United States v. Lucille Jones , 518 F.2d 384 ( 1975 )

SPRECHER, Circuit Judge.

The primary issues on this appeal are whether the district court erred in determining that there existed an adequate basis for the issuance of a search warrant and that the execution of that warrant and the items seized were proper.

I

The defendant-appellant Lucille Jones was named together with Michael Thigpen in Counts I and VIII of an eleven-count indictment. Count I charged a conspiracy to possess and distribute heroin and cocaine in violation of 21 U.S.C. § 846 and Count VIII charged the use of a communication facility to facilitate the distribution of heroin and cocaine in violation of 21 U.S.C. § 843(b). Since the defendant makes a sufficiency of the evidence claim, we set out the evidence against the defendant in some detail.

On June 12, 1973, Special Agent Lester Scotti of the Drug Enforcement Administration (DEA) obtained pre-recorded government funds and along with a government informant went to the apartment of Michael Thigpen. After negotiating a price for cocaine, Thigpen left to go to his source and returned shortly thereafter and sold Agent Scotti approximately 9.74 grams of a substance containing cocaine for $450.

On June 27, 1973, Agent Scotti telephoned Thigpen at approximately 12:30 p. m. and discussed a possible purchase of an ounce of cocaine. Thigpen told Scotti he did not have an ounce, but that he could get it from his aunt. Approximately fifteen minutes later DEA agents observed Thigpen leave his apartment and go to Jones’ residence. They observed that during this time Jones’ car was parked nearby. Shortly thereafter Thigpen returned to his apartment where Agent Scotti was waiting for him and where Scotti paid Thigpen $1,150 in pre-recorded government funds in exchange for 25.73 grams of a substance containing cocaine.

On July 2, 1973, Thigpen told Agent Scotti over the telephone that his aunt had a quantity of heroin. The next day after Scotti complained that the price was too high Thigpen called his aunt and said, “Hello Lu, this is Michael, Scotti is here with me and he is hollering about the price. He wants to talk to you.” Scotti then took the telephone and said, “Hello Lu, this is Scotti” to which the reply was “I know.” After discussing possible future transactions on the telephone, Scotti told Thigpen to go over to his Aunt Lu’s house and pick up an ounce of cocaine, and that he should call him from there to settle the price.

Thigpen left the apartment and was observed by two agents to enter the defendant’s apartment at approximately 12:45 p. m. At approximately 1:00 p. m. Agent Scotti received a telephone call from Thigpen who said he was at his aunt’s house. Scotti, according to his testimony, talked with the same woman he had previously spoken with, and settled on a price. Agent Adams testified that at approximately 1:10 p. m. he observed the defendant on the second floor landing by her apartment, conversing with Thigpen. Shortly thereafter Thigpen returned to his apartment and in exchange for $2,500 in pre-recorded official advance funds gave to Agent Scotti approximately 28.39 grams of a substance containing cocaine and approximately 22.37 grams of a substance containing heroin.

Finally, on July 10, 1973, Agent Scotti went to Thigpen’s apartment to make another purchase. At 1:20 p. m. Thigpen left the apartment. At 1:00 p. m. defendant Jones was observed leaving her home. A short while later Thigpen’s and Jones’ automobiles were observed parked together several blocks from Thigpen’s residence. Thigpen returned to his apartment and then went out again supposedly to pick up the heroin and cocaine “from his wife.” Upon returning for the second time Thigpen delivered four cellophane packets of narcotic substances, and was then placed under arrest by Agent Scotti.¹

Scotti and other agents than proceeded to the home of defendant Jones, and in the company of Chicago police officers and pursuant to a state-issued warrant searched the premises. No narcotics were found, but the agents seized a piece of paper with the name and unlisted home telephone number of Agent Scotti in the handwriting of defendant Jones. Also seized was approximately $2,000 of United States currency, $800 of which was later found to be pre-recorded government funds which Scotti had used to purchase narcotics from Thigpen.²

In a bench trial the district judge, after denying defendant’s motion to quash the warrant and to suppress the fruits of the search, found Jones guilty as charged and imposed a two-year sentence of imprisonment to be followed by a mandatory three-year parole term. Defendant appeals her conviction.

II

Defendant in the court below argued that the issuance of the state warrant was improper. She alleged that the warrant was obtained through the perjured averments of the state officer. The officer stated in his affidavit that he had been told by a reliable informant that the defendant had sold him a packet of heroin. Defendant on appeal claims that, having filed an affidavit in support of her charge, she should have been accorded a hearing pursuant to United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

The government contends that in fact a hearing was held and that defendant did not seek to prove the charges made in her affidavit. We have examined the record and it shows that after the defendant testified at the motion to suppress hearing the following occurred:

The Court: You may be excused. Call your next.

Mr. Levin [defense counsel]: Your Honor that concludes our presentation.

The Court: That concludes the evidentiary presentation in the motion to quash the search warrant?

Mr. Levin: Yes, it would, your Hon- or as far as the defendant is concerned.

A short while later, the following occurred:

The Court: ... do you propose to put on evidence?

Mr. Burns [government counsel]: As to the motion to suppress?

The Court: Yes.

Mr. Burns: No, I do' not think it is necessary. I can put Officer Brown on, but it is a question as to what is described on the face of the warrant and what was actually seized.

Thus, the defendant never called Officer Brown nor did it request the government do so even when the government indicated it was prepared to make him available. The fact that the defendant filed a verified affidavit alleging that perjurious material was used in gaining the warrant, does not replace the need for defense counsel to make demands at the appropriate time for the witnesses it desires. Given these circumstances, the district judge made a sufficient inquiry concerning the defendant’s motion to quash the warrant and suppress evidence, and properly denied the motion.³

HI

Defendant next contends that federal agents could not conduct a search and subsequently seize materials from her premises on the authority of the state-issued search warrant.⁴ She argues that federal agents engaged in this practice solely because they had insufficient evidence against her to obtain their own warrant.

The mere fact that federal agents accompanied state officers named in the warrant to the premises and participated in the search does not in and of itself require evidence seized to be suppressed. This is neither a case where evidence was seized pursuant to procedures that violated Illinois law and then sought to be used in federal court nor one where the federal agents were looking for evidence of a crime substantially different from the one which state officials were concerned with and for which the warrant issued. Both the local police and federal agents legitimately searched for narcotics and narcotics paraphernalia, the possession or distribution of which violated the laws of each sovereign. The district judge was correct in refusing to grant the motion to suppress evidence on this ground. See generally United States v. Harrington, 504 F.2d 130 (7th Cir. 1974); United States v. Sellers, 483 F.2d 37 (5th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974); Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66 (1953).

IV

Defendant’s final contention with regard to the search warrant is that the articles seized were not adequately described in the warrant and therefore the seizure exceeded the scope of the warrant and the articles should have been suppressed. The warrant authorized the seizure of “heroin, a controlled substance and all narcotic paraphernalia (hypodermic needles).”

The defendant has not argued that the scope of the search was too broad, but rather that the seizure was excessive. What this court said in United States v. Zeidman, 444 F.2d 1051 (7th Cir. 1971), is applicable to the present case.

In the case before us we do not have a situation where the officers were going out of the area prescribed. . A search warrant was regularly and properly issued and with specificity set forth the area to be searched. This was not a rummaging or general exploratory search. . . . While a search must be reasonable under the Fourth Amendment, there were no aspects of unreasonableness in the search presently involved. The narrow question we have here is when a lawful and reasonable search is involved, what objects may be validly seized.

Id. at 1054.

In answering the question of what articles may be seized the Supreme Court’s holding in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is instructive. After first deciding that the warrantless search involved and the scope of the search were permissible, the Court said:

The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for “mere evidence” or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.

Id. at 306-07, 87 S.Ct. at 1650.

In United States v. Cook, 432 F.2d 1093 (7th Cir. 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971), a warrant had been issued to search the premises of one suspected of planting a bomb on a civilian aircraft. Although some items that would be used in preparing a bomb were listed on the warrant, a vise, which was not, was nonetheless allowed into evidence pursuant to broad language within the warrant, the court finding that the articles seized bore a reasonab’e relation to the purpose of the search. Id. 432 F.2d at 1105.

Similarly, in United States v. Teller, 412 F.2d 374 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971), the warrant authorized the seizure of money in connection with a narcotics transaction. In executing the warrant, however, several index cards containing narcotics agents’ license plate numbers were seized. The court held that an officer may seize items that were evidentiary, as well as fruits or instrumentalities of the crime being investigated pursuant to the warrant. Id. at 379.

In the present case it is clear that both local and federal law enforcement officials were investigating narcotics possession and distribution. As to the two pieces of evidence seized, we believe that they come within the designation of either fruits or instrumentalities of the crime or evidence reasonably connected to the alleged behavior being investigated.

Agent Scotti was present during the search and he along with the other federal agents knew that pre-recorded funds had been used for the purchase of narcotics from defendant’s suspected co-conspirator. They had sufficient information to believe that the drugs purchased came from defendant’s apartment (see Part I, supra) and that it would not be unreasonable to find pre-recorded funds there. Thus, when the officers found a substantial quantity of cash in large bills, they could reasonably believe that this was the fruit of criminal behavior, even though the actual identification of the pre-recorded funds did not occur until later.

Similarly, the slip of paper with Agent Scotti’s name and unlisted home telephone number was in the nature of both an instrumentality of crime and evidence reasonably connected to the alleged criminal behavior under investigation. United States v. Teller, supra.

For the foregoing reasons, we find no error in the district court’s decision not to suppress the challenged evidence.

V

Finally, the defendant raises a sufficiency of the evidence claim. We have reviewed the record carefully and since we have concluded that the motion to suppress was properly denied, we conclude that the facts outlined in Part I, supra are sufficient to sustain this conviction.

Affirmed.

1 . Thigpen pleaded guilty to Counts I, VIII and IX of the indictment. On the government’s motion the remaining counts against him were dismissed. Thigpen is not a party to this appeal.

2 . Agents testified that at the time of the search Jones explained possession of the bills by stating that she had changed many small bills into larger bills at the grocery store. At her trial Jones claimed that $1,150 of the money seized were proceeds from the sale of a motorbike and the remainder came from Thigpen either as repayment of a loan or for her to hold for safekeeping.

3 . With the exception of the claimed right to a hearing because of alleged perjured averments in gaining the warrant, defendant claims no variance with federal constitutional principles in the issuance of and execution of this warrant.

4 . In actuality, federal agents seized only the piece of paper with Agent Scotti’s name and unlisted home telephone number on it. The money was seized by state officials on the advice of the federal agents and later, after being checked with the list of official funds used, was turned over to federal authorities.