United States v. Blake

Decision Date12 September 1973
Docket NumberNo. 73-1153.,73-1153.
PartiesUNITED STATES of America, Appellee, v. Ronald BLAKE, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Gerald Cohen, St. Louis, Mo., for appellant.

Jerome J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON, LAY and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

The defendant was indicted for a violation of 21 U.S.C. § 841(a)(1)1 for knowingly and intentionally possessing a controlled substance (14.3 grams of 17.3 per cent pure heroin) with an intention to distribute it. The jury returned a verdict of guilty, and the defendant was sentenced to five years imprisonment and a three year special parole term under 21 U.S.C. § 841, to be served concurrently with a state sentence presently being served by defendant.

The defendant was arrested without a warrant in the course of the officers making an arrest with a warrant of another individual occupying the same premises. On November 30, 1972, Leon Phillips, Kenneth R. Bloemker, and Michael W. Hillebrand, Special Agents with the Bureau of Narcotics and Dangerous Drugs, together with Detectives Lester J. Anderson and Lawrence T. Brewer went to 4242A Clarence, St. Louis, Missouri, with an arrest warrant for Willie Vales for possession and sale of heroin. There is conflicting testimony on whether the agents and officers knew that Vales was living alone or with someone else.

All of the agents and officers, except Bloemker, went to the front door of 4242A Clarence, a four-unit dwelling with separate outside entrances for each unit, in order to serve the arrest warrant. Bloemker proceeded to the rear of the apartment building to cover against any possible escape. Phillips knocked on the front door, identified himself and the purpose for his presence after a voice answered that sounded like the defendant's,2 and forced open the front door when no one allowed entry. In the meantime, Bloemker, standing 15 feet below the rear balcony of the apartment at 4242A Clarence, observed the defendant step out onto the balcony and begin to throw a white change purse over the side. Bloemker identified himself as an officer and ordered the defendant to stop. The defendant ducked and immediately reentered the apartment, still carrying the white purse. As Bloemker proceeded to the front of the apartment building, the other agents and officers had already gone upstairs to Apartment A. Agent Phillips saw Vales on a couch in the living room and the defendant in a hallway between the bedroom and kitchen and next to an open laundry chute. Vales was arrested. Bloemker, who had joined the others by this time, told of the incident at the rear of the apartment and asked the defendant where the purse was. The record does not indicate the defendant's response. The agents and officers then searched the apartment and seized a bottle of quinine, a mirror, a vial of powder, and two playing cards — all used in the preparation of heroin for distribution — in plain view on the kitchen table.

Special Agent Hillebrand saw an unlocked door leading from the kitchen, opened it, and went down a flight of stairs into a dark basement. He saw a white change purse under the only open clothes chute of four in the area and seized it. That clothes chute led to Apartment A upstairs, the residence of Willie Vales. The white change purse was in plain view, and a plastic material was extending approximately 1½ inches outside of the closed purse. After Hillebrand opened the purse and found a plastic bag containing a powdery substance that Hillebrand believed to be a narcotic, the defendant was arrested.

At trial, expert testimony established that the white purse contained 14.3 grams of 17.3 per cent pure heroin and that at this purity it would make 140 ten-dollar bags for "street sale." Further trial testimony revealed that heroin on the street in St. Louis would be sold at about five per cent purity, and that 420 ten-dollar bags or "dime bags" of five per cent purity could be made and sold with the amount of heroin seized from the white purse. The "street" value of the seized heroin, therefore, was $4,200.

The defendant testified that he had never previously seen any of the items seized except the mirror and that he was spending the night in St. Louis with Vales, his first cousin, since he had no transportation to his home in East St. Louis.

The defendant raises two issues on appeal: (a) the purse with its contents was taken in an illegal search and seizure in violation of the Fourth Amendment and was therefore inadmissible, and (b) the evidence was insufficient to prove the defendant had an intention to distribute the seized heroin. We reject both arguments and affirm the conviction.

Search and Seizure Issue. Since the officers and agents did not have a search warrant for the apartment, the search of the basement and the seizure of the white purse must fall within one of "a few specifically established and well-delineated exceptions" to the general rule that searches must be judicially approved. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L. Ed.2d 576 (1967) (footnote omitted); accord, Root v. Gauper, 438 F.2d 361, 363 (8th Cir. 1971).

The facts in this case form one of those exceptions. One of the common sense reasons why Hillebrand proceeded downstairs to the basement was his belief that a white purse probably containing narcotics was underneath the clothes chute. The circumstances were suspicious. Bloemker had seen the defendant ready to toss the white purse from the balcony at the rear of the apartment. After the defendant refused to stop, Bloemker saw him reenter the apartment with the white purse. Phillips saw the defendant in the hallway next to the open clothes chute, and after Bloemker told of the incident on the balcony, the white purse could not be immediately seen. The arrest of Vales and the seizure of the heroin paraphernalia in plain view followed. At this point, one of the practical considerations was to find the white purse that probably contained narcotics. The officers could have obtained a search warrant, however the defendant was not under arrest and could have removed or destroyed the white purse. The delay in obtaining a search warrant could certainly have been fatal.

Therefore, the question is whether the facts in this case constitute an exceptional circumstance that allowed the warrantless search of the basement. Before the search of the basement and seizure of the white purse, the officers did not have probable cause to arrest the defendant. However, the failure to find and seize the white purse would have lead to a situation in which possible "evidence or contraband was threatened with removal or destruction. . . ." Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).

Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971), is factually similar to this case. In Gaines, the defendant was confronted in a hallway of an apartment by officers who had an unconfirmed tip that narcotics were being sold there. The officers had neither a search nor arrest warrant. The defendant tossed a package through the apartment's open door and the police rushed into the open apartment and seized the package, which was later found to contain heroin. The Ninth Circuit upheld the warrantless entry of the apartment on the reasoning that "the package would be destroyed if he the officer did not take immediate action." Gaines v. Craven, supra at 1237. Similarly, the officers in this case had to find the white purse or risk the probability that contraband would be removed or destroyed. Although the officers here did not see the white purse being tossed down the clothes chute, one officer did see the defendant with the white purse when the defendant reentered the apartment from the balcony porch and another officer observed the defendant in front of the open clothes chute. These facts gave rise to probable cause to believe that defendant might have possessed narcotics and constituted an exceptional circumstance or situation that allowed the warrantless search of the basement and seizure of the white purse.

The Supreme Court has not directly discussed the issue of whether the probability that narcotics will be destroyed constitutes an exceptional circumstance allowing a warrantless search. However, in Johnson v. United States, supra, the Court in discussing exceptional circumstances did say in dicta that Johnson did not involve "evidence or contraband that was threatened with removal or destruction. . . ." Johnson v. United States, supra at 15, 68 S.Ct. at 369. Also, in United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951), the Court said in discussing exceptional circumstances that Jeffers did not involve "imminent destruction, removal, or concealment of the property intended to be seized." The reasonable interpretations of these cases lead to the conclusion that narcotics that are threatened with imminent removal or destruction provide an exceptional circumstance justifying a warrantless search.

Nor, do we think that Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), alters this rule. In Vale, the Court again in dicta, said that "the goods ultimately seized were not in the process of destruction." Vale v. Louisiana, supra at 35, 90 S.Ct. at 1972 (citations omitted). Vale may be factually distinguished from this case since it was practical there for the officers to secure a search warrant. Further, it would be imprudent to take the language "in the process of destruction" as a complete description of an exceptional circumstance for this type of narcotics case. First, the quoted language is only a brief comment by the Court that did not apply directly to the facts of that case. Second, to wait until contraband is actually in the process of...

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