United States v. Phillips, 73-2078.

Decision Date05 August 1974
Docket NumberNo. 73-2078.,73-2078.
Citation497 F.2d 1131
PartiesUNITED STATES of America, Appellee, v. William Ross PHILLIPS, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David E. Kenner (argued), of Kenner & Stein, Los Angeles, Cal., for appellant.

William D. Keller, U. S. Atty., Eric A. Nobles, Joel Levine, Asst. U. S. Attys. (argued), Los Angeles, Cal., for appellee.

Before ELY and GOODWIN, Circuit Judges, and MURRAY,* District Judge.


WILLIAM D. MURRAY, District Judge:

William Ross Phillips appeals his conviction for conspiring to distribute controlled substances in violation of 21 U.S. C. § 846 and for possessing, with intent to distribute, cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1). He contends that evidence seized at the time of his arrest should have been suppressed both because the agents lacked probable cause to arrest him and because their entry into his building was illegal. We agree with his second contention and reverse his conviction.

On October 2, 1972, Special Agent Charles Stowell of the Bureau of Narcotics and Dangerous Drugs purchased heroin and marijuana from Jainne Degner and Daniel Carpenter in Long Beach, California. Stowell inquired whether he could obtain more narcotics that day. Degner, in Stowell's presence, called Phillips' office in Santa Monica and asked to speak to Phillips. Stowell heard Degner say, "Well, all right, I'll talk to you," and proceed to order additional quantities of heroin, cocaine, and marijuana from the person to whom she was speaking.

After placing the telephone order, Degner and Carpenter drove from Long Beach to 911 Pico Boulevard, Santa Monica, Phillips' business address. They were followed by agents working under the direction of Stowell. Degner entered the building, remained inside for a short time, and then returned to Long Beach with Carpenter, still followed by agents.

While Degner and Carpenter were being followed to Long Beach, other agents, reinforced by Santa Monica city police, gathered near 911 Pico Boulevard, under the supervision of Special Agent William T. Fuller. All the agents remained in radio contact with each other.

Shortly before Degner and Carpenter reached Long Beach, Agent Fuller decided to enter the building to arrest Phillips, whom he believed to be inside. At this time, the agents of the Fuller team and the Stowell team knew: (1) that Degner and Carpenter had been in the vicinity of 911 Pico Boulevard under surveillance earlier in the day, prior to making the first delivery and sale to Stowell; (2) that Degner had placed a telephone call to Phillips, at a telephone number shown on Phillips' business card, to order a second quantity of narcotics; (3) that, although the telephone number and the street address on the card pointed to Phillips, Degner probably did not speak to Phillips in her telephone call; and (4) that Degner and Carpenter made a second visit to 911 Pico Boulevard, remained a short time and returned to Long Beach. Because the officers entered the building a few minutes before Degner and Carpenter had reached Long Beach with the second delivery of narcotics for Stowell, the officers merely had some reason to believe, but did not know for a fact, that Degner and Carpenter had obtained narcotics from someone at 911 Pico Boulevard. For the purposes of testing probable cause in this case, we disregard the hearsay reports to various police officers to the effect that Phillips was a "dealer."

The agents had traced one known sale and a second probable sale to Phillips' business at 911 Pico Boulevard. They knew that Degner, from whom Stowell had purchased narcotics earlier in the day, had Phillips' business card and had called the number on that card, asking for Phillips. Even though Degner apparently did not speak to Phillips at that time, she was able to arrange a sale by talking to someone at his office. The fact that Degner had Phillips' card and asked for him, together with the recently observed, narcotics-related traffic in and out of his building, constituted sufficient probable cause to believe that Phillips was at least engaged in a conspiracy to distribute controlled substances.

Assuming that the agents had probable cause to arrest Phillips, the question then becomes: was the entry into the building a valid entry?

To gain entry into the building Agent Fuller asked the Santa Monica police officers to help. Under the direction of Fuller, the uniformed officers knocked on the door and asked permission to enter to investigate a report of burglary in the building. (There was, of course, no such report). After some delay, the door was opened by an occupant and the uniformed policemen entered, followed immediately by the undercover narcotic agents, who had emerged from hiding.

Once inside, Fuller identified himself, and announced that he was securing the premises prior to obtaining a search warrant. Phillips was placed under arrest and voluntarily surrendered approximately 178.2 grams of heroin and 15.3 grams of cocaine. Later, approximately forty minutes after the agents had entered, Phillips gave them written permission to search the building. Finally, he surrendered a container containing white powder, which he described as procaine with a trace of cocaine.

The validity of an entry to execute an arrest, either with or without a warrant, is tested by criteria identical to those embodied in 18 U.S.C. § 3109.1 Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). At least three separate purposes are said to underlie § 3109:

(1) It decreases the potential for violence. Particularly, the rule of announcement safeguards "officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there * * *." Sabbath v. United States, supra.
(2) It prevents the physical destruction of property. See Kaplan, Search and Seizure: A NO-MAN\'S LAND IN THE CRIMINAL LAW, 49 Calif.L.Rev. 474, 501 (1961).
(3) It protects the individual\'s right of privacy. See Sabbath v. United States, supra at 589, 88 S.Ct. 1755.

Applying these principles to the entry at issue here, we hold that § 3109 should apply. An unannounced entry at midnight into an occupied and locked office building carries nearly as much potential for violence as an unannounced entry into a private residence. The potential for physical destruction of property is equal in either case. Finally, though respect for individual privacy is probably at its highest when an individual is in his home, his right of privacy is not forfeited when he locks himself into his office instead of his dwelling. See Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). Hence, we conclude that a locked commercial establishment, at least at night, is a "house" as that word is used in § 3109.

Here, federal narcotics agents obtained entry into Phillips' building by crowding in on the heels of uniformed police officers who had "knocked and announced." However, the permission which they elicited to enter was to investigate a report of a burglary, later found to have been invented by the federal agents.

Before the 1968 decision by the Supreme Court in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), this circuit twice held that entry obtained by ruse or deception did not violate 18 U.S.C. § 3109, since no "breaking" was involved. Dickey v. United States, 332 F.2d 773, 777-778 (9th Cir.), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964) (narcotics agent falsely identified himself through a closed door as an informer known to the defendant); Leahy v. United States, 272 F.2d 487, 489-490 (9th Cir. 1959), cert. granted, 363 U.S. 810, 80 S.Ct. 1246, 4 L.Ed.2d 1152 (1960), dismissed by stipulation, 364 U. S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961) (revenue agent gained admittance by stating that he was from the county assessor's office).

In Sabbath v. United States, supra, the Supreme Court held that federal agents, in effecting entry into Sabbath's apartment by opening its closed but unlocked door, did "break open" the door within the meaning of 18 U.S.C. § 3109. The court emphasized, 391 U.S. at 589, 78 S.Ct. at 1190, quoting from its earlier opinion in Miller v. United States:

"* * * The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. * * *." 357 U.S. at 313, 78 S.Ct. at 1198.

However, the Sabbath court later noted:

"We do not deal here with entries obtained by ruse, which have been viewed as involving no `breaking\'. See, e. g., Smith v. United States * * * (supra); Leahy v. United States * * * (supra)." 391 U.S. at 590 n. 7, 88 S.Ct. at 1758.

In Ponce v. Craven, 409 F.2d 621, 625-626 (9th Cir. 1969), cert. denied, 397 U.S. 1012, 90 S.Ct. 1241, 25 L.Ed.2d 424 (1970), we held that entry by deception and without force did not violate a state statute very similar to § 3109. There, police officers directed a motel manager to announce that there was a telephone call for a woman in the room with the petitioner. When the door was opened, the police entered and arrested her and the petitioner. Our holding, however, was limited to an interpretation of the state statute, and Sabbath was not mentioned. We now conclude that our earlier, pre-Sabbath decisions are still good law and should be followed in this case.

We must now, however, look further and determine whether or not use of a ruse entry was warranted under these circumstances.

The Ninth Circuit recently stated in United States v. Glassell, 488 F.2d 143, Dec. 7, 1973:

"Under the rule of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), an officer may legitimately obtain an invitation into a house by misrepresenting his identity as Mann did. If he is invited inside, he does not need probable cause to enter, he does

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