U.S. v. Janis, 87-5191

• Decision Date: 20 October 1987
• Docket Number: No. 87-5191,87-5191
• Parties: UNITED STATES of America, Appellee, v. Terri JANIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 773

831 F.2d 773

UNITED STATES of America, Appellee, v. Terri JANIS, Appellant.

No. 87-5191.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 3, 1987.

Decided Oct. 20, 1987.

John O. Holm, Rapid City, S.D., for appellant.

Lonnie Bryan, Asst. U.S. Atty., Rapid City, S.D., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Terri Janis appeals from her conviction of distributing and possessing with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Janis raises numerous issues, but her principal argument is that the government was required to show probable cause before approaching her home to merely ask if she had drugs for sale, and thus all contraband seized by the government should have been suppressed by the district court. We disagree and for the following reasons affirm the decision of the district court. ¹

I. BACKGROUND

On June 28, 1986, LeRoy Horse, a paid government informant, went to the homes of several Pine Ridge Indian Reservation residents and attempted drug purchases. The drug purchases were made by Horse at the direction of F.B.I. Agent James J. Graff. Graff offered to waive prosecution of Horse for possession of marijuana if Horse would assist in the drug purchases.

Horse purchased marijuana from Terri Janis at her home and placed it in his pocket. Horse subsequently made an unrelated purchase of marijuana and placed it in his other pocket. Horse then met with Agent Graff and removed four bags of marijuana from one of his pockets and identified it as that received from Janis. The entire transaction was recorded by Horse who was wearing a body recorder and had been instructed on its use by Agent Graff.

II. DISCUSSION

A. Fourth Amendment Claim

Janis's principal contention on appeal is that the government lacked probable cause in approaching her home and thus all contraband should have been suppressed by the district court. Janis argues that the Fourth Amendment requires a showing of probable cause before the government may approach the sanctity of one's home. Janis's pre-trial motion to suppress the marijuana was denied because the district court found that Janis had consented to Horse's entry into her home and thus waived her rights under the Fourth Amendment. We agree with the district court that Janis's motion to suppress should have been overruled.

We believe that Janis's reliance on the Fourth Amendment is misplaced. When Janis consented to having the informant in her home for the purpose of selling narcotics no Fourth Amendment rights were implicated. In Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966), the Supreme Court stated:

[W]hen * * * 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.

See also United States v. Davis, 646 F.2d 1298, 1301 (8th Cir.) ("A purchase of drugs by a law enforcement officer acting as an undercover agent is not a search or seizure under the fourth amendment. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)"), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981).

In Davis, a case very similar to the instant case, this court stated: "The crucial element in deciding issues like the one presented here is not whether the agents' identities were known, but rather whether the illegal activity that took place on the premises was known by the party extending the invitation to enter." United States v. Davis, 646 F.2d at 1301; see also United States v. Ruiz-Altschiller, 694 F.2d 1104, 1106-07 (8th Cir.1982), cert. denied sub nom., Perry v. United States, 462 U.S. 1134, 103 S.Ct. 3117, 77 L.Ed.2d 1371 (1983). The conclusion supported by the record is that Janis knew the purpose of the government informant's visit and agreed to his presence in her home for that purpose.

The test for determining whether a consent is valid is "whether * * * the consent is given voluntarily and without coercion." United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980); United States v. Briley, 726 F.2d 1301, 1304 (8th Cir.1984). Janis voluntarily consented to Horse's entry into her home for the purpose of purchasing narcotics.

We hold that the government's conduct in the instant case did not constitute a search as a matter of law. Davis, 646 F.2d at 1302. And, therefore the government was not required to obtain a warrant. United States v. Collins, 652 F.2d 735, 739 (8th Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). It follows that if a warrant is not required before government agents purchase drugs in one's home, then the prerequisite for acquisition of a warrant, probable cause, is not required. Janis's argument that the government must show probable cause before approaching one's home is without merit.

B. The Brady Claim

Janis next argues that the prosecutor failed to provide specifically requested discovery material including: the terms and conditions of the agreement between the government and Horse, a photo lineup, and criminal records of government witnesses. The Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment * * * * "

We note that reversal of Janis's conviction on these grounds requires a showing that the evidence was material. And, "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985). We do not believe this standard has been met.

We first address the late disclosure of the agreement between the government and Horse, the prosecution's principal witness. ² It is clear from the record that this evidence was not material to the defense. The record demonstrates that defense counsel was aware of the arrangement between the government and Horse, and in fact the defense investigator questioned Horse about this arrangement almost two months prior to trial. The record also shows that the defense counsel used this information to cross-examine Horse at trial. Janis's defense was not in any way prejudiced by the government's late disclosure of this information.

We do not believe that there exists a reasonable probability that the government's late disclosure of its agreement with Horse affected the result in this proceeding. This is especially true because Horse's testimony was corroborated by the tape recording and it was primarily the tape recording that convicted Janis. United States v. Risken, 788 F.2d 1361, 1373 (8th Cir.1986). Therefore, the evidence is not material.

Janis also argues that the government's failure to provide copies of a photo lineup shown to Horse in November 1986 requires reversal of her conviction. The record indicates that the government presented defense counsel with copies of the photo lineup on the day of trial. In addition, the photo lineup was discussed with defense counsel prior to trial. Therefore, we do not believe that Janis has been prejudiced by the government's late disclosure of the photo lineup. Further, we do not believe that the photo lineup would have been either exculpatory or impeachment evidence within the Brady rule.

Janis also argues that the government failed to produce the criminal records of Horse. The government responds by arguing that Horse did not have a criminal record that appeared on the "rap sheet" obtained by the government.

It is not clear from the record whether Horse possessed a criminal record which was not disclosed by the government. However, assuming that such a record exists and was improperly withheld by the government, we do not believe that reversal is warranted. Janis was able to impeach Horse with testimony concerning payments he received from the government and the government's promise to waive prosecution if he assisted them. In light of this impeachment evidence, we do not believe that evidence of additional crimes committed by Horse would have added anything to the defense.

After carefully reviewing the record and the briefs submitted by counsel we do not believe that there has been a suppression of Brady material which undermines our confidence in the outcome reached in the trial court. United States v. Bagley, 105 S.Ct. at 3384.

C. Contingent Fee Agreement

Janis's next contention is that the arrangement between the F.B.I. and Horse was an impermissible fee arrangement.

Janis relies on the Fifth Circuit decision in United States v. Cervantes-Pacheco, 793 F.2d 689, 690 (5th Cir.1986), which held that an impermissible contingent fee arrangement violates the Fifth Amendment right to due process. ³

This court has recently held that an arrangement under which a fee was contingent upon a suspect's conviction would not alone require reversal. United States v. Risken, 788 F.2d at 1373.

Nevertheless, it is apparent from the record that the compensation paid to Horse was not contingent upon his performance in any way. Both Horse and Agent Graff testified that Horse's compensation was not based upon his ability to successfully make narcotics purchases. Further, Horse's compensation could not have been contingent upon his testimony because he received payment prior to the indictment of Janis. The testimony of Agent Graff indicates that the $2,000 payment was made to...