Williams v. United States

• Decision Date: 24 December 1969
• Docket Number: 22871.,No. 22870,22870
• Citation: 418 F.2d 159
• Parties: Clarence WILLIAMS and Arlene Jackson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.2d 159 (1969)

Clarence WILLIAMS and Arlene Jackson, Appellants, v. UNITED STATES of America, Appellee.

Nos. 22870, 22871.

United States Court of Appeals Ninth Circuit.

October 17, 1969.

Rehearing Denied December 24, 1969.

Karl N. Stewart, Phoenix, Ariz. (argued) for Williams; Murray Miller, Phoenix, Ariz. (argued for Jackson), for appellants.

Philip S. Malinsky (argued) Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Phoenix, Ariz., for appellee.

Before BROWNING, CARTER, and HUFSTEDLER, Circuit Judges.

Rehearing Denied in No. 22871 December 24, 1969.

HUFSTEDLER, Circuit Judge:

Williams and Jackson were jointly tried and each was convicted for concealing illegally imported heroin in violation of 21 U.S.C. § 174.¹ Both of them appeal, raising the issues: (1) Did the District Court err in denying their motions to suppress the heroin as the product of an illegal search? (2) Did the District Court err in denying their motions for acquittal based upon the insufficiency of the evidence to sustain the jury's implied finding of possession?

We hold: (1) The search was not illegal because Williams' arrest was not as a matter of law a pretext for the warrantless search and because the rule of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, does not apply to searches conducted before June 23, 1969, the date of the Chimel decision; (2) the evidence was insufficient to support Jackson's conviction; and (3) the evidence was sufficient to support Williams' conviction.

Legality of the Search

Jackson and Williams contend that the heroin was the product of an illegal search because Williams' arrest was a pretext for a warrantless search of the Granada Street residence in which he was arrested and because the scope of the search went beyond that properly incident to the arrest.

The Government had probable cause to believe that Williams was a party to a sale of heroin on March 9, 1967. He was not then arrested, but he was kept under surveillance by federal and state law enforcement officers to try to find out the source of the narcotics. On March 30, 1967, federal narcotics agent Watson obtained a warrant for Williams' arrest for the sale on March 9. Federal, state, and city officers met at the Federal Building in Phoenix, Arizona, about 8:00 p. m. on March 30 for the purpose of planning the execution of the arrest warrant. There is a conflict in the evidence as to whether a search of the Granada Street residence was discussed at that meeting. Police Officer Gutierrez testified that the residence search was discussed and planned. Other law enforcement officers testified that there was no discussion about searching the Granada Street residence.

After the meeting, the officers circulated in various locations known to be frequented by Williams. During the period from 5:50 p. m. to 11:40 p. m. defendant Williams was constantly on the move. It was not until he returned to the Granada residence shortly before midnight that the officers located him. Shortly after midnight eight officers entered the residence to arrest Williams. Williams was discovered in the living room. The search began almost immediately and lasted for about one hour and forty-five minutes. Federal agent Watson testified that they were looking for contraband, in particular, narcotics, and for Government money which had been used to purchase narcotics.

Defendant Williams contends that this evidence shows that "the arresting officers, knowing they did not have probable cause to obtain a search warrant for the Granada residence, used the arrest as a vehicle to circumvent the requirements of obtaining a search warrant." The Government agrees that an arrest may not be used as a pretext to search for evidence without a search warrant where one would ordinarily be required under the Fourth Amendment.

Whether or not an arrest is a mere pretext to search is a question of the motivation or primary purpose of the arresting officer. Improper motivation has been found where the arrest is for a minor offense which serves as a mere "sham" or "front" for a search for evidence of another unrelated offense for which there is no probable cause to arrest or search. (See Amador-Gonzalez v. United States (5th Cir. 1968) 391 F. 2d 308; Taglavore v. United States (9th Cir. 1961) 291 F.2d 262.) It has also been found where the arresting officer deliberately delays making the arrest in order to allow the arrestee to enter the premises which the officer desires to search. (Compare McKnight v. United States (1950) 87 U.S.App.D.C. 151, 183 F.2d 977, with United States v. Weaver (4th Cir. 1967) 384 F.2d 879, cert. denied (1968) 390 U.S. 983, 88 S.Ct. 1106, 19 L.Ed.2d 1282.)

There is ample evidence to sustain the District Court's finding that the arrest was not a pretext for the search. The search for contraband was related to the nature and purpose of the arrest. The delay in obtaining the arrest warrant was justified by the quest for more evidence and by the investigation to ascertain the source of the narcotics. The officers proceeded with due diligence to execute the warrant after it was issued by serving Williams wherever he could be found. There is no evidence that the officers deliberately passed up an earlier opportunity to arrest Williams on the warrant. We cannot hold as a matter of law on this record that the primary purpose of executing the warrant upon Williams when he returned to the Granada residence was to search that house. (Compare United States v. Costello (2d Cir. 1967) 381 F.2d 698, with United States v. James (6th Cir. 1967) 378 F. 2d 88.)

Williams was arrested in the living room of the Granada residence. Following his arrest, the officers searched the whole house. The heroin was found in a container on a closet shelf in the northeast bedroom. Chimel v. California, supra, held that a search of the house in which a defendant is arrested is no longer within the bounds of a search incident to an arrest and that the constitutional perimeter of such a search is the person of the arrestee and the area "within his immediate control." (395 U.S. at 763, 89 S.Ct. at 2034.) The Williams search is illegal under the Chimel standard, and the heroin should have been excluded from the evidence if the Chimel rule applies retroactively to searches conducted before June 23, 1969.

The Supreme Court has expressly left open the question of Chimel's retroactivity. (Shipley v. California (1969) 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732; see also Von Cleef v. New Jersey (1969) 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728.) However, in Desist v. United States (1969) 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the Court reiterated the guidelines for determining retroactivity of a new constitutional rule first stated in Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601:

"The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." (394 U.S. at 249, 89 S.Ct. at 1033.)

The Court in Desist said the foremost of the three criteria was the first. If the purpose is to deter misconduct of police officers in conducting a search, the new exclusionary rule will not be given retrospective effect because that purpose is not advanced by penalizing conduct that has already occurred. The exclusionary rule in such cases, the Court observed, was a procedural device to curb illegal police action and not a rule affecting the integrity of the process for finding the innocence or guilt of an accused.

We are unable to see any meaningful difference between the purpose or the effect of the exclusionary rule announced in Katz v. United States (1967) 389 U. S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, affecting the admissibility of evidence obtained by electronic eavesdropping, and the exclusionary rule announced in Chimel, affecting the admissibility of evidence obtained by a search not reasonably incident to an arrest. We conclude, therefore, that the rule of retroactivity stated in Desist with respect to Katz applies in full measure to Chimel. Accordingly, we hold that the rule of Chimel applies only to those searches claimed incident to an arrest, conducted after June 23, 1969.²

The legality of the search incident to Williams' arrest is controlled by the pre-Chimel standards stated in United States v. Rabinowitz (1950) 339 U. S. 56, 70 S.Ct. 430, 94 L.Ed. 653, and Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399: Was the search reasonable under the totality of the circumstances? We think it was. The arrest was for the sale of...