United States v. Teller

• Decision Date: 07 July 1969
• Docket Number: No. 16047.,16047.
• Citation: 412 F.2d 374
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sheldon R. TELLER and John D. Sullivan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

412 F.2d 374 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Sheldon R. TELLER and John D. Sullivan, Defendants-Appellants.

No. 16047.

United States Court of Appeals Seventh Circuit.

June 13, 1969.

Rehearings Denied July 7, 1969.

COPYRIGHT MATERIAL OMITTED

Charles A. Bellows, Jason E. Bellows, Sherman C. Magidson, Bellows, Bellows & Magidson, Chicago, Ill., of counsel, Edwin J. Calihan, Jr., Anna R. Lavin, Chicago, Ill., for appellant John Sullivan.

Thomas A. Foran, U. S. Atty., Edward V. Hanrahan, U. S. Atty., Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel, for appellee.

Before SCHNACKENBERG,¹ KILEY and FAIRCHILD, Circuit Judges.

PER CURIAM.

Defendants, Chicago police officers,² have appealed from their jury convictions, of selling and transporting narcotics in violation, respectively, of 26 U.S.C. § 4705(a)³ and 21 U.S.C. § 174.⁴ Teller individually appeals from his conviction of three similar offenses under 21 U.S.C. §§ 174 and 176a.⁵ We affirm.

At 6:00 p.m. on July 14, 1966, Samuel Washington, a government informant telephoned defendant Teller with narcotics agent Jackson listening on an extension phone. Later that evening narcotics agents searched Washington and equipped him with a Kel-set transmitter. Agent Jackson then drove Washington to the south side of Chicago. Washington met defendant Sullivan, got in his car and rode with him. While the two rode together, narcotics agent Hill overheard their conversation on a Kel-set receiver tuned to Washington's transmitter. Washington told Sullivan that he wanted to restock and gave Sullivan $1,500 in currency whose serial numbers had been recorded by government agents. Sullivan responded that he would have to see "Shelly" first. The two men arranged to meet the following day when Washington said he would have additional money.

A week later Jackson listened to various telephone conversations between Washington and Teller during which they arranged a meeting later that night. Before this meeting Washington was again searched, equipped with a Kel-set transmitter, and given recorded currency. Washington met both defendants, told Teller that he wanted one-fourth of a "kilo" of heroin, that he had $3,000, and asked when he could get it. Sullivan said it would be later, and Washington told defendants he would await their call at his motel room. Agent Hill overheard this conversation on his Kel-set receiver.

The next day agent Jackson listened while Washington talked to each defendant on the phone. Teller told Washington he had not met him because narcotics agents were in the vicinity. Washington arranged to meet both defendants at the rear of another motel to which he had moved. Agent Jackson saw defendants drive to the meeting place in a police car and saw Teller get out and bend down near a pole at the rear of the motel. After they had driven away, Jackson went to the pole, picked up a rolled-up black sock, examined it and replaced it. The defendants soon returned. Washington, equipped with a Kel-set, entered their police car. Teller told Washington that he had the heroin and needed his money in order to "cop" (restock) as he was out of the "stuff." He told Washington that his "stuff" was at the base of the pole. Agent Hill overheard this conversation on his Kel-set receiver. Washington left defendants' police car, found the rolled-up sock, and delivered it to agent Jackson.

The Bureau of Narcotics determined, that same night, that the white powder inside a container in the sock was heroin. The agents obtained federal arrest and search warrants for defendants and their residences. In a search of Teller's residence the next morning, agents recovered heroin, cocaine and marijuana, another rolled black sock containing narcotics, together with narcotics-making apparatus and more than $45,000 in currency, including that previously recorded by the agents, given to Washington and passed by him to defendants. Simultaneously Sullivan's apartment was searched and agents there found several cards on which were recorded six automobile license numbers which had been assigned to narcotics agents.

The foregoing statement of events is from the evidence taken favorably to the government for which Washington was the principal witness. There is no contention that the evidence does not sustain the convictions. The contentions are, principally, that admission into evidence of testimony of agents of what was heard by use of the Kel-set device and of material seized in search of the residences was a violation of defendants' constitutional rights.

The use of the Kel-set transmitter and receiver by agent Hill predates December 18, 1967, the retroactive limit of the rule in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), set by the Supreme Court in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The Supreme Court in the Katz opinion departed from the "trespass" theory of On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), testing the reasonableness of warrantless searches and seizures of informants' words. The On Lee rule consequently is the test of the unreasonableness of the use of the Kel-set before us. Under On Lee, since agent Hill did not trespass upon the persons or premises of defendants, his "eavesdropping" did not violate defendants' constitutional rights. There was, therefore, no error in the district court's admission of agents' testimony.

This court on October 16, 1968 ordered decision on the appeal before us held in abeyance pending final disposition of the appeal in United States v. White, 405 F.2d 838 (7 Cir., 1969). This court's opinion in the White appeal was filed January 7, 1969. The White decision was based principally on the Supreme Court's decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), which is not controlling here. The Supreme Court on April 8, 1969 granted certiorari applied for by the government in White. Despite the fact that granting of certiorari indicates that White is not final, it is our view that it would be imprudent to delay further decision in the appeal before us. The reasons are that we are convinced that no possible development with respect to White in the Supreme Court can influence our judgment we are now making in affirming the convictions here, and the necessity we feel of avoiding unnecessary delay in filing this opinion.

We see no merit in defendant's contention that the Illinois Eavesdropping Act, Ill.Rev.Stat., ch. 38, § 14-1, et seq. (1967), precludes the admission of Kel-set evidence in a federal trial. United States v. Martin, 372 F.2d 63 (7th Cir.), cert. denied, 387 U.S. 919, 87 S.Ct. 2033, 18 L.Ed.2d 972 (1967). Since federal standards govern here there is no violation of the Tenth Amendment.

We see no merit in defendants' challenge of the district court's denial of their motions to suppress the fruits of the searches on the ground that the affidavits on which the warrants issued were insufficient to establish probable cause. The affidavits⁶ are signed by narcotics agent Hill, and substantially state his belief that there is concealed money, fruit of violation of the narcotics laws, at the defendant's residence; that he had information from Washington that Washington had paid Teller $3,000 for narcotics; that he was informed by agent Jackson that Jackson had seen the narcotics delivered; that he had furnished Washington with the money and Washington paid the $3,000 to Teller; and that other named agents informed him they had observed Teller in possession of narcotics paraphernalia. This reasoning also applies to defendant Sullivan.

This court's decision in United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964), is of no aid to defendants. The affidavit there was based on the "rankest sort of hearsay." Id. at 979. We think Hill's affidavits enabled the Commissioner to perform his neutral and detached function of determining probable cause. The affidavit declared the source of Hill's information and the basis of his belief that the money was the fruit of narcotics law violations. More important it informed the Commissioner of the circumstances underlying the narcotics sale. He could have reasonably concluded that Washington was a reliable informant. We think this a common sense interpretation of the affidavits. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We hold that the affidavits sufficiently showed probable cause and that there was no error in the district court's denial of the motion to suppress.

Defendant Sullivan contends that the seizure of several index cards containing narcotics agents' license plate numbers from his apartment was outside the scope of the search warrant. The property specified in the search warrant was "money which is the fruit of a crime. * * *" The defendant has conceded, however, that an officer may seize items which are in plain sight in addition to those specified in a warrant. The agents performing the search noticed these cards on top of a dresser in Sullivan's apartment. Since they were on top of the dresser they were in plain view of the searching agents, and thus properly seized. The mere fact that these cards were evidentiary and not fruits or instrumentalities of the crime does not preclude them from being seized. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Sullivan claims prejudice arising from his misjoinder in indictment and trial with Teller. He relies upon United States v. Spector, 326 F.2d 345 (7th Cir. 1963). In Spector the conspiracy counts in the indictment were not based on the substantive counts, proof of the conspiracy counts was not of the same transaction as the substantive, and the conspiracy counts did not relate to the substantive counts. Clearly Spector has no application here. The several offenses charged here — sale, fraudulent...