Petition for A Writ of Certiorari — United States v. Griffin

Sa ne eae ee ee “ en

INDEX

Page

a ese aia 1

EI EO RARE LEM a eA eee ne 1

Questions presented ______. hs ncai eos eannmnaee 2

Constitutional provision involved _..___-___ 2

NT EE LPO a eas 2

Reasons for granting the writ _—.____________. 8

RRR TROON. cs Sten en am Loe Rn 20

Appendix A ities nae mmaas la

SEE TR sce ee ee 5a

NN sini ised satin tates ee Ta

CITATIONS

Cases:

Costello v. United States, 365 U.S. 265__ 11

Government of the Virgin Islands v. Ge-

reau, C.A. 3, No. 73-1775, decided Au-

eee Se, I as an es ee 17

Jones v. United States, 362 U.S. 257 9

Killough v. United States, 336 F.2d 929 19

Nardone v. United States, 308 U.S. 338 11

People v. Fitzpatrick, 32 N.Y. 2d 499,

300 N.E. 2d 139, certiorari denied,

or ae See 8, 15, 16, 17

Rouda v. United States, 10 F.2d 916 13

Silverthorne Lumber Co. v. United States,

| & fe pe ace 11

United States v. Bacall, 443 F.2d 1050,

certiorari denied, 404 U.S. 1004 14

DELILE SEL ETE LEN IO LS GE RIN pI tes

i

Cases—Continued Page

United States v. Barrow, 363 F.2d 62,

certiorari denied, 385 U.S. 1001 14

United States v. Brandon, 467 F.2d 1008 . 14

United States v. Calandra, 414 U.S. 338. 9,15

United States v. Carino, 417 F.2d 117... 12

United States v. Castellana, 488 F.2d 65 19

United States v. Falley, 489 F.2d 33. 17, 18

United States v. Holsey, 437 F.2d 250. 14

United States v. Hull, 487 F.2d 1__._. 14

United States v. Jones, 457 F.2d 697. 14

United States v. McKlemurry, 461 F.2d

RSS TERE Be ze aR See 14

United States v. Paroutian, 299 F.2d

vy NSERC Sek ase eID Oe re Re se 19

United States v. Scharf, 421 F.2d 1239. 14

United States v. Seohnlein, 423 F.2d 1051,

certiorari denied, 399 U.S. 913... 19

United States v. Stornini, 443 F.2d 833. . 14

United States v. Viale, 312 F.2d 595. 14

Warren v. Hawaii, 119 F.2d 936 19

Wayne v. United States, 318 F.2d 205. 19

Wong Sun v. United States, 371 US.

oP APRESS ES Iran Sr Cae nee 9,10

Constitution and statute:

United States Constitution, Fourth

mE as ESO etl cae Nae aD Ae acace 2

18 U.S.C. 2 3

3

21 U.S.C. 841(a)(1)

SS are pear nne: wameanne semen .

’ SAREE NRE LEER. WR RHINE HB REELS AST TERN EOL SORE SOME Re NONE eben SONS

Ill

Miscellaneous: Page

Comment Note, “Fruit of the Poisonous

Tree’ Doctrine Excluding Evidence

Derived from Information Gained in

Illegal Search, 43 A.L.R. 3d 385

(5. PRESS alia AiEeiare el baste Sete ee atl fas 11,15

Maguire, How to Unpoison the Fruit—

The Fourth Amendment and the Exclu-

sionary Rule, 55 J. Crim. L., C. & P. &.

307 (1964) h 15

——— “: = a —- ty ae aR near ra & ie

BE oso ete gee tewaes ay WARE PTR eet co RTH : SPST TEY PA SLO BE A Ox: Cares a

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No.

UNITED STATES OF AMERICA, PETITIONER

v.

THOMAS GRIFFIN AND CATHERINE TUCKER

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Sixth Circuit in the above-captioned case.

OPINION BELOW

The opinion of the court of appeals (App. A, im-

fra, pp. la-4a) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, pp. 5a-6a) was entered on August 21, 1974. On

(1)

AIT ROAD ee

ss OE LER LS INET I TE CEE ON ERE LEI IEAR Serer ett

oe “ ave ‘ hires

2

September 11, 1974, Mr. Justice Stewart extended

the time for filing a petition for a writ of certiorari

to and including October 19, 1974. The jurisdiction

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

QUESTIONS PRESENTED

1. Whether evidence seized pursuant to a valid

search warrant should be suppressed as the fruit of

an unlawful entry into respondent’s apartment made

while the warrant was being procured.

2. Whether, assuming the evidence in this case

is deemed tainted by illegal entry, it should never-

theless be admissible because its discovery upon the

execution of the warrant was inevitable.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment. of the Constitution pro-

vides: 7

The right of the people to be secure in their

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

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT

Respondents were charged in a three-count indict-

ment filed in the United States District Court for

the Eastern District of Michigan with the unlawful

possession of heroin with intent to distribute, in

VLE OE LEAP SELLS ONE MG Ie Rt oo weary. FOOLS Ae

3 \

violation of 21 U.S.C. 841(a)(1) and 18°U.S.C. 2.

They subsequently filed a motion to suppress tangible

evidence seized from respondent Griffin’s apartment

on December 21, 1972. After hearing testimony and

argument and studying the briefs submitted by coun-

sel, the district court orally granted the motion to

suppress on August 1, 1973 (Tr. 53) and filed a

written order on August 3, 1973 (App. C, infra).

The government appealed this ruling to the United

States Court of Appeals for the Sixth Circuit, which

affirmed the judgment of the district court in an

opinion filed on August 21, 1974 (App. A, infra).

1. During the week of December 11, 1972, the

Sheriff’s Department of Wayne County, Michigan,

notified an agent of the federal Bureau of Nar-

cotics and Dangerous Drugs (BNDD)° that a pre-

viously reliable informant had advised the Depart-

ment that “Tommy” Griffin was a major narcotics

trafficker, who was distributing heroin from Apart-

ment 202 at 2017 Burlingame, in Detroit, Michigan,

and that he was aided in this endeavor by Catherine

“Twiggy” Tucker (Tr. 10). The informant also had

stated that Griffin was expecting a large shipment.

of heroin and that when the narcotics arrived, they

would either be picked up quickly by Griffin’s cus-

tomers from the Burlingame apartment, or Griffin

himself would deliver the narcotics to his customers

in his 1967 red Valiant (Tr. 11). According to the

affidavit in support of the warrant, Griffin told the -

1The Bureau of Narcotics and Dangerous Drugs was the

predecessor agency to the Drug Enforcement Agency (DEA).

AO SN LE ae:

PRIA DIY EOIN el OR Se SNR oy testes

4

informant on December 20 that the heroin wes ex-

pected the nexi day.

On December 21, 1972, shortly before 12:30 }.m.,

the informant visited Griffin’s apartment at 2017

Burlingame, where he observed in the possession of

respondent Griffin a large plastic bag containing a

quantity of white powder, which Griffin identified as

heroin (Tr. 12). According to the affidavit, Griffin

also indicated that he was expecting a load of cocaine

to arrive the same day and that some heroin al-

ready had been distributed. The informant reported

to local law enforcement officers what he had been

told by Griffin and what he had seen in the apart-

ment. The informant also advised the authorities

that on the morning of that day he had spoken

on the telephone with “Texas Slim” (a well-known

narcotics dealer later identified as George Dudley),

who stated that he had picked up some heroin from

respondent Griffin at the Burlingame address the

previous evening and that he intended to obtain more

from Griffin later that day (Tr. 13). Local law en-

forcement officers, who had been maintaining a sur-

veillance of Griffin’s apartment building, later con-

firmed that a man subsequently identified as Dud-

ley, together with an unknown female, had entered

the building and that a short time later the female

left in a car registered to another known narcotics

dealer, Morris Bivins (Tr. 14).

Shortly thereafter, respondent Griffin and Dudley

left the apartment building in the red Valiant, which

had previously been identified by the informant as

5

the delivery vehicle (Tr. 15). The agents then pro-

ceeded to the residences of persons identified by the

informant as prospective customers, in hopes of find-

ing the red Valiant, intercepting what they thought

to be deliveries of heroin, and arresting respondent

Griffin and Dudley in possession of narcotics; how-

ever, they met with no success (Tr. 15-16). At ap-

proximately 3:30 p.m., Griffin and Dudley returned

to the Burlingame address; Griffin entered the build-

ing, remained for a few minutes and then returned

to the car and left with Dudley (Tr. 17). Shortly be-

fore 4:30 p.m., one of the surveillance units observed

the vehicle and followed it to Dudley’s residence,

where respondent Griffin and Dudley were arrested

(Tr. 18, 20). At the time of the arrests, Dudley had a

44 magnum revolver on his person and Griffin had a

45 caliber semi-automatic pistol in his automobile;

put there were no narcotics on the person of either

(Tr. 20). According to the affidavit in support of

the search warrant, a consent search of Dudley’s

apartment revealed a bag of heroin in the bedroom.

Because many persons had observed the arrests of

Dudley and Griffin and had “evinced a considerable

interest in what was happening” (Tr. 20), the agents

were concerned that someone would get word back

to Griffin’s confederates at the Burlingame address

and that as a result the narcotics that were there

might be removed or destroyed (Tr. 20, 22). This

was of particular concern to the agents because the

unidentified female who had been seen earlier with

6

Dudley had not been arrested, and her whereabouts

was then unknown (Tr. 28).

One agent was then dispatched to obtain a search

warrant for Griifin’s apartment, while the other

agents returned to the apartment (Tr. 22). At

approximately 5:00 p.m., the agents knocked on the

door of Griffin’s apartment and announced tuat they

were federal agents who wanted to secure the prem-

ises while a search warrant was being sought (Tr.

23). After receiving no reply, they repeated the

announcement and then forced their way into the

apartment and fanned out to see if anyone was

presert (Tr. 23). While they found no people in

the ayartment, the agents observed on the dining

room table “a cutting board and large quantities of

white powder and measuring spoons and strainers”

(Tr. 23). The agents did not seize these items, nor

did they add their observations to the affidavit then

being prepared in support of the search warrant

application; indeed, so far as appears from the rec-

ord, they did not even advise the agent seeking the

warrant of these additional facts. No information

obtained after the arrest of respondent Griffin was

contained in the affidavit submitted to the magis-

trate who issued the warrant.

At approximately 7:30 p.m., respondent Catherine

Tucker returned to Apartment 202, entered with a

key and was arrested by the agents then securing

the apartment (Tr. 24, 36). She was the only person

other than the agents to enter the apartment until

approximately 9:00 p.m., when the agent who had

7

been dispatched to obtain a search warrant returned

with the warrant, which had been issued by the mag-

istrate. The agents then conducted a thorough search

of the apartment and seized the heroin which they

earlier had observed, as well as a pistol, two shot-

guns, and other evidence.

2. At a hearing on respondents’ motion to sup-

press the seized evidence, the district court found that

there were no exigent circumstances sufficient to

justify the warrantless entry into Griffin’s apartment

prior to obtaining the search warrant. The court

found that the apartment could have been secured

by the agents from the outside without entering the

apartment. The court made no findings with respect

to the validity of the search warrant or the sufficiency

of the showing of probable cause (Tr. 46-53). Ac-

cordingly, the motion to suppress was granted (Tr.

53; App. C, infra, pp. Ta-8a).

3. On appeal, the government abandoned its argu-

ment that exigent circumstances justified the war-

rantless entry and conceded that the entry was il-

legal. It based its appeal instead on the theory that

the evidence was seized pursuant to the warrant and

was thus not the fruit of the illegal entry, and also

that the discovery of the evidence was inevitable be-

cause the entry and seizure would have occurred as

soon as the agents had returned with the warrant.

The court of appeals held that, in the absence of exi-

gent circumstances, “the police clearly may not force

entry to a home without a search warrant simply

because they think they have probable cause to be-

ss)

lieve evidence of crime may be found therein” (App.

A, infra, p. 4a). The court also refused to adopt the

“inevitable discovery” doctrine of People vy. Fitz-

patrick, 32 N.Y. 2d 499, 300 N.E. 2d 139, certiorari

denied, 414 U.S. 1050, holding that it would con-

sider the rationale and applicability of the “inevitable

discovery” doctrine only in a case in which the po-

lice had a “clear legal right” at some point prior

to the actual search to conduct that search (App. A,

infra, p. 3a).

REASONS FOR GRANTING THE WRIT

This case presents two important and interrelated

issues regarding the reach of the exclusionary rule

to situations in which a search or seizure pursuant

to a valid search warrant or other lawful basis is

arguably tainted by illegal police activity. The first

issue is whether the “independent source” exception

to the “fruit of the poisonous tree” doctrine is in-

applicable to a seizure of contraband from a house

made after the police have obtained a valid search

warrant, because prior to the issuance of the war-

rant the officers had improperly entered the premises

and thereupon observed the contraband in plain view.

The second issue is whether, assuming the seizure of —

the contraband to be a product of the unlawful en-

try, the evidence should nevertheless be ruled ad-

missible because its discovery pursuant to the valid

warrant was inevitable.

This case turns on the interplay between com-

peting policies affecting the administration of the

9

exclusionary rule: on the one hand, the policy of

maximizing the deterrent effect of the rule by ap-

plying it wherever the prosecution seeks te use evi-

dence that has been connected in any significant

fashion with activity violating the Fourth Amend-

ment; on the other hand, a more restrained applica-

tion of the rule under which exceptions are recog-

nized ‘u situations in which the marginal deterrent

value of the rule is diminished or the connection be-

tween the unlawful police conduct and the evidence

in question is too remote. The court of appeals

adopted the former approach in the instant case, in

direct conflict with the tendency in this Court to

give greater recognition to the competing interests

of society in the admissibility of probative evidence

in situations in which the marginal utility of the

exclusionary principle is questionable, a tendency re-

flected in the requirement of standing for assertion

of Fourth Amendment claims (Jones v. United

States, 362 U.S. 257, 261), in the preclusion of sup-

pression inquiries at the behest of grand jury wit-

nesses (United States v. Calandra, 414 U.S. 338),

and, most relevant here, in the limitations imposed

on the reach of the “fruit of the poisonous tree”

doctrine (Wong Sun v. United States, 371 U.S. 471).

1. In affirming the district court’s suppression

order, the court of appeals entirely ignored the criti-

eal issue whether the evidence was in fact the “fruit”

of the concededly unlawful entry into Griffin’s apart-

ERLE IEE LB CC WE AER,

10

ment,” or was instead seized pursuant to a search

warrant that was entirely untainted by the unlaw-

ful entry. Its decision was thus contrary to con-

trolling decisions of this Court, as well as being in

conflict with decisions of other courts of appeals con-

struing the “fruit of the poisonous tree” doctrine.

That doctrine, as this Court has clearly explained,

does not dictate the exclusion of all evidence that

may be touched in some manner by unlawful police

conduct, but requires suppression only of that evi-

dence held to be the fruit of the illegal conduct. As

this Court said in Wong Sun v. United States, supra,

371 U.S. at 488, the decision to admit or exclude

evidence turns on “ ‘whether, granting establish-

ment of the primary illegality, the evidence to which

instant objection is made has been come at by ex-

ploitation of that illegality or instead by means suf-

ficiently distinguishable to be purged of the primzry

taint.’ ”

The test set forth in Wong Sun incorporates at

least two exceptions to the requirement that evidence

connected in some fashion to illegal police conduct

be excluded. The first is the “independent source”

2? While we did concede in the court of appeals that there

were not sufficient exigent circumstances to justify the war-

rantless entry into Griffin’s apartment, and while we do not

contend otherwise here, this was not a case of flagrant dis-

regard by law enforcement officers of constitutional dictates

but, at most, a misjudgment as to the sufficiency of the cir-

cumstances arising during the course of a fast-breaking in-

vestigation to justify a warrantless entry to prevent possible

destruction of evidence.

11

limit>.ioz, under which evidence is admitted because

it is the product of a concurrent investigative proc-

ess in no way dependent upon information learned

through the illegal official acts. See Silverthorne Lum-

ber Co. v. United States, 251 U.S. 385; Costello v.

United States, 365 U.S. 265, 280. The second is

the “attenuated connection” limitation, which oper-

ates to allow the admission of evidence when the

causal connection between the illegal conduct and

the evidence sought to be introduced is so attenuated

as to dissipate the taint. See Nardone v. United

States, 308 U.S. 338.° It is the first of these that

should have been applied by the courts below to sup-

port the admission of the heroin and related para-

phernalia in this case.

Applying the “independent source” principle to the

facts of this case, it becomes clear that the heroin

seized from respondent Griffin’s apartment should

not have been suppressed. The seizure did not re-

sult from the unlawful entry without a warrant,

but was instead made pursuant to a valid search

warrant that was issued on the basis of an affidavit

containing facts obtained by law enforcement officers

totally independent of the illegal entry. The facts

were acquired from information supplied by a pre-

31t has been suggested that “inevitable discovery”, dis-

cussed at pp. 15-19, infra, constitutes a third exception to the

requirement that the “fruit of the poisonous tree” be excluded.

See Comment Note, “Fruit of the Poisonous Tree” Doctrine

Excluding Evidence Derived from In formation Gained in

Illegal Search, 43 A.L.R. 3d 385, 391-392 (1972).

12

viously reliable informant and from observations

and lawful activities of the BNDD agents and local

law enforcement officers prior to the illegal entry

into the apartment. Although the officers observed

narcotics and cutting . terials in open view upon

their warrantless entry, they did not add these ob-

servations to the affidavit, and they awaited the is-

suance of the search warrant before seizing the

evidence. The facts in support of the search war-

rant having been obtained as the result of an in-

vestigation in no way tainted by information learned

from the illegal entry, the evidence should have been

admitted under the “independent source” limitation

on the “fruit of the poisonous tree” doctrine.

Not only is the decision of the court of appeals

in this case inconsistent with this Court's explanation

of the “fruits” doctrine in Wong Sun, but it is in

conflict with the application of the doctrine by ofr

courts of appeals, most notably with the decision

of the Second Circuit in United States v. Carino,

417 F. 2d 117, 118-119. There, police had illegally

searched an automobile belonging to the defendant,

who they suspected had participated in a robbery.

During the course of the search a gun was found.

The contents of the car were left undisturbed, and

the vehicle was placed under surveillance. The of-

ficers observed a friend of the defendant enter the

car and then emerge carrying a paper bag. When

approached by the officers, he fled and eventually

disearded the bag during the chase. The bag was re-

13

covered and found to contain the gun. Carino was

prosecuted for illegal transportation of the gun, which

was stolen, in interstate commerce. The court upheld

the admission of the gun in evidence, citing the

language from Wong Sun quoted earlier in this peti-

tion (see p. 10, supra). The court observed that the

events that transpired following the illegal search

“rendered ine‘fective and unnecessary any informa-

tion gained through search of the car by the police

and completely freed the evidence, actually presented

at the trial, from whatever stigma may have at-

tended anything disclosed by that search” (417 F.2d

at 119).

Many years earlier Judge Learned Hand had

reached the same conclusion in Rouda v. United

States, 10 F. 2d 916 (C.A. 2), where agents had

made an assertedly illegal entry into a building and

tasted alcohol found therein. A warrant to search

the building for alcohol was then obtained; the af-

fidavit in support of the warrant application relied

in part on the observations made during the prior

entry of the building. The court held the initial

entry lawful; relevant here is its alternative ground

for decision that, even if the entry were not lawful,

the subsequent search under a warrant was untainted.

Judge Hand stated (id. at 918):

At the outset we note that, except for tasting

the alcohol, Sassi could have learned, and per-

haps did learn, all that he put in the affidavit,

while he stood outside. As the affidavit would

have equally supported the warrant, without the

Satta a i eae a eT} 28 AP OO RTE MIEN Rey JETER

14

allegation that he tasted the alcohol, the question

arises whether it makes any difference even if

his entry was unlawful. He gained by it no more

than was available to him before entry. It is

therefore at best extremely doubtful whether

he can be said to be profiting by his unlawful

entry, in the sense that the rule regvires in

order to make the evidence incompetent. * * *

The considerations favoring admission of the evi-

dence in the instant case are, if anything, stronger

than in either Carino or Rouda, since the discovery

of the facts constituting probable cause and the ini-

tiation of the warrant procedure entirely antedated

and were wholly unconnected with the premature en-

try into the apartment. See also United States v.

Stornini, 443 F. 2d 833 (C.A. 1); United States v.

Viale, 312 F. 2d 595, 602 (C.A. 2). The Court

should grant certiorari to resolve this conflict among

the circuits.‘

*The decision of the court cf appeals is also at odds with

the application given to the “independent source” doctrine

in numerous other decisions o the courts of appeals in the

analogous situation in which an illegal search uncovers a lead

to the evidence under attack or to witnesses, where an inde-

pendent, lawful source pointed toward the same evidence.

See, e.g., United States v. Barrow, 363 F.2d 62, 65-66 (C.A.

8), certiorari denied, 385 U.S. 1001; United States v.

McKlemurry, 461 F.2d 651 (C.A. 5); United States v. Jones,

457 F.2d 697, 699 (C.A. 5); United States v. Hull, 437 F.2d

1, 3-4 (C.A. 5); United States v. Brandon, 467 F.2d 1008

(C.A. 9); United States v. Scharf, 421 F.2d 1239 (C.A. 9);

United States v. Bacall, 443 F.2d 1050 (C.A. 9), certiorari

denied, 404 U.S. 1004; United States v. Holsey, 437 F.2d 250,

252 (C.A. 10).

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2. An issue of at least equal importance is pre-

sented by the court of appeals’ rejection of the “in-

evitable discovery” rationale as a legitimate limi-

tation upon the rule requiring the exclusion of “fruits

of the poisonous tree.” As this Court has recognized,

the exclusionary rule should be applied only “where

its remedial objectives are thought most efficaciously

served.” United States v. Calundra, supra, 414

U.S. at 345, The “inevitable discovery” doctrine con-

tributes to that principle by denying to the govern-

ment benefits derived from exploitation of illegal

conduct while at the same time minimizing the op-

postunity for a defendant to receive an undeserved

and undesirable windfall. See Maguire, How to Un-

poison the Fruit—The Fourth Amendment and the

Exclusionary Rule, 55 J. Crim. L., C. & P.S. 307,

317 (1964); Comment Note, supra, 43 A.L.R. 3d at

405. Under this doctrine, the government is afforded

the opportunity to “ ‘remove the taint from otherwise

poisoned fruit by establishing that the unlawful act

from which it resulted was not a sine qua non of its

discovery.’” People v. Fitzpatrick, supra, 32 N.Y.

2d at 506-507, 300 N.E. 2d at 142.

The inevitable discovery issue arises in this case

if our initial contention—that this evidence was not

the fruit of the unlawful entry into the apartment,

but had a legitimate, independent source in the un-

tainted warrant—is rejected. The facts of this case

establish beyond dispute that the BNDD agents would

inevitably have obtained the evidence observed dur-

ing their illegal entry, even if the unlawful act had

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not occurred, ard that the government in no way

benefited by the unlawful act of the agents. Had

they not entered respondent Griffin’s apartment when

they did, the agents would nevertheless have seized

the eviaeree pursuant to a valid search warrant

based upon an affidavit which was being prepared

prior to their entry and which contained all the facts

,hecessary to support a finding of probable cause and

to justify the entry, the search, and the seizure. No

clearer case for application of the “inevitable dis-

covery” doctrine can be imagined. |

However, rather than accept the facts before it,

the court of appeals hypothesized a situation in which

the law enforcement officers only “planned to get a

search warrant” (App. A, infra, p. 4a) and, on the

basis of that contrary-to-fact hypothetical, concluded

that, since that kind of assertion by the police “would

as a practical matter be beyond judicial review,” the

‘inevitable discovery” doctrine should be rejected

(ibid).

In People v. Fitzpatrick, supra, the rationale of which

was rejected by the court in this case, the police legally

, entered the defendant’s home without a warrant, seized and

hand-cuffed him, and then advised him of his rights in a

manner later found not to be in compliance with Miranda.

The police then asked him about the gun he used in the hold-

up and were told it was in the closet where they had found

‘the defendant; the police seized the weapon. The New York

Court of Appeals held that the weapon was admissible in evi-

dence because

it was entirely fortuitous that the police delayed the

search of the immediate area where the defendant was

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Last Term this Court declined the opportunity to

consider the doctrine of inevitable discovery when it

denied certiorari in Fitzpatrick, over the dissent of

Justice White, concurred in by Justice Douglas. 414

U.S. 1050. Since then, however, one circuit has ex-

plicitly accepted the inevitable discovery principle

(Government of the Virgin Islands v. Gereau, C.A.

3, No. 73-1775, decided August 15, 1974) and ar-

other has upheld the admissibility of evidence on a

similar rationale (United States v. Falley, 489 F.2d

33, 40-41 (C.A. 2)), while the Sixth Circuit has

rejected the doctrine in the instant case. These re-

cent decisions reflect the continuing importance of

this issue and its suitability for resolution by this

Court.

The Gereau case arose from the notorious murder

of eight persons at the Fountain Valley Golf Course

in St. Croix. The polic? obtained a statement in

discovered until they had begun questioning him * * *.

It is quite unreal to suggest that, but for the defendant’s

admission, the police would not have looked for incrimi-

nating evidence in the closet where he had been hiding.

* * * Since, then, a search of the closet was inevitable

regardless of the defendant’s answers to questions put to

him beyond its confines, it may not fairly be said that the

police “exploited” the “illegality” involved in their inter-

rogation.

People v. Fitzpatrick, supra, 32 N.Y. 2d at 507, 200 N.E. 2d

at 142. While the court of appeals rejected the reasoning of

Fitzpatrick in part because it found the facts here less com-

pelling, we submit that the activities of the law enforcement

officers in this case were more, not less, justifiable than in

Fitzpatrick and that the facts here more strongly support a

finding of inevitability.

Ty th ae ee a ae ee Pee eS we ee See ee a ee

Laden ane tye Te ee | ee one a |

ihe Wentvilia s ele

18

violation of Miranda from one of the suspects, in

which he told them that he had thrown a gun (sub-

sequently identfied as one of the murder weapons)

out of the rear window of the house in which he

had been arrested. A search revealed the gun on the

roof of an adjoining building. The court of appeals

held that, although the gun would ordinarily have

been excluded as the fruit of the Miranda violation,

it was admissible under the particular circumstances

of the case because the government had demonstrated

that the gun would inevitably have been discovered

during the course of a saturation search of the area

that was then being conducted. The gun was accord-

ingly held not to be the “fruit of the poisonous tree”

(slip op. 17).

In Falley, the Second Circuit upheld the admis-

sibility of documents obtained from the defendant’s

customs broker, as well as testiraony by the broker,

although the broker’s name ana address were found

in an address book seized dvving an unlawful search

of the defendant’s home. Finding that an intensive

investigation of the defendant’s activities had begun

prior to the illegal seizure, the court concluded that

it “would have been only a question of time before

the government by a so-called saturation investiga-

tion, or otherwise, would have discovered the broker

and the importation documents. Even if the address

book had shortened or facilitated the investigation,

it did not supply fruit sufficiently poisonous to be

fatal” (489 F. 2d at 40). It is unclear whether

this decision signals a retreat from the Second Cir-

19

cuit’s earlier apparent rejection of the inevitzble dis-

covery principle in United States v. Paroutian, 299

F. 2d 486. In any event, the issue is recurring with

increasing frequency and receiving divergent treat-

ment in both state and federal appellate courts.’

Assuming this case is not disposed of on the first

ground raised in this petition, it presents the strong-

est imaginable occasion for application of the in-

evitable discovery principle, since there is here no

need to speculate on whether a warrant would have

been obtained or whether the evidence that was pres-

ent in plain view in the empty apartment would

have been discovered upon execution of the warrant.

If the court of appeals was correct in refusing to

apply the doctrine in the instani case, then it can

never have valid application.

* The Fourth, Ninth, and District of Columbia Circuits also

appear to have approved the inevitable discovery principle,

although not explicitly by that name. See United States v.

Seohnlein, 423 F.2d 1051 (C.A. 4), certiorari denied, 399 U.S.

913; Warren Vv. Territory of Hawaii, 119 F.2d 936, 938 (C.A.

9); Wayne v. United States, 318 F.2d 205, 209 (C.A.D.C.);

Killough Vv. United States, 336 F.2d 929, 934 (C.A.D.C.). A

panel of the Fifth Circuit rejected the doctrine in United

States v. Castellana, 488 F.2d 65, 68, but that case later was

reheard by the court sitting en banc, which thereupon re-

versed the decision of the district court to suppress the physi-

cal evidence, in an opinion in which the court found it un-

necessary to reach the question of “inevitable discovery”

(No. 72-2259, decided September 6, 1974).

20

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be granted.

ROBERT H. BORK,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

ANDREW L. FREY,

Deputy Solicitor General.

PAUL L. FRIEDMAN,

Assistant to the Solicitor General.

OCTOBER 1974.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 73-2207

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

THOMAS GRIFFIN and CATHERINE TUCKER,

DEFENDANTS-APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT CoURT

FOR THE EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

Decided and Filed August 21, 1974

Before: PHILLIPS, Chief Judge, WEICK and ED-

WaARpDs, Circuit Judges.

PER CURIAM. Federal Narcotics Agents in the City

of Detroit who had, by dint of surveillance and two

prior lawful arrests, developed probable cause for

the search of appellee Griffin’s apartment determined

to do so. An agent was dispatched to procure a

search warrant, while other agents were dispatched

to Griffin’s apartment to “secure” it. Promptly on

their arrival, and after receiving no reply to their

ee |

2a

knock, they “secured” the apartment by forceably

[sic] entering it, discovering a considerable quantity

of narcotics and related paraphernalia in plain view.

At this point appellee Tucker came into the apart-

ment and was arrested. Another agent was then

dispatched to “expedite” the procurement of a search

warrant.

The (now conceded to be) illegal entry took place

at approximately 5 p.m. The search warrant was

returned to the apartment and at approximately 9

p.m. a thorough search was made. It is conceded by

appellant [sic] that the affidavit upon which the

search warrant was procured did not contain any

facts discovered as a result of the illegal entry.

On these facts the government contended before

the District Court that appellees’ motion to suppress

should be denied because of exigent circumstances.

They argued that the narcotics which they had rea-

son to believe were there could readily have been

disposed of. But as the District Judge ascertained

by questioning, there was no proof that anyone was

in the apartment, and on the contrary, they had good

reason to believe from prior surveillance of it that

nobody was. Holding that there were no exigent cir-

cumstances to excuse the warrantless entry, the Dis-

trict Judge granted uhe motion to suppress evidence.

Before this court the government changed its posi-

tion. It now argues that the exclusionary rule should

not have been applied in this case because the dis-

covery of these materials under the circumstances

of this case was inevitable without any reference to

the illegal entry. In this regard the government

A BE IR POS BN oh Cs,

3a

relies principally upon a recent case in the New York

Court of Appeals, People v. Fitzpatrick, 32 N.Y.2d

499, 300 N.E.2d 139, cert. denied, 414 U.S. 1050

(1973), where the court stated:

“[T]he inevitable discovery factor ‘permits the

government to remove the taint from otherwise

poisoned fruit by establishing that the unlawful

act from which it resulted was not a sine qua

non of its discovery’.” People v. Fitzpatrick,

supra at 142, quoting with approval Maguire,

How to Unpoison the Fruit, 55 J. Crim. L.C. &

P.S. 307, 313.

The District Judge was clearly right in finding

that the government had not established exigent cir-

cumstances to warrant the forceable entry without

search warrant. This case did not involve hot pur-

suit. Nor did the government present proofs which

established its theory that the evdence it sought was

in danger of destruction. Hence, we have no need to

pass upon what effect, if any, such facts if estab-

lished, might have upon the normal requirement of

a search warrant.’

We also believe the government’s reliance upon the

Fitzpatrick case is misplaced. In Fitzpatrick the

court held that the police had lawfully arrested Fitz-

patrick, They had a clear legal right to search the

closet where they had arrested Fitzpatrick and they

* Compare United States v. Rubin, 474 F.2d 262 (3d Cir.),

cert. denied sub nom. Agran V. United States, 414 U.S. 833

(1973). This circuit has never had occasion to pass on the

holding of the Rubin case.

4a

then had both the present intention and the present

capability of doing so.

None of these factors are present in our current

fact situation and hence we have no need to deter-

mine our attitude toward the rationale of Fitzpat-

rick. Absent “exigent circumstances,” the police

clearly may not force entry to a home without a

search warrant simply because they think they have

probable cause to believe evidence of crime may be

found therein. Johnson v. United States, 333 U.S.

10 (1948); United States v. Jeffers, 342 U.S. 48

(1951); Vale v. Louisiana, 399 U.S. 30 (1970).

We hold that absent any of the narrowly limited

exceptions (See Katz v. United States, 389 U.S. 347,

357 (1967) ) to the search warrant requirement, po-

lice who believe they have probable cause to search

cannot enter a home without a warrant merely be-

cause they plan subsequently to get one. The asser-

tion by police (after an illegal entry and after find-

ing evidence of crime) that the discovery was “in-

evitable” because they planned to get a search war-

rant and had sent an officer on such a mission, would

as a practical matter be beyond judicial review. Any

other view would tend in actual practice to emascu-

late the search warrant requirement of the Fourth

Amendment.

The judgment of the District Court is affirmed.

5a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 73-2207

[Filed Aug. 21, 1974, John P. Hehman, Clerk]

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

vs.

THOMAS GRIFFIN AND CATHERINE TUCKER,

DEFENDANTS-APPELLEES

Before: PHILLIPS, Chief Judge, WEICK and ED-

WARDS, Circuit Judges. ‘

JUDGMENT

APPEAL from the United States District Court for

the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record

from the United States District Court for the Eastern

District of Michigan and was argued by counsel.

6a

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judg-

ment of the said District Court in this cause be and

the same is hereby affirmed.

No costs taxed.

ENTERED BY ORDER

OF THE COURT

/s/ John P. Hehman

Clerk

A True Copy.

Attest:

JOHN P. HEHMAN, Clerk

Ta

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Criminal No. 48553

UNITED STATES OF AMERICA, PLAINTIFF

—vs.—

THOMAS B, GRIFFIN, III, CATHERINE TUCKER,

DEFENDANTS

ORDER GRANTING DEFENDANT’S MOTION

TO SUPPRESS EVIDENCE

At a session of said Court, held in the

Federal Building, in the City of Detroit,

Michigan, on the 3rd day of August, 1973.

PRESENT: HONORABLE LAWRENCE GUBOW,

UNITED STATES DISTRICT JUDGE

A Motion to Suppress the Evidence and Quash the

Indictment having been filed on behalf of the de-

fendants, Thomas B. Griffin, III and Catherine

Tucker, and the Court having heard testimony and

arguments of counse] in open Court, and the Court

having further studied briefs and the law applicable

to'the facts, and the Court having granted the Mo-

tion to Suppress from the bench on August 1, 1973.

8a

IT IS HEREBY ORDERED that the Motion to

Suppress the Evidence, filed on behalf of the defend-

ants, be and same is hereby granted.

United States District Judge

A TRUE Copy

HENRY R. HANSSEN

Clerk

Deputy Clerk

WX ov. S. Goveenment printing orrice; 1974 861436 5s

A PON RRA