U.S. v. Jones

• Decision Date: 18 July 1975
• Docket Number: No. 74-1754,74-1754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lucille JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 384

518 F.2d 384

UNITED STATES of America, Plaintiff-Appellee, v. Lucille JONES, Defendant-Appellant.

No. 74-1754.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1975.

Decided June 25, 1975.

Rehearing and Rehearing En Banc Denied July 18, 1975.

Sam Adam, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gary L. Starkman and David A. McGuire, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, CUMMINGS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The primary issues on this appeal are whether the district court erred in determining that there existed an adequate basis for the issuance of a search warrant and that the execution of that warrant and the items seized were proper.

I

The defendant-appellant Lucille Jones was named together with Michael Thigpen in Counts I and VIII of an eleven-count indictment. Count I charged a conspiracy to possess and distribute heroin and cocaine in violation of 21 U.S.C. § 846 and Count VIII charged the use of a communication facility to facilitate the distribution of heroin and cocaine in violation of 21 U.S.C. § 843(b). Since the defendant makes a sufficiency of the evidence claim, we set out the evidence against the defendant in some detail.

On June 12, 1973, Special Agent Lester Scotti of the Drug Enforcement Administration (DEA) obtained pre-recorded government funds and along with a government informant went to the apartment of Michael Thigpen. After negotiating a price for cocaine, Thigpen left to go to his source and returned shortly thereafter and sold Agent Scotti approximately 9.74 grams of a substance containing cocaine for $450.

On June 27, 1973, Agent Scotti telephoned Thigpen at approximately 12:30 p. m. and discussed a possible purchase of an ounce of cocaine. Thigpen told Scotti he did not have an ounce, but that he could get it from his aunt. Approximately fifteen minutes later DEA agents observed Thigpen leave his apartment and go to Jones' residence. They observed that during this time Jones' car was parked nearby. Shortly thereafter Thigpen returned to his apartment where Agent Scotti was waiting for him and where Scotti paid Thigpen $1,150 in pre-recorded government funds in exchange for 25.73 grams of a substance containing cocaine.

On July 2, 1973, Thigpen told Agent Scotti over the telephone that his aunt had a quantity of heroin. The next day after Scotti complained that the price was too high Thigpen called his aunt and said, "Hello Lu, this is Michael, Scotti is here with me and he is hollering about the price. He wants to talk to you." Scotti then took the telephone and said, "Hello Lu, this is Scotti" to which the reply was "I know." After discussing possible future transactions on the telephone, Scotti told Thigpen to go over to his Aunt Lu's house and pick up an ounce of cocaine, and that he should call him from there to settle the price.

Thigpen left the apartment and was observed by two agents to enter the defendant's apartment at approximately 12:45 p. m. At approximately 1:00 p. m. Agent Scotti received a telephone call from Thigpen who said he was at his aunt's house. Scotti, according to his testimony, talked with the same woman he had previously spoken with, and settled on a price. Agent Adams testified that at approximately 1:10 p. m. he observed the defendant on the second floor landing by her apartment, conversing with Thigpen. Shortly thereafter Thigpen returned to his apartment and in exchange for $2,500 in pre-recorded official advance funds gave to Agent Scotti approximately 28.39 grams of a substance containing cocaine and approximately 22.37 grams of a substance containing heroin.

Finally, on July 10, 1973, Agent Scotti went to Thigpen's apartment to make another purchase. At 1:20 p. m. Thigpen left the apartment. At 1:00 p. m. defendant Jones was observed leaving her home. A short while later Thigpen's and Jones' automobiles were observed parked together several blocks from Thigpen's residence. Thigpen returned to his apartment and then went out again supposedly to pick up the heroin and cocaine "from his wife." Upon returning for the second time Thigpen delivered four cellophane packets of narcotic substances, and was then placed under arrest by Agent Scotti. ¹

Scotti and other agents than proceeded to the home of defendant Jones, and in the company of Chicago police officers and pursuant to a state-issued warrant searched the premises. No narcotics were found, but the agents seized a piece of paper with the name and unlisted home telephone number of Agent Scotti in the handwriting of defendant Jones. Also seized was approximately $2,000 of United States currency, $800 of which was later found to be pre-recorded government funds which Scotti had used to purchase narcotics from Thigpen. ² In a bench trial the district judge, after denying defendant's motion to quash the warrant and to suppress the fruits of the search, found Jones guilty as charged and imposed a two-year sentence of imprisonment to be followed by a mandatory three-year parole term. Defendant appeals her conviction.

II

Defendant in the court below argued that the issuance of the state warrant was improper. She alleged that the warrant was obtained through the perjured averments of the state officer. The officer stated in his affidavit that he had been told by a reliable informant that the defendant had sold him a packet of heroin. Defendant on appeal claims that, having filed an affidavit in support of her charge, she should have been accorded a hearing pursuant to United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

The government contends that in fact a hearing was held and that defendant did not seek to prove the charges made in her affidavit. We have examined the record and it shows that after the defendant testified at the motion to suppress hearing the following occurred:

The Court: You may be excused. Call your next.

Mr. Levin (defense counsel): Your Honor that concludes our presentation.

The Court: That concludes the evidentiary presentation in the motion to quash the search warrant?

Mr. Levin: Yes, it would, your Honor as far as the defendant is concerned.

A short while later, the following occurred:

The Court: . . . do you propose to put on evidence?

Mr. Burns (government counsel): As to the motion to suppress?

The Court: Yes.

Mr. Burns: No, I do not think it is necessary. I can put Officer Brown on, but it is a question as to what is described on the face of the warrant and what was actually seized.

Thus, the defendant never called Officer Brown nor did it request the government do so even when the government indicated it was prepared to make him available. The fact that the defendant filed a verified affidavit alleging that perjurious material was used in gaining the warrant, does not replace the need for defense counsel to make demands at the appropriate time for the witnesses it desires. Given these circumstances, the district judge made a sufficient inquiry concerning the defendant's motion to quash the warrant and suppress evidence, and properly denied the motion. ³

III

Defendant next contends that federal agents could not conduct a search and subsequently seize materials from her premises on the authority of the state-issued search warrant. ⁴ She argues that federal agents engaged in this practice solely because they had insufficient evidence against her to obtain their own warrant.

The mere fact that federal agents accompanied state officers named in the warrant to the premises and participated in the search does not in and of itself require evidence seized to be suppressed. This is neither a case where evidence was seized pursuant to procedures that violated Illinois law and then sought to be used in federal court nor one where the federal agents were looking for evidence of a crime substantially different from the one which state officials were concerned with and for which the warrant issued. Both the local police and federal agents legitimately searched for narcotics and narcotics paraphernalia, the possession or distribution of which violated the laws of each sovereign. The district judge was correct in refusing to grant the motion to suppress evidence on this ground. See generally United States v. Harrington, 504 F.2d 130 (7th Cir. 1974); United States v. Sellers, 483 F.2d 37 (5th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974); Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66 (1953).

IV

Defendant's final contention with regard to the search warrant is that the articles seized were not adequately described in the warrant and therefore the seizure exceeded the scope of the warrant and the articles should have been suppressed. The warrant authorized the seizure of "heroin, a controlled substance and all narcotic paraphernalia (hypodermic needles)."

The defendant has not argued that the scope of the search was too broad, but rather that the seizure was excessive. What this court said in United States v. Zeidman, 444 F.2d 1051 (7th Cir. 1971), is applicable to the present case.

In the case before us we do not have a situation where the officers were going out of the area prescribed. . . . A search warrant was regularly and properly issued and with specificity set forth the area to be searched. . . . This was not a rummaging or general exploratory search. . . . While a search must be reasonable under the Fourth Amendment, there were no aspects of unreasonableness in the search presently involved. The narrow question we have here is when a lawful and reasonable search is involved, what objects may be validly seized.

Id. at 1054.

In answering the question of what articles may be seized the Supreme Court's holding in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is instructive. After first deciding that the warrantless search involved and the scope of the search were...