Metros v. United States District Court for Dist. of Colo.

• Decision Date: 23 April 1971
• Docket Number: No. 432-70.,432-70.
• Citation: 441 F.2d 313
• Parties: Steve METROS, T. E. Coogan, Michael Dowd, et al., Petitioners, v. The UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO, William E. Doyle, one of the Judges thereof, and Robert L. Schoengarth, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

441 F.2d 313 (1970)

Steve METROS, T. E. Coogan, Michael Dowd, et al., Petitioners, v. The UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO, William E. Doyle, one of the Judges thereof, and Robert L. Schoengarth, Respondents.

No. 432-70.

United States Court of Appeals, Tenth Circuit.

December 23, 1970.

Rehearing Denied April 23, 1971.

Wesley H. Doan, Denver, Colo. (Joseph N. Lilly, Denver, Colo., with him on the brief), for petitioners.

William M. Cohen, Boulder, Colo. (Legal Aid and Defender Program, Boulder, Colorado, with him on the brief), for respondents.

Thomas P. Casey, Deputy Dist. Atty. (Duke W. Dunbar, Atty. Gen. of Colo., John P. Moore, Deputy Atty. Gen., George E. DeRoos and Eugene C. Cavaliere, Asst. Attys. Gen., James D. McKevitt, Dist. Atty., Second Judicial District, Gregory A. Mueller, Asst. Dist. Atty., Jarvis W. Seccombe, Chief Deputy Dist. Atty., Max P. Zall, City Atty., City and County of Denver, James H. Snyder, and Gerald Himelgrin, Asst. City Atty., with him on the brief), as amicus curiae.

Brief submitted by George A. Aucoin, Denver, Colo., for Colorado Chapter, Americans for Effective Law Enforcement, Inc., and Frank G. Carrington, Jr., Chicago, Ill., Executive Director, Americans for Effective Law Enforcement, Inc., as amicus curiae.

Before HILL, SETH and HOLLOWAY, Circuit Judges.

SETH, Circuit Judge.

This matter is before us on an application for a writ of prohibition directed to a judge of the United States District Court for the District of Colorado.

The plaintiff in the civil action from which these proceedings arose had theretofore entered a plea of guilty in the District Court for the City and County of Denver, Colorado, to an information charging him with unlawful possession of heroin in violation of the laws of Colorado. He was sentenced to a four to seven year term in the Colorado Penitentiary. He later unsuccessfully sought post conviction relief in the State and federal courts. Then he brought an action for money damages under the Civil Rights Act against the police officers who performed the search of the premises where the narcotics were found and where plaintiff was arrested. This suit alleges that the search warrant obtained and used by the officers for the search was "not sufficient." And as a separate issue, he alleges that he was coerced into signing a written statement. During the pretrial procedure in in this damage suit the plaintiff filed interrogatories seeking answers from the defendant as to several matters. We are here concerned with such of these interrogatories which seek the name of the police informant who is referred to in the affidavit submitted to the judge as part of the application for the search warrant in question. The defendants refused to answer those interrogatories which would divulge the name of this informant. Plaintiff filed a motion to compel answer to such interrogatories and a hearing was held in the trial court. The court entered an order requiring the defendants to answer these interrogatories (15(a) and 15(b)), and "that a copy of said answers be supplied forthwith to counsel for plaintiff, for his knowledge and use only." The defendants thereupon filed this application for a writ of prohibition in this court to be directed to the United States District Judge to nullify the order requiring answers to the particular interrogatories.

In this application for a writ of prohibition the parties present arguments on the propriety of the remedy generally, the application of the standards for the issuance of such a writ, whether the issue of probable cause for the search warrant can be litigated in this civil action, and the privilege as to the identity of police informants.

As to the propriety of the remedy, as well as the merits, we must hold that this presents a proper case for the issuance of the writ.

The plaintiff argues that the matter can better be tested on appeal along with other issues which may arise at trial, rather than on this application. However, we must consider the reality of the situation when the informer's name has once been revealed. This is an act which is irreversible on appeal. It does not fit into the usual categories for final orders as defendants argue. Instead it presents a typical circumstance for an application for extraordinary relief.

As indicated above, an issue in the damage suit concerns the validity of the search warrant issued by the Colorado State judge and used for the search. More specifically the question is whether or not there was probable cause for the issuance of the warrant. The plaintiff thus seeks in this civil action to show that there was not probable cause. The interrogatories here concerned seek the name and identity of the informant and hence are directed to this issue. The parties will be referred to as plaintiff and defendants as they appear in the damage suit.

The issuance of the search warrant was part of the criminal proceedings in the Colorado State court. Application was made to the State judge with an affidavit as to the facts under the procedure provided in the Colorado Constitution and the Colorado Rules of Criminal Procedure. The judge made his judicial determination of probable cause from these facts, and issued the warrant. Hernandez v. People, 153 Colo. 316, 385 P.2d 996, and Wilson v. People, 156 Colo. 243, 398 P.2d 35. This was implicit in the issuance of the writ. The Colorado Supreme Court in Hernandez, following a discussion of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. Ed.2d 1081, said:

"The determination of whether probable cause exists is a judicial function to be performed by the issuing magistrate, * * * and is not a matter to be left to the discretion of a police officer."

Under the Colorado rules and practice the validity of the warrant, and a search made on the authority of the warrant, may be challenged by the usual motion to suppress the evidence seized in the search. This challenge is provided as part of the criminal proceedings. Bean v. People, 436 P.2d 678 (Colo.). The affidavit submitted as part of the application for the warrant may be so tested. The search may also be tested by objections at trial to the admission of the evidence and upon a motion for new trial. The standards are described in the Bean case above cited.

It is obvious that the use at trial of objects seized at a search have a significant bearing on the course of the trial which may follow. Thus the availability of the challenges to the search is always important, and was a very important factor in any consideration of the defense of the plaintiff here to the criminal charge to which he entered a plea of guilty. The validity of the search warrant specifically was a matter fundamental to the use of these procedural steps which were a part of the criminal proceedings plaintiff was well into at the time of his arraignment. We must consider what became of this issue when the plaintiff entered a plea of guilty to the criminal charge.

The application of issue preclusion does not frequently arise in a civil suit following a criminal action, except perhaps its variations in antitrust litigation. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S. Ct. 408, 95 L.Ed. 534. The federal courts which have considered the issue have applied the doctrine without rigid adherence to the restrictions which could be derived from its origin. The authors of Preclusion/Res Judicata Variables in 19 Vanderbilt L.Rev. 683 trace the development of the doctrine in some detail. The concept is applicable to a variety of circumstances including the search issue now before us.

In Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), for example, the Third Circuit considered the issue in a civil rights case asserting conspiracy to secure a conviction by the use of perjured testimony. The plaintiff there had been tried and found guilty on a burglary and larceny charge. The court there said:

"The standard for determining if litigation of a question in a civil suit is barred by a prior criminal trial is whether the question was `"distinctly put in issue and directly determined" in the criminal prosecution. * * * In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment.\' Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). * * *"

In Basista v. Weir, 340 F.2d 74 (3d Cir.), the same court had theretofore considered the issue, recognized the application of the doctrine, but found the record before it to be incomplete.

The trial courts have had frequent occasion to consider the issue. In United States v. Ben Grunstein & Sons Co., 127 F.Supp. 907 (D.N.J.), the district court examined the effect in a civil suit by the United States of the entry of a guilty plea to a criminal indictment for bribery and conspiracy to present false claims. The judge applied the doctrine of issue preclusion. The parties there were the same in both cases, and the cases were much more closely related or connected as to issues and proof than the one before us here. The judge here held that it made no difference whether there was a conviction after trial or a plea of guilty, citing Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408. The issues in the criminal action and the civil action were also very closely related in the case of United States v. Schneider, 139 F.Supp. 826 (S.D.N.Y.), where the judge said:

"Relitigation in a civil action of an issue determined adversely to the defendant in a prior criminal proceeding is foreclosed, whether the prior determination was based on the verdict of a jury citing cases, or on a plea of guilty. Citing cases. Indeed, where the prior conviction resulted from a plea of guilty there would appear to be greater warrant for application of the doctrine since the defendant has admitted the truth of

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