*2 SWYGERT, Before CUMMINGS and SPRECHER, Judges. Circuit SPRECHER, Judge. Circuit primary issues on appeal are the district court whether erred in deter- mining that there existed an adequate for the issuance of a basis search war- and that execution of that rant war- the items seized proper. rant and I The defendant-appellant Lucille Jones together was named with Michael Thig- I pen in Counts and VIII anof eleven- count indictment. Count I charged a conspiracy possess and distribute her- oin and cocaine violation of 21 U.S.C. 846 and Count § VIII charged the use a communication facility to facilitate distribution heroin and cocaine in vio- lation 21 U.S.C. § 843(b). Since defendant makes a sufficiency of the ev- claim, idence we set out the against the defendant in some detail. received a call 12, 1973, Agent Les- Special June who said he was at his Drug Enforcement Ad- ter Scotti Scotti, according to his house. pre-record- aunt’s (DEA) obtained ministration with the testimony, talked same woman along funds government ed with, spoken previously set- went he had informant government price. Agent Adams testified Thigpen. After tled on Michael apartment *3 cocaine, approximately p. 1:10 m. he ob- Thigpen at for that price negotiating on the second the defendant floor and returned served his source go to to left apartment, landing by conversing her Agent and sold Scotti shortly thereafter Thigpen. Shortly Thig- thereafter of a substance with grams 9.74 approximately apartment to his and in returned pen containing $450. cocaine $2,500 pre-recorded in offi- exchange for Agent tele- Scotti June On gave Agent funds to advance Scotti cial approximately at 12:30 Thigpen phoned grams 28.39 of a sub- approximately a possible purchase and discussed p. m. containing approxi- cocaine and stance Thigpen of cocaine. told an ounce grams mately 22.37 substance con- ounce, an did not have but that he Scotti heroin. taining Approxi- it from his aunt. get he could later minutes DEA mately fifteen 10, 1973, July Agent Scotti Finally, on apartment leave his Thigpen observed Thigpen’s apartment to make to went They residence. ob- go to Jones’ and p. Thigpen At 1:20 m. purchase. another during this time Jones’ car served apartment. p. At 1:00 m. de left nearby. Shortly thereafter parked leaving was observed her Jones fendant apartment to his returned Thigpen Thigpen’s A short while later and home. waiting for him Agent where Scotti parked automobiles were observed Jones’ $1,150 paid Thigpen and where Scotti Thigpen’s several blocks from together government funds in ex- pre-recorded Thigpen returned to his residence. grams 25.73 of a substance change for again then went out sup and apartment cocaine. containing pick up the heroin and cocaine posedly 2, 1973, Agent told July Thigpen Upon returning wife.” for the his “from telephone that his aunt over Scotti Thigpen delivered time four cello second phane day of heroin. The next quantity had substances, narcotic packets of complained price after Scotti by under placed then arrest and was high Thigpen called his aunt and too was said, Agent Scotti.1 Lu, Michael, this is “Hello Scotti and he is hollering with me about here Scotti and other proceed than you.” wants to talk to He price. ed to the home of Jones, defendant and telephone said, then took Scotti company Chicago police Lu, this is Scotti” which the “Hello pursuant to a state-issued warrant After discussing was “I know.” reply premises. searched the No narcotics transactions on the tele- future possible found, the agents but seized a piece go Thigpen told over to phone, Scotti name and unlisted pick up house and an Aunt Lu’s his home number of cocaine, he and that should call ounce handwriting defendant Jones. the price. there to settle him from $2,000 Also seized was approximately Thigpen apartment currency, left the and was United States $800 by agents to enter later found to pre-recorded two the de- was observed apartment approximately government at funds which Scotti fendant’s had used approximately p. purchase m. At 1:00 m. narcotics from p. Thigpen.2 12:45 Thigpen pleaded guilty I, by stating changed many 1. to Counts that she VIII small government’s larger IX indictment. grocery On the into bills at the bills store. At remaining against $1,150 motion the counts him her trial Jones claimed that of the mon- party ey proceeds ap- dismissed. is not a seized were from to this the sale of a peal. Thig- and the remainder came motorbike pen repayment either as of a loan or for her to Agents testified that the time of the safekeeping. hold for explained possession search Jones bills judge, district aft- trial the [government In a bench Mr. Burns As counsel]: quash defendant’s motion denying suppress? er the motion to suppress the fruits and to The Court: Yes. search, guilty Jones as found No, Mr. Burns: I do' not think it is imposed two-year sen- charged I necessary. put can Officer Brown to be imprisonment followed tence on, but it is a question as to what is three-year mandatory parole term. described the face of the warrant appeals her conviction. Defendant was actually seized. Thus, the defendant never called II Officer Brown nor did it request argued in the court below Defendant government do so even when govern issuance of state warrant ment indicated it prepared to make alleged that improper. She *4 him available. The fact that the defend through per- was obtained ant filed verified affidavit alleging state officer. jured averments perjurious material was used in in his stated affidavit that The officer gaining warrant, does not replace aby told reliable informant he had been the need for defense counsel to make pack- had sold him a defendant that the demands appropriate time for the appeal Defendant on et of heroin. witnesses it desires. Given these circum that, having filed an affidavit in claims stances, judge the district made a suffi charge, her she should have support inquiry cient concerning the defendant’s hearing pursuant accorded to quash motion to the warrant and sup Carmichael, 489 v. F.2d States United evidence, press and properly denied the 1973). (7th Cir. motion.3 in contends that fact government The and that hearing held defendant charges HI prove seek made did not haveWe examined the her affidavit. in next Defendant contends that federal it shows after the de- record agents not could conduct a search and to sup- testified at motion fendant subsequently seize materials from her hearing following occurred: press premises the authority of the state-is may Court: You The excused. sued search warrant.4 She argues that next. your Call federal agents engaged in practice this solely because Levin insufficient evi Your Mr. counsel]: [defense against dence her our to obtain presentation. that concludes their own Honor warrant. That concludes the evi- The Court: dentiary presentation in the motion to The mere fact that agents federal the search warrant? quash accompanied state officers named in the Yes, would, it your Mr. Levin: Hon- warrant the premises and participated far defendant is con- or as as the in the search does and of itself cerned. require evidence seized be suppressed. later, the following while oc-
A short
This is neither a case where evidence
curred:
pursuant
procedures
seized
you pro-
...
do
The Court:
violated Illinois law and
sought
then
put on evidence?
pose to
be used in federal court nor one where
exception
right
3. With the
claimed
to a
unlisted home
number on it. The
hearing
alleged perjured
because of
averments
was seized
state officials on the
warrant,
gaining
defendant
claims no
advice
agents
later,
of the federal
after
with
principles
being
variance
federal constitutional
checked with the list of official funds
used,
in the issuance of and execution
this
war-
was turned over to federal authorities.
rant.
actuality,
agents
only
In
with
name
Scotti’s
looking
for evi
answering
the federal
question
of what arti-
substantially
different
crime
may
dence
cles
be seized the Supreme Court’s
which state officials
one
holding
in Warden v. Hayden, 387 U.S.
and for which
the war
concerned
87 S.Ct.
18 L.Ed.2d
Both
local
issued.
rant
is instructive. After first deciding that
legitimately
searched for
the warrantless search involved and the
paraphernalia,
and narcotics
narcotics
scope of the search were permissible, the
or distribution of
possession
Court said:
of each sovereign.
the laws
The
violated
requirements
the Fourth
was correct in
judge
refusing to
district
Amendment can secure the
pro-
same
suppress
the motion
evidence on
grant
tection of privacy whether the search
generally
ground.
See
United
is for “mere evidence” or
fruits,
Harrington,
(7th
v.
F.2d 130
States
instrumentalities
contraband.
Sellers,
1974);
States v.
United
Cir.
must,
course,
There
be a nexus—au-
1973),
(5th
denied,
cert.
Cir.
F.2d
tomatically provided in the case of
908, 94 S.Ct.
IV
cause must be examined in terms of
cause to believe that
the evidence
*5
final
Defendant’s
contention with re-
sought will aid in a particular appre-
to the search warrant
gard
is that the
or
hension
conviction.
were not
adequately
articles
de-
306-07,
in the warrant and
Id. at
therefore
87
scribed
S.Ct. at 1650.
the scope
exceeded
of
seizure
the war-
Cook,
United States v.
432 F.2d
the articles
and
should have
rant
(7th
1970),
Cir.
denied,
cert.
The warrant
suppressed.
authorized the
996,
U.S.
S.Ct.
local City Chicago. officer investigating posses- narcotics cials an apartment warrant described oc- The As to the distribution. two sion defendant-appellant cupied by Lucille seized, we believe that pieces authorized the search sei- designation within of ei- come Jones zure of “heroin, a controlled substance or instrumentalities fruits ther paraphernalia (hypoder- all narcotic reasonably connected or evidence crime have been needles) which used in the mic alleged being investigat- behavior to the or which constitute evi- commission ed. 56V2, Chapter Posses- dence Sec. during present Heroin.” of Controlled Substances sion along and he with the search other was executed on day The warrant pre-recorded knew that A issued. number of it was purchase been used funds Drug agents of Enforcement Admin- suspected from defendant’s co- narcotics accompanied Chicago police istration They had sufficient infor conspirator. No heroin or search. narcotic on the drugs to believe pur mation were found on defendant’s paraphernalia apartment came defendant’s chased apartment. During in her person I, supra) and that it Part (see agents, the federal how- one of search ever, pre-recorded to find unreasonable purse the defendant’s took from Thus, when the there. funds appeared paper quantity of cash in a substantial found and his unlisted home tele- agent’s name bills, they reasonably could believe large number. phone was the fruit of criminal behav that ior, asked the defendant though the actual identification even her located in bedroom. open a safe She funds did not occur pre-recorded Brown and officer seized from complied, later. until in curren- approximately $1900 the safe Similarly, slip *6 time, seizure, after the a later cy. At name and Agent Scotti’s unlisted home the compared serial num- agents number was in the nature of with the serial numbers of these bills ber instrumentality of crime an and ev both money used in controlled marked of the reasonably connected idence to the al Thigpen cocaine from of purchases criminal behavior leged investiga under eight that bills had been $100 discovered Teller, supra. United States tion. pur- at the time of the given foregoing reasons, For the we find no were turned over by The bills chases. district court’s error in the decision not agents. At to the de- police the challenged suppress the evidence. piece paper the of and the trial fendant’s marked were offered and of $800 V into evidence. admitted Finally, the defendant raises a provides Amendment The Fourth that the sufficiency of evidence claim. We issue, upon prob shall but “no Warrants carefully the record reviewed have particularly . . de cause able we have concluded that the motion since searched, place to be scribing the denied, properly suppress con things to be seized.” The persons I, the facts outlined in that Part clude pro that the Amendment is settled law are sufficient sustain this con supra Supreme The general searches. hibits viction. this clear in Marron v.. Unit made Court Affirmed. 192, 195-96, States, 275 U.S. 48 S.Ct. ed (1927), 75, when it 74, 72 L.Ed. said: SWYGERT, Judge (dissenting). Circuit have long searches “General 10, July rights. 1973 a to violate fundamental search deemed warrant by judge issued a requirement . The warrants Circuit Court of is draw, important but there an things to line to describe particularly shall per content of a interest privacy searches under general makes seized be papers.2 son’s private They should not prevents seizure impossible and them during read the course of be a search describing a warrant thing under one of there is reason to do unless so that is taken, to be is toAs another. object legal to the of related search. to the discretion of nothing is left obviously the case in Such Harris v. executing warrant.” officer States, 145, 331 U.S. United 67 S.Ct. piece paper Since L.Ed. where the “particularly” describ- currency were were searching for certain writ on appli- warrant issued search ined In our case ten documents. Brown, the officer sei- cation searching for narcotics and narcot the result these items zure There is paraphernalia. explana ics no illegal un- and therefore search general tion about how record the con on the basis of some ex- justifiable less piece paper tents of the could consti requirement. to the ception or narcotics paraphernalia. tute narcotics explicitly stated ma- Though not testimony by agent there Nor was Scotti these the search jority, inadvertently glanced that he at the being upheld on apparently are items immediately recognized paper and his theory. view plain phone name and number even assuming sup does not my the record opinion a statement could support such that the name and finding tele port theory. And plain certainly view in this “plain were in view.” number phone case where the federal were in requires doctrine that an plain view investigation an volved in the defend inadvertently found in the be item separate crime we ant for cannot allow scope within the an of and course any type presumption agent search. This “in permissible otherwise paper had read the the course part integral an advertence” executing the search warrant rather Coolidge Hampshire, v. New doctrine. attempt justify than in an certain sus S.Ct. picions of other crimes. (1971). An officer cannot L.Ed.2d one item a specifying as Accordingly, a warrant use Government failed for other items which to search proof its burden of plain license meet might present.1 suspects The defendant he view issue. had the bur- that the proving
den of search and sei- In this case it can be said that paper were not accomplished zure of itself was found while the to a valid warrant. pursuant That bur- *7 scope within the of were their met when it was den was shown that the But no expla- there is piece paper warrant. of was not narcotics nar- search writing the on the why paper of paraphernalia nation cotics therefore not in case it is read. True this a fine in the warrant. described The burden 443, Coolidge Hampshire, hardly proposi- In New can be cited U.S. for the 26, 2022, 2040, police may justify planned 470 n. 91 S.Ct. L.Ed.2d 564 tion that a (1971), by maneuvering Mr. Justice Stewart wrote: warrantless them- “plain object they selves within of the view” States, 192, In v. United Marron want. 231, 72 L.Ed. S.Ct. officers raided a speakeasy with a warrant to search for and presented pa- 2. A case clearer would be if the liquor. They seize contraband arrested the personal per and read had been letter and seized of bartender number bills and length, principle of but the some remains plain papers other view the bar. Certainly there are few same. intrusions searching liquor they While closet for closer to the historic which lie core of the ledger kept operation came across a in the Fourth Amendment than unauthorized business, illegal of also private papers. reading of one’s showing is no seized. There whatever that these seizures outside the warrant were planned in advance. . Thus Marrón justi- discovery, to to the Government inadvertent least on shifted then seizure on the basis of did not police, of the part automatically search fy the require- to the warrant the bills could then exception mean that be seized. some to on the attempted do so It has ment. to seize proper it is inadvertent- While concept. But it plain view of the basis “mere evidence” of a ly crime discovered all the essential ele- prove has failed subject that which is the different exception. this There is no ments search, States, Harris v. United of the piece of the the contents that proof 331 U.S. S.Ct. L.Ed. 1399 distinguished piece from the as paper (1947); Hayden, Warden v. 387 U.S. inadvertently discover- itself were paper 1642, 18 L.Ed.2d 87 S.Ct. properly of a search course ed in the requires that at the time Constitution the items named search limited discovery and seizure there strong be a nature of the ob- Given the warrant. that the item is probability evidence of a conducted, being it the search jects of within the specific knowledge crime upon Government incumbent discovering regard officer. explanation. The Govern- an offer such these bills there was an insufficient leaves us with a to do so failure ment’s at the time of probability discovery their of the contents of the search warrantless support their seizure. When the bills justified on the basis of that is paper removed from the defendant’s exception to the warrant recognized any police neither the apartment, nor the of the The search contents requirement. agents knew whether any general search was a paper of this were the marked bills.3 them The feder subsequent seizure therefore un- may have agents suspected, al indepen constitutional. search, dent of this that the defendant I conclude that the seizure Although in criminal engaged had activity which bills was also unconsti- eight $100 bills involved that had been $100 mark that the bills should have tutional facts supporting ed. But the suspi my reasoning is some- suppressed, been cion insufficient to allow type this regard from that with different seizure on warrantless the assumption paper. might part these bills strictly plain money.4 analysis view the marked might Government currency apparently argue in the safe that'there was sufficient support opened by assumption when the safe was sight since the plain request containing agent the po- at the Scotti’s defendant name ostensibly explore wished to number had phone already who lice argument the safe for narcotics. This But this found. must fail in contents by might the federal 3. A different issue have arisen if the bills with their list brought along of marked used in the list of cocaine eight sales did the turn over the $100 numbers and checked the serial numbers of agents. discovery. upon marked bills to the federal The issue the bills their then proba- a lower standard of be whether indicating Thus an alternative rationale bility justify a needed to further search in this warrantless seizure was unconstitutional spawn But this would contrast to a seizure. can be constructed. Since the bills were not federal officers who issue: whether ac- further warrant, described in the their seizure *8 company state officers execution of a police on the face of it was the result of a describing only particularly state warrant general Only search. after the federal paraphernalia” and narcotics “narcotics eight discovered that of the bills were marked means “test” with them items not who take money did “seize” without the benefit of warrant, prima have raised a described in the a warrant the bills as the investi- or misuse of facie case of “non-inadvertence” gation of a federal offense. Thus it could be procedure. Since the state warrant these is- perhaps said that a second and “minor” un- us, I not think I not before do should sues are privacy constitutional intrusion on the speculate the answers. defendant occurred. For a somewhat analo- gous Birrell, case see United States v. 470 F.2d interesting to note that It 1972). (2d Cir. currency possession found in and took Only comparison was made after the safe. I my view since believe the discovery of
the name and number to have been un- If, as the
constitutional. Government contend,
seems to seizure of the premised on the
money was information paper, then the
gained from poisonous was fruit of the do not even I therefore consider
tree. additional information
whether the seizure of support these bills
as evidence. speaks Amendment
The Fourth formality. ignore When
terms attempt to substitute formality and appli- doctrine when not plain view analysis, we weaken the upon close
cable Amendment which has for
vitality of the prevention arbitrary purpose
its by the Government on
encroachments of its citizens. The unsullied privacy para- vitality of that is of
maintenance precede any must importance and
mount justice particular in a case.
so-called reverse conviction.
I would
TELECOMMUNICATIONS, ENGI- SALES & SERVICE COM-
NEERING PANY, INC., Plaintiff-Appellee, TELEPHONE SUPPLY
SOUTHERN COMPANY, Defendant-Appellant, Smith, M. Defendant.
John
No. 74-2091. Appeals, Court of
United States Sixth Circuit. 26, 1975.
June