United States v. Love

• Decision Date: 09 January 1973
• Docket Number: No. 72-1453.,72-1453.
• Citation: 472 F.2d 490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harvey Gene LOVE, Jr. and Earline Robin Sweda, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 490 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Harvey Gene LOVE, Jr. and Earline Robin Sweda, Defendants-Appellants.

No. 72-1453.

United States Court of Appeals, Fifth Circuit.

January 9, 1973.

Herschel C. Adcock, Baton Rouge, La., for Earline Robin Sweda.

James L. Dendy, Jr., Baton Rouge, La. (Court appointed), for Harvey Gene Love, Jr.

Gerald J. Gallinghouse, U. S. Atty., Stephen L. Dunne, Mary Cazalas, Asst. U. S. Attys., New Orleans, La., for the United States.

Before RIVES, WISDOM and RONEY, Circuit Judges.

RIVES, Circuit Judge:

A two-count indictment was returned against Harvey Gene Love, Jr., Earline Robin Sweda, and James Clark Bateman. The first count charged that the three accused,

"with intent to defraud, did unlawfully and knowingly possess one hundred and fifty-four (154) counterfeited * * * Federal Reserve Notes * * * each bearing the face value of twenty dollars ($20.00), * * * knowing the same notes to be * * * counterfeited; all in violation of Title 18 of the United States Code, Sections 472 and 2."¹

The second count charged against Bateman alone a like offense for the possession of two (2) counterfeit twenty dollar ($20.00) Federal Reserve Notes. The jury found Bateman not guilty on either count, and both Love and Sweda guilty as to Count One. The district court sentenced Love to be imprisoned for twelve (12) years and Sweda for three (3) years. On appeal, Love and Sweda each insist that the one hundred fifty-four (154) counterfeit twenty dollar ($20.00) Federal Reserve Notes were the fruits of an unreasonable search and seizure violative of the Fourth Amendment and should have been suppressed as evidence. Upon the present record, we have no doubt that the search and seizure were constitutionally invalid and that Sweda's conviction must be reversed. Absent additional evidence, it is equally clear that Love's constitutional rights were violated by the search and seizure. Whether Love's right to relief on appeal has been preserved, however, presents a difficult question.² We conclude that that question also must be decided in favor of Love.³ Each of the questions requires a detailed and careful study of the evidence.

The Evidence

Sergeant George O'Connor of the East Baton Rouge, Louisiana, Sheriff's Office was the first officer to acquire any information about the counterfeit Federal Reserve Notes. Sergeant O'Connor's information came from a local confidential informant whose identity he refused to disclose, but whom he had used before. O'Connor failed either to describe his informant as reliable or credible or to give any basis for such a conclusion. On the hearing of Sweda's motion to suppress, several officers of the East Baton Rouge Sheriff's Office testified. To be exact, we quote pertinent parts of their testimony at length in Appendix "A" to this opinion.

At the close of the evidence on Sweda's motion to suppress, the district judge stated his reasons for denying the motion, which we quote in Appendix "B" to this opinion.

Deputy Sheriff Torrence who seized the counterfeit Federal Reserve Notes from Sweda's purse did not testify on the motion to suppress but did testify for the Government at the trial as follows:

"BY MR. DUNNE Assistant U. S. Attorney:

"Q. Now, did you take the contents out of the purse, or did Miss Sweda take the contents out of the purse?

"A. She did.

"Q. What transpired? Without me asking you questions — First will you tell us what transpired in that room on that evening, for this court?

"A. Well, after a series of event sic then, Sergeant O\'Connor requested she remove everything from her purse; at which time she did.

"Q. Did she object in any way?

"A. No, sir. And upon emptying the purse, she took it and she turned it upside down, and as I recall stated `I was emptying the tobacco out of it.\' The loose tobacco. Upon completing this, I asked her if I could see the purse; and she handed it to me and that\'s when I looked inside and found the cellophane package containing the money.

"Q. All right. Now, what was contained in the cellophane package?

"A. The money.

"MR. KENNON Attorney for Bateman:

Your Honor, I would like to object at this point on behalf of my client to any evidence seized in connection with this case for the reasons set forth in the Motion to Suppress, which the Court has heard.

"THE COURT: Well, the Court has already overruled the Motion to Suppress. So the motion is overruled. The objection is overruled." Vol. III, Rec. pp. 37, 38⁴

Love's counsel did not separately move to suppress the one hundred fifty-four (154) counterfeit twenty dollar ($20.00) Federal Reserve Notes removed from Sweda's purse, nor did he formally object to their introduction in evidence.

The Government's theory throughout the prosecution was that Sweda's possession of the one hundred fifty-four (154) counterfeit twenty dollar ($20.00) Federal Reserve Notes was a possession on behalf of herself and of Love and Bateman. Count One of the indictment indicates that theory by its description of the Federal Reserve Notes and by its express reference to Title 18, Section 2 of the United States Code. Government counsel in his opening argument to the jury explained:

"As to Count One, we have all three defendants charged with possession of these bills. As the judge will instruct you, there are two types of possession, actual and constructive possession. Let me use this pen as an example: If I hold this pen in my hand, I have actual possession of it; but if I place it on the table there and come back to this podium, I\'m not in actual possession of it, but it\'s in my constructive possession, because I can get it any time I want.

"The same reasoning applies in this case here.

"There is no doubt in your minds, I\'m sure, that the bills were in Miss Sweda\'s purse when they were apprehended, 154 of them. All right. Now, she was flanked by two male individuals traveling at a high rate of speed, allegedly going to a neighboring state. We also have the admission of Harvey Love; he claimed these bills were his. Is there any doubt in your mind that he possessed these bills? He could get them at any time he wanted. As a matter of fact, no less than 154 people could have possessed these bills, each one taking a bill. So it\'s easily conceivable that all three of these individuals could have possessed these bills, could have exercised some control or dominion over them, could have dipped into that purse at any time and taken one out at a gas station or a restaurant and passed one during the course of the travels." Vol. III Rec. pp. 128, 129.

The same theory was reiterated in the closing argument of Government counsel. Vol. III Rec. pp. 166, 167.

Sweda's Appeal

Our lengthy reproduction of so much of the pertinent evidence introduced on Sweda's motion to suppress (see Appendix "A" to this opinion) simplifies our task of applying the law to the facts.

The seizure of the Federal Reserve Notes from Sweda's purse was not authorized by any warrant, whether search warrant or warrant of arrest. That fact mandates a strict standard of review.

"The Fourth Amendment forbids every search that is unreasonable and is construed liberally to safeguard the right of privacy. Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 71 L.Ed. 520. Its protection extends to offenders as well as to the law abiding. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 70 L.Ed. 145. The authority of officers to search one\'s house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained. Indeed, the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests. Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime. United States v. Kirschenblatt, 2 Cir. 16 F.2d 202, 203. Go-Bart Co. v. United States, supra 282 U.S. 344, 358 51 S.Ct. 153, 75 L.Ed. 374."

United States v. Lefkowitz, 1932, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877.

"An evaluation of the constitutionality of a search warrant should begin with the rule that `the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.\' United States v. Lefkowitz, 285 U.S. 452, 464 52 S.Ct. 420, 423, 76 L.Ed. 877: The reasons for this rule go to the foundations of the Fourth Amendment. A contrary rule `that evidence sufficient to support a magistrate\'s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people\'s homes secure only in the discretion of police officers.\' Johnson v. United States, 333 U.S. 10, 14 68 S.Ct. 367, 369, 92 L.Ed. 436. Under such a rule `resort to warrants would ultimately be discouraged.\' Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 736, 4 L.Ed.2d 697. Thus, when a search is based upon a magistrate\'s, rather than a police officer\'s, determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,\' ibid., and will sustain the judicial determination so long as `there was substantial basis for the magistrate to conclude that narcotics were probably

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