U.S. v. Carriger

• Decision Date: 25 August 1976
• Docket Number: No. 74-1901,74-1901
• Citation: 541 F.2d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leland CARRIGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 545

541 F.2d 545

UNITED STATES of America, Plaintiff-Appellee, v. Leland CARRIGER, Defendant-Appellant.

No. 74-1901.

United States Court of Appeals Sixth Circuit.

Argued April 9, 1976.

Decided Aug. 25, 1976.

Wilfred C. Rice, Detroit, Mich., for defendant-appellant.

Frederick S. Van Tiem, U. S. Atty., Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before McCREE and LIVELY, Circuit Judges, and ALLEN, ^* District Judge.

McCREE, Circuit Judge.

This is a direct appeal from a jury conviction upon three counts of an indictment charging violations of the Drug Abuse Prevention and Control Act. 21 U.S.C. § 841(a)(1). The dispositive issue is whether the entry by a government agent, without a search or arrest warrant, into a locked apartment building violated appellant's Fourth Amendment rights. After gaining entry through a locked entrance as workmen were leaving the twelve unit apartment building, of which appellant was a tenant, a federal officer went to the third floor via a stairway and observed what he believed to be an exchange of drugs occurring at the door of one of the apartments. We hold that because the officer did not have probable cause to arrest appellant or his accomplice before he invaded an area where appellant had a legitimate expectation of privacy, the subsequent arrest and seizure of narcotics were invalid.

The relevant facts are as follows. In November and December of 1972 and the early part of January, 1973, agents of the Bureau of Narcotics and Dangerous Drugs were conducting an investigation of Charles Beasley. Undercover agents purchased heroin from Beasley on several occasions. The purpose of the purchases and investigation was to identify Beasley's source. In mid-December, Carriger also became a subject of investigation, but there is no indication in the record that Carriger, at that time, was believed to be Beasley's source.

On January 18, 1973, the day of appellant's arrest, a meeting was held in the Detroit offices of the Bureau of Narcotics and Dangerous Drugs. As the agent-in-charge of the operation testified at the suppression hearing, the purpose of the day's activities was to order a "sufficiently large quantity of heroin from defendant Beasley to force him to go, under agents' surveillance, to his source of supply. And I believed his source of supply to be either defendant Leland Carriger or his brother, Vernon Carriger, or both." When asked what led him to believe that the Carrigers were involved in drug trafficking, the agent testified that Beasley told an informant that he was purchasing narcotics "from two brothers over on the east side of Detroit." The agent also testified that, on some unspecified date before the January 18 raid, an informant accompanied Beasley to the apartment building in which Carriger lived and that Beasley returned with a quantity of narcotics. It is significant that no search warrant was obtained for Carriger's apartment and no arrest warrants were obtained for either Beasley or Carriger before the plan was implemented. It is also significant that the agent-in-charge conceded that before the day of the raid the Government did not have probable cause to arrest Carriger for violation of any narcotics laws. In fact, it did not appear that the agents knew that Carriger was in town before the raid since it was shown that Carriger spent a substantial amount of time in Minnesota and that he had just returned to Detroit from Minnesota on the day before the raid.

As the first step in the execution of the agents' plan, an informant contacted Beasley by telephone shortly before 10:10 on the morning of January 18. The informant was told in the telephone conversation that Beasley "had to go to a source to get the heroin." Agents stationed at Beasley's home watched him leave in his car at approximately 10:10. Surveillance agents traced Beasley to the apartment building at 6106 McClellan which Carriger owned and where he maintained an apartment. Agent Turner was stationed at the apartment building and observed Beasley carrying an empty green shopping bag as he approached the entrance door to the apartment building. Before Beasley arrived at the building, Turner had unsuccessfully tried to gain entry to the building. He discovered that both front and back entrance doors were locked and could only be opened by a key or by someone within activating a buzzer system. Turner attempted to enter the building when Beasley was admitted, but by the time Turner reached the door, it had closed and automatically locked. However, within a few minutes several workmen walked out through the door where Turner was standing, and, before the door closed again, Turner slipped into the building, without permission, and began to search for Beasley.

Unable to locate Beasley immediately, Turner used his portable radio to tell his superiors that he was in the building but had been unable to find Beasley. During the radio transmission, Turner saw Beasley walking down the third floor corridor, with the green bag under his arm. According to Turner, this time the bag appeared to have something in it.

Turner assumed Beasley also saw him making the radio transmission because Beasley started walking quickly down the staircase. A few moments later, Turner observed Beasley at the door of Apartment 303 conversing with Carriger and then saw Beasley give him the green bag. Thereupon both Carriger and Beasley began to walk away from the apartment. Turner then radioed the other officers, told them what had transpired, and went downstairs to open the door to admit them to the building. The officers proceeded directly to Apartment 303 where Turner had observed the suspected drug transaction. After giving notice of their identity and purpose, they forced entry. Neither Carriger nor Beasley was found in the apartment, but an officer saw a clear plastic bag containing a prescription envelope of the type that Beasley had used previously for packaging heroin that was sold to a government informant. The bag and envelope were found to contain heroin. Shortly after the agents broke into the apartment, Carriger returned and was placed under arrest. Beasley, who walked away from the building, was arrested by other agents as he approached his automobile. The shopping bag was discovered behind a carton on a stairwell near Carriger's apartment. The bag contained 89.5 grams of heroin. A search warrant was then obtained, and more heroin was found in two safes in the basement, one in a storage area reserved for all tenants, and one in a separate carpeted, paneled room under the stairway.

The district court suppressed evidence seized from the safe in the paneled room apparently because this location was not part of the open common areas of the building or storage area assigned to Apartment 303. The court determined that the agents should not have entered that room. However, the district judge refused to suppress either the plastic bag found in the apartment or the shopping bag found behind a carton on the stairwell. The district court held that the agent's entry into the building and his search for Beasley in the common areas of the building did not violate defendant's reasonable expectation of privacy. Accordingly, the court believed that no violation of Carriger's Fourth Amendment rights had occurred. The court reasoned that the agent who saw Beasley in the corridor carrying a bag that "contained something," and then observed Beasley transfer the bag to Carriger at the door leading to the latter's apartment, had probable cause to believe that Carriger was committing a felony. Accordingly, the agents had authority to force entry into the apartment and to seize the plastic bag found in "plain view." The seizure of the shopping bag from behind the carton in the stairwell did not violate Carriger's Fourth Amendment rights because, like the agent's entry into the building's common areas, there could be no reasonable expectation of privacy in the building stairwell.

In refusing to suppress the evidence found in the apartment building, the district court relied upon United States v. Wilkes, 451 F.2d 938 (2nd Cir. 1971); United States v. Conti, 361 F.2d 153 (2nd Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); United States v. Miguel, 340 F.2d 812 (2d Cir. 1965).

The Government relies upon the same cases on appeal and contends that they stand for the proposition that where an officer's entry into the common areas of an apartment building is peaceable, there is no infringement upon the tenant's Fourth Amendment rights.

In Miguel, the court held that the lobby of a high-rise apartment building where the officers arrested defendant was not within the defendant's curtilage. In that case the officers entered the lobby when the entrance door was opened by a woman leaving the building. In Conti, evidence constituting probable cause was obtained by keeping the apartment under surveillance from inside a hallway door. The apartment building had a hall door which was meant to be kept locked, but there was testimony that the door was often open, and even if closed, its lock was broken and could be opened by almost any key. The court held that the peaceable entry, although perhaps a technical trespass, did not vitiate the surveillance evidence tending to establish probable cause. Wilkes, the only one of these cases decided after Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), involved an unlocked building and surveillance outside an apartment door where the agents heard a male voice shouting, "I don't sell sell bundles at a discount." The court determined that the previous decisions in Conti and Miguel foreclosed appellant's contention that such surveillance violated the Fourth Amendment.

Our Circuit has not yet considered the issue whether a tenant in an apartment building has a reasonable expectation of privacy in the...