United States v. William Ross Phillips
497 F.2d 1131
9th Cir.
1974
Check Treatment

*2 Degner Carpenter and While (argued), David E. Kenner of Kenner being Beach, Long followed to other Stein, Cal., Angeles, & appellant. Los for city reinforced Monica Santa Keller, William Atty., D. U. S. Eric A. gathered police, Pico Boule- near 911 Nobles, Levine, Attys. Joel Asst. U. S. supervision Special vard, under (argued), Angeles, Cal., appel- Los agents Agent William T. Fuller. All the lee. in oth- remained radio contact with each Before GOODWIN, ELY and er. Judges, MURRAY,* Judge. and District Shortly Degner Carpenter and before Agent Long Beach, decid- reached Fuller OPINION Phil- to arrest ed to enter MURRAY, WILLIAM D. District lips, At inside. whom believed Judge: agents time, team the Fuller this Phillips appeals William Ross his con team knew: Stowell and the viction conspiring to distribute con Degner Carpenter had been and trolled substances in violation of 21 U.S. under vicinity Pico Boulevard C. 846 and possessing, with intent day, prior earlier surveillance to distribute, heroin, cocaine and in vio making delivery sale and the first lation 841(a)(1). of 21 U.S.C. He Degner placed a had Stowell; (2) that contends that evidence seized at the time telephone Phillips, telephone at a call of his arrest sup should have been on shown number pressed both because the lacked nar- quantity of a second card, order cause to arrest him and be cotics; cause their into his on the street address number illegal. agree We with his second con Degner proba- Phillips, pointed card tention and reverse his conviction. her tele- bly did not 2, 1972, Degner On Special Agent October call; and phone and Charles Stowell of the Carpenter to 911 Bureau of a second visit Nar- made Dangerous Drugs cotics and purchased Boulevard, time remained short Pico marijuana heroin Long and Deg- Because Jainne returned to Beach. ner Carpenter Long Daniel a few the officers entered the Beach, Carpenter inquired California. Stowell minutes before Long whether he more could obtain narcotics had reached Beach with second day. Degner, delivery presence, Stowell, of- Stowell’s narcotics for Murray, Judge District The Honorable Senior United States for the District William D. Montana, sitting designation.

H33 grams merely believe, imately had reason 178.2 of heroin and some 15.3 ficers Degner grams fact, Later, approximately for a cocaine. did not know but forty Carpenter had obtained narcotics minutes after the tered, Phillips gave per- Boulevard. written from someone at 911 Pico them building. testing probable Finally, purposes of mission search the For the containing disregard we he surrendered container *3 reports police hearsay powder, various offi- to white described Phillips procaine was a with a of cocaine. to trace cers effect “dealer.” entry validity to ex of an a traced one or had with without ecute an either by sale warrant, a second tested identical sale and criteria known Phillips’ Boulevard. 3109.1 911 Pico business at those in 18 U.S.C. embodied § Degner, 301, from whom They knew that 357 Miller v. United U.S. earlier purchased 306, had narcotics L.Ed.2d 1332 1190, 2 Stowell S.Ct. Phillips’ separate day, pur card (1958). had least three At card, number on that had called the 3109: said underlie are § though Deg asking Phillips. Even vio- potential for (1) It decreases the Phillips apparently did ner Particularly, of an- rule lence. arrange time, able to a she was at “officers, safeguards nouncement talking his office. to someone at sale mistaken, upon might an be who The fact that card had home, into intrusion announced him, together and asked for re right no for someone with cently observed, traffic * narcotics-related * v. Sabbath there in and out of his constituted swpra. United probable cause believe sufficient physical destruc- prevents the It Phillips engaged was at least in a con Kaplan, property. See of tion spiracy to distribute controlled sub A NO-MAN’S Seizure: Search stances. LAW, IN THE CRIMINAL LAND (1961). Assuming proba- 474, 501 had 49 Calif.L.Rev. question Phillips, ble right protects individual’s It entry then becomes: was into the privacy. See Sabbath v. of a valid ? States, supra 589, 1755. 88 S.Ct. at gain entry building Agent To into the entry at principles Applying to the these police Fuller asked the Santa Monica of- 3109 should hold that we § issue help. ficers to direction Under the mid- apply. An unannounced Fuller, the uniformed officers knocked night occupied office locked into an permission on the door and asked to en- poten- nearly as much carries investigate report burglary ter unannounced tial violence as an building. (There course, was, no poten- private into a residence. report). delay, After some physical destruction tial for opened by occupant door was an Finally, equal in either ease. policemen entered, uniformed followed proba- respect privacy is individual immediately by the undercover narcotic highest bly individual is its when emerged hiding. who had right his his inside, himself, Once into his Fuller identified when he locks himself forfeited dwelling. securing Lan- and announced that he was office instead See premises prior obtaining York, 139, 143, a search za v. New 370 U.S. (1962). placed 1218, warrant. under ar- S.Ct. 8 L.Ed.2d approx- voluntarily Hence, rest and surrendered com- we conclude that locked may authority purpose, 1. er 18 U.S.C. “The notice of his he is § break open any necessary inner outer or window of a refused admittance when lib- door or or house, part any house, anything aiding j)erson or of a erate himself or him therein, if, to execute a search aft- execution of the warrant.” g., night, See, States Smith establishment, at least e. mercial * * * ; (supra) Leahy v. United is used that word á “house” * * (supra).” 391 U.S. States 7,n. S.Ct. at 1758. at 590 agents ob- Here, narcotics federal Craven, building by In Ponce entry into tained denied, 1969), cert. uniformed crowding heels in on the L.Ed.2d 90 S.Ct. an- U.S. “knocked and police officers who decep (1970), permission we held that nounced.” violate and without force to in- tion elicited to report burglary, statute similar later state vestigate of a a motel There, directed officers fed- invented been found manager there was a announce agents. eral in the room call for a woman *4 by the Su the 1968 decision Before petitioner. door was the the When preme v. United in Sabbath Court opened, and arrested the entered 585, 1755, 20 S.Ct. States, 88 391 U.S. holding, petitioner. her Our (1968), twice this circuit L.Ed.2d 828 interpreta however, was limited to an or de ruse held obtained that statute, tion of the state Sabbath 3109, ception 18 U.S.C. did not violate conclude We now not mentioned. “breaking” involved. Dick since no earlier, pre-Sabbath that our decisions 773, ey States, F.2d 777-778 332 United good are still law and should be followed denied, Cir.), U.S. cert. 379 th 9 948, in this case. (1964) 444, 545 85 L.Ed.2d 13 S.Ct. now, however, look further We must (narcotics agent falsely him identified and determine a whether or not use of through inform a as an self closed door ruse was warranted under these Leahy defendant); er the known to circumstances. 487, F.2d 272 1959), granted, recently 363 cert. U.S. The Ninth stated 810, 1246, Glassell, 143, L.Ed.2d 1152 S.Ct. States v. (1960), by stipulation, 7, U. dismissed Dec. 1973: 945, 465, S. 81 S.Ct. 5 L.Ed.2d 459 the “Under rule Lewis (revenue gained admit 206, 424, 385 U.S. 87 S.Ct. by stating tance that he was from the (1966), may L.Ed.2d 312 le- office). county assessor’s gitimately obtain an invitation into a States, supra, by misrepresenting In identity Sabbath v. United house his Supreme held that federal Mann inside, Court as did. If he invited effecting entry into he Sabbath’s does not need cause to en- apartment ter, by opening and, its closed but un- warrant, does need a door, open” quite obviously, locked door “break he does not need to meaning authority within announce purpose.” of 18 U.S.C. emphasized, The court at 391 U.S. case, distinguishable however, Our 1190, quoting at from its earlier S.Ct. from both Glassell and Lewis. In Glas- opinion in Miller v. United States: sell, the undercover were invited * “* prior requirement The petitioner’s into the house with authority purpose before derstanding notice of complete that a forcing deeply entry into a home is Lewis, petitioner narcotics deal. In heritage rooted in our and should invited the undercover his home given grudging application. not * * * specific purpose executing 78 S.Ct. U.S. felonious sale of narcotics. The Su- preme at Court Lewis stated: court later noted: when, the Sabbath “But the home is con- verted into a commercial center to deal with entries “We do not here pur- are outsiders invited for ruse, obtained been have transacting ‘breaking’. unlawful busi- involving viewed as no being entered; that likelihood no A ises entitled to ness, that ap escape swiftly if sanctity will it car- greater if were car, prehended; circumstance garage, The store, in a ried on entry, consented, agent, government that A street. on the person, peaceably.2 went on The court private made manner as a the same say is made the fact accept do busi- may an invitation night particular concern over may upon premises raises ness and “may elevate contemplated its reasonableness and purposes for the degree required, both occupant.” 206 at 385 U.S. suspect, implicating the and as show at 427. S.Ct. ing place entered.” he is in the Glassell, unlike Lewis and supra Dorman, con at 393. court agents entered cannot be it said that spe no there was cluded contemplated by purposes “very for the knowledge cial Dorman was occupants occupant.” led were concepts reason cause and admitting believe that offi- prima justify looking facie ableness investigate burglary when, in cers to home after 10:00 man at P.M. fact, the officers and were enter- same circuit has before an of held that ing Phillips. to arrest ficer can execute an arrest warrant party third not named residence An officer an arrest without the officer *5 must certainly warrant has no more license person reason to believe the named that than an officer with a in seek warrant present in the in warrant is the third ing entry to effect an arrest. The con person’s v. United States residence. safeguard stitutional that citi assures Brown, U.S.App.D.C. 371, 467 F.2d zens security the of their (1972) citing v. United States judicial homes unless a officer deter Watson, (D.D.C.1969) F.Supp. mines that overridden, ap must it be is in which the district court stated: plicable only entry not in case of to seeking entiy “An officer in order to property, search for but in also cases accomplish effect an arrest cannot suspect. to arrest a Dorman v. person looking task if the he is States, is U.S.App.D.C. Consequently, not inside. absent (1970). The Circuit consent,4 by officer the Court cannot for the District of Columbia listed any means, breaking otherwise, or six elements that have be considered responsible less he justifying in has cause to believe warrantless the defendant is within.” F. (1) make grave an arrest: That a of Supp. at 175. involved, fense particularly is one is that violence; a crime of That the sus In the more recent Ninth cas- pect reasonably is armed; believed to involving entries, es ruse the all showing A clear probable probable cause knew or had cause to believe suspect believe that the committed suspect the- that the was in the in involved; Strong crime question. reason Leahy In su- believe that pra, prem- the inis the the officer waited until he saw Lea- purposes decision, 2. For P.M., of this particularly court is :00 Phillips since failed focusing on respond phone the 4th consideration. placed call for him at it should be noted that long this crime was business address not en- before the crime of question. violence. Also there was no reason in arrest Phillips to believe was armed and no reason valid, intelligently 4. To be a consent must be Phillips escape to believe that if not knowingly given. person Before a can swiftly apprehended. “knowingly” be deemed consented, to have Although Phillips’ place of business he purpose is con- must be aware of the for which purposes pro- sidered is, “home” seeking entry. of the See Lewis Amendment, tection afforded supra. the 4th entry, by see A ruse its text, supra, pur- it not his nature, “home” for concept runs contra presumption presence of a intelligent of his after consent or waiver. gained hy portion opin- majority’s before he enter the house of the that try by stating he was from coun- ion which that holds because the ty probable Dickey In lacked cause to assessor’s office. v. Unit- believe that States, supra, Phillips ed in the officers were told his own office Lacey, Dickey raid, that at the time subsequent an informant arrest room. An must be invalidated. and such a hotel gained entry by pretending then Lacey. to be agree majority I with the that before Craven, supra, the Ponce an officer can execute an or actually observed defendant without a at the residence employed before motel room he party, third rea- the officer must have gain entry. a ruse to son named believe present par- third warrant This court cannot find that ty’s agree not, however, I do residence. Degner placed call Phil have that when the lips any way at his office in established person, they or can- a warrant to arrest a Phillips cause to believe that suspect’s not enter the own inwas his office. For some undisclosed merely they him because do reason, Degner Phillips did not know, only think, but inside. that arrange she did a sale with properly Courts have denounced whomever answered the call. We do not police practice searching from house know Phillips whether was there. Typ suspect. find house until The mere fact that ically, it inva has been the context of card and him, asked first establishes property of sions of the those other no inference presence as to spoken that courts have arrestee the office at that time. The fact that requirement arresting officers Degner arranged the sale with someone must believe suggests, else anything, if on arrestee before was not there. See, *6 can enter to effect arrest. agent An must have g., Brown, U.S. e. United States believe that the (D.C. he is at App.D.C. 365, 467 F.2d tempting to with or without McKinney, 1972); States v. Cir. particular inis building (6th 1967); F.2d Cir. question time in agent before that Gelston, 197, 201- F.2d Lankford v. can legitimately building by enter the (Sec 1966); Restatement any ruse or other means. To hold other ond) (1965). Certainly, of Torts § grant wise is to go a license to entering party a third of from employing house to house ruse en quite entering from office different right tries in violation of of The of arrestee himself. respective occupants. of the rights par of an to the innocent affront ty greater in the former case. is far this cause to believe that heavily upon the majority relies was in the office at the time Appeals opinion for the of the Court the raid and therefore the in Dorman Columbia District subsequent invalid and thé U.S.App.D.C. conviction must be reversed. (1970). However, 435 F.2d 385 majority points out, con- court there ALFRED T. GOODWIN, Circuit spe- had no ceded Judge (concurring part and dissent- knowledge cial ing part): “concepts I part concur in prima justify look- the first facie of the ma- reasonableness jority’s opinion, ing p. at home after 10 m.” holds a man that an en- Looking obtained means of at 393. at all ruse such employed the one probabilities here I does not should think that violate they preponderate U.S.C. I would favor dissent being where all in his was, home or rather the action else.

somewhere observing majority concludes contrary be “to here would result go grant license to employing ruse entries to house

house right privacy of the violation of respective

occupants.” under- I do not sustaining the arrest how stand progeny. spawn could

case going from house were not searching Phillips; rather,

house directly his own office went had been focus investigation, and at which their recently knew narcotics transactions person’s privacy place. No other taken endangered. remotely judgment of con-

I affirm

viction. GARTON, Appellant,

Charles W. SWENSON, Appellee.

Harold R.

No. 74-1041. Appeals,

United States Court of *7 Eighth Circuit. April

Submitted 1974.

Decided June Rehearing

Rehearing Banc En Aug. Denied Larson,

Thomas M. Asst. Federal Pub- ap- City, lic Defender, Mo., Kansas pellant. Harper, Atty. Gen., Karen Asst. Jef- Mo., City, appellee. ferson