author: HEANEY, Circuit Judge. GIBSON, Circuit Judge

text:
    Robert Dean MATTIS, M.D., Appellant, v. Patrolman Richard R. SCHNARR et al., Appellees.
    No. 73-1511.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1973.
    Decided Aug. 23, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 8, 1974.
    Gibson, Circuit Judge, dissented and filed an opinion..

      Eugene H. Buder, St. Louis, Mo., for appellant.

      Eugene K. Buckley, and F. Douglas O’Leary, St. Louis, Mo., for appellees.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

Plaintiff appeals an order entered in this civil rights action by the United States District Court for the Eastern District of Missouri denying his prayer for damages and declaratory judgment.

The case was tried below upon stipulated facts. The plaintiff’s minor son, Michael, age eighteen, was shot and killed by defendant Marek, a police officer, while attempting to escape arrest. Michael and another youth, Thomas Rolf, age seventeen, had entered the office of a golf driving range at night for the purpose of taking money by opening an unlocked window. Marek and another officer attempted to arrest the two youths who ran in different directions. Marek ran into Mattis, Mattis broke away and Marek pursued. Marek was losing the race and shouted, “Stop or I’ll shoot.” Mattis failed to stop and Marek fired one shot (he believed he fired well above Mattis) which struck Mattis in the head. Marek and the other officer would:

* * * testify that their use of their guns in the manner described was reasonably necessary under the circumstances and was authorized by the statutes of the State of Missouri and that such statutes were valid and lawful.

Mattis v. Kissling, et al., Civil No. 72-Civ. (3) (E.D.Mo., filed January 16, 1973).

The trial court initially held that the plaintiff had standing to bring this action under Title 42 U.S.C. § 1983. It reasoned that the section did not create a new cause of action in favor of a person for the wrongful death of another, but that § 1988 of the same title authorizes resort to state law to determine whether a cause of action survives for the wrongful death of another. Prit-chard v. Smith, 289 F.2d 153 (8th Cir. 1961). It further reasoned that since Missouri law (V.A.M.S. § 537.080) permits a father to bring a wrongful death action for the death of an unmarried min- or son, the father had standing to bring this action.

The court went on to hold, however, that the defense of good faith was available to the defendants as they had acted in reliance on Missouri statutes which permit a law enforcement official to use deadly force in apprehending a person who has committed a felony. The court reasoned that the defense of good faith was available even if the statute was unconstitutional as the defendants had acted on the reasonable belief that it was constitutional. It concluded that no jus-ticiable issue was present which permitted declaratory relief.

The plaintiff then moved for a new trial and entry of a new judgment. The trial court modified its position with respect to the plaintiff’s standing in its order denying that motion. It stated:

Plaintiffs * * * claim for the wrongful death of Michael C. Mattis is derivative. None of their own civil rights are alleged to have been violated. “While a party may vindicate his own constitutional rights, he may not seek vindication for rights of others.”

The trial court also advanced an alternative reason for denying relief:

* * * Plaintiffs seek declaratory relief and not injunctive relief. Only a three-judge court could enjoin the enforcement of a state law. 28 U.S.C. § 2281. It seems to this court particularly inappropriate to be asked to make a declaration that a statute is unconstitutional, without the power to enforce that holding and without that holding having any binding effect upon any other court. Plaintiffs presumably could have asked for injunc-tive relief and sought a three-judge court for that purpose, but they did not elect to do so. “In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental process of passing and enforcing laws, it can seldom fee appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.” Younger v. Harris, [401 U. S. 37] at 53, 91 S.Ct. 746, 27 L.Ed.2d 669 [1970].

We agree with the trial court’s initial conclusions that the plaintiff had standing, and that the defenses of good faith and probable cause were available to the officers insofar as the action for damages was concerned. We cannot agree, however, that good faith is a defense to the action insofar as declaratory relief is concerned. Nor can we agree with declaratory relief is otherwise inappropriate.

The plaintiff’s right to declaratory relief is not dependent upon a showing that he is entitled to injunctive or monetary relief.

* * * Where there is * * * a concrete case admitting of an immediate and definite determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. * * * And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. [Citations omitted.]

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).

Declaratory and injunctive relief, while similar in some respects, are distinct remedies. One testing the constitutionality of a state statute in federal court may ask for declaratory relief only. He need not ask for injunctive relief; and if he does not do so, a single judge can hear the case and give declaratory relief as appropriate.

In Powell v. McCormack, 395 U.S. 486, 517-518, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491 (1969), the Supreme Court stated:

We need express no opinion about the appropriateness of coercive relief [mandamus or injunction] in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may “declare the rights ... of any interested party . . . whether or not further relief is or could be sought.” The availability of declaratory relief depends on whether there is a live dispute between the parties * * * and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. * * * [Citations omitted.]

See also, Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 544, 9 L.Ed.2d 644 (1963); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

Moreover, the defense of good faith is only what its name implies. It is a defense which shields a public official from being required to respond in damages. It is intended to avoid penalizing an official who acts in the good faith belief that he is acting in accordance with a valid law. The defense cannot be permitted to serve as a‘reason for denying equitable or declaratory relief in appropriate situations.

We also find unpersuasive the trial court’s other alternative ground for dismissing the case. A declaratory judgment would not, as the trial court suggests, be totally ineffectual. Such a judgment has “ * * * the force and effect of a final judgment or decree and is [reviewable as such] * * 28 U.S.C. § 2201. The judgment is res ju-dicata and the doctrine of collateral es-toppel is applicable. Wright & Miller, Federal Practice and Procedure Civil § 2771. The judgment is precedential as to the matters declared by it. Annot., 10 A.L.R.2d 782, 785 (1950). Most importantly, if the statute is declared unconstitutional, a defense based on a good faith belief of the statute’s validity would no longer be available.

Moreover, no considerations of comity, federalism or abstention justifying the court in refusing to proceed are present here. Compare, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

The critical issue then is whether the plaintiff had standing. We believe the trial court’s initial views on this matter were the correct ones. There are two aspects to this question: (1) the party seeking relief must show that he is sufficiently affected by the action he is challenging to justify consideration by the court of the validity of the action; and (2) the action violates the rights of the particular party who is attacking it and not of some third party. Sedler, Standing to Assert Constitutional Jus Tertii in the Supremé Court, 71 Yale L.J. 599, 599-600 (1962).

We believe the plaintiff showed that he would be sufficiently affected by the killing of his son to justify the courts considering the matter. The Missouri Wrongful Death Act (V.A.M.S. § 537.080) creates a vested right in the plaintiff to bring suit for the death of his minor son. Spencer v. Bradley, 351 S.W.2d 202, 207 (Mo.1961). The right of action is not derivative. The Missouri Supreme Court has said:

It is now [well] settled that the causes of action provided by these statutes are not either derivative, transmissible, or survival causes of action, but are new causes of action springing into being and accruing on and by reason of the death of the party injured in favor of the persons named in the statute.

Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo.5319, 73 S.W.2d 205, 211 (1934).

Further, the Missouri Supreme Court has declared:

* * * [T]he true ground of recovery by a parent in such cases arises from the reciprocal duty of the child to render to its parent such services or earnings as the latter may reasonably expect of it. * * * * * * * * *
We hold that the right of a parent to a minor’s services is in the nature of a personal right arising out of the family relationship, and is not a property right arising out of a psuedo contractual relationship.

Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960, 962 (1949).

Thus, it is clear that Dr. Mattis is an injured party under § 1983, that he is suing in his own right for injuries personally sustained, and that he is sufficiently affected by action challenged to fulfill the first aspect of standing.

We turn to the more difficult question of whether the killing of the plaintiff’s son invaded the plaintiff’s constitutionally protected rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

To determine whether a right is protected by the due process clause, a court must look to the “traditions and (collective) conscience of our people” to determine whether a principle is “so rooted (there) . . . as to be ranked as fundamental.” Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (54 S.Ct. 330, 332, 78 L.Ed. 674). The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ ..” Powell v. State of Alabama, 287 U.S. 45, 67 (53 S.Ct. 55, 63, 77 L.Ed. 158) Griswold v. State of Connecticut, supra, 381 U.S. 479 at 493, 85 S.Ct. 1678 at 1686, 14 L.Ed.2d 510 (concurring opinion, Goldberg, J.).

United States v. State of Texas, 252 F.Supp. 234, 250 (D.C.Tex.), aff’d, 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434 (1966).

The Supreme Court has on numerous occasions observed that the framers of the Constitution intended to protect rights other than those specified.

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there were additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

Griswold v. Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 1684, 14 L.Ed.2d 510 (1965) (Goldberg, concurring).

In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), the Court stated:

While this court has not attempted to define’ with exactness the liberty thus guaranteed [Fourteenth Amendment guarantee against deprivation of life, liberty, or property without due process of law], the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. * * * The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts. * * * (Citations omitted and emphasis added.)

The familial relationship between parent and child is fundamental to our civilization. The family is the foundation of society and hence the state. The traditions and common heritage of our people have always stressed the importance of the family bonds.

Lo children are an heritage of the Lord: and the fruit of the womb is his reward.
As arrows are in the hand of a mighty man; so are the children of the youth.
Happy is the man that has his quiver full of them: they shall not be ashamed, but they shall speak with the enemies in the gate.

Psalm 27:3-5. We do not believe that the Constitution excludes this fundamental relationship from its protection.

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.
* * * The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution. (Emphasis supplied.)

Griswold v. Connecticut, supra, 381 U.S. at 495-496, 85 S.Ct. at 1688.

The practical effect of Officer Marek’s act was to deny the plaintiff the fundamental right to raise his son. The plaintiff has a right to have the validity of the act determined. It is insufficient to say that since you cannot recover damages, you cannot challenge the statutes which occasioned the loss. Such a result would leave the plaintiff without a remedy. Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102-103, 2 L.Ed. 60 (1803), noted that such a result was untenable.

* * * If he has a right, and that right has been violated, do the laws of this country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. * * * * -X- -x- * 'X* *
“ * * -x- [E]very right, when withheld, must have a remedy, and every injury its proper redress.”
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appelation, if the laws furnish no remedy for the violation of a vested legal right.

We believe that “parenthood is a substantial interest of surpassing value and protected from deprivation without due process of law” — a fundamental legal right. The plaintiff alleges that this fundamental right has been invaded. The only way to determine this issue is to examine the constitutionality of the statutes and a declaratory judgment action is an appropriate method to do this.

Finally, we turn to two questions raised by the dissent: whether the defendants have a sufficient stake in the outcome of the declaratory judgment action to meet the case or controversy requirement of Article III, § 1 et seq., and whether it is unfair, in a practical sense, to burden them with the defense of this action.

While it is clear that the judicial power extends only to “actual controversies arising between adverse litigants,” Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1911), we do not agree that defendants lack sufficient adverse interest. The defendants have a stake in the outcome because the declaratory relief sought would define their rights and powers as police officers. They have an interest in assuring that the law governing their official conduct is clear so that they may perform their duties in a manner consistent with the Constitution. This interest is not a financial one, but it is an adverse one, nevertheless. The defendants relied on state statutes in their use of deadly force against plaintiff’s son; clearly, they perceive that those statutes govern their conduct and confer upon them a special power not held by ordinary citizens. The result of a declaratory judgment in favor of the plaintiff would be a curtailment of the power .which defendants assert, and a removal of the defense of good faith in future damage actions.

For these reasons, the defendants do have a “greater legal interest in the question presented by plaintiff than * * * other citizens of Missouri.” This is not to say that police officers can be required to litigate every declaratory judgment suit challenging a state criminal statute. Rather, they may be required on occasion to bear the much narrower burden of litigating the constitutionality of state criminal statutes which set forth their special rights and powers as governmental officers, which they assert shield them from damage actions, and upon which they rely in carrying out their official duties. This suit is no different, from the standpoint of adverseness, than an action for declaratory relief against one or more county voting registrars who exclude certain voters from the ballot in reliance on an allegedly unconstitutional state statute providing for a poll tax, literacy-test, or residency requirement. See, Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939). Cf., Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D.N.J.1972) (state anti-obscenity law declared unconstitutional in action against county prosecutor). Those who would use a statute as a shield must be prepared to defend the constitutional validity of that shield.

Once it is seen that defendants Marek and Schnarr are proper parties, and that a case or controversy does indeed exist, the practical question of whether or not it is unfair to name them as defendants becomes irrelevant. That issue has long since been resolved by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which held that a state official who attempts to assert powers conveyed by an unconstitutional enactment “[is] stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Id. at 159-160, 28 S.Ct. at 454. In numerous cases since that decision, the federal courts have permitted both equitable and legal actions against government officials without pausing to inquire whether or not it is fair that the named defendant bear the burden of the defense. See, e. g., Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (superintendent of documents and public printer); Powell v. McCormack, 395 U. S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (congressional employees); Lane v. Wilson, supra. We add, however, that public agencies have the right to assist in 'the defense of this type of action should they choose to do so.

Since the state has power to intervene under Rule 24, it can, if it so desires, move both to assure that its voice is heard and to assist defendant police officers. A copy of the complaint was mailed to the state Attorney General at the outset of this proceeding and, on remand, it will, of course, be appropriate to give the state an opportunity to be heard on the issue of declaratory relief.

Reversed and remanded with directions to the trial court to determine whether the plaintiff is entitled to have the statutes in question declared unconstitutional. On such remand, it will, of course, be appropriate to give the state an opportunity to be heard on the issue.

GIBSON, Circuit Judge

(dissenting).

I respectfully dissent. The majority’s decision transgresses a fundamental Constitutional limitation on judicial power. In short, there exists no “case or controversy” regarding plaintiff’s request for declaratory judgment that would permit invocation of the judicial process. My disagreement with the majority lies not with the standing of the plaintiff, but with the majority’s failure to discern that the required adversariness of legal interests to render a claim justiciable is absent in this case. This case is not cast in an adversary mold. The defendants have no legal interest in upholding the constitutionality of the statutes under attack nor should they have an obligation to do so.

I agree with the majority that a father should have standing to seek redress for the alleged unconstitutional deprivation of the life of his son. And even though I personally feel that the use of the declaratory judgment statute to challenge the -constitutionality of a state statute is a “back-door” approach to circumventing the requirement of a three-judge district court set out in 28 U.S.C. § 2281, the decided cases support the majority’s holding that a three-judge court is not required in this case. However, I cannot agree that the combination of a plaintiff with standing and a properly constituted court suffices to establish a “case or controversy” in the Constitutional or statutory sense. If a plaintiff does not sue a proper party, no amount of standing and no number of judges can create a justiciable controversy.

The plaintiff asks that we determine that the existence of an actual controversy between him and defendants over their liability for damages under 42 U. S.C. § 1983 may somehow be imputed to his claim for declaratory relief under 28 U.S.C. § 2201. This we cannot, or more accurately since the majority has done so, should not do. The issuance of a declaratory judgment, the same as a resolution of a claim for damages, requires an actual controversy between parties having adverse legal interests. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Paper Carriers Union No. 450 v. Pulitzer Publishing Co., 309 F.2d 716 (8th Cir. 1962); Johnson v. Fidelity & Casualty Co., 238 F.2d 322 (8th Cir. 1956). As stated by the Supreme Court in Maryland Casualty Co., supra, 312 U.S. at 273, 61 S.Ct. at 512:

The difference between an abstract question and a “controversy” contemplated by the Declaratoi'y Judgment Act is necessarily one of degree, and it would be difficult if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having advei’se legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

See also Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149-157, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Mr. Justice Frankfurter concurring); 6A Moore’s Federal Practice fl 57.11-57.15 (2d ed. 1974).

The adverse legal interest required must relate to the claim for declaratory judgment. An adverse legal interest relative to a damage issue will not suffice, without more, to establish the adverse legal interest required, to determine a constitutional question. The - circumstances of this case reveal that the defendant police officers have no legal interests adverse to that of the plaintiff concerning the constitutionality of the challenged statutes. The real conceim of the defendants in this lawsuit is their possible liability for damages. The damage issue was resolved in the District Court and no appeal was taken on that issue.

Here a decision as to the constitutionality of these statutes does not affect the decision in defendants’ favor on the damage question as the defendants in good faith relied on the validity and lawfulness of the statutes. Once absolved of liability for damages, the defendants have no greater legal interest in the question presented by plaintiff than any other citizens of Missouri nor should they be burdened with the task and expense of litigating the constitutionality of state statutes.

The State of Missouri or a proper official thereof can be the only proper party defendant on this claim for declaratory relief. It is inappropriate to note the State should be given an opportunity to be heard on the issue when in actuality the State should be the defendant. Of course, in making the State a defendant, the statutory requirements of 28 U.S.C. §§ 2281 and 2284 would have to be respected, and a three-judge district court convened to pass on the constitutional issue. The plaintiff apparently does not want to bring in the State as a party, in blatant 'disregard of the spirit, purpose, and intent of § 2281 to submit the constitutionality of state statutes to a three-judge court, rather than a single judge, as a matter of public policy. The courts, however, have acquiesced in this deception, utilizing questionable rationale to distinguish between an injunction based on a declaration of unconstitutionality of a state statute and a declaratory judgment declaring the same state statute unconstitutional. This distinction is based on procedure and not substance. The effect on the statute is identical and the crucial issue of constitutionality resolved in either case.

It is interesting to note that the majority, to support its conclusion of sufficient adversariness of interest to sustain jurisdiction, cites Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); and Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D. N.J.1972). All these cases were brought before three-judge district courts com vened pursuant to § 2281, precisely the procedure which I have suggested as proper in this dissent. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), the fourth case cited by the majority was an action for damages, not declaratory relief, and serves as no precedent for the majority’s position. The majority states, “Those who would use a statute as a shield must be prepared to defend the constitutional validity of that shield.” ante at 596. This may be true, but such a finely turned phrase cannot obscure the fact that the logic contained therein is inapplicable to the facts of this case. Here, defendants did not rely upon the constitutionality of the statutes in question to shield them from damages; instead, in accord with Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), it was their good faith belief in the statutes’ constitutionality that served as their shield.

In the context of the instant case the issue is further exacerbated by utilizing a non-litigious procedural method which amounts virtually to an ex parte proceeding. The ex parte aspects of this case could not occur under a § 2281 proceeding as a state official must of necessity be made a party defendant and notice of the hearing given to the governor and attorney general of the state under § 2284(2). In making its suggestion, the majority implicitly recognizes that the case for constitutionality will likely receive an inadequate presentation on behalf of the present defendants. Nor could a court realistically expect more from an unwilling party with no adverse legal interest to be affected by the decision in this case. It is the general public which has a legal interest in upholding the constitutionality of the statute, and it is that public interest which is assured protection in a § 2281 proceeding. Here that interest will receive no protection, not perhaps because of philosophical disinterest but financial disinterest, a compelling consideration to privately financed litigants.

I would affirm the judgment of dismissal, without prejudice to the institution of a proper action challenging the Missouri statutes in question.

      . Xo appeal is taken from that part of the trial court’s order denying jdaintiff’s damages. This action was originally commenced by Dr. Mattis and his wife, Christine Mattis, who died while the action was pending.

      . V.A.M.S. § 537.080. Action for wrongful death — who may sue
      Whenever the death of a person shall be caused by a wrongful act * * * and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.
      (1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; * * *
      (2) * * * [I]f the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor ; or if the surviving parents are unable to decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents; * * *

      . Accord, Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128-129 (N.D.Ill.1972); Perkins v. Salafia, 338 F.Supp. 1325, 1326-1327 (D.Conn.1972) (looked to state law which did not provide right of action); Salazar v. Dowd, 256 F.Supp. 220, 222-223 (D.Colo. 1966); Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966); C. Antieau, Federal Civil Rights Act — Civil Practice 117, 591 (1971). See, Annot., 88 A.L.R.2d 1153, 1158, § 4(a) (1963). In Brazier v. Cherry, supra, 293 F.2d at 404, the Court said:
      * * * [I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death.

      . V.A.M.S. § 559.040. Justifiable Homicide Homicide shall be deemed justifiable when committed by any person in either of the following eases: sfc
      (3) When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace. V.A.M.S. § 544.190. Rights of Officer in Making Arrests

      If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

      . We express no opinion as to the constitutionality of these statutes but note only that the claim is not frivolous. Many question the use of deadly force when neither actual or threatened deadly force has been used in the commission of the crime nor serious bodily harm has been threatened or resulted. Prosser, Law of Torts § 26 (4th ed. 1971).

      . The defense of good faith should be read against the background of tort liability. Clearly the defense is intended to apl>ly only to the damage action. See, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed. 2d 230 (1971).

      . In Strickland v. Inlow, 485 F.2d 186, 189 (8th Cir. 1973), cert. denied, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974), we said: “Good faith is a defense in damage actions, but not in actions for equitable relief.”
      In Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973), the plaintiff brought an action for damages and equitable relief (declaratory relief and an injunction) under § 1983 against the Lieutenant Governor of South Carolina, the President Pro Tempore and all state senators for a violation of plaintiff’s civil rights. The plaintiff alleged that a senate resolution permitting females to be employed as clerical assistants and committee attendants, but not as pages, was unconstitutional. The Court held that the defendants were immune from liability but remanded the case for the purpose of granting declaratory and injunctive relief.

      . In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1971), the plaintiff brought an action under the Civil Rights Act (§ 1983) for violation of plaintiff’s constitutional rights. The Court held that the plaintiff was entitled to declaratory relief but that the defendants had acted' out of good faith and upon reasonable grounds; consequently, citing Pierson v. Ray, supra, the defendants were not liable for damages.

      . White v. Minter, 330 F.Supp. 1194, 1197 (D.Mass.1971); see, Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

      . 28 U.S.C. § 2201 provides :
      In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

      . This is succinctly indicated in defendants’ brief:
      This basic complaint of I)r. Maths in this appeal is directed not at the [liability of defendants], but at the District Court’s refusal to decide the constitutional question. This contention creates a problem for appellees because their real concern is the fact that money damages had been sought against them and their status in that regard. Marek and Schnarr, as citizens and police officers, * * * are naturally interested in the broader question raised by appellants, but such interest is necessarily limited by the economic facts of life existing in an attorney-client relationship where funds of a public interest group are not available.

      . It cannot seriously be contended that defendants’ status as police officers places them in a position where they can be required to litigate declaratory suits challenging state criminal statutes.

        ■ It is interesting to note that the plaintiff is represented by the American Civil Liberties Union in his endeavor to have the state statutes declared unconstitutional, while the .defendant police officers are on their own except for whatever insurance might be available to them to cover their personal liability. This is not meant as a reflection on the American Civil Liberties Union as it has a right to pursue issues in a judicial forum, but this in turn requires an adversary defendant capable of and interested in contesting the issue.


source: Caselaw Access Project

author: HEANEY, Circuit Judge.

license: Public Domain

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. WESTERN PUBLISHING COMPANY, INC., and Allen Hall, Manager, Employee Relations, Appellees.
    No. 73-1894.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 18, 1974.
    Decided Aug. 27, 1974.

      Susan J. Johnson, Atty., Appellate Section, EEOC, Washington, D. C., for appellant.
    George P. Blake, Chicago, 111., for ap-pellees.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

The Equal Employment Opportunity Commission appeals from the District Court’s denial in part of enforcement of a subpoena issued by the Commission pursuant to § 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-9 (Supp. II, 1973).

On January 9, 1971, Janet A. Brady filed a charge with the EEOC against the Western Publishing Company and Allen Hall, its personnel manager. The charge stated:

Mr. Hall has been discriminating against my race. He has become determine to destroy my life in every way possible, because I am a Negro. He has made it so hard that I can not get a job in the city of St. Louis since I quit work on June 29, 1970. He does not feel that I have a son and a ill mother to support. He just feel that as long as I am a Negro I don’t need a job. I tried to talk to them but it has done no good, he has discriminated against me and is going to keep on discriminate against Negroes until something done. Please give me some help. (Emphasis supplied.)

Ms. Brady further alleged that the most recent date on which the discrimination took place was January 5, 1971.

The EEOC referred the charge to the Missouri Commission on Human Rights by letter dated January 21, 1971. The Missouri Commission failed to act on it. On March 21, 1971, the EEOC assumed jurisdiction over the charge pursuant to the then provisions of § 706(b) of Title VII of the Act, 42 U.S.C. § 2000e-5(b) (1970).

On March 14, 1972, a perfected charge was filed which alleged that Ms. Brady had been “fired.” On this same date, she filed an affidavit with, the Commission in which she averred that: she was the only black working in an office job at Western Publishing at the time she was hired; she was paid less than any other employee; she was not given raises like other employees; she was not given a promotion; she was harassed and eventually fired; and she was given bad references, all because she was black.

On March 21, 1972, an officer of the Commission tendered a demand for access to information to the company. The demand was rejected on the ground that it included information not relevant to the charge that Hall had given Ms. Brady bad references.

The final perfected charge was filed on January 15, 1973. It read as follows :

I feel Western Publishing Company has discriminated against me because of my race (Negro) by paying me less than any other salaried employee and by not giving me raises when others received raises. I feel the company has also discriminated against me and other Blacks because of our race (Negro) by not promoting us, by discriminating against us in hiring, and by discharging us because of our race (Negro). Finally I feel the company discriminated against me because of my race by giving out discriminatory references on me when I tried to find another job.

On February 21, 1973, the Commission issued a subpoena duces tecum to the company. It requested Hall to produce records, folders and agreements dealing with nearly every aspect of the company’s employment practices and policies.

On February 28, 1973, Western Publishing filed with the Commission a Petition to Revoke the Subpoena on the grounds that the material requested did not relate to any matter properly under investigation or for which a valid charge had been filed. The company asserted that Ms. Brady’s charge was invalid since it was not timely filed, and that even if valid, it was unreasonable, burdensome and oppressive.

On May 3, 1973, the Commission determined that: (1) all the allegations in the final perfected charge were valid and properly filed because the additional allegations contained in the final perfected charge were permissible amendments and the charge alleged class discrimination of a continuing nature; (2) áll information requested was both relevant and material to the charge; and (3) the subpoena was not unreasonable, burdensome or oppressive.

The company continued to refuse to comply with the subpoena, and on June 25, 1973, the Commission filed a petition in the District Court to enforce the subpoena.

The District Court held a hearing on July 13, 1973. On November 6, 1973, the District Court issued its Memorandum and Order. It declined to decide whether the allegations other than “discriminatory references” contained in the final perfected charge properly reflected the original charge. It reasoned that those allegations would not have been timely filed [within ninety days of their occurrence, 42 U.S.C. § 2000e-5(d) (1970)] even if they were to relate back to the "date the original charge was filed. It concluded that only the information relevant to the charge of “discriminatory references” need • be produced. It ordered the company to make available to the Commission only those records relating to termination (Item 9 of the subpoena, n. 3, supra) and the materials previously offered to the EEOC by the company. The latter materials include: (1) the company’s “personnel action forms” for all terminated employees ; (2) a letter from the company to the Missouri State Employment Service concerning the company’s position as to unemployment compensation for Ms. Brady; and (3) an affidavit from Mr. Hall concerning the company’s reference policies. The “personnel action forms” include the employee’s name, date of termination, reason for termination, and employment performance. The company states that it is these forms that provide the basis for any references given regarding former employees including Ms. Brady.

This appeal was then filed by the Commission. The issues on appeal are whether the allegations in the final perfected charge other than discriminatory references were timely filed, and whether these additional allegations constituted permissible amendments to the original charge.

It is well established that lay complainants’ charges are tó be construed broadly in a liberal manner in order to effect the “remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). It is also established that: (1) complainants' allegations are not to be construed “in a crabbed, artificial manner,” Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 988 (1973); (2) “the matters the Commission proceeds to investigate should assist in determining the scope of the complaint,” Id.; and (3) the Commission has the authority “to reframe charges and to use available materials and information to articulate lay complainants’ charges.” Blue Bell Boots, Inc. v. Equal Employment Opportun. Com’n, 418 F.2d 355, 357 (6th Cir. 1969). Furthermore, the regulations to Title VII provide, in part, that amendments to an original charge may be filed and relate back to the original filing date where the amendments allege “additional acts which constitute unlawful employment practices directly related to or growing out of the subject matter of the original charge.” 29 C.F. R. § 1601.11(b) (1973). In addition, it is clear that in the investigative stageJf it has been alleged nonfrivolously that the violation charged is a continuing one, the statute of limitations may 'not be raised to preclude access to the evidence. Rather the Commission is entitled to see all the evidence relevant to the charge so it can decide “whether it thinks that the violation is a continuing one, and, if so, whether it has reasonable cause to believe the charge is true.” Pacific Maritime Association v. Quinn, 491 F.2d 1294 (9th Cir. 1974).

Read in the light of the aforementioned principles, we think that the District Court erred in holding that the charge was not timely filed with respect to allegations other than discriminatory references. We are also convinced that the original charge can properly be read as asserting that the company had been practicing and continued to practice discrimination with respect to every phase of employment.

The record reveals that in the original charge, Ms. Brady stated: “Mr. Hall has been discriminating against my race. * * * ”. This sentence can only be read as indicating a belief on Ms. Brady’s part that the discrimination was pervasive and continuing. That Ms. Brady intended that her charge be construed in this manner is supported by her further statement that: “* * * [Hall] has discriminated against me and is going to keep on discriminating] against Negroes until something [is] done. Please give me some help.” To be sure, her only specific allegation was that she had been given bad references because of her race, but this may have been the event which finally gave her the impetus to file the charge. This in no way diminishes the fact that the charge was actually broader in nature.

We, therefore, hold that the Cornmission is entitled to have access to, for the purposes of examination and copying, all evidence which is relevant and material to the final perfected charge’s allega--tions that discrimination against Ms. Brady and other Negroes prevailed in Western Publishing Company in regard to salaries, promotions, hiring, discharges and references. See 42 U.S.C. § 2000e-9 (Supp. II, 1973); 42 U.S.C. § 2000e-8(a) (1970); 29 U.S.C. § 161 (1970). See, e. g., Graniteville Co. (Sib-ley Div.) v. Equal, Employ. Op. Com’n, 438 F.2d 32 (4th Cir. 1971). On remand, the District Court is to decide, consistent with this opinion, which of the subpoenaed evidence is relevant and material to the charges under investigation.

Finally, we state that we are appalled by the lack of cooperation of counsel with one another, with the District Court and with this Court. The rigid, hard-line postures assumed by the parties from the outset have served to frustrate the statutory goal of achieving equal employment opportunities for all through voluntary compliance whenever possible. Had the investigation been pursued in a cooperative spirit by all concerned and had the narrow initial request (n. 2, supra) of the EEOC been honored, this matter may well have been resolved two years ago.

Reversed and remanded to the District Court for further proceedings consistent with this opinion.

      . The Affidavit is as follows :
      I started working at Western Publishing Company May 10, 1968 as a clerk typist. I started at $1.75 per hour, in about 4 months I got a raise to $1.95 an hour, after that I never got another raise while others did. When I started I was the first Negro to work in the office job and up until I left there. I was the .only one. I got paid the least of all others in the company. After I had been there for about a half a year they hired a white office girl to help me out. When she came on the job I did most of the training for ber. After I had been there for a little over a year the company got a personnel manager. Allen Hall. lie fired 2 or 3 blacks soon after he was there. A short time after he came on the job I was sick in the hospital for about 5 days because of infected tonsils.
      While he was there the white girl that I had trained took' over more and more of my duties until she was giving me orders while I just typed her shipping labels for her. While she was there she got 2 or 3 raises, but never did any more work than I had done.
      Later I was sick for a couple of days. They require us to call in & tell our supervisors why we have to be out. When my mother ???? called in to tell them I was sick, she was switched to Mr. Hall rather than my supervisor. She called both days. When I went back to work I was told at the door that I had been terminated. This was June 29, 1970.
      When I tried to find work other places & gave the Western Publishing Company as a reference they would tell my prospective employer that X was the worst worker and that I couldn’t type 15 words per minute. It was so bad that I could get a job anywhere in St. Louis. Once when I was apjd.ving, at a place I overheard what Mr. Hall was saying about me, Janet A. Brady, I asked my mother to call and ask about me as a reference and he made me sound like the worst of workers. I called him once and asked him why he was saying those things and he said that he couldn’t tell me over the phone. It was 10 months since I got fired that I was finally able to get a job. After I was fired. I took a typing test and got 85 words per minute with four errors and still had a hard time getting a job.

      . The following information was requested: (1) Employer Information Report EEO-1— 1969, 1970, 1971; (2) Employee Policy and Procedure Manual regarding sick leave, discharge and reference policy; (3) personnel folder on Janet A. Brady; (4) personnel folders on other employees discharged since June 1969; (5) personnel folders of other office personnel in similar positions as Janet Brady; (6) pay roll records from June 1969 to January 1971, indicating race, national origin, and position of each; (7) copies of job performance ratings on office personnel from June 1969 through January 1971; (8) copies of termination notices on all personnel discharged from June 1969 to January 1971, annotated as to race, national origin, and reason for discharge; (9) copies of references given to other companies on Janet A. Brady and other employees who have been terminated voluntarily or involuntarily from June 1969 to January 1971 indicating race, national origin of each.

      . The subpoena requested the following information and documents:
      1. Records setting forth the names, addresses and telephone numbers of all persons or entities used by Respondent for purposes of recruiting applicants .for employment.
      2. Records setting forth all policies, procedures or practices used by Respondent for recruiting applicants for employment.
      3. Applications of all applicants who have applied for employment since January 1, 1970. Such records should set forth the name and race of the applicant, whether or not the applicant was hired and if not hired the reason for not being hired.
      4. Personnel folders on all employees employed o by Respondent since January 1, 1970.
      5. Records setting forth the name and race of all employees employed by Respondent since January 1, 1970. Such records should include the date of hire of the employee, the rate of pay and the job held by the employee.
      6. Records setting forth the name and race of all employees who bid on or were considered for promotion since January 1, 1970. Such records should show whether or not the employee was promoted. If promoted, the records should show the job and rate of pay promoted from and the job and rate of pay promoted to. If not promoted, the records should show the reason the employee was not° promoted.
      7. Attendance and/or absenteeism records maintained by Respondent on all employees employed since January 1, 1970.
      8. Collective Bargaining Agreements to which Respondent is a signatory.
      9. Records setting forth the names and race of all employees terminated since January 1, 1970. Such records should show the reason for the employees termination.
      10. Records setting forth the names and race of all employees employed by Respondent since January 1, 1970, who have received raises in rates of pay. Such records should set forth the number of raises received and the amount of each raise received.
      11. Records setting forth all Respondent’s policies and_ procedures in regard to recruiting, hiring, raises in pay, rates of pay, promotions, references and discharge.


author: PELL, Circuit Judge. KILEY, Senior Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Alfred DeCESARO et al., Appellees.
    Nos. 73-1021, 73-1370 and 73-1364.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 29, 1973.
    Decided Aug. 15, 1974.
    Kiley, Senior Circuit Judge, concurred and filed opinion.
    Robert Jay Yedatsky, Appellate Section, Criminal Division, U. S. Dept, of Justice, Washington, D. C., David B. Bu-key, U. S. Atty., Milwaukee, Wis., for appellant.
    Jay Schwartz, Racine, Wis., Eugene J. Brookhouse, Kenosha, Wis., Franklyn M. Gimbel, Dominic H. Frinzi, Raymond Matera, David J. Hase, Robert E. Sutton, Milwaukee, Wis., John E. Malloy, Kenosha, Wis., for appellees.
    Before KILEY, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

An indictment returned in September 1971 in the Eastern District of Wisconsin charged eleven persons with conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Thereafter, eight of those indicted moved to suppress evidence obtained through a wiretap order of February 15, 1971, which had been authorized by a United States district court judge pursuant to 18 U.S. C. §§ 2510-2520. On November 1, 1972, prior to trial, the same judge who had earlier issued the wiretap order granted the defendants’ motion to suppress the evidence obtained under that order. The Government has appealed pursuant to 18 U.S.C. §§ 2518(10) (b), 3731.

While governmental interception of telephonic communications is the subject of stigmatic regard by those devoted to the preservation of civil liberties and the right of privacy, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., permits such electronic surveillance subject to the safeguards' and restrictions of that Title. The statute has passed constitutional muster. United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974); United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974). Only one court has ruled, as far as we can ascertain, to the contrary, and that district court decision was reversed. See United States v. Tortorello, 480 F.2d 764, 774 n. 6 (2d Cir. 1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974). The affidavit accompanying the application m the case before us asserts, and the district court in granting the application so found, that in the particular area of criminal activity here involved “normal investigative procedures reasonably appear unlikely to succeed.” The district court adhered to this position in his order of suppression. 349 F.Supp. at 551.

To authorize a wiretap, a judge must determine that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter . ” 18 U.S.C. § 2518(3)(a). Violation of section 1955 is one of the offenses enumerated in section 2516. The district court on its second examination found that the affidavit in support of the wiretap application failed to establish probable cause that an auxiliary telephone subscribed to by ap-pellee Germinaro and a tavern telephone subscribed to by appellee Thomas were being used for the operation of an “illegal gambling business,” as defined in section 1955, or in aid of a conspiracy to conduct such a business. Moré particularly, the judge announced that he had “substantial doubts that the affidavit presents a probable cause showing sufficient to find” participation by five ner-sons in the gambling business under 18 U.S.C. § 1955, 349 F.Supp. at 549, which would mean, in the specific language of 18 U.S.C. § 1955(b) (1) (ii), five persons who “conduct, finance, manage, supervise, direct, or own all or part of such business.”

The Warrant Application

The application for the warrant, subscribed to by Justice Department attorney Michael King, alleged that there was probable cause to believe that Alfred Frank DeCesaro, Eugene Francis Thomas, Angelo Germinaro, Ronald Leo Gregorski, Raymond James Matera, Kelly Covelli, Joseph Michael Buratti, and “others as yet unknown” had committed and were committing offenses involving the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955. The application further alleged that these persons were conspiring to commit these offenses in .violation of 18 U.S.C. § 371. The participants supposedly were using two Kenosha, Wisconsin, telephones, 414-694-1795, subscribed to by Angelo Germinaro, and 414-657-3000, subscribed to by Gene F. Thomas at the Office Lounge.

The applicant claimed that the particular wire communications that the Government sought to intercept would concern

“The illegal operation of a gambling business relating to the placing and accepting of bets on sporting events and horse races, payment and collection of money bet . . ., laying off of bets on said sporting events and horse races, and their roles in the commission of said offenses.”

To support the averment of probable cause, Government attorney King appended an affidavit by Special FBI Agent John Duffy, the agent who had supervised the investigation involved here. The extensive affidavit, occupying 26 pages in the appendix, inter alia, described “lay off” betting as follows:

“[A] bookmaking business of any size requires that the bookmaker balance his books .... In this way the bookmaker cannot be a loser [T]he large scale bookmaker . . . tak[es] those bets on a favorite in excess of those placed on the remainder of the participants in the contest and bet[s] them again with an even larger bookmaker who is able to balance his books by taking all of these excess bets from many bookmakers in different locations. This operation is known as ‘laying off.’ [T]he bets thus insured are known as ‘lay off bets.’ ”

Agent Duffy stated that his knowledge of this procedure was .gained from his six years’ experience as an investigator of gambling offenses. His definition comports with that given by the Government’s brief on appeal and with that of the Report of the President’s Commission on Law Enforcement and Administration of Justice in The Challenge of Crime in a Free Society at 189, on which report “Congress placed great reliance.” United States v. Ceraso, 467 F.2d 653, 658 (3d Cir. 1972).

The information in the affidavit falls into several broad categories. (1) Information gained by the Bureau’s confidential “numbered” sources from personal observation. (2) Information based, not on these sources’ personal knowledge, but on comments they heard by persons later named in the affidavit. Some of these disclosures, primarily telephone numbers used for betting and the names of those accepting the bets, were subsequently verified by the FBI informers on a first-hand basis. (3) Information that the confidential sources attributed to their own unnamed sources, who were involved in Kenosha gambling activities and who, for the most part, were closely associated with DeCesaro. (4) Information that FBI special agents obtained through their own observations.

Most of the information in the affidavit came from reports by the FBI’s confidential informants, whom the affidavit denominates as Sources Nos. 1 through 6. The affidavit devotes a paragraph to the background of each of these sources. All are Kenosha residents and are personally acquainted with at least one of the named alleged wrongdoers. Four are self-admitted gamblers who associate with other gamblers; one is a “bookie”; and one is a private citizen who volunteered information to the FBI. Affiant

Duffy vouched for the accuracy of their past tips about criminal activity. With the exception of informant No. 5, whose statements we have disregarded for the purposes of this opinion, the reliability and credibility of these confidential sources were not challe" °"ed by the respondents in this appeal nor by the district court. Rather, their concern centers on the “credentials” of the sources used by the reliable confidential “conduits.”

Evaluation of the Supporting Affidavit The Government on appeal asserts that the affidavit set forth adequate facts to justify a determination of probable cause: (a) Alfred DeCesaro headed a lay-off bookmaking operation in the Kenosha, Wisconsin, area; (b) Angelo Germinaro and Eugene Thomas acted as DeCesaro’s main bookmakers, with the former handling horse betting at auxiliary line 414-694-1795, and the latter the other sporting events at 414-657-3000, the Office Lounge; and (c) five other persons (Buratti, Gregorski, Cov-elli, Matera, and Salerno) also took bets and laid them off on a regular basis either through Germinaro or Thomas or directly to DeCesaro. Therefore, it is contended, the district court should not have granted the defendants’ motion to suppress.

The district court had no easy task. The affidavit that the Government contends established probable cause apparently contained all the information the FBI had received on gambling activities in the Kenosha area in 1970 and early 1971, even though, as hereinbefore indicated, some of that information had been obtained from unvouched for, unnamed tertiary or perhaps even quaternary sources. The affiant’s unclear style compounds the problems created by the affidavit’s length. However, we must keep in mind Chief Justice Burger’s admonition that “[a] policeman’s affidavit ‘should not be judged as an entry in an essay contest.’ ” United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971). Furthermore, “affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.” United States v. Ventres-ca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

The major decisions establishing standards for assessing affidavits are Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). See generally Note, The Informer’s Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958 (1969); The Supreme Court, 1968 Term, 83 Harv.L.Rev. 177-81 (1969); The Supreme Court, 1970 Term, 85 Harv.L.Rev. 53-64 (1971). The principles of these Supreme Court cases have recently been applied in this circuit in United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973) (en banc). The district court relied heavily on Aguilar and Spinelli. It also relied to some extent on United States v. Kleve, 337 F.Supp. 557 (D.Minn.1971), which had been reversed, 465 F.2d 187 (8th Cir. 1972). The court did not cite Harris, and we decided Carmichael subsequent to the disposition of the appellees’ motion to suppress in this case.

In Harris, the Court, reversing the Sixth Circuit, held that a police affidavit based largely on an informer’s tip supported the magistrate’s finding of probable cause for granting a search warrant. Joined by three other members of the Court, Chief Justice Burger in the third section of his opinion stated that the informer’s admission that he had committed an illegal act by purchasing the defendant’s whiskey was an additional reason for crediting his tip. 403 U.S. at 583-584, 91 S.Ct. 2075. “Admissions of crime . carry their own indicia of credibility — sufficient at least to support a finding of probable cause tó search.” Id. 403 U.S. at 583, 91 S.Ct. at 2082. Based in part on this passage in Harris, the majority in Carmichael, supra, stated that

“[i]t is immaterial here that the concluding portion of Hussey’s affidavit contained hearsay, namely, the statement of the second informant, i. e., the possessor of the checks, to the first informant that the cheeks would be given by defendant Carmichael to John Doe . . . and then to Allen; that they were stolen from the mail; and that Carmichael, Allen and Doe would cash or cause them to be cashed. The statement by the second informant was an admission against penal interest, thus manifesting his reliability and constituting an exception to the hearsay rule. The reliability of the second informant inheres in his statements against interest.” 489 F.2d at 986.

Under Harris and Carmichael, the affidavit here sets forth sufficient information to establish probable cause that five or more persons were violating 18 U.S.C. § 1955.

The application clearly established probable cause that DeCesaro and Ger-minaro were engaged in a gambling operation. The affidavit reveals that De-Cesaro not only knew and provided to others accurate information about how (telephone numbers) and with whom (Angelo Germinaro, Eugene Thomas) one could bet in Kenosha, but, that he personally handled the monies for certain transactions, e. g., Source No. 2’s bets with Germinaro. Reliable sources acquired this information from direct observation and participation. The same acceptable kind of information-gathering established that Germinaro had been taking bets over the course of several years and that the most recent number at which the reliable informants had reached him was one of the telephones that the FBI proposed to monitor pursuant to the warrant.

Indeed, the district court on its reevaluation did not disagree with the conclusion as to DeCesaro and Germinaro, observing, “[t]here is a clear showing of probable cause that DeCesaro is engaged in a gambling business. It is further my finding that there exists probable cause to believe that Angelo Germinaro is a participant with DeCesaro in a gambling business.” 349 F.Supp. at 549. (Emphases in the original.) We therefore turn in this context to an examination of the averments made as to some of the other persons named in the application and affidavit.

First-hand observations by trustworthy individuals also established that tavern operator Eugene Thomas was involved in gambling activities in Kenosha. Thomas was acquainted with De-Cesaro, who knew of Thomas’s gambling activities and disseminated information about them to would-be bettors. And Source No. 3 had repeated to the FBI a conversation he had had with DeCesaro in which DeCésaro had indicated that Thomas was one of his associates in DeCesaro’s “lay off” bookmaking operation in the Kenosha area, an admission of criminal conduct by DeCesaro. See Wis. Stat. ch. 945 (1971). United States v. Harris, supra; United States v. Carmichael, supra. See also United States v. McCoy, 478 F.2d 176, 179 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62. “It is reasonable to believe that co-owners and operators of a business have personal and reliable knowledge as to the identity of their partners and associates.” United States v. Kleve, 465 F.2d at 193. The telephone at Thomas’s place of business was the other telephone that the FBI had specified in the application.

Gregorski’s gambling activities at the tavern where Gregorski was employed as bartender were witnessed by at least four reliable sources. The report of the undercover policeman in particular makes it clear that Gregorski was forwarding his bets to someone. Source No. 3 confided that, from conversations with Gregorski and others, he had learned that the person for whom Gre-gorski was working was James Salerno. The affidavit discloses that Salerno knew that Gregorski was taking “action” at George’s Bar; indeed, Salerno furnished gamblers with the phone number over which they could place bets with Gregorski. Subsequent to No. 3's report, Source No. 2 stated that he had “learned through personal contact with” Gregorski that the bartender was forwarding his bets to Germinaro. If we read the affidavit’s somewhat turgid phrases of attribution in a commonsense fashion, see Bentresca, supra, these two accounts indicate that Gregorski himself revealed to the confidential sources the incriminatory links to Germinaro and Salerno.

The affidavit further disclosed that another tavern operator, Joseph Buratti, regularly accepted bets and was involved with DeCesaro in this enterprise. Source No. 3 had obtained this latter piece of information from conversations he had had with Buratti and DeCesaro, among others.

Paragraph 48 of the affidavit, which the Government emphasizes on this appeal, provided in part:

“On January 29, 1971, source number three advised me that in conversations during . . . January 1971, with . . . DeCESARO, . . . COVELLI, . . . BURATTI, and others closely associated with these individuals, source number three learned that . . . De-CESARO remains in control of a large bookmaking operation in the Ke-nosha, Wisconsin, area. Through conversations with the above-named individuals, source number three learned sometime during . . . January 10, 1971, to January 23, 1971, that KELLY COVELLI, . . . BUR-ATTI, and . . . MATERA continued to ‘lay-off’ with . . . De-CESARO.” [Emphasis added.]

Fairly read, this paragraph alleges that DeCesaro, Covelli, and Buratti themselves directly informed one of the FBI’s confidential sources of their criminal activities and further, of their ties with each other in those activities.

The most damaging allegations in the affidavit thus stemmed from first-hand observations by reliable sources and from mutually corroborating conversations these sources had with named persons who clearly and admittedly were engaged in illegal gambling activity. The sources’ named sources satisfied the Aguilar-Spinelli two-pronged test as explicated in Harris and Carmichael.

The affidavit does not present the situation adverted to in Spinelli, supra, 393 U.S. at 416, 89 S.Ct. at 589, of “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” We are not unmindful that the affidavit’s prolixity may have tended to obscure the fact that it did contain the flesh of probable cause. If some of the assertions taken out of context do not so qualify, this does not destroy the existence of probable cause; as is ordinarily the case with surplusage, they merely make the task of discernment less easy. Paragraph 48, read with knowledge of Harris and Carmichael, and the other information we outlined above were sufficient, to support the wiretap application.

We further note that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . ... ” Spinelli, supra at 419, 89 S.Ct. at 590. If, as the defendants suggest, the persons named in the affidavit participated not in a gambling operation but in several different operations, the defendants will have the opportunity at trial to exploit the weakness of the prosecution’s case under 18 U.S.C. § 1955. The affidavit indicates that Gregorski reported to Germinaro, who, in turn, was associated with DeCesaro. In addition, at least Thomas, Covelli, and Buratti also worked with DeCesaro in a gambling operation based on horse races and other sporting events.

Inclusion of Lay-Off Bettors

We have held that the affidavit of Agent Duffy contained adequate allegations to support a finding of probable cause that five or more persons were conducting an illegal gambling business in the Kenosha, Wisconsin, area, in violation of 18 U.S.C. § 1955. In so holding we have included among the five, persons who were “laying off” with others and who might be considered to be in only indirect communication with the apparent head of the operation, De-Cesaro. The appellees, however, argue that even if the affidavit did show probable cause to believe that some of these men were making lay-off bets, the men may not be counted for purposes of the “five or more persons” clause. Federal jurisdiction extends to those “who conduct, finance, manage, supervise, direct, or own all or part of such business,” 18 U.S.C. § 1955(b)(1) (ii), and lay-off bettors, the appellees assert, do not fall within this category. The contention is based upon the fact that Congress had not included in section 1955’s proscription “the player in an illegal game of chance, . . . [and] the person who participates in an illegal gambling activity by placing a bet.” 2 U.S.Code Cong. & Admin.News, 91st Cong., 2d Sess. (1970), at 4029 (H.Rep. No. 91-1549).

This court recently resolved this issue against the position urged by the appel-lees here, United States v. McHale, 495 F.2d 15 (7th Cir. 1974), at 18:

“Defendant McHale contended that he was a ‘lay off’ bettor and although bets of this kind are made between bookmakers, he was not ‘conducting’ a gambling operation nor was he part of a 5-man business.
“The only exclusions intended by Congress were the individual player or bettor and not the professional bookmaker who also in the course of his business bets. . . . ‘As the House Committee Report stated, the term “conducts” is broad enough to include both “high level bosses and street level employees.” ’ United States v. Hunter, 478 F.2d 1019, 1022 (7th Cir. 1973) .... Certainly the lay off-bettor is a more obvious target of § 1955 than runners, salesmen, clerks, and watchmen.”

Cf. United States v. Manson, 494 F.2d 804 (7th Cir. 1974); United States v. Becker, 461 F.2d 230, 232-33 (2d Cir. 1973), cert. pending.

In accordance with the foregoing opinion, we reversed the decision of the district court. The cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

KILEY, Senior Circuit Judge

(concurring) .

I concur in the majority opinion, except that I do not join in its reliance upon United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973) (en banc), to sustain the wiretap order. I think United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), gives ample support to that order.

In the en banc Carmichael opinion, the majority, in the light of Harris, supra, found the second informant’s statement to the reliable informant an admission against interest and permissible as reliable hearsay upon hearsay. My dissent in Carmichael was upon the ground that although the second informant’s statement there was an admission against interest, and to that extent reliable, Harris did not compel a finding that the admission of that informant was sufficiently credible to carry the trustworthiness which the Supreme Court in Harris found in the statements of the informant there. I adhere to my dissent in Carmichael where, in my opinion, the facts were insufficient to establish the requisite second element of credibility under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 723 (1964).

In Harris, supra, Chief Justice Burger made three general statements, starting 403 U.S. at p. 583, 91 S.Ct. at p. 2082, including the one quoted by Judge Pell. However, in the sentence following the third general statement the Chief Justice stated:

Concedely admissions of crime do not always lend credibility to contemporaneous or later accusations of another.

And in the sentence following the quoted sentence above, the reason is given for crediting the Harris informant’s admission. 403 U.S. p. 584, 91 S.Ct. 2075. The concession limiting the earlier general statements permits my adherence to my dissent in Carmichael.

Although neither party to this appeal has raised the question of whether the wiretap application was properly authorized, the record establishes that the application was properly authorized under the recent Supreme Court decisions in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).

      . 18 U.S.C. § 1955 (1970), “Prohibition of illegal gambling businesses,” reads in part:
      “(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years or both.
      “(b) As used in this section—
      (1) ‘illegal gambling business’, means a gambling business which — •
      (i) is a violation of the law of a State or political subdivision in which it is conducted ;
      (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business;

      (2) ‘gambling’ includes but is not limited to pool-selling, book making, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.” [Emphasis added.1

      . Four of the defendants who moved to suppress had not been named as alleged wrongdoers in the Government’s wiretap application.

      . The district court’s opinion and order of suppression is reported at 349 F.Supp. 546 (EJD.Wis.1972).

      . The Government in its brief argues that the district court did not even consider whether the affidavit supporting the application. established probable cause to believe that section 371 had been violated and that, in any event, the affidavit did establish probable cause as to conspiracy. The Government’s reliance here is not upon any aspect of the admission of hearsay against co-conspirators inasmuch as hearsay, indeed hearsay upon hearsay, does not per se devitalize probable cause. See the general discussion in United States v. Carmichael, 489 F.2d 983, 986-987 (7th Cir. 1973). Rather, it is argued that to prove conspiracy (and presumably to show probable cause thereof) it is not necessary to show that the substantive offense actually had been committed by five i>ersons.
      The district court without articulating its reasoning as to conspiracy did conclude that there was no showing of probable cause of a conspiracy to violate the substantive section. Irrespective of the merit in the Government’s position, although the indictment returned was for the substantive offense only, we do not need to reach the issue in view of the disposition at which we do arrive.

      . The particulars about these informants are:

        Source No. J, a life-long resident of Kenosha and a self-admitted gambler, had furnished information to the FBI many times during the previous seven years. Independent investigation had established the accuracy of his tips. He is personally acquainted with DeCesaro, Thomas, and Germinaro.

        Source No. 2 had provided information at least five times since 1967, and the FBI had subsequently substantiated the information through independent investigation. He is a resident of Kenosha, a self-professed gambler, and knows DeCesaro, Thomas, Germi-naro, Salerno, and Gregorski.

        Source No. 3, a self-admitted bookmaker who deals with DeCesaro and his associates, had furnished information to Agent Duffy since 1968. His information had always been reliable.

        Source No. 4, a self-professed gambler personally acquainted with DeCesaro, Thomas, and Germinaro, had given tips about criminal activities on at least twenty occasions since 1968. Subsequent investigations had proved the information reliable.

        Source No. 5 is a private citizen and lifelong Kenosha resident who, on his own initiative, came to the FBI with information. I-Ie knows Buratti and his brother, owners of Buratti’s Tap.

        Source No. 6 liad furnished accurate information on three prior occasions. A self-admitted gambler and Kenosha resident, he claimed to have personal knowledge of Thomas’s involvement in gambling activities.

      . Although many of the confidential sources reported directly to Agent Duffy, some spoke with other special agents involved in the Kenosha investigation. Further, the affidavit contains accounts of first-hand observations by agents other than the affiant. The information relayed by these agents to Duffy is therefore technically hearsay or double hearsay; however, the district court and the appellees do not claim that the cooperating agents inaccurately recounted the information they had acquired. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), where the Court suggested that policemen are presumed to be reliable, and that an affiant policeman need not give additional reasons for believing the report of another policeman; United States v. McCoy, 478 F.2d 176, 179 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62.

      . We certainly cannot, and would not, fault a judge who is convinced he has made a mistake and with commendable judicial stature so indicates by reversing an earlier ruling. Nevertheless, it is to be regretted that the application with the supporting affidavit, which presumably was analyzed under the same legal standards at both examinations, was permitted to be the basis of further investigation which reached fruition in an indictment. An initial rejection of the application would have permitted efforts at ameliorative redrafting and resubmission without substantially destroying an investigation into asserted violations of the federal criminal laws.

      . For a discussion of the problems created by the use of unclear language and vague attributions, see Burnett, Evaluation of Affidavits and Issuance of Search Warrants: A Practical Guide for Federal Magistrates, 64 J.Crim.L.C. 270, 273 (1973). Burnett is United States Magistrate, United States District Court, Washington, D.C.

      . Justices Black, White, and Blackmun concurred in Part III of the Chief Justice’s opinion.

      . In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Court held that, although an affidavit may be based on hearsay information, the application must (1) give some of the underlying circumstances necessary for an impartial evaluation of the informant’s tip and (2) provide some of the underlying circumstances from which the affiant-officer had concluded that the informant was credible or his information reliable. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court modified the two-pronged Aguilar test in order to reconcile it with previous cases, notably Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).


author: PER CURIAM. POWELL, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Frank AGOSTO, Defendant-Appellee.
    No. 73-3539.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.
    Powell, District Judge, dissented and filed opinion.
    Brendan D. Lynch, Asst. U. S. Atty. (argued), Los Angeles; Cal., William D. Keller, U. S. Atty., for plaintiff-appellant.
    Jack C. Stennett (argued), Torrance, Cal., for defendant-appellee.

      Before TRASK and SNEED, Circuit Judges, and POWELL, District Judge.

       Honorable Charles L. Powell, Senior United States District Judge, Eastern District of Washington, sitting by designation.

   OPINION

PER CURIAM.

The United States, as appellant, questions an order of the trial court suppressing evidence following an indictment of Frank Agosto by a federal grand jury. He was charged with possession of marijuana, a controlled substance, with intent to distribute. The indictment was under 21 U.S.C. § 841(a)(1). Appellant is here pursuant to 18 U.S.C. § 3731.

On July 15, 1973, a special agent of the Drug Enforcement Administration was told by a citizen known to him to be a real estate agent that while showing premises in Redondo Beach to a prospective buyer, the citizen had discovered large quantities of marijuana in the garage. The agent and two city officers met with the citizen and satisfied themselves from his description of the material, including its appearance and packaging, that it was marijuana. The officers then went to the house, knocked at the door, and asked to speak to the resident. They were referred to the appel-lee. Redondo Beach Police Detective Rossiter identified himself and stated that he was conducting an investigation regarding a large amount of what possibly was marijuana in the garage of the house and asked if he could come in. Appellee then asked if the officers had a search warrant.

The testimony as to what occurred after this point is in conflict. In reviewing the conflict the court stated:

“However, the Court finds that the testimony of the officers is to be believed, to the effect that they advised the defendant of his right to refuse his consent and of his right to have an attorney; and the Court finds that the defendant gave consent.
“Nevertheless, with respect to the testimony of the officers, which in substance is uncontroverted to the effect that the defendant was told that unless he gave his consent that the officers would seek or obtain a search warrant and that pending that time that the premises would be retained secure, the Court finds that there is such lack of voluntariness by reason thereof as to vitiate the consent; and, accordingly, the motion is granted with respect to the products of the search of the garage and the seizure thereof.”

The court continued by saying that if credibility aloné were the deciding factor, the court “would find credibility on the side of the Government’s witnesses . . . .” He stated, however, that he viewed the testimony as raising a “close question of law.”

We view the question as thus posed to be whether the officer’s statement to ap-pellee that “unless he gave his consent . the officers would seek or obtain a search warrant and that pending that time . . . the premises would be retained secure,” constitutes, as a matter of law, such coercion that an unqualified consent elicited thereafter is vitiated and the search and seizure unlawful.

We recognize that voluntary consent to a search is an established exception to the warrant requirement of the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Moreover, the test for consent is whether it was “voluntary,” and “[v]oluntariness is a question of fact to be determined from all the circumstances . . . . ” Schneckloth, supra at 248-249, 93 S.Ct. at 2059. It is the burden of the Government to demonstrate that consent was in fact given, and was not the result of duress or coercion, express or implied. Id. at 248, 93 S.Ct. 2041. On appeal the standard of review requires us to determine whether the trial court’s findings are clearly erroneous. United States v. Rothman, 492 F.2d 1260, 1264 (9th Cir. 1973); United States v. Page, 302 F.2d 81, 83-86 (9th Cir. 1962) (en banc).

With all of this in mind we return to the court’s finding here that consent was given but vitiated by a coercion implied from the statement that, if consent were not given, the officers would get a warrant to search and would secure the garage while the warrant was being obtained. The statement does not pose a question of law for the trial judge. The issue of voluntariness remains a question of fact for his determination based upon the totality of the circumstances. As the Court announced in Schneckloth, there is no single controlling criterion. 412 U.S. at 226, 93 S.Ct. 2041. On the precise factor under consideration there, we note that as a matter of law the State need not prove that the individual consenting to a search knew that he had a right to withhold his consent. Id. at 229, 93 S.Ct. 2041. Here, we hold that the statement of the officer that he would obtain a search warrant if consent were not given and in the meantime would secure the garage premises is likewise not conclusive as a matter of law.

Other courts which have considered similar search warrant statements have held that they do not preclude a finding of voluntariness. United States v. Jordan, 399 F.2d 610, 614 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed. 2d 469 (1968); United States ex rel. Gockley v. Myers, 378 F.2d 398, 399-400 (3d Cir. 1967); United States v. MacLeod, 207 F.2d 853, 854 (7th Cir. 1953); Gatterdam v. United States, 5 F.2d 673, 674 (6th Cir. 1925); Simmons v. Bomar, 230 F.Supp. 226, 228 (M.D.Tenn.1964), aff’d per curiam, 349 F.2d 365 (6th Cir. 1965). Moreover we do not find that the announcement by the officers of their intention to “secure the garage premises” while they obtained a warrant necessitates a finding that any consent elicited thereafter was “per se involuntary.” See Simmons v. Bomar, supra. Indeed, to have done otherwise might have prejudiced their chances of obtaining the warrant as well as subjected them to criticism for careless police practices had the contraband disappeared during their absence.

We reverse and remand for the trial court to make its own determination, based upon the totality of the circumstances, of the voluntariness of the consent given by appellee.

Reversed.

POWELL, District Judge

(dissenting) :

I respectfully dissent. The burden was on the Government to show the consent to the search of the garage was voluntary. The record shows circumstances that in my opinion deprive the consent of voluntariness. The majority questions the reasons given by the trial judge for granting a portion of the motion to suppress. I would affirm.

      . The exact testimony of Detective Rossiter was:
      “At that point he asked me if I had a search warrant.
      “I stated No, I did not have a search warrant, and that if he didn’t wish to talk to me about my investigation I would secure the premises of the garage and go to a judge and attempt to get a search warrant for the garage.” R.T. at 32.
      In addition, Rossiter testified that he also said to Agosto before the search was made: “Well, I want you to understand that you have the right to refuse me permission to search the garage.” Id. at 33.