U.S. v. Jackson

• Decision Date: 02 February 1979
• Docket Number: No. 77-5707,77-5707
• Citation: 588 F.2d 1046
• Parties: , 4 Fed. R. Evid. Serv. 245 UNITED STATES of America, Plaintiff-Appellee, v. Earnest JACKSON, Jr., and James Arthur Porter, III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1046

588 F.2d 1046

49 A.L.R.Fed. 461, 4 Fed. R. Evid. Serv. 245

UNITED STATES of America, Plaintiff-Appellee, v. Earnest JACKSON, Jr., and James Arthur Porter, III,

Defendants-Appellants.

No. 77-5707.

United States Court of Appeals, Fifth Circuit.

Feb. 2, 1979.

Rehearing and Rehearing En Banc Denied March 7, 1979.

Earnest Jackson, Jr., pro se.

James R. Willis, Cleveland, Ohio, for Jackson.

James Arthur Porter, pro se.

Dennis E. Siegel, Murray Silver, Atlanta, Ga., for Porter.

J. R. Brooks, U.S. Atty., Bill L. Barnett, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before MORGAN, RONEY and VANCE, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Following a jury trial in the United States District Court for the Northern District of Alabama, appellants Earnest Jackson, Jr., and James Arthur Porter, III, were convicted under a two-count indictment of violating the federal narcotics laws. Count One charged appellants with conspiracy to distribute approximately 934.5 grams of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 846. Count Two charged appellants with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ¹ In their principal argument appellants contend that their Fourth Amendment privacy rights were violated when narcotics agents rented an adjacent motel room and eavesdropped on conversations in Jackson's room by placing their ears next to the space at the bottom of the door connecting the two rooms. Both appellants also alleged that none of the evidence admitted at trial established their possession of the heroin. Jackson further asserts a number of additional errors requiring reversal which we describe and discuss below. We affirm as to appellants' conspiracy conviction but reverse as to their conviction for possession with intent to distribute.

I. FACTS

For several years prior to Jackson's arrest, agents of the Drug Enforcement Administration had suspected him of narcotics laws violations. Despite their suspicions and a three-year investigation involving periodic surveillance of his conduct and activities DEA agents had never observed Jackson passing heroin nor uncovered any hard evidence that he was trafficking in narcotics. On July 4, 1977, Jackson and a Miss Beverly Pertilla checked into room 312 of the Kahler Plaza Hotel in Birmingham, Alabama. An off-duty Birmingham police officer working security at the hotel spotted Jackson on July 5 and notified the DEA of his presence. On July 6 Agent Hahn of the DEA and Sergeant Trucks of the Birmingham Police Department rented room 314 at the hotel for the purpose of monitoring Jackson's activities. ² Rooms 312 and 314 adjoin and are connected by a set of double doors. After entering room 314 the officers determined that they could hear conversations in room 312 by lying on the motel room floor and pressing their ears to the 3/4 crack at the bottom of their connecting door. ³ Although at times their aural surveillance was impeded by the sounds of the television, plumbing, and air conditioning in room 312, the officers had no difficulty in overhearing much of the conversation in the adjoining room. At no time did the officers use any electronic or mechanical device to assist them in their aural surveillance.

Utilizing this eavesdropping technique, the officers on July 6 overheard Jackson make two telephone calls to Buffalo, New York. During these calls Jackson stated, "No, I haven't been able to contact my man yet. (Pause.) It is like gold." and "The stuff is coming from L.A. (Pause.) No problem with my man." On the morning of July 7 Jackson told his room guest, Beverly Pertilla, to call an airline and make flight reservations to Buffalo, New York. Sgt. Trucks immediately dispatched two undercover officers to the airport to set up surveillance. Shortly after Pertilla made the reservations, Jackson received a brief telephone call. He then cursed, seemed excited for several minutes, and told Pertilla that "the stuff may be in trouble" and "the stuff is worth $40,000." Within twenty minutes Jackson received another telephone call in which he stated, "is the stuff all right? Is the suitcase still at the airport?" Following this conversation Jackson told Pertilla, "I don't know what went wrong. The police followed him to the airport. The suitcase is still at the airport. The flight came in at 9:08 and I don't know what went wrong."

Upon arriving at the airport, the undercover officers parked their unmarked car behind a car driven by appellant Porter. Porter immediately drove away from the terminal building, passed back through the area three minutes later, disappeared for approximately fifteen minutes, and finally departed the airport with Linda Johnson who had arrived at 9:08 a. m. on a flight from Los Angeles, California. ⁴ Miss Johnson did not pick up her luggage before leaving with Porter. Porter drove Linda Johnson to the Kahler Plaza Hotel, escorted her to her room, and then paid a visit to room 312. Jackson asked Porter, "Is everything all right? Is the suitcase still at the airport? Good, let's go."

By the time Jackson and Porter arrived at the airport, Linda Johnson's unclaimed suitcase had been placed in the Delta Airlines baggage claims office. The suitcase, which was the only piece of unclaimed luggage, was sitting near a window where it was clearly visible to passersby. Jackson walked around inside the terminal and, at one point, paused in front of the baggage claims office. Porter, who was carrying a piece of luggage, entered the baggage claims office, looked for a moment in the direction of the unclaimed suitcase, and left the office. He then walked to a United Airlines desk where he purchased a ticket and checked his luggage. Jackson and Porter left the terminal, got into a car, and were arrested as they attempted to leave the airport.

Based on the information obtained as a result of the eavesdropping, DEA agents obtained search warrants on both the Johnson suitcase and room 312 at the hotel. Inside the suitcase was a zippered canvas bag which contained approximately two pounds of 8% Heroin and approximately one pound of a substance used as a diluter. The heroin had a wholesale value of approximately $40,000 and a street value approaching $1,000,000. The search of room 312 at the hotel revealed a tote bag which contained $42,000 in forty-two $1,000 bundles.

II. FOURTH AMENDMENT CONSIDERATIONS ⁵

The Fourth Amendment prohibits "unreasonable searches and seizures" and assures "the right of the people to be secure in their persons, houses, papers, and effects." The protections afforded by this amendment provide individuals with a right of privacy which must not be arbitrarily invaded by either the federal government or the states. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). This court has repeatedly stressed the concept that "the underlying purpose of the Fourth Amendment is to protect and shield citizens from unwarranted intrusions into their private domain." United States v. Davis, 423 F.2d 974, 977 (5th Cir. 1970). See Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968). Any evidence secured through an illegal search and seizure may not be used in a federal prosecution, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), nor may the fruit of such tainted evidence be admitted against the defendant whose privacy rights were originally violated. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Cruz, 581 F.2d 535 (5th Cir. 1978).

The scope of the Fourth Amendment's protection of personal privacy is delineated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Rakas v. Illinois, --- U.S. ----, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (No. 77-5781). In Katz the Supreme Court held that eavesdropping on conversations in a telephone booth by means of an electronic listening device attached to the top of the booth constitutes a Fourth Amendment search and seizure. ⁶ In finding an illegal search despite the absence of a physical intrusion into the phone booth, the Court rejected the trespass doctrine applied in previous cases and held that an individual is entitled to Fourth Amendment protection whenever he has a "reasonable expectation of privacy." ⁷ The Court stated that the parties' disagreement over whether a telephone booth is a constitutionally protected area

deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

389 U.S. at 351-52, 88 S.Ct. at 511 (citations omitted). We must decide if the agents' aural surveillance of Jackson's room amounted to an illegal search under the principles enunciated in Katz.

This court has had previous occasion to address the constitutional issues presented on the facts of this appeal. In Jones v. United States, 339 F.2d 419 (5th Cir. 1964), narcotics agents entered a motel room adjoining appellants' room and removed a control panel from a heating unit built into the common wall dividing the two rooms. With the panel removed the agents were able to see and hear incriminating activity in appellants' room. The court concluded that in the absence of a physical intrusion into the premises occupied by appellants, the agents' surveillance did not amount to a search and seizure in violation of the Fourth Amendment. Because Jones applied the trespass analysis rejected in Katz and did not approach the issue in terms of the reasonableness of appellants' expectation of...