U.S. v. Guidry

• Decision Date: 29 April 1976
• Docket Number: Nos. 75-1824-25,s. 75-1824-25
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Bradley GUIDRY, and James David Sims, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1220

534 F.2d 1220

UNITED STATES of America, Plaintiff-Appellee, v. Edward Bradley GUIDRY, and James David Sims, Defendants-Appellants.

Nos. 75-1824-25.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1975.

Decided April 29, 1976.

Floyd E. Morgan, Van Cleave, Hatfield, McColpin, Werner & Morgan, Gus D. Hatfield, Chattanooga, Tenn., for defendants-appellants.

John L. Bowers, Jr., U. S. Atty., Hugh J. Moore, Jr., Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff-appellee.

Before EDWARDS and MILLER, ^* Circuit Judges, and CHURCHILL, ^** District Judge.

EDWARDS, Circuit Judge.

This appeal presents interesting search and seizure problems. Appellants were convicted for violating 18 U.S.C. §§ 471 and 472 (1970) by counterfeiting federal reserve notes and possessing same. Trial proofs in relation to the offenses are overwhelming, if all of the exhibits admitted were constitutionally admissible. Appellants, however, claim that all were seized in the course of two unconstitutional searches.

The government's evidence showed that these two defendants visited the Addressograph-Multigraph Company in Chattanooga, Tennessee, to buy some supplies and to have some unusual paper trimmed to an unusual size. One of the supervisory employees of the company contacted an agent of the Secret Service and advised him of this incident. Thereupon Secret Service Agents checked the utility records of the residences of appellants and learned that at Guidry's address electric power was being used in "excessive" quantities. The federal officers then began round-the-clock surveillance of that house. They also arranged to have a service representative for Addressograph-Multigraph take Agent Jernigan with him when he made a call at Guidry's house. Jernigan was identified as a "helper" and the service representative told the defendants that he was there to look at a part of defendants' printing press which defendants had previously told him they wanted to sell. During this visit Jernigan had an opportunity to observe the printing press and to remove a piece of paper with green ink on it from the press. Later that afternoon Jernigan went back to see defendants in an attempt to elicit information concerning counterfeiting. At the end of this second visit Jernigan concluded that at least one of the defendants had become aware of his real purpose and identity, and he so advised his superiors.

Within fifteen minutes thereafter another agent engaged in the surveillance of the residence saw someone start a fire in a carport at Guidry's address. The fire department was called and when the firemen arrived, a local police officer named Gaston told the firemen that he would like to search the Guidry house for fire and that he believed that counterfeiting operations were going on. Although the wife of one of the defendants, and one of the defendants, objected to their entry, Gaston, federal officers, and some firemen entered the residence, and the officers then seized a large quantity of counterfeit currency and equipment. Concerning the seizure of the counterfeit, Gaston testified:

Well, the firemen were checking for leakage, for sparks around the top of the house, but the several firemen and myself went through the house and in the back bedroom there were numerous garbage bags sitting in the floor, and when we opened the door, the money was in plain view through transparent plastic bags, the garbage bags.

I remember I think there were three large garbage bags that were shoved just about full and the money was in plain view.

The counterfeit seized totaled $1,678,400 in $50 and $100 bills.

Our appellate questions include whether Jernigan's first entrance in the Guidry home as a "helper" to the Addressograph-Multigraph representative was a violation of the Fourth Amendment, and whether the search and seizure of the Guidry house after the fire in the carport was excused by exigent circumstances.

As to the first question, we believe Jernigan's strategem in posing as a "helper" to the Addressograph-Multigraph representative who had been asked by defendants to help sell a portion of their press was legitimate police activity in pursuance of an investigative lead and not prohibited by the Fourth Amendment. In Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), the Supreme Court said:

Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U.S. 313, (41 S.Ct. 266, 65 L.Ed. 654) (1921); Harris v. United States, 331 U.S. 145, 151, n.15, (67 S.Ct. 1098, 1102, 91 L.Ed. 1399) (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials; a citation to the Gouled case, supra, is sufficient to dispose of that contention.

Lewis v. United States, supra at 211, 87 S.Ct. at 427, 17 L.Ed.2d at 316.

While this language serves to legitimate Jernigan's entry and observations, it does not necessarily render lawful his surreptitious seizure from the press of a piece of paper with green ink on it.

As to the second question pertaining to the entry into the Guidry home after observation of the fire in the carport, we give no credence to the argument that entry was lawfully accomplished because of the need to search for fire. As we see the matter, this was clearly pretext. The District Judge's analysis of the entry in terms of the need to prevent the destruction of evidence is, however, much more substantial:

(T)here are circumstances, although they are very narrowly circumscribed, there are circumstances under which a search of a residence would be a reasonable search and, therefore, a lawful search where circumstances exist that would reasonably induce an officer to believe that the evidence that they seek to obtain would be lost or destroyed or disappeared or removed before a search warrant could be obtained.

Now, if the evidence was such that by keeping the premises under surveillance and the officers could have safely taken time to go and get a search warrant, and then return and make the search, they, of course, would be required to do just that. But, if the evidence is such that it could be readily destroyed if the officers were to take time to go get a search warrant, even though one might be obtained on a rather short notice, then, the circumstances may be such as to warrant or permit a warrantless search.

It is the opinion of the...