United States v. Cooks

• Decision Date: 13 March 1974
• Docket Number: No. 73-1484.,73-1484.
• Parties: UNITED STATES of America, Appellant, v. Donald L. COOKS, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

493 F.2d 668 (1974)

UNITED STATES of America, Appellant,
v.
Donald L. COOKS, Appellee.

No. 73-1484.

United States Court of Appeals, Seventh Circuit.

Argued December 4, 1973.

Decided March 13, 1974.

Rehearing Denied July 25, 1974.

493 F.2d 669

Henry A. Schwarz, U. S. Atty., E. St. Louis, Ill., Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellant.

H. Carl Runge, Jr., E. St. Louis, Ill., for appellee.

Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and POOS, Senior District Judge.^*

POOS, Senior District Judge.

Detectives Lester Anderson and Lawrence Brewer of the East St. Louis Police Department, detached to the St. Louis Office for Drug Abuse Law Enforcement, initiated surveillance of a house in accord with a request by the East St. Louis Chief of Police. The residence, located at 741 North 31st Street, East St. Louis, Illinois, was surveilled during the hours of 11:30 a. m. to 9:30 p. m. on the date of January 31, 1973. Throughout this prolonged period the detectives observed several individuals arrive by car and then enter and depart the premises within an abbreviated period of time. On one occasion Anderson and Brewer followed an automobile whose passengers had just made such a visit to the residence in question. The automobile was subsequently stopped, the five passengers therein were frisked, but no incriminating evidence was discovered. Thereafter the officers returned to continue their observation of the house. This surveillance was later augmented by detectives and agents of the St. Louis DALE Office, the East St. Louis Police Department, and the Illinois Bureau of Investigation.

At 9:10 p. m. Detectives Anderson and Brewer, accompanied by two other officers, followed another car whose occupants had just made a brief visit to 741 North 31st Street, East St. Louis, Illinois. After following for some distance the vehicle was stopped for investigatory purposes, there being no evidence or testimony adduced at the hearing indicating a traffic violation or other criminal activity. As one of the passengers alighted from the car Anderson observed an envelope which was found to contain a green vegetable substance resembling marijuana. Upon questioning, the man stated that he had purchased the substance at 741 North 31st Street.

Thereafter Anderson and Brewer returned to the residence ostensibly to make a "buy and bust." They were accompanied by a number of officers to the front of the house, while other officers encircled and positioned themselves at the rear of the premises. Anderson and Brewer approached the front door and were admitted by an individual later identified as Calvin Cooks. Calvin Cooks was wearing a shoulder holster with the gun in place. Upon entering the detectives noticed one Willie G. Smith who was wearing an empty shoulder holster; Smith appeared to recognize Detective Anderson at which point a scuffle ensued with Anderson relieving Smith of his gun. Contemporaneous therewith three officers entered the front of the premises. One of these officers, James Walker, went throughout the remainder of the house and searched the premises. He proceeded to the kitchen where defendant Donald L. Cooks was seated at a table containing a number of envelopes, some green vegetable material and a .32 calibre pistol. As Walker entered the kitchen and confronted the defendant, Agents Culp and Bloemker of the St. Louis DALE Office entered through the rear door of the

493 F.2d 670

house. Donald L. Cooks was arrested, the vegetable material was found to be marijuana

Defendant, Donald L. Cooks, was subsequently charged in a one count indictment with knowingly and intelligently possessing with intent to distribute approximately 729 grams of marijuana in violation of Title 21 U.S.C. Sec. 841(a)(1). A pre-trial hearing was conducted pursuant to defendant's Motion To Suppress; the District Court Judge ruled that the evidence in question was seized in violation of the Fourth Amendment to the United States Constitution. The United States Government appeals that decision.

It is evident from the above recital of facts that no search warrant was in existence at or prior to the entry of the premises in issue. The most basic principle in regard to the validity of governmental action of this type is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L.Ed.2d 576. These exceptions are to be "jealously and carefully drawn," and there must be a demonstration by those who seek exemption that the exigencies of the situation made that course imperative. Jones v. United States, 357 U.S. 493, 496, 78 S.Ct. 1253, 2 L.Ed.2d 1514; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. The burden then is on those seeking exemption to show the need for it, and it is a "heavy" burden that must be met. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L. Ed. 59; United States v. Gamble, 473...