# Petition for Writ of Certiorari — Wilkerson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 826

## Text

—— -

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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 ----- RRR SARI OSS LE LIE LORE eet IE EI

28

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

29
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

32

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

33
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.

34
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

35
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

36

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

37
"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

38
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 |

39
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 -

40
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

41
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 ?

42
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

43
APPENDIX "a"

3678
UNITED STATES of America, Plaintiff-Appellee,

v.

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

44

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 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

52
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

53

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.

I.
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

x

54

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-
© er man (not Hill) in Hill’s 1971 white Buick handling six
* 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

3?

XIT

55

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

xr

,
‘= TOE ARENT TRIN HNT PITTED AE RIN LY TIM

56
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

57
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.

58
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

59
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

60
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

61

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:
(c) Issuance and Contents. A warrant shall issuc only on
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.

xx

62
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

yr

bia alta akc

63

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,

xa

3
;,——
a
‘ , LOOT EOI GLAIS IELY LE CLL LEE IS LANE LISD

Py AE ae a

64

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- -
© prosslypermit oral interrogation by the magistrate.’ -.*

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:

(c) Issuance And Conzeats. A warrant shall issue only on an
- affidavit or affidavits sworn to before the federal magistrate or sta*c

:

a ee oe as

65
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

66

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.

67
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

68

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

69
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.

70

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

71

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1065%3A1. Public record. Not legal advice.