U.S. v. Brown, s. 78-1099
| Decision Date | 14 September 1978 |
| Docket Number | 78-1114 and 78-1119,78-1104,Nos. 78-1099,s. 78-1099 |
| Parties | UNITED STATES of America, Appellee, v. Leo Anthony BROWN, Appellant. UNITED STATES of America, Appellee, v. Cleo Arthur BROWN, Appellant. UNITED STATES of America, Appellee, v. Miriam Marie DeROODE, Appellant. UNITED STATES of America, Appellee, v. Brenda BASSIGNANI, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Peter J. Thompson (on brief), Delaney, Thompson & O'Rourke, Ltd., Minneapolis, Minn., and Joseph T. Dixon, Jr. (on brief), Henson & Efron, Minneapolis, Minn., argued, for appellants; was filed by Bruce P. Candlin, Minneapolis, Minn., and Fred A. Reiter, Minneapolis, Minn., on brief.
Andrew W. Danielson, U. S. Atty., and Ann D. Montgomery, Asst. U. S. Atty. (argued), Minneapolis, Minn., on brief for appellee.
Before LAY, HEANEY and ROSS, Circuit Judges.
Appellants in this case were charged in a heroin conspiracy and distribution scheme which took place in Minneapolis and extended over a period of about five months. Appellants include two women, Brenda Bassignani and Miriam De Roode, and twin brothers, Leo Anthony Brown and Cleo Arthur Brown. Also indicted in the scheme were Laura Figone and Michael Rush. Neither of the latter two is an appellant, however; Laura Figone pleaded guilty after the trial began, and Michael Rush is a fugitive from justice, having failed to show up at the trial.
Minneapolis police and federal authorities jointly undertook the investigation of the criminal activity involved in this case. Central to the police efforts was the undercover work of Minneapolis Police Officer Susan Belkair. Through her, the government made at least six heroin buys, at first facilitated through Michael Rush from Laura Figone, and later from Laura Figone directly. The evidence, considered in the light most favorable to the government, established that Leo Brown was Figone's source.
The appellants, together with Michael Rush and Laura Figone, were charged in a multicount indictment. Appellants were charged as follows: Count II: Rush, Figone and Leo Brown charged with distribution of one-half ounce of heroin on April 1, 1977; Count IV: Figone, Leo Brown, Bassignani and DeRoode charged with distribution of 1/8 ounce of heroin on September 9, 1977; Count V: Figone, Leo Brown, Bassignani and DeRoode charged with distribution of 1/2 ounce of heroin on September 10, 1977; Count VI: Figone, Leo Brown, Bassignani and DeRoode charged with distribution of 1/4 ounce of heroin on September 12, 1977; Count VII: DeRoode and Leo Brown charged with possession with intent to distribute 1/8 ounce of heroin on September 12, 1977; Count VIII: Bassignani and Leo Brown charged with possession of .25 grams of heroin on September 12, 1977; Count IX: Cleo Brown charged with possession of .50 grams of heroin on September 13, 1977; Count X: Rush, Figone, Leo Brown, Bassignani, Cleo Brown and DeRoode all charged with conspiracy to distribute heroin from March 24, 1977, "to the present." (The indictment was filed on November 11, 1977.)
The Count IX possession charge against Cleo Brown was dismissed by the government during the trial. With the exception of the Count IV charge against Bassignani, on which charge she was acquitted, the defendants were found guilty on all counts as charged in the indictment. 1 Only one appellant, Cleo Brown, challenges the sufficiency of the evidence upon which he was convicted.
The appellants jointly raise several issues: the sufficiency of the affidavits used to support searches of their residences, plus the adequacy of the warrants under Fed.R.Crim.P. 41; the adequacy of the instructions to the jury on the law of conspiracy; and finally an alleged infringement of their fifth amendment privilege against self-incrimination. We have studied these issues, and conclude that the convictions against all of the appellants except Cleo Brown should be affirmed; the conviction of Cleo Brown is reversed.
The various residences of the appellants are important to this case. Miriam DeRoode resided at the apartment building at 2509 Dupont Avenue South, Leo Brown and Brenda Bassignani lived at 2753 Colfax Avenue South, and Cleo Brown lived at 7333 Gallagher Drive. Laura Figone first lived at 3030 Pleasant Avenue, and later moved to 2610 Garfield Avenue South.
Search and Seizure.
In the investigation and prosecution of this case, four search warrants were requested, issued and executed. Three warrants were issued to search three different residences; one was issued to examine the contents of a safe deposit box. The appellants concede the sufficiency of the warrant for the first search at the 2509 Dupont Avenue South residence, where the arrests of all the appellants were made, and where Laura Figone was observed prior to each delivery of heroin, including the delivery on the night of the arrest, September 12, 1977.
The third and fourth searches, the search of the Gallagher residence and the safe deposit box, occurred subsequent to the Dupont and Colfax searches. The fruits of these latter searches were not offered into evidence by the government, and we do not consider it necessary to examine the sufficiency of the affidavits offered in their support. As evidence was not introduced as a result of these searches, "there is nothing upon which the exclusionary rule can operate." United States v. Christenson, 549 F.2d 53, 57 n.2 (8th Cir. 1977), Quoting from Hasty v. Crouse, 308 F.Supp. 590, 594 (D.Kan.1968), Aff'd 420 F.2d 1384 (10th Cir. 1970). United States v. Larson, 555 F.2d 673, 676 (8th Cir. 1977). 2
The sharpest disagreement between the parties focuses on the second search at 2573 Colfax, the residence of appellants Leo Brown and Brenda Bassignani. 3 Appellants strongly contend that the affidavit upon which the warrant was issued was deficient, that probable cause was lacking, and that the affidavit established no link between the Brown-Bassignani residence and the items the police sought there. It is the contention of Leo Brown that the affidavit may suggest his guilt, but that it does not suggest that evidence was secreted at his residence.
As this court has previously done, "(w)e begin our analysis by noting that the search in this case was sanctioned by a state judge's issuance of a search warrant based upon a finding of probable cause." United States v. Christenson, supra, 549 F.2d at 55. Courts evince a strong preference for searches made pursuant to warrant, and, in some instances, may sustain them where warrantless searches based on a police officer's evaluation of probable cause might fail. Id.
Accordingly, the Supreme Court has cautioned that a reviewing court should employ common sense in the interpretation of affidavits for search warrants:
(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants * * * must be tested and interpreted by * * * courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
Deference is accorded an issuing magistrate's probable cause determination, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), "and, in doubtful or marginal cases, the resolution of the Fourth Amendment question should be determined to a large extent by the preference accorded to searches based upon warrants, United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. 741," United States v. Christenson, supra, 549 F.2d at 56; United States v. Mulligan, 488 F.2d 732, 735-36 (9th Cir. 1973), Cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974).
It is not required that the affidavit underlying the search allege Direct observation of criminal activity in order to justify the issuance of a warrant permitting a search, United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970); the issuing magistrate may properly rely on normal inferences drawn from the surrounding circumstances and allegations of fact as well as the type of the crime. Id.
As the Lucarz court said in the context of a case involving stolen property:
The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property. United States v. Teller, 412 F.2d 374 (7th Cir. 1969); Aron v. United States, 382 F.2d 965 (8th Cir. 1967); Anderson v. United States, 344 F.2d 792 (10th Cir. 1965); Porter v. United States, 335 F.2d 602 (9th Cir. 1964).
United States v. Lucarz, supra, 430 F.2d at 1055.
The face of the affidavit in this case reveals the following: that during the investigation an undercover policewoman made at least six heroin purchases, three directly from Laura Figone and three indirectly; that an individual named "Leo" was Figone's "old man"; 4 that Figone had a steady supply of heroin, and that the heroin was stored in two places.
From the facts alleged in the affidavit the probability of criminal complicity with respect to heroin transactions among the appellants...
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