United States v. Phillips

593 F.2d 553
Court of Appeals for the Fourth Circuit·Decided December 6, 1978·No. Nos. 77-2353 to 77-2359·Published·Cited by 20 cases

Opinion

BRYAN, Senior Circuit Judge:

Convicted in the United States District Court for Maryland, July 28, 1977, of conspiring to manufacture, possess, distribute and dispense heroin and cocaine, and also of related substantive offenses, including illegal interstate travel, all in violation of the Federal statutes, 21 U.S.C. §§ 841(a)(1), 843(b), 846 (1970) and 18 U.S.C. § 1952 (1970), defendants Richard Jack Phillips, Terry Speech, Crystal Overton, Roberta Shaw, Marzellus Wilson, Ernest L. Bodiford and Charles C. Jones, now appeal. We affirm.

As condensed by their counsel, the “essence of the charged violations” is embodied in the conspiracy count. We review each issue as it is presented and pressed by appellants’ briefs. The criminal operations imputed to the appellant-defendants extended from January 1974 through March 16, 1977, and from Maryland to California, including the District of Columbia and Michigan by the way.1

I.

For pre-indictment investigation, Special Agents of the Federal Drug Enforcement Administration (D.E.A.) obtained three authorizations to intercept telephone communications pursuant to 18 U.S.C. § 2518 (1970). The first was on May 21, 1976, in Ypsilanti, Michigan, for phone numbers 313/485-2562 and 313/415-2451 at Lake in the Woods Apartments; the next was June 21, 1976, in Hillcrest Heights, Maryland, at 3412 Curtis Drive, for phone numbers 301/899-3549 and 301/899-3483; and the last tapped was in Washington, D. C., on June 21, 1976, phone number 202/678-0521, at 2338 24th Street, S.E., which connected with those tapped in Hillcrest Heights. The initial target of the appellants is the validity of these authorizations and the consequent interceptions, particularly those sanctioned for telephone 301/899-3483, at 3412 Curtis Drive, Hillcrest. The contention is that the applications therefor did not meet the prerequisites of the statute, 18 U.S.C. § 2518.

To begin with, appellants challenge the application for failing to disclose probable cause for tapping the 301/899-3483 phone in Hillcrest Heights, as demanded by section 2518(l)(b) of 18 U.S.C. They further charge that none of the three applications demonstrated that other investigative procedures had been tried and failed, or why they should not be tried, id. § 2518(l)(c). Hence, conclude appellants, the interceptions were invalidly authorized and their use deprived the appellants of their Fourth Amendment guarantees. Our reading reveals that in every instance the issuing judge was rightly persuaded of probable cause for the taps, as well as that usual and customary probing efforts would not suffice. Agent Story addressed the courts on all three occasions. Each of the applications complies with the exactions of the statute.

II.

Upon return of the sealed indictment in the Maryland Federal Court on March 16, 1977, Government Agents armed with arrest warrants proceeded to the addresses frequented by the indicted parties. Searches conducted by agents endeavoring to execute the warrants are vigorously attacked by occupants of the premises and possessors of the seized items. The entries [556]*556started at 8219 Redlands Street, Apartment No. 1, Los Angeles, California, in the early morning of March 18, 1977. Appellants Terry Speech and Crystal Overton opened the door in response to the Agents’ knocks and were immediately taken into custody under the arrest warrants. Although told that no one else was in the apartment, one Agent nevertheless searched the place. In this exploration he saw on the night stand in the master bedroom a closed address book, described as having a blue cover without any writing on the outside of it, seemingly a telephone directory. Without express consent of anyone he opened it and found a list of names with telephone numbers opposite. On leaving he took it with him.

Speech and Overton with Phillips unsuccessfully moved to suppress the use of the book as evidence at trial. The motion was not well grounded. The arrests were valid and the Agents looked around the apartment only to ascertain whether Phillips, who lived there, or other indicted persons were present in order to assure their own safety and make additional arrests. The Agents, therefore, had a right to be where they were. The book was in “plain view” and thus subject to seizure at the time of the arrests. Coolidge v. New Hampshire, 403 U.S. 443, 465-67, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

On the same day, March 18, 1977, about 8 a. m., the Agents moved on to the apartment at 2268 West 20th Street, Los Angeles, again armed with arrest warrants, looking for those under indictment, particularly Phillips and one Wagner. These premises were a known gathering place or haunt of the conspirators. The D.E.A. established this information through previous observations over more than' a year. This property had also been under surveillance during the execution of search warrants prior to the return of the indictment. Telephone toll records, too, confirmed the use of the 20th Street apartment by the conspirators.

When the Agents reached this apartment, they sought entrance by rapping on the door, announcing their official capacity and stating their desire to enter. There was no response. Agents placed at the rear of the apartment heard a noise coming from the second floor. Whereupon they looked around for anyone who might be in sight. These efforts failing, they forced their way through the back door, all the while assuring that no one left the house.

The noise from the second floor, the Agents later discovered, was from a radio. No one was found in the apartment, and no search was made for evidence. While looking for people in the apartment, however, one of the Agents saw a telephone address book lying in clear view on a television stand. He opened it and took it away with him, in the belief it might have some evidential value.

At trial, the court denied defendants’ motion for suppression of this book as evidence. This is made a foremost point on appeal. We think that the trial judge was sound in his ruling.

Contrary to appellants’ arguments, we hold that although not carrying a search warrant, the Agents were entitled to force their way into the apartment. As heretofore noted, the premises provided a regular rendezvous for the defendants to use in furtherance of their unlawful activities. The Agents sensed and were persuaded that someone was within but deliberately declining to answer the calls and knocking of the officers, because he or she was a member of the suspected “family” of offenders. Emanation of a noise from the second floor strengthened their conviction of the presence of someone in the apartment. The Agents were knowledgeable in the ways and wiles of narcotics violators.

With this predicate of facts, the Agents were entitled to obtain entry, especially when armed with arrest warrants, despite the absence of a search warrant.

While not identical with the situation at hand, clear precedent for this proposition is found in Rodriguez v. Jones,

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United States v. Phillips, 593 F.2d 553 (4th Cir. 1978).

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