United States v. Morris, 72-2224.

Citation477 F.2d 657
Decision Date21 May 1973
Docket NumberNo. 72-2224.,72-2224.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John England MORRIS, Jr., a/k/a Larry Jackson, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

Robert Glass, New Orleans, La., Court-appointed for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Robert S. Leake, Asst. U. S. Atty., New Orleans, La., Mervyn Hamburg, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 21, 1973.

GEWIN, Circuit Judge:

John England Morris was convicted of possessing a fully automatic rifle that had not been registered to him in the National Firearms Registration and Transfer Record, a violation of 26 U.S.C. §§ 5861(d) and 5871. Morris challenges his conviction on two grounds. He first argues that the evidence against him should have been suppressed because its seizure was incident to an unlawful arrest. His second argument is that as applied to him the registration provisions of the National Firearms Act violate his constitutional privilege against compulsory self-incrimination. We find both of Morris' claims to be without merit and affirm the judgment of the district court.

Early in the morning of November 26, 1970, a bizarre sequence of events unfolded at the Desire Housing Project, a public housing unit owned and operated by the New Orleans Housing Authority. At that time an abscure organization calling itself the National Committee to Combat Fascism (NCCF) was located in the Desire Project at 3315 Desire Parkway, Apartment A. This apartment served not only as the headquarters of NCCF but also as the residence of some, if not all, of its members. The record does not reveal how NCCF's members came to be in possession of the apartment, but it does disclose that the apartment's owner, the New Orleans Housing Authority, considered their presence on the premises unlawful.

In any event on November 26 at 1:20 a. m. a group of New Orleans police officers wearing disguises arrived in the vicinity of Apartment A. Their purpose was to execute warrants for the arrest of Betty Powell and Godthea Cooper, known to be living in Apartment A, and to remove anyone else found on the premises. While three of the officers positioned themselves so that they could not be observed by the apartment's inhabitants, three others attired in clerical dress approached the apartment and knocked on the door. Before receiving any response, they heard the sounds of weapons being loaded and a heavy object being moved in front of the door. Someone then peered out at them through a small peephole, and a voice asked, "Who is it?"

One of the officers identified himself as "Father Coy" and asked to speak with Godthea Cooper. The door was opened, and the officers were confronted by Cooper and another person later identified as Leon Lewis. Betty Powell was observed standing in the background. A conversation ensued during which the officers pretended to be clergymen eager to assist the apartment's occupants in arranging bond for friends of theirs who had been arrested on the preceding day. They attempted to induce Cooper and her friends to leave the apartment and accompany them to the police station.

After some twelve minutes of fruitless persuasion, another officer disguised as a postman appeared and said that he had a letter for one of the apartment's occupants. Leon Lewis came forward to examine the letter. At this time two more officers dressed in civilian clothes emerged from their hiding places and advanced toward the apartment. When Lewis noticed these new arrivals, he apparently recognized them as police officers, for he shouted, "Pigs! Watch out" and began trying to slam the door shut. A commotion erupted as one of the officers announced "Police", another grabbed Cooper, and the rest forced their way into the apartment. As they entered, they were met by outbursts of gunfire which they returned in kind. The gunfight lasted for about a minute until Betty Powell cried out that she had been hit. The occupants of the apartment were ordered to come out with their hands up and upon doing so were placed under arrest. Appellant Morris was found kneeling on the living room floor with an automatic rifle in his hands. Shots had emanated from the position where Morris was found. He was arrested, and the rifle was seized.1

An evaluation of the legality of Morris' arrest and the seizure of his weapon cannot be made without first examining the circumstances which led the police to devise and execute such an elaborate ruse for the arrest of the apartment's inhabitants. On November 18, 1970 Officer Williams of the Police Department had obtained warrants for the arrest of Betty Powell and Godthea Cooper. In a sworn affidavit Williams stated that:

. . . Betty Powell did . . . commit the crime of criminal trespass by the unauthorized and intentional taking possession of the structure known as 3315 Desire Parkway, Apartment A, without the consent of the Housing Authority of New Orleans, the owners of said property, by making application for and paying the deposit of $35.00 for the installation of a phone at 3315 Desire Parkway, Apartment A. The phone was installed by South Central Bell on October 29, 1970. These facts were verified by affiant by checking the records of South Central Bell and the affidavit of the illegal unauthorized entry and taking possession of made by the Chairman of the Board of the Housing Authority of New Orleans." (emphasis added)

In a second affidavit Williams similarly alleged that Godthea Cooper had committed the crime of criminal trespass by occupying Apartment A without the consent of the New Orleans Housing Authority. He knew this because:

"On November 16, 1970 a registered letter was mailed via the U.S. Post Office to the occupant of 3315 Desire Parkway, Apartment A. On November 17, 1970 the letter was received and a receipt was signed by Godthea Cooper, alias Keefie. On November 18, 1970 said receipt was sent to the New Orleans Police Department by the U.S. Post Office. The fact of the illegal possession was verified by an affidavit executed by the Chairman of the Board of the Housing Authority of New Orleans."

On the basis of these two affidavits warrants for the arrest of Powell and Cooper were issued. At the hearing on appellant's motion to suppress, Williams testified that he never did provide the issuing magistrate with a copy of the Housing Authority's complaint and that despite his statement in the Powell affidavit to the contrary, he had never actually seen the affidavit or verified its existence. He stated that at the time the warrants were obtained he had known of the affidavit's existence because he had probably read about it in interoffice correspondence.

Williams, however, did not participate in the execution of these two warrants on the morning of November 26. The officers who did execute the warrants did so upon the instructions of Superintendent Giarusso of the Police Department. He instructed them to go to Apartment A in order to arrest Powell and Cooper and remove anyone else found on the premises. Although the arresting officers were not given the arrest warrants, they were told that warrants had been secured. They were never shown the complaint in which the Housing Authority charged the apartment's occupants with criminal trespass, but they were informed of its existence by the Superintendent of Police and were told that the Police Department had verified the occupancy of the apartment by Powell and Cooper in the manner described in Williams' affidavits. In addition the officers were shown photographs of the two women they were to arrest.

But the information supplied them by Superintendent Giarusso at this preliminary briefing was not the only information concerning Apartment A and its occupants possessed by the officers who forcibly entered it on November 26. On several occasions prior to November 26 some of these same officers had participated in abortive efforts to execute the warrants and clear the apartment of trespassers. They were accompanied by officials from the Housing Authority, the owner of the apartment, who complained that the people living in the apartment were trespassers and who urged the police to remove them. On these visits the police were not disguised, and they attempted to persuade the apartment's inhabitants to leave peaceably. These prior visits resulted in nothing more than hostile confrontations with the apartment's occupants who were armed and who obdurately refused to leave. It was because of the hostile reception they were accorded that the police concocted the very unusual scheme, the successful execution of which on November 26, culminated in the arrest of Morris and the seizure of his automatic rifle.

The critical question in this appeal is whether the police officers' entry into Apartment A was lawful, for, if so, the subsequent seizure of the automatic rifle held in plain view by Morris was undisputedly proper. As the Supreme Court noted in Harris v. United States: "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence."2 In determining the lawfulness of the officers' entrance into Apartment A, the validity of the arrest warrants obtained by Williams must first be considered; if valid, they justify the officers' entrance into the apartment in order to execute them.

Questions as to a warrant's validity ordinarily turn upon whether the affidavit underlying it sets forth facts sufficient to establish probable cause. The statements made in the affidavit are presumed to be true. But at the suppression hearing in this case Officer Williams candidly admitted that a statement made by him in the...

To continue reading

Request your trial
39 cases
  • U.S. v. Gaultney
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 10, 1978
    ...287; 6 United States v. Cushnie, 5 Cir., 1973, 488 F.2d 81, Cert. denied, 419 U.S. 968, 95 S.Ct. 233, 42 L.Ed.2d 184; United States v. Morris, 5 Cir., 1973, 477 F.2d 657. 7 Since Dorman v. United States, 1970, 140 U.S.App.D.C. 313, 435 F.2d 385, sustained the validity of a warrantless arres......
  • United States v. Hall, TY-78-28-CR.
    • United States
    • U.S. District Court — Eastern District of Texas
    • February 9, 1979
    ...not be shown. United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).7 The Fifth Circuit, in United States v. Morris, 477 F.2d 657, 663 (5th Cir.), cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973), held that an arrest was lawful "in spite of the inval......
  • Brown v. U.S. Postal Inspection Serv.
    • United States
    • U.S. District Court — Southern District of Texas
    • August 29, 2016
    ...reliable information would be sufficient to believe that the suspect was committing or had committed an offense. United States v. Morris , 477 F.2d 657, 663 (5th Cir.1973) ; Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). See also Haggerty v. Tex. S. Univ. , 391 F.3d 65......
  • Moon v. Mayor Charles Brown
    • United States
    • U.S. District Court — Middle District of Georgia
    • March 29, 2013
    ...based on information from the plaintiff and the property owner, and this warning was memorialized in a police report); United States v. Morris, 477 F.2d 657 (1973) (finding that officers had probable cause based on some of the officers' prior personal observations of complaints and a briefi......
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...testimony not 5th Amendment violation when prior refusal motivated by fear of future incrimination for different crime); U.S. v. Morris, 477 F.2d 657, 665 (5th Cir. 1973) (compelling f‌irearm registration not 5th Amendment violation when information unusable for prosecution of prior or conc......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT