U.S. v. Williams

• Decision Date: 05 December 1980
• Docket Number: No. 80-1357,80-1357
• Parties: UNITED STATES of America, Appellee, v. Jerry Alvin WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 742

633 F.2d 742

UNITED STATES of America, Appellee, v. Jerry Alvin WILLIAMS, Appellant.

No. 80-1357.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1980.

Decided Oct. 31, 1980.

Rehearing and Rehearing En Banc Denied Dec. 5, 1980.

Stroup, Goldstein, Jenkins & Pritzker, Michael L. Pritzker, R. Brent Daniel, Chicago, Ill., for appellant.

Thomas K. Berg, U. S. Atty., Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and PORTER, ^* District Judge.

LAY, Chief Judge.

Jerry A. Williams was convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and sentenced to five years in prison and a three year special parole term. He appeals, alleging first, that his Fourth Amendment rights were violated when officers entered his house without a warrant and arrested him and several other individuals; and second, that a subsequently issued search warrant was vague and lacked probable cause. We disagree and affirm the conviction.

In June, 1979, John Gill contacted Holly Thorvig, who faced likely imprisonment on federal drug charges, and requested that Thorvig "sell" him her cocaine source. Thorvig, acting in cooperation with the Drug Enforcement Agency (DEA), introduced Gill to DEA Agents Curtis Workman and Ronald Tomcik, and identified them as her source. Gill and the agents negotiated a sale of cocaine to occur on July 8, 1979.

Tomcik planned to sell Gill a white, powdery cocaine-like substance prepared by a DEA laboratory. On Sunday, July 8, Gill and Thorvig met Tomcik at the Minneapolis-St. Paul International Airport, where they discussed the sale and agreed that Thorvig would go with Gill to see the purchase money while Tomcik waited at the airport. Gill told Tomcik that two other individuals were involved in the transaction. DEA agents had the airport area under surveillance and were prepared to arrest Gill when the money was exchanged for the fake cocaine.

Gill and Thorvig left the airport and met an associate of Gill's, John Fogarty. The three of them drove to a four-plex in Eagan, Minnesota in which the defendant, Jerry Williams, resided. Fogarty and Thorvig went in and a man called "Willie," subsequently identified as Williams, participated in displaying the purchase money to Thorvig. An agent saw Fogarty and Thorvig leave the four-plex, and noticed they were apparently speaking to a person or persons inside as they left. They returned to the airport, where Gill and Thorvig met with Tomcik. Upon Gill's insistence that the cocaine be tested prior to the completion of the sale, Tomcik put a briefcase full of the fake cocaine into the trunk of Thorvig's car. Thorvig and Fogarty then drove away, leaving Gill with Tomcik at the airport.

DEA agents conducting the airport surveillance had expected to make the arrest at the airport, and were unprepared for this turn of events. They ran to their cars and attempted to catch Thorvig's car, but were unable to do so. Acting on information obtained in surveillance of Gill's and Thorvig's travels earlier in the day, they drove to the four-plex in Eagan, where they found Thorvig's car parked. They were joined there by uniformed police from the Eagan police force.

Agents went to Williams' front door, a sliding glass door and a basement level door. Agent Workman, at the glass door, identified himself and requested entry; a woman inside opened the screen, and Workman and other officers entered. Some officers entered through the other doors and all the occupants of Williams' residence were arrested. Williams was found in the basement with Fogarty.

Agent Workman then left to obtain a search warrant. He submitted an affidavit relating the events discussed above, and the magistrate issued a warrant authorizing a search of Williams' residence for money, bogus cocaine, weighing and packaging materials and various documents and records. During the search the agents discovered the genuine cocaine upon which Williams' conviction is based.

Warrantless Entry and Arrest

Williams argues that the warrantless entry to arrest the occupants of his house violated the Fourth Amendment. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) the Supreme Court concluded that "the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Id. at 1374-75. See also United States v. Houle, 603 F.2d 1297 (8th Cir. 1979). The searches in Payton occurred in the absence of any exigent circumstances, and the court reserved judgment as to what circumstances, if any, might otherwise justify a warrantless entry. Payton v. New York, 100 S.Ct. at 1378. The defendant recognizes that a warrantless entry to arrest may be justified where exigent circumstances exist. See United States v. Kulcsar, 586 F.2d 1283, 1286 (8th Cir. 1978); United States v. Easter, 552 F.2d 230, 233-34 (8th Cir.), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Salvador v. United States, 505 F.2d 1348, 1351-52 (8th Cir. 1974). Cf. United States v. Williams, 604 F.2d 1102, 1122-23 (8th Cir. 1979) (sound of "running feet" insufficient exigency); United States v. Houle, 603 F.2d 1297, 1300 (8th Cir. 1979) (defendant alone and asleep over four hours after disturbance).

The fundamental issue posed is whether factual circumstances demonstrate a sufficient basis for the officers to make a warrantless entry. The magistrate found the circumstances justified a warrantless entry by the officers by reason of their fear for the safety of their informant, Holly Thorvig. The test of the fake cocaine was imminent. The magistrate found that it was reasonable for the officers to assume once the fake cocaine was discovered it would have exposed Thorvig as a police informant and placed her safety in jeopardy. We agree. DEA Agent Workman testified he was aware Gill had been violent to Thorvig on a past occasion; viewed objectively, it was not unreasonable for the officers to fear harm to Thorvig from Gill's associates under these circumstances. ¹ When there is a reasonable fear of harm, a warrantless entry may be justified. See United States v. Weaklem, 517 F.2d 70, 72 (9th Cir. 1975) (fear for safety of undercover agents, who had been threatened previously); United States v. Bradley, 455 F.2d 1181, 1187 (1st Cir. 1972) (delay to obtain warrant could increase danger to officers making undercover drug purchase), aff'd, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). See generally 2 W. LaFave, Search & Seizure § 6.1 at 394 (1978). Accordingly, we find that exigent circumstances justified the warrantless entry into Williams' residence. ²

Williams also argues that his Fourth Amendment rights were violated since there was no probable cause for his warrantless arrest. We need not decide whether there was probable cause for Williams' arrest since no evidence was obtained incident to that arrest. Williams' conviction rests on cocaine seized during the later search pursuant to a warrant. The warrant was based on an affidavit that established probable cause to search Williams' home based on information gathered during the surveillance and undercover operations. The affidavit contained little or no information gathered in the alleged illegal arrest. ³ As such, this evidence was not the fruit of any illegal arrest by the agents and was not subject to the exclusionary rule set forth in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Wong Sun recognized that the issue is whether "the evidence has been come at by exploitation of illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. at 488, 83 S.Ct. at 417 (quoting Maguire, Evidence of Guilt 221 (1959)). Numerous courts have concluded that when a search warrant is based partially on tainted evidence and partially on evidence arising from independent sources, "(i)f the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant apart from the tainted information, the evidence seized pursuant to the warrant is admitted." James v. United States, 418 F.2d 1150, 1152 (D.C.Cir.1969) (Leventhal, J.) (footnote omitted). See also United States v. Giordano, 416 U.S. 505, 554-56, 94 S.Ct. 1820, 1845-46, 40 L.Ed.2d 341 (1974) (Powell, J., concurring and dissenting); United States v. House, 604 F.2d 1135, 1143 (8th Cir. 1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Koonce, 485 F.2d 374, 379 (8th Cir. 1973); United States v. Korman, 614 F.2d 541, 547 (6th Cir.), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980); United States v. Saitta, 612 F.2d 205, (5th Cir.), cert. denied, 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 263 (1980); United States v. Marchand, 564 F.2d 983, 992-95 (2d Cir. 1977) (Friendly, J.), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); ...