United States of America v. Joseph P. Branch, Appellant.united States of America v. Eric B. Garrison, Appellant, 545 F.2d 177 (D.C. Cir. 1976)

Rather than attacking the facial validity of the affidavit, appellant Branch focuses his argument upon certain material representations in the affidavit, which he alleges to be false. In opposition, the government argues that introduction of evidence to contest the allegations in an affidavit for a search warrant is impermissible. The extent to which the factual accuracy of a facially sufficient affidavit may be controverted by evidence outside its four corners has not yet been settled by the Supreme Court.²  Obviating any possibility of error in this respect, the district court afforded appellant Branch a full hearing, over the prosecutor's objection to the propriety of the procedure.

At the hearing, appellant Branch sought to prove that the controlled buy had not, in fact, taken place. Taking the witness stand, appellant testified that he was not at home on the night of the alleged transaction, and also presented other evidence, from which he argued that Clark could not possibly have witnessed the sale in the manner he described. The trial court permitted comprehensive testimony from both sides, and accepted into evidence photographs relevant to appellant's second contention. At the conclusion of the hearing, the trial court specially found the testimony of Clark to be more credible than that of the appellant's witnesses. We thus find it unnecessary to rehash the evidentiary issues involved in the hearing, for there is no indication, viewing the evidence in the light most favorable to the government, that the trial court's findings were clearly erroneous.³  Accordingly, appellant Branch's conviction must be affirmed.

Officer Clark testified that he and several other officers arrived at Branch's apartment at approximately 7:00 p. m. on July 19, 1974, to execute the search warrant.⁴  Upon being admitted into the apartment, they found therein appellant Branch and Carolyn Kelly, who described herself as his "play sister". Leroy Forney, a defense witness, was later found by the officers in a bedroom.⁵  Almost immediately, the police officers discovered a quantity of marijuana on a table in the apartment. Branch was then arrested, advised of his Miranda⁶  rights, and the officers continued their search.

At about 8:15 p. m., the telephone in the apartment rang, and Clark answered. He related this incident, as follows:

I just said "Hello", you know, not very loud, and the voice on the other end said, "J.B.?" and I acknowledged. He then said he's going to come over or he was ready to come over and would nine o'clock be all right. I told him to come earlier, that there was trouble in the building. And he said all right. And that was it. Tr. 55.

The relevancy of the above conversation stems from a tip given by Clark's informant that a shipment of narcotics was expected at the apartment that night. Appellant Garrison subsequently arrived at the apartment between 8:40 and 8:50 p. m. Thus, the government contends it was reasonable to assume (1) that Garrison was the other party to the telephone conversation, and (2) that he was the person with the expected shipment of narcotics. Further buttressing this conclusion, in the government's view, is the fact that, at the time he appeared on the scene, Garrison was carrying a large canvas shoulder bag suitable for transporting narcotics.

Officer Clark's testimony concerning the seizure and search of appellant Garrison, which was obviously credited by the trial court, was to the following effect: When Garrison knocked, Clark opened the door for the appellant. Garrison entered while looking over his shoulder toward the hallway behind him, and he apparently did not realize that a police officer was admitting him into the apartment.⁷  Clark immediately identified himself, informed the appellant that a search warrant was being executed, and gave Garrison the Miranda warnings. Garrison was then told by Clark that he would be searched and, if narcotics were found, would be arrested. Garrison's reaction was to drop his head, exclaim "I'm busted!", and let his canvas bag drop to the floor.⁸  When Clark questioned appellant about the contents of the bag, Garrison told the officer, "That's it." The bag was immediately searched by the officers and found to contain a quantity of cocaine and marijuana.

The government has not sought at any time to justify the seizure of narcotics from appellant's shoulder bag as a valid exercise of the authority granted by the warrant to search the apartment, cf. Appellee's Brief, at 46, recognizing that such a warrant did not authorize the search of all persons who may have been present. United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). See also United States v. Haywood, 284 F. Supp. 245 (E.D. La. 1968).

The concept that a premises search warrant does not embrace personal searches has presented some difficulty in application. In Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597 (1963), this court held that a wallet and paper bag, passed by one occupant of the residence to the other, were both within the scope of the warrant. The court concluded that the fact that the items were held in one of the occupant's hands did not make the search a personal one. In United States v. Teller, 397 F.2d 494 (7th Cir. 1968), cert. denied, 393 U.S. 937, 89 S. Ct. 299, 21 L. Ed. 2d 273 (1968), the search of a woman's purse was upheld on the basis of a premises search warrant. Resolution of the issue of the legality of the search apparently rested upon whether the seized item had been within the physical possession of the woman at the time of the search. The Teller and Walker holdings were criticized by the First Circuit in United States v. Micheli, 487 F.2d 429 (1st Cir. 1973)⁹  In Micheli, the extent to which personal effects lie outside the scope of a premises search warrant was said to turn upon the "relationship between the person and the place." Id., at 431. The Micheli court reasoned that an occupant of a residence which is being searched loses the privacy interest in his belongings situated there; however, a transient visitor retains his expectancy of privacy, and it makes little difference whether his belonging is being personally held by him or has been set down temporarily. Id., at 432.

The holdings made in Teller and Walker have retained their vitality in this circuit. In United States v. Johnson, 154 U.S.App.D.C. 393, 475 F.2d 977 (1973) (Bazelon, C. J., dissenting), this court held a purse in the apparent possession of the non-occupant appellant was within the scope of the questioned premises search warrant. Noting that the purse searched by the officers was situated apart from the person of its owner, the court, citing Teller, concluded that the search "did not constitute an extension of her person so as to make the search one of her person. * * * The invasion of appellee's privacy was therefore of a lesser degree than if she had been subjected to a search of her clothing or of objects being held by her." Id., at 979.

Thus, while such personal items as the shoulder bag under consideration may, in some circumstances, be found to be within the ambit of a premises search warrant, we are here persuaded otherwise. Appellant was not in the apartment when the search began, nor was he offered the opportunity to leave immediately upon discovery of the search in progress. He was apparently a mere visitor; his relationship to the premises was not known, but was at best the subject of speculation. At the time of his entry into the apartment, the bag in dispute was suspended from his shoulder. Under these circumstances, we conclude that none of the cited authorities would support a finding that the search of appellant's shoulder bag was authorized by the search warrant for the apartment.

The government relies most heavily upon its contention that the search was incident to a valid arrest. Our analysis of the facts presented in this connection is similar to that of the Court in Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964):

The constitutional validity of the search in this case . . . must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-76 (69 S. Ct. 1302, 1310-1311, 93 L. Ed. 1879) (1949).

Despite Clark's protests to the contrary, the prosecutor at trial conceded, and the trial court found, that Garrison was arrested when he entered the apartment. This finding is fully justified by the record. However, even if this were not the case, it is abundantly clear that Clark announced his intention to search appellant Garrison immediately upon the latter's entry.¹⁰  If a full search was undertaken, probable cause to arrest was required, despite the fact that the "formal" arrest was not accomplished until after the search.¹¹  United States v. Brown, 150 U.S.App.D.C. 113, 463 F.2d 949 (1972); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967).

It is the contention of the government, and the ruling of the court below, that probable cause existed to arrest the appellant upon his arrival at the apartment.¹²  In support of this conclusion the following factors have been cited: (1) the informant's tip that controlled substances would be found in the apartment had been verified; (2) the informant had also indicated that a shipment of narcotics was expected at the apartment that night; (3) Clark had intercepted a telephone call and engaged in the conversation earlier set forth; (4) appellant Garrison arrived within the time frame mentioned in the telephone call; (5) he was an adult male, as was the telephone caller; and (6) he was wearing a large shoulder bag, which was suitable for concealing narcotics. Relying on the above factors, Officer Clark concluded that he was warranted in searching the appellant. Appellant Garrison maintains that the police did not have probable cause to arrest and search him, contending that he was a victim of a "general sweep" that included everyone arriving at the apartment on that night, all of whom were illegally searched.

Although there was diametrically conflicting testimony concerning the extent of other searches in the appellant's apartment on the evening in question, we perceive no infirmities in the trial court's findings under the "clearly erroneous" standard of Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862 (1965). Ms. Kelly, who was at the apartment when the police arrived, stated that the officers searched her purse. Another witness, Dixon, testified that his person was searched but he also gave evidence that the search occurred between 5:30 p. m. and 6:00 p. m., well before the time appellant Branch testified that he arrived at home, and also long prior to the time the officers testified that they came upon the scene. The witness Jeri, appellant's "girl friend", related that she arrived at the apartment between 8:30 p. m. and 9:00 p. m., and that her bag was searched. Finally, the testimony of a Mr. Forney¹³  was to the effect that his pockets were searched by the officers, when he came to the apartment.

In corroboration of his witnesses, Garrison testified that two women had come to the apartment during the search, and that their hand bags were searched. On the other hand, Clark asserted: "Well, we didn't have any female with us, so none of the girls were searched."¹⁴  Nevertheless, in closing argument the prosecutor conceded, ". . . as to the arrival of the other people at the front door, they all came to the door voluntarily . . . They were all searched one degree or another by the police at least for security precautions, and with the exception of Mr. Forney all were permitted to go."¹⁵ 

The government urges that searches of other individuals during the execution of the search warrant do not bear on an evaluation of probable cause to arrest the appellant, since Garrison was the only one searched who could be tied to the allegedly incriminating telephone call.¹⁶  Likening the instant factual setting to a "Draper situation",¹⁷  the government maintains that the circumstances of other searches or "pat downs" at the time in issue are not relevant. In Draper, a federal narcotics agent, acting upon a tip from a paid informant, made a warrantless arrest and search of the petitioner. The Court found that probable cause to arrest existed, because the information from the informant was explicitly detailed and corroborated by events as they transpired.¹⁸  It is our view that the present situation is a far cry from that described by the court in Draper. Officer Clark's informant told him that there was a shipment of narcotics expected at the appellant's apartment on the night of the search. Nothing further was revealed which necessarily implicated Garrison or anyone else carrying a canvas shoulder bag. The informant did not indicate the time, means, or mode of the delivery, nor the number of persons who would participate in it, whether one or more. Neither did he furnish any further details concerning any individual who might be involved in the consignment, such as, e. g., name, sex, race, age, complexion, height, weight, habits, voice, accent, clothing or accoutrement. In Draper, all of these descriptive items were given to the arresting officers, except for voice and accent.

The government puts great weight upon the intercepted telephone call, contending that Clark reasonably concluded that the caller was likely the narcotics contact. This argument must be examined in the light of the circumstances here shown.¹⁹  While it is true that a quantity of marijuana, hashish, and cocaine was found in Branch's apartment, there was no evidence that the residence was a "shooting gallery", see United States v. Johnson, supra, 154 U.S.App.D.C. at 397, 475 F.2d at 981, or was a place wherein "(u) nder the circumstances . . . 'it (was) plainly unreasonable to infer that anyone else other than a participant (in narcotics use) would be allowed on the premises.' " United States v. Peep, 490 F.2d 903, 906 (8th Cir. 1974). See also United States v. Pentado, 463 F.2d 355, 363 (5th Cir. 1972), cert. denied, 409 U.S. 1079, 93 S. Ct. 698, 34 L. Ed. 2d 668 (1972), 410 U.S. 909 (1973). Nothing in the record indicates that an individual coming to appellant Branch's door would perforce have been presumed to be carrying narcotics, for several people came to his apartment on the evening in question. Nor can it be said in this day and age that a male wearing a shoulder bag is unduly suspect.

While we are somewhat uncomfortable with the proposition, we think it not completely unreasonable for Clark to have surmised that Garrison was the telephone caller.²⁰  But even assuming that Garrison, in fact, made the telephone call, no articulable justification, based on either substance or tone of the conversation, is set out in the record to support the officer's conclusion that Garrison was arranging for the delivery of narcotics. It chanced that the officers were right in suspecting Garrison; however, this same global, undifferentiated suspicion had led to their searching every person who came to the apartment on the particular evening. And it is abundantly clear that a mere suspicion is not enough to justify an arrest;²¹  only probable cause suffices.

" In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, 338 U.S. at 175, 69 S. Ct. at 1310. In this instance, it does not appear that there was reasonable cause for a prudent man to conclude that Garrison was probably the narcotics carrier, simply because he as did several others arrived at the apartment on an evening when a shipment was expected. Even giving incremental effect to the telephone conversation, it seems innocuous and undesigning; the unidentified participant in the conversation was, at most, uncommunicative and non-committal. While this court has repeatedly announced its deference to the informed opinions and conclusions of trained and experienced law enforcement officials,²²  unarticulated hunches have not been found sufficient to support a finding of probable cause.²³  The tenor and tone of the telephone conversation could not reasonably have provided a basis for escalating a prudent man's suspicions to probable cause. It follows that the search incident to the arrest was improper, and the evidence introduced at trial against appellant Garrison should have been excluded. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).²⁴  Without this evidence, the government will be unable to prove its case against Garrison. His conviction is, therefore, REVERSED, and it is ORDERED that the prosecution be dismissed.