Thomas v. Parett

REGAN, District Judge. These appeals from orders dismissing petitions for writs of habeas corpus challenge the validity of the warrantless search of an apartment during which certain crucial physical evidence was seized.1 The reasonableness of the search itself is not otherwise in question. Petitioners, jointly tried in the district court of Douglas County, • Nebraska, were convicted of possession of heroin with intent to deliver. The convictions were affirmed by the Supreme Court of Nebraska. State v. Patterson, 192 Neb. 308, 220 N.W.2d 235 (1974). Having exhausted their state remedies, petitioners separately petitioned for federal habeas corpus, asserting the same grounds ad — 780 — versely ruled by the state court. The district court, Judge Albert G. Schatz, upon a consideration of the evidence adduced in the state court proceeding, ruled that the search was lawful because it was justified by the circumstances. We agree. The relevant facts are basically undisputed. On the afternoon of March 27, 1973, the owner of a five-apartment building in Omaha, Nebraska, alerted the police to the presence at the rear of the building of a number of items, including empty aluminum foil containers and some 2x2 inch squares of aluminum foil, several hundred empty red capsules of the type in which doses of medicine are enclosed, and a number of bottles containing the label of Dormin, a non-prescription sleeping tablet which is commonly used as an agent for cutting and diluting heroin. Also found by the police at that time was a brown paper sack containing traces of white powder which, when preliminarily tested later that day, was positive for heroin. The landlord informed the police that he had not observed such items prior to March 21, 1973, when he rented apartment No. 4 to a Pamela Chatman, known to the police to be involved in drug-related activities. The building, which had been converted from a single family residence, had two apartments on the first floor, No. 4 and No. 5. Apartment No. 5 (then vacant) was located immediately to the rear of No. 4 and separated from it by a common wall. The entrance to apartment No. 4 was the front door of the building, while apartment No. 5 could be entered only through the rear side door. The police, determined to conduct an around-the-clock surveillance of the Chatman apartment, rented apartment No. 5 about 4 P.M. on March 27. From that apartment they were able to listen (without the aid of any listening devices) to the noises and conversations emanating from the Chatman apartment, but could not see its door. During the course of their surveillance one of the officers would periodically leave the apartment and make a telephone report from a pay telephone at a service station on the corner to the officer supervising the operation. So far as the police were then aware, there was nobody in apartment No. 4 during the first hours of the surveillance. At about 1:30 A.M. on March 28, they heard voices which indicated to them that about five persons (both male and female) had entered the apartment. About an hour later, one of the males departed. Conversations between a man and two women in the apartment referred to several persons, apparently not present, including a “Howard” and a “Joe.” Joe was the main subject of conversation, and concern was expressed about his failure to show up. Howard was thought by the police to refer to a “bag man” for “Glasses” Jones, a convicted drug dealer who was free on bond, and Joe was believed to refer to petitioner Thomas (known to the police as Patterson), who they had reason to believe was a person responsible for bringing heroin into Omaha. Jones’ car was observed parked in the immediate neighborhood. At about 11 A.M., the officers overheard statements which led them to believe that either Joe or “Glasses” would later deliver the heroin to the apartment, to be mixed, measured into “hits,” packaged, and then bagged. There was conversation and a chopping noise indicating that Dormin was already being prepared for mixing. However, there was then no reason for the officers to believe that either Joe or “Glasses” was in the apartment or that heroin had already been delivered. Testimony at the trial was to the effect that Joe (petitioner Thomas) had brought the heroin to the apartment at noon. The police had no knowledge of this fact. At about 2 P.M., one of the persons in the apartment was overheard to say “Look at all that dope on the table. Let’s get to bagging up.” The reference to “bagging” indicated to police that the heroin had already been cut and packaged in individual square aluminum foil packets, called “hits,” and that the only — 781 — remaining thing to be done was to place a number of “hits” in plastic bags (a procedure which would take a few minutes). Also overheard at that time were scraps of conversation relating to rides, preparatory to the occupants leaving the apartment. At 2:15 P.M., headquarters was notified of the latest development, and shortly thereafter, on the assumption there would be insufficient time to obtain a warrant, the apartment was raided.2 In the ensuing search, heroin in foil packets was found which were used as evidence against petitioners. There can be no question but that police had intended to procure a search warrant. As early as 9 A.M. on March 28, an officer at police headquarters began the preparation of an affidavit on the basis of the information available at that time, including some background information from police files. During the noon hour, a draft of the affidavit was submitted to a staff member of the County Attorney’s office to determine whether the facts set forth justified presenting it to a judge in an effort to obtain a search warrant. The conclusion reached was that a search warrant should not be applied for until there was some evidence to support a reasonable belief that heroin was then in the apartment. However, as we have noted, it was not until the 2 P.M. development that the police for the first time had reason to believe that heroin was actually there, and at that time it also appeared that the heroin had already been mixed with Dormin, divided into “hits” and packaged. To have incorporated this information into the affidavit and then presented it to a magistrate would have taken substantially more than an hour’s time. Confronted with the indications of an impending departure from the apartment, the officer in charge decided that the premises should be entered without waiting for a warrant. Was the warrantless search justified by the presence of “exigent circumstances”? We hold that it was. In none of the morning conversations had there been any direct reference to the presence of drugs, and it was clearly indicated that the occupants were waiting for the later arrival of the person who was to deliver narcotics. The police are not to be faulted for their failure to seek a warrant before 2 P.M. solely on the basis of suspicious circumstances which indicated at most no more than the probability that heroin had recently been in the apartment premises and that at some time in the immediate future more heroin would be brought there and prepared for street sale. The information available to the officers prior to 2 P.M. was not sufficient to support a belief that narcotics were already in the apartment. In our judgment, the police were justified in waiting until additional facts were developed. The situation in this case is wholly unlike that in United States v. Wilcox, D.C.Pa., 357 F.Supp. 514 (1973), in which the officers were in full possession of all probable cause knowledge at least an hour and a half before the warrantless search, and had ample time during that period to have procured a warrant. As the District Court observed, this is not a case where the officers deliberately delayed in order to circumvent the necessity to obtain a warrant (as in Niro v. United States, 388 F.2d 535 (1st Cir. 1968), or where a warrant was not obtained because it would be inconvenient for the police to apply for one (as in United States v. Scheffer, 463 F.2d 567 (5th Cir. 1972). Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948),3 in which the only reason of — 782 — fered for not obtaining a warrant after the officers smelled odors of opium emanating from a hotel room was the “inconvenience to the officers and some slight delay necessary to prepare the papers and present the evidence to a magistrate.” In that case no suspect was likely to take flight nor was there any evidence or contraband threatened with removal from the premises. The good faith of the officers is evident. Even so, the Fourth Amendment mandates that a search without a warrant is impermissible absent the existence of exigent circumstances or some other recognized exception. Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Nieto, 510 F.2d 1118, 1119 (5th Cir. 1975). Cf. United States v. Blake, 484 F.2d 50 (8th Cir. 1973); United States v. Curran, 498 F.2d 30, 35 (9th Cir. 1974); and United States v. Rubin, 474 F.2d 262 (3d Cir. 1973). In our judgment the finding of exigent circumstances is amply supported by the evidence. As the Nebraska Supreme Court observed (220 N.W.2d, l.c. 240): The exigency arose because of the probability of the destruction of the evidence before the warrant could have been obtained. The . officers could not count on the possibility that all the occupants would leave the premises at one time so that they could be arrested en masse outside the premises. If the individuals had left separately the arrest of the first would have alerted those staying behind who then could have rather readily, with the many hands available to do the work, wash the heroin down the sinks and toilet.4 The evidence was safe only so long as the operation remained undetected. Appellants’ reliance on Eng Fung Jem v. United States, 281 F.2d 803 (9th Cir. 1960), is misplaced. That case involved the entry into the defendant’s hotel room at a time when no one was present therein. As the Court there noted, the mere fact that defendant may have been planning to vacate the room and leave town did not justify the warrantless entry, for the reason that the officers could have prevented the destruction or removal of the contraband from the unoccupied room by merely guarding the door pending the procurement of a warrant. Here, there was no way the police could have prevented any of the nine occupants of the apartment from destroying the heroin before a warrant could have been obtained. The orders appealed from are affirmed. Footnotes [1] Four justices of the Supreme Court have expressed the opinion that “federal collateral review of a state prisoner’s Fourth Amendment claims — claims which rarely bear on innocence — should be confined solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts.” See Schneckloth v. Bustamonte, 412 U.S. 218, 249, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973). More recently in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), both the plurality and dissenting opinions mentioned this issue but refrained from considering it solely because it was neither briefed nor argued by the parties. [2] Nine persons in the apartment were arrested. [3] In view of the statement in the dissenting opinion that Johnson controls this case, a few additional comments are apropos: It is, of course obvious, as the officers testified, that there was no danger that the contraband in the apartment would be destroyed as long as they were not discovered. However, it is equally obvious to us that the officers were justified in believing not only that the heroin was soon to be removed but that such removal was imminent, even though those in the apartment had no knowledge of the officers’ presence. Johnson does not involve comparable facts. In Johnson, time was not of the essence, and — 782 — there was no reason to believe that the situation would be any different if the raid was deferred until a warrant was issued. Here, as distinguished from Johnson, the officers had information that long before a warrant could have been obtained (1) the suspects were likely to take flight (i. e. depart from the apartment) and (2) that “the contraband was threatened with removal” from the premises. The heroin had already been prepared and packaged for distribution outside the apartment. Under the facts in this case, to hold that a warrantless search would be justified only “(i)f too many suspects began to leave simultaneously or over a short period of time” (dissenting opinion, page 786), is to ignore reality and place too great a reliance on speculative possibilities. Inasmuch as the evidence clearly warranted the officers’ belief that all of the suspects intended to and would leave either “simultaneously or over a short period of time,” long before a warrant could have been issued, we are convinced the officers were justified in acting upon such reasonable belief. [4] The police had been informed by the landlord that apartment No. 4 had a toilet and other plumbing facilities. [Footnote not in quotation.]