U.S. v. Raines

• Decision Date: 16 June 1976
• Docket Number: No. 75-1821,75-1821
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Clinton RAINES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 796

536 F.2d 796

UNITED STATES of America, Appellee, v. Jeffrey Clinton RAINES, Appellant.

No. 75-1821.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1976.

Decided June 16, 1976.

Curtis H. Foster, Minneapolis, Minn., for appellant; Sherman Bergstein, Minneapolis, Minn., on brief.

Richard E. Vosepka, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on brief.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and MEREDITH, Chief District Judge. ^*

GIBSON, Chief Judge.

Defendant, Jeffrey Clinton Raines, appeals from his jury conviction for distribution of heroin in violation of 21 U.S.C. § 841(a)(1) (1970). He was sentenced to five years in prison and to a consecutive three-year special parole term pursuant to 21 U.S.C. § 841(b)(1) (1970). The sole contention raised by the defendant on this appeal is that the District Court ¹ erred in refusing to suppress a quantity of marked currency and the defendant's incriminating admissions obtained by a government agent upon being invited into defendant's home by a ruse of posing as a mutual friend of the defendant's heroin distributee who had been arrested and had implicated the defendant earlier the same evening. We affirm.

On March 7, 1975, an undercover agent of the Minnesota Bureau of Criminal Apprehension who had been supplied with marked government currency, purchased three grams of heroin from James Pierce at Pierce's residence in White Bear Lake, Minnesota, and immediately arrested Pierce. Pierce identified his source to be Michael Longville. Longville was promptly arrested and the sum of $230 of the original $830 in marked currency was recovered in a search of Longville's home. Thereafter, Longville identified his source to be the defendant, an acquaintance who worked at the same industrial plant. When Longville was interviewed by Agent John Boulger, a Minneapolis policeman assigned to the Federal Drug Enforcement Administration (DEA) Task Force, he admitted that earlier the same evening he had purchased the heroin from the defendant with some of the marked currency and had returned to the defendant two grams of heroin unsold.

At approximately 1:30 a. m. on March 8, after Pierce and Longville had been incarcerated, Agent Boulger went to Raines' residence to investigate whether Raines possessed heroin and any of the marked currency. Raines was at home caring for his infant child while his wife was away attending a pregnant friend. Agent Boulger later testified during the suppression hearing, that while several officers were positioned nearby, he had personally knocked on Raines' front door and posed as Longville's friend, asking through the door whether Raines was acquainted with Longville. Raines answered that he was and Agent Boulger informed him that Longville had been arrested. Raines invited Agent Boulger inside and quickly asked what Longville had been arrested for. Agent Boulger told Raines the charge against Longville was possession of heroin, which information understandably appeared to unnerve Raines. Agent Boulger than revealed his official identity and told Raines he believed marked currency and heroin were on the premises. At this point, as many as four additional officers entered the house through the same door with weapons concealed.

Agent Boulger informed Raines that the house would be guarded and other officers would apply for, or try to obtain, a search warrant. Raines later testified that he was told the officers would obtain a warrant, not simply attempt to get one. Raines responded that there was no heroin on the premises but that the money was in the bedroom, and he turned toward the bedroom to get it for them. Agent Boulger, however, paused to inform Raines that he need not surrender the money as the officers would apply for a search warrant. Raines proceeded to the bedroom with Agent Boulger and produced an envelope containing $800 from a dresser drawer. A check of serial numbers revealed that $550 of the currency was marked. Agent Boulger returned the balance and administered Miranda warnings to the defendant. Thereafter, when Raines was asked if he had any money in his pockets, he produced an additional $50 in marked currency that accounted for all the $830 originally disbursed. The defendant also admitted that Longville had given him the marked currency along with two grams of unsold heroin but Raines claimed he had returned the heroin to his source. He also admitted that he had been dealing in heroin for two months, but refused to identify his source because of fear for his personal safety. The agents then departed, allowing him to turn himself in to the police the next day without escort. Raines later denied making the admissions and claimed he never dealt in heroin.

On this appeal, the defendant contends that all evidence procured in his home must be suppressed as the fruit of an unlawful police entry. He argues that the ruse employed by Agent Boulger to coax an invitation inside was an unreasonable intrusion prohibited by the Fourth Amendment and that Agent Boulger and the other officers failed to observe the common law obligation of a government agent, codified in 18 U.S.C. § 3109 (1970), ² to announce his identity and purpose before breaking into a private home. Secondly, the defendant contends that the agents' intrusion into his home under the circumstances coerced him into incriminating himself and consenting to a warrantless search in violation of his rights under the Fourth and Fifth Amendments. The District Court, after an evidentiary hearing, rejected these claims. Agent Boulger's invited entry into the defendant's home, though obtained by ruse, was not unlawful. The officers' acquiescence thereafter in the defendant's spontaneous surrender of inculpatory evidence was not a search or seizure and the defendant's voluntary admissions were not coerced. ³

I. UNLAWFUL ENTRY.

The defendant contends that Agent Boulger's entry by ruse into his home was improper, that all evidence procured thereby was tainted and that it must be suppressed under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He acknowledges that under Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), a government agent may pose as a willing buyer to gain consensual entry into a private home to purchase narcotics and thereafter use the purchase as evidence against the seller without constitutionally vitiating an otherwise lawful prosecution. However, the defendant contends that the ruse practiced by Agent Boulger in the instant case differs from that in Lewis and requires a different result.

The difference, he maintains, is that Agent Boulger's announced purpose for appearing at the door, and the defendant's purpose for inviting him inside, were entirely lawful. They sought to discuss the fate of a mutual friend. In Lewis, however, the mutual purpose shared by the defendant and the undercover agent was to consummate an illegal sale of narcotics. The Government responds that Agent Boulger's ruse was not unrelated to the defendant's criminal conduct. Agent Boulger represented himself to be a mutual friend of one of the defendant's drug associates and truthfully told the defendant that the associate had been arrested. The defendant promptly invited the agent inside, apparently to learn whether the arrest was related to his narcotics dealing.

In our view, the defendant's attempt to distinguish between types of deception is without substance. Though the Supreme Court of the United States has not had occasion to decide a similar case, ⁴ we are of the view that Agent Boulger's entry by consent, though obtained by ruse, did not interfere with the defendant's Fourth Amendment rights and did not taint the evidence procured thereafter in the defendant's home. United States v. Syler,430 F.2d 68 (7th Cir. 1970). As stated in United States v. Glassel, 488 F.2d 143, 145 (9th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974):

(A)n officer may legitimately obtain an invitation into a house by misrepresenting his identity * * *. If he is invited inside, he does not need probable cause to enter, he does not need a warrant, and, quite obviously, he does not need to announce his authority and purpose. Once inside the house, he cannot exceed the scope of his invitation by ransacking the house generally, * * * but he may seize anything in plain view.

If an entry by ruse would not prevent an officer from carrying out a plain view search, it follows that he may engage in other police activity, such as that undertaken in the instant case, but otherwise prohibited where he is entitled to be.

The defendant's reliance upon Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 1755, 20 L.Ed.2d 828 (1963), in support of his broad assertion that police entries by ruse are generally unlawful, is unjustified. Neither case states such a broad proposition and neither involved factual circumstances similar to the instant case. ⁵ On the contrary, the Supreme Court has more recently held that minimal police deception in criminal investigation, such as that practiced here, does not run counter to the protections afforded by the Fourth Amendment and that "the particular circumstances of each case govern the admissibility of evidence obtained by strategem or deception." Lewis v. United States, 385 U.S. 206, 208, 87 S.Ct. 424, 426, 17 L.Ed.2d 312 (1966). See also Lopez v. United States, 373 U.S. 427, 437-38, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Further, Agent Boulger's failure to announce his authority and purpose before entering the defendant's home did not violate 18 U.S.C. § 3109. United States v. Beale, 436 F.2d 573 (5th Cir. 1971), rev'd on rehearing,445 F.2d 977 (5th Cir.), cert. denied, 404 U.S. 1026, 92 S.Ct. 697, 30 L.Ed.2d 676 (1972). A...