United States v. Oscar O. Nelson, United States of America v. Willie Wynder, A/K/A Willie Winder , 459 F.2d 884 ( 1972 )

EDWARDS, Circuit Judge.

The concept that a man’s home is his castle is an ancient one. It has had a profound effect upon our legal history. Its application to the innocent and the guilty, the rich and the poor is no figment of the imagination of modern-day judges.

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!” William Pitt, Earl of Chatham, Speech on the Excise Bill.

This appeal involves two unauthorized and warrantless police searches of a dwelling place in the nighttime. Concerning these two searches we find no “exigent circumstances” authorizing disregard of the Fourth Amendment’s ¹ prohibition against warrantless searches of homes. Products of the obviously illegal searches (stolen postal money orders) were introduced at trial of appellants after a motion to suppress had been denied.

We reverse.

Appellants were convicted after a jury trial in the United States District Court for the Western District of Tennessee, Western Division,' on an indictment charging:

“On or about March 25, 1970, in the Western District of Tennessee, Western Division,

WILLARD FREDERICK MANUEL, OSCAR O. NELSON,

WILLIE WYNDER, a/k/a Willie Winder

defendants, with intent to convert same to their own use, knowing same to have been stolen, unlawfully, wilfully and knowingly did receive, cqnceal and retain certain goods and property of the United States of America, to wit; one-hundred and seventy-five (175) postal money order forms, one (1) validating stamp for the United States Post Office at Bourbon, Mississippi, ten (10) limitation stamps in the amounts of $2.00, $5.00, $10.00, $20.00, $40.00, $50.00, $60.00, $80.00, $90.00 and $100.00, respectively, and one-hundred and one United States Postage Stamps, said property being of a value in excess of one-hundred ($100.00) dollars; in violation of Title 18, United States Code, § 641 and Title 18 United States Code, § 2.”

The proofs of appellants’ guilt in this case are very substantial. We recite the facts from the point of view favorable to the government, which the jury obviously believed. United States v. Glasser, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

On March 27, 1970, shortly after midnight, a man identified at trial as appellant Nelson appeared at the Alamo Plaza Motel in Memphis, Tennessee, and registered for himself and a “Mr. and Mrs. Garnett” in two adjoining rooms. Nelson’s nervous conduct, the fact that the Mississippi license number on the car of the parties differed from that supplied by Nelson, the fact that the room clerk thought one of Nelson’s companions was wearing a wig, and the fact that the three backed their car up to the motel and then ran with their luggage to the room aroused the room clerk’s suspicions. When Nelson came back and insisted on leaving the key before the three of them went “out on the town,” the room clerk twice entered the rooms and searched them. He then hailed a passing police car and showed a police lieutenant a memorandum he had typed concerning his observations:

A police stakeout was immediately set upon the two rooms concerned. The police lieutenant then twice entered the rooms in question with the room clerk and they searched the baggage which it contained. Among other things he found the blank postal money orders which were ultimately the subject of the indictment and of the motion to suppress. On the second search he also found a Bank-Americard in the name of Thelma Turner, with a Mississippi address. Inquiry to the National Crime Information Center concerning the numbered postal money orders, the gun and the BankAm-ericard did not produce any information. But inquiry with Mississippi authorities in the county referred to on the Bank-Americard did produce information that a post office burglary had occurred in the vicinity of Leland, Mississippi, in which a large number of postal money orders had been taken.

After the two warrantless police searches had uncovered conclusive proof of the commission of the crime for which appellants have now been convicted, a Memphis police inspector who had arrived on the scene sought a search warrant by an affidavit which referred to the post office burglary near Leland, Mississippi, and listed the stolen money orders among the first of the items sought to be seized. The affidavit for the search warrant also listed items about which the motel manager had given information prior to the illegal police searches. The warrant was issued, appellants were arrested outside the motel, the police entered the rooms and seized the money orders and other items. Appellants were tried and convicted as outlined above.

It is clear, of course, that the motel manager’s consent to and participation in the two warrantless police searches did not serve to waive appellants’ constitutional rights in relation to their rented rooms. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

In this case there were five searches of residential premises. Only the last was protected by a search warrant.

The first two searches were conducted by the motel manager. His testimony, which was accepted by the District Judge, was that he acted on his own initiative and not as a police agent. These searches were probably violations of state trespass laws, but the Fourth Amendment’s prohibition against unreasonable searches is addressed only to state action:

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the'right of seizure by process duly issued.” Bur-deau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921).

The District Judge held in effect that the police were entitled to employ the evidence uncovered by these two searches and we agree. Burdeau v. McDowell, supra; United States v. McGuire, 381 F.2d 306 (2d Cir. 1967).

The District Judge also held, however, that the information derived from the first two searches by the motel manager furnished reasonable cause for the warrantless police searches and the seizure of the evidence admitted at trial. He relied in part upon his view that the appellants might at any time have returned and removed the evidence.

As we have noted, however, from the moment of police arrival on the scene up to the actual arrests, there had been a police cruiser (later two) “staked out” in surveillance of the motel rooms. Further, the “exigent circumstances” exceptions which allow warrantless searches and seizures are narrowly construed, pa4-ticularly when they are sought to be applied to residential premises.

These exceptions to the general requirement of a search warrant include the following categories. But none of them appear applicable to the facts of this case.

1) These searches were not searches of an automobile. See Chambers v. Ma-roney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

2) These searches were not incident to lawful arrests. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

3) These searches were not based on the plain view doctrine. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

4) They were not based on consent. See Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L.Ed.2d 684 (1969); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, rehearing granted and reversed on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947).

5) They were not based upon an immediate threat to life. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963); United States v. Barone, 330 F.2d 543 (2d Cir. 1964).

6) They did not occur while the officers were in hot pursuit of a fleeing felon. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

On this point our court adheres unanimously to the view of such exceptions recently stated by Mr. Justice Stewart in his opinion for the Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971):

“Thus the most basic constitutional rule in this area 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-delinea]ted exceptions.’5

5. Katz v. United States, 389 U.S. 347, 357, [88 S.Ct. 507, 514, 19 L.Ed.2d 576].

The exceptions are ‘jealously and carefully drawn,’6 and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’7

6. Jones v. United States, 357 U.S. 493, 499, [78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514].

7. McDonald v. United States, 335 U.S. 451, 456, [69 S.Ct. 191, 193, 93 L. Ed. 153].

‘[T]he burden is on those seeking the exemption to show the need for it.’8

8. United States v. Jeffers, 342 U.S. 48,” 51, 72 S.Ct. 93, 95, 96 L.Ed.2d 59].

Coolidge v. New Hampshire, supra at 454-55, 91 S.Ct. at 2032.

What has given us most concern in this case, however, is what effect, if any, the search warrant, issued after the two unconstitutional police searches, might appropriately be given in authorizing the admission into evidence of the postal money orders. It is clear that there was evidence available to the police from the moment of their arrival at the motel concerning appellants’ possession of tools (including a cutting torch), a sack of money, and guns — evidence more than sufficient to arouse keen (and appropriate) police suspicion. What the police did not know, however, was that a crime had actually been committed and that appellants were in possession of the loot. These two vital aspects of information were secured by the two unconstitutional searches.

The affidavit filed by the inspector did not rely primarily upon the legally obtained information. It relied * directly upon the information illegally obtained by the two warrantless searches made by the police lieutenant first on the scene:

“AFFIDAVIT FOR SEARCH WARRANT

STATE OF TENNESSEE,

COUNTY OF SHELBY,

“PERSONALLY APPEARED BEFORE ME, ■

C. R. Boatright

and makes oath that there is probable cause for believing that the laws of the State of Tennessee have been and are being violated by:

Unknown occupants

“BY having in his or her possession, contrary to the laws of the State of Tennessee: Postal Money Orders, U.S. Savings Bonds, coin collection, guns, any stolen contraband, taken in a burglary in Leland, Mississippi, Washington County in the last three days, and burglary tools.

“Affiant’s reason for believing that there is probable cause: The affiant has received information from a reliable source, this source having given other information proven to be correct by independent investigation that said source has seen in the past ten hours (10) Postal Money Orders, U. S. Savings Bonds, coin collection, guns and burglary tools being kept at the below described premises.

“IN or upon the following described property, situate in the City of Memphis, County of Shelby, State of Tennessee, to wit: The first multiple unit on the north side of Summer west of Lester, the second door from the south end of the unit, this door is painted blue with orange awning over the door, the door facing west into the parking area. Commonly known as the Alamo Plaza Motel room 7034 located at 2862 Summer, Memphis, Shelby County, Tennessee.

“AFFIANT, therefore, asks that a search warrant issue to search the person and premises described for evidence of the aforementioned law violation, where the affiant believes the said contraband to be.

/s/ C. R. Boatright Affiant

“Subscribed and sworn to before me this 27 day of March 1970

/s/ BERNIE WEIMAN Judge

"Officer to whom issued: C. R. Boatright Date: March 27, 1970 Time: 9:05 A.M."

It is clear to us that the crime itself as referred to in this affidavit became known to the Memphis police only through the unconstitutional searches and that the Postal Money Orders which appellants were convicted of possessing became known only through the two unconstitutional searches. There is no “independent source” for the fruit of this “poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

Under these circumstances we can see no basis for holding that the warrant obtained by Inspector Boatright was valid or that it would have issued absent the critical information derived from the two unconstitutional police searches.

Further, if it be suggested that after excision of the information derived from the illegal police searches there still remained enough information to justify issuance of a search warrant for burglar tools under Tennessee law, I concur with the analysis of this issue set forth in the concurring opinion of Judge Miller.

We recognize that appellees rely upon authority from several Courts of Appeals. Howell v. Cupp, 427 F.2d 36 (9th Cir. 1970); James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150 (1969); United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966). Cf. Clay v. United States, 246 F.2d 298, 304 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed. 2d 69 (1957). We think these cases are markedly different as to facts and in-apposite as to our instant problem. They are really an application of the harmless error rule — a rule with which we certainly do not disagree.

But they differ factually from our instant case in at least three major aspects:

1) None of them involved warrantless police invasion of a dwelling.

2) In each of them the warrant ultimately secured could appropriately have been issued if the improperly acquired information had been omitted.

3) In three of them no evidence attributable to an unconstitutional search was admitted at trial. In Howell v. Cupp, supra, the court held that untainted evidence in the affidavit standing alone was sufficient to validate the warrant.

Of course, the fact that probable cause might have been (but was not!) presented from the facts known to the Memphis police before the two warrant-less police searches does not serve to validate an otherwise illegal search. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

We are concerned by the fact that the unconstitutional police intrusions in this case now occasion our setting aside judgments of conviction of persons who had been found guilty of crime in an otherwise lawful jury trial. But the alternative of affirmance on this record would in our judgment lead to widespread disregard of one of the most cherished rights of the American people. Constitutional protection of the home cannot be maintained if police can freely enter without judicial warrant, search at will, and then employ any information thus found to secure a judicial search warrant and on its strength seize and introduce in evidence the product of the original unconstitutional invasion of the home.

In 1925 Mr. Justice Butler, writing for a unanimous Supreme Court, decided the fundamental issue which we face:

“While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, 116 U.S. 616, 624 et seq., 630 [6 S.Ct. 524, 29 L.Ed. 746]; Weeks v. United States, supra, [232 U.S. 383] 393, [34 S.Ct. 341, 58 L.Ed. 652]; Silverthorne Lumber Co. v. United States, supra, [251 U.S.] 391, [40 S.Ct. 182]; Gouled v. United States, 255 U.S. 298, 308 [41 S.Ct. 261, 65 L.Ed. 647]. The protection of the Fourth Amendment extends to all equally, — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants for that purpose. Thus, the National Prohibition Act, approved October 28, 1919, c. 85, Tit. II, § 25, 41 Stat. 305, 315, provides that no search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor or is in. part used for business purposes, such as store, shop, saloon, restaurant, hotel, or boarding house. And later, to the end that government employees without a warrant shall not invade the homes of the people and violate the privacies of life, Congress made it a criminal offense, punishable by heavy penalties, for any officer, agent or employee of the-United States engaged in the enforcement of any law to search a private dwelling house without a warrant directing such search. Act of Nov. 23, 1921, c. 134, § 6, 42 Stat. 222, 223. Safeguards similar to the Fourth Amendment are deemed necessary and have been provided in the constitution or laws of every State of the Union. We think there is no state statute authorizing the search of a house without a warrant; and, in a number of state laws recently enacted for the enforcement of prohibition in respect of intoxicating liquors, there are provisions similar to those in § 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. See Entick v. Carrington, 19 Howard’s State Trials, 1030, 1066. Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. See Temperani v. United States [9 Cir.,] 299 F[ed]. 365; United States v. Rembert, [D.C.,] 284 F[ed]. 996,1000; Connelly v. United States, [D.C.,] 275 F[ed]. 509; McClurg v. Brenton, 123 la. 368, 372, [98 N.W. 881]; People v. Margolis, 220 Mich. 431, [190 N.W. 306]; Childers v. Commonwealth, 198 Ky. 848, [250 S.W. 106]; State v. Warfield, 184 Wis. 56, [198 N.W. 854]. The search of Frank Agnello’s house and seizure of the can of cocaine violated the Fourth Amendment.” Agnello v. United States, 269 U.S. 20, 32-33, 46 S.Ct. 4, 6-7, 70 L.Ed. 145 (1925).

Agnello has never been overruled and has recently again been relied upon. See Vale v. Louisiana, 339 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

The judgments of conviction are reversed.

1 . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.Const. amend. IV.