U.S. v. Garrett

• Decision Date: 08 November 1977
• Docket Number: Nos. 76-2482,76-2858 and 76-3137,76-2585,s. 76-2482
• Citation: 565 F.2d 1065
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernice GARRETT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary Ethel MORGAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James KINSEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jackson MORGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1065

565 F.2d 1065

UNITED STATES of America, Plaintiff-Appellee, v. Vernice GARRETT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mary Ethel MORGAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James KINSEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jackson MORGAN, Defendant-Appellant.

Nos. 76-2482, 76-2585, 76-2858 and 76-3137.

United States Court of Appeals, Ninth Circuit.

Nov. 8, 1977.

Rehearing and Rehearing En Banc Denied in No. 76-3137 Jan. 6, 1978.

Justin M. Groshan, Los Angeles, Cal., Edward B. Critchlow, Richland, Wash., Donald B. Marks (argued), Beverly Hills, Cal., for defendants-appellants.

Seaton M. Daly, Asst. U. S. Atty. (argued), Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and WILLIAMS, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Defendants Jackson and Mary Ethel Morgan, Vernice Garrett, and James Kinsey appeal from their convictions on multiple counts for conspiracy to possess and possession of narcotics in violation of 21 U.S.C. §§ 846, 841(a)(1). Mary Ethel Morgan and Garrett received concurrent sentences of 15 years' imprisonment and 25 years' special parole; Kinsey concurrent sentences of 5 years' imprisonment and 25 years' special parole. Jackson Morgan received enhanced sentences of 30 years' imprisonment, 25 years' special parole, and a $25,000 fine pursuant to 21 U.S.C. § 841(b)(1)(A).

Between May, 1975, and November, 1975, a federal narcotics agent and a paid informant made seven separate purchases of heroin from Kinsey in Pasco, Washington. These purchases totaled approximately twelve ounces of heroin and were paid for with marked government money. Close ground and aerial surveillance were maintained by federal narcotics agents throughout these transactions. On each of these occasions, Kinsey was observed leaving his apartment after receiving payment from government agents, traveling by car directly to the residence of Garrett, Kinsey's cousin, at 616 North Beech Street, remaining there for a short time, and then returning to his apartment before completing the transaction.

During the course of the transactions, Kinsey made various statements regarding the source of his supply. He claimed that his relatives were his source, that his local source, a woman in Pasco, occasionally also referred to as Vernice, obtained the heroin from her sister in Los Angeles, that the woman in California and her husband, the master of the heroin operation, owned and lived in an 18-unit apartment building in Los Angeles, that the woman in California traveled a great deal on behalf of her husband who was restricted to Los Angeles on parole due to a prior narcotics conviction, and that the husband once escaped being caught in a hotel room with $150,000 worth of heroin by flushing it down the toilet.

During late September and early October, 1975, when Garrett was in Alaska to be with her husband, Mary Ethel Morgan, Garrett's sister, and her vehicle with a California license plate, were observed on many occasions in the Pasco area and in front of the Garrett residence. On October 1, 1975, Mary Ethel's vehicle was also observed parked at the Garrett residence during one of the heroin transactions.

Pursuant to warrant, the Garrett residence was searched on November 15, 1975, the date of an agreed heroin purchase from Kinsey. Items seized during the search include 110 grams of heroin, 5 grams of cocaine, a quantity of a cutting agent, and documents containing notations which referred to quantities of heroin and cocaine and the names Ethel, Jack, Jessie, and Vernice.

Prior to October 21, 1975, Jackson Morgan, released from prison on parole in December, 1974, lived with his wife, Mary Ethel, at Apartment 7, 4048 Gelber Place, Los Angeles, an 18-unit apartment building owned by them. In February, 1975, Jackson was arrested by the Los Angeles Police Department ("LAPD") on a narcotics charge, which was later dismissed. On October 21, 1975, pursuant to state warrant, the Morgan residence in Los Angeles was searched by LAPD. Among the items seized were 300 grams of heroin, 21 grams of cocaine, cutting agents, a quantity of plastic baggies, a heat sealer, and a sum of $8,960. Some of the heroin was found on Jackson Morgan's person and some of the money was marked government money used in the October 1 heroin purchase from Kinsey in Pasco.

Following a joint jury trial, the appellants were found guilty on all of the counts charged. Garrett's husband was acquitted on six of the counts and a mistrial was declared as to the remaining counts when the jury was unable to reach a verdict.

I

Counsel for Jackson Morgan contends on appeal that the district court erred in failing to suppress the evidence seized in the October 21 LAPD search of the Morgan residence because the same evidence was suppressed in the Superior Court of Los Angeles, where Jackson Morgan was charged with narcotics violations under state law.

Under Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), the district court was correct in making an independent inquiry on the constitutional validity of the state search, irrespective of whether there had been such an inquiry by the state court, or how such an inquiry had turned out. (United States v. Bedford, 519 F.2d 650 (3d Cir. 1975).) Counsel for Jackson Morgan, however, strenuously contends that Elkins was overruled, at least implicitly, by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

Stone v. Powell, supra, held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." (Id. at 494, 96 S.Ct. at 3046.) Counsel for Jackson Morgan argues that "once the search and seizure claim has been decided against the state, no justification exists for another review of the issue by the federal courts," and that "it is fundamentally unfair to fashion a rule whereby a defendant who loses a search and seizure claim in state court cannot relitigate in federal court even though such a procedure is permissible for a prosecutor."

This reasoning is faulty for several reasons. First, unlike a habeas corpus proceeding, there is no relitigation here. The state suppression proceedings are over, and the federal court did not reopen them. The validity of the state hearing is not at issue. Second, the rationale advanced for Stone v. Powell does not require invalidation of Elkins and Rios in the manner suggested by appellant. The Court's skepticism in Stone v. Powell about the deterrence from the application of the exclusionary rule in a federal habeas corpus proceeding cannot be advanced to support the exclusion in the federal courts of evidence seized by state officials when that evidence has been excluded in the state court. Third, while the Court in Stone v. Powell rejected arguments based upon "mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights" (id. n.35 at 493-94, 96 S.Ct. at 3051), it has not sanctioned wholesale substitution of state court judgments for that of the federal courts where federal constitutional rights are concerned. We therefore adhere to the Elkins-Rios rule and examine the constitutional sufficiency of the state search warrant attacked by the appellant as violative of the Fourth Amendment guarantees under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The affidavit, ¹ supporting the state search warrant, stated that the affiant, a police officer, received a tip from an unnamed informant that he had made several recent purchases of heroin at Jackson Morgan's residence, that, while there, the informant had observed heroin at the premises, that Jackson Morgan stored heroin in his residence and in his car. The informant also gave a detailed description of the residence, the car, and some personal and family attributes of Jackson Morgan. The affidavit further averred that the information regarding the residence, the car, and personal and family attributes were personally verified by the affiant. The affiant also conducted an inquiry into Jackson Morgan's record and reputation as a narcotics dealer. The inquiry showed that Jackson Morgan was known as a narcotics dealer to three other police officers, was arrested on a narcotics charge on February 17, 1975, and was under active investigation by two narcotics officers on May 19 and June 25, 1975.

To be constitutionally sufficient, an affidavit based solely upon an unnamed informer's tip must meet the Aguilar-Spinelli two-prong test: (1) The affidavit must set forth some underlying circumstances which reveal the source of the informer's information pertaining to the criminal activity, and (2) the affidavit must present sufficient objective evidence to enable the magistrate to conclude that the unnamed informant is credible or that his information is reliable.

It is evident that the first prong of the Aguilar-Spinelli test is met here as the informant was relating his own personal observations and participation in the alleged criminal activity. There is no direct objective evidence in the affidavit on the credibility and the reliability of the unnamed informant. The second prong of the Aguilar-Spinelli test can, however, be met by circumstantial evidence on the trustworthiness of the tip. (United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1...