U.S. v. Ressler

• Decision Date: 11 June 1976
• Docket Number: 75-1875,Nos. 75-1857,s. 75-1857
• Citation: 536 F.2d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Joseph RESSLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Danny Franklin JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 208

536 F.2d 208

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Joseph RESSLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Danny Franklin JOHNSON, Defendant-Appellant.

Nos. 75-1857, 75-1875.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1976.

Decided June 11, 1976.

John F. Surbeck, Jr., Daniel A. Roby, Fort Wayne, Ind., for defendants-appellants.

John R. Wilks, U. S. Atty., Charles F. Leonard, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Before PELL and BAUER, Circuit Judges, and PERRY, Senior District Judge. ^*

BAUER, Circuit Judge.

These two appeals from convictions under 18 U.S.C. App. § 1202(a)(1) ¹ for the receipt, possession or transport in commerce of firearms by a felon present two principal issues: the legality of a search initiated by a deceptive entry into the suspects' home and the propriety of jury instructions regarding the interstate commerce nexus required for a conviction under 18 U.S.C. App. § 1202(a)(1).

I.

In early March, 1975, Special Agent Raymond Lewis of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, received information that Clarence Ressler and an individual known as "D.J.", residents of Fort Wayne, Indiana, were convicted felons in possession of firearms in violation of federal law. His source being of unproved reliability, Agent Lewis sought to verify the information through an undercover investigation. He obtained the assistance of Indiana State Police Officers Charles Hampshire and Louis Cinko to conduct the investigation.

At approximately 11:40 p. m. on April 3, 1975, Officers Hampshire and Cinko and a confidential informant known by the suspects knocked on the door of the petitioners' residence in Fort Wayne. A woman answered and admitted them after they told her they wanted to see "Cory." "Cory" is a nickname for Clarence Ressler. The petitioners and three other persons were inside.

After entering, Officer Hampshire told the petitioners and the others that he had heard they were interested in buying some firearms and that he had some to sell. The residents requested to see the guns. Hampshire displayed several handguns he was carrying. One of the residents offered cash for the guns, which Hampshire refused. Hampshire then suggested that he might trade them for "long weapons", i. e., rifles and shotguns. In response, petitioner Ressler left the room and returned with a .12 gauge double-barreled shotgun. Hampshire noted the name and last two serial numbers on the gun.

At one point during the conversation, while Hampshire and the residents were discussing the ease with which handguns could be concealed, petitioner Johnson removed a .9 mm., .38 caliber pistol from under his jacket. Hampshire was able to see the notation "P-38" on its side. The officers left the residence about 12:30 a. m.

On April 5, two Fort Wayne police officers recovered a pistol at a tavern from a booth in which Johnson had been sitting. The Fort Wayne police later arrested Johnson and found him to be carrying ammunition for the gun. At trial, Officer Hampshire identified the pistol as being the one with the "P-38" notation displayed to him by Johnson at the petitioners' home.

Relying principally on the information obtained by Officer Hampshire on the night of April 3, Agent Lewis obtained a warrant to search the petitioners' home. On April 7 he executed the warrant and confiscated the shotgun Ressler tried to sell to Hampshire, a World War II Japanese rifle, and some shotgun shells.

Ressler was indicted and convicted under 18 U.S.C. App. § 1202(a)(1) for receiving, possessing and transporting in commerce the shotgun. Johnson was indicted and convicted under 18 U.S.C. App. § 1202(a)(1) for receiving, possessing and transporting in commerce the pistol and Japanese rifle. Their trials were separate and their appeals were argued separately. Since the issues on appeal are similar, we will discuss them in one opinion.

II.

Both petitioners claim that the firearms seized in the search of the petitioners' home on April 7, pursuant to the warrant based on information obtained in the April 3 entry into the petitioners' home, and the testimony of the officers regarding the April 3 entry should not have been admitted at trial since the April 3 entry was an illegal search.

The main thrust of petitioners' argument is that the officers violated the petitioners' Fourth Amendment rights by obtaining entry into their home through the ruse of asking for petitioner Ressler by his nickname.

Recognizing that the Supreme Court in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), sanctioned police investigations conducted by undercover agents who enter the homes of suspects to purchase contraband, the petitioners attempt to distinguish that case on the ground that the officers in the case at hand were not invited into the home of the suspects for the express purpose of engaging in an illegal transaction as was the officer in Lewis. They argue that the invitation to engage in an illegal transaction was the foundation for the Lewis decision and that the absence of such an invitation here renders the entry illegal, despite the later engagement in illegal transactions.

We do not read Lewis so narrowly. In our view, the rationale of the decision is that an entry by an undercover agent is not illegal if he entered for the "very purposes contemplated by the occupant". Id., 385 U.S. at 211, 87 S.Ct. at 427. See also Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Phillips, 497 F.2d 1131, 1135 (9th Cir. 1974); McCormick, Handbook of the Law of Evidence (2d ed.) at 405.

When an agent assumes a particular pose in order to gain entry into certain premises and then obtains information by engaging in activity not generally expected of one assuming that pose, that information is illegally obtained. Thus, an agent may not enter a premises as an acquaintance of the owner and conduct an unauthorized general search of the premises. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). Nor may an agent compel his entry into a suspect's premises to conduct a search by claiming to be a police officer investigating a non-existent burglary, United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); a Western Union agent, Gatewood v. United States, 93 U.S.App.D.C. 226, 209 F.2d 789 (1953); or a member of a private lodge, Fraternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932).

In these cases the agents were not present for the "very purposes contemplated by the occupant". The suspect in such situations did not voluntarily consent to the exposure of the information, but exposed it in response to an affirmative misrepresentation. Accordingly, the information obtained was not "knowingly exposed to the public", Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), nor did the suspect knowingly assume the risk that the exposed information might be reported to government authorities. See United States v. Miller, --- U.S. ----, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).

Under this reading of Lewis, the initial entry by the agents in the case at hand did not violate the defendants' Fourth Amendment rights since the agents did not engage in any conduct not contemplated by the residents when they consented to their entry. They merely entered the house and stood in the front room in the presence of the residents as would anyone admitted.

While the agents' reference to "Cory", Ressler's nickname, can be perceived as a misrepresentation by the agents that they were acquaintances of Ressler, entry gained through such a representation was held to be permissible under the Fourth Amendment in the only federal case on point which we have found, Whiting v. United States, 321 F.2d 72 (1st Cir. 1963).

We agree with the Whiting decision since a suspect cannot be considered to have unknowingly exposed information to an agent in such a situation. A person is expected to recognize his acquaintances and any information revealed to one who claims to be an acquaintance, but who in fact is not one, must be viewed as exposed at the suspect's risk. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Furthermore, the type of misrepresentation here involves less deception on the part of the agent than the misrepresentations sanctioned in Lewis and in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), where the agents obtained information by appearing to be participants in illegal transactions.

Once the agents entered the house they brought up the subject of selling firearms. At that time the defendants became aware of the agents' purported purpose in being present. They then could have told the agents that they were not interested in dealing in firearms and asked them to leave, or they could have responded to the agents by engaging in the illegal activity. The defendants took the latter course by asking to see the agents' firearms and displaying their own weapons. Through these actions they acquiesced in the presence of the agents for the purpose of dealing in firearms and converted their home into a "commercial center" not protected by the Fourth Amendment. Lewis v. United States, supra, 385 U.S. at 211, 87 S.Ct. 424. As in Lewis, the agents did not violate the suspects' Fourth Amendment rights since they did not "see, hear, or take anything that was not contemplated, and in fact intended, by petitioner(s) as a necessary part of (their) illegal business." Lewis v. United States, Id. at 210, 87 S.Ct. at 427.

Petitioners' second argument for distinguishing Lewis is that the agents in the case at hand, unlike the agent in Lewis, did not have the requisite probable cause to support the issuance of a search warrant. 385 U.S. at 208, n. 4, 87 S.Ct. 424. This argument is of no merit since the...