United States v. Willard R. Sanders

feminism, my if in complaint again, deal with is sufficient amend their leave to even can, withstand a motion to dismiss under allege the kind of interference by the adopted standard freedom the substantive secondary school academic censoring a number of majority: as a cognizable to be that has been found claim, subject the same states a This leave is of course books on claim. constitutional pleading, that the Board’s purposes and mo- for to the defenses prejudice kind of in- suppressed particular “a response in actions defendants have raised tions Although I do not think quiry generally.” complaint.10 amended present complaint is amendment of the that further with in- remanded Judgment vacated and pleading will necessary, any problem in the structions; apply; 18 to costs de- Rule since counsel likely resolved on remand be fendants. argument plaintiffs indicated at oral for would, leave, amend his given if SWYGERT, concurring in Judge, Circuit suppression of dis- complaint allege judgment part. in and social views more political cussion of judg- that the only I concur in the result explicitly. vacated and ment of dismissal should be complaint, pleaded either as Because for fur- the case should be remanded amended, infringe- or as states a claim Rule 18. proceedings under Circuit ther First Amendment on at least ment of the deference, that, but than I must with Other theory, majority’s lengthy one discus- candor, myself from the all disassociate legal theory inap- is plaintiffs’ sion of main by Judge Cummings. approach taken propriate. Drawing the line between Procedure es- The Federal of Civil Rules rightful prerogative to local school Board’s system pleading “notice” tablishes a and the meth- high decide school curricula required in party federal courts. A ukases in- odology of teachers and Board plead “a short and the first instance First Amend- volving infringements of the claim,” plain statement of the Fed.R.Civ.P. difficult, least. But say ment on the 8(a)(2), and is not limited to reliance difficult, drawn, be however the line should pleaded. legal theory originally of relief but on my judgment, pleadings not on (2d ¶ 8.14 ed. 2A Moore’s Federal Practice developed concrete facts at trial. 1979). under Rule judgment A of dismissal 12(b) ap- “unless it granted should not be would

pears certainty plaintiff to a any entitled to no relief under state of proved support

facts which could be

his claim.” 2A Moore’s Federal Practice 8.13, (2d ¶ at 118-19 ed. America, Appellee, UNITED STATES In the case at the district court im- bar

properly plaintiffs’ legal considered main SANDERS, Appellant. theory—that violated the Consti- Board Willard R. by acting per- tution on the of their basis No. 79-1661. social, sonal, moral, political, but not Appeals, United States Court of religious complete beliefs—to the exclusion Eighth Circuit. legal presented by of other theories alleged, complaint. plaintiffs also Dec. 1979. Submitted instance, censorship “unreasonable Aug. 1980. Decided unduly pro- burdens the freedom 22, 1980. Sept. Denied Rehearing En Banc Complaint tected classroom discussion.” ¶ allegation, 39. That when considered specific

with the nature of the books al- excised,

legedly many appear of which complaint Accordingly, express should be dismissed we no view on the ar- amended gument pressed remedies. exhaustion of administrative defendants have here that the want of

(1) the trial court erred in admitting as evidence the contraband seized on October 2, 1978; (2) trial court erred in admit- ting as evidence the October 2 statement Hudson, Moines, Iowa, John D. Des n Sanders; (3) made the trial court erred appellant. in admitting as evidence October 25 Nickerson, Don C. Atty., Asst. Des U.S. Sanders; statements made and Sand- Moines, Iowa, appellee; Roxanne Bar- ers denied effective assistance of coun- Conlin, Moines, Iowa, ton Atty., U.S. Des on sel. The facts arguments relevant to these brief. are set forth in analysis our of the case. GIBSON, Before Judge,* Chief and LAY Probable cause to arrest McMILLIAN, Judges. Circuit 2, 1978, On Agents October DEA Overbaugh and Thornton waited in a car in GIBSON, R. FLOYD Senior Circuit vicinity Crocker, of Seventeenth and Judge.* Moines, Iowa, Des order observe Wil appeals Willard R. Sanders his conviction lard Biggies. Sanders and Rosebud pursuant jury finding to a verdict him agents had chosen to conduct surveillance guilty of narcotics distribution in violation pursuant to information received from a 841(a)(1) of 21 (1976). U.S.C. and 846 §§ confidential informant Big Rosebud We affirm. gies cocaine, was trafficking in heroin and 2,1978, On October Drug United States and that he drugs obtained his from Sand (DEA) Enforcement Agency agent, Over- Crocker, ers at specifically Seventeenth and baugh, complaint filed a against Sanders. the house at 853 Seventeenth Street. After a preliminary hearing on October The informant indicated that magistrate, before a complaint was dis- meetings transaction often occurred around missed for lack of A feder- provided noon and description a detailed grand jury, 25, 1978, al on October then automobile, Sanders’s including the license indicted Sanders in a two-count indictment plate number. The had received charging 841(a)(1) violations of U.S.C. §§ concerning information from this informant and 846 I alleged Count that on or Biggles-Sanders drug transactions on at 2, 1978, about October Sanders distributed occasions, least a dozen with the most twenty-two capsules of heroin. Count II tip given recent days prior three alleged 1, 1978, May that from until Octo- time conducted this surveillance. The 2, 1978, ber conspired Sanders had with previously supplied informant had other in Biggies Rosebud knowingly and intentional- proven formation and had regard reliable ly to distribute a controlled substance. The ing other drug transactions. His informa case was jury. tried to a On December tion had led to at least six search warrants jury rendered a guilty verdict of and fifteen arrests and had never been dis on both counts. Sanders’s motion for a new agents, covered to be false. The who al 13,1979, trial was July overruled on and on ready acquaintance had some with Sanders July the District Court1 sentenced Biggies, were also aware of the fact prison years Sanders to a term of five and a 1971 Sanders had been convicted of special parole years. term of six The same distributing heroin in an incident connected imposed counts, sentence was on both Biggies. run concurrently. Rosebud appeal, On urges approximately Sanders reversal of his From a distance of one- arguments.: blocks, conviction on the basis of four p. and-one-half to two at about 12:45 * Floyd Stuart, judge The Honorable R. Gibson was chief 1. The Honorable William C. Chief Eighth Court, appeal Judge, of the Circuit at the time this United States District Southern heard; Judge Gibson assumed senior sta- .District of Iowa. 31, 1979; tus on December The Honorable Lay judge Eighth Donald P. is now chief Circuit. has been rant belief that crime

m., Biggies walk be- observed person residence committed Street hind 853 Seventeenth it. Approx- arrested committed area where a door is located. to an m., later, p. Stevie; Big- 12:50 208 n.4 imately five minutes house, banc, rehearing gies walked from en aff’d Sanders denied, together, (1978), and entered the street cert. crossed F.2d 1175 occupied Sanders’s vehicle. Sanders 61 L.Ed.2d * * * seat, passen- took sources cor independent driver’s When ger seat. supplied roborate the informant, probable cause for there is subjects in the observing the auto- Bazinet, 462 arrest. minute, with- approximately one mobile (8th Cir.), seeing anything happen in the Sanders out vehicle, vehicle their drove Here, the (1972). facts known to the position position their surveillance the plus information arresting officers Agent of front automobile. Sanders’s probable cause. the informant constituted Overbaugh passenger approached then 1164, Luschen, F.2d Big- noticed v. side of vehicle and Sanders (8th Cir.), with his U.S. gies make a furtive movement pocket 2161, 939, hand the area of his shirt right around his to the floor of the car in area Overbaugh Agents Thornton and had noticed that feet. also Big- and probable cause arrest Sanders expression. an facial Biggies had excited provided had gies. A reliable informant this, agents an- Immediately after information, agents a reasonable giving the identity agents, as federal nounced their meeting between Sanders suspicion that the Thornton, approaching the who was and of distribution narcot- Biggies and involved side, badge gold his shield driver’s flashed of personal observation Their ics. to Sanders. the informa- meeting partially corroborated infor- provided this find that the federal the confidential point, At we tion required arrest probable cause to both Effective law enforcement agents had mant.3 Biggies, at minimum had a As the up suspicion. Sanders and or on this them follow suspicion they Biggies, that strong reasonable approached and and Sanders activity.2 in criminal engaged Biggies were and con- movement of furtive further cor- expression facial temporaneous when an [Pjrobable cause to arrest exists provided by the information or reli- roborated the personally knows has been officer informant,4 totality and of facts to war- ably informed sufficient course, not, ing need establish these circum- evidence 2. The District Court found that itself; presented grounds adequate innocent in- corroboration of even stances an crime Terry vestigative stop enough.” of the nature endorsed See also United States elements is 1, 1868, Ohio, Dien, (2d S.Ct. 20 L.Ed.2d re- Cir. (1968). Terry permits 1980) (adhered (2d 889 officials, law enforcement Cir. heard 615 F.2d warrant, decision). a limit- without a conduct previous if, specific investigation and ed on the basis of facts, they acquire a reasonable sus- articulable York, v. New 4.As stated in Sibron being picion a crime committed. 1904-05, 66-67, 20 L.Ed.2d S.Ct. Mimms, Pennsylvania also (1968); n.5, 54 L.Ed.2d 110-12 & * * * [Deliberately actions furtive (1977) (reasonable occupants order strangers approach are or law officers search). weapons We car conduct limited rea, coupled strong when indicia mens agree stop with the District Court that part specific knowledge on the basis, justified additionally this but we hold relating the evidence officer believing were correct crime, they proper to be con- are factors they had as their basis an to make arrest. sidered in decision stop. for the States, Brinegar [69 v. United Husty (1949); Gonzalez, 93 L.Ed. 1879] As States stated States, 1977): (2d [51 “The corroborat- then known to the served to estab- We find that the seizure of the her lish cause to make an arrest. See oin without a warrant was constitutionally Draper v. United 79 permissible. Based upon reasonableness, the United Court ap has proved a carefully number of excepr crafted Seizure of of heroin tions to the fourth require amendment’s After Biggies Sanders and were removed ment government seizures should be car, Agent from the Overbaugh searched pursuant made to a search warrant.5 Three person Biggies Agent Rosebud while exceptions possible relevance to the Thornton Agent searched Sanders. Thorn- (1) facts of this case: a search incident to ton’s search of Sanders revealed no narcot- arrest; doctrine; weapons, ics or but Thornton did discover special applicable rules to automob stuff,” “personal some a billfold and a small iles.6 The law procedures enforcement amount of cash. Overbaugh testi- employed by Overbaugh and Thornton were fied that basically conducted a frisk for completely justified reasonable and by the weapons. He recovered a notebook and circumstances. $1,053 in Biggies, cash from then instructed Biggies to keep his the agents hands on the roof of the determined that automobile. point At this door to the to arrest passenger Sanders, side of the vehicle the agents remained ordered them to leave open, Biggies, with his hands on the their vehicle and persons. searched their roof, just stood to the left of the door. The search was conducted within the imme- vehicle, diate vicinity of the and the floor- Agent Overbaugh then looked into the board of the car was within the area of observed, car and passenger side .the Biggies’s immediate control from which he floorboard, packet. a small brown The ear- might gained have weapon a or destructible lier hand movement Biggies prompt- evidence. quick sequence of ed to look into the car whereby events the agents secured control and directed viewing. Overbaugh Biggies and contraband, Sanders and the car, reached picked in the up packet Overbaugh formally informed and, it, examining found it to contain twen- he being placed under arrest and read ty-two capsules powder. of brown At this him rights. his Miranda point, Overbaugh placed Biggies under ar- rest violating narcotics laws. Over- The seizure of the justified heroin can be baugh advised Biggies of his constitutional resulting from a search incident to an rights, and asked Sanders if he would ac- arrest. The search pack and seizure of the company the party to the courthouse. The et of heroin substantially contempora car, seized the and escorted Sanders neous with the arrest, and the floorboard of and Biggies to the United States Court- the car potentially Biggies. available to house. California, 752, 763, See Chimel v. 395 U.S. (1931); Henry States, L.Ed. see 629] v. United 267 U.S. 45 S.Ct. 98, 103, 168, 171, (1925). [80 L.Ed. 543 Because of the confusion (1959). L.Ed.2d 134] regarding exception, the automobile see Arkan- Sanders, 753, 768, sas v. 99 S.Ct. Constitution, IV, 5. The United States Article J., (Burger, concurring 61 L.Ed.2d 235 C. states: judgment); in the id. at 99 S.Ct. at right people The to be secure in their (Blackmun, J., dissenting), 2595-2597 and be- houses, persons, papers, effects, against and importance cause the of the automobile in- seizures, unreasonable searches and shall not minimal, appears volved in this case we need violated, issue, and no Warrants shall but not address the issue of whether the situs of upon probable cause, supported by Oath or the contraband within the vehicle created an affirmation, particularly describing and exigent permitting circumstance the seizure of place searched, persons to be and the or preclude possibility the contraband to of its things to be seized. removal or destruction. See, g., Maroney, e. Chambers v. (1970); 26 L.Ed.2d 419 Carroll v. argument regarding Appellant’s inadvertency cannot be requirement of Williams, 143, 146,92 Cf. Adams hand, argues the one On countenanced. (lim (1972) 32 L.Ed.2d drug of this nature func transactions Terry after appropriate weapons ited search clockwork, precise routinely like tion

stop). (cid:127) drug deal if observe once packet .were pursuant Even if the on the floorboard to an informant’s time, to bide their they required should be the area under slightly considered outside warrant, the next and return seek arrestee, Big- the immediate control of they place where be time and appointed gies, plain view of the was obtained will be made. On deal lieve limited appropriately course of an hand, recognizes that other Coolidge v. search of arrestee. information, itself, may not informant’s n.24, Hampshire, New cause, that un provided 2022, 2037-2038, 29 L.Ed.2d suffi agents observed time when the til the properly The thus District Court to create ciently corroborating material up- upon plain relied view doctrine arrest, the activities for an probable cause packet. seizure of the hold the only as characterized can be tip. In our investigation of an informant’s view, proba investigation provided once the in United this court observed As agents were believe that ble Johnson, crime, they observing the commission requirements relying activity ignore the required were (1) exception are: plain inadvertency seek a search warrant. view; (2) the was in article discovered planned deter purpose requirement’s justified legally discovery resulted from a upon exigent seizures based warrantless intrusion; discovery was inadver is not met requirement circumstances. The tent; nature of “know in officials when law enforcement All immediately apparent. the article was will find evidence] advance [the was packet that the within parties concede plain view and to seize Coo intend [it.]” plain Agent Overbaugh. Since view of lidge Hampshire, New had cause to arrest and he 2022, 2041, 29 L.Ed.2d 564 Sanders, very right or at the least had bar, at inapplicable situation It it stop Terry, under can to make a limited tip pursuant to a where surveillance Overbaugh legiti was not not be said that they agents determined mately position view the evidence. in a of a the commission to arrest appel need deal with We therefore them. currently progress before crime challenges upon the latter two lant’s based incriminating argues that Appellant requirements. be as- packet could not nature of its contents examining certained discovery of the Appellant contends that heroin. We viewing capsules of and be- heroin cannot considered inadvertent be we find that reject argument because this had led cause the informant’s information pack- incriminating of the brown nature that a heroin transac- DEA apparent to the immediately was et place. He taking tion was contends indi- specifically agent. The informant had unjust- packet permitting the seizure of the Biggies dealt and cated Sanders ifiably allows of the warrant circumvention information, plus heroin. This cocaine and requirement. argu- this Appellant makes of Overbáugh’s personal observation Agent ment, of the though strenuously experience even asserts training and Biggies, the insufficiently relia- agents, particular physical charac- informant to provide probable packet7 ble teristics of the created reasonable (1977), have found it 7. After the courts Court’s decision Chadwick, necessary pay to the details States close attention inference that the contained the con- rights a statement of his constitutional traband. statement-of-rights Sanders read the form. analogous

The situation is his rights Sanders indicated he understood Blake, 484 F.2d 50 supplied and waived them. He then a vol- 1973). In we found that the cumula- Blake untary prior to the agents’ mak- tive facts of case would have led ing any regarding decision whether to file a particu- that a person reasonable believe complaint. Overbaugh then filed .com- purse probably lar contained contraband. plaint against Sanders and advised Sanders This, plus plastic bag, fact white that a appear that he would before known to a common item in narcotics magistrate. On October distribution, protruded one-and-a-half spoke pos- Thornton with Sanders about the purse, inches of the outside closed sufficed sibility assisting Sanders with the inves- incriminating to establish the nature of the tigation in providing terms of more than evidence, justifying seizure both the just general had re- information. Sanders purse opening and the of it to find the plied investigate that he was going to heroin plastic bag. within white provide narcotics seized on October 2 and F.2d at 57. not view doctrine did assistance. require Agent Overbaugh to have absolute Following grand the return of a federal proof of the nature of the jury indictment on October Over- packet; sight otherwise even the of the baugh and Thornton arrested At Sanders. capsules would have been insufficient be- arrest, they again the time did only laboratory analysis prove could rights, advise him of his constitutional but that they contained heroin. Given to- question they did him. As trans- circumstances, tality of it was immedi- ported him to County jail, the Polk Sanders ately apparent Overbaugh that the pack- statement, volunteered the “You know that et appeared to contain contraband. dope—that drug in capsules, you The District Court did not err in denying Moines, get capsules can’t those in the Des suppression motion for Iowa, area.” heroin as evidence. trial, During objected to the Sanders ad- Voluntary statements mission evidence of his written state- courthouse, arrival at the grounds ment of October on the Sanders give asked if he relevancy, objected testimony wished to a statement. agreed, He read him Agent relating Thornton state- Sanders’s Sanders, supra, physical description containers that Arkansas opened have been law enforcement S.Ct. at packet, inches, approximately by The Ross, 2‘A without a warrant. -In United States v. heavy, (D.C.Cir., was constructed from paper manila-colored Apr. panel No. 79-1624 a of appeared part Appeals well-used. A of it had the United States Court of Dis- been tom off record and the does not indicate trict of Columbia Circuit considered the difficult question that packet had to or paper by unseal tear the opening bag of whether implies to police look The inside. record illegal an constituted warrantless search. contrary. Appellant argue does not in fact that Addressing the issue of how to determine expectation privacy packet; an attended expectation of privacy whether an of attends argument contending he limits his incriminating to container, particular catalogues the court vari- packet of the nature was not im- types ous of containers. Id. at 9-13 mediately apparent. The District Court’s con- catalogue nn. 3 and An examination of this contrary, however, to clusion cannot be reading Judge separate opin- and a of Bazelon’s clearly considered erroneous. The contents of concurring part dissenting part ion in in easily packet could be inferred from its highlight difficulty making of the determi- appearance surrounding outward and the cir- required by nation Chadwick Arkansas cumstances. The cocaine is knew heroin or that Sanders, frequently packets carried of in small case, however, L.Ed.2d 235 this Biggies’s this nature. furtive movement indi- physical attributes of the brown and the placement the size and cated and further corroborated the ready of the contraband perceived circumstances under it was which al- unnecessary deeply render it to for us delve suggesting Big- known to the that question “inevitably into of it whether was gies engaged a narcotics and Sanders were in expectation privacy,” associated with the of sale. taking rights him him his Miranda after being transported was ment made while he custody. Court stated: jail. into The to however, that all say, is This not appeal to the admis- objects on Sanders police after obtained statements evidence, into sion of the two statements custody person into are has been taken illegal they were fruits of an the basis that interroga- product of considered during the statement made arrest and * * * It is clear therefore voluntary tion. transportation jail not safeguards in- out- special procedural custodial product because it was the of intelligently required or are not where a terrogation and he had not in Miranda lined rights custody waived his under voluntarily simply but suspect taken and Miranda v. fifth and sixth amendments custody sub- where a rather Arizona, “Interrogation,” interrogation. jected opinion, conceptualized in the Miranda compulsion a measure of must reflect may we While note Sanders that inherent custo- beyond above and now preserved appeal the issues he have dy itself. raises, arguments we merits his find the of we deter unpersuasive.8 already (foot- As at 1689. probable cause mined that had omitted). of this note circumstances 2, his state on October Sanders was sub- suggest case that Sanders do con on that date cannot be ment made prior His conver- jected any compulsion. arrest, and illegal fruit an sidered the of twenty-two Agent Thornton sation giv warnings were prior adequate Miranda within the days be considered earlier cannot of October 25 statement en. Admission police practices designed realm of coercive facts estab appropriate because the response from a to elicit of the state voluntary nature lished custody. suspect in Sanders’s Overbaugh fully informed ment. category of clearly falls into the October 25 2, after rights of his on October Sanders made while voluntary remark an unsolicited he wished which indicated that Sanders interroga- while under custody but not arrest, time waive them. At the of his tion. way question any or in agents did not him counsel Effective assistance of Al attempt from him. to elicit information spoken with though Agent Thornton he was de contends that Appellant possibility regarding him on October of counsel because assistance nied effective assistance, conversation does not this adequately to attorneys failed his retained present any sem sufficient evidence prior to the trial. The investigate the case or lack of pressure or coercion blance hearing on these District Court conducted 25 statement. voluntariness the October charges were and determined Grant, 622 F.2d 308 at See United States merit. A careful review this reveals no reason disturb records Appellant not shown that he finding. has The recent United States the defense “materially prejudiced Innis, in Rhode Island decision Court actions or inactions defense case attorney “his failed to ex counsel” or that ar appellant’s (1980), rejection of compels customary diligence skills and ercise the during made gument the statement reasonably competent attorney jail been transportation to should have perform under similar circumstanc- agents did not read would suppressed because imply argues appellant did We not wish to condonation of this do 8. The Government always practice, appropriate and but review un- trial level raise issues these 52(b), plain der error rule of them for Fed.R.Crim.P. should not consider therefore we Librach, may princi- addressing appeal. and these issues aid time first on pled disposition (8th Cir.), claims. of similar 536 F.2d Parratt, es.” Morrow v. 412- saw after they looked into appellant’s car plain a small manila envelope—hardly plain contraband in view. Even the en- Conclusion velope was not agents seen until the looked purposefully appellant’s car. Judgment affirmed. In my majority view the waters down the

MeMILLIAN, Judge, dissenting. Circuit requirement probable cause for arrest to I respectfully dissent. requirement suspicion. of mere By ap- proving suspicion a search on mere of a car affirming majority this conviction the car, and an innocent looking envelope in the gives great deference to the law enforce- the majority’s plain approach goals agents, ment of the DEA eviscer- so much so ates scrutiny requirement that I fear has of probable been diverted from cause for by Agents Thus, the means used view, Thornton and a search. in my the affirmance Overbaugh goals. to achieve those The de- results from an undue deference to the sirability agents’ goals unquestion- legitimacy of goals the law enforcement they intercepted able: illegal drugs ap- and agents which motivated the they ap- prehended possession one man who was in proached appellant’s car from an unfor- and another who was later convicted of disregard tunate for constitutional limits on But, distributing them. as the majority agents the means used to achieve recognizes, agents only accomplish could goals. those goal by this arresting appellant seizing The majority’s probable cause discussion objects majority found in his car. The of- emphasis reflects this on law enforcement fers two rationales this arrest and purposes. agents The drug learned of search: probable There was cause for transactions between and Sanders 2, 1978, arresting appellant on October from anonymous repeated informant’s n the search was incident to the arrest tips, the days latest received three before protect prevent officers and evidence the seizure of the drugs on October 2. Al- being destroyed. magistrate Yet a though the credibility informant’s is unchal- against reviewed the evidence appel- lenged, the record does not reveal the cir- probable shortly lant found no after cumstances which led the informant to con- arrest; agreed, court below and the clude that a transaction would take government appeal on this conceded the place predicted at the time or location or probable agents absence of cause.1 Instead, participants. between the named had the right to make at least limited merely the informant told the officers that investigatory stop (whether of the car given at a time probable day the basis two men would cause or reasonable suspicion) emerge particular building pro- and saw the from a evi- car, dence in view.2 But all the they ceed to a where would conduct a agents stopped appel- probable 1. On October conceded that there was no cause at approached, lant’s car and found on the floor a brown en- velope containing the time the car was its in. government flatly narcotics which had brief the been states there dropped by appellant’s Biggies; probable [appellant].” associate was “no cause to arrest day complaint same filed a criminal against appellant. Magistrate Longstaff R. E. majority “plain 2. The relies this view” of the Southern District of Iowa dismissed the theory support the seizure of the narcotics complaint on October 5 for lack of appellant’s car and introduction of the (Magistrate Longstaff did so evidence, even support narcotics into but not to though presented with evidence of the narcot- post- arrest of of his and introduction car; appellant’s majority ics found in holds into evidence. The appel- had only upon cause to arrest relies an arrest with lant cotics.) support even before discovered the nar- introduction of October below, At trial the district court explained concluded statement. At 1316. As probable regard that cause did not exist at the time both the 2 and 25 October October agents approached appellant’s appellant the car. At oral statements of of an unlawful as fruits argument court, government before this the arrest. 1318 Aguilar, that agents knew rienced law enforcement officials. transaction. 112-14, men, Biggies appellant, supra,

the 378 U.S. at 84 S.Ct. at 1512- two in a narcotics transac v. single Deggendorf, been involved 1514. See United States (8th 1980). my tion in a years seven earlier resulted 626 F.2d 47 at 52 Cir. In view, for distribution of police conviction allow to arrest individuals that, narcotics. The concludes upon suspicion opens the mere door agents by surveillance once the confirmed discriminatory police abuse of worst sort meeting Ardle, took at the location place the power. E.g., v. 435 United States in and in automobile the 1970), denied, described (9th cert. 402 F.2d 861 Cir. Big agents once the observed formant and 947, 1638, 91 29 L.Ed.2d 116 S.Ct. gles’s expression excited “furtive” as a (long hair of considered throwing envelope gesture in a small agent probable cause giving customs factor car, they approached agents floor as narcotics). latitude to search for Such had “sufficient facts to warrant belief [the] reports fabricate tempts informants “to that a crime been committed and ha[d] satisfy pro criminality grudges, in order to person[s] to be arrested [were] friends, money payments.” tect or receive 1312, citing At United committed it.” Rebell, Informant and The Undisclosed Luschen, 1164, (8th 614 F.2d 1171 States v. 703, Amendment, 81 YALE L.J. Fourth 939, Cir.), denied, cert. 436 U.S. (a case in which Nothing Draper probable reduces the agents the DEA had observed firsthand Draper, a reliable requirement. In activity criminal which created some of the trav- police informant told the accused had arrest). Relying cause for on obtain narcotics and city elled to another States, Draper v. 358 U.S. given place on a from a would return train (1959), majority S.Ct. de specific morning; on the informant concludes that the confirmation innocent accused in detail the outfit scribed tip details from the informant’s established wearing, zipper bag tan would be appellant as probable cause for arrest of gait. carrying, the accused’s would be Biggies, well as even if did how Although the record did disclose put know what led informant information, by this the informant came finger meeting. their it particularized the kind of detail Draper broadly read so as to cannot was a could be inferred that the informant support probable cause in these circum transaction; in the participant narcotics LaFave, generally stances. Probable See example, clothing details someone about Informants, ILL. Cause from 1977 U. OF plans travelling is to wear while the sort tip prob L.F. 1. An can create informant’s provides to someone traveller able cause for arrest or search on some expected Draper, to meet there him. reliability showing likely both of and of fore, police details when the confirmed the upon tip some circumstances which tip, they had some basis for also Spinelli based. inferring how the informant learned of (1969); 21 L.Ed.2d S.Ct. activity. Spinelli, su alleged criminal Texas, Aguilar v. pra, 89 S.Ct. at 594-595 (1964); 12 L.Ed.2d United States (White, J., Whiteley concurring). See also Neumann, (8th Cir. 585 F.2d Warden, considering cir The reason for (1971); 1036, 28 L.Ed.2d 306 United States tip was upon which the based cumstances Scott, (8th Cir. upon causé must be based something suspicions more definite than L.Ed.2d illegal ac or “rumors of informant contrast, Fox, By DEA did not tivity.” curiam). Indeed, probable cause in the rec- 1979) this case because (per tip nothing ord discloses in the informant’s must based some expe- which the could infer the cir- thing suspicion more than mere

1319 any suspicious object cumstances which led the informant to be did not even see until place. a crime See lieve would take after the search. conducted Cf. Unit Williams, 1102, (8th v. 1122 Howe, 604 F.2d (8th Cir.), States ed States v. 591 F.2d 454 1979); Bailey, 547 Cir. United States v. F.2d 963, denied, 2411, cert. 441 99 60 U.S. S.Ct. Wood, (8th 1976); 68 Cir. (1979) (transfer cigarettes L.Ed.2d 1069 1124, 1976), (8th 1126 n.2 Cir. 545 & during investigation cigarette observed denied, 429 51 cert. U.S. 97 S.Ct. evasion); tax see also United States (1977). Thus, L.Ed.2d 546 the informant’s (8th Young, 567 F.2d Cir. cert. regarded creating mere sus tip must as denied, 1273, 55 98 S.Ct. picion—reasonable suspicion, perhaps, be (1978) (informant’s tip L.Ed.2d 786 that sto subjects pre cause its were have known to machinery transported len would be across viously engaged transactions. agents state line confirmed when FBI from and Big When observed Sanders by a distance inside trailer observed driven come gies building out of a enter a car stolen). suspect machinery type suspicions predicted, as the informant their Therefore, may view the DEA prolonged. were But the informant had approaching car on October provided suggest no information that would only suspicion, reasonable any any with force that he knew more cause, subjects to believe the had commit suspicious any these than meetings about ted a crime. Cf. Johnson v. United perhaps meeting one knew about a 10, 15-17, 367, 369-370, U.S. S.Ct. appellant. any purpose Biggies between (informant’s tip opium L.Ed. 436 meager easily “This could [information] being was smoked in hotel room confirmed been obtained from an offhand re by opium emanating odor of from room not neighborhood Spi mark heard at a bar.” adequate support probable cause for ar Ili, supra, ne at at 589. U.S. 89 S.Ct. rest). Trejo-Zam But see States contrast, knew Draper informant brano, denied, (9th Cir.), 582 F.2d 460 cert. things expected that would not be unless he a participant were in some endeavor with (1978). generally Eighth See Circuit Sur Draper tip the accused. I note also that the vey, L.Rev. Creighton tip much more detailed than the in the only The additional Mitchell, instant case. See United States upon approaching agents obtained the car (8th Cir.), 425 F.2d 1353 gesture3 came “furtive” from the and ex- L.Ed.2d Garcia, expression Biggies. majority cited The also United Biggies’s gesture how explain The them does not selves observed no given agents probable unlawful conduct and could have York, through peep 3. The relies v. New Sibron observed emerged hole his door. He 1904-1905, apartment slammed the (1968), authority door, whereupon, prompting, 20 proposition for the without further by Supreme suspects quoted that “furtive actions” fled. Court may support probable 1312 n.4. In cause. At judge: the trial passage majority, by Sibron cited testimony hearing at the We think does referring Court conduct of require laboring aspect further of this completely single ges- different kind than matter, unless one is to believe that it throwing something ture floor. The onto the legitimately tip-toe normal for a man to suggested Sibron Court in a what it footnote public apartment about in the hall of an sup- meant “furtive actions” it considered on a house while visit to his unidentified n.22, portive of & Id at 66 and, girl-friend, when observed another n.22, referring at 1904 & reader to n.7 tenant, rapidly by stairway descend in the case, gave which indicates what presence of elevators. off-duty policeman probable to arrest n.7, contrast, By Id. at 49 1895 n.7. suspects, policeman strangers who were gesture in the instant case the “furtive” sneaking apartment saw policeman about at the where the quick Biggies’s was a movement of hand from policeman lived. The had lived in floor, pocket his shirt while years, elevator-equipped building the yet for twelve sitting appellant, in a car the car’s owner. recognize suspects, did not whom he 1320 complaint, the with trial court original still the arrest whom the appellant,

to whom government, all of and with the I merely dealing of in narcotics. suspect probable cause did not exist. that thought support would Biggies’s doubt that behavior Thus, “packet” of the brown the seizure Biggies, to let alone probable cause arrest to incident justified was as a search reaction, car. anyone Biggies’s in the else arrest. course, appearance the provoked by was of up suddenly, who agents, drove majority’s al- Likewise, I that the think car, directly in front stopped were in holding, the narcotics ternative Before approached. they identified the agents approached plain view when the agents, Biggies drug threw themselves as car, empha- by undue supported can be how the floor.4 I cannot see something on the goals law sis on the enforcement inno- perfectly view, although this act inconsistent with my is the agents. In example, attempt by appel- for an probable cent behavior: arrest did not have occupant something they did have reasonable Biggies, the of a car to conceal lant and justified the suddenly ag- suspicion approaching approached valuable when however, concluding difficulty, car.5 have point of I gressively in what from the view plain packet the Cf. Unit- even that brown occupant might robbery. the Overbaugh testi- Wood, Agent this time. supra, view at F.2d 1127 ed States v. 545 at Biggies packet when fied did not see the he car, stop of a sus- (during investigative down, it quick gesture his throw made out of the pect powder threw some white with even packet was on floor cocaine; test to be car which a field showed seat, he found and that overhang police probable arrest then the car. purposefully into by looking it car). discovery of Absent driver and search have Thus, seems not to itself pointing clue some substantial out- standing at all to someone been visible approached transaction before was re- car. A search purposeful side the car, response on Biggies’s I think do not packet at all. quired to observe the approach “A their created contrary holding here mean that a Furthermore, would recognizes, majority vague suspicion could be transformed only where applies doctrine reason of am- probable cause of the article incriminating nature “the At biguous arresting apparent.” which the offi- immediately conduct [seized is] Wong Clark, provoked.” cers v. F.2d 1314. See United States themselves 471, 484, v. 928, (8th 1976); Sun United 371 U.S. Cir. Molkenbur, (8th Cir.), cert. 415, 407, 430 F.2d 563 9 L.Ed.2d S.Ct. 244, denied, 91 S.Ct. agree heard magistrate would with the et, not concerned about testified that he was 4. he and testified car; up in parked weapons when reached into Thornton “drove front he car, stead, got seeking evi obtain narcotics vehicle. We both out of [the] Stevens, car. I saw started toward the making Mr. Cf. United States dence. shirt, denied, Cir.), (8th to his started [I] a movement cert. added). yelling, agents.” (emphasis (search (1975) “Federal 44 L.Ed.2d unjustifia clearly weapon). This intrusion permissible York, such a case a limited search holding of Sibron v. New under the ble cause, en- absent because law supra, 20 L.Ed.2d agent is forcement entitled to reasonable take unlaw Court found in which steps public protect himself and pat-down or frisk cause a ful absent might violence which result from encounter police suspect seek officer of a narcotics objects suspi- who are of reasonable those ing See also evidence. to obtain narcotics Ohio, activity. Terry cion of felonious Williams, supra, United States 20 L.Ed.2d 889 1124; Thompson, F.2d 187 purpose not to “The of this limited search is (9th Wright, United States v. Cf. Cir. crime, discover but allow evidence 565 F.2d 486 pursue investigation fear officer 56 L.Ed.2d Williams, Adams v. violence.” weapon front (approving seizure of seen investigative stop). during auto seat of pack- Agent Overbaugh, who the brown seized car, (1970). The further traffic in so would also in the of this any car, determines that circumstances suitable container found by 3 appearance, case the nature of a 2½ no matter how innocent inch, heavy narcotics. See at 1314- envelope immediately would be used for manila apparent. surprising rather This conclusion 1315 & n.7. But I do not think who, exam- give pause anyone plain should view doctrine allows law enforcement ple, packets valuable carry agents any uses such to search or package container See stamps or a watch suspicious and coins who receives that seems to them.6 Jackson, repair in such an en- States v. shop (8th back from a 576 F.2d 753 denied, Cir.), view cert. velope. my apparently In such an 439 99 S.Ct. U.S. Carpenter object innocent can Cf. v. be considered incrimina- 58 L.Ed.2d 167 Sigler, ting suppose 1969) law (8th (similar if we en- F.2d 169 Cir. goal agents stop; forcement of the them gave burglary plain a tools seen in view be seat). kind See a iso United States v. x-ray revealing of vision the contents side car Cornejo, impute agents of the To envelope. (9th 1979) to the Cir. contents, insight curiam). this the packet’s (per into I disagree therefore with the majority upon goals of legitimate justified relies conclusion the seizure suspect the agents, plain who did indeed narcotics view doctrine.7 See also under cause, majority probable disapproving The relies v. United States on one mere sus- Blake, denied, (8th 1973), picion. Cir. cert. Moreover, 94 S.Ct. 41 L.Ed.2d 669 I note that in the result Blake has (1974), support finding its questionable by Supreme that narcotics been made plain Chadwick, were in view in this Blake case. But the Court’s decisions in United v. States distinguishable. case is In a search that case 53 L.Ed.2d 538 purse lying Sanders, was made of a closed on a and Arkansas v. found (1979), plastic bag protruding floor with a white which as the ma- jority recognizes open up question object plain purse. it. would The view of was the expectation stated, privacy specifically “whether of attends a The court deter “we have particular (such purse). container” a probable At mined that cause believe existed to (Of finding 1315 n.7. course a of such an purse that the contained at 57. narcotics.” Id. expectation privacy prevent of not would Wilson, See also United States v. F.2d 595 purse, limited intrusion such required of the as seizure (8th Cir. exigent circumstances to avoid de- the in evidence, of struction while enforcement law by majority stant case contrast the makes no upon probable officials obtained a warrant finding probable there was to be cause Sanders, cause to search it. See supra.) Chadwick packet lieve that the contained narcotics. Cf. 499, 509-10, Michigan Tyler, v. 1942, 1950-1951, 56 L.Ed.2d majority “clearly suggests 7. The erro- (seizure liquid containers flammable neous” standard for review factual determi- burning building). majority The instead holds by judge applies nations the district plain packet, plus of the view the officers’ plain district envelopes brown court’s conclusion that the contents, suspicions justified its the offi about incriminating obviously was of an looking packet. majority cers in into the The nature. At 1315 n.7. Even under this standard insignificant proba erred, dismisses as the absence of would hold district court because it by asserting, plain ble object “The view doc appearing is incriminating clear that innocent is not require Agent Overbaugh trine did appearance. not from its mere But I proof absolute “clearly of the nature of do not think the applies standard erroneous” my law, . .’’At 1315. But I think is one because the error probable plain view did not have As a fact. matter of law view cause, considerably applies directly agents which is a hurdle lower doctrine where the ob- proof.” agent incriminating objects, than a mere serve where the “absolute The suspicion. package is an incrimina- There essential constitutional contains significance ting difference evidence. between suspicion majority’s application “clearly and mere when it comes to er- The intrusions law enforcement officials roneous” standard to the view issue Clark, packages. cars and See v. United States me with the seems to somewhat inconsistent supra, my majority’s 531 F.2d 928. That in is the cause which discussion of Sibron, supra, apply “clearly reason the Court does not erroneous” stan- opposite determining findings quan- reached gality results in the le dard to factual “The below. searches, approving of two based on tum of information which constitutes one put appellant under arrest October Berenguer, 562 F.2d United States Robinson, 1977); disclaiming (2d gave Cir. United States until after he (5th 1976); Cir. 535 F.2d 881 narcotics, knowledge Cf. Shye, 473 F.2d 1061 Cir. forced petitioner when clearly seized Diaz, (2d 577 F.2d 821 down, pat confis- to leave car him paper bag 1978) (incriminating nature of pursuant car cated the bag agent when was found obvious discovered, in- when narcotics was tank). toilet stuffed into them the accompany duced by the conclusion reached contrary courthouse, warnings, gave him Miranda attractive, is, course, for the order to decide interrogated him in arid intercept dangerous nar- DEA did Dunaway complaint. file a whether to through activity drugs enforcement cotic York, supra, New ac- being in the sense of that was routine done to All this was at 2256-2257. S.Ct. or obvi- complished without excessive force cause to arrest probable appellant ously conduct. But search unseemly “[a] knowing any- appellant denied him. the prosecuted in violation of Constitution narcotics, agents filed a thing about brings what by not made lawful it is told him complaint against him and formal 28, States, 273 light.” Byars v. United U.S. magis- appear have to before he would 248, (1927). 29, 520 47 71 L.Ed. S.Ct. appellant trate. The considered Re, 581, U.S. Di 332 also filing of the com- under arrest from be 228-229, 222, 594-95, L.Ed. 210 92 S.Ct. 5, 2, when until October plaint on October magistrate examination preliminary at law-abiding citizens protective A rule lack of complaint for dismissed advocates apt is to flourish where its Yet rule we usually are criminals. guilty the innocent and fashion 3, meantime, on October In the . alike. If the word of the informer appellant and again spoke with agents once [present] to make the sufficient pending, to complaint, which was used legal, protect also word would statement. him to make further induce who, it, acting the inno- police hauled cross-examina- testified on Agent Thornton jail. cent citizen off attorney Wright, by appellant’s Robert tion States, at Draper supra, 358 v. United U.S. at trial: J., 314-15, (Douglas, at 333-334 S.Ct. Well, I him that—on October A. asked dissenting). us, if he wanted to 3rd if he’d assist My analysis ques- Biggies was re- to us that Mr. indicate the state- tion also leads me to believe that than him- ceiving rather capsules these after his appellant ments obtained from well, self; like, he something and he said as fruits suppressed arrest should also snitch, something or to be a didn’t want Dunaway New an unlawful arrest. like that. York, 2248, L.Ed.2d Well, on October Q. isn’t it a fact that Illinois, (1979); Brown that, “I an say made the 3rd he did (1975); Wong 95 S.Ct. came capsules investigation, and these States, supra, at v. United Sun City”? in Kansas from an individual Although 415-417. you Didn’t he tell that? government argues did appel- the time cause existed at no . . . must be measured facts Moreover, stopped. Wong I do not particular was lant’s car of the case.” Sun United envelope States, at 479, anyone supra, brown claims U.S. 413. think 83 S.Ct. at purposefully Overbaugh Agent inconsistency majori- was visible until I find similar in the Overbaugh Agent assertion,, ty’s parties car. looked “All concede that packet at that he did not see testified within the gesture.” Overbaugh.” At 1314. Yet the does made his “furtive time government’s not mention the concession would, stress, A. He the name under guy Big said a suffer an abnormally Boy up, bring would them who drove a capacity diminished to reason. The majori- Cadillac, something white like that. ty fails to address this critical factor in its “[Djetermina- Q. discussion of voluntariness. you Is that told he when he wasn’t snitch, tions of going you to be a when he voluntariness are based told as- Big Boy about this came sessment of all the circumstances and fac- City? Kansas tors surrounding the occurrence when the Well, . . was made. . A. I asked him if he could assist ‘totali- us information, ty of just general inquiry requires further than circumstances’ that, such Big Boy reviewing investigate and then court analyze that, said it after when asked him if he ‘both the characteristics accused and ” could assist us further. interrogation.’ details of the Grant, States v. at 316 Although against the complaint appellant Cir., 1980), citing Schneckloth Busta probable cause, dismissed for lack monte, indictment subsequently obtained on Spano L.Ed.2d 854 See also Agents charges; Thornton and York, v. New Overbaugh appellant arrested on October (1959); Bram v. Before the informed rights of his Miranda under the decision and L.Ed. him, Dix, Mistake, agents interrogated generally before the he Ig of- norance, fered statement the narcotics Expectation seized of Benefit and the type Confessions, from in a capsule had been Modern Law of 1975 Wash.U. 275; not available in area. It L.Q. the local is diffi- Frano, Voluntariness, Free Will cult response to think of direct a more Confessions, and the Law of 65 Va.L.Rev. request Thornton’s October request more information. That drew its Accordingly, appellant’s I would reverse arrest, force from appellant’s October 2 conviction. found later magistrate to have lacked thereby used the arrest without cause to lever appellant self-incriminating state-

ment, prosecution upon by relied as a

lynchpin of its case.9 my opinion

Because in the October 2 and

25 statements of an were fruits unlawful

arrest, I reach the would not issue of

whether October note, however,

was voluntary. psychiatric report stating

record contains a emotionally disturbed and investigative prospective, piece 8. Additional became available to evidence the one government subsequent complaint; Big- push hump to the evidence that me would over that gies against appellant ., coupled Biggies’ testimony, testified at his trial but preliminary did not do so at October 5 the fact that 2nd the on October Defendant dope. examination. We informed nothing are what evi- knew about Then all of a presented grand jury. dence talking sudden on October DEA, only people who knew about Nickerson, 9. Don the Assistant United States rarity capsules, besides the source of case, Attorney prosecuted stated in his capsules, the Defendant all of a sudden closing argument: knowledge. get knowledge I were in or if I were If he didn’t [I]f Columbo Sherlock from the Holmes, Watson, DEA, got knowledge or even if I Dr. were look- Willard Sanders ing pure person got dope. at this case from the common sense from whom

Case Details

Case Name: United States v. Willard R. Sanders

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 22, 1980

Citation: 631 F.2d 1309

Docket Number: 79-1661

Court Abbreviation: 8th Cir.