Appendix — Jackson v. United States

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

No. 72-3574

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH HORTON and WILLIE F. JORDAN,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Texas

(November 28, 1973)

Before AINSWORTH, GODBOLD AND INGRAHAM,

Cireuit Judges.

INGRAHAM, Circuit Judge: Defendants Horton and

Jordan appeal from their convictions under 21 U.S.C.

§ 841(a) (1)' for possessing with intent to distribute

1 Sec. 841(a)(1) provides as follows:

“(a) Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a con-

trolled substance.”

Piissicrnntcis bath siege

REIN = RTE NIE.

App. 2

three pounds and two ounces of heroin, a Schedule I con-

trolled substance. In a trial before the court, Horton and

Jordan were found guilty and each sentenced to ten years

imprisonment with a special parole of ten years. There

are three principal issues on this appeal: (1) whether the

defendants were properly arrested on the basis of proba-

ble cause; (2) whether Horton validly consented to the

search that revealed the heroin; and (3) whether there

was sufficient evidence to convict Jordan. We hold that

probable cause existed for their arrest, that Horton con-

sented to the search, but that there was insufficient evi-

dence to convict Jordan. We therefore affirm Horton’s

conviction, but reverse as to Jordan.

The events that led to the arrest of the defendants com-

menced on September 1, 1972, when a customs agent in

Chicago, Diogenes Galanos, received a telephone call from

an anonymous informer. The caller gave Galanos the fol-

lowing information: (1) that Willis Minnieweather, a

black male approximately thirty years of age and weigh-

ing 180 to 190 pounds, was en route from Chicago to El

Paso, Texas, to procure a substantial quantity of heroin;

(2) that Minnieweather was driving a 1966 Oldsmobile

with a black vinyl top and a brown bottom and bearing

the license number BM 1390; and (3) that Minnieweather

was to be accompanied by another black male approxi-

mately twenty-five to thirty years of age. Galanos at-

tempted to verify the ownership of the vehicle bearing

this license, and an investigation revealed that the license

was issued to a 1967 Buick registered in the name of Wil-

lis Minnieweather. Galanos relayed the information he

had obtained to Agent A. L. Fears in the El Paso Customs

Office. On receiving this information, Agent Fears began

checking at the hotels and motels in the El Paso locality

and located the 1966 Oldsmobile at the Travelodge-Central

Pret

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App. 3

Motel. Fears learned from the manager of the motel that

a man named Jordan was registered in rooms 408, 409

and 412, and that a person named Minnieweather had made

several telephone calls from the hotel to numbers located

in the west side of Chicago, an area where problems with

narcotics are prevalent. The automobile was placed under

intermittent surveillance and was last seen on September

3, 1972, when it left the Travelodge occupied by two males,

a female and a child, all unidentified, and proceeded east

on Interstate Highway 10.

On September 11, 1972, Agent Galanos received a sec-

ond call from a person identifying himself as the one who

had called previously about Minnieweather. The caller

informed Agent Galanos that the persons discussed in

their previous conversation were returning to El Paso to

procure a quantity of heroin to bring back to Chicago.

Galanos immediately related this latter information to

Agent Fears in El] Paso. Fears conducted an investigation

and found that two men, Joseph Horton and Willie Jor-

dan, were registered in the Downtowner Motor Inn in

El Paso and were accompanied by two females.

Fears initiated surveillance of Horton and Jordan’s

activities. At approximately 6 P.M. Horton left the Down-

towner Motel in a taxi and went to the Knights Club, a

bar in the El Paso Rodeway Inn. After waiting there for

a short period of time, he returned to the waiting taxi and

went back to the Downtowner. At 8 P.M. both Horton and

Jordan returned, via taxi, to the Rodeway bar, but re-

mained there for only five to ten minutes. They then went

back to the Downtowner. Later that evening Horton,

traveling alone and by taxi, left the Downtowner carrying

a grey attache case and went to yet another hotel, the Air-

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App. 4

ways Holiday Inn. Although he never entered this hotel,

Horton stood near the entrance with the grey attache case

for approximately thirty minutes. The surveillance team

reported that he appeared to be waiting for someone, but

no one appeared.

From the Airways Horton proceeded, again by taxi, to

the Midtown Holiday Inn. He was still carrying the

attache case when he arrived there. Shortly thereafter,

Jordan arrived at the Midtown in a 1971 black Chrysler.

After loitering around the vehicle for a few minutes, Jor-

dan joined Horton at the entrance of the hotel. Horton

and Jordan walked to a telephone booth adjacent to the

hotel’s parking lot and apparently made two telephone

calls. They then traveled from the Midtown Holiday Inn

back to the Airways Holiday Inn, where Jordan got out

of the automobile and waited at the entrance of the Flame

Room located at the Airways. Horton returned to the

ear, and as the automobile proceeded east on Interstate 10,

surveillance was discontinued.

Horton and Jordan were next observed on the following

day when they arrived at the Rodeway in the 1971 Chrys-

ler accompanied by the two females. Horton entered the

Knights Club located there and met with a Mexican male

for approximately five minutes. The Mexican left the club

through the rear entrance, and Horton followed within

about three minutes. Meanwhile Jordan had entered the

motel through the front entrance. Both Horton and Jor-

dan were next seen returning to the Chrysler through the

front entrance of the Rodeway. The defendants entered

the 1971 Chrysler and went to a gasoline service station

where they apparently had the automobile serviced. Sur-

prisingly, the four occupants of the car got into a taxi and

drove to the El Paso airport. While two agents remained

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App. 5

at the service station where the 1971 Chrysler was lo-

cated, other agents followed the taxi to the El Paso air-

port. When the cab was near the passenger entrance to

the terminal, it was stopped. The agents, with weapons

drawn, ordered the four occupants out of the cab. The

males and the taxi were searched as were the ladies’

purses, and the four suspects were placed in handcuffs.

After Agent Fears identified himself, Horton gave his

name and stated that they were all flying to Chicago.

Fears inquired as to who owned the 1971 black Chrysler

that was left at the service station. Although subsequent

investigation revealed that the automobile actually be-

longed to Jordan, Horton replied that the vehicle was his

and the appropriate keys were found on Horton’s person.

Agent Fears testified that ‘‘{a]t this time I told Mr. Hor-

ton that we were going to search the Chrysler and wanted

to knew whether or not he had any objections to us taking

him back to the vehicle and searching that vehicle.’’ Hor-

ton responded that he had no objection.

The agents and the four suspects returned to the ser-

vice station where the 1971 Chrysler was located. The

suspects again were asked who owned the vehicle, and

Horton replied that it was his. Agent Fears testified that

Horton was asked for the second time ‘‘whether or not he

had any objection to us searching the vehicle and again

he stated he had no objection.’’ As the car was searched,

a locked grey attache case was found in the trunk. Horton

stated that the case was his, and he produced the key.

Inside the case the agents discovered three pounds, two

ounces of heroin.

Immediately after the seizure, the defendants were

given their Miranda? warnings and taken to the customs

* Miranda v. Arizona, 384 U.S. 436 (1966).

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App. 6

office in El Paso. At the customs office Agent Fears asked

Horton if he would like to make a statement regarding

this incident. Agent Fears testified that ‘‘{a]t this time

Horton stated the herein was produced with his money,

that the heroin was his, and that the two females did not

know anything about the heroin.’’ When asked whether

Jordan knew of the heroin, Horton first stated ‘‘ Yes,’’

then ‘*‘No,’’ and then that ‘‘he thought that Mr. Jordan

knew what was going on.’’ Agent Fears also testified that

Horton wanted to assume the blame for the incident.

In a second interview with Horton later that evening,

Agent Fears advised Horton of his constitutional rights

and asked for a detailed account of the events. Horton

reiterated that the heroin was his, that it was purchased

with his money, and that we was taking the heroin back

to Chicago. He had gone to the El Paso International Air-

port to meet a man named Minnieweather. Horton stated

that Minnieweather had been with him in El Paso the

previous day, but had flown back to Chicago that same day.

Jordan also made a statement regarding the incident.

After receiving his Miranda warnings, Jordan said that

he and the two females had driven from Chicago and met

Horton and Minnieweather at the Downtowner Motor Inn.

While staying at the Downtowner, a Mexican male had

called upon Horton and the two had left the presence of

Jordan. The substance of the conversation with the Mexi-

ean was unknown to Jordan. Horton subsequently asked

Jordan to meet him at the hotel on September 11, 1972.

Jordan did not know why he was to meet Horton at this

hotel, but believed that Horton was going to meet someone

there. Jordan also stated that he had been cooperating

with another agency in Chicago, although he did not say

which agency, in an effort to provide information of illicit

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RPS RRS DL ee eR RE TN BOR MOCO er a

App. 7

activities. Jordan stated that he knew Minnieweather and

that Minnieweather had been in El Paso on at least two

prior occasions to purchase narcotics.

I.

We turn first to the issue whether the customs officials

had probable cause for the initial arrest of the defendants

when they arrived at the El Paso airport. The Supreme

Court in Draper v. United States, 358 U.S. 307 (1959),

recognized that, in a warrantless arrest situation, probable

cause may be established based upon an informant’s tip

if there is subsequent corroboration of the details of the

tip to insure reliability. Although the informer in Draper

had previously given accurate and reliable information,

he did not state the means by which he obtained his in-

formation. Instead the informer described in great detail

the surrounding facts and circumstances of the reported

crime. The informant stated that Draper had traveled to

Chicago the previous day and would be returning by train

to Denver. Draper was to arrive in Denver on one of two

particular mornings, and he would be possessing three

ounces of heroin. The informer further described the

clothing that Draper would be wearing when he returned

to Denver. As these facts were specifically corroborated

by on-the-scene observation when Draper arrived in Den-

ver, the Court held that probable cause had been estab-

lished, and Draper’s arrest was therefore valid.

Applying the Draper principle to the facts of this case,

we hold that probable cause for the arrest was established.

Although the informant under these facts was anonymous,

there was sufficient corroboration of the details of the

report to establish both the reliability of the informant

and that the informant had obtained his information in a

reliable way. See Spinelli v. United States, 393 U.S. 410,

416-17 and n.5 (1969); United States v. Legato, 480 F.2d

App. 8

408, 412, n. 10 (Sth Cir., 1973); United States v. Berry, 463

F.2d 1278, 1281 (D.C.Cir., 1972); Government of the Canal

Zone v. Wright, 460 F.2d 1402, 1403 (5th Cir., 1972);

United States v. Squella-Avendano, 447 F.2d 575, 582-83

(5th Cir., 1971); United States vy. Crane, 445 F.2d 509, 519

(Sth Cir., 1971); United States vy. Dzialak, 441 F.2d 212,

216 (2nd Cir., 1971); United States v. Ardle, 435 F.2d 861,

862-3 (9th Cir., 1971); United States v. Viggiano, 433 F.2d

716, 718-19 (2nd Cir., 1970); Calli v. United States, 338

F.2d 974, 977 (1st Cir., 1964). See also United States v.

Evans, 481 F.2d 990, 992 (9th Cir., 1973). As to the first

excursion in El Paso and the informant’s first report, the

information was corroborated in that the described per-

sons were in fact in El Paso, they were driving the black

and brown 1966 Oldsmobile, and the license was issued to

Minnieweather.

In addition to the investigating officer’s observations

that corroborated the specific details of the informer’s

report, the customs agents observed other circumstances

indicating possible criminal conduct. During the surveil-

lance previously described, the agents observed that the

suspects were simply not conducting themselves in the

manner of typical tourists or businessmen.

In arriving at the conclusion that probable cause ex-

isted, we recognize that there were actually two excursions

to E] Paso and that the unidentified informer gave in-

formation on two separate occasions. The detailed in-

formation was more specifically corroborated in the first

report than in the second report. We do not feel, how-

ever, that probable cause must be established indepen-

dently as to each sojourn to El Paso. We consider both

informants reports to be in regard to a single continuing

criminal occurrence that involved two trips to El Paso.

The type of criminal activity, the locations and the parties

App. 9

to the illicit activities are basically the same. Therefore,

based upon the specific detailed information of the in-

formant’s reports, in addition to the agents’ observations

of the appellants’ activities indicating criminal conduct,

we hold that the constitutional requirement of probable

cause is satisfied.

II.

We turn next to the issue whether the trial court im-

properly admitted into evidence the heroin that was dis-

covered as a result of the search of the 1971 Chrysler.

The trial court failed to make findings of fact and con-

clusions of law regarding defendants’ motions to sup-

press, and there is no indication in the record as to the

legal theory upon which it relied in admitting the evidence.

Although such findings are purely discretionary, this court

can depart from them only if found to be clearly errone-

ous. Since no findings were entered, however, we must

independently review the record to determine whether

there is any reasonable view of the evidence that supports

the admissibility of the heroin. United States v. Montos,

421 F.2d 215, 219 n.1 (Sth Cir., 1970), cert. den., 397 U.S.

1022 (1970). Because of the limitation imposed upon the

search incident to arrest, the search cannot be upheld on

this principle. It is not contended that the search was an

investigatory search, a border search or that the search

falls within the automobile exception to the Fourth

Amendment. Therefore, the only possible theory upon

which this search may be upheld is on the basis of a volun-

tary consent search.

% Jordan has standing to challenge the admissibility of the heroin

because he has been charged with its possession. Jones v. United

States, 362 U.S. 257, 264 (1960); United States v. Legato, supra,

at 410, n. 6.

App. 10

It is well settled that a search authorized by consent

results in a relinquishment of Fourth Amendment rights.

Schneckloth v. Bustamonte, ........ U.S. ......-- (1973) (41 U.S.

L.W. 4726, May 29, 1973]; Katz v. United States, 389 U.S.

347, 358, n. 22 (1967); Zap v. United States, 328 U.S. 624,

630 (1946); Davis v. United States, 328 U.S. 582, 593-94

(1946). When consent is the alleged justification for a

search, the burden is on the government to demonstrate

that it was ‘‘freely and voluntarily given’’ and not simply

‘*aequiescence to a claim of lawful authority.’’ Bumper v.

North Carolina, 391 U.S. 543, 548-49 (1968); see Johnson

v. United States, 333 U.S. 10, 16-17 (1948). Moreover, the

defendant need not be informed specifically of his Fourth

Amendment rights, United States v. Jones, 475 F.2d 723,

731 (Sth Cir., 1973); United States v. Canesco, 465 F.2d

383, 385 (Sth Cir., 1972), nor must the investigating officer

state that he will refrain from searching if the defendant

refuses to give permission. United States v. McCann, 465

F.2d 147, 158 (5th Cir., 1972); United States v. Resnick,

455 F.2d 1127, 1133 (Sth Cir., 1972). Finally, voluntari-

ness is to be determined from all the facts and circum-

stances surrounding the defendant’s alleged consent.

Schneckloth v. Bustamonte, supra, at 473;* United States

v. Jones, supra, at 728-31; United States ex rel Harris v.

Hendricks, 423 F.2d 1096, 1099 (3rd Cir.. 1970); United

States v. Boukater, 409 F.2d 537, 538 (Sth Cir., 1969);

Phelper v. Decker, 401 F.2d 232, 238 (Sth Cir., 1968).

With these principles before us, we turn to the facts

and circumstances surrounding the defendants’ apprehen-

4 We recognize that the defendant in Schneckloth was not in cus-

tody or under arrest at the time he gave consent to search, but the

standard is no different where the defendant is under arrest or in

custody.

Oe eet

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App. 11

sion and the subsequent search of the 1971 Chrysler. De-

fendant Horton was first asked if the agents could search

the 1971 Chrysler when the taxi in which the suspects were

riding was stopped near the entrance of the El Paso air-

port.’ After driving from the airport to where the vehicle

was located, Horton was again asked if he had any objec-

tion to the search of the vehicle, and he replied that he had

no objection.’ Moreover, as the automobile was searched

and the suspects’ luggage was removed from the trunk,

each person readily identified his or her luggage. More

specifically, Horton identified the grey attache case where

the three pounds, two ounces of heroin was found.

The arrest of the defendants was based on probable

cause, and there is no indication in the record that the

investigating officers used tactics that would augment the

degree of the coercion that is inherent in any arrest. There

is no evidence in the record of any intimidation, physical

5 Significantly, the consent was not obtained after an illegal ar-

rest. For in such a case, the government would have the even more

substantial burden of showing voluntariness untainted by an illegal

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

v. Wainwright, supra, at 1045; Agius v. United States, 413 F.2d

915, 919-20 (5th Cir.. 1969); Phelper v. Decker, supra, at 237-38.

® While Jordan may actually be the owner of the 1971 Chrysler,

Horton is nevertheless authorized to give consent to search it. As

Horton possessed the keys to the vehicle and represented that he

was the owner, without objection from Jordan, it may be plausibly

argued that Horton was a joint user of the automobile. Frazier v.

Cupp, 394 U. S. 731, 740 (1969).

*In Robinson v. United States, 325 F.2d 880 (5th Cir.. 1964),

we were concerned with a search of defendant Robinson’s automo-

bile based upon consent. Prior to searching the vehicle, one of the

investigating officers asked Robinson for the keys to the vehicle

and stated that he wanted to search it. Without objection, Robin-

son gave the keys to the officer, and this court upheld the search

based upon a valid consent. Id. at 884.

a IL LE ” -- ESERIES tg —

App. 12

or psychological abuse, or threats tending to invalidate the

consent. Although the suspects were not informed of their

right to remain silent and that anything they said might

be used against them, this is only one consideration in

assessing voluntariness. In light of all the surrounding

facts and circumstances, we are convinced that the consent

was voluntary.

ITI.

The final issue we must consider is whether there is

sufficient evidence in the record to sustain the conviction

of defendant Jordan. We recognize that all the evidence

and reasonable inferences therefrom must be viewed in a

light most favorable to the government. Glasser v. United

States, 315 U.S. 60 (1942). Furthermore, in circumstan-

tial evidence cases, the trier of fact must ‘‘reasonably find

that the evidence excludes every reasonable hypothesis,

except that of guilt.’’ United States v. Sidan-Azzam, 357

F.2d 1309, 1310 (Sth Cir., 1972). In measuring the suffi-

ciency of evidence against this standard, ‘‘we must affirm

any conclusion that could be reached by reasonable

minds.’’ United States v. Squella-Adendano, 478 F.2d 433,

437 (Sth Cir., 1973).

Because there is no evidence in the record demonstrat-

ing that Jordan was ever in actual possession of the

heroin, the evidence must support a finding of construc-

tive possession. Constructive possession has been defined

as exercising dominion or control over the proscribed

substance. United States v. Martin, ........ Ye nee (Sth

Cir., 1973) [No. 73-2404, ............ ]; United States v. Ste-

phenson, 474 F.2d 1353, 1355 (Sth Cir., 1973); United

States v. Mendoza, 433 F.2d 891, 896 (Sth Cir., 1970);

Garza v. United States, 358 F.2d 399, 401 (5th Cir., 1967).

The informant’s first tip stated that Minnieweather

would be accompanied by another black male, and the

BPI 00 EE Oe NE a Pa

App. 13

evidence in this case places Jordan in El Paso with Min-

nieweather during the first excursion to that city. It is

well established that Jordan was with Horton during the

period of the second trip to El Paso. But while the rec-

ord demonstrates Jordan’s proximity to the illegal sub-

stance and to the person who did have control over the

heroin, we believe it is insufficient to sustain his convic-

tion. In questioning at the customs office after their ap-

prehension, Horton stated that he thought Jordan ‘‘knew

what was going on.’’ During this questioning Horton

stated that the heroin was his, that it was purchased with

his money, and that he was willing to take the blame for

it. Jordan denied knowledge of the existence of the heroin

or of any transactions involving drugs. As previously

stated, the attache case containing the heroin belonged to

Horton although it was found in Jordan’s automobile. The

case was locked and apparently only Horton had keys to

open it. Furthermore, the evidence does not establish any

type of ‘‘working relationship’’ between the parties re-

garding the heroin but merely an association. United

States v. Stephenson, supra, at 1355. We do not believe

that control or dominion of the substance necessary to es-

tablish constructive possession is supported by this evi-

dence. Therefore, Jordan cannot be held to have violated

§ 841(a)(1).°

Because the defendants did not move for a new trial in

this case, we REVERSE and REMAND with instructions

to enter a judgment of acquittal with respect to defendant

Jordan, United States v. Restano, 449 F.2d 485, 488 (5th

Cir., 1971); United States v. Musquiz, 445 F.2d 963, 966

(5th Cir., 1971). We AFFIRM as to defendant Horton.

8 Jordan was not charged with conspiring to possess the heroin,

18 U.S.C.A. § 371 (1966), nor with aiding or abetting the offense

of heroin possession, id. § 2(a).

GE erm aera PTET FCA SOR EEOC . Paes SORE <r eencserce

App. 14

APPENDIX B

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

January 3, 1974

TO ALL COUNSEL OF RECORD

No. 72-3574—U.S.A. v. Joseph Horton and Willie F.

Jordan

Gentlemen:

This is to advise that an order has this day been entered

denying the petition for rehearing,* and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en bane (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Cireuit Rule 12) the petition for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Edward W. Wadsworth

Clerk

By /s/ Suson B. Le Brun

Deputy Clerk

*as to Joseph Horton only

ee: Mr. William C. Starke

Mr. Albert Armendariz

Mr. Gerald M. Werksman

Mr. Edward S. Marquez