Petition for Writ of Certiorari — Wilkerson v. United States

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LISRARY | aan oon US

SUPREME Coil f wn ED

APR 28 1975

Supreme Court of the United States

OCTOBER TERM, 1974

NO.

#4=1357

JULIUS WILKERSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MICHAEL F. BARRY >

Attorney for Petitioner

Julius Wilkerson

905 Maison Blanche Bldg.

New Orleans, La. 70112

Telephone: (504) 523-3957

OE RYE Ee NE ee ee

INDEX

Page

CITATIONS ---------------------- i

OPINIONS BELOW ----------------- 2

JURISDICTION -- - 3

QUESTIONS PRESENTED ------------ 4-10

CONSTITUTIONAL PROVISIONS, etc.,

INVOLVED ----------------------- 10

STATEMENT OF THE CASE ---------- 10-21

REASONS FOR GRANTING THE WRIT -- 21-40

CONCLUSION -----<--------------- 40

PRAYER FOR RELIEF -~------------ 40-41

CERTIFICATE OF SERVICE --------- 41-42

APPENDIX "A" ------------------- 43-48

APPENDIX "B" ------------------- 49

APPENDIX "C" --- --- 50-69

APPENDIX "D" ---- nase -<=-- 70-71

CITATIONS - Pace l

CONSTITUTIONAL PROVISIONS:

First Amendment, U.S.Constitution

Third Amendment, U.S.Constitution

Fourth Amendment,U.S.Constitution

Fifth Amendment, U.S.Constitution

Sixth Amendment, U.S.Constitution

Ninth Amendment, U.S.Constitution

STATUTES :

21 USC 846 - -—

28 USC 1254 -----<-<--------------

CASES:

Boyd v. US (1886) 116 US 616 ----

Desmond v. US (lst Cir 1965)

345 F2d 225 --------<----<-------

Elkirs v. US (1960) 364 US 206 --

22,35,

37,39

CITATIONS - Page 2

Page

CASES:

Fontaine v. California (1968)

390 US 593 ---------------------- 10,37,

Griffin v. California (1965)

380 US 609 ---------------=------- 10,37,

Griswold v. Connecticut (1965)

381 US 479 ---------------------- i

Katz v. US (1967) 389 US 347 ---- 30

Rochin v. California (1952)

342 US 165 ---------------------- 32,33

Sumrall v. US (10 Cir 1967) 382

F2d 651, cert.denied 389 US 1055 31

US v. Calandra (1974) 414 US 338 34

US v. Flannery (lst Cir 1971)

451 F2d 880 --------------------- 22,37,

Warden v. Hayden (1967) 387

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO,

JULIUS WILKERSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETIGION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Chief Justice and Associate

Justices of the Supreme Court of the

United States:

The above named petitioner, Julius <*

Wilkerson, prays that a writ of cer-

tiorari be issued to review the judg-

ment of the United States Court of

Appeals for the Fifth Circuit which af-

firmed petitioner's judgment of convic-

tion and sentence for violation of 21

uSC 846, rendered by the United States

District Court for the Eastern District

of Louisiana.

OPINIONS BELOW

The opinion and j.*sment of the

Court of Appeals for the Fifth Circuit

was rendered on February 19, 1974, and

is not yet reported. It is appended

hereto as Appendix "A". (A companion

,gase, involving the same search and

seizure, but with only petitioner's co-

defendant, Clarence Hill, as defendant

therein, is reported at 500 F2d 315;

a copy of this opinion is appended here-

to as Appendix "C".) Wilkerson's peti-

tion for rehearing was denied without

Opinion by the Court of Appeals on April

1, 1975, and notice of this denial is

appended hereto as Appendix "B". The

judgment of conviction and sentence in

the District Court was rendered on April

17, 1974, and is not reported. (R.p.613)

JURISDICTION

The jurisdiction of this Honorable

Court is invoked under 28 USC 1254, to

review by writ of certiorari the judg-

ment rendered in the Court of Appeals

for the Fifth Circuit on February 19,

1974, and entered that same date, and

as to which judgment petitioner herein

filed a petition for rehearing and for

rehearing en banc on March 3, 1975,

which petition was denied on April l,

1975.

The jurisdiction of the Court of Ap-

peals for the Fifth Circuit was invoked

under 28 USC 1291, to review by appeal

the final decision of the Honorable Jack

M. Gordon, Judge, Section "I" of the

U.S. District Court, Eastern District of

Louisiana, rendered on April 17, 1974.

The jurisdiction of the.District Court

was invoked by the Government of the

United States, through its Grand Jury,

by return into said court of an indict-

ment charging petitioner and two co-

defendants with violation of 21 USC 846,

by conspiring to distribute, and to

possess with intent to distribute,

heroin.

QUESTIONS PRESENTED

At the trial on the merits in the

Eastern District of Louisiana, the

Government introduced in evidence

against all three defendants a large

quantity of heroin and packaging mate-

rials seized from co-defendant Clarence

/ = POEL LAPT ELI GLEE NGM ES LOY. (LEESON EME BALI LIT IG BIER, PELL IONE eres Te acon z

% eas

Hill's automobile. The defendants

sought to suppress from evidence this

heroin and packaging materials, argu-

ing, inter alia, that the seizure of

these items was the fruit of impermis-

sible government activity, i.e., that

the officers obtained the information

concerning the items and the “probable

cause" to search the vehicle via the

reprehensible tactic of questioning

Hill's seven-year-old son out of the

presence of his parents, "swearing him

in" as a “junior federal agent", and

paying him the sum of $3.75 for his

assistance. The District Court denied

the motion to suppress, and admitted

the items in evidence at the trial on

the merits. Petitioner and his co-

defendants, upon conviction, appealed

to the Court of Appeals for the Fifth

VIE OPE

Circuit, which affirmed the trial

judge's decision. The first question

thus presented to this Court is:

I. IS IT PERMISSIBLE IN THESE UNITED

STATES OF AMERICA FOR GOVERNMENT

POLICE AGENTS TO EMPLOY A SUSPECT'S

SEVEN-YEAR-OLD CHILD AS AN INFORM-

ANT OR SPY AGAINST SAID SUSPECT TO

REPORT ON ACTIVITY INSIDE THE HOME?

a) DOES THE ABSENCE OF AN EXPRESS, EX-

PLICIT PROHIBITION FORBIDDING THE

EMPLOYMENT OR USE OF CHILD-INFORM-

ANTS AGAINST THEIR PARENTS RENDER

SUCH A PRACTICE PROPER AND PERMIS-

SIBLE IN THIS COUNTRY?

b) WHAT DETERRENT, OTHER THAN EXCLU-

SION OF EVIDENCE OBTAINED THEREBY,

DO THE PEOPLE OF THE UNITED STATES

OF AMERICA HAVE AGAINST EMPLOYMENT

BY GOVERNMENT POLICE AGENTS OF THE

SAID PEOPLE'S CHILDREN AGAINST THEM

AS SPIES/INFORMANTS ON ACTIVITIES

AND CONDUCT INSIDE THE HOME?

The second question presented to this

Court for determination arises from the

trial court's denial of defendants’ mo-

tion for mistrial based on four remarks

made by the prosecutor in the course of

his closing argument. First, the pros-

ecutor opened his argument with a bit

of congratulatory flattery to the jury:

"I have noticed you as you have watched

attentively, listen to the witnesses,

observed the witnesses' demeanor, ob-

served the defendants’ demeanor and

everything that went on in the court-

room..." Subsequently, in the course of

his argument, the prosecutor argued

that petitioner's motive in transmitting

a money order to his co-defendant must

be presumed to be the criminal conspir-

acy charged,due to the non-testifying

defendants' failure to introduce evi-

dence of any other reason: "...I submit

to you that even an act as innocent as

the sending of a money order is an

Overt act in furtherance of the conspir-

acy, because there is only one logical

TR Ra at ti See ? — os aaa

conclusion that you can draw from the

evidence that's been presented, that the

only reason that the money order was

sent, you have heard no other reason

for the money order to be sent, was

that it was to purchase heroin with...

There is no other evidence presented,

other than the association between these

individuals was for anything, but to

distribute heroin." The prosecutor

thereafter concluded: "...Thus, ladies

and gentlemen, through that evidence

that you have heard from the witness

stand, upon your oath to truly consider

the evidence presented, the Government

submits that you must return upon the

only evidence presented, that there was

a conspiracy between Clarence Hill,

Julius Wilkerson, Clarence Diggs and

Joyce Picard, Cora Virgil, Barbara Smith,

the other conspirators named and upon

the evidence presented that you will

return the only true and just verdict,

that of guilty as charged." Defend-

ants' motion for mistrial argued that

these remarks constituted improper com-

ment on the failure of defendants to

testify. The question presented to this

Court is:

II. MAY THE PROSECUTION, IN CLOSING

ARGUMENT, COMMENT IN THREE DIFFER-

ENT WAYS ON THE FAILURE OF A NON-

TESTIFYING DEFENDANT TO OFFER EVI-

DENCE OF AN INNOCENT MOTIVE OR PUR-

POSE FOR HIS ACT OF SENDING A MONEY

ORDER TO CONTROVERT THE GOVERN-

MENT'S ARGUED INFERENCE THAT THE

PURPOSE WAS TO PURCHASE HEROIN ---

WHERE THE ONLY WITNESSES WHO COULD

COMPETENTLY TESTIFY TO THE TRUE

PURPOSE OF THE TRANSACTION WERE

THE PARTIES THERETO, i.e., PETI-

TIONER, WHO PURCHASED AND SENT THE

MONEY ORDER, AND HIS CO-DEFENDANT,

WHO RECEIVED THE MONEY ORDER (AND

WHOM PETITIONER COULD NOT COMPEL

TO TESTIFY)---AND, IN THE SAME

ARGUMENT, MAY PROSECUTION CONGRATU-

LATE THE JURORS FOR THEIR ATTEN-

TIVENESS IN “LISTEN(ING) TO THE

WITNESSES, OBSERV(ING) THE

RAED PPLE

WITNESSES' DEMEANOR, OBSERV (ING)

THE DEFENDANTS' DEMEANOR", WITHOUT

PREJUDICING THE NON-TESTIFYING DE-

FENDANTS' RIGHT TO FAIR TRIA™ AND

DUE PROCESS GUARANTEED BY THE FIFTH

AND SIXTH AMENDMENTS OF THE U. S.

CONSTITUTION?

a) DO THIS COURT'S DECISIONS IN FON-

TAINE v. CALIFORNIA (1968) 390 US

593 AND IN GRIFFIN v. CALIFORNIA

(1965) 380 US 609 DEMONSTRATE A NE

PLUS ULTRA, i.e., DEMONSTRATE A

CASE WHERE THE PROSECUTION IN ARGU-

MENT JUST BARELY EXCEEDED THE FUR-

THEST LIMITS OF PERMISSIBILITY IN

COMMENT UPON FAILURE OF THE DEFEND-

ANT'S DEFENSE IN SILENCE, OR DOES

THE PROPER STANDARD OF DUE PROCESS

REQUIRE A GREAT DEAL MORE CIRCUM-

SPECTION FROM THE PROSECUTION IN

COMMENTING ON THE DEFENDANT'S DE-

FENSE'S SILENCE?

CONSTITUTIONAL PROVISIONS, ETC.

INVOLVED

The pertinent provisions of the First,

Third, Fourth, Fifth, Sixth and Ninth

Amendments of the U.S. Constitution are

set forth in Appendix "D", infra.

STATEMENT OF THE CASE

Petitioner Julius Wilkerson and his

two co-defendants, Clarence Hill and

Clarence Diggs, were convicted of vio-

lating 21 USC 846 by conspiring to dis-

tribute, and to possess with intent to

distribute, heroin. Numerous errors

were urged on appeal to the Court of Ap-

peals, of which only two issues are pre-

sented to this Court in this petition

for certiorari: 1) admission in evidence

against all three defendants of forty

"bundles" of heroin and packaging mate-

rials seized from the trunk of Clarence

Hill's automobile, the whereabouts of

said vehicle and the nature of the

trunk's contents having been discovered

by the federal agents through exploita-

tion of Hill's seven-year-old son as a

"junior federal agent" to inform on

his father's activities at home; 2) im-

permissible comment by the prosecutor

in closing argument on the failure of

petitioner or his co-defendants (none

of whom testified) to prove that the

transfer of funds between them via money

order was for any other purpose than to

purchase heroin.

The factual circumstances which pre-

sent these two issues are as follows:

The "Junior Federal Agent"

On July 1, 1972, a search party of

federal Drug Enforcement Administration

agents and New Orleans Police Department

narcotics officers executed a federal

search warrant at the home of petition-

er's co-defendant, Clarence Hill. The

search of Hill's home produced two

“bundles" of heroin, $17,991 in cash

and other items. Suspecting Hill to be

in possession at that time of a much

larger quantity of heroin than the two

"bundles" retrieved from his home, the

agents and officers conducted an exten-

Sive search of the curtilage of the

home, e.g., the backyard, etc. While

one group of agents/police had Hill and

his wife secured in the front portion

of the house, NOPD Sgt. Soule and, sub-

sequently, DEA Special Agent John Phil-

lips, the search team leader, conversed

with Hill's seven-year-old son, John

Kennedy Hill, in the rear portion of the

house and the backyard. As Agent Phil-

lips testified at the suppression hear-

ing in the trial court:

---He was a little buddy. I'm not

sure, Your Honor, but it would have

to be corroborated by the other of-

ficers, but I think we got together

we might have told the child about

becoming a special Federal agent and

being sworn in. We have done that

in the past a lot of times, have

them raise their right hand and put

our folder out and swear them in,

like they're honorary federal agents.

I recall, Your Honor, that he knew

who we were and I might have done

that to this child. I know at the

end we took his picture.

THE COURT:

And I take it then that since you

Say you had done this in the past,

you would consider this normal in-

vestigative procedure?

THE WITNESS:

Oh, yes.

THE COURT:

Do you ever ask a child how old

he is before you do this?

THE WITNESS:

Probably, Your Honor, because it's

breaking the ice. We ask him how old

he is, what grade he is in in school

and that's one of the best things to

make a child start talking to you.

(Supplemental Appendix, S/R pp.111-112)

The officers and Agent Phillips ques-

tioned John Kennedy Hill about his

father's activities in and about the

house, what he did with "peanut bags"

(used in packaging heroin dosage units),

where his father kept various materials

and items, and eventually had the child

lead them around the block to where

his father parked his car. The officers

then searched the vehicle and discover-

ed the heroin, “peanut bags", Scotch

tape and rubber bands, all of which

were introduced in evidence against all

defendants, including petitioner, at

the trial on the merits. The agents,

after seizing these items, collected a

total of $3.75 among themselves and

jestfully presented this sum to the

young Hill as a reward for information

leading to the contraband seizure.

(S/R. pp. 85-140)

Improper Argument

Briefly capitulated, the evidence

presented to the jury showed: On Oct-

ober 24, 1971, petitioner sent a tele-

graphic money order for $1,350 to Hill

at Diggs' home address in New York City.

In the last week of February, 1972, un-

indicted co-conspirators Barbara Smith

and Joyce Picard made a round-trip to

New York City from New Orleans during

which Barbara Smith picked up at Diggs'

New York home a package of heroin and

transported it back to New Orleans. Up-

on her return to New Orleans, she ex-

changed the package with Hill for $300,

the agreed upon wages for the trip. The

next day Hill, Wilkerson, Diggs, Picard

and another unindicted co-conspirator,

Cora Virgil, returned to Barbara Smith's

home with the heroin, and various packag-

ing materials, and spent several hours

repacking 40 bundles of heroin into

2,000 little glassine envelopes. The

rest of the heroin was left hidden in

the Smith home. A week later, Hill and

Wilkerson returned and again repacked

another 40 bundles into 2,000 glassine

envelopes in the Smith home. The

following week, the remaining 20 bundles

were repacked by Hill and Wilkerson.

When they left the Smith home on this

occasion, they also took the surplus

wrapping materials. About 3 months

later, in the search and seizure involv-

ing Hill's home and automobile on July

1, 1972, another 42 bundles of heroin

were turned over to police by Hill and

other members of his family, along with

$17,991 in cash and a gun.

The prosecutor opened his closing

argument with these congratulatory re-

marks:

---I want to thank you...for your

attentiveness that you have shown

over the last three days. You have

done your duty as a jury. I have

noticed you as you have watched at-

tentively, listen to the witnesses,

observed the witnesses' demeanor,

observed the defendants' demeanor

and everything that went on in the

courtroom...

(R.pp.474-475)

- nerve

Later in the course of his argument,

the prosecutor expounded:

What evidence has the Government

put on to show how these three de-

fendants conspired, confederated and

agreed together and among themselves

and with the named co-conspirators

and other co-conspirators not named

to distribute heroin? In chrono-

logical sequence we would have the

Western Union application and money

Order, Government Exhibit 5-A, the

money order application. you heard

testimony from Kenneth Dixon who is

a qualified expert in the field of

handwriting analysis. Mr. Dixon

testified that upon receiving known

samples of defendant, Wilkerson's,

handwriting these samples brought in-

to court by Mr. Brignac marked for

purposes of identification as Govern-

ment Exhibit 11 and 12, a blow-up

taken from this original application,

testified that he compared the hand-

writing from the reports. you saw how

he put them up. you saw how he com-

pared. His testimony being there was

no doubt in his mind that the same

individual who filled out those re-

ports was the same individual who

filled out this money order applica-

tion. Now, where was that money or-

der application sent? It was sent

from New Orleans to New York where

this check was made out which was

cashed in the normal course of busi-

ness. This check which Mr. Larsen

testified he had received no complaint

mid RY,

in his file that it was cashed by

any other than the person to whom it

was intended to be cashed by. Who

was it intended to be cashed by? It

was Julius Wilkerson that wrote

Clarence Hill at what address? 1595

McComb's Road. Whose address in

Bronx, New York, is 1595 McComb's

Road? The proof at trial shows that

1595 McComb's Road was the residence

of the defendant, Clarence Diggs in

New York. I submit to you that even

an act as innocent as the sending

of a money order is an overt act in

furtherance of the conspiracy, be-

cause there is only one logical con-

clusion that you can draw from the

evidence that's been presented, that

the only reason that the money order

was sent, you have heard no other

reason for the money order to be

sent, was that it was to purchase

heroin with, heroin from the streets

of New York City to be distributed

here in the Eastern District of Loui-

Siana, here on the streets of New

Orleans. There is no other evidence

presented, other than the associa-

tion between these three individuals

was for anything, but to distribute

heroin...

(R.pp.476-478)

Later, in conclusion, the prosecutor

remarked:

Thus, ladies and gentlemen through

that evidence that you heard from

the witness stand, upon your oath to

truly consider the evidence presented,

the Government submits that you must

return upon the only evidence pre-

sented, that there was a conspiracy

between Clarence Hill, Julius Wilker-

son, Clarence Diggs, and Joyce Banks

Picard, Cora Virgil, Barbara Smith,

the other conspirators named and upon

the evidence presented that you will

return the only true and just ver-

dict, that of guilty as charged.

Thank you.

(R.p.485)

All three defendants moved for mis-

trial for the reason that the prosecu-

tor's comments with reference to 1)

observing the demeanor of the witnesses

and the demeanor of the defendants, and

2) “you have heard no other evidence pre-

sented as to why the money order was

sent", each called to the jury's atten-

tion the fact that the defendants did

not testify, as did the closing remark

about "the only evidence that's been

presented to you." (R.pp.485-486)

This motion was denied by the court.

(R.pp.486-487)

Both of the above described decisions

of the trial court were urged as error,

among others, in petitioner's appeal to

the Court of Appeals for the Fifth Cir-

cuit, which affirmed the conviction on

February 19, 1975 (Appendix "A"); peti-

tioner's petition for rehearing was

denied on April 1, 1975. (Appendix

"B")

REASONS FOR GRANTING THE WRIT

The decision below should be reviewed

by this Honorable Court for two reasons:

1) the Court of Appeals, in finding no

merit in petitioner's objection to the

Government's conduct in recruiting

children as informants against their

parents, has decided an important ques-

tion of federal law which has not been,

but should be, decided by this Court;

and 2) the decision of the Court of Ap-

peals for the Fifth Circuit in this

case, in finding no prejudicial error

in the prosecutor's closing argument,

conflicts with that of the Court of Ap-

peals for the First Circuit in Desmond

v- US (lst Cir 1965) 345 F2d 225 and

in US v. Flannery (lst Cir 1971) 451

F2d 880, in that the "true" purpose or

motive of Wilkerson in transmitting the

money order could only have been compe-

tently testified to by Wilkerson himself

or his co-defendant Hill, the payee of

the money order, the prosecutor's com-

ments therefore necessarily constitut-

ing comment on the defendants’ failure

to testify.

For these reasons, this Honorable

Court should grant review herein.

IS IT PERMISSIBLE IN THESE UNITED

STATES OF AMERICA FOR GOVERNMENT POLICE

AGENTS TO EMPLOY A SUSPECT'S SEVEN-YEAR-

OLD CHILD AS AN INFORMANT OR SPY AGAINST

SAID SUSPECT TO REPORT ON ACTIVITY IN-

SIDE THE HOME?

As described in the Statement of the

Case, supra, and more fully in the re-

cord of the suppression hearing (S/R.pp.

85-140), the agents and officers ex-

ploited the admiration which Hill's son

had for them as lawmen and, via a mock

"swearing in" ceremony, led the boy to

believe he had been made a "junior

agent", ultimately obtaining informa-

tion from the boy about his father's

practices in the home and the location

of his vehicle as well as the fact that

if the white powder they were looking

for was not in the home, it would be in

the automobile. Finally, the agents had

the boy lead them around the block to

PRAMS SE: + SESE ALT ET OE we

where Hill's car was parked, which the

agents then searched, discovering the

sought-for heroin and packaging mate-

rials. Following this seizure, the

agents and officers jestfully bantered

among themselves about the manner in

which they had obtained the information

about the car and its contents. As

described by DEA Agent Phillips in his

testimony at the suppression hearing:

A. Freddie Soule, the detective who

I have worked with for ten years,

was kidding me about the informa-

tion that we developed and he

said, "This is your cooperating

individual. Why don't you, who

has all the money, give him some

of it for an informant fee." I

remarked that I would do that

and I got a dollar and it was in

a jest, in a kidding way and I

gave it to John Kennedy Hill,

the defendant's son a dollar and

so did some of the other police-

men. I think there was a total

of $3.75 given to him and he was

happy as could be.

(R.p.97)

The agents and officers felt no shame

Or embarassment nor expressed any apolo-

gy for their action with the child---

such as justifying it on the basis of

the exigency of the situation. Instead,

Agent Phillips told the court:

«-eWe have done that in the past a

lot of times, have them raise their

right hand and put our folder out

and swear them in, like they're

honorary federal agents...

(Rep. 111) And Sgt. Soule testified

that in his twelve-year career with the

New Orleans Police Department narcotics

squad:

-.--This isn't the first occasion

this has happened. It happened num-

erous times.

(R.p.136)

This, however, is apparently the

first reported case which has brought

to the attention of the higher courts

in our land this prevalent federal and

as AOL VAR ATW ye SRT IR pa GFE CUETO FN NAG IG ET ARR OP OP GR Re Shs DATA

local police practice of exploiting the

admiration of naive young children for

police officers and employing/using

these youngsters as "Special agents"

(complete with mock induction ceremony)

whose “duties" involve providing the

government agents with information on

the youngsters’ parents’ activities in

and about the home.

Petitioner can argue the philosophi-

cal and ethical objections to such

governmental conduct no better than the

trial judge stated them in his ex tem-

pore remarks at the close of the sup-

pression hearing:

e-ewe have the question of the use

of the child---of the defendant's

child and as the officers have can-

didly admitted, he was used as a

Surrogate agent...on the surface to

someone in the judicial position

looking at this purely philosophic-

ally, it seems to smack of big bro-

therism. I realize that the Govern-

ment will take the attitude that

oad

narcotics traffic is a great evil

and it's not easy to suppress and

therefore, the Government must use

tools available to it, including

eliciting the aid of children of

suspected offenders, in order for

the overall good.

On the other hand...the thought

occurs to the Court, insofar as my

own conscience is concerned, that

I'm not sure in Communist Cuba that

the agents of Castro justify in

their own minds what I understand to

be the interrogation of children in

schools and whatnot as to the pos-

sible offenses of the state by their

parents and that in their own minds,

the justification is as great as that

which we have stated. So there is

the ovhilosophical question of whether

something is wrong in utilizing a

child in this fashion. In this con-

nection, of course, we can't test it

solely by virtue from a legal stand-

point of whether it smacks of big

brotherism, as the Court stated,

but, rather that there must be some-

thing legally wrong with it. Does

it violate a constitutional right of

the defendant or does it violate

some procedure of law protected by

Statute or rule? Straightaway, I

can't think of any.

On a superficial analysis, I

haven't been able to find any, so

that’s a side issue about which we

might have a very long philosophical

dissertation...You know, this is

a EN Sie ey > RRR SARI OSS LE LIE LORE eet IE EI

one circumstance in which it seems

to be relatively innocuous. Perhaps

the circumstances control, but sup-

pose that the police officers, feel-

ing that this was a good avenue for

investigation which apparently it

must be decided that it would be

well to approach a youngster play-

ing around on street corners, swear

them in as junior deputies or other-

wise make them feel that they were

performing some important function

for the State, in order to enlist

their assistance in getting evidence

against their parents and neighbors

and others, I think everyone would

agree that there is certainly a point

at which this procedure would assume

such obnoxious proportion that none

of us would want to do it or have it

done by our Government, but, then we

get back to the question, which is,

what is the legal effect of it..

(R.pp.142-144)

(a)

DOES THE ABSENCE OF AN EXPRESS, EX-

PLICIT PROHIBITION FORBIDDING THE EM-

PLOYMENT OR USE OF CHILD-INFORMANTS

AGAINST THEIR PARENTS RENDER SUCH A

PRACTICE PROPER AND PERMISSIBLE IN THIS

COUNTRY?

Apparently, no statute or rule exists

in this Country which specifically pro-

hibits the cultivation and/or employment

of children as informants against their

parents. It is conceivable that our

lawmakers have felt such legislation

to be unnecessary, that such procedures

are so repugnant to our national ideals

and values as to render them intolerable

even absent specific legislative pro-

hibition.

However, it is perhaps true that cer-

tain constitutional rights of Clarence

Hill were breached by the Government in

its agents' conduct with his son.

The First, Third, Fourth and Fifth

Amendments of the U.S. Constitution con-

tain specific guarantees against Govern-

mental invasions of various facets of

one's "privacy".

The Ninth Amendment provides: "The

enumeration in the Constitution of cer-

tain rights, shall not be construed to

a NTE SN GA ; LRM

of the Constitution's authors that

other fundamental personal rights should

not be denied such protection or dis-

paraged in any other way simply because

they are not specifically listed in the

first eight constitutional amendments..."

This Court in Rochin v. California

(1952) 342 US 165 regarded the require-

ments of the Due Process Clause as a

mandate to review and judge "the whole

course of the proceedings (resulting in

a conviction) in order to ascertain

whether they offend those canons of

decency and fairness which express the

notions of justice of English-speaking

peoples even toward those charged with

the most heinous offenses..." and de-

fined "due process of law" as:

++-a Summarized constitutional gua-

rantee of respect for those personal

immunities which...are "so rooted

in the traditions and conscience of

Our people as to be ranked as

fundamental"...or are “implicit in

the concept of ordered liberty."...

342 US at 169.

Petitioner Wilkerson submits that,

under either a Griswold-privacy or a

Rochin-Due Process rationale, the prac-

tice employed by the Government in this

case presents too much jeopardy to our

national ideals for it to receive juri-

dical sanction in any circumstances, and

for this reason, this Honorable Court

should review the decision of the Court

of Appeals in this case,

(b)

WHAT DETERRENT, OTHER THAN EXCLUSION

OF EVIDENCE OBTAINED THEREBY, DO THE

PEOPLE OF THE UNITED STATES OF AMERICA

HAVE AGAINST EMPLOYMENT BY GOVERNMENT

POLICE AGENTS OF THE SAID PEOPLE'S CHIL-

DREN AGAINST THEM AS SPIES/INFORMANTS

ON ACTIVITIES AND CONDUCT INSIDE THE

HOME ?

As this Court observed in Elkins Vv.

US (1960) 364 US 206, 217, quoted in

US _v. Calandra (1974) 414 US 338, the

purpose of the exclusionary rule "is

to deter---to compel respect for the

constitutional guaranty in the only

effectively available way---by removing

the incentive to disregard it."

In view of the fact that this is

apparently the first case to present

to this Court this issue of child-in-

formant use by the Government, despite

the testimony of the officers to the

effect that this has been a common prac-

tice for at least the last twelve years,

this Court should take this opportunity

to review this practice and exercise its

judgment upon the constitutional permis-

sibility/propriety of this practice,

lest another twelve years pass before

the next opportunity presents itself to

this Court to stem the practice.

II.

MAY THE PROSECUTION, IN CLOSING ARGU-

| MENT, COMMENT IN THREE DIFFERENT WAYS ON

THE FAILURE OF A NON-TESTIFYING DEFEND-

ANT TO OFFER EVIDENCE OF AN INNOCENT

MOTIVE OR PURPOSE FOR HIS ACT OF SENDING

A MONEY ORDER TO CONTROVERT THE GOVERN-

MENT'S ARGUED INFERENCE THAT THE PURPOSE

WAS TO PURCHASE HEROIN---WHERE THE ONLY

WITNESSES WHO COULD COMPETENTLY TESTIFY

TO THE TRUE PURPOSE OF THE TRANSACTION

WERE THE PARTIES THERETO, i.e., PETI-

TIONER, WHO PURCHASED AND SENT THE MONEY

ORDER, AND HIS CO-DEFENDANT, WHO RECEIV-

ED THE MONEY ORDER (AND WHOM PETITIONER

COULD NOT COMPEL TO TESTIFY)---AND, IN

THE SAME ARGUMENT, MAY PROSECUTION CON-

GRATULATE THE JURORS FOR THEIR ATTEN-

TIVENESS IN "LISTEN(ING) TO THE WIT-

NESSES, OBSERV(ING) THE WITNESSES' DE-

MEANOR, OBSERV(ING) THE DEFENDANTS' DE-

MEANOR, “" ALL WITHOUT PREJUDICING THE

NON-TESTIFYING DEFENDANTS' RIGHT TO FAIR

TRIAL AND DUE PROCESS GUARANTEED BY THE

FIFTH AND SIXTH AMENDMENTS OF THE U.S.

CONSTITUTION?

In Desmond v. US (lst Cir 1965) 345

F2d 225, the Court of Appeals for the

| First Circuit, faced with a most similar

situation, held:

e+eNo one but appellant (or his co-

a —_—— ERO LS IGS TT PO TPR: LOPE NL SPEDE RLS OE LOOELT LE RIL INER OEE TELE | SORES

defendant, whom appellant could not

put on the stand against his will)

could have contradicted the govern-

ment witness...Unless it is apparent

on the record that there was some-

one other than himself whom the de-

fendant could have called, the com-

ment of necessity pointed to the only

person who could have offered the

contradiction, the defendant himself.

Hence, in the present case, it was

clearly improper...The government

made the argument because it thought

it would be effective. We can think

of no effect other than to invite the

jury's attention to the fact that the

defendants had not taken the stand.

345 F2da at 227.

The same situation obtains in the

instant case. The record is barren of

any evidence which indicates that any

non-defendant could have competently

testified to the motive or purpose that

moved petitioner to send the money order

to his co-defendant. Given this back-

ground, the decision of the Fifth Cir-

cuit Court of Appeals in this case to

the effect that the prosecutor's remarks

"could only have been understood as

comments on the failure of the defense

(as opposed to defendants) to counter or

explain the testimony of the unindicted

co-conspirators, the various police of-

ficials, and the prosecution's other

witnesses and exhibits..." is in direct

conflict with the First Circuit Court's

decision in Desmond, and reiterated in

US v. Flannery (lst Cir 1971) 451 F2d

880.

(a)

DO THIS COURT'S DECISIONS IN FONTAINE

v. CALIFORNIA (1968) 390 US 593 AND IN

GRIFFIN v. CALIFORNIA (1965) 380 US 609

DEMONSTRATE A NE PLUS ULTRA, i.e.,

DEMONSTRATE A CASE WHERE THE PROSECU-

TION IN ARGUMENT JUST BARELY EXCEEDED

THE FURTHEST LIMITS OF PERMISSIBILITY

IN COMMENT UPON FAILURE OF THE DEFEND-

ANT'S DEFENSE'S SILENCE, OR DOES THE

PROPER STANDARD OF DUE PROCESS REQUIRE

A GREAT DEAL MORE CIRCUMSPECTION FROM

THE PROSECUTION IN COMMENTING ON THE

DEFENDANT'S DEFENSE'S SILENCE?

In refusing to find prejudicial error

in this case, the Court of Appeals be-

low said:

---We disapprove of any comments by

prosecutor or judge that even in-

directly invites the jury's atten-

tion to the failure of the defendants

to take the stand, but on the facts

of this case we cannot say that the

trial judge abused his discretion in

not noticing that any improper com-

ments were made. None of the state-

ments are comparable to the prejudi-

cial remarks and instructions that

resulted in reversal of trial con-

victions in Fontaine v. California,

390 US 593...(1968), and in Griffin

v. California, 380 US 609...(1965).

(Appendix "A", infra, pp. 43-48.)

It will be remembered that ‘this .

Court's decisions in Fontaine and Grif-

fin involved repeated prosecutorial com-

ment on a non-testifying defendant's

failure to take the stand in persistent

reliance on a California procedural

statute permitting such comment, not-

withstanding the federal constitutional

consideration to the contrary. The

cs INTIME IT |

above quoted language of the court be-

low seems to indicate that that court

will not find prejudicial error in any

prosecutorial comment on defendant's

silence short of the egregious viola-

tions committed in Fontaine and Griffin.

Such a rationale is so far out of line

with that of the Court of Appeals for

the First Circuit in Desmond and Flan-

nery as to merit review of the decision

in this case, in order to settle and re-

solve the conflict between the First

and Fifth Circuits on this constitu-

tional issue.

IIt.

The questions presented by this case

are of great and recurring significance

in the administration of criminal jus-

tice in the federal courts, as well

as in the courts of the various states,

— a Psy BRED SORIA vs om se sainaiial -

due to the constitutional basis of the

controversy. The conflict between the

decisions of the First Circuit Court of

Appeals and of the Fifth Circuit Court

of Appeals in the instant case make

this case peculiarly appropriate for

the exercise of this Court's discre-

tionary jurisdiction.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this peti-

tion for a writ of certiorari should be

granted.

WHEREFORE, your petitioner, Julius

Wilkerson, prays that a Writ of Certior-

ari issue to the U.S. Court of Appeals

for the Fifth Circuit, commanding said

Court to certify and sent to this Court,

on a day to be designated, a full and

complete transcript of the record and

bal CERN TEN BE OMEN E RY PNT II TIO ON NPE EMMI

noe

all proceedings of said Court of Ap-

peals had in this cause, to the end that

the cause may be reviewed and determin-

ed by this Court; that the judgment of

said Court of Appeals be reversed; and

that the petitioner may be granted such

other and further relief as to this

Court may seem proper.

MICHAEL F. BARRY

Counsel for Petitioner

Julius Wilkerson

905 Maison Blanche Bldg.

New Orleans, La. 70112

Telephone: (504) 523-3957

CERTIFICATE OF SERVICE

I, the undersigned Michael F.-Barry,

Esq., attorney for Julius Wilkerson,

petitioner herein, and a member of the

Bar of the Supreme Court of the United

States, hereby certify that,on the

a DONA MR RON aslsatbiba dea le id ehacabal ?

day of April, 1975, I served copies of

the foregoing Petition for Writ of Cer-

tiorari, including Appendices "A", "B",

"C" and "D" thereof, on the United States

of America, respondent herein, by leav-

ing three (3) copies thereof at the of-

fice of Hon. Mary Williams Cazalas,

Assistant U.S. Attorney, 500 St. Louis

Street, New Orleans, La. 70130, and by

mailing three (3) copies in a duly ad-

dressed envelope, with air mail postage

prepaid, to the Solicitor General, De-

partment of Justice, Washington, D.C.

20530, pursuant to Rule 33.2(a) of the

Rules of the Supreme Court of the United

States.

MICHAEL F. BARRY

Attorney for petitioner Julius

Wilkerson

905 Maison Blanche Bldg.

New Orleans, La. 70112

APPENDIX "a"

3678

UNITED STATES of America, Plaintiff-Appellee,

Clarence HILL and Julius Wilkerson a/k/a Moon, and

Clarence Diggs, Defendants-Appeliants.

No. 74-2028.

United States Court of Appeals,

Fifth Circuit.

Feb. 19, 1975.

Defendants were convicted in the United States District

Court for the Eastern District of Louisiana at New Orleans,

Jack M. Gordon, J., of conspiracy to distribute heroin and to

possess heroin with intent to distribute. Defendants appeal-

ed. The Court of Appeals, Nichols, Associate Judge of the

United States Court of Claims, sitting by designation, held

that where certain remarks by the prosecutor could only have

been understood as comments on the failure of the defense, as

opposed to defendants, to counter or explain a mass of incrim-

inating evidence before the jury, the trial judge did not abuse

his discretion in not noticing that any improper comments

were made. Absent any showing of prejudice, the prosecu-

tor’s congratulating and complimenting the jury for watching

attentively, listening to witnesses, observing witnesses’ de-

meanor and defendants’ demeanor were likewise not grounds

for reversal of conviction, though defendants did not take the

stand. That a federal agent used a ruse to yet a defendant to

open his door did not make entry illeyal where full disclosure

of identity and warrant was made as soon as the door was

opened, and before entry by the officers.

Affirmed.

Synoyacs, Syllabi sand Key Number Classification

WEST PUBLISHING CO.

cation constitute ne part of the opinion of the court INDEXED

3679 UNITED STATES v. HILL

1. Criminal Law @=721(3)

Where remarks could only have been understood as com-

ments on the failure of defense, as opposed to defendants, to

counter or explain testimony of unindicted coconspirators,

various police officials and prosecution's other witnesses and

exhibits, putting mass of incriminating evidence before jury,

trial judge did not abuse discretion in not noticing that any

improper comments were made.

2 Criminal Law o713

Absent any showing of prejudice, prosecutor's conyratu-

lating and complimenting jury for watching attentively, lis-

tening to witnesses, observing: witnesses’ demeanor and de-

fendants’ demeanor did not vitiate conviction, though defend-

ants did not take stand.

3. Drugs and Narcotics 189

That federal agent in course of drug investigation carried

atlache case similar to those carried by insurance salesmen

and replicd, when voice inside defendant’s door asked who he

was, with reference to name of an insurance company did not

make entry illegal where full disclosure of identity and war-

rant was made as soon as door was opened and before entry

by the officers. Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§ 401, 401(aX1), 21 U.S.C.A. §§ 841,

841(a1).

Appeals from the United States District Court for the

Eastern District of Louisiana.

Before GEWIN and SIMPSON, Circuit Judges, and NICH-

OLS,* Associate Judge.

NICHOLS, Associate Judge:

A jury convicted the appellant<lefendants, Clarence Hill,

Julius Wilkerson (a/k/a Moon), and Clarence Diggs of conspir-

acy to possess heroin with intent to distribute, and to distrib-

* Of the U. S. Court of Claims, sitting by designation.

2 a FRILL ELAN OTE ED IVE ID IB

UNITED STATES v. HILL 3680

ute heroin, a Schedule I narcotic drug controlled substance, in

violation of 21 U.S.C. § 841(aX1). Diggs, a multiple offender,

received a 2l-year sentence with a special parole term of 6

years (pursuant to 21 U.S.C. § 841). Wilkerson and Hill

received 12-year sentences with special parole terms of 3

years, Hill’s sentence to run concurrently with his 8-year

sentence in a companion case reported at United States v.

Hill, 500 F.2d 315 (5th Cir. 1974), in which Hill was convicted

of possession with intent to distribute the identical heroin

which forms the basis of the conspiracy in this case. We

affirm.

The relevant facts before the jury were as follows. On

October 24, 1971, Wilkerson sent a telegraphic money order

for $1,350 to Diggs’ home in New York City. In the last week

of February 1972, unindicted co-conspirators Barbara Smith

and Joyee Picard made a round-trip to New York City from

New Orleans during which Barbara Smith picked up at Diggs’

New York home a sizeable package of heroin and couriered it

back to New Orleans. Upon her return to New Orleans, she

exchanged the package with Hill for $300, the agreed wages

for the trip.

The next day Hill, Wilkerson, Diggs, Picard and another

unindicted co-conspirator, Cora Virgil, returned to Barbara

Smith’s home with the heroin, and various packaging materi-

als, and spent several hours repacking 40 bundles of heroin

into 2,000 little glassine envelopes. The rest of the heroin was

left hidden in the Smith home. A_ weck later, Hill and

Wilkerson returned and again repacked another 40 bundles

into 2,000 glassine envelopes in the Smith home. The follow-

ing week, the remaining 20 bundles were repacked by Hill and

Wilkerson. When they left the Smith home on this occasion,

they also took the surplus wrapping materials.

About 3 months later, in the search and seizure involving

Hill’s home and automobile on July 1, 1972, another 42 bundles

III

Re ORS Vee 6 aaa elie

lod

3681 UNITED STATES v. HILL

of heroin were turned over to police by Hill and other mem-

bers of his family, along with $17,991 in cash and a gun.

The search and seizure issucs, raised by appellants regard-

ing Hill’s home and automobile, were heard and decided in the

appeal of Hill’s companion conviction, 500 F.2d 315 (5th Cir.

1974), in an opinion by Judge Clark which disposes of all the

search and seizure issues raised here, except one discussed

infra, We are invited by partics other than Hill to reconsider

these holdings, but we sce no reason to doubt their correct-

ness, and we reaffirm them here.

{1} Appellants also argue on appeal their motion for mis-

trial based on four separate remarks of the prosecutor, Mr.

Bowman, in his closing argument. They allege that these

remarks were impermissable comments on the defendants’

failure to take the stand in their own behalf. However, three

of the four remarks could only have been understood as

comments on the failure of the defense (as opposed to defend-

ants) to counter or explain the testimony of the unindicted

co-conspirators, the various police officials, and the prosecu-

tion’s other witnesses and exhibits, putting a mass of incrimi-

nating evidence before the jury. None of these three remarks

specifically pointed to any or all of the defendants as not

having testified. Indeed, we can find no specific reference to

defendants’ failure to take the stand during the trial in the

record. The judge told the jury that the defendants did not

have to testif y and need not offer evidence. We disapprove of

any comments hy prosecutor or judge that even indirectly

invites the jury's attention to the failure of the defendants to

take the stand, but on the facts of this case we cannot say

that the trial judge abused his discretion in not noticing that

any improper comments were made. None of the statements

are comparable to the prejudicial remarks and instructions

that resulted in reversal of trial convictions in Fontaine v.

California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968),

UNITED STATES v. HILL 3682

and in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965).

{2] The fourth remark occurred in the opening words of ,-

the prosecutor's statement, as he congratulated and compli-

mented the jury on their patience, and attention to the

various surroundings and events associated with the three-day

trial. He said they “watched attentively, listened to the

witnesses, observed the witnesses’ demeanor, observed the

defendants’ demeanor * * *” To invite attention to the

“demeanor” of a defendant who has not taken the stand is

anomalous and could be impermissably prejudicial in some

circumstances. There is no showing of any such prejudice

here, and the remark was no doubt taken as manifestly it was

intended, as mexningless flattery to the jury upon its alert

altention to all that happened before it. We will not be

understood as prospectively endorsing such a remark for use

in future causes: clearly it is contra-indicated.

Ill

[3] Appellants return to the search and seizure to complain

about the ruse used by the Federal agent to get Hill to open

his door peacefully Wo them, at which time the agents disclosed

their true identities and search warrant. He carried an

attache case similar to those carried by insurance salesmen.

He knocked and a voice inside asked who it was. He replied, -

“Actna Insurance.” Tlill then unlocked a wooden door and

the agent said: “Federal agents with a warrant.” We see no

significance if the agent pulled open an unlocked screen door

before knocking. Commonly one must do that to knock or

ring, if a screen door is fitted in front of a solid door. This

does not make a forceful entry out of one otherwise peaceful.

: In United States v. Beale, 5 Cir., 436 F.2d 573, rev'd on

« rehearing, 5 Cir., 445 F.2d 977 (1971), cert. denied, 404 U.S.

1026, 92 S.Ct. 697, 30 L.Ed.2d 676 (1972), this court has

previously struggled with the ruse problem, concluding that

“if entry by deception and wholly without application of force

Fe is a aaa oF bie aia OSE PES IIS RS

3683 UNITED STATES v. HILL

is to be brought within § 3109, it should be by the Supreme

Court.” (445 F.2d at 978). We think that our prior holding in

Beale controls the instant case, particularly since here full

disclosure of identity and warrant was made as soon as Hill

opened the door and before entry by the officers.

Appellant Wilkerson has also urged many other assign-

ments of error, but after careful consideration we find no

merit in them, sufficient to require discussion.

Affirmed.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Mina.

Fr wr

Tuited States Court of Appents ,

o cP

irre Cmcur

COWANO W. WADSWORTH . OFFICE OF THE CLERK e0n Cour rarer

crease

EW OMLCANS LA POIDe

- April 1, 1975

TO ALL COUNSEL OF RECORD

Re: 74-2028 U.S.A. V. HILL

Dear Counsel: -

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

denying the petition( ) for rehearings and no member of |

the panel nor Judye in regular actave service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal kules of Appellate Procedurc;

Local Fifth Circuit Rule 12) the petation( ) for rehear-

ing en banc has also been denicd.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandatc.

Very truly yours,

EDWARD W. WADSWORTH ~

CLERK

; wll ¢ A :

Deputy Clerk |

cc: Mr. A.J. McNamara Mr. Cornelius R. Heusel

Mr. Michael F. Barry Ms. Mary Williams Cazalas

Mr, Salvadore T. Mule Mr. Billy B. Bowman

: *Ag to Julius Wilkerson

AYPENDIX "C0"

1464

UNITED STATES of America, Mlaintiff-Appellee,

Clarence HILL, Defendant-Appellant.

No. 76-1098.

United States Court of Appesis,

Fifth Circuit.

Aug. 30, 1974.

Following a romand from the Court of Appeals, 497 F.2d

1367, the United States District Court for the Eastern District

of Louisiana, at New Orleans, Herbert W. Christenberry, J,

entered a judgment convicting defendant of possession of

heroin with intent to distribute and he appealed. The Court

of Appeals, Clark, Circuit Judge, hell, inter alia, that the

recitals in the affidavit for warrant for search of defendant's

house could be bolstered by the sworn testimony of ayent at

the time it was given, that recitals in the affidavit and such

additional information were sufficient to justify issuance of

warrant, and that warrantless search of automobile was valid.

Affirmed. se!

1. Searches and Seizures o=3.6(4)

Judicial officer may not property issue warrant to search

private dwelling unless he can find probable cause therefor

from the facts or circumstances presented lo him under oath

or affirmation.

2. Searches and Seizures © 1.6(2) at 2

“Probeble cause” is deemed to exist when facts and

circumstances within affiant’s knowledge and of which he has

reasonably trustworthy information arc sufficient unto them-

selves to warrant a man of reasonable caution to believe Uhat

an offense has been or is being committed.

end Key Neer Claeelweten

The Syenqewa, Sytiate and Key Nomier (lasmle ? pe ees

catenn fwnstiiute me part of the qaame af the court INDEXED

autile ,

vIII

tue UNITED STATES v. HILL

See publication Words and Phrases for other

judicial constructions and definitions.

3. Bearches and Seizures o> 13.9

Whether a fact and circumstance matrix validly demon.

strates probable cause for issuance of search warrant is a

determination committed to neutral and detached magistrate,

and judicial review of his determination must be strictly

confined to the information which was brought to his atten-

tion.

4. Searches and Betrures o> 3.6(3)

In consideration of affidavit for issuance of search war-

rant, the issuing magistrate may rely on information to estab-

lish probable cause which does not reflect personal knowledge

of affiant if a substantial basis for crediting hearsay is

presented.

5. Searches and Seizures 2 3.6(3)

Magistrate, in evaluating affidavit for search warrant

which recites the tip-of an unnamed informer, must be in-

formed of underlying facts and circumstances from which

informant has concluded that the person to be searched is

engaged in criminal activities and from which affiant has

concluded that the informant is credible or that his informa-

tion is reliable.

6. Searches and Seizures o=3.6(3)

Although hearsay recited in affidavit for search warrant

may be insufficient to permit the drawing of crucial inferenc-

es necessary to establish probable cause under United States

Supreme Court decision, yet such hearsay may be introduced

into the probable cause calculus if magistrate can fairly state

that the tip, when certain parts have been corroborated by

independent sources, is as trustworthy as a tip which would

pass muster without independent corroboration.

7. Searches and Seizures o=3.6(2)

Affidavits of probable cause are tesicd by much less

rigorous standards than those governing the admissibility of

UNITED STATES +. HILL 7466

evidence at trial, and in judging provable cause issuing magis-

trates are not to be confined by niggardly limitations or by

' restrictions on use of their common sense.

& Searches and Seizures e=3.9

. Issuing magistrate’s determination of probable cause

should be paid great deference by reviewing courts.

® Druge and Narcotics o 188

Affidavit of government agent setting forth information

obtained from unnamed tipsters regarding narcotics activity

was sufficient to justify magistrate in concluding that defend-

ant was engaged in the sale and distribution of heroin and the

reliability of informants was adequately corroborated by

agent's extrinsic testimony before magistrate to warrant is-

suance of search warrant for home of defendant. USCA.

Const. Amend. 4; Fed.Rules Crim.Proc. rule 4(e), 18 US

C.A.; Comprehensive Drug Abuse Prevention and Control A.

of 1970, § 401(a)(1), 21 U.S.C.A. § 841(aX1).

10. Searches and Sciaures = 13.5

Constitution does not mandate that a sworn statement in

support of application for search warrant be reduced to writ-

ing. U.S.C.A.Const. Amend. 4.

11. Searches and Scizures o> 3.6(1)

The providing of additional information under oath by

government agent to bolster affidavit for scarch warrant was

permissible in view of rule as then written. Fed.Rulcs Crim.

Proc. rule 41(¢c), 18 U.S.C.A.

12. Drugs and Narcotics © 188

Intelligence gathered by government agent, while exccut-

ing warrant for scarch of defendant's house, implicating de-

fendant’s automobile in unlawful heroin transaction and recit-

als in affidavit for search warrant were sufficient to authorize

warrantless search of defendant's automobile which was

parked nearby home being searched by agents. U.S.C.A.

Const. Amend. 4.

_— TEPER

7467 UNITED STATES v. HILL

13. Criminal Law ¢=993

In view of a record which was devoid of any evidence of

indigency of defendant, who was sentenced to a term of eight

years in the penitentiary followed by a three-year term of

parole in addition to a fine of $15,000, defendant was not

entitled to a reduction of fine but defendant could petition for

correction or reduction of sentence at such time as he could

demonstrate that his fiscal inubility to pay fine assessed was

causing him to suffer a deprivation of liberty.

Appeal from the United States District Court for the East-

ern District of Louisiana.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The validity of Clarence Hill’s conviction for possession with

intent to distribute heroin turns upon the constitutional cor-

rectness of searches of his residence and automobile. Our

appellate task is to determine whether oral testimony before

the issuing magistrate was properly employed to bolster an

otherwise deficient affidavit for a search warrant, whether a

warrantless search of Hill’s automobile was Fourth Amend-

ment-reasonuble, and whether his sentence violated the equal

protection clause. Under the unique facts of this case, we

find the searches viable and affirm Hill’s conviction and

sentence.

The Residential Search

On July 1, 1972, John Henry Phillips, Jr., an agent of the

Burcau of Narcotics and Dangerous Drugs (BNDD), appeared

before United States Magistrate Morcy L. Sear to request a

search warrant for the premises at 2363 N. Robertson Street,

the New Orleans home of defendant Clarence Hill. Phillips’

affidavit related his belief that Hill was concealing heroin

there in violation of 21 U.S.C. § &1(aX1):; To demonstrate

UNITED STATES v. HILL 1468

er ore

‘pro probable cause a lengthy memorandum was attached to his

: / affidavit The attachment set out tips obtained from four

* confidential informants and from an anonymous phone caller

together with related eee eee gathered by law enforce-

‘ment officials.

“.. Confidential source one had stated that during the month of

“June Hill had consigned three bundles of heroin to him for

+ gale by revealing where the contraband was hidden, and that

’ Hill, who was also known as “Hip Cat, "was the brother-in-

Jaw of a convicted trafficker in heroin. Source two had

. observed Julius Wilkerson, also known as “Moon,” and anoth-

* bundles of heroin as he spoke to them about a purchase of the

.. illicit white powder. Source three had reported that Wilker-

_ son was a “big time heroin pusher” with whom he had

_ discussed the purchase of heroin on several occasions. Source

. four had told a fellow agent that during the previous month

‘ he had obtained heroin from a black male at Hill's address and

had taken other persons there to purchase heroin. The contin-

uing BNDD investigation of Hill had also uncovered the fact

that another known heroin trafficker, Floyd Dupart, had been

seen driving Hill’s 1972 Plymouth and that in October of 1971

Wilkerson had sent Hill 1,350 dollars in New York City, which

the agents surmised was to finance the purchase of hcroin.

Furthermore, Agent Phillips had been warned on Junc 30 by

an anonymous female phone caller to “look out for Julius

Wilkerson and Clarence Hill because they are selling dope,”

which she stated was heroin hidden in Hill's residence.

Before he issued the warrant, Magistrate Sear interrogated

Phillips under oath as to the basis upon which he had gauged

the reliability of cach confidential source. Convinced that

probable cause existed, the magistrate noted on the affidavit

that he had asked the agent further questions and obtained

additional information about the informers. As supplement-

ed, he concluded that the affidavit authorized the issuance of

@ search warrant. Phillips, accompanied by other federal

XIT

7469 UNITED STATES v. HILL

agents and New Orleans police detectives, cxecuted the war.

rant by searching Hill's residence that afternoon and sejzeq

two bundles of heroin and other narcotics paraphernalia,

At the outset, Hill urges error in the district court's failure

to suppress the seized evidence at a pretrial hearing, contend.

ing that Phillips’ affidavit was a deficient predicate for the

magistrate’s adjudication of probable cause to search because

(1) it did not disclose sufficient underlying circumstances to

support the conclusion that Hill was a trafficker and possessor

of heroin, and (2) it did not contain sufficient information

from which the magistrate could determine that the confiden-

tial informants were reliable.

[1-3] The fourth of our Bill of Rights secures people,

houses, persons and effects from unreasonable governmental

intrusion in terms which are cloquent in their simplicity.

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

houses, papers, and effects, aguinst unreasonable searches

and scizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Outh or affir-

mation, and particularly describing the place to be searched,

and the persons or things to be seized. (emphasis added).

A judicial officer “may not properly issue a warrant to search

a private dwelling unless he can find probable cause therefor

from facts or circumstances presented to him under oath or

affirmation.” Nathanson v. United States, 290 U.S. 41, 47, 54

S.Ct. 11, 13, 78 L.Ed. 159 (1933). “Probable cause is deemed to

exist ‘where the facts and circumstances within the affiant's

knowledge, and of which he has reasonably trustworthy in-

formation, are sufficient unto themselves to warrant a man of

reasonable caution to believe that an offense has been or 's

being committed.’” United States v. Melancon, 462 F.2d 82, 89

(5th Cir. 1972), cert. denied, 409 U.S. 103%, 93 S.Ct. 516, 34

L.Ed.2d 487 (1973), quoting United States v. Rich, 407 F.2d

934, 936 (5th Cir.), cert. denied, 395 U.S. 922, 89 S.Ct. 1775, 23

L.Ed.2d 239 (1969); Brineyur v. United States, 338 U.S. 160,

69 S.Ct. 1202, 93 L.Ed. 1879 (1949). Whether a fact and

‘= TOE ARENT TRIN HNT PITTED AE RIN LY TIM

UNITED STATES v. HILL 7470

circumstance matrix validly demonstrates probable cause is a

" cterinination committed to a neutral and detached magis-

-twate. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971). It is fundamental that judicial

“yeview of his determination must be strictly confined to the

information which was brought to his attention. Giordencllo

“.¥, United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Eul.2d 1503

* (1958). ,

' (4,5) In his consideration of an affidavit, the issuing mag-

" istrate may rely on information to establish probable cause

which does not reflect the personal knowledge of the affiant if

“a substantial basis for crediting the hearsay is presented,”

Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4

L.Ed.2d 697 (1960). In Aguilar v. Texus, 378 U.S. 108, 1l4-

115, 84 S.Ct. 1509, 1514, 12 L.Rd.2d 723 (1964), the Supreme

Court propounded a two-pronged standard hy which to judge

whether an affidavit reciting the tip of an unnamed informer

permits the magistrate, rather than the lipster or the investi-

gating police officer, to draw the crucial inferences necessary

to establish probable cause from the hearsay facts. He must

be informed of the underlying facts and circumstances (1)

from which the informant has conclude! that the person to be

Searched is engaged in criminal activities, and (2) from which

the affiant has concluded that the informant is credible or his

information reliable. United States v. Chavez, 482 F.2d 1268

(Sth Cir. 1973),

[6] In the event the hearsay fails to pass muster under

Aguilar, it may yet be introduced into the probable cause

| calculus if the muyistrate can fairly state that “the Lip,

When certain parts have been corroborated by independent

Sources, is as trustworthy as a tip which would pass Aguilar's

test without independent corroboration.” Spinelli v. United

States, 393 U.S. 410, 415, 89 S.Ct. 581, 588, 21 L.Ful21 637

(1969); See, ec. g., United States v. Lopez-Ortiz, 492 F.2d 109

(Sth Cir, 1974); United States v. Summerville, 477 F.2d 393

(Sth Cir. 1973); United States v, Black, 476 Fi2d 267 (Sth Cir,

xIV

EN ag RTL AN Nee BI wane

7471 UNITED STATES v. HILL

1973); United States v. McNally, 473 F.2d 934 (3rd Cir. 1973);

United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) (en

banc), petition for cert. filed, 42 U.S.L.W. 3611 (U.S. Apr, .

1974) (No. 73-1561); United States v. Star, 470 F.2d 1214 (gu,

Cir. 1972); United States v. Sultan, 463 F.2d 1066 (2d Cir.

1972); United States v. Fuller, 441 F.2d 755 (4th Cir.), cert.

denied, 404 U.S. 830, 92 S.Ct. 74, 30 L.Ed.2d 59 (1971). Most

recently, in United States v. Harris, 403 U.S. 573, 91 S.cL

2075, 29 L.Edl.2d 723 (1971), the Court held that a cumulation

of circumstances recited in an affidavit may be sufficient to

support the conclusion that the confidential informant was

credible so as to meet the second prong of Aguilar.

These [circumstances] were: (1) the allegation of the

affiant that he regarded the informant as “prudent”; (2)

the detail provided in the tip; (3) the fact that the affidavit

also alleged that the accused had a reputation for being a

trafficker in nontaxpaid liquor; and (4) the fact that the

information given, with the allegations of the informant’s

purchases, was a declaration against the informant’s penal

interest.

United States v. Chavez, supra, 482 F.2d at 1271.

[7,8]. Applying the Courts’ tests to the case before us, the

threshold question is did Phillips make sufficient information

of a reliable nature known to Magistrate Scar to warrant a

prudent man in believing that the defendant had committed

an offense? The personal knowledge of source one connected

Hill directly with the sale of heroin and revealed a modus

operandi. Source four, with specificity, personally established

- Hill’s residence as the scene of numerous transactions In

—_— yareremamaane

heroin. The information provided by the other confidenti:!

sources principally described Hill’s associates as dope pushers

but this, as well as the warning provided by the anonymous

phone caller, provided some corruburative support for the

information supplied by sources one and four.

Only the probability, and not a prima facie showing, of

criminal activity is the standard of probable cause, Beck Vv.

UNITED STATES v. HILL 7472

_ Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.d 142

” (1984); affidavits of probable cause are tested by much less

.. rigorous standards than those governing the admissibility of

_ evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87

§.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967); in judging probable

- eause, issuing magistrates ure not to be confined by nig-

ganily limitations or by restrictions on the use of their

common sense, United Statcs v. Ventresea, 380 U.S. 102,

108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); and their

- determination of probable cause should be paid great defer-

~ ence by reviewing courts, Jones v. United States, (supra),

262 U.S. at 270-271, 80 S.Ct. at 734-736; Spinclli v. United

States, [supra], 393° U.S. at 419, 89 S.Ct. at 590-591.

United States v. Melancon, supru, 462 F.2d at 89-90.

{9} Unquestionably, the information collected from the

tipsters by Agent Phillips, if truc, would persuade a man of

reasonable cuution that Hill, in all probability, was selling

heroin and concealing his supplics at his home. Since the

affidavit reveals sufficient facts and circumstances, albeit

hearsay, founded in personal observation and participation, to

permit Magistrate Sear to determine whether sources one

through four were justified in concluding that Hill was en-

gaged in the sale and distribution of heroin and that the_

criminal activity was transpiring at his residence, it mects the

first prong of the Aguilar standard. , See United States v.

' Banks, 465 F.2d 1235 (5th Cir. 1972).

Agent Phillips was less rigorous in his written presentation

of the facts and circumstances upon which he based his belief

that his informants were supplying truthful information. Al-

though the informer need not be identified, Gonzales v. Beto,

425 F.2d 963 (5th Cir.), cert. denicd, 400 U.S. 928, 91 S.Ct. 194,

27 L.Ed.2d 189 (1970), only Phillips’ identification of source

three, whom he asserted in the affidavit to have been respon-

sible for the convictions of numerous narcotics offenders, met

the second prong of Aguilar. United States v. Mendoza, 433

XvI

7473 UNITED STATES v. HILL

F.2d 891 (5th Cir. 1970). We need not reach the questions of

whether the hearsay intelligence of euch informer was

quately corroborated under Spincili standards by the other

independent hearsay information or the BNDD agents’ indy

pendent observations, or whether the affidavit, considered jn

its totality, produced a constitutionally sufficient result jn

conformity with the cumulative Hurris equation, for we hold

that the reliability and credibility of cach informant was

established to,the satisfaction of Aguilar by Phillips’ extrinsic

testimony to the magistrate.

At the pre-trial suppression hearing, Agent Phillips testified

as to the additional information he orally supplied Magistrate

Sear when the latter questioned Phillips about the reliability

of his informants at the time Phillips applied for the search

warrant. Although sources one and two had not made any

cases for the BNDD, the agent replicd that both had fur-

nished information about the New Orleans heroin traffic

which had proven to be true and correct. Moreover, Freddie

Williams was known to the BNDD as “one of the largest

heroin traffickers who has ever resided in New Orleans.”

Phillips described source two as a reliable, cooperating individ-

ual. The sufficiency of this representation is bolstered by the

specificity of the information source two provided. The re-

ported heroin negotiations were traced in detail by disclosure

of dates, times, names of individuals, pinpoint location of a

street corner agreement, Hill’s auto license number, and the

address of the ultimate supplies. The affidavit itself revealed

that source three, who had furnished Phillips information

since 1963, had been responsible for the arrest and cunviction

of numerous narcotics offenders. Although he was personally

acquainted with the first three confidential informants, Phil-

lips had learned of source four and his information just two

days earlicr from another BNDD officer, who had stated that

source four was a good informer, having supplied true and

correct information without, at that time, having made any

cases. With this additional background Magistrate Sear 19

xvII

UNITED STATES v. HILL 1474

= fi in following handwritten notation on the affidavit:

oe ar interrogation of Agent Phillips including informa-

ye with regard to his informers supports issuance of this

SETS

Pbinip’s extra-affidavit statements were more than enough

gy supply. the. deficits from Aguilar’s second requirement.

”“koowding to Phillips, cach informant had, at the least, suj>

* ied BNDD agents in the past with information which had

proven to be true and correct. “{SJuch a factual statement of

jost celivbility provides sufficient basis for the magistrate to

_ jsauge independently the reliability of the informer.” United

Siates v. Mendoza, supra, 433 F.2d at 894. Each informant

Sernished information that was based on personal observation

” aud substantiated by instances of past reliability. Morvover,

.. Phillips spoke from personal knowledge as to the credibility of

crd the information provided by sources one through three.

- ‘That the tip and reliability of source four were communicated

_ to the affiant by another officer is of no decisional moment.

- United States v. Simpson, 484 F.2d 467 (5th Cir. 1973); United

States v. Impson, 482 F.2d 197 (5th Cir. 1973), cert. denied, 414

. US. 1009, 94 S.Ct. 371, 38 L.Ed. 246 (1974); United States v.

_- Trabueco, 424 F.2d 1311 (5th Cir.), petition for cert. dismissed,

593 U.S. 918, 90 S.Ct. 2224, 26 L.Ed. 785 (1970). Such

' Personal observations of a fellow officer pursuing the same

investigation can be presumed reliable. United States v.

* Hayles, 471 F.2d 78% (5th Cir.), cert. denic«l, 411 U.S. 969, 93

S.Ct 2159, 36 LEd.2d 690 (1973). The fact that Phillips

"Father than his fellow officer imparted this particular inform-

ation to the magistrate in no way attenuates its accuracy or

the credibility of the informant.

(10,11) Hill contends, however, that Fed.R.Crim.P. 41(c)

not permit a federal magistrate to rehabilitate a defi-

1. aa United States v. Stratton. 453 F.2d 36 (8th Cir.), cert. denied,

U.S. 1069, 92 S.Ct. 1515, 31 L.Fd2d 800 (1972), see also

v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91

S-Ct. 1031, 28 L.Ed 2d 306 (1971).

XVIII

1475 UNITED STATES v. HILL

cient affidavit with oral testimony. It has been an acecpted

principle in this and other circuits that a federal court, review-

ing a State conviction, may consider an affiant's oral testimo-

ny, extrinsic to the written affidavit, which is sworn before

the issuing magistrate, in determining whether the warrant

was founded on probable cause. Sev, ¢. g., Campbell v.

Minnesota, 487 F.2d 1 (8th Cir. 1973); United States ex rel.

Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973); Boyer v.

Arizona, 455 F.2d 804 (9th Cir. 1972); Radcliff v. Cardwell,

446 F.2d 1141 (6th Cir. 1971); Frazier v. Roberts, 441 F.2d

1224 (8th Cir. 1971); United States ex rel. Pugach v. Mancusi,

411 F.2d 177 (2d Cir.), cert. denied, 396 U.S. 889, 90 S.Ct. 172,

24 L.Ed.2d 163 (1969); Sherrick v. Eyman, 389 F-2d 645 (9th

Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.EAL2dl 144

(1968); See also Lopez v. United States, 370 F.2d 8 (Sth Cir.

1966)2 The constitution docs not mandate that a sworn

statement in support of an application for a search warrant be

reduced to writing. “The Fourth Amendment requires only

that the judicial officer issuing a search warrant be supplicd

sufficient information, under oath or affirmation, which

would support an independent judgment that probable cuuse

exists for the warrant’s issuance.” United States ex rel.

Gaugler v. Brierley, supra, 477 F.2d at 522 (footnote omitted);

see Boyer v. Arizona, supra; Sherrick v. Kyman, supra. In

federal criminal proceedings the issuance of search warrants is

subject to the added governance of Fed.i-Crim.P. 41(c), which,

as of the date the warrant sub judice was issued, provided:

affidavit sworn to before the judge or commissioner and

2. In two cases arising from state criminal convictions the Supreme

Court intimated that sworn oral testimony before a state magistrate

in an application for a search or arrest warrant may constitutionally

supplement an affidavit which, on its face, fails to establish probable

cause for its issuance. See Whiteley v. Warden, Wyoming State

Penitentiary, supra, 401 U.S. at 565 n. 8, 91 S.Ct. at 1035, Aquilar v.

Texas, supra, 374 U.S. at 109 n. 1, 84. S.Ct. at 1511; United States &x

rel. Gaugler v. Brierley, supra, 477 F.2d at 520 522.

UNITED STATES v. HILL 7476

tablishing the unds for issuing the warrant. If the

ie wD oe is satisfied that grounds for the

pplication exist or that there is probable cause to believe

that they exist, he shall issuc a warrant identifying the

- property and naming or describing the person or place to be

The notes of the advisory committce state that the rule was

intended to codify and restate existing lay and practice as of

the date it became cffective on October 20, 1949.

“dhe sworn additional information provided by Agent Phil-

lips adequately apprised Magistrate Scar of circumstances

. indicating the past-and present reliability of the four inform-

ers. In view of the fact that the magistrate’s own conscicn-

tious attention to his duty enabied him to satisfy himself of

the persuasiveness of the facts purporting to show probable

cause and that this court can readily determine that the

warrant and concomitant search comport with constitutional

requirements, we join the Eighth and Tenth Circuits in hold-

ing this supplementation was permissible under Rule 41(c) as

it was written at the time Hill's search warrant issued. Sec

United States v. Beasley, 485 F.2d 60 (10th Cir. 1973); United

States v. Marihart, supra; Leeper v. United States, 446 F.2d

281 (10th Cir.), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30

L.Ed.2d 671 (1971); United States v. Berkus, 428 F.2d 1148

(8th Cir. 1970); Lopez v. United States, supra; Gillespie v.

United States, 368 F.2. 1 (8th Cir. 1966).

Under different facts, the Ninth Circuit decided that physi-

cal incorporation of all information into the affidavit was

required. “[{U)nder Rule 41(c) the written affidavit presented

to the federal issuing officer and to the reviewing court must

alone establish that probable cause exists.” United States v.

Anderson, 453 F.2d 174, 177 (9th Cir. 1971); accord United

States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973) (dictum);

United States v. Hatcher, 473 F.2d 321 (6th Cir. 1973) (dic-

tum); United States v. Bailey, 458 F.2d 408 (9th Cir. 1972)

(dictum); United States v. Sterling, 369 F.2d 799, 802 n. 2 (2rd

bia alta akc

471 UNITED STATES v. HILL

Cir. 1966) (dictum); see United States v. Pinkerman, 374 F.2d

988 (4th Cir. 1967) (dictum); Rosencranz v. United States, 356

F.2d 310 (1st Cir. 1966) (dictum); sce also United States v,

Freeman, 358 F.2d 459 (2nd Cir.) (dictum), cert. denied, 385

U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966).

The Anderson Court reasoned that the “four corners” of the

affidavit had to constitute the alpha and omega for judging

probable cause in order to insure that “the reviewing court

may determine whether the constitutional requirements have

been met without reliance upon faded and often confused

memories.” United States v. Anderson, open, 453 F.2d at

177.

The reasoning sabes the Ninth Circuit’s rule is not

apropos here. Phillips did not attempt to supply Magistrate

Sear with remote or minute details of IIill’s conduct based

upon his ability to recali bits and pieces of past conversations.

His supplementation only furnished facts known to him and

his fellow-officer that indicated the informers’ information

should be credited. * Phillips’ recall of this uisclosure shows

that his memory of these matters was neither clouded nor —

befuddled. We can conclude without difficulty that the war-

rant was duly authorized. Furthermore, this situation fur-

nishes no occasion to apply the exclusionary rule to bar the

evidence of Hill’s criminality that was obtained in exccuting

the warrant. Phillips acted properly in going to the magis-

trate and sceking » warrant. Magistrate Sear acted properly

in calling for additional information to demonstrate ercdibili-

ty. Thus, the only error attributable to the procedure they

followed is a technical one that would in no way serve the

deterent purposes of the rule.

The rule is calculated to prevent, not to repair. Its

purpose is to deter—to compel respect for the constitutional

guaranty in the only effectively available way—by remov-

ing the incentive to disregard it.

Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444,

4 L.Ed.2d 1669 (1960), quoted in United States v. Calandra,

;,——

‘ , LOOT EOI GLAIS IELY LE CLL LEE IS LANE LISD

Py AE ae a

UNITED STATES v. HILL om

wqis US. 938, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). This is _

“ggpecially so since Rule 41(c) has now been amended 1+ ex- -

wwsi'py these express new provisions, the Rule has ciarified

“police ‘and magisterial conduct for the future in a more

* effective manner than the exclusionary rule ever could. Mag-

~igtrate Sears’ handwrittc.: notation on the face of the affida-

‘vit signaled his reliance on the additional information he

:? obtained from Agent Phillips. That he was not omniscient

~ enough to also transcribe and incurporate the agent's testim->-

~" py is not fatal since the facts obtained were within the agent's

“direct knowledge and sufficiently uncomplicated to cnable the

. court to obtain a reliable reproduction. a

"*" Although we do not overlook the fact that a different result

- would obtain if the affidavit had been procured after Ccivher

“1, 1972, it would be illogical and unjust to overturn this

conviction on the basis of a technical default that in nowis- -

mitigated the reliability of the information in the affidavit o-

its procedural compliance with the Fourth Amendment. See

United States v. Mendoza, 491 F.2d 534 (5th Cir. 1974);

United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); rev'd

3% In pertinent part the amended rule provides:

- affidavit or affidavits sworn to before the federal magistrate or sta*c

a ee oe as

1479 UNITED STATES v. HILL

on other grounds, 497 F.2d 147 (5th Cir. 1974) (en banc);

United States v. Nolan, 413 F.2d 850 (6th Cir. 1969).

[T]he Fourth Amendment's commands, like all constitu-

tional requirements, are practical and not abstract. If the

teachings of the Court’s cases are to be followed and the

constitutional policy served, affidavits for search warrants,

such as the one involved here, must be tested and interpret-

ed by magistrates and courts in a commonsense and realistic

fashion. They are normally drafted by nonlawyers in the

midst and haste of a criminal investigation. Technical

requirements of elaborate specificity once exacted under

common law pleadings have no proper place in this arca. A

grudging or negative altitude by reviewing courts toward

warrants will tend to discourage police officers from sub-

mitting their evidence to a judicial officer before acting.

United States v. Ventresea, supra, 380 U.S. at 108, 85 S.Ct. at

746. The disirict court’s denial of defendant’s motion to

suppress the physical evidence seized during the search of

Hill's residence must be affirmed.

Il.

The Automobile Scarch

The BNDD agents and police officers executed the search

warrant at Hill’s residence on the afternoon of July 1, 1972.

After the agents had entered and secured the house, Agent

Phillips gave Hill a copy of the warrant and advised him of his

constitutional rights. Hill denicd there was heroin on the

premises, but did relinquish a gun and 17,991 dollars in cash.

The agents began searching and soon discovered a box of

glassine envelopes of the kind commonly used to package

heroin.

When the officers began to “get hot,” Hill asked whether he

would be the only one taken to jail if he surrendered the

heroin. At Hill's request Phillips signed his name to an

agreement written on the back of the search warrant in which

xual

ot a Taste ak

; ERT RAMUS AS TL SEA * ict

UNITED STATES v. HILL 7480

_. the agent promised that if Hill surrendered all the heroin in

133 possession and if he were the sole person responsible for it,

-. tig wife and child, who were also present, would not be

_ arrested. At this juncture Hill pointed to a lamp fixture next

‘to him from which the agents retrieved two bundles of heroin

wrapped in a brown packet. ‘

- “While the agents continued to search, detectives of the New

Orieans Police Department spoke with Hill’s 7-year old son in

the rear of the house away from his parents. The officers

showed him a bundle of the seized heroin and asked if he had

ever scen his father handling this sort of white powder. The

child replied that he had seen his father carry a bag contain-

ing bundles of the white powder out to his car, which was

parked around the corner. Goading him on, the officers told

hiin he did not know what he was talking about and promised

him $3.75 if he would show them where the car was located.

The child then repeated to Phillips his story that if the white

powder was not in the kitchen closet with the money, it would

be in the car. Agent Phillips picked up a set of car keys

laying on a table and the child led the officers half a block to

Hill's Buick, which was searched and found to contain 40

bundles of heroin and other narcotics paraphernalia.

{12} Hill contends that the warrantless search of his auto-

mobile was conducted in the absence of exigent circumstances

and, therefore, was unconstitutional under the rationale of

Coolidge v. New Hampshire, supra. That the agents had

Probable cause to scize the vehicle is undisputed. The intelli-

gence gathered by Phillips and recited in the affidavit impli-

cating the Buick in unlawful heroin transactions was rein-

foreed by fresh information provided by Hill’s son that if

Hill’s cache was not in the house it would be found in the car.

Moreover, the known accessibility of the automobile to Hill's

confederates supplicd exigent circumstances for a scizure de-

spite the fact that the BNDD agents had immobilized Hill, his

wife and his car keys.

1481 UNITED STATES v. HILL

In United States v. Soriano, 497 F.2d 147, 149 (Sth Cir. 1974)

(en banc), this court, relying on Chambers v. Maroncy, 399

U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), reasoned

“that where automobiles and their contents are concerned,

circumstances which justify an immediate seizure as reasona- -

ble justify an immediate search as well.”

That Hill's reliance upon Coolidge v. New Hamphsire, supra,

is unfounded is made clear by the following language from

Cardwell v. Lewis, — U.S. —, —, 94 S.Ct. 2464, 2471, 41

L.Ed.2d —— (1974):

Since the Coolidge car was parked on the defendant's

driveway, the scizure of that automobile required an entry

upon private property. Here, as in Chambers v. Maroncy,

399 U.S. 42 [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970), the

automobile was scized from a public place where acecss was

not meaningfully restricted. This is, in fact, the ground

upon which the Coolidge plurality opinion distinguished

. Chambers, 403 U.S., at 463 n. 20, 91 S.Ct. at 2036. See also

Cady v. Dombrowski, 413 U.S. 266, at 446-447, (93 S.Ct.

2535, at 2530-2531, 37 L.Ed.2d 596].

The intervention of an impartial magistrate between the

uncontrolled discretion of police officers and the citizens they

are sworn to serve is always to be preferred. Solid judicial

precedent has, however, mitigated the inflexible warrant re-

quirement as to automobile searches. In the circumstances of

the case before us today we hold that the warrantless scarch

of Hill’s automobile comported with the Fourth Amendment.

See United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974);

United States v. Davis, 496 F.2d 1026 (5th Cir. 1974); United

States v. Frick, 490 F.2d 666 (Sth Cir. 1973).

Hl.

The Sentence

[13] After he found Hill guilty as charged in the indict-

ment, the district judge sentenced the defendant to w term of

xxv

UNITED STATES v. HILL 1482

_g years in the federal penitentiary to be followed by a special

year term of parole. In addition, he ordered the defendant

-to pay & fine of 15,000 dollars or stand committed. Hill

contends that because he is indigent, the fine denies him equal

protection of the law. This sentence lay well within the

‘maximum prescribed by 21 U.S.C. § 841(b)(1){A), which autho-

_-yized imprisonment for up to 15 ycars and a fine of not more

-than 25,000 dollars. In Williams v. lilinois, 399 U.S. 235, 243,

" 90 S.Ct. 2013, 2023, 26 L.Ed.2d 586 (1970), the Supreme Court .

held “that a state may not constitutionally imprison beyond

the’ maximum duration fixed by statute a defendant who is

" financially unable to pay a fine. A statute permitting a

sentence of both imprisonment and fine cannot be parlayed

- into a longer term of imprisonment than is fixed by the

statute . . . .” In Tate v. Short, 401 U.S. 395, 398, 91

S.Ct. 668, 671, 28 L.Ed.2d 120 (1971), the Court adopted the

view, previously expressed by four of its members in Morris v.

Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d

- 973 (1970), that “the Constitution prohibits the State from

imposing a fine as a sentence and then automatically convert-

ing it into a jail term solely because the defendant is indigent

and cannot forthwith pay the fine in full.” It also empha-

sized, however, that there is no constitutional infirmity in

imprisoning “a defendant with the means to pay a fine who

refuses or neglects to do so.” 401 U.S. at 400, 91 S.Ct. at 672.

Neither Hill nor his counsel entered any objection when the

district court imposed sentence. The present record is devoid

- of any evidence of Hill's indigency; indeed indigency is con-

traindicuted by the fact that almost 18,000 dollars in cash was

recovered at his residence. Nothing establishes that the sen-

tence and fine imposed now offend the equal protection

clause. The defendant may petition the district court under

Fed.R.Crim.P. 35 for correction or reduction of sentence at

such time as he can demonstrate that his fiscal inability to pay

the fine assessed is causing him to suffer a deprivation of

liberty. Should the government resort to alternatives other

XXVI

7483 UNITED STATES v. HILL

than incarceration to enforce its interest in the payment of

fines, Hill may raise his cqual protection rights there also.

See Tate v. Short, supra, 401 U.S. at 399, 91 S.Ct. at 671.

The decision of the district court is

Affirmed.

APPENDIX "D”"

FIRST AMENDMENT, U.S. Constitution:

Congress shall make no law respect-

ing an establishment of religion, or

prohibiting the free exercise thereof;

or abridging the freedom of speech or of

the press; or of the right of the people

peaceably to assemble, and to petition

the government for a redress of griev-

ances.

THIRD AMENDMENT, U.S, Constitution:

No soldier shall, in time of peace,

be quartered in any house without the

consent of the owner, nor in time of

war but in a manner to be prescribed

by law.

FOURTH AMENDMENT, U.S. Constitution:

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

affirmation, and particularly describ-

ing the place to be searched, and the

persons or things to be seized.

FIFTH AMENDMENT, U.S. Constitution:

No person shall be held to answer

for a capital or other infamous crime

unless on a presentment or indictment

of a grand jury, except in cases arising

in the land or naval forces, or in the

militia, when in actual service,in

time of war or public danger; nor shall

any person be subject for the same of-

fense to be twice put in jeopardy of

life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or-property, without

due process of law; nor shall private

property be taken for public use with-

out just compensation. .

SIXTH AMENDMENT, U.S. Constitution:

In all criminal prosecutions, the

accused shall enjoy the right toa

speedy and public trial, by an impar-

tial jury of the state and district

wherein the crime shall have been com-

mitted, which district shall have been

previously ascertained by law, and to

be informed of the nature and cause of

the accusation; to be confronted with

the witnesses against him; to have com-

pulsory process for obtaining witnesses

in his favor, and to have the assist-

ance of counsel for his defense.

NINTH AMENDMENT, U.S. Constitution:

The enumeration in the constitution

of certain rights shall not be constru-

ed to deny or disparage others re-

tained by the people.

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.