

A. OPINION OF THE SIXTH CIRCUIT COURT

OF APPEALS

No. 73-1208

IN THE

United States Court of Appeals

FOR THE SIXTH CIRCUIT

United States of America,

iad poset’ A ppell “ Appeal from the United

: States District Court for

the Eastern District of

Lawrence F. Becker, ‘ies

Defendant-Appellant. a

—~—

Decided and Filed October 5, 1973.

——

Before: Weick, McCree and Lively, Circuit Judges .

Lively, Circuit Judge. This appeal is from a conviction

for violation of 21 U,S.C. § 841(a)(1), possession of con-

trolled substances with intent to distribute or dispense.

Appellant waived trial by jury and the case was tried

before the Court with the same judge presiding who con-

ducted the hearing on a motion to suppress evidence. On

appeal it is claimed that evidence consisting of 1,000

L.S.D. tablets was illegally seized and should have been

suppressed by the district judge.

BrP by Oat

poe eek re ett Mas

A recital of the facts is necessary. An undercover agent

purchased a quantity of mescaline at a motel in Detroit at

approximately 10:00 p.m. on March 3, 1972. He told the

seller that he would be interested in purchasing more

drugs, and memorized the telephone number given to the

motel operator as the seller contacted his “man.” The sel-

ler was heard to say to someone he called “Larry” that he

needed 30,000 more “hits” of mescaline and would be over

in 30 minutes to pick it up. The seller described “Larry”

as the number two man in Detroit for mescaline.

Shortly thereafter narcotics agents arrested everyone in

the motel room where the sale had taken place. The under-

cover agent passed the telephone number to the arresting

officers who verified it with the motel operator. By the

time the location and name of the subscriber to the tele-

phone number had been ascertained it was about 11:30

p-m. Based on information received from the telephone

company a group of approximately eight agents went to

appellant’s residence in Oak Park, Michigan, arriving

shortly after midnight. After knocking on the door and

identifying themselves, the agents forcibly entered Beck-

er’s apartment.

Appellant was sitting on a couch in the living-dining

room area of his apartment watching television. He was

directed to stand next to 2 wall with his hands up against

it. This location was approximately 12 feet from the cor-

ner of the couch where Becker was first seen, and was the

nearest wall space free of furniture or openings. The ar-

resting agent testified that he had no handcuffs and finally

secured Becker with a belt. He stated that appellant kept

turning around and “wasn't being real cooperative.” Some

four or five minutes elapsed before the prisoner was se-

cured. Another agent who was in the same room said that

Becker refused to follow orders—that he continued to turn

around, kept his hands down instead of up and was con-

stantly moving in a direction other than where he was

told to remain. He described appellant’s conduct as “re-

sisting” and said it was almost five minutes before the

resistence ended.

There was a desk-type table three to five feet from where

appellant was standing and the L.S.D. tablets were found

in one of its drawers which had been closed. The agent

who discovered the drugs stated, “There was a time when

I secured the chest to make sure there were no weapons.”

He said that when Becker had been subdued the other

agent searched the prisoner while he checked the surround-

ing area for weapons. This witness testified that he had

put his gun away before he began his search for weapons

and that he was “no longer threatened by the situation.”’

However, since Becker had not been tied with the belt at

that time, he considered that there was “still a potential

danger.” It was admitted that Becker never tried to use

physical force on any agent. In response to a question by

Judge Kennety the agent who subdued Becker stated that

he was searching him when the pills were found and that

he did not believe he had put the belt on appellant’s arms

at that time. The agents stayed in the house for approxi-

mately 30 minutes and a general search of the premises

was conducted.

The agents who arrested appellant and seized the tablets

and other items in his home had neither a search warrant

nor a warrant for his arrest. It was testified that the pur-

pose in entering the premises of Becker was to arrest him

and there was no advance discussion about a search. Be-

fore entering the house, each agent was assigned an area

of the premises with responsibility for making sure that

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no other persons were present and to look for weapons

within reach. Appellant testified that from the time the

agents entered there was a great deal of noise from all

parts of the apartment which indicated that a search was

being conducted. He said he kept turning from the wall to

try to see what was going on. The agent in charge stated

that it would have taken too much time to obtain an arrest

warrant at midnight in view of the fact that the seller had

informed Becker over the telephone that he would pick

up the order of drugs in about 30 minutes. From the

telephone conversation the agents believed a crime was

being committed by “Larry,” the person who agreed to

furnish drugs, and that probable cause existed for an ar-

rest.

The foregoing evidence was developed on a motion to

suppress all evidence seized in Becker’s apartment. The

District Court made the following findings: (1) The officers

announced their presence and purpose a reasonable time

before entering the premises. (2) The search of the chest

three to five feet from the appellant was permitted as a

search of the immediate area incident to arrest. Such a

search could include closed drawers into which Becker

could reach for either a weapon or evidence which he

might be able to destroy. (3) Items seized in other parts

of the house resulted from a general search which was not

permissible. All evidence taken from other areas of the

apartment was suppressed. (4) There was no prior op-

portunity to secure an arrest warrant, but probable cause

did exist for the arrest of Becker. (5) The purpose of

the officers going to Becker’s residence was to arrest him,

and his arrest was not a ruse to search the premises.

Appellant maintains that his Fourth Amendment rights

were violated by both the forcible entry and arrest with-

out a warrant and the warrantless search of his home and

seizure of his property. The record contains evidence

which supports the finding of the district judge that there

was no prior opportunity under the circumstances of this

ease for the officers to obtain an arrest warrant in view of

the indication from the motel that the drugs would be

picked up in about 30 minutes and the fact that it took

longer than that just to determine the location and identity

of the subscriber to the telephone with which the seller

was connected. The finding that identification and purpose

were announced a reasonable time before entry was made

into appellant’s premises is likewise supported by the evi-

dence.

While the finding that the officers had as their purpose

the arrest of Becker, and that the arrest was not a mere

ruse to conduct a search is not clearly erroneous, this mat-

ter deserves comment. The Constitution contemplates that

searches will be made upon the basis of a prior determina-

tion of necessity by a disinterested magistrate. McDonald

v. United States, 335 U.S. 451, 455 (1958). The warrantless

search remains the exception which must be justified,

Where the justification relied upon is that the search is a

necessary incident to a lawful arrest the restricted scope

of this exception must be observed. This is especially true

where the search is conducted in a person’s home at night.

Such warrants issued pursuant to Rule 41. Fed. R. Crim.

P. are subject to the following limitation :

The warrant shall direct that it be served in the

daytime, but if the affidavits are positive that the

property is on the person or in the place to be searched,

the warrant may direct that it be served at any time.

Fed. R. Crim. P. Rule 41(c).

Since a nighttime search with a warrant requires more

positive information than one conducted in the daytime,

the Courts should be alert to prevent evasion of this re-

quirement by resort to warrantless nighttime searches

incident to arrest where the real purpose is a search and

the arrest is only a pretext.

In Chimel v. California, 395 U.S. 752 (1969), the Su-

preme Court analyzed the extent of the “search incident

to arrest” principle as follows:

When an arrest is made, it is reasonable for the

arresting officer to search the person arrested in order

to remove any weapons that the latter might seek to

use in order to resist arrest or effect his escape.

Otherwise, the officer’s safety might well be endan-

gered, and the arrest itself frustrated. In addition,

it is entirely reasonable for the arresting officer to

search for and seize any evidence on the arrestee’s

person in order to prevent its concealment or destruc-

tion. And the area into which an arrestee might reach

in order to grab a weapon or evidentiary items must,

of course, be governed by a like rule. A gun on &

table or in a drawer in front of one who is arrested

can be as dangeous to the arresting officer as one

concealed in the clothing of the person arrested. There

is ample justification, therefore, for the search of the

arrestee’s person and the area “within his immediate

control’—construing that phrase to mean the area

from within which he might gain possession of a

weapon or destructible evidence.

There is no comparable justification, however, for

routinely searching any room other than that in which

an arrest occurs—or, for that matter, for searching

through all the desk drawers or other closed or con-

cealed areas in that room itself. Such searches, in

the absence of well-recognized exceptions, may be

made only under the authority of a search warrant.

The “adherence to judicial processes” mandated by

the Fourth Amendment requires no less. Id., at 762-

763.

We must test the search of a closed drawer in the desk or

table which was located three to five feet from appellant

by these criteria. The question to be answered is whether,

under the cireumstances described by the witnesses, the

closed drawer was in the area “from within which he

might gain possession of a weapon or destructible evi-

dence.” Id., at 763.

In United States vy. Shye, 473 F.2d 1061 (6th Cir. 1973),

we held that the District Court properly suppressed evi-

dence consisting of a sack of money found between a water

heater and an adjoining wall about four feet from where

a suspect was positioned against a wall for search. There

was a hallway between the suspect and the water heater

whieh was in a closet-like depression in the wall. Further-

more, a policeman stood between this closet and the near-

est defendant. All suspects were lined up against a wall

and “the officers had the situation completely under con-

trol.” Jd. at 1063. Under these circumstances the District

Court properly held that the sack of money was not within

the immediate control of the suspects.

In the present case, the situation was not completely

under control, since the appellant was still resisting and

trying to move in directions other than those prescribed

by the officers. He had not been handcuffed or bound when

the pills were discovered and the officer who opened the

drawer stated that his purpose was to secure the desk to

ee CEE

Pian

make sure there were no weapons. Insofar as the record

discloses no officer was positioned between appellant and

the desk until Officer Mahon moved to the desk to look

for weapons. Each case which applies the Chimel rule

must be decided on its own facts. The facts distinguish

this case from United States v Shye, supra, and support

the finding of the District Court that the evidence in ques-

tion was the product of a search in the immediate area

under the control of appellant at the time of his arrest.

The judgment of the District Court is affirmed.

B. DISSENTING OPINION OF THE HONORABLE

WADE McCREE, CIRCUIT JUDGE

McCree, Circuit Judge (dissenting). I respectfuily dis-

sent for two reasons, either of which requires the suppres-

sion of the evidence seized in Becker’s apartment.

In the first instance, the district court’s finding that the -

primary purpose of the entry into Becker's home at the

time of his arrest was not a ruse to permit an explora-

tory search of the premises is clearly erroneous. The ma-

jority opinion characterizes this determination as a finding

not clearly erroneous but acknowledgs that it deserves

comment. The district court justified the holding on the

ground that “(i]t was imperative that the arrest be made

as quickly as possible if the identity of the party at the

other end of JACOBONT’S telephone conversation was to

ever be established with sufficient certainty.” Apart from

the fact that it was not established that there was anyone

at the other end of Jacoboni’s telephone conversation, the

district court’s reason indicates the heuristic nature of the

enterprise.

Although the finding is fully supported by the testimony

of agent Finnegan, the last witness at the suppression

hearing who testified on June 28, 1972, it is contradicted

by the testimony of the other agents who testified earlier

on May 22 and whose testimony is not expressly dis-

credited by the district court.’ Also, the organization and

deployment of the raiding party betrays the true nature

and purpose of the expedition.

Special agent Herbert Ray, who was designated as cus-

todian of any seized evidence, upon being asked whether

there was any discussion “as to how the search was to be

conducted,” replied, “When I got there my senior partner

told me we’re going out to the address that Stepp found

out about in the conversation—there are supposed to be

30,000 hits there and we're going there to find out. That’s

what I was told when I got in.”

The line of questioning continued, “You were going out

there to find out?” He replied, “Yes.” The district court

did not comment on this admission or explain why it was

ignored or discredited.

But more fundamental to our inquiry is the manner in

which the raid was organized. A party of 8 to 10 agents

was dispatched to arrest the person in whose name the

telephone at the number Jacoboni called was registered.

The address was an apartment in one of Detroit's north-

ern suburbs. After a meeting in the Federal Building in

downtown Detroit where various duties were assigned by

Special Agent McKinnon, the agents, in four vehicles,

rendezvoused at a gas station near Becker’s home where

1It appears that the other agents were excluded from the court-

room until their testimony was given but agent Finnegan had an op-

portunity to know what had been stated a month before he was required

to give his version of events.

és er

Riemer!) nd

dedi ieee inthe abaR EN 6 BE a BY

an additional 10 or 15 minutes were devoted to last minute

preparations. Despite agent Finnegan’s denial that there

was to be a search (in contradiction of agent Ray’s testi-

mony a month earlier), an advance party was sent to scout

the area and agents were stationed at the front and rear

doors of the house. Agent Ray was assigned to cover the

back door and, instead of being instructed merely to se-

cure it so that no one could escape, he was told **. . . to

enter when he got the word from the people that had gone

in the front door.” Ray testified that after entering the

apartment, he remained about 25 to 30 minutes and

“[]]ooked around, looked in closets, looked behind doors,

looked between those blankets around the bed and talked

with other agents. I talked with Mr. Becker a few minutes.”

He admitted that he removed books from shelves and saw

a table overturned. Indicative of the honesty of his admis-

sion that the purpose of the sorties was to effect a search

was his volunteered statement when he acknowledged that

he went upstairs, ‘‘I always manager to get around the

rooms when I go in on an arrest.”

More significant is agent Rays’ statement that he had

been on the premises 5 to 8 minutes before the L.S.D. was

seized (agent Mahon estimated the interval as between 95

and 15 minutes). If the sole purpose of the entry was to

arrest Becker, the agents could have removed him from

the house and they would have been miles away on the

journey back to the Federal Building before this seizure.

Becker could just as easily have been escorted out the door

when agent Finnegan “grabbed him by the arm and dt

rected him over to the wall to put his hands up against

the wall to be patted down and searched for any weapons.”

This maneuver positioned Becker spread-eagled against

the kitchen wall and Finnegan searched him and found no

weapons. The officers were so sufficiently satisfied that

Becker was secured that they put away their firearms and

fanned out throughout the house in what can only be

characterized as a general search. Small wonder that

Becker kept turning around to inquire whether the officers

had a warrant. To seize on his constitutional query as evt-

dence that he had not been secured in order to justify

the search of the closed drawer of the desk 3 to 5 feet away

placed Becker in an impossible dilemma. Unless he swb-

mitted to the unconstitutional search of his house, he

invited the finding that he was endangering the officers

and thereby justified the search the validity of which he

sought to ascertain.

Chief Judge Cecil spoke for this court about arrests used

as pretexts for searches in United States v. Harris, 321

F.2d 739 (1963) :

An arrest may not be used as a pretext or subter-

fuge for making a search of premises without a search

warrant where ordinarily one would be required under

the Fourth Amendment. If, in fact, the primary pur-

pose of forcibly entering a person’s home is to search

for evidence with which to convict him of crime, the

evidence so obtained is not admissible in court. United

States v. Lefkewitz, 285 U.S. 452, 467, 52 S.Ct. 420,

76 L.Ed. 877; Harris v. United States, 331 U.S. 149,

153, 67 S.Ct. 1098, 91 L.Ed. 1399; Abel v. United

States, 362 U.S. 217, 225-226, 80 S.Ct. 683, 4 L.Ed.2d

668; Jones v. United States, 357 U.S. 493, 500, 78 S.Ct.

1253, 2 L.Ed.2d 1514; Worthington v. United States,

166 F.2d 557, 566, C.A. 6; Taglavore v. United States,

291 F.2d 262, 265, C.A.9. See also Go-Bart Importing

Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75

L.Ed. 374; Henderson v. United States 12 F.2d 528,

C.A. 4; Ker v. California, 374 U.S. 23, 83 8.Ct. 1623,

1635, 10 L.Ed.2d 726 (footnote omitted).

————————= ee —( St!

EEE

AEN a Rnd Et Be A IER et Ve SeNES

In Harris, a case with strikingly similar aspects, we

made it clear that the total circumstances must be con-

sidered in determining the real purpose of the officers.

All of the agents of the Narcotics Bureau who tes-

tified said that they went out to the defendant’s apart-

ment for the purpose of arresting him for violating

the narcotics laws. The real purpose of the agents

must be determined from all of the facts aud circum-

stances surrounding the arrest of the defendant and

the search of the apartment. The court is not bound to

accept the purpose as stated by the agents as con-

trolling.

The manner of placing the agents at the entrances

and the way Mr. DeBiasi signalled the men at the bed-

room door to enter as he gained entrance and knew

the defendant was just inside the door is inconsistent

with a primary purpose of arrest. If arrest had been

the primary purpose of the agents in going to the

apartment, there would have been no necessity for the

three agents to fore y enter the bedroom door. If

they had been placed there to prevent the defendant’s

escape through that door, certainly they could have

caught him on the way out.

Id at 741-742.

Of course, Harris was a case in which the trial judge

had made a finding that the arrest of the defendant was

but a pretext for a search, and here the trial judge found

to the contrary. Nevertheless, that decision is instructive

of the elements of an arrest used as a pretext for a search

and it is apparent that the district court here did not con-

sider them.

We have assumed in the past that the clearly erroneous

standard of review applies to findings in a criminal case by

a district judge considering motions to suppress evidence,

United States v. Rose, 415 F.2d 742 (6th Cir. 1969), (6th

Cir. 1969), cert denied, 396 U.S. 971 (1970), and in United

States v. Breen, 419 F.2d 806 (6th Cir. 1969), we expressly

stated that Fed. R. Civ. P. 52(a) sets forth the standard of

review. See also, 2 C. Wright, Federal Practice and Pro-

cedure: Criminal § 375. We need not decide here the ap-

plicability of this standard because it is clear that the dis-

trict judge merely accepted the testimony of one of the

government agents, disregarded without explanation the

conflicting testimony of the others, and did not consider at

all the undisputed evidence of the physical disposition and

assignment of the several agents as Harris, supra, re-

quires. Accordingly, we are not bound to accept the find-

ings of the district judge, as Chief Justice Hastings, dis-

senting in United States v. Ziemer, 291 F.2d 100, 103 (7th

Cir.), cert. denied, 368 U.S. S77 (1961), explained:

The issue is whether the Government’s evidence,

taken at its full value, is sufticient to support the con-

stitutional and legal conclusion that defendant con-

sented to a search. Mr. Justice Frankfurter, dissent-

ing in Davis v. United States, 1946, 528 U.S. 582, 599,

66 S.Ct. 1256, 1264, 90 L.Ed. 1453, noted:

“The district court’s finding that Davis voluntar-

ily surrendered the documents is not one of those

findings of facts which appropriately calls for our

acceptance. When such a finding involves conflict

ing evidence or the credibility of a witness, the ad-

vantage of having seen or heard a witness may be

decisive. But here the issue is not as to what took

place but as to the significance of what took place.

eon oe

thle ete ABA BUELL ALT RERAIO a >

And when a district court’s finding of a so-called

fact is as interwoven as it is here with constitutional

consequences, we cannot accept a finding whereby

the constitutional issues predetermined. We are

not bound by findings that operate as eryptie con-

stitutional determinations . . ..”

The district court suppressed the items seized on the

second floor although the search had commenced there be-

fore the L.S.D. tablets were found in the living room desk

drawer . This conclusion, with which I agree, also required

suppression of the tablets taken from the living room in

the absence of a finding disassociating the purpose of the

agents in the living room who reduced Becker to custody

from that of the agents who went upstairs and unlawfully

searched the closets and the bed clothes. The coordinated

nature of the enterprise precludes such a finding and none

was made. It is inescapable that the primary purpose of

the agents from the beginning was not to effect an arrest

but to conduct a general exploratory search that had not

been authorizd by a warrant. See Giacolone v. Lucas, 445

F.2d 1238, 1255-58, (6th Cir. 1971) (McCree, J., dissent-

ing).

But even if the primary purpose of the officers was not

to conduct a search but to effect the arrest, the search

was unconstitutionally impermissible. In Chimel v. Cali-

fornia, 395 U.S. 752 (1969), the Court emphasized that

warrantless searches, whether or not incident to arrest,

were the exception, not the rule, and that only the exigen-

cies of preventing harm to the arresting officers, the escape

of suspects, or the destruction of evidence justified search

of the arrestee’s person and the area within his immediate

control. In United States v. Shye, 473 F.2d 1061, 1066 (6th

Cir. 1973), we observed that only the existence of cireum-

Se RE EE SRE

Ste ME a

stances at which this limited exception was aimed deter-

mined the propriety of invoking it.

In this appeal, Becker had been searched and disarmed,

and the officers felt sufficiently secure to put away their

weapons. There were 8 to 10 armed agents in the house.

Becker’s only activity after their entry was to turn away

from the wall to inquire about the existence of a search

warrant.

Agent Ray testified that when he first saw Becker (about

5 minutes before the L.S.D. was found), “He was se-

cured. There were agents with him and I thought safe

at that point.” He testified that none of the other agents

had his sidearm drawn when he went in and that he put

his away. He concluded his direct testimony by reiterating

his statement that Becker had been secured when he en-

tered.

Agent Mahon, the other agent to testify at the May 22

hearing of the motion to suppress, found the L.S.D. in the

desk drawer. He testified that Becker was “neutralized”

within a half minute after he had been moved to the wall

where he was searched. He testified, “I would think after

a while once ft was finally determined there was no threat

of physical harm, the weapons were put away.” Upon

being asked by the assistant United States Attorney what

he meant by “subdued”, Mahon replied, “* What I mean is he

was no longer in a violent nature or position to pull a gun

or anything.” Mahon’s testimony makes it clear that he

no longer apprehended any danger when he searched the

chest:

Q. When was it that you located something in a

chest, a chest drawer in time relation to which he was

finally subdued and the belt was on and he was

searched?

SG IO RN IS TN PEF P ee

A. As soon as I was reasonably sure that there

was no need for my immediate attention to make sure

he wasn’t going to be striking out, and I think it was

more or less simultaneous upon his being searched

that I checked the surrounding area for weapons.

The two officers who testified when the hearing resumed

on June 2 added little except to observe that Becker’s arms

had not yet been bound by a belt at the time the search of

the desk took place. The district court’s finding that he

“had not yet been patted down” is contrary to the testi-

mony of all the officers who testified.

Applying Chimel’s rationale to these facts, we must

conclude that the opening of the desk drawer was imper-

missible. As the majority opinion quotes, Chimel makes a

distinction between a gun on the table or in a drawer in

front of one who is arrested and desk drawers and closed

areas in the room in which the arrest is made.

Because I would reverse for either of the reasons stated,

I find it unnecessary to consider whether probable cause

existed for the arrest of a telephone subscriber when an

officer overheard the dialing of his number by a criminal

who stated into the transmitter that he would be over to

pick up some narcotics. I also find it unnecessary to de-

termine whether the forcible entry into a dwelling house

in the night time to effect a warrantless arrest can be made

in the absence of exigent circumstances and a showing

of probable cause that the person to be arrested is at the

entered address. I also find it unnecessary to determine

whether the entry here was made so precipitously after

the announcement of the presence of the officers and their

purpose as to constitute non-compliance with the require-

ment in Sabbath v. United States, 391 U.S. 585 (1967)

SO rr a SE

‘hat there must be a showing of refusal of admittance of

the officer before a door may be forced. I mention these

issues only to indicate that they are substantial and should

be considered if the conviction is to be affirmed.

I recognize that this is a case where a search proved to

be phenomenally productive. The prevention of the dis-

tribution of 1843 tablets of lysergic acid diethylamide

(L.S.D.) is a fortunate occurrence for any community

and the impulse to uphold the search and to congratulate

the officers is difficult to resist. Nevertheless, however,

fortuitously rewarding a search may prove to be, we

eannot abandon our responsibility as guardians of the

Grain and blink at the cireumvention of constitutional limi-

tations by overzealous police officers. I would reverse and

remand with instructions to quash the search and to set

aside the conviction.

C. OPINION AND ORDER DENYING

MOTION TO SUPPRESS

Defendant Larry Becker has moved to suppress certain

evidence seized from his premises located at 13680 Ken-

wood Street in the City of Oak Park, Michigan, on March

4, 1972, which he asserts was seized illegally and which

the Government asserts was legally seized incident to a

legal arrest. Defendant contends that the seizure was ille-

gal on six bases.

The first basis is that the entry was illegal because the

Federal officers failed to announce their presence or pur-

poses prior to making a forced entry into the premises.

Agent Gerald F. Finnigan, one of the officers who forced

entry, testified at the evidentiary hearing on this motion

ee CR nes REE NEE RULE. |

that he announced the agents’ presence prior to entry and,

further, that he had announced their purposes. His testi-

mony was corroborated by that of agent MeKinnon. Mr.

Becker, in his own testimony, admitted that such an-

nouncement was made immediately preceding the entry of

the officers. The Court finds as a matter of fact that the

announcements occurred a reasonable time before entry.

Mr. Becker was watching television and it may be that he

did not hear the first announcement. In view of the hour

he may even have been dozing.

Second, Mr. Becker claims that after placing him under

arrest the agents conducted an ‘‘unbridled, general and

exploratory search of the premises.” Some of the items

seized, such as the tablets from the drawer upstairs in a

bedroom, were discovered as the result of a general search,

and that evidence will be suppressed. However, the ap-

proximately 1000 LSD tablets found in a dresser or chest

on the first floor in the living room-dining room area were

found under other circumstances. The legality of their

seizure is considered infra.

Third, Mr. Becker complains that the 1000 LSD tablets

in the living-dining room area were taken from a closed

drawer. It is true that this drawer was closed and was

opened by agent Alexander T. Mahon; however, at the

time that he opened it defendant Larry Becker was stand-

ing between three and five feet away from the chest and.

although he had been asked to place his hands against the

wall and face the wall, by agent Finnigan, he was con-

tinuing to turn around and to move about and had not yet

been patted down or handcuffed. Thus, although he was

not physically resisting arrest, yet neither had he sub-

mitted to arrest. Under these circumstances Agent Mahon

under the doctrine of Chimel v California, 395 US 752

se =e

ta ae

(1969), was entitled to search the immediate area inclu-

ing closed drawers into which defendant Becker coud

reach for either a weapon or evidence which he might be

able to destroy. The drawer was opened, by defendant

Becker’s own testimony, within five minutes after the

agents had entered the house and, again, by Becker’s own

testimony, before Becker had been physically restrained.

(Because of earlier arrests made just before the agents

left to arrest Becker the agents had no handeuffs with

them and defendant Backer’s hands were secured by a

belt.)

The fourth basis asserted by defendant is that the

search of the premises wa made without the benefit of a

search warrant although the officers did have time to pro-

cure one and fifth that the arrest of the defendant was

without a warrant although there was time to procure an

arrest warrant. The Government concedes that there was

neither a search warrant nor arrest warrant in this case,

but asserts that there was probable cause for the arrest

and further that it was necessary to make a prompt arrest

of defendant Becker. Becker's identity was unknown to

the Federal agents until very shortly before his arrest.

Earlier that same night an agent, acting undercover, had

purchased a controlled substance from Joseph J. Jaco-

bini, a co-defendant. The agent asked Jacobini if he could

secure an additional quantity. Jacobini stated he would

eall his source and find out. Jacobini thereupon called a

telephone number and spoke to someone called “Larry”

after which he told the agents that his source could sup-

ply 30,000 more “hits.” The telephone number was traced

and the subscriber was found to be defendant Larry

Becker at the Kenwood street apartment. The Court finds

that the agents reasonably feared that Becker would be-

come suspicious if Jacobini did not arrive at Becker’s

place within a short period of time. It was about 11:30

p.m. before the location of and subscriber to the telephone

were ascertained. Although the agents had the telephone

numbers and addresses of the United States Magistrate

and District Judges, it would have taken an appreciable

length of time to secure an arrest warrant. There was no

prior opportunity to secure an arrest warant, since, as

found above, the agents were completely unaware of de-

fendant Becker’s existence until Jacobini’s telephone call.

These circumstances distinguish this case from United

States v Harris, 321 F2d 739 (6th Cir. 1963), and United

States v James, 378 F2d 88 (6th Cir. 1967) where agents

could have arrested the defendants at any time but de-

liberately selected a time when they felt a productive

search could be conducted.

Finally, defendant Becker claims that the primary pur-

pose of the Federal agents entering defendant's home at

the time of his arrest was to conduct an exploratory search

of the premises and not to effectuate the arrest. At the

evidentiary hearing the testimony of several of the agents

who participated in the arrest was unanimous that the

purpose of their going to Becker's residence was to arrest

him. In the Court’s opinion his arrest was not a ruse to

search the premises. It was imperative that the arrest be

made as quickly as possible if the identity of the party at

the other end of Jacobini’s telephone conversation was to

ever be established with sufficient certainty. The portion

of the search which was incident to his arrest was there-

fore valid and the Court will not suppress the approxi-

mately 1000 LSD tablets found in the chest in the living

room in plastic baggies; because, however, the agents

could and should have secured a search warrant for the

premises and could have done so even after the arrest of

Becker and before the subsequent further search of the

balance of the premises, the Court will suppress the

items seized on the second floor.

IT IS SO ORDERED.

Cornelia G. Kennedy

United States Judge

Dated: August 11, 1972

Detroit, Michigan

A TRUE COPY

Freredick W. Johnson, Clerk

By Walter Bielski

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.