United States v. Ronald Blake

GIBSON, ROSS, Before LAY and Cir- Judges. cuit GIBSON, Judge. Circuit The defendant for vio- was indicted a 841(a)(1)1 lation knowingly U.S.C. § possessing intentionally a (14.3 grams controlled per 17.3 substance pure heroin) cent an intention with jury to distribute a it. The returned guilty, verdict of and the years imprisonment sentenced to five year special parole and a three un- term der con- U.S.C. to be served currently presently state sentence being served defendant. The defendant was arrested without a warrant the course of the officers making an arrest with a an- warrant of occupying other individual the same premises. On November Leon Phillips, Bloemker, Kenneth R. and Mi- Hillebrand, Agents chael Special W. with the Bureau of Narcotics and Dan- gerous together Drugs, with Detectives Lester J. Anderson and Lawrence T. Clarence, Brewer went to 4242A St. Louis, Missouri, with an arrest warrant possession for Willie Vales sale conflicting of heroin. There is testimo- ny on whether the and officers living knew that Vales was alone or with someone else.

All of except and officers, Bloemker, went to the front door of Clarence, dwelling 4242A a four-unit 841(a) (1) 1. Section “(1) distribute, manufacture, dispense, reads: or “(a) Except title, possess manufacture, as authorized or with intent dis- any person knowingly shall tribute, dispense, substance; unlawful for or controlled intentionally— opened separate for each and found a outside entrances brand bag containing plastic powdery unit, the arrest war sub- in order to serve proceeded to the rear of stance that Hillebrand believed to be a rant. Bloemker against building narcotic, apartment to cover the defendant was arrested. any possible escape. Phillips on knocked expert trial, testimony At established door, identified himself the front contained 14.3 presence purpose after a for his grams per pure of 17.3 cent heroin and that sounded like voice answered defendant’s,2 purity that at this it would make 140 open the front and forced bags ten-dollar for “street sale.” Fur- entry. In the door when no one allowed testimony ther trial revealed that heroin standing meantime, Bloemker, 15 feet on the street sold St. Louis would be balcony below the rear per purity, at about five cent and that Clarence, at 4242A observed the defend bags bags” 420 ten-dollar or “dime begin balcony step ant and out onto the per purity five cent could be made and change purse to throw a white over sold with the amount of heroin seized as an side. Bloemker identified himself purse. from the white The “street” val- officer and ordered the defendant therefore, ue seized heroin, stop. The defendant ducked and imme $4,200. diately apartment, reentered the still The defendant testified that he had carrying purse. the white As Bloemker previously never seen of the items proceeded apartment to the front of the except seized the mirror and he that was building, agents the other and officers spending night in Louis St. with already gone upstairs Apart Vales, cousin, his first since he had no Agent Phillips ment A. on a saw Vales transportation to his home East St. living couch in the defend room and Louis. hallway ant in a between the bedroom The defendant raises two on issues open laundry and kitchen and next to an (a) appeal: purse with its contents Bloemker, chute. Vales was arrested. illegal was taken in an search and sei- joined time, who had the others zure in violation of the Fourth Amend- told of the incident at the rear of the inadmissible, ment and was therefore apartment and asked the defendant (b) and the evidence was insufficient to purse where the The record was. does prove the defendant had an intention to response. not indicate the defendant’s reject distribute the seized heroin. We The officers then searched and arguments both and affirm the convic- apartment and seized a bottle of tion. quinine, mirror, powder, a vial of Search and Seizure Issue. Since the playing prep two cards—all used officers did not have a aration of heroin for distribution —in apartment, search warrant for the plain view on the kitchen table. search of the basement and the seizure Agent Special Hillebrand un- saw an purse of the white must fall one within leading kitchen, locked door from the specifically of “a few established and opened it, flight and went down a gener- exceptions” well-delineated to the stairs into a dark basement. He saw a judicially al rule that searches must be change purse white only open under the approved. Katz v. United clothes chute four area and 347, 357, 19 L. seized it. That clothes chute led to (1967) (footnote omitted); Ed.2d 576 Apartment upstairs, A the residence of accord, Gauper, Root v. F.2d change Willie purse Vales. The white 1971). plain view, plastic was in and a material extending approximately 1y2 inches The facts in this case form one of purse. outside of exceptions. the closed After Hille- those One of the common 2. Detective Brewer of the East St. Louis resident and knew Louis both Vales and the Department lifelong Police awas East St. defendant. upheld why proceeded the warrantless Hillebrand The Ninth Circuit

sense reasons reasoning entry apartment on his be- downstairs to the basement was destroyed probably package purse would if contain- that “the lief that a white the clothes he did not take immediate narcotics was underneath [the officer] Craven, supra suspi- were action.” Gaines chute. circumstances Similarly, in this had seen the defendant officers cious. Bloemker ready purse purse find the or risk from had to white to toss the white case balcony apartment. probability that contraband would be at the rear destroyed. Although stop, or the of- refused to removed After purse apartment here did see Bloemker saw him ficers reenter chute, Phillips being one tossed down the clothes saw white hallway defendant open next did see the defendant officer chute, reen- after Bloemker clothes when the defendant white balcony balcony, told the incident on from the tered porch immediately white could observed and another officer open and the sei- The arrest of Vales clothes seen. in front of the defendant paraphernalia gave zure of the heroin These facts rise chute. point, might At one of view followed. cause to believe practical considerations was to find the possessed narcotics and constituted have probably contained nar-. exceptional circumstance situation cotíes. officers could have obtained that allowed warrantless warrant, a search however and seizure of basement was not under arrest and could have re- purse. destroyed purse. moved or the white Supreme Court has not di- The delay obtaining The a search warrant rectly of whether the discussed the issue certainly could have been fatal. probability will de- that narcotics be Therefore, question is whether the stroyed' exceptional cir- constitutes an excep- facts in this case constitute an allowing search. cumstance a warrantless tional circumstance that allowed the States, However, in v. United Johnson warrantless search of the basement. discussing supra, excep- the Court in Before the search of the basement and say in dicta tional circumstances did purse, seizure of the white the officers that not “evidence Johnson did involve probable did not have cause to arrest the or contraband was threatened [that] However, defendant. the failure to find with . . .” removal destruction. and seize the white would have supra Johnson v. United at lead to possible a situation in which “ev- Also, 68 S.Ct. at United States idence or contraband was threatened Jeffers, S.Ct. ” with removal or destruction. . . . (1951), 96 L.Ed. 59 said Court Johnson v. United States, 333 U.S. discussing exceptional circumstances 92 L.Ed. 436 that did not “imminent involve Jeffers (1948). destruction, removal, or concealment of property intended to be seized.” Craven, Gaines v. 448 F.2d 1236 interpretations The reasonable of these 1971), factually is similar cases lead to the conclusion that nar- Gaines, this case. the defendant was cotics that are threatened with imminent hallway confronted in of an provide excep- removal or destruction an tip officers who had an unconfirmed justifying tional circumstance war- being narcotics were sold there. rantless search. The officers had neither a search nor arrest warrant. Nor, The defendant tossed a do we think that Vale v. package through apartment’s open Louisiana, police door and the rushed into the (1970), alters rule. this open apartment package, seized Vale, again dicta, the Court said that which later found goods to contain heroin. ultimately “[t]he seized were not not probabilities. are These deal with Vale process destruction.” in the practi- technical; they are factual at 1972 Louisiana, at 90 S.Ct. everyday life on omitted). cal considerations fac- (citations Vale be men, prudent reasonable distinguished since which this case tually from legal technicians, The stand- act. not for the officers practical there it was accordingly proof correlative Further, ard of is a search warrant. secure Brinegar language proved.” must be imprudent what to take the would States, supra com- process as a of destruction” “in the exceptional description cir- plete of an type narcotics

cumstance grounds probable cause here only language First, quoted is ease. support generally are the same that did the Court comment a brief exceptional circum- that an conclusion directly of that apply to the facts repeated. need not existed and stance Second, until contraband to wait case. cumulative facts The above enumerated process actually destruction would lead a reasonable man to believe forego opportunity to possibly could purse probably contained re- “imminent narcotic. seize the contraband, and therefore satisfies rule and destruction” moval properly and officers determined exceptional cir- the need for both there cause to search protection the in- and the cumstance and seize the white against right privacy non- dividual’s judicially approved Johnson sup- searches. addition circumstances 14-15, supra, porting probable cause, the officers and particular reason to believe probably narcotics, were con- Therefore, do the facts of destroyed, tained in the would be exceptional cir- case constitute if The defendant not found and seized. allowing the warrantless cumstance previous of the basement they provide search, a sufficient also but purse attempted had to throw the white concluding that the Govern- for basis balcony over did the side of the rear and in establish- ment its burden has carried purse person not on have white his exceptional circumstance. Vale police apart- when the arrived inside the 34, Louisiana, supra v. 90 S.Ct. eventually purse ment. The was thrown imprac Merely it was because attempt in to downstairs an obvious con- not a search warrant does tical to obtain This case in “the ceal it. is not a which dispense requirement scope of a search incident to arrest probable cause officer must determine temporarily expanded where there is a proceeding with war a to search before possibility third-party de- that a Louisiana, su rantless search. v. Vale stroy or conceal evidence.” United pra 34, 1971; Henry Unit 90 v. Davis, 974, (5th States 423 F.2d 104, States, cert, ed 80 S.Ct. U.S. Cir.), denied, 836, 91 S. 400 U.S. (1959). The officer (emphasis (1970) Ct. 27 L.Ed.2d 69 making must in a warrantless search added).3 had case, the defendant grounds believe have reasonable previously attempted to rid himself sought object seized contained purse present twice and was Brinegar contraband. attempt, if the for of- a third L.Ed. finding the white ficers had left without (1949). discussing probable third-party purse. a Not was Brinegar cause, in the Court said: family of the de- involved here as dealing cause, Davis, previous at- but “In fendant purse by tempts de- however, very implies, to secrete as the name we however, Davis, expansion. reasoning temporal expansion 3. Davis tlie focuses on expansion spatial applied spatial search, well. as to a case concerns a could he while this Vales, fendant, premises arrest of of the after the search of on the who was search, was also reasonable since made the destruction “right “possibil- purse the officers had a conduct a more a than white much viewing cursory quick apart- therefore, ity.” case, like of the is more This presence per- supra, In ment for the of other Craven, area than Davis. Gaines might present security in- sons who risk.” Gaines, himself was Briddle, volved, United States v. 436 F.2d rid himself tried to and he had cert, denied, throwing 1970), by package into an of the apartment. [91 24] (1971).4 purse The seizure of the white stated, that agree, Davis as We justified plain was since it was in view. always partisan is almost “[t]here Harris might destroy evidence.” or conceal who 19 L.Ed.2d 1067 Davis, United States v. (1968). family could in Davis members After the defendant and Vales were possible partisans, who be considered the upstairs confronted officers and aft- gun might destroyed have er seizure items view on yard found the officers within the table, Agents the kitchen Bloemker and However, there Davis’ home. Hillebrand discussed the incident on the prior no indication balcony rear and the location of the family yard of the white Hillebrand testified that attempted to members in had Davis he “looked around the kitchen for a case, destroy gun. or In this conceal purse white people.” and for other At possible partisan who there was not a kitchen, this time and in the might evidence, a defendant conceal but doubly and officers were concerned to attempted to conceal evidence. who find the white and make a secu- short, presents situa this case rity possible check of the area other tion, exceptional viewed as cireum- ' persons. Hillebrand further testified stance, imminent, possible, during trial that he saw a door in the of the white removal destruction downstairs, apparently kitchen that went de existed. Imminence should be to a basement.5 Hillebrand said that he totality termined from the factual and Detective Anderson went downstairs important circumstances. was an Time persons. proc- check other In the finding factor in and in addi making security ess of check of the tion the officers knew basement, they defendant, saw particular person, on here the attempted “plain purse the in that floor had probably to conceal the and view” under an Fur open contained contraband. picked clothes chute. Hillebrand ther, premises the was on the up purse, plastic noticed a material search and not under arrest. protruding y21 inches outside of the purse, opened purse, closed and urges The Government an alternative brown, powdery found a substance. Hil- ground justify to the search and seizure purse upstairs lebrand took the and white The Government Bloemker, claims that showed to the search was reasonable who said that the originally because purse a officers had looked like one that the de- right apartment to enter the to arrest balcony. fendant had on the rear The Vales, apartment and in the once and defendant was arrested. Briddle, During hearing Suppress, the officers did have a warrant a Motion on the to apartment, however, to search the this court Hillebrand said that in the door was the hall- that, purposes opinion, way held of the next to the kitchen. the warrant was invalid since the affidavit (cid:127) legally was insufficient. United States v. Briddle, supra, at n. in nar- plastic bag, item a common white alternative The Government’s distribution, protruding comports was cotics justification the search 1% purse. This the closed requirement inches outside the reasonableness “general exploratory search not a The was Fourth Amendment. some- object until announcing to another from one thing officers, their after and presence emerges.” incriminating pres last for their and the reason supra Coolidge Hampshire, receiving answer, a v. New had ence and right apartment at 2038. S.Ct. to arrest to enter the 3109; Sabbath 18 U.S.C. Vales. “plain addition, view” doctrine States, [88 United did applicable, and the search here is Stamps (1968); L.Ed.2d 828] plain view on the violate the limitations 436 F.2d “plain First, doc- view” doctrine. quick 1971).6 apartment, a Once in the justify intrusion trine alone did not viewing cursory is of the and basement, for testi- Hillebrand into the persons permissible to for other check they check to fied went downstairs might present security risk. who discovery persons. Second, the for other Briddle, 7.7 States v. purse was the clothes chute under Coolidge Hamp- v. New inadvertent. conducting security check Although shire, supra at 469-470. basement, agent the officer and find the officers did to and want purse plain saw the white in view on that he Hillebrand testified white basement floor. The seizure of check to and Brewer went downstairs according justified to persons. established for other Briddle long “plain doctrine, view” for “[i]t has cursory right quick to make this objects falling settled in the been general, exploratory check. No plain right of an view officer who has a plain followed, in was seen but position to to have that view plain sight on the floor. subject are to intro seizure and applied to the search view doctrine duced into evidence.” Harris v. United this case. (citations (1968) The de- Distribute Issue. Intention to argument omitted). major agent is that fendant’s second and officer had a prove right to to be to there insufficient evidence the basement conduct a was security persons to distribute check the defendant intended for other also right grams percent pure her- object, purse, seize of 17.3 14.3 since Instead, heroin apparent they oin. he claims that it was them personal Central was for his use. evidence view before them. argument Coolidge claim Hampshire, is his defendant’s New prove intent the quantity evidence to (1971). Although necessary of heroin street value it was seized, too open in his small for Hillebrand view to find heroin, infer- value raise an amount and we have determined that evidence ence or constitute cause sufficient existed to believe that prove intent to an distribute. Also, contained narcotics. omitted). Similarly, only Although expressly officer’s note a federal 18 3109 U.S.C. deals n withthe entry dwelling entry an arrest with pursu- to effect into of federal officials by the same warrant, warrant should tested ant to a search Sabbath said “that validity entry in § criteria of an of a of- such federal ficer to effect an arrest without a warrant argues v. Cali- 7. The that Chimel tested defendant ‘must be identical those criteria with fornia, 23 L.Ed. [89 395 in’ U.S. embodied that statute. Miller United v. (1969), in this invalidates the search 2d 685] [78 however, disposes Briddle, ; Wong this con- (1958) of case. 1332] Sun United L.Ed.2d v. Briddle, 482-484, States v. tention. [83 371 U.S. (1963).” at 8. 441] Sabbath v. States, supra, (foot- at 88 S.Ct. proper evi- as circumstantial contends substance The Government distribute. infer an intention to dence to circumstantial that there sufficient was Wilkerson, F.2d 813 including United States evidence, the amount (8th Cir., 1973); seized, United States the heroin street value of 1973), Echols, Cir., F.2d 37 jury intention to distribute to infer an — cert, -, mainly denied, 94 S.Ct. the heroin.8 The Government 1973). (U.S., argues Oct. evi L.Ed.2d 58 there was sufficient validity de- of such an inference amount and dence addition pends on and value whether amount heroin to demonstrate street value of the that, intending sup- of the to dis controlled substance “will the defendant was just port tribute, personally dis- an inference of intent to of use instead distinguished possess, tribute from mere the heroin. as possession personal use.” United view of the evi- Government’s Mather, States F.2d supports dence the verdict. In addition cert, (5th Cir.), denied, 1037 1085, of the to the amount and street value heroin; quinine, of seized a bottle (1972), quoted in United v. Wilk- States mirror, playing used and two cards—all erson, supra Mather, at 815. preparation sale, of heroin for grams possessed defendant 197.75 personal evi- use—were admitted into approximately $2,500. cocaine worth that, dence. Also a chemist testified ac- case, possessed equiva- In this Blake cording he con- to over 200 tests that bags” lent of 420 “dime of heroin with a narcotics, average purity ducted on $4,200. “street” value of an Such of heroin on the street Louis was St. sup- amount and value was sufficient per five cent. Hillebrand testified that port jury an inference per pure cent heroin not for 17.3 possessed the heroin with an personal consumption. addition, intention to distribute it. defendant, trial, who testified at did not say personally he used heroin. Even on In addition to the above ex expressly appeal, the defendant does plained why reasons the evidence was say personal that the heroin was for his support jury’s verdict, sufficient argues ducking He use. into properly the District Court instructed jury on the lesser offense included trying shows that he was to conceal the simple possession of a controlled sub heroin, inferentially could tak- stance, in jury this case heroin. The concealing en to mean that he was chose to find that the defendant was heroin for his own use. All of this guilty possession intention provided above evidence other circum- Taking distribution. view ev evidence, stantial addition to support idence that most favorable heroin, amount and street value of the jury verdict, we find that jury arriving for the to consider evidence was sufficient to sustain the its verdict. Valez, supra verdict. United States proper jury

It for the was also to consider the amount and street value Judgment of conviction affirmed. leading of the heroin seized as LAY, Judge (concurring). Circuit conclusion that intended to distribute the heroin. recent two solely I concur on the alternative approved cases this Court has the use ground seizure of the white justified “plain the amount and value of a controlled under the jury supporting jury accept reviewing verdict, 8. The traditional rule on ver- sufficiency applies dicts all evidence as reasonable inferences established support jury’s to this case. Since there has been a verdict of tend to verdict. guilty by Valez, jury, we of resolve all conflicts States v. 431 F.2d jury 1970). verdict, evidence of favor .the take view the evidence that is most favorable police went to view” doctrine. solely other whether see might security

persons presenting risk officers, thus, had a present. The plas- right to be there. it, protruding from

tic material conceal, attempted to had Blake discovery sight. Their justify I inadvertent. cannot

same was ground police that the

the seizure on the to search base-

had cause Blake had

ment contraband because purse in the clothes chute.

secreted

First, of the officers who went neither even knew that

to the basement saw placed purse in the clothes

Blake Second, the officers went

chute.

basement, for the not to search might persons if other

but to see Simply

there. because missing give police offi- should not general cers carte to make blanche apartment. rely- I dislike

search of the questionable on a new and doctrine expand beyond the limita- a search California,

tions Chimel v.

(1969), and, proper without foundation necessary. importantly,

more when not TORSKE, Plaintiff-Appellee,

Clara A. Secretary RICHARDSON,

Elliot L. Welfare, Health, Education, and

Defendant-Appellant.

No. 71-2056. Appeals,

United States Court

Ninth Circuit.

Aug. (argued), L. Pa-

Robert M. Feinson Gray, III, Atty. Gen., Asst. Har- trick Atty. lington Wood,' Acting Jr., Asst. Gen., Washington, Dept, Justice, D.

Case Details

Case Name: United States v. Ronald Blake

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 28, 1973

Citation: 484 F.2d 50

Docket Number: 73-1153

Court Abbreviation: 8th Cir.