*1 Cоurt1 petition District filed effec- he had been denied alleging that America, UNITED STATES at state court assistance of counsel
tive Appellee, in which he was convicted of proceedings named as defendants burglary. Gilbert LACEY, Appellant. Arthur C. trial, pros- judge presiding his public attorney, and two of the ecuting No. 75-1461. him, reрresent appointed defenders United States Court of Appeals, $500,000. sought damages of Eighth Circuit. petition District dismissed the Court Submitted Nov. 1975. to state a cause of action. Gil- failure appeal. has taken this Decided March bert 1976. Rehearing April 1, Denied 1976. judge A is immune from civil liability damages when he acts with jurisdiction. prose A scope similarly acting
cutor is immune when proper prosecutorial capacity.
his Pier Ray,
son v. McIntyre,
Duba
1974); Dorsey, Barnes v. 1973). allegations Gilbert’s are Judge a claim that
insufficient state acting in the clear
Corcoran absence jurisdiction, Ryan, or that Mr.
prosecuting attorney, acting outside proper prosecutorial
his capacity. There
fore, we hold that dismissal as to these proper.
defendants was Heaney, Judge, dissented opinion. and filed We hold that dismissal as to the public proper. defenders was also We question
need not reach the of whether
public any defenders have form of im
munity from liability damages; Gil allegations
bert’s of ineffective assist
ance of counsel conclusory are too
state a claim against public defend
ers under 42 Ellingburg U.S.C. § King, judgmеnt of dismissal is affirmed. Missouri, H.
1. United States Honorable Kenneth District District of Court for the Eastern Wangelin. *2 and informed them that she had agents in quantity a of heroin observed apartment. of events was re-
A similar series
1974;
September
and on
peated on
afternoon,
agents applied for
that
DEA
a
warrant
and receivеd
in
cocaine Morri-
seizure of heroin and
at
apartment.
son’s
arrival
On
p.
8:15 m.
apartment
approximately
evening,
agents
DEA
Mo.,
knocked
Hill,
City,
J. Arnot
Kansas
identity
and announced their
and pur-
appellant.
occurred,
response
no
pose. When
Moody,
Atty.,
Asst. U.
J. Whitfield
S.
entered.
agents forced
door and
La-
Mo.,
Bert C.
City,
appellee;
Kansas
Hurn,
holding
found in a bedroom
a
cey was
Hill,
Atty.,
L.
Stephen
U. S.
revolver,
was also
and Morrison
Mo., on
Atty.,
City,
Kansas
Asst. U. S.
disarming
After
La-
apartment.
in the
brief.
agents
to search the
cey,
proceeded
HEANEY,
Before
and WEB-
ROSS
living
room and that
bed-
STER,
Judges.
Circuit
vicinity of Lacey.
room
immediate
quantity
a
of mari-
search revealed
WEBSTER,
This
Judge.
Lacey
were
juana, and
and Morrison
im-
Lacey
Arthur
from a con-
appeals
C.
charges
posses-
mediately
on
of
arrested
jury
by
viction
of two counts of distribu-
marijuana.
a continuation
of
of
sion
in
of 21
tion of heroin
violation
U.S.C.
area
in the immediate
of La-
the seаrch
841(a)(1). Lacey
to two
was sentenced
§
Morrison,
separate
cey
groups
two
imprison-
of
four-year
concurrent
ment,
terms
currency totalling
$700
of
of three
special
with a
parole
Upon
were
inquiry
in value
discovered.
years
completion
the sentence.
upon
of
agents,
that he
by
Lacey
stated
presented
appeal
issue
on
sole
the currency.
the owner of
an in-
use
validity of the
in evidence
apartment
the door to Morrison’s
num-
Since
ventory slip containing
longer
broken
no
had been
secured,
and could
be
currency taken
bers of United States
agents
took
cur-
placed
protective
into
Lacey
from
City police
rency to the Kansas
station
offi-
custody by federal law enforcement
Lacey
placed
were
where
and Morrison
cers.
confinement. The
and the
in
Jackson,
4, 1974,
September
On
Sandra
property
in a
weapon
deposited
Federal
an informant for the
acting as
Lacey
and were returned to
on
room
Enforcement
Administration
Drug
he had
September
after
Missouri, was
(DEA)
City,
in Kansas
released on bond. At the time
agents
given
$45
searched
DEA
a DEA
deposit
currency,
agent
purchasing
purpose
in
for the
cash
the serial number of each
recorded
bill
suspected
Lacey,
heroin from
who was
inventory slip
the relevant
in
on
substances.
dealer in various controlled
room.
Subsequently, DEA
in
of two
$20
the form
agents
discovered from the
bill,
serial num-
bills and one
$5
that serial
slip
numbers of two
Jack-
agents.
recorded
bers were
bills taken
matched
into
$20
Hotel
proceeded
son
Commodore
“buy money” given
those of the
Jackson
landlady
City,
in Kansas
where the
Lacey on
purchases
Sep-
her
from
Lacey DEA
informed
tember 4th and 5th.
apart-
Brenda Morrison in
living information,
There,
Lacey
the basis of
in
name.
On
ment rented Morrison’s
on
purchased heroin from was indicted October
twо
allegedly
Jackson
in
of heroin
viola-
giving
payment.
him the
counts
distribution
Lacey,
$45
841(a)(1).
pretrial
A
DEA tion of 21 U.S.C.
tendered
heroin to the
§
Jackson
specific
currency.
warrant for
This
Lacey’s
held on
hearing was
evidentiary
be said to be erroneous
finding
cannot
use in evidence
suppress
motion
record.
evidеnce on the
agents.
DEA
on the
by the
currency seized
indicated that
orally
The District Court1
Moreover,
“buy
mon-
the fact
sub-
conditionally denied
the motion
in the search war-
ey” was not described
evi-
light
reconsideration
ject
only be relevant
rant could
*3
trial,
it did not
and
adduced
dence
to a seizure of the
present circumstances
this determination.
alter
subsequently
discovery there-
and not to the
currency
the
introduced
trial,
government
the
At
not contend
Lacey
search.
does
of the
reports
the
slip and
inventory
the limits
itself exceeded
that the search
numbers of
listed
DEA which
pertained
as it
to
of the warrant insofar
“buy money”.
the
the areas in which the cur-
the search of
was discovered.
rency
both counts
guilty on
Lacey was found
trial;
19, 1975,
jury
a full
after
March
currency
validly exposed
the
was
Once
raising the
trial
for new
a motion
and
agents
Lacey
the
and
to the view of
Lacey
was denied.
suppression
issue of
him,
belonged
it
to
the
indicated that
District Court
claiming that the
appeals,
currency
removal of the
into
warrantless
of the
the use
suppressing
not
erred in
typified
cannot be
as
protective custody
disagree
evidence. We
slip in
purp
a “seizure” for Fourth Amendment
the decision of the
affirm
thereforе
and
properly
As the District Court
oses.2
found,
Court.
District
clearly
the evidence
established
not
validity
currency
the
that the
removed from
not contest
Lacey does
warrant,
evidentiary purposes
the
legality
apartment
the
the
the search
money was law
agents
as contraband. The
or
presenсe
entry
the sole
fully
pur
taken into
legality
the
nor
apartment,
apartment
Rather,
pose
safekeeping,
that
since
he contends
arrest.
after it had
currency
and door could not be secured
detention
custodial
during entry.3
forced
See United
copying of
warrantless
the resultant
795,
Lipscomb,
v.
435 F.2d
799—
an unreason-
constituted
States
serial numbers
1970),
401
800
980,
Cir.
U.S.
and seizure.
able search
1213,
(1971);
91
S.Ct.
discovery and
that
Lacey argues
Blackburn,
93,
v.
389 F.2d
currency comprised
of the
examination
1968); Fagundes v.
95
Cir.
United
because
“general search”
illegal
States,
673,
(1st
1965).
340 F.2d
676
specifi
describe
failed to
search warrant
lawfully
money”.
currency
After the
had bеen
“buy
mention the
or even
cally
States,
by the DEA
275 U.S. discovered and removed
Marron v. United
See
192, 195,
231,
Lacey
agents
safekeeping,
72
could no
L.Ed.
48 S.Ct.
expect any right of
longer reasonably
found
(1927). The District Court
236
the serial num
privacy
respect
that
to
not believe
agents
did
Jenkins,
v.
496
likelihood that
bers.
United
substantial
See
States
any
there was
57,
(2d
be
73
“buy money” would
1119,
925,
43
therefore
95
L.Ed.2d
agents
that the
U.S.
S.Ct.
apartment,
(1975).
Katz v.
also
United
of sufficient
See
probable
have
cause
did not
361,
507,
States,
to secure a
389 U.S.
enable them
character
Hunter,
Lacey protested
United
evidence that
Elmo B.
3. There was no
Honorable
1. The
Judge
Moreоver,
District
the Western
safekeeping procedure.
District
States
there
of Missouri.
anywhere
suggestion
in the record
is no
pretextual
any-
agents
or
the action of the
currency
say
not
2. This is
procedure
thing
a reasonable
calcu-
other than
exception
Coolidge
“plain
view”
within the
currency
pro-
safeguard
as well as
lated to
Hampshire,
New
464 —
potential
from
future claims
tect
29 L.Ed.2d
S.Ct.
“disappear”
money
from Mor-
later
ultimately incriminating
should
nature of the cur
“immediately ap
apartment.
rency
have been
rison’s
could not
agents.
parent”
DEA
See United
1975).
Williams,
523 F.2d
amination of
which was
(1967) (Harlan,
lawful-
ly
police custody.
Westover v.
See
J.,
Lacey’s contention
concurring).
States,
the serial numbers of
listing of
the mere
States,
1968); Evalt v. United
inventory proce
of the
each bill as
cases,
those
search and sei
unreasonable
dure was an
possession
was in
merit. A simi
without
zure
therefore
robbery,
defendants
the fruit of bаnk
as
rejected
argument
lar
Second
the arrests
the crime for which
made,
Jenkins,
su
Circuit in United States
subject
and thus was
to warrant-
In that
at 72-74.
pra, 496 F.2d
less seizure
examination at
the time
stopped
poten
on a
defendant had been
arrest. The Second Circuit in
and,
violation,
after a valid
tial traffic
rejected
Jenkins
attempts
distinguish
search,
aon
concealed
was arrested
he
basis,
Westover
holding:
on this
he was incarcer
weapons charge. When
his
jail,
clothing
ated
at a local
legal
distinction has no
signifi-
*4
[T]his
cance.
currency were invento
containing
wallet
practical purposes
For all
the
safekeeping. Eight
ried and stored
days
serial numbers on bills would in both
later,
agent examined the
view,
a federal
cases be fully exposed
police
storage
in
and com
whether
defendant’s effects
seized
money were
as the
currency
simply
of
fruit of
pared
numbers
a crime or were
taken
currency
from the
at
prisoner’s
with
of numbers
wallet
the time
a list
in an
federally
placed
envelope
stolen from a
arrest and
recently reported
jail
safe for “safe keeping.”
coincid
insured bank. Certain numbers
Under either circumstances
can-
and,
agent
seized
it
day,
ed
the next
[sic]
not be said that
the “seсond look”
currency without a warrant
the relevant
amounts to an intrusion into an area
use
trial
as evidence
resultant
where
any longer
the owner could
rea-
robbery.
of the
for bank
On
defendant
sonably expect privacy.
a
sup
review the denial of motion to
evi
press
currency
use of
forcement in which I am taking, is a fiction
initial Moreover, unlike
unwilling indulge. to car, particular of a
the identification to be reasonable in
which has been found protect police need to
light of the
viewing
pursuant
probable
of the serial numbers
pect
de-
to
cause outside
accomplished pursuant
garage.
air
while
The officer saw several
fendant’s
inventory procedure,
analogous
garage,
an
conditioning
is more
and entered
units
copied
an identification
automobile
than a
warrant and
serial numbers
without a
search of its contents.
Several сircuits have
from the units. This information established
recognized
inspection
that a warrantless
of a
property,
were stolen
the air conditioners
motor vehicle
law
officials
enforcement
and the defendant was arrested.
The Fifth
scene,
lawfully present
are
who
on the
which
reversed the district court’s denial of a
damage
does not
the vehicle and is limited to
suppress
of the serial
motion to
the evidence
determining the correct
identification number
and the evidence obtained as a result
numbers
thereof,
is not a “search” under
the Fourth
thereof, holding
justification
that no
existed
or,
“search”,
Amеndment
if a
is not unreason
entry
garage
for warrantless
and search of the
Ware,
able. See United States
F.2d
serial
were thus inad-
and that
numbers
888,
828,
(7th Cir.),
U.S.
illegal
missible as the fruits of an
search.
139,
(1972);
93 S.Ct.