U.S. v. Williams, No. 78-1725

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, Chief Judge, and BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS
• Citation: 622 F.2d 830
• Decision Date: 31 July 1980
• Docket Number: No. 78-1725
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jo Ann WILLIAMS, Defendant-Appellee.

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622 F.2d 830 UNITED STATES of America, Plaintiff-Appellant,
v.
Jo Ann WILLIAMS, Defendant-Appellee. No. 78-1725. United States Court of Appeals,
Fifth Circuit. July 31, 1980.

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William L. Harper, U. S. Atty., C. Michael Abbott, Asst. U. S. Atty., Atlanta, Ga., Ann T. Wallace, Mervyn Hamburg, Attys., App. Sect., Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.

John A. West, Cincinnati, Ohio, for defendant-appellee.

Jo Ann Williams, pro se.

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

Before COLEMAN, Chief Judge, and BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges. ^*

PER CURIAM:

Both of the following dispositions command support of a majority of the court. For the reasons assigned in these alternate resolutions, the decision of the district court on the motion to suppress is reversed and the matter is remanded.

PART I

POLITZ, Circuit Judge: ^**

In November, 1977, Jo Ann Williams was indicted in the Northern District of Georgia on two counts of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ¹ Before jeopardy attached, the district court granted her motion to suppress evidence of all heroin that had been seized from her. On appeal by the government pursuant to 18 U.S.C. § 3731, the panel majority affirmed, 594 F.2d 86 (5th Cir.). We directed rehearing en banc on our own motion, 594 F.2d 98 (5th Cir.). We now reverse and remand.

The History

In June, 1976, Special Agent Paul J. Markonni of the Drug Enforcement Administration (DEA) arrested Williams in Toledo, Ohio, for possession of heroin in violation of 21 U.S.C. § 841(a)(1). In March, 1977, after the District Court for the Northern District of Ohio denied her motion to suppress evidence of the heroin, she pleaded guilty and was sentenced to three years imprisonment. She then appealed the denial of her motion to suppress to the Sixth Circuit. ² The district court ordered Williams released pending appeal. ³ A condition of the order releasing her was that she remain in Ohio. ⁴

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During the evening of September 28, 1977, Markonni, on assignment at the Atlanta International Airport, recognized Williams as she departed a nonstop flight from Los Angeles. He was aware of the court order requiring that she remain in Ohio. ⁵ He approached her, identified himself and asked her for identification. Williams produced the same Michigan driver's license she had shown Markonni when he arrested her the prior year in Ohio. She also produced an airline ticket that showed she was about to depart for Lexington, Kentucky. ⁶ Markonni asked whether she had permission to travel outside Ohio. Williams said, "No, this is the first time." When asked why she was going to Lexington, she said, "I live there now."

Markonni arrested Williams for violating the travel restriction of her release order and took her to the airport police office. ⁷ A search of her person made incident to the arrest uncovered a packet of heroin in her coat pocket. Markonni then arrested Williams for violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq.

Markonni took the baggage claim checks from Williams' ticket envelope and retrieved two pieces of luggage she had checked from Los Angeles to Lexington. After Williams refused to consent to a search of the bags Markonni secured them in the airport police office. The following morning Markonni requested a search warrant from a federal magistrate. The Affidavit for Search Warrant that Markonni executed described the luggage and stated that he had reason to believe it contained heroin. He detailed the basis for this belief by giving a sketch of the prior history and the incident at the Atlanta airport. ⁸ The

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magistrate issued the warrant and the resultant search revealed a large quantity of heroin.

The Motion To Suppress

The November, 1977, indictment contained two counts, one based on the heroin found on Williams' person and the other based on the heroin found in her luggage. She moved to suppress all evidence of the heroin. She contended that her arrest upon deplaning was unlawful, therefore evidence of the heroin seized from her person during the search made incident to that arrest should be suppressed. She also contended the search warrant was invalid because its issuance was based in critical part on the information about the heroin found on her person. Accordingly, she argued, evidence of the heroin found in the luggage should be suppressed.

A magistrate heard the motion and concluded the arrest was lawful, the search incident to the arrest was proper, the search warrant appropriately issued and the luggage search was legal. The district court rejected the magistrate's recommendations and sustained the motion, suppressing all evidence of the heroin. The panel majority affirmed.

Arrest Powers

Williams grounds her argument that her arrest was invalid on 21 U.S.C. § 878(3), which describes the power of DEA agents to make warrantless arrests as follows:

Any officer or employee of the Drug Enforcement Administration designated by the Attorney General may

(3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony . . .

The government's brief to the panel advanced two theories in support of its argument that the challenged arrest was authorized by this statute. The first was that Markonni had probable cause to make a warrantless arrest for bail jumping under 18 U.S.C. § 3150. ⁹ The government did not pursue this argument before the en banc court. Like the panel, we reject it.

The government's second theory is that Williams' violation of the conditions of her bond is an offense proscribed by 18 U.S.C. § 401(3) ¹⁰ or by 18 U.S.C. § 3146, ¹¹ or by

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both. The government contends that, because this offense was committed in Markonni's presence, § 878(3)(A) authorized the warrantless arrest. The panel rejected this argument.

The panel held: "A court, not a DEA agent, is empowered by 18 U.S.C. § 401(3) to punish disobedience or contempt of its order by fine or imprisonment." 594 F.2d at 92. From this premise the panel concluded that "DEA agents, therefore, have no implied arrest power under section 401." 594 F.2d at 93. The panel also held that 18 U.S.C. § 3146 did not empower Markonni to arrest Williams, being of the opinion that a violation of a bond condition is not a criminal violation per se. The panel concluded that a violation of a bond condition imposed under § 3146 "merely sets the judicial machinery in motion and empowers a court, not a DEA agent, to determine whether punitive action is warranted." 594 F.2d at 94.

The Issue

The issue before us might best be brought into focus by the posing of seriatim inquiries:

1. Is the violation of a travel restriction imposed by the court, when granting a release pending appeal, an act of contempt under 18 U.S.C. § 401(3)?

2. If it is contempt, is it or may it be criminal contempt?

3. If it is criminal contempt, is it an offense against the United States within the intendment of 21 U.S.C. § 878(3)?

4. Finally, if an offense, is it necessary for the court to act before an arrest may be made for this offense?

Capsulating the foregoing, the issue before us, then, is: Did agent Markonni legally arrest Williams for breach of the court imposed travel restriction in the absence of any initiating request or direction by the court? The panel majority concluded that Markonni could not effect a valid arrest under these circumstances. We conclude otherwise.

The Offense The Winding Road

The journey to our conclusion that the breach of the travel restriction is an offense against the United States for which agent Markonni could arrest Williams required a sorting out and alignment of the history of contempt of court and certain of the pertinent statutory and jurisprudential developments. We shall not attempt an exhaustive discussion of that review but, rather, refer to the authorities cited infra.

Our journey begins with the threshold recognition that the willful breach of a court order imposing a condition of release pending appeal constitutes a contempt of court. Universally and historically, and by the very words of 18 U.S.C. § 401(3), disobedience or resistance to a court's lawful order is contempt of court. ¹²

Contempt A Crime

Contempt has been viewed since time immemorial as a crime. Blackstone unqualifiedly and repeatedly referred to contempt as a crime, as indeed it had been traditionally regarded and punished at common law. 4 Blackstone's Commentaries, 1-6, 119-126, 280-287.

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The Supreme Court has long recognized that contempt is a crime. ¹³ The exact positioning of contempt in the panoply of the criminal law, as earlier alluded to, has been the subject of much confusion, inquiry and dispute. However, one beacon light shines throughout: criminal contempt is and always has been considered a crime. Mr. Justice Holmes declared in Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914):

These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.

In the celebrated case of Green v. United States, 356 U.S. 165, 201, 78 S.Ct. 632, 652, 2 L.Ed.2d 672 (1958), Mr. Justice Black (in dissent) echoed the foregoing observation by Mr. Justice Holmes and added:

As it may now be punished criminal contempt is manifestly a crime by...