Petition for Writ of Certiorari — Markham v. United States

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AUG 28 1974

JR..CLERE

Supreme Court of the United States

OCTOBER TERM, 1973

DELMAR L. MARKHAM and BRUNO PIET,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondents.

———

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SEVENTH CIRCUIT

13818 Woodward Avenue

Highland Park, Michigan 48203

(313) 865-9289

111 West Washington St.

Chicago, Illinois 60602

(312) FI-6-0736

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

WO. 2-8745—WO. 2-8732

TABLE OF CONTENTS

Opinions Below 2.12... sscacccscccccssescscescens

Jurisdiction ....... SN 6s ShAKGRONSREDADAR ORS Obe ROS

Questions Presented .......... 0. cece cece eee eeees

Statutes and Constitutional Questions Involved ....

“TRIE GE WD CONG in nec cccccncccnscnscccesce

Reasons for Granting the Writ ................6-

SECC PELE CTT OCT TE TUTTE TETETITS

Appendices

Bi, NOGGO OF AMOR oc cc cncsccncsccsccceses

B. Opinion of the Court of Appeals ..........

C. Order Denying Application for Rehearing .

TABLE OF AUTHORITIES

Cases:

Alderman vy. United States, 394 U.S. 165 ........

Agnello v. United States, 269 U.S. 20 ...........

Aguilar v. Texas, 378 U.S. 108 .............006-

Boyd v. United States, 116 U.S. 616 ............

Bumper v. North Carolina, 391 U.S. 543 ........

Carroll v. United States, 267 U.S. 132 ..........

Chambers v. Maroney, 399 Si ED bv cassnnseccne

Channel v. United States, 285 F. 2d 217 .........

aoe

ste Unto han WU Mt sa Sin ne Is dastial 2

Bell hue Weaker kinc yee wile a

Bessie: Sere eee tee

Page

Chapman v.|United States, 365 U.S. 610 .. 19, 21, 38, 39

Chimel v. California, 395 U.S. 752 ...........4-. 9, 13

Cohen v. Norria, 300 FP’. 2d 4 2. wccccccosscccvss 10

Cohen v. United States, 405 F. 2d 34 ............ 28

Coolidge v. New Hampshire, 403 U.S. 443 ........ 9

Cutting v. United States, 169 F. 2d 951 .......... 18

Davis v. United States, 328 U.S. 582... 9, 10, 18, 21, 28

Go-Bart Importing Co. v. United States, 282 U.S.

OD as chavsendnsdadeak Censnnedeeedeses wens 11, 23

Gouled v. United States, 255 U.S. 298 ....... 10, 11, 28

Harris v. United States, 390 U.S. 234 ........... 9

Harris v. United States, 331 U.S. 145 ........... 13

Higgins v. United States, 209 F. 2d $19 ...... 29, 30, 34

Johnson v. United States, 333 U.S.10.... 11, 12, 33, 34

Johnson v. Zerbst, 304 U.S. 458 ............000. 29

Jones v. United States, 362 U.S. 257 .......... 8, 19, 21

Judd v. United States, 190 F. 2d 649 ............ 34

Kwong How v. United States, 71 F. 2d 71 ....... 24

Lanza v. New oe Sere 11

McDonald vj United States, 355 U.S. 451 ........ 10

Montana v. United States, 332 F. 2d 987 ........ 29

Sartain v. United States, 303 F. 2d 859 .......... 18

Simmons v. Bomar, 349 F. 2d 365 .............. 29

Spahr v. Unilted States, 409 F. 2d 1803 .......... 28

———

iii

Page

Stoner v. California, 376 U.S. 483 ........ 20, 21, 38, 39

po rere 14

United States v. Allsenberrie, 424 F.2d 1209.... 8

United States v. Bland, 458 F. 2d1............. 28

United States v. Eldridge, 302 F. 2d 43 . 15, 18, 21, 22, 23

United States v. Evans, 194 F. Supp. 90 ........ 12

United States v. Goodman, 190 F. Supp. 847 .... 18

United States v. Jaskiewicz, 433 F. 2d 415 ....... 28

United States v. Jeffers, 342 U.S. 48 ............ 12

United States v. Legato, 480 F. 2d 408 .......... 8

United States v. Love, 472 F. 2d 490 ........... . 3,5,8

United States v. Matlock, 476 F. 2d 1083 rev’sd

Sa MEG. WUD. sé vgwena waked de xo eee 15, 25, 35, 36, 39

United States v. Prudden, 424 F.2d 1021 ........ 28

United States v. Rabinowitz, 339 U.S. 56 ........ 13

United States v. Sclafani, 265 F. 2d 408 ......... 28

United States v. Sferas, 210 F. 2d 69 ............ 18

Vale v. Louisiana, 399 U.S. 30 ...............06. 13

Von Kichelberger v. United States, 252 F.2d 184. 15,

16, 24

Wea v. Colerada, 308 UG. BB on. oc ccccccccccess 10

Wong Sun v. United States, 371 U.S. 471 ........ 34

Zap v. United States, 328 U.S. 624 .......... 18, 21, 28

fOr EY RO REPRE BOS OD RAY eS REED

Te » AIPORT TI GE Ke Na a ne

Statutory and Rules Citations: Page

BP Ue COED FED co nvvccensevecvscccsvescness 2, 3, 4

28 U.S. Code §$1254(1) ............cccccccccces 2

Rule 41—Federal Rules of Criminal Procedure .. 28

3 Constitutional Amendment:

Fourth Amendment ............ccese00- Multiple cites

Sl ee AEN cheba aie Oy

Seeiaiat _)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

—_—p——

SN asistencia

—_>—_—_

DELMAR L. MARKHAM and BRUNO PIET,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondents.

—p~——

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SEVENTH CIRCUIT

—_—p_———

Petitioners, by their Attorneys, James D. O’Connell and

Thomas H. Ramsey, pray that a Writ of Certiorari issue

to review the judgment heretofore entered against them

by the United States Court of Appeals for the Seventh

Circuit.

RES. Rh nein ta Skin cuit to IRS ad ae A eR igre les vials

1, OPINIONS BELOW

Petitioners were convicted in the United States District

Court for the Northern District of Illinois, Eastern Divi-

sion, by a jury, on November 13, 1973, of a single violation

of Title 18—United States Code—§659. On December 19,

1973, and subsequent to the trial court’s denial of Peti-

tioners Motion for New Trial, and sentencing, timely Notice

of Appeal was filed (Appendix A). On May 20, 1974, the

Court of Appeals for the Seventh Circuit affirmed Peti-

tioners convictions. The written opinion of the Court is

annexed at Appendix B. On July 18, 1974, the Court of

Appeals denied Petitioners application for Rehearing En

Banc, said order being set forth at Appendix C.

2. JURISDICTION

The opinion and judgment of the Court of Appeals for

the Seventh Circuit was entered on May 20, 1974. Re-

hearing was denied on July 18, 1974. The jurisdiction of

this Court is invoked pursuant to the provisions of Title

28—United States Code—§1254(1).

3. QUESTIONS FRESENTED

Petitioners present the following questions for this

Honorable Court’s consideration:

Did the Trial Court commit reversible error in overruling

Petitioner’s Motion to suppress evidence wherein said evi-

ie Bee DW PET OTS

dence was the product of a warrantless and otherwise

illegal search and seizure made on private property in

violation of the Fourth Amendment to the Constitution?

IL.

Did the Trial Court commit reversible error by per-

mitting into evidence certain items seized without a warrant

and pursuant to an exploratory search made prior to ob-

taining Markham’s alleged volutary consent to search his

privately leased premises in violation of the Fourth Amend-

ment to the Constitution?

III.

Did the Court of Appeals misconstrue and misapply the

thrust and intent of this Honorable Court’s recent decision

in United States v. Matlock, 415 U.S. 164, 42 U.S.L.W.

4252 (1974)?

4. CONSTITIONAL AND STATUTORY PROVISIONS

(a) The Fourth Amendment to the Constitution pro-

vides:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, 2gainst unreason-

able searches and seizures shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by oath and affirmation, and particularly

describing the place to be searched and the person

or things to be seized.”

(b) Title 18—United States Code—{659, provides in

pertinent part:

“Whoever embezzles, steals, or unlawfully takes,

carries away, or conceals, or by fraud or deception

obtains from any . . . railroad car, wagon, motor

truck, or other vehicle, . . . station, station house,

platform, or depot . . . with intent to convert to his

own use any goods or chattels moving as or which

are a part of, or which constitute an interstate or

foreign shipment of freight, express or other pro-

perty, or whoever buys or receives or has in his

possession any such goods or chattels, knowing the

same to have been embezzled or stolen...”

5. STATEMENT OF THE CASE

The record in the matter at bar reflects that the Govern-

ment accused Delmar L. Markham, Bruno Piet and Russell

Johnson with the unlawful possession of 29 cartons of

Black and Decker lawn trimmers knowing that said trim-

mers had been stolen from the Chippewa-McClain Motor

Freight Company, at Bedford Park, Illinois, the goods

being part of an interstate shipment.

At trial, Russell Johnson, testified for the Government

to the effect that he and Piet had been responsible for the

actual theft of the lawn trimmers. That in particular, Piet

had approached him on March 19, 1973, and advised that

he had some merchandise. Johnson, a truck driver, finished

his work at Chippewa and left the premises. Once away

from the terminal, Johnson looked inside his truck and

examined the merchandise that Piet had placed there. (Tr.

183-191).* Johnson then called Markham and asked if he

wanted to buy the trimmers. (Tr. 191-192). According

to the witness, Markham agreed to buy the merchandise,

and gave Johnson directions for delivery. (Tr. 192).

*Note: “Tr’ refers to the trial transcript with appropriate pagi-

nation.

Following Markhain’s instructions, Johnson proceeded to

Able Warehouse and delivered the trimmers to a man

named Frank. (Tr. 193). Johnson then related that the

following day (March 20th), he talked to Markham again,

and the deal was finalized.

On March 23, 1973, Russell Johnson was interviewed by

the I'.B.I. in relation to the alleged theft at which point

Johnson admitted the theft and implicated both Markham

and Piet. (Tr. 196-197).

On November 13, 1973, the jury returned a verdict of

guilty as charged in the Indictment as to both Markham

and Piet, and on December 19, 1973, Piet was sentenced

to a term of eighteen months and Markham to a term of

three years. On direct appeal to the Seventh Circuit, Peti-

tioners convictions were affirmed.

6. REASONS FOR GRANTING THE WRIT

Petitioners, herein, contend that the Trial Court failed

to recognize specific violations of Petitioners fundamental

constitutional right to be free from unreasonable searches

and seizures and pursuant thereto, permitted evidence to

be presented at trial in violation of the Fourth Amend-

ment to the Constitution. The Court of Appeals affirmed

tlie conviction obtained in the District Court.

Petitioners also contend that during the course of ap-

peal, the Seventh Circuit, in affirming the conviction, relied

heavily upon the rationale of the Supreme Court as set

out in United States v. Matlock, 415 U.S. 164, 42 U.S.L.W.

4252 (1974), but that in so doing, misconstrued and mis-

applied the thrust of this Court’s decision. That had the

Court of Appeals properly applied the ramifications of

Matlock, reversal would have been required.

ao a Rae ARS sek RAS,

PC Re MIO SE GT Dw

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN

OVERRULING PETITIONER'S MOTION TO SUPPRESS EVI-

DENCE WHEREIN SAID EVIDENCE WAS THE PRODUCT

OF A WARRANTLESS AND OTHERWISE ILLEGAL SEARCH

AND SEIZURE MADE ON PRIVATE PROPERTY IN VIOLA-

TION OF THE FOURTH AMENDMENT TO THE CONSTITU-

TION?

On November 12, 1973, the trial court held a hearing on

Petitioners Motion to suppress evidence. During the course

of the hearing, testimony was taken from one Frank Smith,

a fork lift operator at Able Warehouse. (H-15).** Smith

related that he first met Petitioner Markham in January,

1973, when Petitioner inquired about available warehouse

space. (H-16, 17). Smith showed Markham what was then

available, but stated that he was not authorized to quote

rental rates and that Markham would have to contact the

owner of Able Warehouse to negotiate a lease and a rental

price. (H-18). Smith then testified that he was aware that

Markham did, in fact, lease space at Able Warehouse and

that the space was leased to Markham during the month

of March, 1973, and for several months thereafter. (H-19).

The witness related that on March 23, 1973, two F.B.I.

Agents came to the wareliouse and inquired of the witness

whether a “Lee Markham” worked there. The Agents were

told that no one by that name worked at the warehouse.

The agents continued theier inquiry as to the ownership

of the facility. Again, Smith related that ‘‘Lee Markham”

was not the owner of Able. (H-20). Agent Flanagan then

related that he had information that Markham worked for

** Note: “H” refers to hearing transcript with appropriate pagi-

nation.

Able. Smith denied that Markham worked there, but volun-

teered information to the effect that a ‘‘Lee” rented space

in the warehouse. (H-20).

Agent Flanagan asked to see Markhami's space, and in-

dicated that he was particularly interested in locating some

Black and Decker lawn trimmers that had been stolen.

Smith agreed to show the agents the space but denied any

knowledge of Black and Decker lawn trimmers. When

Smith and the agents arrived at Markham’s space, the door

was closed, but unlocked. (Earlier, Smith had testified that

Markham had rented space that was entirely enclosed

[H-19]). Subsequent to opening the door, the agents dis-

covered several cartons of Black and Decker tools. (H-21).

Smith related that the agents remained in the room

for about 15 minutes; that he had made no attempt to con-

tact Markham and secure the lessee’s permission to let the

agents into the space; and that he knew in advance that

the agents were looking for particularized merchandise.

(H-21, 22).

Smith then related that the agents ordered him to lock

the room and not to let anyone take any merchandise out

of the room including Markham. (H-23).

On Monday, March 26, 1973, Smith testified that Agent

Flanagan and another agent came back to the warehouse,

this time in the company of Markham. At the agents direc-

tion, Smith unlocked the room and the agents and Markham

entered. The Black and Decker cartons were thereupon

removed from Markham’s storage space by the agents.

(H-23, 24).

At the termination of the hearing, the trial court denied

Petitioners Motion to Suppress Evidence (H-77, 78).

;

Pa hac tae AAT

POPE. AAO ROR BE we Msc = ys

The issue herein polarizes on the warrantless exploratory

search conducted by Government agents on March 23, 1974,

of privately leased warehouse space; and the effective

seizure of Black and Decker merchandise subsequent to

said search.

Petitioners,: maintain that the search conducted by

Government agents on March 23, 1974, violated the pro-

visions and protections of the Fourth Amendment to the

Constitution and that the evidence discovered and seized

should have been excluded from introduction during the

trial in the matter at bar.

The Fourth Amendment to the Constitution provides:

“The right of the people to be secure in their per-

sons, houses, papers and effects, against unreason-

able searches and seizures shall not be violated, and

no warrants shall issue but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched and the persons

or things to be seized.”

The record reflects that on the morning of March 23,

1974, Special Agents Flanagan and Roberts interviewed

Russell Johnson in connection wich the alleged theft of

Black and Decker lawn trimmers. During the interview,

1 Relative to Petitioner Piet’s standing to challenge the validity of

a search and seizure, this Court has held that a person “aggrieved” is

one who has been charged with the possession of certain contraband.

Jones v. United States, 362 U.S. 257 (1960); see also: United States v.

Love, 472 F. 2d 490 (5th Cir. 1973) ; United States v. Legato, 480 F.

2d 408 (5th Cir. 1973); and United States v. Allsenberrie, 424 F. 2d

1209 (7th Cir. 1970). In Allsenberrie, the 7th Circuit said: “Thus the

requirement of the Jones case is not that proof of possession alone be

sufficient to convict but only that possession be an essential element of

the offense.” On the record at bar, Piet has standing to challenge the

search.

Johnson made a full confession regarding the theft and

directed the agents to Abel Warehouse where he allegedly

delivered the merchandise on the instructions of Petitioner.

Markham. Armed with this information, the agents pro-

ceeded to Abel Warehouse and subsequent to some dis-

cussion with fork lift operator Smith, obtained permission

to “inspect” the Markham storage space. Upon discovering

the Black and Decker cartons, the «gents instructed Smith

to lock the room and not permit entry or removal of any

merchandise from the room by anyone including Petitioner

Markham. The record also reflects that the agents did not

attempt to obtain a search warrant despite the fact that

they had more than likely sufficient probable cause to apply

for a warrant through the interview with the thief, John-

son; and despite the fact that the information was received

by the agents during the course of a normal work day

when a Magistrate was available to issue the warrant.

The issue here consists of two interrelated elements:

(a) conducting an exploratory search without a warrant;

and (b) the search of private premises with the “consent”

of a third party.

(a). The Fourth Amendment forbids unreasonable,

warrantless searches and the overwhelming wealth of case

law prohibits warrantless searches except in a few, nar-

rowly defined instances. Agnello v. United States, 269 U.S.

20 (1925).?

2 Automobile searches where there exists a likelihood that the evi-

dene will be removed; Carroll v. United States, 267 U.S. 182 (1925);

Coolidge v. New Hampshire, 403 U.S. 443 (1971); Chambers v. Maroney,

399 U.S. 42 (1970). Search incident to a valid arrest, Chimel v. Cali-

fornia, 395 U.S. 752 (1969). Seizure of evidence found in “plain view.”

Harris v. United States, 390 U.S. 234 (1968); and searches pursuant to

a valid consent, Davis v. United States, 328 U.S. 582 (1945).

WE Pa Oy Adal HORNA wn

\ Dele lta ERA a RRR ARS Se ne UNE OIN TOs

The, Fourth Amendment is designed for the protection

of the privacy of the individual, or, as Mr. Justice Holmes

put it, “his right to be let alone.” Davis v. United States,

328 U.S. 582 (1945). This Court has described this right

as “one of the unique values of our civilization,” McDonald

v. United States, 335 U.S. 451 (1948) ; and “the very essence

of constitutional liberty.” Gouled v. United States, 255

U.S. 298 (1921).

“The security of one’s privacy against arbitrary

intrusion by the police is ‘at the core of the Fourth

Amendment ***,’ Wolf v. Colorado, 338 U.S. 25.

An intrusion by the police in the form of a search

and seizure is arbitrary, and therefore ‘unreason-

able, if not authorized by law.***”

Cohen v. Norris, 300 F. 2d 24 (9th Cir. 1962).

‘\

The activity prohibited by the Fourth Amendment is the

invasion of privacy by means of unreasonable searches and

seizures. Generally, a search is considered to be unreason-

able if it is not conducted under the authority of a search

warrant issued by an appropriate magistrate.’

The word “houses” in the Fourth Amendment has been

interpreted by the courts to include private offices and the

private portions of businesses as well as dwelling houses

and the curtilages which surround them:

“To be sure, the Court has been far from niggardly

in construing the physical scope of Fourth Amend-

ment protection. A business office is a protected

area, and so may be a store. A hotel room, in the

eyes of the Fourth Amendment, may become a per-

sons ‘house’ and so, of course may an apartment.

3 The exceptions to the general rule are set out in Note 2, supra.

ib RM AMM me |

An automobile may not be unreasonably searched.

Neither may an occupied taxicab. Yet, without at-

tempting either to define or to predict the ultimate

scope of Fourth Amendment protection, it is obvious

that jail shares none of the attributes of privacy of

a home, an automobile, and office or a totel room.***”

Lanza v. New York, 370 U.S. 139 (1962).

It is well settled that the Supreme Court has extended

the protections of the Fourth Amendment to offices and

other places of business. Gouled v. United States, 255 U.S.

298 (1921); and Go-Bart Importing Co. v. United States,

282 U.S. 344 (1931). Likewise, officers who gain entrance

to private premises under the color of law, i.e., under the

authority of their office, must have a legal basis for the

intrusion. In the leading case, a police lieutenant received

information that unknown persons were smoking opium

in a particular hotel. The officer and four Federal Nar-

eotics Agents proceeded to the hotel and knocked on the

door, and upon inquiry from within, identified thumselves.

After a short delay, the defendant opened the door and

the lieutenant said, “I want to talk to you a little bit.” The

defendant stepped back acquiescently and admitted the

officers to the room. The defendant denied that there was

the smell of opium in the room and was then placed under

arrest. A subsequent search disclosed opium and a warm

opium pipe. In holding the search to be illegal, the

Supreme Court said:

“Thus the Government is obliged to justify the ar-

rest by the search and at the same time to justify

the search by the arrest. This will not do. An officer

gaining access to private [living] quarters under

color of his office and the law which he personifies

must then have some valid basis in law for the in-

ee Re ae ae ee

Wd Analaalee Ea os

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isridens

Bru faces

trusion. Any other rule would undermine ‘the right

of the people to be secure in their persons, houses,

papers and effects,’ and would obliterate one of the

most fundamental distinctions between our form of

government, where officers are under the law, and

the police-state, where they are the law.”

Johnson v. United States, 333 U.S. 10 (1948).

Similarly, where there is evidence in the record to sup-

port the proposition that the purpose of the entrance onto

private premises was to conduct a search without any legal

justification, the subsequent search and seizure will be held

to be illegal. This is the rule even where the entrance is

ostensibly for another purpose. Thus, where two plain-

clothes officers and the victim of a robbery went into the

home of a suspect to “talk with him” and, after gaining

entrance, saw some of the stolen articles, the court held

the seizure to be illegal. United States v. Evans, 194 F.

Supp. 90 (D.C.D.C. 1961).

Historically, the one theme that runs through the Sup-

reme Court’s decisions relative to warrantless searches is

a decided preference for searches and seizures with a war-

rant. As the Court has repeatedly asserted, resort to the

warrant process “interposes an orderly procedure,” United

States v. Jeffers, 342 U.S. 48 (1951), involving “judicial

impartiality” whereby “a neutral and detached magistrate”

Johnson v. United States, 333 U.S. 10 (1948), can make

“informed and deliberate determinations” Aguilar v. Texas,

378 U.S. 108 (1964), on the issue of probable cause. To

leave such decisions to the police is to allow “hurried

actions” by those “engaged in the often competitive enter-

prise of ferreting out crime.” Johnson v. United States,

supra.

n° Bon ee, |

In Agnello v. United States, 269 U.S. 20 (1925), this —

Court held that “belief, however well founded, that an

article is concealed in a dwelling [house] furnishes no

justification for a search of that place without a warrant.”

Moreover, since this Court’s decision in Chimel v. Cali-

fornia, 395 U.S. 752 (1969),‘ consideration must be given

to the proposition of when, if ever, a warrantless search —

of premises could be upheld on the grounds that an emer- —

gency would make resorting to the warrant process im-

practicable. A case in points is Vale v. Lousiana, 399 U.S. 30

(1970), wherein the police set up a surveillance of a house

in which Vale was thought to be residing because they had

two warrants for his arrest issued after his bond had been

increased on a pending narcotics charge. When another

person drove up to the house and sounded his horn, Vale

came out, walked to the car and had a conversation with

the driver, looked about cautiously, entered his house,

came back out a few minutes later, looked about again, and

proceeded to the car. Convinced that they had just wit-

nessed a sale of narcotics, the officers approached. Vale

hurried back towards the house, while the driver of the

ear started away. The driver was apprehended, but not

before he swallowed some object. Vale was arrested on

his front steps, after which the police took him inside and

made a cursory inspection of the house to ascertain if

anyone else was present. Minutes later, Vale’s mother and

brother entered the house, at which point the police search-

ed the house and found a quantity of nareoties in the rear

bedroom. The Louisiana Supreme Court upheld the search

* The decision handed down in Chimel, supro, overruled the long

standing rule postulated by the decisions in Harris v. United States,

331 U.S. 145 (1947); and United States v. Rabinowitz, 339 U.S. 56

(1960), which held that warrantless searches would be upheld if con-

ducted pursuant to a valid arrest.

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;

| eee Ihe Se yen RRR Mais 5 aon SRS, REE UE RoR Bre Re LE ct

on the basis that the search had occurred in the immediate

vicinity of the arrest. This Court reversed.

In the matter at bar, the record reflects that no attempt

was made by the Government agents to secure a search

warrant of the premises located at Able Warehouse, not-

withstanding the facts that (1) there was apparently suffi-

cient probable cause to support an application for a war-

rant; (2) the information gathered by the investigating

agents was obtained during the course of a normal working

day when a magistrate was readily available; (3) the in-

vestigators knew exactly what contraband they were seek-

ing, as well as the identity of the suspect; and (4) there

existed no showing or suspicion that any exigent circum-

stances were operating which would have made applying

for a warrant impracticable.

On these facts, then, and following the yardstick set out

by this Honorable Court, i.e., “that the police must, when-

ever practicable, obtain advance judicial approval of

searches and seizures,” Terry v. Ohio, 392 U.S. 1, at 20

(1968); the warrantless search and seizure of contraband

from Petitioner Markham’s privately leased warehouse

space located at Able Warehouse, violated the protections

of the Fourth Amendment and thereby must be declared

unreasonable and illegal. The evidence obtained as the

result of said illegal search should have been suppressed.

(b) The second element relative to this issue, involves

the alleged “consent” to search the Markham warehouse

space obtained from the fork-lift operator, Frank Smith.

The Court of Appeals for the Seventh Circuit, as did the

trial court, relied upon this consent as validating the war-

rantless search of the warehouse space and the ultimate

seizure of the contraband Black and Decker lawn trimmers.

(Op. of the Court, pp. 4. 5).

Per pale SERIES ee |

It is Petitioner’s position that the determination ren-

dered by the Court of Appeals postulates an erroneous

conclusion of law relative to the.element of consent as ap-

plied to the search and seizure effected by Government

agents on March 23, 1973.

In affirming Petitioner’s conviction, the Court of Appeals

applied the following rationale:

“In United States v. Matlock, 415 U.S. 164, 42 US

LW 4252 (Feb. 19, 1974), the Supreme Court reiter- |

ated that permission to search may be obtained from

a third party who possessed common authority over

or other sufficient relationship to the premises or

effects. ‘The authority which justifies third-party

consent does not rest on the law of property...

[but rather] on mutual use of the property by per-

sons generally having joint access or control for

most purposes’ Id. at 4254 n. 7. Frank Smith intro-

duced himself as the warehouse foreman and stated

that he was in charge in the owner’s absence...

Smith freely consented to the F.B.L. search, and he

led the agents to the area where Markham’s goods

were stored ... Whatever Smith’s title, it is clear

that Markham was aware, as a practical matter,

that Smith and the warehouse owner—who posses-

sed the only keys to the common storage room—had

access and control over the common area. We find,

therefore, that Markham had no reasonable expect-

ation of privacy respecting the storage of his goods,

see, United States v. Eldridge, 302 F. 2d 43 (4th

Cir. 1962), and assumed the risk t',at the persons

in charge of the facility might will ngly and volun-

tarily grant permission for agents to enter and

search the common storage area. See, United States

v. Matlock, supra; Von Eichzlberger v. United

ae |

sei RE Se

OOM ELIDA Ee PEATE VO es ide 0 a

States, 252 F. 2d 184 (9th Cir. 1958).” (Op. of the

Court, pp. 3, 4.)

In applying the foregoing rationale, the Court of Appeals

apparently overlooked several significant facts, ie. (a)

Smith testified at trial that he was a fork-lift operator;

[Tr. 15]; (b) Smith testified that Markham rented the

smaller of the spaces available because the room had a door

and could be kept locked to protect his merchandise [Tr.

17]; (c) Smith testified that he did not have the authority

to quote rental prices and that Markham would have to

contact the owner of the warehouse in order to consummate

the lease [Tr. 18]; (d) Smith testified that upon viewing

the Black and Decker lawn edgers in Markham’s room,

the agents ordered him to lock the door and not to let

anyone take anything out of the room, including Markham

[Tr. 23]; (e) Markham testified at the suppression hearing

that he did possess a key to his rented space and that he

had given specific instructions that his space was to be

kept locked at all times [H. 42]. There are numerous other

discrepancies in the facts utilized to support the opinion

affirming the conviction below but the issue of consent as

related to a valid search pivots on the foregoing. The facts

in the matter at bar, are not complex and can be easily

itemized :

1. Government agents. investigating an alleged theft

of goods from interstate eoimerce, received infor-

mation that some of the goods had been delivered

to Able Warehouse.

2. The information relative to the stolen merchandise

was received by the agents from a person actually

involved in the theft.

3. The Government agents received their information

on a Friday morning, a reguiar working day, and

1 at etiam _)

under circumstances whereby a magistrate was

readily available to make a determination as to prob-

able cause upon the consideration of an application

for a search warrant.

*. Tue Guverument agents lafied to make an applica-

tion for search warrant.

5. The Government agents entered the premises at

Able Warehouse under the “color of law” and there-

by requested and received the consent of an em-

ployee cf the Warehouse to search a privately

leased room, which was fully enclosed, thus elimi-

nating the contents thereof from the plain view of

the agents.

6. The Government agents, upon determining the con-

tents of the leased room, orcered the employee to

lock the door and not to permit anything to be re-

moved by anyone, thus the entire contents of the

room were effectively seized.

The Government seeks to justify the search and seizure

of goods from Petitioner Markham’s leased warehouse

space on the grounds that the fork-lift operator, Frank

Smith, voluntarily consented to the search. The Court of

Appeals upheld this proposition and affirmed conviction.

Petitioners respectfully suggest that the Court of Appeals,

in affirming the conviction, misapplied the apposite case

law and in so doing, has misdirected the thrust of the

Fourth Amendments prohibition against unreasonable

searches and seizures. The argument herein focuses on the

validity of Smith’s “consent” to the search of Markham’s

leased room in a privately owned warehouse.

It is a well settled proposition under constitutional law

that the right of privacy encompassed by the Fourth

Reale bata ENO a ate AK ater

PBaiissecsct sttisiceedinss vara iccnies

Amendment is personal and may not be waived except by

that person to whom it belongs. Davis v. United States,

328 U.S. 582 (1945); and Zap v. United States, 328 US.

624 (1945). There is a single exception to the established

rule, and that exception occurs when it is shown that two

or more persons have equal rights in the property to be

seized or the place to be searched. United States v. Sferas,

210 F. 2d 69 (7th Cir. 1954), cert den. 347 U.S. 935; United

States v. Goodman, 190 F. Supp. 847 (D.C. Ill. 1961) ; United

States v. Eldridge, 302 F. 2d 463 (4th Cir. 1962); Cutting

v. United States, 169 F. 2d 951 (9th Cir. 1958) ; and Sartam

v. United States, 303 F. 2d 859 (9th Cir. 1962).

In the matter at bar, the Government asserted and the

Court of Appeals concluded that the consent to search

Markham’s warehouse space, given the agents by Frank

Smith, was valid on the grounds that Smith possessed

equal rights to the premises and that his possession and

control of the premises was co-equal with that of Markham.

Thus Markham could have no expectation of privacy. The

conclusion, according to the apposite case law, is patently

erroneus. The record reveals the following: (1) Able Ware-

house was owned and operated by one Thomas Wisniewski.

(2) Petitioner Markham entered into a lease agreement

with Wisniewski for the use of particularly described space

at Able Warehouse (See: Govt. exhibit 17); (3) Frank

Smith was employed as a fork-lift operator at Able ware-

house; (4+) The record is void of any evidence to support

the conclusion that Smith had any proprietary rights in

the premises at Able Warehouse; (5) The record is void

of any evidence which would tend to establish that Smith

had heen delegated the authority to manage the property

known as Able Warehouse, or to exercise any control over

the premises outside the limitations of his duties as a fork- _

lift operator.®

This Court has considered the exact proposition at law

presented herein on several occasions. In Jones v. United

States, 362 U.S. 257 (1960), the accused was in the apart-

ment of a friend who had given him permission to use it.

The premises were searched by federal officers and a quant- _

ity of narcotics were found and seized. Jones was arrested _

and charged with violating the federal narcotics law. Sub- _

sequent to conviction and affirmation of said conviction in

the Court of Appeals, this Court ruled that anyone on the

premises where a search occurs may challenge its legality —

by way of a motion to suppress, when the fruits of the

search are proposed to be used against him. “In cases

where the indictment itself charges possession, the defen-

dant in a very real sense is revealed as a person aggrieved

by an unlawful search and seizure.”

Although Jones primarily concerns the rule related to

standing to challenge a search, the decision is of great im-

port to the question of third party consent to search and

seizure. Jones significantly extends the scope of Fourth

Amendment protection and declares that the rules of pro-

perty law in which the control test is rooted, must not be

permitted to infringe upon the sanctity of an individual’s

constitutional rights.

In Chapman v. United States, 365 U.S. 610 (1961), a

lessor summoned state police officers after detecting the

odor of whisky mash and requested a search of the leased

5 Smith testified that he consented to the search because he thought

that by so doing he would be complying with the wishes of his em-

ployer (Tr. at 20, 21). However, it is significant that the Government

failed to produce Wisniewski as a corroborating witness to the implied

largess of his employee.

Ag SG SNELL. EERE LEME REPTILE AE a el

premises. The police, acting upon the lessor’s request,

found an unregistered still and a quantity of mash, and

arrested the lessee when he returned. Thereafter, federal

officers, acting without a warrant, seized the evidence

which was later admitted into evidence over the defendant’s

objections.

This Court reversed, holding that the search and seizure

was illegal. The Court stated that there was no justifiable

reason for the officers failing to obtain a search warrant.

The Court likewise rejected the contention that a land-

lord’s absolute right to enter leased premises to view waste

could be delegated to police officers. The Court cited the

Jones warning that property law should not be permitted

to infringe upon the constitutional rights of the individual

to be free from unreasonable searches and seizures.

In Stoner v. California, 376 U.S. 483 (1964), this Court

provided additional insight on the issue of third party

consent searches. Stoner was convicted of armed robbery.

At the trial, the court, over the defendant’s objections,

admitted into evidence several articles seized by the police

from his hotel room during a search consented to by the

hotel clerk. This Court unanimously held that the search

was unlawful because it was neither justified as incident

to a lawful arrest nor rendered lawful by the hotel clerk’s

consent:

“Our decisions make it clear that the rights pro-

tected by the Fourth Amendment are not to be

eroded by strained applications of the law of agency

or by unrealistic doctrines of apparent authority ...

It is important to bear in mind that it was peti-

tioner’s constitutional right which was at stake here

and not the night clerk’s or the hotel’s. It was a

right, therefore, which only the petitioner could

a TT

pea

waive by word or deed, either directly or through

an agent. It is true that the night clerk clearly and

unambiguously consented to the search. But there

is nothing in the record to indicate that the police

had any basis whatsoever to believe that the night

clerk had been authorized by the petitioner to permit

the police to search the petitioner’s room.”

The Stoner decision clearly recognized the personal nature

of one’s Fourth Amendment rights. The case is on all

fours with the matter at bar. Here, the record reflects that

Markham had executed a valid lease with the owner of

Able Warehouse contracting for the exclusive use of parti-

cularized storage space. Smith, subsequently consented to

the agents request to search said space without a warrant.

There is nothing in the record to support the conclusion

that Markham had ever given Smith permission to permit

anyone to search his room, and there is nothing to support

the conclusion that the police had any reason to believe

that Markham had given such permission. Smith then,

takes on the same character as the night clerk in Stoner.

He is an employee who consented to a search by police,

thus effectively waiving the constitutional rights of the

defendant, a position that is expressly prohibited by the

apposite decisions of this Court as set out in Davis v.

United States, supra; Zap v. United States, supra; Jones,

supra; Chapman, supra; and Stoner.

In affirming Petitioners conviction, the Seventh Circuit

relied on two cases which are not only factually distinguish-

able, but completely inapposite to the issue presented there-

in. In United States v. Eldridge, 302 F. 2d 463 (4th Cir.

1962), the issue polarized upon the consent to search an

automobile which belonged to the defendant but which

had been loaned to one Nethercott. The panel held, (with

”

‘x

| . .

Boreman, J dissenting), that Nethercott “was clothed in

rightful possession and control and could do in respect to

the automobile whatever was reasonable and not incon-

sistant with its entrustment to him.” Continuing, the court

reasoned, “Although the defendant knew of the presence

of the stolen radios in the trunk, he apparently did not

think it worthwhile to take the precaution of forbidding

his bailee to open the trunk or permit anyone to look into

it. He reversed no exclusive right of privacy in respect

to the trunk when he delivered the key. In responding as

he did to the police, Nethercott did not exceed the authority

Eldridge had seemingly given him.”

The dissent in Eldridge is illuminating. Judge Boreman

reasons as follows:

“Tt is well recognized however, that, as a general

rule, whether there is reasonable ground for the

search is to be determined prior thereto by an im-

partial official authorized to issue warrants, not by

a police officer who may be overzealous in the per-

formance of his law enforcement duties. (Citations

omitted. )

“A search is unreasonable within the meaning of the

Fourth Amendment unless (1) authorized by a valid

search warrant; (2) incident to a valid arrest; (3)

or is made in other exceptional circumstances which

dispense with the need for a search warrant. (Cita-

tions omitted.)

“In the case at bar, the search of Eldridge’s ear was

not authorized by a valid search warrant .. .”

“Furthermore, there was no arrest, lawful or other-

wise, at the time of the search and consequently the

authority for a search... as incident to a lawful

arrest is absent.”

ined)

“The Government seeks to validate the search and —

the use of the seized evidence against Eldridge by

Nethercott’s consent to the search. Of course, it is

conceded that where a defendant gives consent to

a search of his own property (whether owned, rented

or otherwise occupied or controlled), the need for

a search warrant is obviated. An entirely different

question is posed where the police rely on the con-

sent of one person to validate a search in the course

of which evidence is seized and later used against

another person having standing to seek suppression

of the evidence but who did not consent to the search.

The issue then is whether the person against whom

the evidence is to be presented in a criminal pro-

secution is to be bound by the consent of another

to the search.

“This search was an exploratory one, made solely

in the hope of finding stolen guns in a particular

automobile ... ‘{[T]Jhere is no formula for the de-

termination of reasonableness. Each case is to be

decided on its own facts and circumstances.’ Go-

Bart Co., v. United States, 282 U.S. 344. The record

does not reveal any ‘exceptional circumstances’ to

justify this search and seizure.” 302 F. 2d at 466,

467, 468.

The decision in Eldridge, then pivots on the court’s con-

clusion that Nethercott possessed sufficient and co-equal

right to consent to the search even though his control over

the vehicle was temporary. There is no showing in the re-

cord at bar that Frank Smith possessed any rights to con-

trol or possession of Markham’s leased space. Eldridge

offers no support for the decision to affirm in the court

below.

The Seventh Circuit also cites Von Eichelberger v.

United States, 252 F. 2d 184 (9th Cir. 1958), as supportive

of affirmation. A close examination of the case reveals

that reliance upon the merits is misfounded. Quoting from

the court’s opinion in Von Eichelberger:

“After the transfer of possession from von Eichel-

berger to Terzian, he, Terzian, stored the guns in

a garage belonging to and under the control of one

Trost. Later, Trost summoned Government in-

vestigating agents who entered Trost’s garage at

his request and opened the boxes in which the guns

were contained. They had no search warrant.

The premises were entirely under Trost’s control.

He alone had a key. He willingly and voluntarily

granted permission for the agents to enter and

search. This was a search with the permission of

the person in charge of the premises. (Citations

4 omitted.) ‘

: Neither von Eichelberger nor Terzian were Jessees

or owners of the premises searched, nor can they

be said to be lawful occupants of the premises...

‘(T]he question seems well settled * * * that one who

is not the owner, lessee, or lawful occupant of the

premises searched cannot raise the question under

the Fourth Amendment of unlawful search and

seizure.’ Kwong How v. United States, 71 F. 2d 71,

E 75 (9th Cir. 1934).”

From the foregoing, it would appear that had either

Terzian or von Eichelberger possessed proprietary rights

+» in the Trost garage, the issue would have changed com-

plexion. Notwithstanding the opinion therein, the finding

of the court as well as the underlying facts are not apposite

to the matter at bar.

a a a

oe ee ee ee ae a

AN as oo “7

Finally, the Seventh Circuit relied heavily upon this —

Court’s recent decision in United States v. Matlock, 42 U.S. ©

L.W. 4252 (1974), to support affirmation. Petitioners here- ©

in submit that the court below has misconstrued the thrust —

of this decision, and the reasons therefore are fully set out

under issue III, post.

On the foregoing facts and relevant case law, Petitioners |

respectfully suggest that the District Court erred in over- —

ruling the Motion to Suppress evidence wherein said evi- |

dence was obtained absent a warrant and upon the consent ~

of a third party whose authority to consent thereto is not -

established under the current application of the law in sup-

port of Fourth Amendment protections. The affirmation |

of Petitioners convictions in the court below should be re-

versed.

Il.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY

PERMITTING INTO EVIDENCE, CERTAIN ITEMS SEIZED

WITHOUT A WARRANT AND PURSUANT TO AN EXPLORA-

TORY SEARCH MADE PRIOR TO OBTAINING MARKHAM’S

ALLEGED VOLUNTARY CONSENT TO SEARCH HIS PRI-

VATELY LEASED PREMISES IN VIOLATION OF THE

FOURTH AMENDMENT TO THE CONSTITUTION?

The record herein reflects that on March 26, 1973, Special

Agents Flanagan and Freiman went to Markham’s house

in Tinley Park, Illinois, where they allegedly informed

Markham that he was a suspect in the theft of Black and

Decker lawn trimmers travelling in interstate commerce.

At the suppression hearing held prior to trial, the facts

underlying the agents visit to the Markham residence are

in dispute. However, Petitioners maintain, that even taking

the agents testimony as being completely true, the sub-

sequent search conducted at Able Warehouse is indelibly

eee |

tainted. In addition, the record further reflects that the

trial court failed to rule on the validity of Markham’s

alleged voluntary consent to the search. (See: Hearing Tr.

at 77, 78).

The record reveals that subsequent to some discussion

relative to the theft of the Black and Decker merchandise,

Flanagan and Freiman “suggested” that Markham accom-

pany them to Able Warehouse to “inspect” the space Mark-

ham leased there. Markham accompanied the two agents

in their car. Upon arriving at Able Warehouse, the agents

advised Markham that they intended to search the pre-

mises and that they wanted his consent to do so. The re-

cord at this point is in dispute. Flanagan testified that he

requested that Markham execute a consent to search form,

and that Markham agreed to sign the form freely and

voluntarily. Markham, on the other hand, testified that

Flanagan produced the form, demanded execution of the

consent to search, and further advised Markham that he

was aware of the contents of the room, anyway, because

of the search conducted the previous Friday. Notwith-

standing which account is held to be factual, Markham

executed the consent to search form; the agents proceeded

into the warehouse and confiscated the Black and Decker

cartons. Markham was not arrested subsequent to the

seizure.°

The facts underlying the issue at bar are as follows:

1. Agent Flanagan conducted a search of Markham’s

leased warehouse space on Friday. March 23, 1973,

without a warrant.

*On August 29, 1973, a warrant issued for the arrest of Markham

and the two co-defendants. The warrant was executed on August 30th

and defendants were released on bail.

COA ILI RE ASOD on By oe

ASSO

2. The alleged contraband discovered subsequent to —

the March 23rd search was effectively seized pur- |

suant to Flanagan’s orders.

3. Flanagan and another agent “interviewed” Mark-

ham at his home on Monday, March 26, 1973; where- _

upon Markham was “invited” to accompany the

agents on an “inspection” of his warehouse space.

4. Flanagan was totally aware of the contents of Mark- —

ham’s warehouse space at the time he requested (or —

demand) Markham’s consent to search.

Markham was not placed under arrest at the point

of seizure.

6. Flanagan did not possess a warrant to search the

premises at Able Warehouse, nor was an application

made for said warrant.

The question raised herein focuses on the activity of

Agent Flanagan between the time he received his infor-

mation relative to the involvement of the accused and the

execution of the consent to search form by Petitioner Mark-

ham. It is Petitioners position that Flanagan’s activity

during said period fatally taints the alleged voluntary con-

sent to search. The record supports this position. It is

clear and uncontroverted that Flanagan failed to apply

for a search warrant on Friday, March 23rd; and it is

equally clear that Flanagan caused, under the color of his

office, a search and seizure to be made on that date at Able

Warehouse. On Monday, March 26th, Flanagan inter-

viewed Markham; advised him that he is a suspect in an

alleged theft from interstate commerce and “invites” Mark-

ham to drive to his warehouse for the purpose of inspecting

the premises. Upon arrival at the warehouse, Flanagan

.persuaded Markham to execute written consent to search

the premises. If we take Flanagan’s testimony as being

completely true, then it is established that Flanagan failed

to advise Markham of his visit to the warehouse the pre-

vious Friday and of the fact that Flanagan had already

conducted his search and knew that the contraband was

there. (Tr. 284). Flanagan also admitted that he had not

sought a search warrant on Monday, March 26th.

Petitioners herein contend that the execution of the writ-

ten consent to search by Markham was nothing more than

an attempt by Flanagan to legitimatize an already illegal

search; that an experienced agent such as Flanagan was,

would know that the initial search conducted on the 23rd

violated the provisions of the Fourth Amendment as well

as Rule 41, Federal Rules of Criminal Procedure with the

potential result being that the agents case against the

defendants had been prejudiced by his failure to seek and

obtain a valid warrant to search the premises at Able Ware-

house.

As was demonstrated in the argument in support of issue

I, ante, the right of privacy encompassed by the Fourth

Amendment is personal and may be waived except by that

person to whom it belongs. Davis v. United States, 328 US.

582 (1945); and Zap v. United States, 328 U.S. 624 (1945).

Yet, even though it is possible for a criminal suspect to

waive his right to privacy in relation to a search and

seizure, such a waiver must be executed freely, vountarily,

and without a hint of deception or coercion. Gouled v.

United States, 255 U.S. 298 (1921) ; United States v. Bland,

458 F. 2d 1 (5th Cir. 1972); United States v. Jaskiewicz,

433 F. 2d 415 (3rd Cir. 1970) ; United States v. Prudden,

424 F. 2d 1021 (5th Cir. 1970) ; Spahr v. United States, 409

F. 2d 1303 (9th Cir. 1969) ; Cohen v. United States, 405 F.

2d 34 (8th Cir. 1968); and United States v. Sclafani, 265

F’. 2d 408 (2nd Cir. 1959).

LRG STOEL, GRE RIE LES SOIR RLS >

The record here reveals that the search conducted on

March 26th was neither incident to a valid arrest nor pur-

suant to a warrant. For this search to be upheld it would

be necessary to show that Markham voluntarily consented

to it. The ground rules for determining whether purported

consent validates a search are well known: the consent

must be seen to be an “intentional relinquishment or aban-

donment of a known right.” Johnson v. Zerbst, 304 U.S.

458, 464 (1937). It must be unequivocal, specific and in-

telligently given, uncontaminated by any duress or coercion.

Simmons v. Bomar, 349 F. 2d 365 (6th Cir. 1965). And,

in such cases, it is incumbent upon the Government to show

that the consent obtained was the exercise of a free and

voluntary choice. Bumper v. North Carolina, 391 U.S. 543

(1968) ; Montana v. United States, 332 F 2d 987 (9th Cir.

1964) ; Simmons v. Bomar, supra.

In affirming Petiticuers conviction, the Court of Appeals

ruled:

“Markham had previously been informed that he

was a suspect in the case, and he had received

Miranda warnings. He voluntarily accompanied the

agents to the warehouse. Most significantly, he was

advised that he could refuse to consent to the search,

yet he decided to execute the consent form. Even

if the FBI agents had advised Markham that it was

not necessary for him to consult with a lawyer in

order to give his consent to search and that the

agents had already determined that he was storing

stolen goods at the warehouse, these factually true

statements do not evidence duress, coercion, chica-

nery, or threats—factors which courts have tradi-

tionally examined to determine whether consent was

freely and voluntarily granted. Moreover, we reject

any suggestion in Higgins v. United States, 209 F.

= i ae LOE AMOO ONL LISCEE ARAL IYE ARPA LOLS Na AEE APEC APB ’ ?

APES SEEM PEL LT MRE BTEC IL YN

AOI A ON cee

2d 819 (D.C. Cir. 1954), that one claiming innocence

cannot voluntarily consent to a search when he

knows that which is sought is certain to be found.

Rather, we agree with the First Circuit that ‘the

pressure exerted on a criminal by the realization

that the jig is up is far different from the delibe-

rate or ignorant violation of a personal right that

renders apparent consent ineffective.’ (Citation

omitted.) Markham may well ha:e believed that the

seizure of the stolen goods was inevitable or that

_ Cooperation with the FBI would serve his interests.”

(Citation omitted.) (Op. of the Court at 5, 6.)

Seemingly, the Court of Appeals has overlooked several

significant details which evolved at the trial in the District

Court. First, there is a disputed record on the claim that

Markham “volutarily” agreed to accompany the agents to

Able Warehouse, and even the trial court made reference

to the dispute while at the same time failing to delve deeper

into the fact circumstances:

“Now, insofar as the statements are concerned, there

is a conflict in the testimony. There isn’t enough

to convince me that he wasn’t advised of his rights

immediately. I don’t know why in the world they

would wait until they started out of the house to tell

him about it. Its a conflict in the evidence and so

far as I am concerned, the motion is denied.”

(H. Tr. at 78.) |

Second, Russell Johnson testified at trial that he deli-

vered the Black and Decker cartons to Able Warehouse

and turned them over to one “Frank” (Tr. 193); yet, the

only “Frank” encountered in this record is Frank Smith

who emphatically denied any knowledge whatsoever re-

YREMPSLENT PP: LEST SIE AN IR YOR

Se rs me POLO ETAL OE A Ae he aly A at P 7

31 c

rg ee CNN

garding receipt of the lawn trimmers. (Tr. 272, 273). In

addition, Smith testified that he could not account for the -

fact that the trimmers were found in Markham’s storage |

space on the grounds that neither he, nor any of the other :

Able employees had put them there. (Tr. 270, 271). Smith ©

also stated that he had not seen Markham for more than

a week prior to the 20th of March, 1973. (Tr. 273).

Thus, from the record, it is entirely possible that Mark-

ham had no knowledge that the merchandise the agents

were seeking was actually stored in his warehouse space.

This theory is certainly as plausible as the premise relied :

upon by the Government and the Court of Appeals to sup- —

port the proposition that Markham realized that the “jig _

is up” notwithstanding the verdict of the jury. While the ©

conflicts in the trial testimony are matters to be resolved :

by the jury, it would appear inconsistent to rely upon such t

a conflict to support affirmation. ;

2) ERS Oe AR OE RM De

Two elements of the issue at bar remain unresolved: (1)

why did an experienced Government agent fail to make ap-

plication for a search warrant subsequent to the interview

with Russell Johnson; and (2) accepting the Government’s

proposition that the March 23rd search was valid, why

then was it necessary for Flanagan to approach Markham

and gain his consent to search the premises the second

time? The record contains no illumination on either ques-

tion. Flanayan freely admitted that at no time did he

seek or obtain a warrant to search the Markham space at

Able Warehouse and the inquiry was terminated at that

point. Likewise, Flanagan offered no reason for the con-

frontation with Markham on the 26th of March, and the

subsequent search of the warehouse. It would appear

(again, assuming that the first search was valid) that

Flanagan had all of the necessary elements to obtain an

arrest warrant and subsequent indictment prior to the 26th

4 — mores VL ne DAIL SS DAE MEAL DT AOODMEG ALE Tin, UGE AO PEELE, OR PPOs, MHI MS | PF

PAAR AAAS GSA MEIER tet CAME SID AANA

of March. He had the full confession of one of the theives

along with the promise of future cooperation; he had

seized the substantive evidence at Able Warehouse; and

he knew the identity of the other participants. The next

logical step would seem to have been to present his case

to the U.S. Attorney; take the evidence to the Grand Jury

and secure an indictment. Yet, that is not what the record

reflects. The Grand Jury returned its indictment against

these Petitioners on August 29, 1973, and the accused were

; arrested on August 30, 1973, some 157 days subsequent

; to Flanagan’s final search of Abel Warehouse and the

* seizure of the Black and Decker lawn trimmers.

3 The “why” to both questions stated above may be sup-

' plied if the activity of Flanagan is viewed in the light of

the record. There is no question that Flanagan was an

agent of more than adequate experience in the investigation

and evaluation of federal crimes. In addition, it is well

known that FBI agents are meticulously trained not only

in the elements of investigation, and evidentiary support,

but in the smooth and careful preparation of the cases

passed on to the prosecuting authorities. Moreover, the

vast majority of agents are carefully trained in the law

and/or related areas such as accounting and finance. With

this in mind, it is respectfully suggested that Flanagan

knew that he had overstepped the investigative parameters

of his office by failing to secure a search warrant on March

23rd. Following this, it was necessary to remove the taint

of the illegal search in order to preserve his case. The

results are a matter of record. A second search, without

a warrant, but this time with the “consent” of Markham.

It is respectfully suggested that the attempt to remove the

taint of a prior, warrantless, illegal search by securing a

suspects “consent” to search flies in the face of the pro-

tections prescribed by the Fourth Amendment. It is fur-

ther suggested that this type of activity on the part of an

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investigating agent of the Government is exactly that which

has been proscribed by this Court by officers “engaged in

the often competitive enterprise of ferreting out crime.”

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

The Fourth Amendment requires that a consent to search

must be freely and voluntarily given; and devoid of any

hint of coercion, either implicit or explicit, by implied threat

or covert force. For no matter how subtly the coercion is

applied, the resulting consent would be no more than a

pretext for the unjustified police intrusion against which

the Fourth Amendment is directed. A classic admonition

may be found in Boyd v. United States, 116 U.S. 616 at

635:

DEES! 4 BN

SCORN AER YIN

“It may be that it is the obnoxious thing in its

mildest and least repulsive form, but illegitimate

and unconstitutional practices get their first footing

in that way, namely by silent approaches and the

slight deviations from legal modes of procedure.

This can only be obviated by adhering to the rule

that constitutional provisions for the security of |

the person and property should be liberally con-

strued. A close and literal construction deprives

them of half their efficiency, and ieads to a gradual

depreciation of the right, as if it con ted more in

sound than in substance. It is the duty of the courts

to be watchful for the constitutional rights of the

citizen, and against any stealthy encroachments

thereon.”

To hold that the consent to search Able Warehouse given

by Markham was voluntary and intelligently given, under-

mines the thrust of the protections guaranteed by the

Fourth Amendment. To hold that it was legal for Flanagan

to conduct an illegal search on Friday, and to use the

knowledge gained therefrom to secure a “consent” to —

ek, , Were PS ARIA EON DO A NSN NE RN IEE TR RE ae |

search again would open the door for a total abridgement

of the warrant requirement postulated in the Fourth

Amendment.

From the record, it is certain that Flanagan entered the

premises at Able Warehouse on March 23rd, without a

warrant and effectively caused the merchandise in issue

to be seized. From the record, we also know that Flanagan

was successful in obtaining Markham’s “consent” to search

the same premises again on March 26th. It flies in the face

of logic that the consent was a free and voluntary exercise

of independent judgment on the part of Markham. On the

record before this Honorable Court, it is respectfully sug-

gested that the alleged voluntary consent to search Able

Warehouse for the second time cannot remove the taint of

the original warrantless, illegal search. Judd v. United

States, 190 F. 2d 649 (D.C. Cir. 1951); Channel v. United

States, 285 F. 2d 217 (9th Cir. 1960); Higgins v. United

States, 209 F. 2d 819 (D.C. Cir. 1953); Bumper v. North

Carolina, 391 U.S. 543 (1968); Johnson v. United States,

333 U.S. 10 (1948); Alderman v. United States, 394 U.S.

165 (1969); and Wong Sun v. United States, 371 U.S. 471

(1963).

It is respectfully that the purpose for the interview with

Markham on March 2%, 1973, and the obtaining of Mark-

ham’s consent to search Able Warehouse was nothing more

than subterfuge employed by agent Flanagan in an effort

to rehabilitate any prior illegal search and seizure. The

exercise of such procedure is expressly prohibited by the

Fourth amendment and the evidence gained thereby should

have been suppressed. Petitioners herein urge that the

the trial court erred in permitting the Black and Decker

lawn trimmers into evidence. The affirmation of conviction

set out by the Court of Appeals for the Seventh Circuit

should be reversed.

I OD OO le CRO

Il.

DID THE COURT OF APPEALS MISCONSTRUE AND MIS-

APPLY THE THRUST AND INTENT OF THIS COURT’S RE-

CENT DECISION IN UNITED STATES v. MATLOCK, 415

US. 164, 42 ULS.L.W. 4252 (1974)?

The record reflects that the Court of Appeals affirmed

Petitioner’s conviction on the grounds that the search con-

ducted by FBI agents on March 23, 1973, was legal and that

the agents had obtained the valid and binding consent of

one Frank Smith, an employee of the warehouse owner.

In so ruling, the panel compares the search therein with

that conducted by agents and police officers of a private

house and a room rented within the house as set out in

United States v. Matlock, 415 U.S. 164 (1974). The matter

at bar and the Matlock case are not comparable on the

facts; nor is Matlock a case which is determinative of the

issues presented herein. In the instant matter, we are

concerned with the warrantless search of warehouse space

which had been leased to Petitioner Markham by the owner.

The space was completely enclosed, and the door was sup-

plied with a lock. Instructions to the warehouse employees

included keeping the space locked for the protection of

Markham’s goods. On the other hand, the Matlock case

involved the search of a room in a private dwelling house

which had been rented to the defendant but shared by the

defendant’s girl friend who had equal access to the room

and its possessions.

The case came on direct appeal to the Court of Appeals

for the Seventh Circuit, and involved the following fact

background. There were three searches conducted during

the same day subsequent to the arrest of the defendant

for bank robbery. During the first search, the police were

ME a ae atid Pe OD AEN LOA ART

admitted to the house by one Graff. During the search

conducted therein, the police discovered and seized $4,995.00

and other items from a closet and dresser drawer located

in a second floor bedroom. At the hearing on the motion

to suppress, the trial court determined that Graff was

Matlock’s girlfriend and that they shared the second floor

bedroom. It was further found that Matlock had entered

into a rental agreement with the owner of the house and

had paid her a specific sum of money each week for room

and board. On these facts, the District Court held that

even though there was joint occupancy of the second floor

bedroom, Graff did not possess the requisite authority to .

consent to a search of that room. (476 F. 2d at 1086). The

District Court ordered the evidence suppressed and the

Seventh Circuit affirmed.

“In our view, Judge Doyle has simply articulated

the correct principle which courts until now have

applied without clear articulation thereof. He cor-

rectly held that defendant’s constitutional rights

could be waived only if it was proved that reason-

able appearance of authority to consent existed and,

also, that just prior to the search facts existed show-

ing actual authority to consent.”

United States v. Matlock, 476 F. 2d 1083 (7th Cir.

1973).

The Government sought certiorari, and this Court grant-

ed the Petition to consider the question: “whether the evi-

dence presented by the United States with respect to the

voluntary consent of a third party to search the living

quarters of the respondent was legally sufficient to render

the seized materials admissable in evidence at the respon-

dent’s criminal trial.” (per Mr. Justice White, 415 U.S.

Ba FRSA OI LOLA ES SLOG EE OEE TY RLS OF

at 166). The Court reversed the order suppressing evi-

dencen the following rationale:

“The District Court ruled that before the seized

evidence could be admitted at trial the Government

had to prove first, that it reasonably appeared to

the searching officers ‘just prior to the search, that

facts exist which will render the consenter’s consent

binding on the putative defendant,’ and second, that

‘just prior to the search, facts do exist which render

the consenter’s consent binding on the putative de-

fendant.’ There was no requirement that express

permission from respondent to Mrs. Graff to allow

the officer to search be shown; it was sufficient to

show her authority to consent in her own right, by

reason of her relationship to the premises. The

first requirement was held satisfied because of res-

pondent’s presence in the yard of the house at the

time of his arrest, because of Gayle Graff’s residence

in the house for some time and her presence in the

house just prior to the search, and because of her

statement to the officers that she and respondent

occupied the east bedroom.

“The District Court concluded, however, that the

Government had failed to satisfy the second require-

ment and not satisfactorily proved Mrs. Graff’s

actual authority to consent to the search.”

Mr. Justice White, in writing for the Court, outlined in

detail the historical construction of the Court’s holdings

which permits the voluntary consent of any joint occupant

of a residence to search the premises jointly occupied as

being valid against the co-oceupant, and would permit evi-

dence seized therein to be used against the co-occupant at

a criminal trial. Petitioners herein do not take issue with

LE QPEL IL A PLEIN EREIIOOY:

the Court’s long standing position on co-occupant consent.

searches. However, that is not the issue at bar. In revers-

ing the Court of Appeals affirmation of the District Court’s

order to suppress certain evidence, Mr. Justice White

speaks as follows:

“These cases at least make it clear that when the

prosecution seeks to justify a warrantless search

by proof of voluntary consent, it is not limited to

proof that consent was given by the defendant, but

may show that permission to search was obtained

from a third party who possessed common authority

over or other sufficient relationship to the premises

or effects sought to be inspected.”

Relative to the foregoing, Mr. Justice White distinguish-

ed the Court’s holding in the following footnote:

“Common authority is, of course, not to be implied

from the mere property interest a third party has

in the property. The authority which justifies the

third party consent does not rest upon the law of

property, with its attendant historical and legal re-

finements, see Chapman v. United States, 365 US.

610 (1961) (landlord could not validly consent to

the search of a house he had rented to another) ;

Stoner v. California, 376 U.S. 483 (1964) (night clerk

could not validly consent to search of customer’s

room) but rests rather cn mutual use of the pro-

perty by persons generally having joint access or

control for most purposes, so that it is reasonable

to recognize that any one of the co-inhabitants has

the right to permit the inspection in his own right

and that the others have assumed the risk that one

of their number might permit the common area to

be searched.”

(415 US. at 171 n. 7).

sas Fh a PO INR, “y

Thus it is clear that the Court, per Mr. Justice White,

excluded the type of search conducted in the matter at bar

from that under consideration in Matlock. In Matlock, the

search was conducted after the arrest of the defendant, who

was on the premises; in a private residence; and with the

permission of a co-inhabitant of the room in question. Here,

the search was made in a warehouse; no arrest was made;

and the consent given by an employee of the warehouse

owner. On the facts of each case, Matlock is simply in-

apposite to the matter at bar.

Apparently, the Seventh Circuit, responding to the

Court’s reversal in Matlock, construed the decision to en-

compass all third party consent searches; a position which

this Court did not intend. It is clear that the foregoing

footnote distinguishes the type of third party consent that

the Court, in Matlock, was concerned with.

The consent of Frank Smith, the Able Warehouse em-

ployee, falls well outside the the third party consent des-

eribed in Matlock, and within the four corners of this

Court’s decisions in Chapman and Stoner. The effect of

the Seventh Circuit’s interpretation of Matlock is to sub-

stantially overrule the proposition of law set out in both

Stoner and Chapman, a proposition clearly unintended by

the Matlock majority.

It is respectfully suggested that certiorari be granted for

the purpose of reviewing the Seventh Circuit’s interpreta-

tion of the Matlock decision so as to prevent a misappli-

cation and misinterpretation of this Court’s current posi-

tion relative to third party consent searches. It is also

suggested that should the Seventh Circuit’s interpretation

be permitted to stand, the result will constitute a para-

mount injustice to Petitioners herein.

PLL OLE LEE LOE” LE SES LENGE |

7. CONCLUSION

Wherefore, by reason of the foregoing premises, Peti-

tioners pray that this Honorable Court issues a Writ of

Certiorari to the United States Court of Appeals for’ the

Seventh Circuit and order this cause to be reversed and

remanded.

Respectfully submitted,

JAMES D. O’CONNELL

Attorney for Petitioner Markham

13818 Woodward Avenue

Highland Park, Michigan 48203

(313) 865-9289

THOMAS H. RAMSEY

Attorney for Petitioner Piet

111 West Washington Street

Chicago, Illinois 60602

(312) FI-6-0736

POI ILE FY SPE EI ER OLY ELI V4 BO at PP Pers

Sa ee ee

ween 105 5G

41 4

APPENDIX A

UNITED STATES DISTRICT COURT

Northern District of Illinois

(Filed December 1, 1973)

United States of America, i

Plaintiff, ‘

vs . CR: 73-651 )

Delmar L. Markham,

Defendant. :

NOTICE OF APPEAL

Notice is hereby given that Delmar L. Markham, defen-

dant above-named, appeals to the United States Court of

Appeals for the Seventh Circuit, from the Judgment of

Conviction entered in this cause on December 19, 1973, by

the Honorable Bernard Decker, Judge of the United States

District Court.

Se ok er ee eer

JAMES D. 0’CONNELL

/s/ James D. O’Connell i

Attorney for Defendant

13818 Woodward Avenue :

Highland Park, Michigan 48203

(313) 865-9289

1 RIP MOBO EEO 0 LORIE A LOGIT

ee ee el

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

September Term, 1973 April Session, 1974

Nos. 73-2137, )} Appeal from the

73-2138 United States Dis-

United States of America, trict Court for the

Plaintiff-Appellee, Northern District

v. of Illinois, Eastern

Bruno Anthony Piet and Delmar Division.

L. Markham,

Defendants-A ppellants. } (73-CR-651)

OPINION

Bernard M. Decker,

Judge.

Argued April 19, 1974—Decided May 20, 1974

Before Swygert, Chief Judge, Castle, Senior Circuit

Judge, and Sprecher, Circuit Judge.

Castle, Circuit Judge. Defendants Bruno Piet and Del-

mar Markham appeal their jury convictions on one count

of unlawfully possessing goods stolen from interstate com-

merece, a violation of 18 U.S.C. § 659. On appeal, Piet and

Markham assert that the indictment was insufficient to

state an offense, that the evidence was insufficient to prove

that Piet possessed stolen goods, that the district court

erroneously denied a motion to suppress the stolen goods

1 The appeals of Piet, No. 73-2137, and Markham, No. 73-2138, were

consolidated for purposes of oral argument and this opinion.

BSS LPAI LOIRE OEP PEt

et ee —y

from evidence, and that the government permitted a key

witness to perjure himself in denying the existence of a

plea bargain. We have considered these issues, and we

affirm the convictions.

On March 19, 1973, Russell Johnson, a truck driver,

while making a delivery to the Chippewa-McClain Motor

Freight Co. of Bedford Park, Lllinois, agreed to receive

some Black and Decker lawn edgers from Bruno Piet, a

Chippewa dock hand; the two men agreed to split the pro-

ceeds from Johnson’s planned sale of the edgers. Later,

Johnson telephoned Delmar Markham to inquire whether

he could “use” the edgers, and Markham directed Johnson

to transport them to the Able warehouse. The men fixed:

the sale terms, and subsequently, Johnson found $124 at the

location where he had asked Markham to deliver payment.

On March 21, Markham telephoned Frank Smith, acting

warehouse foreman, and requested that one-half of the

edgers be separated; Markham picked up these edgers

later that afternoon.

Piet claims that the indictment was insufficient to state

an offense because it specified the precise location of the

theft, rather than any particular facility enumerated in

the statute. This court rejected a similar contention in

United States v. D’ Antonio, 342 F2d 667 (7th Cir. 1965),

in finding that “a dock of Day’s Transfer Co.” referred

to facilities set forth in the statute. Similarly, “Chippewa-

McClain Motor Freight Company, Bedford Park, Illinois”

connotes such statutory terms as “platform or depot,”

“station” and “storage facility.” United States v. Knight,

451 F.2d 275 (5th Cir. 1971), cert. den., 405 U. S. 965

(1972), a case indistinguishable from ours, found that an

indictment specifying “Yellow Freight System terminal” —

was sufficient because there was no significant distinction

between the words of the indictment and those of the

statute. Accord, Dunson v. United States, 404 F.2d 447

(9th Cir. 1968), cert. den., 393 U. S. 1111 (1969). United

States v. Manuszak, 234 F.2d 421 (3rd Cir. 1956), on which

the defendants rely, is inapposite, for the indictment there

failed to specify any specific facility or place from which

the goods had been stolen. We find that the indictment

sufficiently apprised the defendants of the nature of the

erime with which they were charged. See, Hagner v. United

States, '285 U.S. 427 (1932).

' Piet also argues that his indictment represents an un-

warranted extension of federal jurisdiction beyond the

scope of congressional intent in drafting the statute. We

cannot agree. “The language of section 659 evidences a

clear purpose to reach depredations affecting any con-

ceivable instrumentality by which the interstate transport-

ation of freight may be accomplished.” Dunson v. United

States, supra, at 448. That Congress is empowered to pro-

tect interstate commerce by proscribing possession of goods

stolen from interstate shipment is beyond cavil, see Wickard

v. Filburn, 317 U.S. 111 (1942); whether such power was

wisely exercised through the enactment of section 659 is

clearly improperly addressed to this branch of govern-

- ment.

Piet next contends that the evidence was insufficient to

establish that he was in actual possession of the lawn ed-

gers; therefore the court improperly denied his motion

for a judgment or acquittal. Viewing the evidence in the

light most favorable to the government, Glasser v. United

States, 315 U. S. 60 (1942), we find there was sufficient

evidence for the jury to determine that Piet had posses-

sion of the edgers, as charged ‘in the indictment. After

determining on March 19, 1973 that Johnson would accept

any merchandise which Piet might be able to supply to

lS at ed 8 is

- ——— PAOD LLG RL A OTB tel A

him, Piet learned from a co-worker that a load of Black

and Decker lawn edgers, marked “Richmond freight,” was

lying on the dock. Piet then told Johnson that he would

try to load the edgers on the back of Johnson’s trailer.

Thereafter, Piet was seen loading the lawn edgers into a

truck. From this evidence, the jury could properly infer

that Piet had established the requisite dominion and con-

trol over the property at issue. Accord, United States v.

Parent, 484 F.2d 726 (7th Cir. 1973) ; United States v. Cata-

lano, 450 F.2d 985 (7th Cir. 1971), cert. den., 405 U. 8. 928

(1972). The case is therefore distinguishable from United

States v. Nitti, 444 F.2d 1056 (7th Cir. 1971), where the

court expressly noted that the defendant had no knowledge

of the stolen property.

Markham contends that his motion to suppress the lawn

edgers from evidence was erroneously denied because (1)

the March 23, 1973 FBI inspection of the Able warehouse

storage room in which Markham’s goods were kept was

unlawful, (2) that inspection tainted the March 26, 1973

search and seizure of Markham’s goods stored at the ware-

house, and (3) Markham’s consent to the March 26 search

was improperly induced. Respecting the first point, Mark-

ham asserts that Frank Smith lacked the authority to per-

mit FBI agents to inspect a storage room at the warehouse

in which Markham’s goods were commingled with those of

others who leased space at the facility. In United States v.

Matlock, — U.S. —, 42 USLW 4252 (U.S., Feb. 20, 1974),

the Supreme Court reiterated that permission to search

may be obtained from a third party who possessed either

common authority over or other sufficient relationship to

the premises or effects. “The authority which justifies

third-party consent does not rev* on the law of property...

{but rather] on mutual use of the property by persons

generally having joint access or control for most purposes.”

.) SOE QOL TT RPT AT SLL. UTE GE FTE

ite > ener oma mpeey LO SM GED ROOT A eee cate Ee ES

Id. at 4254 n. 7. Frank Smith introduced himself as the

warehouse foreman and stated that he was in charge in

the owner’s absence. Smith also told the FBI agents that

he had one of two keys to the common storage area where

Markham’s goods were kept and that Markham did not

have a key to the facility. Smith freely consented to the

FBI search, and he led the agents to the area where Mark-

ham’s goods were stored. From the labels on the Black

and Decker cartons, the agents ascertained that the boxes

contained the stolen lawn edgers. The agents then left the

warehouse. Whatever Smith’s position, it is clear that

Markham was aware, as a practical matter, that Smith and

the warehouse owner—who possessed the only keys to the

common storage room—had access and control over the

common area. We find, therefore, that Markham had no

reasonable expection of privacy respecting the storage of

his goods, see, United States v. Eldridge, 302 F.2d 463

(4th Cir. 1962), and assumed the risk that the persons in

charge of the facility might willingly and voluntarily grant

permission for agents to enter and search the common

storage area. See, United States v. Matlock, supra; Von

Eichelberger v. United States, 252 F.2d 184 (9th Cir.

1958).

Markham further argues that as the March 26 search

and seizure resulted from information gleaned from the

allegedly unlawful March 23 search, evidence seized on

March 26 must therefore be suppressed. Even if the March

23 search had been unlawful, that investigation would not

have tainted the March 26 search and seizure of the edgers.

Prior to the March 23 search, Johnson told FBI agents

that Markham had directed him to deliver the stolen edgers

to the Able warehouse. Thus, an independent basis existed

to support the agents’ suspicion that Markham was storing

stolen goods at the Able facility. Cf., United States v. San

Martin, 469 F.2d 5, 8 (2d Cir. 1972), cert. den., 410 US.

934 (1973).

Markham’s claim that he was improperly induced to con-

sent to the March 26 search is apparently grounded on his

assertions that the FBI agents told him that it would be

futile to withhold consent to the search since the agents had

already determined that the stolen merchandise was there

and that it was unnecessary for Markham to call his at-

torney prior to granting consent. The FBI agents involved

denied the first assertion and contended that they told

Markham that he was free to call his attorney at which

point he changed his mind. First, issues of credibility of

witnesses are to be resolved by the trial court, which may

observe the witnesses’ demeanor at first hand; such issues

may not be relegated at the appellate level. Second, even

if the trial court had accepted Markham’s account, “the

totality of all the circumstances” does not indicate that

Markham’s consent was involuntary. See, Schneckloth v.

Bustamonte, 12 U.S. 218 (1973). Markham had previously

been informed that he was a suspect in the case, and he

had received his Miranda warnings. He voluntarily accom-

panied the agents to the warehouse. Most significantly, he

was advised that he could refuse to consent to the search,

yet he decided to execute the consent form. Even if the

FBI agents had advised Markham that it was not necessary

for him to consult with a lawyer in order to give his con-

sent to the search and that the agents had already deter-

mined that he was storing stolen goods at the warehouse,

these factually true statements do not evidence duress,

coercion, chicanery or threats—factors which courts have

traditionally examined to determine whether consent was

freely and voluntarily granted. Moreover, we reject any

suggestion in Higgins v. United States, 209 F.2d 819 (D.C.

Cir. 1954), that one claiming innocence cannot voluntarily

PEMA LILES EYES Y MPO AE” ALLELE ID Lyre, Se

‘4

RPE PTT

AE RNAS METI

PARED

ENE ELLEN TIT CEST Pe

PU Ah AB aA te WERE LOE NE AE CB An BOF ow

consent to a search when he knows that that which is sought

is certain to be found.*? Rather we agree with the First

Cireuit that “the pressure exerted on a criminal by the

realization that the jig is up is far different from the deli-

berate or ignorant violation of a personal right that renders

apparent consent ineffective.” Gorman v. United States,

380 F.2d 158, 165 (1st Cir. 1967). Markham may well have

believed that the seizure of the stolen goods was inevitable

or that cooperation with the FBI would serve his interests.

See, Leavit v. Howard, 462 F.2d 992 (1st Cir. 1972).

Piet and Markham lastly contend that the record dis-

closes evidence of plea bargaining between the government

and its key witness, Johnson, despite Johnson’s denial

under oath, which the government did not contradict. Had

there been a promise to the witness prior to his testimony

which was withheld from the jury by the witness and the

government, Giglio v. United States, 405 U.S. 150 (1972),

and Napue v. Illinois, 360 U.S. 264 (1959), would require

reversal of the convictions. Moreover, if there is evidence

of a plea bargain at some point in time, DeMarco v. United

States, 42 USLW 3520 (U.S., Mar. 18, 1974), would require

remand to the district court to determine through an evi-

dentiary hearing whether the plea bargain occurred prior

to the giving of testimony. Unlike DeMarco, where the

prosecutor’s remarks at the sentencing of the witness argu-

ably established that a plea bargain was reached with the

witness prior to his giving testimony, there is absolutely

nothing in the record of the present case to even suggest

that a plea bargain was reached between Johnson and the

government. While steadfastly denying the existence of

a plea bargain both at his own arraignment and at the trial

* This question had been expressly left open in United States v.

Hayward, 471 F.2d 388, 389 (7th Cir. 1972).

of Piet and Markham, Johnson expressed his hope that the

court would favorably consider his cooperation with the

government in subsequently sentencing him. The mere ex-

pression of one’s hopeful (and not unreasonable) expecta-

tion cannot be equated with concrete indicia of an undis-

closed plea bargain. Without any substantive claim that a

plea bargain was struck, there would clearly be no basis

for ordering an evidentiary hearing to determine the date

of such an alleged agreement.

The judgment of the district court is affirmed.

Clerk of the United States Court of

Appeals for the Seventh Circuit.

USCA 4061—The Scheffer Press, Inc., Chicago, Illinois—6-6-74—225.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

Judy 18, 1974

Before

Hon. LUTHER M. SWYGERT, Chief J udge

Hon. LATHAM CASTLE, Senior Circuit J udge

Hon. ROBERT A. SPRECHER, Circuit J udge

Nos. 73-2137 ) Appeal from the

73-2138 United States Dis-

United States of America, trict Court for the

Plaintiff-Appellee, Northern District

vs. ; of Illinois, Eastern

Bruno Anthony Piet and Delmar Division.

L. Markham,

Defendants-Appellants. : 73-CR-651

Bernard M. Decker

Judge.

ORDER DENYING APPLICATION FOR REHEARING

On consideration of the petitions for rehearing and sug-

gestions that it be reheard en banc filed in the above-en-

titled cause, no judge in active service having requested

a vote thereon, nor any judge having voted to grant the

suggestions, and all of the members of the panel having

voted to deny a rehearing.

It Is Ordered that the petitions for rehearing in the

above-entitled cause be and the same are hereby Denied.

ae He A ee wed bid alates ten lina Seka Rated a at td ED CDR OR A DES DET NN SaaS SEE Dee

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.