Burks v. United States

• Decision Date: 01 February 1961
• Docket Number: No. 16947.,16947.
• Parties: Oby BURKS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.2d 117 (1961)

Oby BURKS, Appellant, v. UNITED STATES of America, Appellee.

No. 16947.

United States Court of Appeals Ninth Circuit.

February 1, 1961.

Morris Lavine, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Timothy M. Thornton, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Appellant was one of twenty individuals indicted for conspiracy (18 U.S.C. § 371) (a) to accept wagers; (b) to evade the wagering occupational tax (26 U.S.C. § 4411); and (c) to evade the excise tax imposed by 26 U.S.C. § 4401, in violation of 26 U.S.C. § 7201.

The objects of the conspiracy alleged in Count I were to be accomplished through the conducting of a wagering pool or lottery commonly known as the "numbers." Defendant Oby Burks was the alleged "banker"; defendant Florence Wilson was the alleged "bookkeeper"; and the eighteen other defendants were allegedly "writers", i. e., individuals who would accept bets from betters, deduct the writer's commission, pay the "receipts" to the "bank" and deliver "winnings" from the "bank" to the betters. The overt acts charged in Count I were that defendant Burks arranged a credit card charge account for his various writers, and that they severally charged gasoline to those accounts. Burks was acquitted on this count, and convicted in substantive Counts II, III, IV, V and VI.

In Count II, defendant Oby Burks was charged with conducting a wagering pool and lottery in February 1959 in Los Angeles, California, and in failing to pay an excise tax of ten per cent on said wagers before March 31, 1959, in violation of 26 U.S.C. § 4401, and in wilfully and knowingly attempting to evade the payment of the taxes so due, a felony (26 U.S.C. § 7201). The other defendants were named as aiders and abettors, and hence principals. 18 U.S.C. § 2. Thus a felony was charged against all.

Counts III and IV made the same charge with respect to the months of March and April 1959.

Count V charged that between January 1, 1959, and June 12, 1959, all defendants were conducting a wagering pool and lottery, and hence were required to register with and supply information to the Internal Revenue District Office in Los Angeles (26 U.S.C. § 4412), and wilfully failed so to register and to supply such information (26 U.S.C. § 7203).

Count VI charged that in that same period, appellant engaged in the same business activities without paying the special tax (26 U.S.C. § 4411), in violation of 26 U.S.C. § 7262.

Appellant's first and his primary point urged on this appeal, is that the evidence introduced against him was obtained through a search and seizure violative of the Fourth and Fifth Amendments to the Constitution of the United States. The arrest was made by state officers in cooperation with federal officers. As appellee states in its brief: "There is no question but that there was federal participation in the arrest and subsequent search by a federal agent."

Admittedly, no search warrant was issued and we need not, therefore, consider the requirements for the issuance of search warrants. But not every search without a warrant is unlawful; it has long been recognized that where there exists a lawful arrest, a reasonable search incidental to such arrest requires no warrant, and no oath or affirmation of facts sufficient to support its issuance. Thus the government seeks to justify the search herein, on the ground that it was incidental to a lawful arrest. See Abel v. United States, 1960, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; People v. Tahtinen, 1958, 50 Cal.2d 127, 323 P.2d 442, certiorari denied 358 U.S. 853, 79 S.Ct. 85, 3 L.Ed.2d 88.

We turn, then, to a consideration of the arrest made here, and the circumstances surrounding it. As the Supreme Court said in Rios v. United States, 1960, 364 U.S. 253, at page 255, 80 S.Ct. 1431, at page 1433, 4 L.Ed.2d 1688, "resolution of the question of the lawfulness of the arrest requires a particularized evaluation of the conduct of the officers involved." Thereafter we shall consider the legal principles which determine whether the arrest was lawful. With regard to the circumstances of the arrest here involved, we adopt generally the statement of facts as related by appellee.

Officer Willis J. Gough of the Los Angeles Police Department had spent six years in the Administrative Vice Division of the department specializing in policy and numbers. He had participated in over a hundred cases and had testified in State of California courts as well as federal courts on his specialty. He had spent five months on the Burks case and the three months immediately preceding the arrest were spent entirely on the Burks case, conducting surveillance of what were referred to as "floating drops." Paul Duncan of the Los Angeles Police Department who participated in the arrest has been a police officer for eight years and had spent three years in the Administrative Vice Division specializing in bookmaking and lottery. He had worked several hundred cases and had testified in Municipal and Superior Courts of the State of California and in the United States District Court on his specialty. He had been working on the Oby Burks case five months jointly with federal officers. The "floating drops" which the police officers and Special Agent Arthur S. Katayama of the Internal Revenue Service had under surveillance were located at different periods of time in an apartment building in the 1300 block on West Vernon; 2286 West 22nd Street; 1475 West Adams; 1310 South Wilton Place; and 1541 South Western Avenue, all in the County of Los Angeles. The officers had the location at South Wilton Place under surveillance for approximately four days prior to the arrest. They had located the "drop" at 1541 South Western by tracing the telephone number of Oby Burks, which had been transferred from 1475 West Adams to the location at 1541 South Western, apartment 10, the scene of the arrest.

The automobile of Oby Burks was seen on several occasions at the South Wilton Place "drop" and the Western Avenue "drop." Through a check with the Department of Motor Vehicles it was learned that the 1959 Chevrolet bearing Registration Number RWP-993 was registered to Oby Burks and Florence Wilson, a co-defendant.

Surveillance was conducted at several of the "floating drops" mentioned before, during the five month period. A "drop" was defined as a location where the writers bring the wagers on numbers and leave the wagers there with the money collected. During the surveillance of the drops, the officers observed a number of cars and a number of people appearing. They parked in front or across the street, and would go into the building and stay for short periods of time and then return to their cars and leave. Generally these transactions took place prior to the post time of the third race, at approximately 1:30 P.M. When the people entered the various apartments they would remain for short periods of time, perhaps two or three minutes or five at the most, and then return and drive away.

On June 12, 1959, the day of the arrest, surveillance commenced at approximately 7:00 A.M. After having apartment 10 at 1541 South Western under surveillance for approximately two hours, the officers observed Charles Brown drive his vehicle to the location, enter apartment 10, leave shortly thereafter, and drive away. Charles Brown, a co-defendant, was known to the police as a "numbers writer."

After Brown had left the area, the two police officers and the Special Agent of the Internal Revenue Service proceeded to apartment 10. Upon arriving at the door they were able to look through the venetian blinds which were tilted slightly, giving them a view of Burks seated on a couch in front of the window. Mr. Burks had a telephone in his left hand which was up to his ear and with his right hand he had a pencil and he appeared to be writing on paper on a coffee table in front of him. On the table was a green card, approximately an inch and three-quarters by two and one-half or three inches in size, and on it were printed numbers. There were other papers also lying on the desk in front of Burks. As Officer Duncan looked through the window he was able to observe several different cards or group of cards which showed the operation of the numbers game in that it showed the "cuts" in the numbers or the odds given on the numbers. In addition, to the left of the cards referred to were pieces of paper with notations which, in the opinion of the officer, were wagers on numbers. From his position outside the window the officer saw a piece of paper that contained the notation "C-24" and below that "260-1.00". There was a small manila envelope, lying on a small table with a lamp near the window. In the upper right hand corner of this manila envelope was the notation "C-24".

Officer Paul Duncan explained that the notification slips on the coffee table were slips put out by a banker in the numbers business to show which numbers were being reduced in the odds that were being paid. The papers which Officer Duncan referred to were marked Plaintiff's Exhibits 8 and 9 for identification upon the motion to suppress and were subsequently admitted into evidence. Based on his opinion as an expert in the field of the numbers game, Officer Duncan testified that the markings of Plaintiff's Exhibit 8, "C-24", referred to the identification of the writer or controller. The "260" was the number wagered on, and the "1.00" indicated a $1.00 wager was made on number 260. The officer further explained that the use of a number "C-24" is common practice to indicate the person who picks up the wager in the operation. The "C" would generally represent a controller as opposed to, for example, an "R" number which would represent a route. Upon observing the above, the...