Petition for Writ of Certiorari — Charles V. Costanza v. United States of America 421 U.S. 987 (1975) (No. 74-991)

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SUPREME COURT,

In the Supreme Court of the United States

OCTOBER TERM, 1974

Ne 4991 *

CHARLES V. COSTANZA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DALE QUILLEN

308 Cavalier Building

95 White Bridge Road

Nashville, Tennessee 37205

Attorney for Petitioner

E. L. MEnpDEenwALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3080

QE a re TOD EO ee Meng SPP NS Pe ened

ae eT he NRT OE <a Bettys Sen cml a aye .

——————

INDEX

Citations to Opinions Below

Jurisdiction

REE er are I

Constitutional Provisions and Statutes Relied Upon ....

Reasons for Granting the Writ of Certiorari

Statement of the Case

pa 6

Statement of the Facts 7

eee e ee eeneeeree

Argument ..

Conclusion ..........

Certificate of Service

Appendix—

Order of United States Court of Appeals

Order of United States District Court (Filed No-

vember 26, 1973) A-4

Order of Supreme Court of United States Extend-

Time for Filing of Petition A-9

Order of United States District Court (Filed Feb-

ruary 11, 1974) A-10

TASLE OF CASES

Beck v. Ohio, 379 U.S. 89, 96 (1964) .. 20, 21, 22

Berger v. California, 393 U.S. 314 (1969) ..........000..... 12, i4

Bollenbach v. United States, 326 U.S. 607, 612 (1946) 25

Bumper v. North Carolina, 391 U.S. 543 (1968) ............ 19

Chambers v. Maroney, 399 U.S. 42 (1970) 17

Chapman v. California, 386 U.S. 18 (1967) .................... 30

Chimel v. California, 395 U.S. 752 (1969)...

ulhcchn- isn canbmmamannee ae 2, 6, 14, 15, 16, 17, 18, 19

Edgington v. United States, 164 U.S. 361, 366 (1896)

ALTE St ed FER a 39, 40

Fahy v. Connecticut, 375 U.S. 85 (1963) -..........----..++-+- 30

Fletcher v. United States, 158 F.2d 321 (D.C. Cir. 1946) 32

Gariepy v. United States, 220 F.2d 252, 261 (6th Cir.

1955), cert. den. 350 U.S. 825 40

Johnson v. United States, 333 U.S. 10 at 13, 14 (1948) 20

Joseph v. United States, 286 F.2d 468, 469 (5th Cir.

1960) ....... 32

Kotteakos v. United States, 328 U.S. 750, 776 (1946) .... 32

McCroy v. Illinois, 386 U.S. 300 (1967) 20

McMillen v. United States, 386 F.2d 29, cert. den. 390

US. 1031 (1967) 32 \

Michelson v. United States, 335 U.S. 469, 482 (1948) . 27

Moody v. United States, 377 F.2d 175, 180 (5th Cir. |

1967) 25

Offutt v. United States, 348 U.S. 11, 17 (1954) ................ 25 |

Orebo v. United States, 293 F.2d 747, 750 (9th Cir. .

1961) 32

Pointer v. Texas, 380 U.S. 400, 405 (1964) 2. ...--.e--- 12

Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), |

cert. den. 352 U.S. 1025, reh. den. 353 U.S. 93 ............ 40

Preston v. United States, 376 U.S. 364 (1964) ................ 15

Quercia v. United States, 289 U.S. 466 (1933) ................ 24

Roberson v. United States, 165 F.2d 752 (6th Cir. 1948) 13

Rouse v. United States, 359 F.2d 1014 (D.C. Cir. 1966) 13

Sherman v. United States, 356 U.S. 369, 375 (1957) .... 38

Stan v. United States, 153 U.S. 614, 626 (1894) ................ 25 |

State v. Wheat, 131 Kan. 562, 292 P. 793 (1930) (In |

Dissenting Opinion) ...... 24

Terry v. Ohio, 392 U.S. 1 (1968) 20

Todd v. United States, 345 F.2d 299 (10th Cir. 1965) .... 32

III

United States v. Becker, 485 F.2d 51 (6th Cir. 1973) ..... 17

United States v. Burch, 471 F.2d 1314 (6th Cir. 1973)

BYE SIP oot WE iO ie ETN SS LO 16, 17, 18, 21, 22

United States v. Fisher, 377 F.2d 285, 286 (6th Cir.

an ks. a ecmiecas 41

United States v. Garner, 467 F.2d 205 (7th Cir. 1972) ..... 15

United States v. Griffen, 382 F.2d 823 (6th Cir. 1967) 31

United States v. Jones, 475 F.2d 723 (5th Cir. 1973) .... 15

United States v. Mapp, 476 F.2d 67 (2d Cir. 1973) ........ 15

United States v. Masino, 275 F.2d 129, 133 (2d Cir.

1960) 32

United States v. Mechiz, 437 F.2d 145, 150-151 (9th Cir.

1971) 16-17

United States v. Montos, 421 F.2d 215 (2d Cir. 1970) .... 13

United States v. Mulligan, 488 F.2d 732 (6th Cir. 1973) 17

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

17, 18, 19

United States v. Thacker, 382 F.2d 732 (6th Cir. 1967) 13

United States v. White, 446 F.2d 1280, 1282 (3rd Cir.

1971) 12-13

CONSTITUTIONAL PROVISIONS

AND STATUTES

Fourth Amendment, United States Constitution 3, 4, 19, 20

Fifth Amendment, United States Constitution ................ 4, 23

Sixth Amendment, United States Constitution .:...2, 4, 11, 12

Fourteenth Amendment, United States Constitution ....4, 23

18 U.S.C. 4208(b) ....... 4,7

21 U.S.C. 841(a) (1) .......... 5,6

ane eaen mena nem

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-______.

CHARLES V. COSTANZA,

Petitioner,

vs,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the Sixth Circuit entered in this case on December

11, 1974.

FOE ite POCA i te

CITATIONS TO OPINIONS BELOW

1. Order of the Court of Appeals unreported filed

December 11, 1974. (App. A-1)

2. Order of the United States District Court for the

Middle District of Tennessee unreported filed November

26, 1973. (App. A-4)

JURISDICTION

The Court of Appeals entered judgment on December

11, 1974. On January 6, 1975 Mr. Justice Stewart extended

the time for filing this Petition to February 8, 1975.

(App. A-9)

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

Whether denying a defendant the right to cross-exam-

ine a government informer at a pre-trial hearing violates

the Defendant’s right of confrontation under the Sixth

Amendment when the informer is the sole source support-

ing the government’s contention that probable cause ex-

isted for the arrest, search and seizure.

Il.

Whether the failure to suppress testimony and evi-

dence obtained by a seizure of a defendant’s suitcase lo-

cated outside of his immediate control followed by a search

conducted after the arresting officers had the suitcase

firmly in their possession, well beyond the immediate con-

trol of the defendant, is violative of a permissible search

incident to arrest as defined in Chimel v. California.

AGES ‘ EON OA ELD LTA ES OREO PSPC OTL ——

OS OD aN hh ee AD

III.

Whether the Fourth Amendment requirement of prob-

able cause to support a warrantless arrest is violated when

the sole source for such an arrest is an informer’s tip

that is totally uncorroborated by any independent surveil-

lance work conducted by the arresting officers.

IV.

Whether a defendant’s constitutional right to a fair

trial before an impartial judge is violated when the trial

judge makes continuous interruptions, comments, and ges-

tures in the presence of the jury to the severe prejudice

of the defendant.

Whether denying a request for a special cautionary

instruction concerning the credibility of uncorroborated

testimony given by a paid government informer where

that testimony is the primary basis upon which a convic-

tion is based, deprives a defendant of his right to a fair

VI.

Whether it is improper, for impeachment purposes,

for the prosecution to ask several defense witnesses if

they were indicted along with a defendant in a totally

independent and unrelated proceeding where no convic-

tions have resulted.

POS FOIE GLE >

CONSTITUTIONAL PROVISIONS AND

STATUTES RELIED UPON

1. Constitution of the United States,

Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

2. Constitution of the United States,

Amendment V:

“No person shall . . . be deprived of life, liberty, or

property, without due process of law; ...”

3. Constitution of the United States,

Amendment VI:

“In all criminal prosecutions, the accused shall enjoy

the right to . . . be confronted with the witnesses against

him;...”

4. Constitution of the United States,

Amendment XIV:

. . nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

5. 18 U.S.C. §4208. Fixing eligibility for parole at

time of sentencing.—

“(b) If the court desires more detailed information

as a basis for determining the sentence to be imposed,

API RAIS NAD INTs id

the court may commit the defendant to the custody of

the Attorney General, which commitment shall be deemed

to be for the maximum sentence of imprisonment pre-

scribed by law, for a study as described in subsection

recommendations which the Director of the Bureau of

Prisons believes would be helpful in determining the dis-

position of the case, shall be furnished to the court within

three months unless the court grants time, not to exceed

an additional three months, for further study. After re-

ceiving such reports and recommendations, the court may

in its discretion: (1) Place the prisoner on probation

as authorized by section 3651 of this title, or (2) affirm

the sentence of imprisonment originally imposed, or reduce

the sentence of imprisonment, and commit the offender

under any applicable provision of law. The term of the

sentence shall run from date of original commitment under

this section.”

6. 21 U.S.C. §841. Prohibited acts A—Penalties

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

unlawful for any person knowingly or intentionally—

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

with intent to manufacture, distribute, or dispense,

a controlled substance; ...”

REASONS FOR GRANTING THE WRIT

OF CERTIORARI

Petitioner respectfully contends the Writ should be

granted because the right of confrontation guaranteed by

the Constitution is an essential and fundamental aspect

of a defendant’s right to a fair and impartial trial.

While this right of confrontation may be limited in

certain instances by the trial judge, when it is completely

See UR e SPER Rte nome

PCA Ns 262 ine bas PONE AEE NS OLEAN ISL NE AB al Ohl BIEN nt sheik Bint ee

denied, as in the instant case, it is both repugnant to

our system of due process and is violative of the Constitu-

tion.

Petitioner further respectfully contends the Writ

should be granted in order to clarify the continually recur-

ring questions surrounding the permissible scope and in-

tensity of a search incident to an arrest.

The Courts of Appeal and District Courts have inter-

preted Chimel v. California in a great variety of ways,

thus giving rise to inconsistent results often on essentially

identical factual situations.

The questions raised in these cases will continue to

be a problem until this Court issues further clarification

of its holding in Chimel v. California.

STATEMENT OF THE CASE

Petitioner, Charles V. Costanza, was indicted in a one-

count indictment for violation of Section 841(a) (1) of Title

21 U.S.C. in that he allegedly knowingly and intentionally

possessed with intent to distribute a quantity of cocaine,

a Schedule II substance.

A Motion to Suppress was filed and a hearing held.

On November 16, 1973, by written order, the District J udge

upheld both the arrest and search. (App. A-4)

Petitioner subsequently renewed his motion to sup-

press upon grounds that the alleged informant was known

to him, that the agents had reason to know that the infor-

mant had been untruthful in the past, that there were

unlawful interceptions of telephonic communications in-

volved.

An additional Motion to Suppress testimony of Agents

Klick and Yarn was filed February 1, 1974 citing alleged

misrepresentations made by government agents to the

Court. The order of November 26, 1973 was vacated,

and further hearing was held by the Court February 8,

1974 and the Motions were denied by order February

11, 1974.

The case was tried before a jury beginning March

19, 1974 and ending March 26, 1974 with the petitioner

being found guilty. On April 4, 1974 petitioner was sen-

tenced to 15 years and a mandatory parole term of three

years. Commitment was made under 18 U.S.C. §4908(b),

the Court desiring more detailed information as a basis

for determining sentence to be finally imposed.

Petitioner filed a proper Notice of Appeal and the

case was heard by the United States Court of Appeals

for the Sixth Circuit. Relief was denied by order of the

Sixth Circuit on December 11, 1974. (App. A-1) The

petitioner is now properly before this Court. For the

purpose of the statement of facts and argument, the peti-

tioner will be referred to as he was in the Court below,

as “Appellant”.

STATEMENT OF THE FACTS

On July 23, 1973, Agent Joe Grills, of the Baltimore

office of the Drug Enforcement Administration, received

a telephone call from an informant. The informant told

him that he had been in New York and had seen a sample

of cocaine in the possession of the defendant Costanza

and that Costanza had tried to sell a kilo of cocaine to

him and another individual for Thirty-Seven Thousand

Dollars ($37,000). He stated that they had told Costanza

that the price was too high and that Costanza had placed

the cocaine in his suitcase, these events having occurred

at the Carriage House Hotel in New York. The informant

advised the agent that he thought the defendant had gone

TEEN RL LIS Oy a PIE ES Pg nr,

et ETT aL co ee re

to Nashville and that he was of the opinion that the defen-

dant expected the sale to be made eventually. Agent

Grills stated that the following morning, July 24, 1973,

the informant called him and told him that he had received

a telephone call from the defendant from Nashville, indi-

cating that he had the cocaine with him; that Costanza

had said that, if they wanted to buy, he would have it

at the Carriage House Hotel about 8:30 p.m. on that date.

After this call on the morning of the 24th, Agent

Leardis Rice, of the Baltimore office of the Drug Enforce-

ment Administration, Agent Grills’ superior, made a tele-

phone call to Agent Tyrone Yarn, of the Nashville office,

Agent Grills being also on the telephone line. At this

time, all of the information above set forth was given

to Special Agent Yarn.

Agent Yarn did not personally know Agent Rice, al-

though he did know his name as an agent. The identity

of the informant was not given to Agent Yarn, and he

was not advised of the basis for the statement which

had been made to him by Agent Rice that he was a

reliable informant. Agent Yarn did not personally know

the defendant, but was familiar with his name from the

files of the agency.

The informant was known to both Agents Rice and

Grills as reliable, having previously furnished them with

information which proved to be accurate and having never

furnished any information which proved to be inaccurate.

After receiving this information, Agent Yarn ascer-

tained that the defendant did have a reservation on an

American Airlines flight from Nashville to New York,

scheduled for departure at 5:00 p.m., and also had a reser-

vation at the Carriage House Hotel. Agent Yarn made

some efforts to see the defendant so that he could identify

wees <

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me PEF IOS EM DST Ht hs OOS EIEIO LEI Ip

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pres o

him, going to his place of employment, but was unable

to see him on that day. He arranged, however, with

ticket sellers of American at the airport, who knew the

defendant, to point him out if he arrived that afternoon;

however, the defendant did not so arrive.

Agent Yarn reported to Agent Rice that the defendant

had not appeared and was informed that Agent Rice would

check the matter out with the informant. At approxi-

mately 2:30 p.m. on the 25th, Agent Yarn received a tele-

phone call from Agent Rice informing him that the infor-

mant had advised that the defendant had been delayed

one day by some family matter but would make the trip

on the afternoon of the 25th so that he would be at the

Carriage House Hotel in New York by 8:30 p.m. Before

this call, however, Agent Yarn had been successful in

his efforts to identify him so that he could recognize him.

After receipt of the new information, Agent Yarn ascer-

tained that the defendant had a reservation, once more,

on the same American flight.

Agent Yarn then conferred with his superior, Agent

Klick, who had not been in Nashville the preceding day,

and they went to the office of the United States Attorney

to see about obtaining a warrant. They were advised

by an Assistant United States Attorney that they did not

need a warrant and that they would have probable cause

to arrest without a warrant if the defendant appeared.

Agent Yarn testified that he did not believe they had

time to obtain a warrant.

In any event, the defendant arrived at the airport

in a car at about 4:30 p.m., removed a suitcase from it,

and walked over to the express check-in outside the front

door of the airport, placed his suitcase on the pavement

for checking by the Skycab, and, at this point, was arrested

by Agent Klick, acting on signal from Agent Yarn that

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\ 10

the man with the suitcase was the defendant. Agent Klick

immediately picked up the suitcase, and then, with the

defendant in custody, they proceeded to a room in the

airport building where the search was made.

The search of the defendant’s person disclosed an am-

ber bottle containing a white powder which gave a positive

reaction, when field tested, for cocaine. The suitcase was

locked but was unlocked by defendant, apparently under

orders from the agents, and search therein revealed larger

amounts of white powder, alleged to be cocaine, a total

of slightly more than three pounds being seized.

eats

<6 Nee ne ate Naa

ARGUMENT

Whether Denying a Defendant the Right to Cross-

Examine a Government Informer at a Pre-Trial Hear-

ing Violates the Defendant’s Right of Confrontation un-

der the Sixth Amendment When the Informer Is the

Sole Source Supporting the Government’s Contention

That Probable Cause Existed for the Arrest, Search

and Seizure.

A second pre-trial hearing was held on February 8,

1974 to further determine whether sufficient probable

cause existed for the arrest and search. At this hearing

the trial judge refused to allow appellant his right to

cross-examine the informer who was the sole source sup-

porting the Government’s contention that probable cause

existed for the arrest. Appellant was thereby denied his

Constitutional guarantee of the opportunity to confront

witnesses against him, and can be protected now only

by reversing his conviction.

During the February 8, 1974 hearing to further con-

sider suppression of evidence, the Government sought to

establish that probable cause existed for appellant’s arrest.

The only source of cause to arrest appellant was Bruce

Winokour, the informer for the Government, who was

first available to the Court at this hearing. Winokour

was summoned before the Court by the trial judge, and

was questioned by him in a manner sufficient to convince

the judge that sufficient cause existed to retroactively

validate the arrest, Winokour was then sent out of the

courtroom, and appellant was denied an opportunity to

question the informer despite his timely objections to do

so. The judge then proceeded to determine that suppres-

sion of the evidence would not be allowed. (App. A-10)

PIVEN EE IB $e ReBe z, ta %

. ” PLL BE LE LYE LI TD SENDER TERE Bes rn tae vee

The evidence was-thus admitted at trial and formed the

basis for appellant’s conviction.

The right to cross-examine witnesses is an absolute

right, and cannot lawfully be denied a criminal defendant.

As the United States Supreme Court emphatically de-

clared:

“There are few subjects, perhaps, upon which this

Court and other Courts have been more nearly unani-

mous than in their expressions of belief that the right

of confrontation and cross-examination is an essential

and fundamental requirement for the kind of fair trial

which is this country’s constitutional goal. Indeed,

we have expressly declared that to deprive an accused

of the right to cross-examine the witnesses against

him is a denial of the 14th Amendment’s guarantee

of due process of law.” Pointer v. Texas, 380 US.

400, 405 (1964)

The Supreme Court indicated in a later case that

an important: objective of the right of confrontation is

to guarantee that the fact finder has an adequate oppor-

tunity to assess the credibility of witnesses. Berger v.

California, 393 U.S. 314 (1969). If this check on the credi-

bility of witnesses is ignored, the semblance of fairness

of the proceedings is lost, and the hearing becomes a

mockery of justice.

It has been repeatedly held that this Sixth Amendment

right of confrontation and Fourteenth Amendment guaran-

tee of due process are not lost merely because the hear-

ing is a preliminary one and not the trial itself. For

example, the Third Circuit specifically stated that in a

hearing to determine the issue of suppression of evidence

to be used at trial pursuant to Federal Rules of Criminal

Procedure, Rule 41(e), the right to cross-examine witnesses

against the defendant exists. United States v. White, 446

SNe Beata ee

a ae

F.2d 1280, 1282 (3rd Cir. 1971) The Sixth Circuit placed

nu only a right to cross-examine at a suppression hearing,

but a consequence on the failure to do so. In United

States v. Thacker, 382 F.2d 732 (6th Cir. 1967), a convic-

tign was upheld despite the fact that an informer was

ed during the suppression hearing. Defendant had

an \opportunity to cross-examine a government agent at

the\ hearing, but failed to ask him about the informer’s

identification. The Court held that not only the right

to confrontation existed at a suppression hearing, but that

a duty to cross-examine government informers and agents

existed then on a defendant, if these persons were present

at court, or the defendant would be estopped from later

asserting certain claims about their credibility and reliabil-

ity. Wid.

It\is additionally significant to enforce constitutional

safeguards at suppression hearings because of the conse-

quences of the hearings in the ensuing trials. A denial

of a motion to suppress becomes the basis for the law

of the case for purposes of trial. Thus, the same rules

of procedure governing fairness and due process at trial

must exist at suppression hearings. Roberson v.

United States, 165 F.2d 752 (6th Cir. 1948); see also, United

States v.\Montos, 421 F.2d 215 (2d Cir.,1970); and Rouse

v. United States, 359 F.2d 1014 (D.C. Cir. 1966).

There was ample basis for skepticism as to the legality

of the procedure used by the Government, with a conse-

quent necessity for a thorough confrontation of Govern-

ment sources. As indicated, the trial judge summoned

the informer, Bruce Winokour, and questioned him with

questions which enabled Winokour to support the Govern-

ment. The judge did not probe into the problem of the

inconsi between his version and that of four other

federal agents. Appellant further was denied the ability

to question Winokour about his past criminal record, the

existence of a deal made with Government agents, or

the fact that the informer was a narcotics user with a

history of psychiatric treatment. As a result, the important

objective of assessing the credibility of the informer as

indicated in Berger v. California, supra, was completely ig-

nored. The result is that appellant was denied his con-

stitutional right of confrontation at a crucial point in the

proceeding which allowed evidence to be entered at trial

which was tainted by this illegality. Appellant was, there-

fore, irreparably harmed by this denial of constitutional

rights, and the only just remedy is to reverse appellant’s

conviction.

II.

Whether the Failure to Suppress Testimony and

Evidence Obtained by a Seizure of a Defendant’s Suit-

case Located Outside of His Immediate Control Fol-

lowed by a Search Conducted After the Arresting Of-

ficers Had the Suitcase Firmly in Their Possession,

Well Beyond the Immediate Control of the Defendant,

Is Violative of a Permissible Search Incident to Arrest

As Defined in Chimel v. California.

A second fatal defect requiring suppression of the

seized cocaine and other evidence which is a product of

the arrest and search of appellant was the failure of the

arresting officers to secure a warrant to search appellant

and his effects. Even if the arrest of appellant were

considered legal, the ensuing search of appellant and his

possessions was illegal, and any evidence obtained as a

result of that search should have been suppressed by the

trial judge.

Chimel v. California, 395 U.S. 752 (1969), is the lead-

ing authority on this subject. Chimel severely restricts

EE CARRE:

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the use of warrantless searches, and places the burden

on those seeking an exemption from the warrant require-

ment to show the need for searching without a warrant.

Id. at 762. In order to qualify for a search incident to

arrest, and thereby avoid the search warrant requirement,

there must be a lawful arrest, and the arresting officers

may only search and seize any evidence on the arrestee’s

person in order to prevent its concealment or destruction,

and the area within his “immediate control” where an

arrestee might obtain a weapon or possibly destroy evi-

dence.

Numerous cases have applied the Chimel rule to faci

situations, and several restrictions have resulted. Among

those situations where a search was ruled illegal under

the Chimel doctrine are: an arrest outside a garage, with

the illegal search inside the garage after the arrests, United

States v. Garner, 467 F.2d 208 (7th Cir. 1972); where

police arrested a woman in her bedroom, entered a closed

closet door in that room and found heroin, United States

v. Mapp, 476 F.2d 67 (2d Cir. 1973) (ruled illegal because

closed closet was not under her immediate control); and

where three men were arrested in a parked car, which

was later towed to a garage and searched by police, Preston

v. United States, 376 U.S. 364 (1964) (incorporated into

the Chimel decision, 395 U.S. at 763). In each case the

area searched or the item seized was outside of the imme-

diate control of the arrestee, and therefore was illegal

if without a warrant, even though incident to an arrest.

The Fifth Circuit heard a fact situation very similar

to the current one and found the search to be invalid.

In United States v. Jones, 475 F.2d 723 (5th Cir. 1973),

it was held that an F.B.I. search of a briefcase only one

and one-half feet away from a handcuffed man could not

be upheld in the light of the Chimel reasoning, and there-

aleleidene er

fore would have been illegal if the arrested man had

not consented to the search. As the Court indicated, the

ability of a defendant to seize a weapon or destroy evi-

dence is critical to a determination whether a search of

objects close to his person is truly incident to arrest. Ibid.

The same legal analysis is applicable to the present search, {

for appellant was not in possession of his briefcase contain-

ing the the cocaine when the search was made by the

arresting agenis. The briefcase was seized by the agents

after appellant had given it to an airline employee for

check-in. The arresting agents kept the briefcase in their

possession while they led appellant to a private room,

and only relinquished control over the case after ordering

appellant to open it. Appellant at no time after arrest

had any opportunity to seize the briefcase and thereby

obtain any weapon or evidence from it. The briefcase

was in fact locked, and there was no physical manner

in which appellant could have seized the case from the

arresting agents and withdraw any evidence. Clearly the

briefcase was outside of appellant’s immediate control, and

Chimel v. California renders the search and seizure illegal.

The Order of the District Court for the Middle Dis-

trict of Tennessee of November 16, 1973, upheld the validity

of the arrest and search of appellant’s briefcase and was

reinstated by order of the same Court on February 8,

1974. Judge Gray indicated that he did not agree with

United States v. Burch, 471 F.2d 1314 (6th Cir. 1973),

but that he was bound by that decision as to the validity

of the search and seizure:

“The subsequent warrantless search of the defendant’s

locked suitcase, already in the physical possession of

agent Klick, presents, to the Court, a more serious

problem. The court finds itself in agreement with

the dissenting opinion of Judge Ely in United States

acres SORA COLELLO: TPIS penincanccmmetipeases ntti

v. Mechiz, 437 F.2d 145, 150-151 (9th Cir. 1971) where-

in he pointed out that such searches are not truly

analogous to that upheld in Chambers v. Maroney,

399 U.S. 42 (1970) and do not conform to the criteria

set forth in Chimel v. California, 395 U.S. 752 (1969).

- However this Court is bound by the opinion of the

Court of Appeals for Circuit in Burch, supra, holding

without discussion, that a subsequent search of luggage

following a lawful arrest was valid and therefore ad-

missible.” Id.

This reluctant deference to Burch requires analysis

to reveal why Burch misstates the law and should not

therefore be controlling here. Burch concluded that “the

arrest being lawful, the search and seizure incident thereto

was likewise valid.” Id. at 1317. This conclusion is directly

opposite from Chimel. The Burch court did not even

note that Chimel existed, although it had been the law

for two years. This Circuit did discuss the controlling

status of Chimel, however, in cases decided more recently

where it was recognized that the Court must look beyond

the arrest, and determine as Chimel requires, whether

the area searched was within the area from which a person

might gain possession of a weapon or destructible evidence.

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

States v. Becker, 485 F.2d 51 (6th Cir. 1973); and United

States v. Mulligan, 488 F.2d 732 (6th Cir. 1973). In each

case determining the issue of the validity of a search

incident to arrest since Burch the Sixth Circuit has ignored

the conclusion that a valid arrest automatically means

a valid search, and the Court has applied the Chi:el

reasoning. It is significant that at least as of May, 1974,

Burch has not been cited as authority in any reported

decision, and that in the three Sixth Circuit decisions

regarding this issue since Burch, the Chimel reasoning

has been followed, and the Burch reasoning rejected.

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

decided 11 days after Burch, is relevant to the issue of

the validity of the search and seizure. In that case a

sack of money was taken from behind a water heater

in an apartment in which the defendant was arrested with-

out a warrant. This seizure occurred after the defendant

was arrested and under the control of the arresting agents.

It was held that the area from which the sack was seized

was outside the suspect’s immediate control as defined

in Chimel, and this holding was upheld, Id. at 1066, even

though it was a couple of feet away from that defendant.

Similarly, the cocaine found in appellant’s locked brief-

case was outside of his control when seized. The brief-

case was already surrendered to the airline at their check-

in. Agents took control of the case at that point and

never relinquished control over it until they forced appel-

lant to unlock the bag in front of them in another room.

There clearly was no danger of appellant’s seizing a weapon

from it or destroying evidence as it was locked and in

the control of the agents, as was appellant. Once the

luggage was in the possession of the arresting agents, they

had every opportunity available to them to obtain a search

warrant for the contents of the briefcase. The failure

to secure a warrant even at this point was a continuing

act evidencing the Government’s complete disregard for

procedural rules and Constitutional safeguards. Clearly

this type of arrogant disrespect for the law is not what

the Chimel justices had in mind when they spoke of the

justifiable exception to the usual warrant requirement.

Furthermore, the specific justifications for a Chimel search

(protecting the arresting officers and preventing the de-

struction of evidence) are not present to support the search

in the instant case, particularly where the appellant was

handcuffed and considerably removed from the objects

ultimately searched. Such searches violate not only the

ENP SOIT OR DERE aE OSEAN: NGL HOSES ty

a re ea ana ae ater

PI STS a 6 ORR Aka Depa a ogee TR ret aroaes

letter of the law as expressed in Chimel, but also its

spirit.

The only other legal reason for searching the brief-

case would be by consent of appellant. In this situation,

however, appellant at first refused to unlock his case,

and did so only after the agents ordered him to. Such

an act cannot be construed as a consent to search, for

where there is coercion there cannot be consent. Bumper

v. North Carolina, 391 U.S. 543 (1968).

The entire search and seizure was therefore illegal

under Chimel and Shye, supra, and any evidence obtained

therefrom should have been suppressed. The District

Court Order upholding the validity of the search was

clearly erroneous, and must therefore be reversed.

ITI.

Whether the Fourth Amendment Requirement of

Probable Cause to Support a Warrantless Arrest Is Vio-

lated When the Sole Source for Such an Arrest Is an

Informer’s Tip That Is Totally Uncorroborated by Any

Independent Surveillance Work Conducted by the Ar-

resting Officers.

The initial contention on appeal is that any evidence

or testimony obtained as a result of appellant’s arrest

should have been suppressed by the trial court as the

product of an unlawful arrest. Because the arrest of appel-

lant was without a warrant and was not based upon suffi-

cient evidence to constitute probable cause, it did not sat-

isfy constitutional requirements. Any evidence obtained

as a product of this arrest, therefore, was tainted and

should have been suppressed by the trial court. The failure

to suppress deprived appellant of a lawful and fair trial

and requires a reversal of this case.

Rr RS EA SALTY Anon I Rte f

PEON TE OD

The Fourth Amendment specifically demands that

probable cause exist before an arrest or search may be

properly obtained. There is a long-standing interpretation

by the United States Supreme Court that this requirement

of probable cause, whenever practical must be determined

by a “neutral and detached magistrate, instead of being

judged by an ofricer engaged in the often competitive

enterprise of ferreting out crime.” Johnson v. United

States, 333 U.S. 10 at 13, 14 (1948). See also, McCroy

v. Illinois, 386 U.S. 300 (1967) and Terry v. Ohio, 392

U.S. 1 (1968). One reason for the preference for a deter-

mination of probable cause by neutral magistrate in the

form of an arrest warrant is that the neutrality of the

magistrate is preferred over the sometimes partial and

competitive nature of the enforcement officer. Another

factor was stated in Beck v. Ohio, 379 U.S. 89, 96 (1964)

as follows:

“An arrest without a warrant bypasses the safeguards

provided by an objective predetermination of probable

cause, and substitutes instead the far less reliable pro-

cedure of an after-the-fact justification for the arrest

or search, too likely to be subtly influenced by the

familiar shortcomings of hindsight judgment.”

An evidentiary hearing was held on November 16,

1973, by Judge Gray to determine the lawfulness of the

arrest, search and seizure of appellant and incriminating

evidence used against him. It was alleged there by Agent

Yarn of the Nashville office of the Drug Enforcement

Administration, who arrested appellant on July 25, 1973,

that he received information on July 24 from a Baltimore

agent, which suggested that appellant might leave Nash-

ville with some cocaine on that date. Appellant did not,

in fact, leave on that date, but at approximately 2:30

p.m. on the 25th of July Agent Yarn received another

eibtietenes tae celia eR ae ee

phone call from the Baltimore agent suggesting that appel-

lant would instead leave that afternoon. Agent Yarn did

not personally know the Baltimore agent, nor did he then

learn the identity or reliability of the informer who had

provided the Baltimore agent with the news. Despite

‘ this advance notice, Agent Yarn took it upon himself to

forego the process of securing an arrest or search warrant

after conferring with the prosecuting attorney in this case,

and waited until he finally met appellant at the airport

and arrested him. The arrest occurred as appellant ar-

rived at the airport for a flight which Agent Yarn knew

would not leave before 5:00 p.m.

There was, therefore, ample time for Agent Yarn to

have secured an arrest or search warrant prior to the

arrest. The rationale employed by the Assistant United

States Attorney in avoiding the magistrate and two federal

judges readily available must have been one of two alterna-

tives: either he was aware of the insufficient probable

cause upon which a warrant could issue, and would try

to justify it with an after-the-fact determination, in which

case the arrest would be illegal; or he made a determina-

tion of probable cause assuming the position of a neutral

magistrate, which is clearly in violation of the Fourth

Amendment and the authority cited.

A hearing was held by the trial court on November

16, 1973 resulting in the order overruling appellant’s mo-

tion to suppress evidence and testimony resulting from

his unlawful arrest. This order was later vacated, and

then reinstated by an order of the same court on February

11, 1974. The order declared that the arrest was valid

by virtue of the authority in Beck v. Ohio, 379 U.S. 89

(1964) and United States v. Burch, 471 F.2d 1314 (6th

Cir. 1973). However, it can be shown that these cases

do not call for a conclusion that the arrest was valid

in this situation.

Cee re . a

: 5 ee EEE TREE ROL AEE CINE ER Nhe ter ean PURER OR mcat ate ea Stage TT:

COAST Cea ET Sees .

Beck v. Ohio, supra, involved the arrest of a man

for possession of clearing house slips in violation of a

state statute. However, that arrest was ruled unlawful

and the evidence was suppressed because the arrest was

made without a warrant, even though that defendant had

a record of prior convictions for that particular crime.

Indeed, the Beck court warned that: “[a]n arrest with-

out a warrant bypasses the safeguards provided by an

objective predetermination of probable cause, and substi-

tutes instead the far less reliable procedure of an after-

the-event justification for the arrest or search, too likely

to be subtly influenced by the familiar shortcomings of

hindsight judgment.” Id. at 96. The Supreme Court prop-

erly found that probable cause for arrest did not exist,

and, therefore, the arrest and subsequent search were in-

valid. Beck can hardly be cited as a basis for the validity

of appellant’s arrest.

United States v. Burch, supra, upheld an arrest be-

cause of the circumstances there involved. The Court

first held that “. . . where the initial impetus for an

arrest is an unnamed informer’s tip, the arresting officers

must corroborate by independent investigation the infor-

mation that the arrestees committed a felony or were

in the process of committing a felony.” Id. at 1317. The

Court was able to find corroboration on the basis of six

other factors: (1) knowledge that the defendant was in-

volved in narcotics violations the previous year; (2) infor-

mation from a concerted surveillance of the defendant

corroborating the informant’s description of ihe defendant’s

modus operandi; (3) that the informer had purchased nar-

cotics from the defendant on previous occasions; (4) that

the arresting agent had a report from an informant else-

where that defendant was known to deliver drugs to sev-

eral United States cities; (5) that the arresting officers

made observations immediately prior to the arrest; and

(6) the general knowledge of the agents as to persons

dealing in illegal drugs. None of these factors exist as

to appellant, and the cases can be easily distinguished

as a result. Appellant had no previous arrests or convic-

tions in narcotics, and the arresting agents professed no

knowledge as to any dealings of appellant with narcotics.

Agents had done no surveillance work on appellant to

corroborate the informer’s tip, and the informer did not

allege that he had ever dealt with appellant before. The

two fact situations are inherently different and require

different treatment.

Appellant, therefore, contends that his warrantless ar-

rest was unconstitutional and that any evidence related

thereto is tainted and must be excluded. A contrary deci-

sion would only serve to bypass the safeguards of the

warrant procedure and condone and encourage the very

“after-the-fact justification” which tle Supreme Court has

declared illegal.

IV.

Whether a Defendant’s Constitutional Right to a

Fair Trial Before an Impartial Judge Is Violated When

the Trial Judge Makes Continuous Interruptions, Com-

ments, and Gestures in the Presence of the Jury to the

Severe Prejudice of the Defendant.

The mandate of the Fifth and Fourteenth Amendments

of due process necessarily requires that the trial judge

in a jury trial conduct himself in such a manner as to

appear totally impartial. When a judge begins to question

witnesses and make gestures so that he is, in fact, assuming

an advocat«’s position, the jury is influenced so extensively

that the guilt-determination process is impaired and a de-

fendant is deprived of a fair hearing. This right is not

subject to compromise and is not diminished by the weight

of the evidence against a defendant. Essential to the con-

duct of a fair and impartial trial is the complete neutrality

of the presiding judge. Such a requirement is particularly

acute where the case involved highly sensitive charges,

as for example, drug charges. Courts havé frequently

recognized the fact that jurors look to a judge for guidance

and place great reliance on his remarks, comments, and

gestures. In describing the unique position a judge com-

mands, one judge stated as follows:

The trial judge occupies a high position. He presides

over the trial. The jury has great respect for him.

They can be easily influenced by the slightest sugges-

tion coming from the court, whether it be a nod of

the head, a smile, a frown, or a spoken word. It

is, therefore, imperative that the trial judge shall con-

duct himself with the utmost caution in order that

the unusual power he possesses shall not be abused.

Jochems, J., in State v. Wheat, 131 Kan. 562, 292

P. 793 (1930) (in dissenting opinion). :

The Supreme Court also recognized the pivotal role

which a judge assumes in a trial when in Quereia v.

United States, 289 U.S. 466 (1933), it summarized the

duties and restrictions on a trial judge in a case that

it reversed because the judge had become too much of

an adversary.

“This privilege of the judge to comment on the facts

has its inherent limitations. His discretion is not ar-

bitrary and uncontrolled, but judicial, to be exercised

in conformity with the standards governing the judicial

office.... The influence of the trial judge on the jury

is necessarily and properly of great weight and his

lightest word or intimation is received with deference,

and may prove controlling. This court has accordingly

emphasized the duty of the trial judge to use great

care that an expression of opinion upon the evidence

‘should be so given as not to mislead, and especially

that it should not be one-sided’... .” Id. at 470.

As the Court stated, the trial judge’s behavior must

not preclude “that atmosphere of austerity which should

especially dominate a criminal trial and which is indispens-

able for an appropriate sense of responsibility on the part

of court, counsel and jury.” Offutt v. United States, 348

U.S. 11, 17 (1954). Judicial remarks or actions made in

the presence of the jury are subject to special scrutiny

because of the recognized fact that “the influence of the

trial judge on the jury is necessarily and properly of

great weight, and that his lightest word or intimation

is received with deference, and may prove controlling.”

Stan v. United States, 153 U.S. 614, 626 (1894); Bollenbach

v. United States, 326 U.S. 607, 612 (1946); Moody v. United

States, 377 F.2d 175, 180 (5th Cir. 1967). The judge must

take particular care that the respect which his office en-

genders does not tend to persuade or lure a jury to defer

to his stated opinions. Therefore, while a judge ‘s not

an automaton, he must exercise considerable due care to

avoid communicating to the jury prejudicial partisanship.

In the vresent situation, the trial judge went far be-

yond the “lightest word or intimation” that the Supreme

Court was concerned with to the severe prejudice of the

defendznt. There was a total of approximately 120 in-

stances during the course of the week-long trial in which

the trial judge interrupted the course of the proceedings

to ask questions or make comments in front of the jury.

It is to be admitted that the majority of these interrup-

tions was not prejudicial and that in fact many were

necessary to allow the judge to perform his role. However,

many instances so prejudiced the appellant that they may

PF aT PIR Oars rears »

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DOLD ELE LE WN BANAL OT RGR Tice MRS SF PORES? &

not be condoned as a necessary or proper exercise of

his position. Some of the more serious occasions are set

out below.

The first serious instance of bias occurred while the

jury was out of the courtroom, but it is important in

that it established the tone for later questions and com-

ments from the bench. The defense attorney had requested

the court make allowance for the use of a character wit-

ness before appellant testified because of the fact the wit-

ness had to fly .1 from South Carolina and had to be

in New York by 7:00 p.m. Judge Gray denied the request

and replied: “Mr. Quillen, I could possibly worry about

that if I took more time. Get the jury in here.” The

trial judge repeated his feelings about the use of the wit-

ness, the president of Jonathan Logan, Inc. “. . . I don’t

want to hear any more about how important that man

is or how he has to get somewhere. He can go somewhere

right now as far as I am concerned or testify.” After

Mr. Shwartz had testified as to appellant’s good reputation

and his excellent work with the customers appellant deals

with in New York and the Southeastern United States,

the Government decided not to cross-examine. However,

at this point, the trial judge interrupted with the following

damaging comment question:

“Mr. Shwartz, is it part of his reputation as known

by you that he has for a number of years been buy-

ing cocaine at $700 a half ounce and $1,000 an ounce

four to six times a year and use it personally?”

The inflammatory nature of this question, which as-

sumes a fact yet to be proven to the jury, unquestionably

voided this person’s effect as a character witness. The

effect is even more significant in this situation where

appellant’s reputation is an important element in his de-

fense of entrapment so as to help negate any prior crim-

Ek BES nae hae

ME BOT IAS PEE REE? gM anges haere REO NE BIOENG NA» ope +

hey spas 4 BAGS spurns ome FRIAS IYO IEMA IG NT of a tre ,

inal design or intent. This comment by a federal judge

is inexcusable, 2nd clearly put the court on the side of

the prosecution.

It is significant that even if the above question were

posed by the Government it would be prejudicial for the

above reasons. In addition, it is crucial that the form

of the question is improper in that it sought to obtain

a personal observation of the witness apart from the gen-

eral reputation of appellant in the community. As the

supreme Court emphatically declared in Michelson v.

United States, 335 U.S. 469, 482 (1948):

“Since the whole inquiry, as we have pointed out,

is calculated to ascertain the general talk of people

about defendant, rather than the witness’ own knowl-

edge of him, the form of inquiry, ‘Have you heard?’

has general approval, and ‘Do you know?’ is not

allowed.”

The whole nature of this incident exemplifies perhaps

the grossest form of judicial misconduct, and unfortunately

appellant was the unwilling victim. It should be noted

in addition that appeilant’s attorney objected to the ques-

tion, but that the court refused to instruct the jury to

disregard the dialogue.

Further examples of comments which had the effect

of placing the court on the side of the Government fol-

lowed. The judge at one point led the witness, Wino-

kour, in his question so as to help him explain that he

didn’t consider himself a government informer while in

Atlanta in 1970. This was significant since Winokour’s

reliability as an informer was questioned in the suppres-

sion hearing during which appellant was not allowed to

cross-examine. Winokour had denied under oath that he

was an informer during the time indicated, when in fact

REEL Se BES LETT

he was supplying information to the Government. The

court in effect put words into his mouth with its question,

enabling him to try to explain the apparent contradiction.

Shortly thereafter, Judge Gray interrupted appellant’s

examination to ask extensive questions through almost

four pages of transcript. The responses evoked from these

questions tended to rebut appellant’s defense of entrap-

ment. After a brief repose, the trial judge again inter-

rupted appellant and posed another page of transcript’s

worth of questions. The net effect was to eliminate appel-

lant’s right to effectively confront Winokour, the only Gov-

ernment witness who could offer evidence contrary to

appellant’s theory of entrapment. At this point appellant

not only objected, but moved for a mistrial on the ground

that the actions of the trial judge in their entirety were

depriving appellant of a fair trial. This motion was denied.

The trial judge later mate comments which tended

to minimize the effectiveness of another character witness,

Nile Yearwood. Judge Gray at first stated: “Can you

qualify him, Mr. Quillen? Apparently not. Go ahead.”

Despite this statement, the witness qualified himself by

the court’s questioning as knowing appellant’s general

reputation in the community after heving talked with a

lot of people about appellant.

The trial judge examined the recollection of Winokour,

again interrupting appellant’s reexamination. The Court

tested Winokour’s recollection of the lack of furniture in

appellant’s townhouse, which was a reason given by appel-

lant for making a trip to Columbia to purchase more

furniture. The effect of the interruption was again to

minimize the effectiveness of appellant’s right of confronta-

tion of the Government’s key witness in rebuting the en-

trapment defense.

EDEN y8E rae

i a ae eT

The Court again intervened when appellant was at-

tempting to pursue its constitutional right of confrontation.

Appellant, while probing into inconsistencies of a Govern-

ment rebuttal witness’s statements, was stopped by the

trial judge and was requested to read Grand Jury testi-

mony when appellant did not wish to do so. Appellant

indicated to the Court that he had intended to get the

witness to declare himself on a prior statement to the

Grand Jury; and that he had other witnesses to impeach

him if he denied it. Appellant then respectfully moved

the court to declare a mistrial, which was denied, and

to instruct the jury to disregard the comments of the

court when it instructed appellant how to run his case

and this also was denied.

The Court again assumed the role of the Government,

although out of the hearing of the jury, when it suggested

that the Government call a certain witness after the prose-

cutor had indicated he would not do so.

The Court’s remark concerning delays in the trial di-

rected at the defense certainly influenced the jury. After

having served for a number of days, the jury would be

susceptible to a charge that one of the parties was respon-

sible for their delay in returning home.

The trial judge again recommended that the defense

pursue a subject that it did not wish to pursue. This

put appellant in an unfavorable light when the subject

was not in fact pursued, thereby prejudicing the appellant.

The Sixth Circuit Court of Appeals, in its review

of the trial judge’s conduct, dismissed his improprieties

by stating:

From our examination of the record, we find that

the trial judge committed no reversible error in his

conduct of the trial and that, in any event, any alleged

Se Pre ape cosr

PIG OE, Bim

so cedaiemen eee =

error, in view of the overwhelming evidence against

the appellant, was not + prejudicial “beyond a reasonable

doubt.”

In support of its ruling, the Court cited Chapman

v. California, 386 U.S. 18 (1967).

In Chapman, however, this Court explicitly stated that

a standard for judging harmless error which placed pri-

mary emphasis upon the “presence of other substantive

evidence that proof of guilt was overwhelming” was mis-

guided at best. 386 U.S. at 23. Instead, the Chapman

Court stated that the applicable standard was one which

it had originally announced in Fahy v. Connecticut, 375

U.S. 85 (1963), wherein it said that the primary concern

was “whether there is a reasonable possibility that the

evidence complained of might have contributed to the con-

viction.” 375 U.S. at 86-87. If it did, reversal was re-

quired. One need not show, therefore, that the judge’s

conduct was the cause of conviction, but only that it rea-

sonably might have been one of the factors which led

to conviction.

The totality of the statements by the trial judge served

to influence the jury to such a degree that the appellant

was severely prejudiced. It is evident that application

of the Fahy-Chapman standard to the trial judge’s prejudi-

cial conduct demands reversal, or in the alternative, a

new trial.

= TS Oa LOY EMRE Oe Te REE DUG HN DS Cot | As

+: 8 A ae 90 epee

Whether Denying a Request for a Special Caution-

ary Instruction Concerning the Reliability of Uncor-

roborated Testimony Given by a Paid Government In-

former Where That Testimony Is the Primary Basis

upon Which a Conviction Is Based, Deprives a Defen-

dant of His Right to a Fair Trial.

A most serious error was committed by the trial court

in delivering its jury instruction when it omitted a cau-

tionary instruction with respect to the testimony of Bruce

Winokour, the Government informer. In failing to give

this instruction and in denying appellant’s special request

#5 for such a warning, the court committed prejudiciai

error which denied appellant his right to a fair trial.

The Sixth Circuit in United States v. Griffen, 382

F.2d 823 (6th Cir. 1967) reversed the conviction of an

appellant convicted for selling heroin to a government

informer who was an addict and whose testimony was

only lightly corroborated, where the trial judge failed to

give a cautionary instruction. Although the informer in

that fact situation was also an addict, the court did have

some general rules for jury instructions when a govern-

ment informer is involved.

“Thus, if the incriminating testimony of an informer

is uncorroborated or unsubstantial, special cautionary in-

structions are surely required. If such testimony of an

informer is corroborated in critical respects, we neverthe-

less favor careful instructions in form and substance cal-

culated to call attention to the character of the testimony

of the informer, leaving to the jury the ultimate question

of value and credibility. The sufficiency of the instructions

depends upon other incriminating circumstances of the

case tending to corroborate the informer.” Id. at 828, adopt-

ing as law the rule set out in Todd v. United States,

345 F.2d 299 (10th Cir. 1965). The Court concluded that

such an omission requires a reversal and a new trial even

though a conviction might have resulted even with a cau-

tionary instruction, since this probability is not the criteria

for reversal. Id. at 829; Kotteakos v. United States, 328

U.S. 750, 776 (1946).

Several other circuits have adopted this rule specifi-

cally. In addition to the Sixth and the Tenth Circuits,

the D.C. Circuit in Fletcher v. United States, 158 F.2d

321 (D.C. Cir. 1946) held that the jury should be instructed

to closely scrutinize the credibility of the testimony of

a paid informer for the purpose of determining whether

it is colored in such a way as to place guilt on the defen-

dant in furtherance of the witness’s own interest. Three

other circuit courts have specifically adopted Fletcher as

the law in their jurisdictions. United States v. Masino,

275 F.2d 129, 133 (2d Cir. 1960); Joseph v. United States,

286 F.2d 468, 469 (5th Cir. 1960); and Orebo v. United

States, 293 F.2d 747, 750 (9th Cir. 1961). In addition,

the First Circuit adopted the same reasoning regarding

another type of witness with a strong motivation to lie,

the accomplice. McMillen v. United States, 386 F.2d 29,

cert. den. 390 U.S. 1031 (1967).

The rationale for this rule on cautionary instructions

is based on the fact that informers, especially when com-

pensated for their efforts, have a motive to lie. It is

this danger that creates a necessity for special instructions

on the questionable reliability of informers.

In the present fact situation, appellant admitted pos-

sessing cocaine at the time of his arrest, which he bought

for Mr. Winokour. Appellant’s defense was that of en-

trapment: That Bruce Winokour induced appellant to il-

legally purchase cocaine for Mr. Winokour’s benefit. Up-

LE AIL SOI AIL LEED TE EORE AOS APE A ht Oi Eh ah > Wile. inner

aeeeermneae cence: ei

on this issue the only evidence was the testimony of the

appellant, Winokour and Nancy Jenkins. The other wit-

ness present at the meetings between Winokour and ap-

pellant, Mr. Modell, was under indictment and was there-

fore unwilling to testify.

Appellant testified that Winokour initiated the meet-

ing between the two in New York City by phoning twice

and then actually coming over to appellant’s hotel room.

Indeed it would be strange for Winokour to come all

the way over to appellant’s room in New York from his

house in Maryland if he were not initiating the transac-

tion. Winokour was an acquaintance of appellant’s whom

he had met in Miami and again in New York on earlier

occasions. Appellant testified that he never offered to

sell any cocaine, but that Winokour told him he was look-

ing for some cocaine and inquired to determine if appel-

lant knew any sources. Appellant denied knowing any

sources, and when Winokour offered him a motorcycle if

appellant would name any sources, appellant again replied

in the negative. When Winokour tried a third time with a

large financial reward offer, appellant finally relented and

made some calls to try to locate some sources. Appellant

finally succeeded in obtaining some cocaine for Winokour,

and it was this cocaine that appellant had in his possession

when arrested. Appellant later told Winokour by phone

that he would return the cocaine to a “Michael” if

Winokour did not buy it, since he was only trying to

help Winokour. Furthermore, appellant testified that he

had not even paid the supplier for the cocaine, since appel-

lant intended to return it if Winokour subsequently re-

fused to conclude the transaction.

It was therefore appellant’s contention that it was

the use of a trusted acquaintance who initiated a meeting

and conve.sation about purchasing cocaine, and made re-

4 me | AE Rae ica ec premiegace tmsepeenis? PLE OPEN TRY THE aay OE Smee

Sa Bh ar ae

peated pleas to appellant, which induced him to make

a connection to furnish Winokour with some cocaine. Mr.

Winokour admitted going to appellant’s hotel room with

the intention of making a connection for his companion,

Mr. Modell, but that he did not personally offer to buy

any cocaine, and that Modell did. Winokour additionally

claimed that appellant first called him in offering to sell

cocaine to him. However, it should be noted that even

if Winokour were believed, he testified that he personally

gave Modell $5,000 with which to buy cocaine, and accom-

panied him to appellant’s room in New York to act as

an “intermediate” to get appellant to sell cocaine to Modell.

Winokour therefore admits he provided the monetary needs

and a buyer to induce appellant to sell cocaine to another.

Thus the issue of whether Winokour personally induced

appellant to sell him cocaine, or whether he got Modell

to do the inducing, is immaterial, since a case of entrapment

can be made out either way.

Winokour further testified that appellant had the co-

gaine in plain view on a desk in his room in New York,

ready to sell. This was directly refuted not only by appel-

lant, but also by Nancy Jenkins, who was present. She

testified that there were no packages of white powder

on a table in appellant’s hotel room, in accord with appel-

lant’s testimony and rebutting Winokour’s story that ap-

pellant had cocaine in plain view ready to sell. She did

not, however, overhear the conversation between appellant

and Winokour regarding the drug transaction, and could

not testify as to that. Additionally, Winokour claimed

that appellant informed him that appellant had a kilo

of cocaine ready to sell in his room, yet Winokour admitted

that appellant had to make some phone calls after their

conversation during which appellant was haggling over

a price. The inconsistencies in Winokour’s testimony sup-

ee ee

PPI SR

port the need for a special cautionary instruction with

regard to the credibility of his statements.

Winokour admitted that he was being compensated

by the Government for his efforts in securing informaticn

about appellant. He was thus a paid Government informer

for the Government, and fits the category of persons which

the Sixth Circuit says warrants a special cautionary in-

struction. In addition, Winokour is an admitted user of

narcotics, and has been arrested and convicted previously

for a violation of the marijuana tax act as a reduced

charge after testifying for the Government in a case which

resulted in an acquittal. He also furnished the Government

with information on other occasions. He had also been

convicted of burglary and shoplifting. These last two fac-

tors increase the necessity for a cautionary instruction

in this situation.

As to the issue of whether Winokour implanted the

criminal design in appellant’s mind, it has already been

indicated that appellant testified that he was approached

by Winokour, and that he was asked more than one time

if he would make a connection to get Winokour the co-

caine before he succumbed. Appellant had never been

in trouble with the law on any drug related charges before,

and in fact had no previous convictions. He testified that

he had never before sold any drugs to anyone. Appellant

adequately established a lack of criminal attitude prior

to his arrest.

The only government witnesses who testified to the

contrary were Patricia Sperenzella, who pleaded guilty

to reduced charges prior to testifying in this case, and

her “roommate” but unmarried companion, Stephen

Sperenzella, who was led to believe he would get a re-

duced sentence to a drug distribution charge if he testified

in this case. Thus a special cautionary instruction was

See ee ee

necessary with respect to their testimony. This is further

necessitated by the admission by Patricia that she had

already committed perjury once in this case, and that

Stephen admitted first that he also had given contradictory

statements to agents and second that anything “truthful”

he said in Court now would not be used again him.

The net effect is that these three persons, Winokour

with respect to the entrapment itself and the Sperenzellas

with respect to the appellant’s character, were the only

persons offering evidence contrary to the entrapment de-

fense established by appellant, and all three had adequate

motive to lie. A cautionary jury instruction was abso-

lutely essential then to preserve a semblance of a fair

and just trial.

To counter this, appellant called several witnesses to

testify as to his good character. They included Richard

Shwartz, president of Jonathan Logan, Inc. and Nile Year-

wood, retired president of Capitol City Bank in Nashville

who had known appellant for 14 years.

The second serious error in the court’s jury instruc-

tion was the prejudicial instruction regarding motive or

bias on the part of witnesses. The trial court singled

out defense witnesses Nancy Jenkins and Charles Kramer

as deserving a special cautionary instruction as a result

of their being named as co-defendants with appellant in

another trial. The trial court properly instructed the jury

that they could not consider these indictments as proof

of their guilt, nor can they be used to impeach these

two witnesses. However, the court did state that these

indictments can be considered for the purpose of deter-

mining the motive or bias of these two as witnesses in

this case.

Although requested to do so, the trial court refused

to administer a similar cautionary instruction with respect

Fe Pee Tr ae ae NO ee Te nS a eS

FOG CE Re — 3

to other witnesses who were called by the Government

and were similarly indicted or had a special motive or

propensity to lie. Appellant sought a cautionary instruc-

tion for perjurers in instruction request #2, since Govern-

ment witness Patricia Sperenzella admitted having lied

under oath. The trial court completely refused to instruct

on this matter. Appellant in special request #3 sought

a cautionary warning regarding the impeachment of wit-

nesses because of prior inconsistent actions, or convictions,

or a general bad reputation. This request referred to

Patricia and Stephen Sperenzella, both of whom were con-

victed prior to testifying for drug law violations. As al-

ready indicated, Patricia had pled guilty to a reduced

charge prior to testifying in this case for the Government

while Stephen pleaded guilty in hopes of getting a reduced

sentence for testifying in this case after having given con-

tradictory statements to agents.

A third Government witness, Mr. Winokour, also had

previous convictions to his discredit and had charges

dropped in exchange for testifying in this case.

The trial court refused to give these specific instruc-

tions, and only gave a short general charge without men-

tioning names that the jury could consider prior convic-

tions relevant if it wanted to. The court failed to charge

that these convictions and reduced charges could be a

source of motivation for the testimony of these Govern-

ment witnesses, whereas the court had so instructed after

specifically referring to the two defense witnesses.

The discriminatory nature of the charge gave the Gov-

ernment a significant advantage in its prosecution. This

factor alone would have been sufficient to deprive appel-

lant of a fair trial, since the jury received a distorted

and severely prejudicial instruction on the law.

“€ at Sar PEL BEAL AS EE PGE LIS i OR PEE AEE EBE ONO OR at ae Re EE ELLE OE O ETY SIO ET NSE ROO nts 1A 9s

ASANTE NEIMAN Meta «tei OA at haa Rea Mia Bre Bid nels terete oe U stee

The third error in the substance of the instruction

to the jury at trial was the failure of the court to instruct

the jury that with respect to the defense of entrapment,

that Bruce Winokour was an agent of the Government.

As previously stated, Mr. Winokour by his own admission

was working with the Government officers in the investiga-

tion of this case, and was compensated for his efforts

in this direction. The Government cannot make use of

an informer, even though he remains unpaid, without that

informer becoming an agent of the Government for that

purpose. Sherman v. United States, 356 U.S. 369, 375

(1957). There an informer can be a sufficient link with

the Government to create an illegal entrapment situation

if that informer improperly induced the defendant into

committing the illegal act. Id.

The trial court’s instruction regarding the defense of

entrapment referred only to Government officers or agents

without explaining just what constitutes a Government

agent. Appellant’s special instruction request +6 specifi-

cally referred to Winokour as a Government informer,

and would have instructed the jury that he, as an agent

of the Government, could trigger an entrapment defense

if he improperly induced appellant to commit the crime

charged.

The result of the jury charge was to leave the jury

ignorant as to who qualified as a Government agent, and

uninstructed on how to determine if Winokour was one.

The effect was to deprive appellant of his right to put

his defense of entrapment adequately to the jury, and

thus deprive him of a fair trial.

Any one of these three errors in the substance of

the jury instructions alone could be sufficient to create

a situation where the appellant was deprived of his right

to a fair hearing. This circuit has emphatically stated

ea eee ee —

‘

OANA ESA OITA a Bie 8 Sa . ae.

that a cautionary instruction is absolutely essential where

a paid informer’s testimony is used to prosecute a person,

especially where as here the informer’s testimony is com-

pletely uncorroborated, he has had several charges against

him reduced by the Government prior to trial, and he

is a previous felon and admitted narcotics user. This

situation combined with the discriminatory charge by the

trial judge casting suspicion on defense witnesses but not

at prosecution witnesses, and the confusing charge regard-

ing Government agents, created an extremely prejudicial

statement of the law cast in favor of the Government.

There was no way a well intentioned lay jury could over-

come this discriminatory instruction of the law by the

trial judge. Appellant was effectively denied a fair trial

and the only proper remedy is for a new trial to be

granted.

The trial court erred further in refusing to deliver

a jury instruction with respect to the effect of testimony

by witnesses as to the good character of the appellant.

Appellant in his special request no. 4 sought to have the

jury instructed that testimony of appellant’s good character

should be considered along with other evidence in the

case.

Character testimony is a vital part of the relevant

.proof used to establish guilt or innocence in a criminal

trial. The Supreme Court has recognized the importance

of character evidence for a long time.

“.. . the decided weight of authority now is that

good character, when considered with the other evi-

dence in the case, may generate a reasonable doubt.

The circumstances may be such that an established

. reputation for good character, if it is relevant to the

issue, would alone create a reasonable doubt, although

without it, the other evidence would be convincing.”

Edgington v. United States, 164 U.S. 361, 366 (1896)

XE LORS MOSER SIE LS RAEN TOE MS Be ARONA I

This circuit has also had occasion to comment on the

relevance of good character evidence. Gariepy v. United

States, 220 F.2d 252, 261 (6th Cir. 1955), cert. den. 350

US. 825, interpreted the effect of Edgington as requiring

a court instruction on the use of character evidence not

only when the weight of the evidence is evenly balanced

between guilt and innocence, but requiring an instruction

in every case. See also, Poliafico v. United States, 237

F.2d 97 (6th Cir. 1956), cert. den. 352 U.S. 1025, reh.

den. 353 U.S. 93.

A trial judge has a duty of instructing a jury on

all points of law relevant to the issues developed in the

trial. If he fails to do so, or instructs improperly, the

only way the error can be rectified is to grant a new

trial if the effect was to prejudice the convicted appellant.

Edgington v. United States, 164 U.S. 361 (1896)

In this case, the character of appellant was a vital

issue. Since appellant relied on a defense of entrapment,

it was essential that he preserve his good reputation in

defending against the prosecutor’s attempt to show appel-

lant’s predisposition to commit the crime charged. Appel-

lant called the President of Jonathan Logan, Inc. and the

retired President of Capitol City Bank, among others, to

support his claim of good character. It was essential to

appellant’s defense that he be permitted to submit this

evidence before the jury and that the jury be instructed

as to the weight of such testimony and its purpose.

The failure of the trial judge to instruct on the use

of character evidence constituted prejudicial error. This

omission, when considered as part of the totality of the

circumstances created by other omissions and discrimina-

tory statements which were part of the jury instruction,

deprived appellant of his right to a fair and proper hearing.

The only proper remedy is to grant appellant a new trial.

i en ee ms ver

POG LEARY IIS, — “SREP ee :

oe beens ates

VI.

Whether It Is Improper for Impeachment Pur-

poses, for the Prosecution to Ask Several Defense Wit-

nesses If They Were Indicted Along with a Defendant

in a Totally Independent and Unrelated Proceeding

Where No Convictions Have Resulted.

The trial court created reversible error in permitting

the Government to pursue the existence of indictments

for several defense witnesses and appellant for the purpose

of impeachment. The introduction of this evidence so

prejudiced appellant in the eyes of the jury that he was

denied any trace of fairness in his hearing. Justice could

only be restored by granting appellant a new trial.

The Government improperly inquired in cross-exami-

nation whether Nancy Jenkins, Charles Kramer, defense

witnesses, and appellant had been indicted in another dis-

trict. Appellant objected on each occasion but was over-

ruled by the trial court. The insinuations referred to

mere indictments in unrelated facts situations, for which

trial had not yet been held. This pursuance of the ex-

istence of the indictments themselves, and not the truth

of the matter contained therein was improper. No convic-

tions have arisen from these indictments, so they are im-

proper for impeachment purposes. The only purpose the

Government could have in asking these questions was to

cast doubt on the credibility of these witnesses and the

appellant, and they certainly did succeed.

The basic rule established by this court, as stated

in United States v. Fisher, 377 F.2d 285, 286 (6th Cir.

1967), is that: “[t]he introduction in a criminal case

of testimony concerning unrelated criminal activities of

a defendant is so likely to have a prejudicial effect on

the jury that it is generally held to be inadmissible,

”

vail STDIN DA 8 GO Bs RI RULE RO MO SOVVTE Dy VLE INE) PE

PAT ee” sey . “s

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for Writ of Certiorari should be granted.

Respectfully submitted,

DALE QUILLEN

CERTIFICATE OF SERVICE

I hereby certify that I did this 5th day of February,

1975 mail a copy of the foregoing Petition for Writ of

Certiorari to the Solicitor General of the United States,

Department of Justice, Washington, D.C. 20530.

DALE QUILLEN

RIE LORIE SLD LE IL DARE RIES FEE LOLET IG AO ILO BIA EPL EN I LN AMO EER GALORE LO ALR

POP NOES LT tl Aaraeeecene SMEG TO SE RL Oe

A-1

APPENDIX

No. 74-1620

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

CHARLES VICTOR COSTANZA,

Defendant-Appellant.

ORDER

(Filed December 11, 1974)

Before: PHILLIPS, Chief Judge, MILLER, Circuit Judge,

and DeMASCIO,* District Judge.

The appellant was convicted on a one-count indictment

for violation of 841(a)(1) of Title 21 U.S.C. in that he

allegedly knowingly, and intentionally possessed with in-

tent to distribute, a quantity of cocaine, a controlled sub-

stance.

On appeal, the appellant contends that the district

court erred (1) in overruling motions to suppress testimony

allegedly obtained as a result of an unlawful arrest and

an unlawful search and seizure; (2) in conducting a sup-

*The Honorable Robert E. DeMascio, United States District

Judge for the Eastern District of Michigan, sitting by designation.

as Si la a ie as a - —

A-2

pression hearing by calling the informant as the court’s

own witness and denying the appellant, as weil as the

government, the right to cross-examine the witness; (3)

in denying certain special requests for instructions to the

jury; (4) in allowing the prosecution to ask several de-

fense witnesses if they were indicted with appellant in

a case in New York; and finaily, in continuously interrupt-

ing the trial and making comments and gestures which

were prejudicial to the appellant and caused him to be

denied a fair trial.

Narcotics agents had prior information that the appel-

lant had engaged in dealing in narcotics and they received

a tip from an informant that he would arrive at the Nash-

ville airport at a given time on a certain date. The agents

proceeded to the airport and found that the information

given to them by the informant was confirmed by their

own observations. They proceeded to arrest the appellant

and to seize and search his luggage which was nearby.

The search disclosed in the luggage a pair of balance

scales, a large quantity of cocaine, and a box of plastic

baggies. A search of the appellant’s person also disclosed

an amber bottle containing cocaine.

We have carefully considered all of the errors assigned

for reversal of the judgments of conviction and we find

them to be without merit. The agents, on the basis of

the informant’s tip and their own observations at the air-

port, had probable cause to arrest the appellant and to

search the luggage which was located in close proximity

of his person, and then to effect a seizure of the incrim-

inating contents. See Draper v. United States, 358 U.S.

307 (1959); Chimel v. California, 395 U.S. 752 (1959); and

United States v. Burch, 471 F.2d 1314 (6th Cir. 1973).

While the right of cross-examination of witnesses is

scrupulously protected by the courts, it is subject to limita-

———

A-3

tions within the sound discretion of the trial judge. In

the present case, the trial judge made the informant his

own witness in order to make inquiry only with respect

to whether or not wiretaps furnished any of the probable

cause information upon which the agents relied in arresting

the defendant. The question raised by the motion to sup-

press the evidence had been inquired into at a prior hear-

ing; and at the trial of the case itself on its merits, the

appellant’s attorney was given free rein to cross-examine

the informant even though he had made him his own

witness. We think that the district judge acted reasonably

and within the permissible bounds of his discretion in

thus limiting the right of cross-examination at one of the

suppression hearings.

Errors are assigned because of the alleged conduct

of the trial judge in interrupting the trial to pose ques-

tions to various witnesses and in making certain comments.

From our exarnination of the record, we find that the

trial judge committed no reversible error in his conduct

of the trial and that, in any event, any alleged error,

in view of the overwhelming evidence against the appei-

lant, was not prejudicial “beyond a reasonable doubt.”

See Chapman v. California, 386 U.S. 18 (1967), and Fed.

Rule Crim. Proc. 52(a). All other errors assigned for

reversal have been carefully weighed and considered by

the Court and have been found to be lacking in merit.

ENTERED BY ORDER OF THE COURT.

/s/ John P. Hehman

Clerk

ELE ODE OIE TO vad OU A

A-4

ORDER

(Filed November 26, 1973)

The indictment in this case charges the defendant

with the possession with intent to distribute a quantity

of cocaine, a violation of 21 U.S.C. § 841(a)(1). The case

is before the court on the defendant’s motion to suppress

all testimony pertaining to a quantity of cocaine seized

from defendant’s person and from a suitcase seized after

his arrest on July 25, 1973. The motion was subsequently

orally amended (the oral amendment being later reduced

to writing) to ask the return to defendant of all non-

contraband property seized from defendant on the day

of his arrest. Another phase of the supplemental motion

is discussed hereinafter.

The ground for the motion is the allegation thai the

arrest of the defendant was unlawful and that the subse-

quent search of his person, personal effects and luggage

was likewise unlawful, the arrest, search and seizure being

warrantless.

A preliminary hearing was had before the Honorable

L. Clure Morton, Judge of this District Court, on July

30, 1973, an indictment was returned August 23, 1973,

the defendant pleaded not guilty at arraignment September

18, 1973, filed his motion to suppress within the time

allowed, and an evidentiary hearing was had on the motion

November 16, 1973. From the two hearings the following

facts appear.

On July 23, 1973, Agent Joe Grills, of the Baltimore

office of the Drug Enforcement Administration, received

a telephone call from an informant. The informant told

him that he had been in New York and had seen a sample

of cocaine in the possession of the defendant Costanza

A-5

and that Costanza had tried to sell a kilo of cocaine to

him and another individual for Thirty-seven Thousand

Dollars ($37,000). He stated that they had told Costanza

that the price was too high and that Costanza had placed

the cocaine in his suitcase, these events having occurred

at the Carriage House Hotel in New York. The informant

advised the agent that he thought the defendant had gone

to Nashville and that he was of the opinion that the de-

fendant expected the sale to be made eventually. Agent

Grills stated that the following morning, July 24, 1973,

the informant called him and told him that he had received

a telephone call from the defendant from Nashville, indicat-

ing that he had the cocaine with him; that Costanza had

said that, if they wanted to buy, he would have it at

the Carriage House Hotel about 8:30 p.m. on that date.

After this call on the morning of the 24th, Agent

Leardis Rice, of the Baltimore office of the Drug Enforce-

ment Administration, Agent Grills’ superior, made a tele-

phone call to Agent Tyrone Yarn, of the Nashville office,

Agent Grills being also on the telephone line. At this

time, all of the information above set forth was given

to Special Agent Yarn.

Agent Yarn did not personally know Agent Rice, al-

though he did know his name as an agent. The identity

of the informant was not given to Agent Yarn, and he

was not advised of the basis for the statement which

had been made to him by Agent Rice that he was a

reliable informant. Agent Yarn did not personally know

the defendant, but was familiar with his name from the

files of the agency.

The informant was known to both Agents Rice and

Grills as reliable, having previously furnished them with

information which proved to be accurate and having never

furnished any information which proved to be inaccurate.

A-6

After receiving this information, Agent Yarn ascer-

tained that the defendant did have a reservation on an

American Airlines flight from Nashville to New York,

scheduled for departure at 5:00 p.m., and also had a

reservation at the Carriage House Hotel. Agent Yarn

made some efforts to see the defendant so that he could

identify him, going to his place of employment, but was

unable to see him on that day. He arranged, however,

with ticket sellers of American at the airport, who knew

the defendant, to point him out if he arrived that afternoon;

however, the defendant did not so arrive.

Agent Yarn reported to Agent Rice that the defendant

had not appeared and was informed that Agent Rice would

check the matter out with the informant. At approxi-

mately 2:30 p.m. on the 25th, Agent Yarn received a tele-

phone call from Agent Rice informing him that the infor-

mant had advised that the defendant had been delayed

one day by some family matter but would make the trip

on the afternoon of the 25th so that he would be at the

Carriage House Hotel in New York by 8:30 p.m. Before

this call, however, Agent Yarn had been successful in

his efforts to identify him so that he could recognize him.

After receipt of the new information, Agent Yarn ascer-

tained that the defendant had a reservation, once more,

on the same American flight.

Agent Yarn then conferred with his superior, Agent

Klick, who had not been in Nashville the preceding day,

and they went to the office of the United States Attorney

to see about obtaining 4 warrant. They were advised

by an Assistant United States Attorney that they did not

need a warrant and that they would have probable cause

to arrest without a warrant if the defendant appeared.

Agent Yarn testified that he did not believe they had

time to obtain a warrant.

Pe PI

Pe A BON a7 :

—

A-7

In any event, the defendant arrived at the airport

in a car at about 4:30 p.m., removed a suitcase from it,

and walked over to the express check-in outside the front

door of the airport, placed his suitcase on the pavement

for checking by the Skycap, and, at this point, was ar-

rested by Agent Klick, acting on signal from Agent Yarn

that the man with the suitcase was the defendant. Agent

Klick immediately picked up the suitcase, and then, with

the defendant in custody, they proceeded to a room in

the airport building where the search was made.

The search of the defendant’s person disclosed an am-

ber bottle containing a white powder which gave a positive

reaction, when field tested, for cocaine. The suitcase was

locked but was unlocked by defendant, apparently under

orders from the agents, and search therein revealed larger

amounts of white powder, alleged to be cocaine, a total

of slightly more than three pounds being seized.

Two questions are presented by these facts: (1) was

the warrantless arrest lawful, and (2) if lawful, was the

subsequent search of the suitcase also lawful?

From the facts heretofore summarized, the court holds

that the information in the possession of Agents Yarn

and Klick, partly corroborated by their previous investiga-

tion and further corroborated by the defendant’s alighting

from his car with a suitcase and preceding to the American

Airlines check-in station, gave them, at that time, probable

cause to believe that the defendant “had committed or

was committing” an offense and that, therefore, his arrest

was lawful. Beck v. Ohio, 379 U.S. 89 (1964); United

States v. Burch, 471 F.2d 1314 (6th Cir. 1973). See,

also, United States v. Romero, 249 F.2d 371. 374 (2d Cir.

1957).

The subsequent warrantless search of the defendant’s

locked suitcase, already in the physical possession of Agent

EE ———

A-8

Klick, presents, to this court, a more serious problem.

The court finds itself in agreement with the dissenting

opinion of Judge Ely in United States v. Mehciz, 437 F.2d

145, 150-151 (9th Cir. 1971), wherein he pointed out that

such searches are not truly analogous to that upheld in

Chambers v. Maroney, 399 U.S. 42 (1970) and do not con-

form to the criteria set forth in Chimel v. California, 395

U.S. 752 (1969). However, this court is bound by the

opinion of the Court of Appeals for this Circuit in Burch,

supra, holding, without discussion, that a subsequent search

of luggage following a lawful arrest was valid and there-

fore admissible.

The argument that the search was in some manner

' invalidated by removing the defendant and the suitcase

to a room at the airport before conducting it is without

merit. United States ex rel. Muhammad v. Mancusi, 432

F.2d 1046 (2d Cir. 1970).

Accordingly, the motion to suppress evidence of the

items seized, either from the person of the defendant or

from his luggage, is DENIED.

In the supplemental motion of defendant, adverted

to supra, the court was asked to order the United States

Attorney for this District and the United States Attorneys

for the District of Maryland and for the Eastern District

of New York, in which districts the defendant apparently

faces other charges, to furnish him with information as

to any evidence discovered, directly or indirectly, as a

result of the seizure of certain papers and effects from

the defendant at the time of his arrest. The decision

heretofore made herein renders this aspect of the motion

moot, even if this court had the power to act as requested.

IT IS SO ORDERED.

I te tk RO el Ne hie Rie Oe ot Rat Midis ta pat oe

A-9

SUPREME COURT OF THE UNITED STATES

No. A-565

CHARLES V. COSTANZA,

Petitioner

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon CONSIDERATION of the application of counsel for

petitioner (s),

Ir Is Orperep that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including February 8,

1975.

/s/ Potter Stewart

Associate Justice of the Su-

preme Court of the United

States

Dated this 6th day of January, 1975.

ORDER

(Filed February 11, 1974)

A further evidentiary hearing was had in this case

on Friday, February 8, 1974, the court having previously

vacated its order heretofore entered denying the motion

to suppress. The court, having now considered the evi-

dence vacated its order heretofore entered denying the

evidence adduced at both of the hearings, is of the opinion

that the arrest and search of July 25, 1973, were not

illegal.

It is, therefore, ORDERED that the motion to suppress

evidence be, and it is hereby, DENIED.

poe La a AI Pret ti hh we eis hve eb om

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.