author: McWILLIAMS, Circuit Judge.

text:
    Margaret J. KENNETH, Plaintiff-Appellee, v. Paul SCHMOLL, Director, et al., Defendants-Appellants.
    No. 72-1831.
    United States Court of Appeals, Tenth Circuit.
    Aug. 7, 1973.

      John P. Eastham, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., on the brief), for plaintiff-appellee.
    Thomas G. Wilson, Atty., Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, on the brief), for defendants-appellants.
    Before SETH, HOLLOWAY and MeWILLIAMS, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Margaret J. Kenneth, a registered nurse, was hired in November 1970 as a nurse at the VA Hospital in Albuquerque, New Mexico. By statute, the initial hiring by the VA of a nurse, as well as a doctor or a dentist, as “additional personnel” under 38 U.S.C. §§ 4104 and 4106 is for a three-year probationary period. On July 24, 1972, the VA advised Kenneth that she would be “separated from the service for failure to qualify and satisfactorily perform the duties of [her] position, effective Saturday, July 29, 1972.”

On August 2, 1972, Kenneth filed an action in the district court challenging the procedures that led to her discharge. Thereafter, on August 22, 1972, before answer, following a hearing on what was denominated as an order to show cause, the district court ordered that Kenneth be immediately reinstated to her position as a nurse, with restoration of all rights and privileges from the date of discharge, until she was given a full evi-dentiary hearing in accordance with the provisions of 38 U.S.C. § 4110. From that injunctive type order which granted Kenneth complete relief, the defendants now appeal. We reverse for the reason that in our view 38 U.S.C. § 4110 does not apply where the employment of a probationary employee under 38 U.S.C. §§ 4104 and 4106 is sought to be terminated. Before considering the statutes with which we are here concerned, we shall first review the chronology out of which the controversy arose.

As indicated, Kenneth was hired as a nurse by the VA in November 1970. On May 11, 1972, well within the three-year probationary period, Kenneth was notified that the Professional Standards Board would conduct a summary review to determine whether she would be retained in her employment as a VA nurse. On May 18, 1972, Kenneth appeared before the Professional Standards Board and read a prepared statement, which responded to the reasons for possible termination as set out in the aforesaid notice. Out of the presence of Kenneth, the Board heard from other persons concerning Kenneth’s performance as a VA nurse, with Kenneth not being afforded the opportunity to confront these persons or to cross-examine them. Kenneth was also denied the opportunity to be represented by counsel at this hearing. Thereafter, on July 24, 1972, Kenneth was advised that her employment would be terminated on July 29, 1972. It was in this setting that Kenneth instituted the present proceeding against Paul Schmoll, director of the VA Hospital in Albuquerque, Charles Still, personnel officer at the hospital, and Helen Brunner, chairwoman of the Professional Standards Board. Jurisdiction is based on 28 U.S.C. § 1361 and the action is said to be a declaratory judgment proceeding under 28 U.S.C. § 2201.

Section 4104, 38 U.S.C., authorizes the Administrator to appoint such additional personnel, including doctors, dentists and nurses, as he finds necessary for the medical care of veterans.

Section 4106, 38 U.S.C., provides, in essence, that such appointments may be made without reference to civil service requirements after qualifications have been established in accordance with regulations of the Administrator, with the further provision that such probationary appointee shall be separated from the service if the Board should find him or her “not fully qualified and satisfactory.”

The regulations promulgated by the Administrator pursuant to § 4106 provide for a so-called summary review wherein, though the probationary appointee is given notice that his services are unsatisfactory, and the reasons therefor, and may appear personally before the Board or submit a written statement in his behalf, he nonetheless is not permitted to confront adverse witnesses, let alone cross-examine them, nor is he permitted legal representation.

Section 4110, 38 U.S.C., provides, in essence, that a disciplinary board shall be appointed by the Chief Medical Director under regulations prescribed by the Administrator to determine upon notice and “fair hearing” charges of inap-titude, inefficiency or misconduct of any person employed under the provisions of 38 U.S.C., § 4104(1). Regulations promulgated by the Administrator under this particular statute permit an employee to appear personally at the hearing, be represented by counsel, and generally participate in the hearing by cross-examining and presenting evidence in his own behalf.

Counsel for Kenneth reasons as follows:

1. Kenneth was employed pursuant to 38 U.S.C. § 4104;
2. The hearing provided for in 38 U. S.C. § 4110 applies to any person employed under 38 U.S.C. § 4104;
3. Therefore Kenneth is entitled to the fair hearing provided for in § 4110.

The foregoing syllogism, though perhaps appealing in its simplicity, is in reality untenable, mainly because in our view it ignores § 4106. To thus construe the statute under consideration would violate a cardinal rule of statutory construction, namely, that effect should be given to every provision of a statute. Additionally, such construction would be contrary to the legislative history and intent of the statute and contrary to the construction given by the administrative agency charged with carrying out the mandates contained therein. It is on this general basis that we reverse.

Section 4106(b) declares that the appointment of additional personnel “shall-be for a probationary period of three years,” during which period of time the record of a person thus serving shall be reviewed by a board appointed in accord with regulations promulgated by the Administrator and that if such board shall determine that a probationary employee is not “fully qualified and satisfactory,” then the probationary employee shall be “separated from the service.” In this connection, the VA views the probationary period as being an extension of the appointment process, which provides the final test of actual performance on the job and which is designed to protect the VA against the retention of individuals who are found in actual practice to be unsuited for permanent employment. In any event, there is most certainly no language in § 4106(b) which suggests to us that a probationary employee is entitled to a full-blown, trial-like hearing, with the right to counsel, right to confront adverse witnesses and cross-examine, before he be “separated from the service.” On the contrary, we believe the exact opposite is indicated.

In line with the provisions of § 4106(b), the regulations promulgated by the Administrator to effectuate this particular legislative intent sets up a review board known as the Professional Standards Board, which is authorized, among other things, to conduct a so-called summary review “when summary separation from the service may be justified.” Under these regulations, notice is required, which notice is to be “brief, but in sufficient detail so that the employee will clearly understand why his services are considered deficient and/or the nature of the incident involved,” with the subject of the hearing permitted to thereafter appear before the Professional Standards Board and make an oral or written statement in his own behalf, though not being permitted to confront and cross-examine witnesses or be represented by counsel.

Certainly, then, these regulations carry out the legislative intent, as we see it, contained in § 4106(b). But all this is changed, says counsel, by the language contained in § 4110. With this suggestion we are not in accord.

Section 4110 provides for the appointment by the Chief Medical Director of a disciplinary board to determine upon notice and “fair hearing” charges of “in-aptitude, inefficiency, or misconduct” of any appointed personnel serving in a position provided for in § 4104(1). Pursuant to this particular section of the statute, there has been created by administrative regulation a disciplinary board which, after notice of charges, conducts a “fair hearing,” which includes the right to counsel, right to confront adverse witnesses, to cross-examine, and the like. And, again, in our view these regulations carry into effect the legislative intent behind § 4110.

It is quite true that § 4110 declares that its provisions shall apply to “any person employed in a position provided in paragraph (1) of section 4104”; but, in our view, it does not follow that probationary employees are also entitled to that particular type of hearing. To so hold would virtually excise § 4106 from the statute. As indicated, a cardinal rule of statutory construction is that effect should, if possible, be given to every provision of a statute. Parker v. United States, 448 F.2d 793 (10th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972). When effect is given to both §§ 4106(b) and 4110, it is clear to us that it was the intent of Congress by the words of the statute itself that a probationary employee about to be separated from the service need only be given the summary hearing contemplated by § 4106(b) and as provided by appropriate regulation promulgated pursuant thereto; whereas, an employee with over three years service is to be afforded the “fair hearing” required by § 4110 and provided by appropriate regulation carrying into effect such legislative mandate. Such construction gives effect to § 4106(b), as well as § 4110.

The foregoing squares with legislative intent and the broad legislative purpose behind the entire Act. Without going into great detail, it is obvious to us that in 1945, Congress was concerned about recurring charges that the World War II veterans were not getting satisfactory doctor, dental and nursing care, and to that end, inter alia, authorized the appointment of such additional personnel in those categories as was necessary to make certain that veterans did get satisfactory care, with the proviso that such appointments were to be made without regard to Civil Service requirements. § 4106(a). In this same connection, Congress then expressly authorized that such personnel during their probationary period could be separated from the service if found to be “not fully qualified and satisfactory.” To construe the statute in the manner urged upon us by Kenneth would be directly contrary to the congressional purpose “to free the Veterans Administration from some of the shackles that now, we think, act as an impediment and deterrent to the best medical service.”

Additional evidence of legislative intent and purpose are the remarks of Congressman Scrivner to the effect that the disciplinary board provided by § 4110 “will function after the three year probationary period.” 91 Cong.Rec. 11663 (1945). In our view, the interpretation which we give these statutes clearly squares with the legislative intent and history.

Our final matter deserves brief comment. There is certainly no doubt as to the interpretation given this statute by the administrative agency charged with carrying into effect the provisions of the Act. The presence in this court of the several defendants appealing the injunctive order entered by the trial court indicates full well the position of the VA. It is of course a well-settled rule of statutory construction that an administrative construction given a statute by the agency charged with its administration “should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969), and Ute Indian Tribe of the Uintah and Ouray Reservation v. Probst, 428 F.2d 491 (10th Cir. 1970), cert. denied, 400 U.S. 926, 91 S.Ct. 189, 27 L.Ed.2d 186 (1970). Furthermore, additional weight should be given an administration where, as here, it is of long standing. CIR v. First Security Bank of Utah, N. A., 405 U.S. 394, 402, 92 S.Ct. 1085, 31 L.Ed.2d 318 note 16 (1972). And the administrative interpretation should be accepted by the courts if it be a reasonable one, even though there might be another interpretation which was itself reasonable. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), and Unemployment Comm’n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946).

For all these reasons, then, we conclude that the trial court erred in ordering that Kenneth be reinstated until such time as she was afforded the hearing provided for by § 4110 and the regulations promulgated pursuant thereto. The judgment ordering such is reversed and the cause remanded with directions that any further proceedings be in accord with the present opinion.

As concerns possible further proceedings, we are aware that Kenneth has alternatively alleged that she has a constitutional right, as opposed to a statutory right, to a full scale hearing before she is separated from the service. This matter has not yet been considered by the trial court. However, in the interest of bringing the matter to a speedy conclusion, it is the order of this court that there be no hearing as to whether a preliminary injunction could be based on any constitutional ground and the trial court shall forthwith proceed to hear the case on its merits, i. e„ the issues raised by the complaint and answer, such determination to, of course, be consonant with the views herein expressed.

      . The written notice stated that Kenneth was being considered for termination for the following reasons:
      “Reason I — You fail to administer medications safely and according to policy. For example, you used ear medication prescribed for one patient on another patient; you put up incorrect IV fluids which were discontinued by a physician ; you have frequently not given medications on time.
      “Reason II- — You continue to transcribe doctors’ orders incorrectly which is hazardous for the patients.
      “Reason III — You have certified narcotic count without actually counting, which is in direct conflict with hospital policy.
      “Reason IV — You do not respond effectively to emergencies, thus compromising patient care. For example, in the care of the patient following a motorcycle accident, you did not clean the patient of street dirt or dress wounds although he was admitted shortly before midnight, at the beginning of your tour of duty.
      “Reason V — You have been unable to function consistently as a team leader or even a team member due to your poor work organization and ineffective instructions to team members and even frequently require assistance to complete your own work.”

      . Section 4104, 38 U.S.C., provides, in pertinent part, as follows :
      “There shall be appointed by the Administrator additional personnel as he may find necessary for the medical care of veterans, as follows:
      ‘ (1) Physicians, dentists, and nurses;
      * * *."'

      . Section 4106, 38 U.S.C., provides, in pertinent part, as follows:
      “(a) Appointments of physicians,- dentists, and nurses shall be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Administrator, without regard to civil-service requirements.
      “(b) Such appointments as described in subsection (a) of this section shall be for a probationary period of three years and the record of each person serving under such appointment in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service.”

      . Section 4110, 38 U.S.C., provides in pertinent part, as follows:
      “(a) The Chief Medical Director, under regulations prescribed by the Administrator shall from time to time appoint boards to be known as disciplinary boards, each such board to consist of not less than three nor more than five employees, senior in grade, of the Department of Medicine and Surgery, to determine, upon notice and fair hearing, charges of in-aptitude, inefficiency, or misconduct of any person employed in a position provided in paragraph (1) of section 4104 of this title. When such charges concern a dentist, the majority of employees on the disciplinary board shall be dentists.
      # * * -is sfs
      “(d) A disciplinary board, when in its judgment charges are sustained, shall recommend to the Administrator suitable disciplinary action, within limitations prescribed by the Administrator, which shall include reprimand, suspension without pay, reduction in grade, and discharge from the Department of Medicine and Surgery of such person. The Administrator shall either approve the recommendation of the board, approve such recommendation with modification or exception, approve such recommendation and suspend further action at the time, or disapprove such recommendation. He shall cause to be executed such action as he approves. The decision of the Administrator shall be final. * *

      . 91 Congressional Record 11658 (1945) (Congressman Allen).


source: Caselaw Access Project

author: COFFIN, Chief Judge.

license: Public Domain

text:
    Eric WALGREN et al., Plaintiffs, Appellants, v. Merle HOWES et al., Defendants, Appellees.
    No. 73-1045.
    United States Court of Appeals, First Circuit.
    Heard May 8, 1973.
    Decided July 18, 1973.

      Erie Walgren, pro se.
    David M. Roseman, Boston, Mass., with whom H. Theodore Cohen and Tyler & Reynolds, Boston, Mass., were on brief, for defendants, appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellants Walgren, Gluseo and Sherman, proceeding in forma pauperis and pro se, appeal from an order of the district court dismissing their complaint against appellees, the members of the Board of Selectmen of the Town of Amherst, for alleged violation of, principally, the First, Fourteenth, and Twenty-Sixth Amendments to the United States Constitution in scheduling a special caucus for town elections on January 19, 1973 when the University of Massachusetts was in the midst of a semester recess. We vacate the order of the district court and remand for further consideration in accordance with this opinion.

All three appellants claimed to be resident voters of the Town of Amherst, 51 M.G.L.A. ch. 51, § 1. Walgren was a candidate for the office of selectman. Sherman is a full-time undergraduate student at the University, residing in one of its dormitories. They were concerned that the Board of Selectmen, as it had done since 1939, had set the annual town election for the third week in February. In accordance with state law, a “special caucus” in the nature of a nonpartisan primary election would be necessary in the event that more than twice as many candidates as the number to be elected for an office might file nomination papers, and such caucus would have to be held at least 31 days, before the town election. Appellants realized that any such special caucus would take place in mid-January when, as alleged in Sherman’s affidavit, “most students who reside on compus during the academic year are required by university policy to vacate their residences and therefore do so.” In that event, it was claimed, a large number of young persons enfranchised by the Twenty-Sixth Amendment would be discouraged from voting since they would have to use the cumbersome and less meaningful method of voting by absentee ballots.

Appellant Walgren, concerned about the youth and student vote, arranged to appear at a Board meeting on December 11, at which time he endeavored to persuade the Board to rearrange the election schedule to encourage maximum voting in the college community. The Board agreed to do so if it was legally permissible, and upon advice of counsel adopted at its December 18 meeting a new election schedule providing for the special caucus to be held on January 29, after the University would have commenced its second semester. Between December 11 and December 18, appellants alleged, the Board received numerous telephone calls from older town residents who objected to plans to accommodate student voters. There being some confusion whether the dates proposed by counsel were in accordance with state law, the Board met and voted on December 19 to adhere to its initial plans to hold the special caucus during the semester recess, simultaneously rejecting another plan prepared by its counsel attempting to eradicate all doubts as to compliance with state law.

Thereupon appellants filed this suit, contending that the Board action in returning to the initial election schedule, violated the First, Fourteenth and Twenty-Sixth Amendments to the United States Constitution; that it “willfully discourages and prevents full participation in the electoral process by an entire constituency of voters — some 30 per cent of the registered voters of the Town of Amherst”; that the action was arbitrary, discriminatory, and had the purpose to disenfranchise the new student vote in the local elections of Amherst, and to prevent the election of [Walgren] and others, who might represent the interests of young people .” They sought to maintain the suit as a class action.

On January 17 the district court denied temporary relief and the special caucus took place as planned. Subsequently appellees replied with a motion to dismiss the suit under F.R.Civ.P. 12 for lack of subject matter jurisdiction, and failure to state a claim upon which relief could be granted, and alternatively, moved for summary judgment. They also claimed that the suit was not properly maintainable as a class action. Affidavits from various officials at the affected educational institutions were filed. A few weeks later, the court not having ruled on these motions, appellees filed an answer to the complaint which is most easily summarized by stating that it denied virtually all of appellants’ allegations. A hearing was held the day the answer was filed, though the record does not contain a transcript or a summary of testimony. Some days later the district court issued its order, granting ap-pellees’ motions for summary judgment and dismissal for failure to state a claim.

We first note that the district court should not have granted a summary judgment. F.R.Civ.P. 56 may be utilized only when there is “no genuine issue as to any material fact”. Here almost all of the factual claims of appellants were denied by appellees in their answer. Moreover, the affidavits did little to dissolve that real factual controversy. For example, at least one important issue in the case — whether the residence halls at the University were generally closed to students during the semester break so that for this or perhaps another reason a large number of students left town during that period — could not be resolved without an evidentiary hearing. “Summary judgment is not a substitute for the trial of disputed factual issues.” 10 Wright & Miller, Federal Practice & Procedure: Civil § 2712 at 379 (1971); cf. Briggs v. Kerrigan, 431 F.2d 967 (1st Cir. 1970). See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).

That the court improperly granted summary judgment does not end our inquiry, for the court also dismissed the suit for failure to state a claim. F.R.Civ. P. 12(b)(6). A remand, therefore, without addressing appellants’ legal arguments in some respect would be less than helpful. We cannot emphasize enough the rule that a court should not dismiss a complaint under 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Ballou v. General Electric Corp., 393 F.2d 398 (1st Cir. 1968). For the reasons hereinafter enunciated, we believe that appellants have presented legal issues which can be resolved only after a trial on the merits.

We first address appellants’ equal protection claim under the Fourteenth Amendment. The appellants argue that the town law setting the election date interferes with the equal exercise of the franchise right — i. e., one large, identifiable class is said to have been deprived of the opportunity to visit personally the polls and must utilize instead the allegedly more cumbersome and less effective method of voting by absentee ballot. They add that the right to participate in elections on an equal basis with other citizens has been denominated a fundamental right, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). They conclude therefore that any infringement of that right must be scrutinized under the compelling interest test. Harper, supra; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

We do not view the compelling interest test as applicable here. There being no allegation that the town has improperly denied absentee ballots to residents requesting them, it has not “totally denied the electoral franchise to a particular class of residents [such that] there [might be] no way in which the members of that class could [make] themselves eligible to vote.” Rosario v. Rockefeller, 93 S.Ct. 1245, 1249 (1973). We believe that the instant case, if considered simply as one in which a large, identifiable class is burdened by the choice of a particular election date, must track the analysis in Rosario, rather than apply the more rigorous compelling interest standard.

The Court engaged in three inquiries. It first considered whether the time limitation before it was “so severe as itself to constitute an unconstitutionally onerous burden” on the exercise of the franchise and freedom of political association. It then asked whether it was “an arbitrary time limit unconnected to any important state goal” which must, of course, be “a legitimate and valid state goal”. Id. 93 S.Ct. at 1251. Finally, the Court noted that there were no less drastic (and feasible) means to effectuate the state’s goal. Id. 93 S.Ct. at 1252 n. 10.

The district court must therefore attempt to assess the nature and weight of the burdens inherent in absentee voting — the separate application, the taking of an oath, and execution of an affidavit, payment of the postage and notary fees, M.G.L.A. ch. 51, § 86 et seq., cf. Bishop v. Lomenzo, 350 F.Supp. 576, 583-584 (E.D.N.Y.1972), the risk of delay, etc. The judicial inquiry should be focused on the extent of other obstacles, not merely technical, to casting an effective and informed vote. The state goals involved would seem to in-elude the minimizing of fraud, accidental error, disruption of ongoing public and private activities, delay in determining outcome, voter confusion, and the maximizing of voter participation and appraisal of candidates and issues. The connection of the election date to these goals can be answered only by factual inquiries. Lastly, where an election date is set by a town vested with absolute discretion, and the chosen date is found to bear demonstrably on a large and identifiable class of voters, to their disadvantage, the court should explore the feasibility of other dates which have a lesser adverse impact on these voters.

While appellants may be able to meet the burdens of proof imposed upon them under Rosario, supra, their task is not easy. They argue, however, that the town must justify its choice of the election date because there has been an abridgement of the right to vote on account of age in violation of the Twenty-Sixth Amendment. Testing the action of the town under this amendment poses new problems of analysis. New cases have been decided under it and none pose a fact situation similar to the instant one. Our guidance at this stage of the proceedings is necessarily limited. Perhaps most clear is the purpose of the amendment in the light of its history. In addition to avoiding what would have been an administrative nightmare brought upon by the decision in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), the backers of the amendment argued that, young persons between 18 and 21 being otherwise treated as adults for purposes of civil and criminal responsibility and military service, it was anomalous to deny them the franchise right; and that the frustration of politically unemancipated young persons, which had manifested itself in serious mass disturbances, occurring for the most part on college campuses, would be alleviated and energies channeled constructively through the exercise of the right to vote. It is this latter goal, seeking to substitute the ballot for the bullet, with which we are concerned. Thus, while the Twenty-Sixth Amendment speaks only to age discrimination, it has, as noted by Senators Percy and Brooke, among many other legislators, particular relevance for the college youth who comprise approximately 50 per cent of all who were enfranchised by this amendment. 117 Cong.Rec. 5817, 5825.

While both the Fifteenth and Nineteenth Amendments served as models for the Twenty-Sixth, more case law has developed under the Fifteenth. Most relevant would seem to be the general admonitory teaching of Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939). Justice Frankfurter, addressing the question whether the Fifteenth Amendment was violated by a state statute which, though neutral on its face, had the effect of enfranchising all white voters through a grandfather clause, while requiring black would-be voters to register within a twelve day period or forever lose the franchise right, wrote as follows:

“The [Fifteenth] Amendment nullifies sophisticated as well as simpleminded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” Lane, supra at 275, 59 S.Ct. at 876.

At other times, the Supreme Court has been even less explicit in its analysis under the Fifteenth Amendment. See, e. g., Hadnott v. Amos, 394 U.S. 358, 364, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50-54, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959). No clear test has yet emerged to help determine when a statute, which has the effect of placing an unequal burden on a class protected by a voting amendment, may be justified by some compelling governmental objective unobtainable by any less drastic means; or when the burden is so selective and egregious on its face as to constitute an “abridgement” per se.

In this case, a town, given discretion under state law to hold its elections almost anytime, has exercised that discretion with the effect of imposing additional procedural requirements and other disadvantages, inherent in the absentee voting process, on what is alleged to be a large group of young voters, said to be some thirty per cent of those eligible to vote in the town election. A violation of the Twenty-Sixth Amendment is said to have occurred. The parties have not adequately argued this point before us and we prefer to leave its resolution, in the first.instance, to the district court. Without attempting to define the boundaries of “abridgement”, we deem it sufficient to state, for now, that it seems only sensible that if a condition, not insignificant, disproportionately affects the voting rights of citizens specially protected by a constitutional amendment, the burden must shift to the governmental unit to show how the statutory scheme effectuates, in the least drastic way, some compelling governmental objective. In other words, the voting amendments would seem to have made the specially protected groups, at least for voting-related purposes, akin to a “suspect class”, to use the contemporary label. Of course, if the court were to find the burden of such a significant nature as to constitute an “abridgement”, it presumably would not take the additional step of considering the adequacy of governmental justification.

The passage of a constitutional amendment does not take place lightly. It creates serious problems of accommodation as the Fifteenth Amendment demonstrated. The specific problem faced by college communities with concentrated youth populations was faced in the consideration of the Twenty-Sixth Amendment. To the expressed fears of campus takeovers of small communities —since “the student body [is] composed largely of 18 to 21-year-olds” — the candid response in debate was that if students “satisfy the residency requirement of that town obviously they would be entitled to vote.” 117 Cong.Rec. 7538-39, 7547. This is the same answer that the Court gave to the same concern in Carrington, supra 380 U.S. at 94, 85 S.Ct. at 779: “ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” See also Dunn, supra, 405 U.S. at 356 n. 28, 92 S.Ct. 995.

As Congressman Randall said, “It is quite possible that there may be other laws governing non-Federal elections in the various states which will have to be changed to prevent conflict with the proposed intent of this amendment.” 117 Cong.Rec. 7565. The determination whether there is an impermissible conflict with one or more of the goals of this amendment will, should the court reach this issue, admittedly call for sensitive analysis. We cannot say whether or not the election date set by Amherst will prove to be one of the non-federal decisions which are vulnerable under the new amendment. Enough has been said to indicate that this case, appearing no doubt to some as an unnecessary irritant in municipal life, encompasses questions both broad and deep.

Judgment vacated; case remanded for further proceedings consistent with this opinion.

      . Appellees’ brief raises the question whether Sherman is properly a party in this litigation. Although he was not a named member of the alleged class in the complaint filed on January 10, 1973, appellants Walgren and Gluseo amended this original complaint on January 16 to include Sherman. This amendment was, in effect, self-executing under F.R.Civ.P. 15(a) since a responsive pleading, as opposed to a motion to dismiss or for summary judgment, was not filed until February 2. 6 Wright & Miller, Federal Practice & Procedure: Civil § 1483 (1971); Keene Lumber Co. v. Leventhal, 165 F.2d 815 (1st Cir. 1948).
      This case presents an example of a fairly complex matter, the presentation of -which has been inhibited and distorted by the absence of counsel. The court, the parties, and the issues would profit by the presence of counsel on both sides.

      . Appellants’ complaint also stated that Amherst and Hampshire Colleges were essentially out of session on January 19, although there was admittedly a three-week January term in progress at those colleges which some students do attend. For purposes of appeal, appellants stated that they would focus solely on the University of Massachusetts. AVe limit discussion here to that focus.

      . Caucus Act, ch. 149, Acts of 1955, as amended by ch. 54, Acts of 1963.

      . Previous counsel retained by the Board advised it that it could not change the election dates.

      . The original election schedule provided for the special caucus to be held on January 19 and the annual election on February 20. The Board’s vote on December 18 was to change the dates to January 29 and March 1 respectively. Counsel then advised the Board that these new dates, which he himself had recommended, did not comply with state law that the caucus be “at least thirty-one days before the town election”, and on December 19 he submitted a new proposal, keeping the caucus on January 29 but changing the election to March 5.

      . Appellants alleged that after the Twenty-Sixth Amendment became operative, the number of registered voters in Amherst rose from 7,682 to 11,413 in less than one year.

      . The occurrence of the election did not moot this controversy, and mootness was never raised as a defense. The mid-January special caucus date has been used for some 39 years now, and the town’s defense of it here indicates that its selection of the date, if not reviewed now, would be “capable of repetition, yet evading review”. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 1249, n. 5, 36 L.Ed.2d 1 (1973).

      . The district court did not determine, even conditionally, whether the suit could be maintained as a class action. F.R.Civ. P. 23(c)(1). Voting rights suits, frequently addressing important and broad public issues, often of constitutional dimension, have traditionally been litigated as class actions. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School District, 395 U.S. 621, 625, 89 S. Ct. 1886, 23 L.Ed.2d 583 (1969). There is nothing unusual about certifying the existence of a 23(b) (2) class here, at least as to the large, identifiable class of student voters sought to be represented by Sherman. See Newburger v. Peterson, 344 F.Supp. 559 (D.N.H.1972); Sloane v. Smith, 351 F.Supp. 1299 (M.D.Pa.1972).

      . By so saying, we have to our own satisfaction answered the town’s argument that since absentee ballots are made available to voters as a privilege, they cannot complain that it is burdensome to make use of them. We recognize that both McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), and Fidell v. Board of Elections of City of New York, 343 F.Supp. 913 (E.D.N.Y.), aff’d, 409 U.S. 972, 93 S.Ct. 310, 34 L.Ed.2d 236 (1972), lend some support to the town’s argument. But cf. O’Brien v. Skinner, 409 U.S. 1240, 93 S.Ct. 79, 34 L.Ed.2d 211 (Marshall, Circuit Justice, 1972); prob. juris. noted, 411 U.S. 963, 93 S.Ct. 2141, 36 L.Ed.2d 683 (1973). But both McDonald and Fidell took as a given what is the fundamental challenge here, the propriety of the election date. In neither case was a change in the election date at issue; the claim in each was a right to an absentee ballot simpliciter, assuming no other defects in the electoral process. Moreover, neither case presented the claim that a particular date was established with the effect that the absentee ballots of a large and definable class, with predictable absence at the time of the election, would be cast with more difficulty and less information on issues and candidates than those of other groups, thus unnecessarily diluting the value of the ballot for certain groups of voters. In such circumstances it seems somewhat disingenuous to speak of benevolence in providing the absentee ballot method of voting.

      . The Court’s concept of total denial is somewhat less than absolute. Its reference to other cases indicates that it views substantial inconveniences and unrealistic expectations as tantamount to denial of the franchise. In Dmm, the would-be voters would not have been disenfranchised had they relocated their homes some months earlier than planned. Those in Cipriano and Kolodziejski could have purchased or leased property, as could the complainant in Kramer, though he had the alternative of becoming a parent. All of these conditions are, of course, onerous burdens which, as a practical matter, could not be expected to be met in order to vote. And in Carrington there was an absolute disenfranchisement by the state of all service men and women. These burdens, which trigger the compelling interest test, are to be compared with what the Court saw as the lighter burden of registering to vote in a party primary some 11 months before the primary and what are here said to be the added costs, inconvenience and ineffectiveness of absentee voting.

      . By upholding Congressional action in setting the voting age at 18 in federal elections, but striking down the part of the same statute doing the same for state and local elections, the Court had created a situation in which states and localities would have to keep separate voting lists, maintain special ballots, etc.

      . See, e. g., The Report of the President’s Commission on Campus Unrest (Arno Press, N.Y., 1970). Typical of the debate in the House are the following. Congressman Matsunaga said, “although some of the student unrest of recent years has led to deplorable violence, much of this unrest reflects the concern of today’s youth about the important issues of our time. We must direct their energies into our political system and give our young people genuine opportunities to influence our society in a peaceful and constructive way.” 117 Cong.Rec. 7543 (March 23, 1971). Congressman Anderson of Illinois noted that not all students were radicals, and that the Twenty-Sixth Amendment could alleviate legitimate student concerns which were unfortunately expressed by violent means on college campuses. Id. at 7556-58. Congressman Leggett similarly noted that campus unrest could be expected to decrease if the amendment were adopted. Id. at 7550.

      . For example, House Judiciary Committee Chairman Celler said, “This provision is modeled after similar provisions in the fifteenth amendment, which outlawed racial discrimination at the polls, and the nineteenth amendment, which enfranchised women.” 117 Cong.Rec. 7533. And according to Congressman Pepper, “What [is] propose [d] to do in the Federal enfranchisement of those 18, 19 and 20 years of age is exactly what [was done] in enfranchising the black slaves with the fifteenth amendment and ... in enfranchising women in the country with the nineteenth amendment.” Id. at 7539.

      . While the result of the procedural requirement in Lane was permanent disenfranchisement, the result could have been avoided by registering within the twelve day period, just as appellants here could have made decisions to stay in town or to utilize the absentee ballot process. Arguably, a requirement which would pass scrutiny absent a constitutional amendment becomes vulnerable if it bears sufficiently disproportionately on the class selected for constitutional attention. Nor does presence or absence of intent to discriminate against the protected class seem relevant in many circumstances. See, e. g., United States v. McElveen, 180 F.Supp. 10 (E.D.La.), aff’d sub nom., United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535 (1960).

      . We note, for example, that in Lassiter, supra, 360 U.S. at 51, 79 S.Ct. at 990, the Court was explicit in stating that “literacy and illiteracy are neutral on race, creed, color, and sex . . . . ” Here the claim seems to be that absence during the election date chosen has a definite relationship to the class protected by the Twenty-Sixth Amendment. The “college town” presents a voter profile and implications quite different from those of other cities. In the latter, the younger voters might well contain a large proportion of non-students. And a large proportion of student voters might well be attending universities without, as well as within, the city. In such a situation, the city would have a major portion of the electorate to whom the choice of an election date was a matter of indifference and minor segments of students, with conflicting patterns, either returning to or leaving the city during their vacations. In this dilemma, the city’s ‘choice of dates could not readily be said to constitute unfair treatment of any one group, nor of the class as a whole which is protected by the Twenty-Sixth Amendment.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Thomas CLARK, aka Mule, Defendant-Appellant.
    No. 73-1120
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 16, 1973.
    Marvin S. Arrington, court-appointed, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

James Thomas Clark appeals from his conviction of unlawful distribution of .47 grams of heroin hydrochloride, in violation of 21 U.S.C. § 841(a)(1). The sole issue for our determination is whether the trial court erred in denying the defendant’s request to disclose the identity of a confidential informer. We affirm.

Three witnesses testified on behalf of the Government. The first witness, an officer on assignment with the Office of Drug Abuse Law Enforcement, testified that he received information from a confidential and reliable informant that he knew some “street-level” narcotics dealers operating in certain named areas of Atlanta, Georgia. Subsequently the witness, along with the informant, and a Special Agent of the Bureau of Narcotics and Dangerous Drugs (the Government’s second witness to testify) drove to one of the designated areas where they met the defendant. The witness shortly thereafter purchased the heroin hydrochloride. The second witness to testify for the Government corroborated this testimony. The third witness, a chemist, identified the substance as heroin hydrochloride. The defense introduced no testimony. A request was made by defendant for disclosure of the identity of the informant, which was denied by the trial court.

Appellant contends that under the principles announced in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the trial court committed reversible error in allowing the Government to withhold the identity of the informant. To further the public interest and effective law enforcement the Government has the privilege of withholding the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 (1938); Roviaro v. United States, supra, 353 U.S. at 59, 77 S.Ct. at 627. Roviaro however, recognizes that the privilege is not absolute and that there is no “fixed rule” with respect to disclosure:

“The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

353 U.S. at 62, 77 S.Ct. at 628. In Rovi-aro the conflicting interests were weighed and the right of the individual took precedence over the public interest under circumstances significantly different from those in the instant case. The critical factor in Roviaro which favored disclosure, not present here, is that the informer was not only an active participant but the sole participant other than the defendant in the crime charged, and was the only witness in a position to amplify or contradict testimony of the Government’s witnesses. The Court considered the “fundamental requirements of fairness” and held that “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” 353 U.S. at 60, 61, 77 S.Ct. at 628.

This is not the situation presented here. The informer did not participate in the purchase. He merely introduced the defendant to the Government agent who later made the purchase. We have held that where the evidence shows that an informer is nothing more than an informer and does not participate in the transaction, no disclosure of his identity is required. See United States v. Herrera, 5 Cir., 1972, 455 F.2d 157, 158; United States v. Mendoza, 5 Cir., 1970, 433 F.2d 891, 894; United States v. Tsoi Kwan Sang, 5 Cir., 1969, 416 F.2d 306, 309; United States v. Acosta, 5 Cir., 1969, 411 F.2d 627, 630; Miller v. United States, 5 Cir., 1960, 273 F.2d 279, 281.

Affirmed.

      . We have also considered appellant’s argument in light of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), cited as authority for the proposition that due process is violated by suppression of evidence favorable to the accused. We find nothing in the record to indicate that the informer possessed exculpatory information which would tend to benefit appellant or to bring this matter within the ambit of Brady.


author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Charles C. SOLES, Appellant.
    No. 978, Docket 73-1399.
    United States Court of Appeals, Second Circuit.
    Argued June 20, 1973.
    Decided July 6, 1973.
    Certiorari Denied Nov. 12, 1973.
    See 94 S.Ct. 455.
    Phylis Skloot Bamberger, New York City (The Legal Aid Society and Robert Kasanof, New York City, of counsel), for appellant.
    John N. Bush, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the S. D. N. Y., and Arthur J. Yiviani, Asst. U. S. Atty., of counsel), for appellee.
    Before FRIENDLY, FEINBERG and MANSFIELD, Circuit Judges.
   FRIENDLY, Circuit Judge:

Charles C. Soles was convicted, after trial before Judge Tyler and a jury in the District Court for the Southern District of New York, for two sales of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). He was sentenced to concurrent five year terms of imprisonment and subsequent concurrent three year terms of special parole. The federal sentences were set to run concurrently with sentences aggregating 25 years, which Soles is presently serving in Maryland for possession of cocaine and attempted bribery of two police officers.

The Government’s evidence was this: On November 30, 1971, Detective Clyde Isley, acting in an undercover capacity, was introduced to Soles by an informant at a tavern in the Bronx. After an episode in which Soles spoke only through the informant, Isley insisted on direct negotiation with Soles for the purchase of narcotics. Soles assented and invited both men to follow him.

Soles drove off in a 1968 green Pontiac, which New York State records later showed to be his; Isley and the informant followed in a government ear. Soles parked the Pontiac in the parking lot at 100 Lane Crest Ave., New Rochelle, N. Y., the address shown for him in the Westchester telephone directory. The trio entered Soles’ apartment. Isley said he was interested in purchasing a “piece” of heroin, Soles responded that he had one, and the informant departed. Isley paid Soles $1,100. Soles then went to the kitchen, removed a brown paper bag from a cabinet and carried it into his bedroom. While Soles was there, Isley observed several letters addressed to Charles Soles, 100 Lane Crest Avenue. Soles delivered an ounce of heroin to Isley, the informant returned, and, in response to an inquiry from Isley, Soles instructed that future contacts should be made through the informant. The three men returned to the parking lot, and Isley and the informant drove off. A surveilling agent, watching the parking lot through binoculars, identified Soles and reported that he then returned to his apartment.

Six days later Isley again met Soles at the tavern and asked to purchase another ounce of heroin. They entered Isley’s car and drove to Soles’ apartment. Again Soles removed an ounce of heroin from a brown paper bag, diluted it, and sold it to Isley for $1,100. Before they departed, Soles gave Isley a phone number to call if he wished to make further purchases. The Westchester telephone directory listed this under Soles’ name. Soles and Isley then returned to the car and Isley drove Soles back to the tavern. The surveilling agent watched the two drive off and again identified Soles as the man accompanying Isley.

The only point of any significance scored in cross-examination was that Is-ley’s reports described Soles as 5'1Q" in height whereas in fact he was only 5'6". Isley asserted the report was in error; he recalled Soles’ height as being between 5'6" and 5'8". The surveilling agent testified that Soles was “maybe a little bit shorter” than Isley, whose height was 5T0". Soles did not testify and called no witnesses.

The first point raised on appeal is Judge Tyler’s ruling that the Government could use defendant’s attempted bribery conviction to impeach him if he chose to take the stand. Pursuant to United States v. Palumbo, 401 F.2d 270, 272-273 (2 Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969), defense counsel asked the judge to rule, prior to trial, that the Government could not use either of the Maryland convictions for impeachment purposes. Counsel contended that the narcotics conviction would be unduly prejudicial and that since both convictions could still be appealed, neither was sufficiently final to be used against him. Although the convictions had been affirmed by the Court of Special Appeals of Maryland, Soles’ counsel in that case intended to seek discretionary review from the Maryland Court of Appeals. The judge deferred a ruling until the Government had presented the bulk of its case. He then informed counsel that he would exclude the Maryland narcotics conviction but would allow the attempted bribery conviction to be used for impeachment. Whether on this account or not, Soles did not testify, and counsel made no offer of proof as to what he would have said. After the conviction in this case, the Maryland Court of Appeals granted review; a hearing in that court is scheduled for the September term.

We are unpersuaded by Soles’ contention that United States v. Semensohn, 421 F.2d 1206, 1208 (2 Cir. 1970), commits us to the view of the District of Columbia Circuit, Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45, 47 (1949), that a conviction under appeal cannot be used for impeachment, rather than the contrary position, which has been taken by the Fifth, Seventh and Ninth Circuits, United States v. Franicevich, 471 F.2d 427, 428-429 (5 Cir. 1973); United States v. Empire Packing Co., 174 F.2d 16, 20 (7 Cir.), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949); United States v. Allen, 457 F.2d 1361, 1363 (9 Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 195, 34 L.Ed.2d 119 (1972). The majority stance is followed in most of the states, see 16 A.L.R.3d 726, and McCormick, Evidence § 43, at 87 (Cleary ed. 1972), and has been adopted in the Proposed Federal Rules of Evidence 609(e). What led to the reversal in Semensohn was the denial of a mistrial when the prosecutor asked whether Semensohn had not been convicted of grand larceny, a felony, whereas in fact the defendant had never been charged with that offense but rather with attempted grand larceny in the third degree, a Class A misdemeanor. Moreover, Semensohn had pleaded guilty to the misdemeanor charge, but he had not yet been sentenced. As the court pointed out, under New York law Semensohn could have sought to withdraw his guilty plea at any time before sentencing, 421 F.2d at 1208. While the opinion did quote from the Campbell opinion with approval, the broader question whether a judgment of conviction cannot be used for impeachment if under appeal was not before the court, and the Government had not called the court’s attention to the majority view.

The question is somewhat troublesome. If the conviction should be reversed within the two years allowed by F.R.Crim.P. 33 for moving for a new trial — and commonly at least the first appellate court in the hierarchy would have considered the case within that pe: riod, the defendant would be entitled to a new trial upon showing that there was a significant possibility that a new trial with the conviction unavailable for impeachment would produce a different result. See United States v. Miller, 411 F.2d 825, 830-831 (2 Cir. 1969). This, however, would not be automatic, and the problem of making a showing is compounded when, as here, the defendant has elected not to testify, although counsel could have alleviated this difficulty somewhat by making an offer of proof. On the other hand, the defendant has at least some means of qualifying the effect of the use of such a conviction since he can explain that it is under appeal, see United States v. Franicevich, supra, 471 F.2d at 429, whereas an absolute rule of exclusion would totally deprive the Government of the use of the impeaching material despite the extremely high proportion of affirmances on criminal appeals. Furthermore, courts have stressed the greater probative value of relatively recent convictions, of which that here at issue is a prime example; yet these are the very ones most likely to be under appeal. When, as here, the appeal presents a constitutional issue, the process can lead all the way to the Supreme Court of the United States, and an absolute rule of exclusion would render such a conviction unavailable for impeachment for several years. In addition, a rule mandating exclusion of convictions still on appeal might well encourage frivolous appeals and dilatory tactics by defendants seeking to avoid the use of prior convictions for impeachment in pending criminal actions. Similarly, prosecutors intending to use recent prior convictions for impeachment might seek to delay trial until an appeal of the earlier judgment had been decided. We therefore adopt the view that the trial judge has discretion to allow the use for impeachment of a conviction under appeal, although he must, of course, allow defense counsel to point out the pendency of an appeal to the jury. In exercising this discretion, the judge is free, although not required, to examine any readily available papers that may bear on the substantiality of the appeal. We find no abuse of discretion in Judge Tyler’s refusal to rule that he would not exclude the recent Maryland attempted bribery conviction simply because it was then subject to discretionary review, which has since been granted.

Appellant’s other claim is that the trial court should have compelled the Government to disclose the identity and whereabouts of the informant, who, it is alleged, might have supported a claim of mistaken identity. The guiding principles are stated in Roviaro v. United States, 353 U.S. 53, 61-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Soles relies on the words we have italicized in the following sentence from the opinion:

Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of .an accused, or is essential to a fair determination of a cause, the privilege must give way.

Both reason and context demonstrate, however, that these words are not to be read with extreme literalness. Determining whether the testimony of an informer is likely to be “relevant and helpful” is a task best left to the trial court’s informed discretion. On the next page of the Roviaro opinion, the Court made it clear that the principle of disclosure is far from absolute, 353 U.S. at 62, 77 S.Ct. at 628:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

We have had occasion to apply these principles in many cases. The most analogous is United States v. Russ, 362 F.2d 843 (2 Cir.), cert. denied, 385 U.S. 923, 87 S.Ct. 236, 17 L.Ed.2d 146 (1966). We there sustained a refusal by the same judge to compel the Government to produce or disclose the identity of an informant who had played a role in a narcotics transaction almost identical to the part played by the informant here in the November 30 sale. Significant to the decision was this court’s observation that the identification testimony of the undercover agent who made the purchase and a surveilling agent “was, in the main, most credible,” despite their inability “to recall trivial details concerning Russ’ clothing and the weather” and their underestimate of Russ’ weight, 362 F.2d at 845. In cases like Russ and this one, where the undercover agent has been with the seller for substantial periods, it is highly unlikely that there has been any “mistaken” identification; the true claim must be rather that the agents are lying. That, to be sure, is an issue the defense is fully justified in raising. But here the possibility of success was even smaller that in Russ since the agents’ very positive testimony was backed up by strong circumstantial evidence such as Soles’ ownership of the car, the location of his residence, and the identity of his telephone number. Under these circumstances Judge Tyler was abundantly justified in believing that the request for disclosure of the identity and whereabouts of the informer was a ploy designed to embarrass the Government and that it had no real possibility of affording a defense that could create a reasonable doubt in the mind of a reasonable juror.

The judgment of conviction is affirmed.

      . Twenty years of the sentence were for the narcotics violation; a consecutive term of five years was imposed for the attempted bribery.

      . The agent had also observed a man of the same height and wearing the same costume entering and leaving the tavern but, at that time, had not had a clear look at his face.

      . We have previously distinguished Semensohn on much the same grounds. United States v. Kaufman, 453 F.2d 306, 311 (2 Cir. 1971). In that opinion the court pointed out that impeachment of credibility by evidence of past criminal offenses can only be shown by proof of a conviction of a felony, or a misdemeanor involving moral turpitude. Other circuits have been even more reluctant to admit evidence of prior misdemeanor convictions for impeachment. See, e. g., United States v. Jansen, 475 F.2d 312 (7 Cir. 1973); United States v. Vasquez, 460 F.2d 202 (9 Cir. 1972) (only felony convictions are admissible); United States v. Gray, 468 F.2d 257, 262 (3 Cir. 1972) (misdemeanors are admissible for impeachment only if they constitute crimes involving dishonesty or falsehood).
      In United States v. Owens, 271 F.2d 425 (2 Cir. 1959), cert. denied, 365 U.S. 874, 81 S.Ct. 910, 5 L.Ed.2d 863 (1961), we refused to reverse because a conviction under appeal was used for impeachment. In that case, however, the impeaching conviction was affirmed prior to this court’s decision.

      . Soles’ appeal from the conviction for attempted bribery provides an example of an appeal based on extremely questionable grounds. On his appeal to the Court of Special Appeals, Soles contended that an illegal arrest, search and seizure vitiated not only the narcotics conviction but also the attempted bribery conviction. If he had not been arrested, he argued, there would have been no reason for him to attempt to bribe the police officers. The court held that the narcotics arrest was valid, the search and seizure was proper, and there was ample evidence to support the narcotics conviction. The court added that even if the arrest, search and seizure had been illegal, the bribery conviction would stand. In his petition for certio-rari to the Maryland Court of Appeals, Soles argued the invalidity of bis narcotics arrest at great length, but added only a single sentence attacking the attempted bribery conviction. Despite a dictum in Sugarman v. State, 173 Md. 52, 195 A. 324 (1937), that if an arrest is illegal, the officers are not acting in their “official capacity” and thus are not subject to bribery or attempted bribery, it seems most unlikely that even if the Maryland Court of Appeals should hold the arrest and consequent search and seizure to have been illegal, it would upset the conviction for attempted bribery. Compare Vinyard v. United States, 335 F.2d 176 (8 Cir.), cert. denied, 379 U.S. 930, 85 S.Ct. 327, 13 L.Ed.2d 342 (1964); United States v. Perdiz, 256 F.Supp. 805 (S.D.N.Y.1966).

      . The Court strongly suggested that the trial judge should be primarily charged with making this determination. In the sentence following the quotation on which appellant relies, Mr. Justice Burton wrote that “the trial court may require disclosure,” not that it must.- And in a footnote to the same passage, the Court added: “Early decisions established that the scope of the privilege was in the discretion of the trial judge.” 353 U.S. at 61 & n.9, 77 S.Ct. at 628. See United States v. Franzese, 392 F.2d 954, 962 (2 Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969).
      Both the Proposed Federal Rules of Evidence 510(c) and the ALI Model Code of Evidence rule 230 place primary responsibility on the trial court in resolving the issue of disclosure so as to assure the defendant a fair trial.

      . This court has regularly held that the right to disclosure is not absolute. See, e. g., United States v. Rosario, 327 F.2d 561, 563 (2 Cir. 1964); United States v. Simonetti, 326 F.2d 614, 616 (2 Cir. 1964); United States v. Fredia, 319 F.2d 853, 854 (2 Cir. 1963).

      . Prior to trial, the Government commendably offered to make its witnesses available for a lineup in which they would be required to identify Soles. Compare United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2 Cir. 1972). The defendant’s refusal to participate in such a lineup casts further doubt on the substantiality of his claim of misidentification.

      . We call the attention of district judges who are confronted with the problem here to the procedure for in camera investigation of the probable nature of an informant’s testimony outlined in Proposed Federal Rules of Evidence 510(c) (2) and endorsed in Judge McLaughlin’s concurring opinion in United States v. Day, 384 F.2d 464, 469-470 (3 Cir. 1967). Such a procedure, which, of course, is available even though the rule should not be adopted, would serve not only to protect tlie defendant but to obviate many unnecessary appeals. While the proposed rule requires the procedure only “[i]f it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case,” a showing scarcely made here, the Government might save itself much time and trouble by taking a relatively liberal stance.


author: HEANEY, Circuit Judge.

text:
    William R. HOLLOWAY, Appellant, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellee.
    No. 72-1764.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1973.
    Decided July 5, 1973.

      Steven G. Seglin, Lincoln, Neb., for appellant:
    Betsy G. Berger, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       District of Eastern Michigan, sitting by designation.

   HEANEY, Circuit Judge.

William R. Holloway was convicted and sentenced to ten years imprisonment. He appeals the denial of his writ of habeas corpus. The crucial issue is the validity of a search, pursuant to an invalid warrant, which turned up evidence used against Holloway at his trial.

The underlying circumstances are succinctly set forth in State v. Holloway, 187 Neb. 1, 187 N.W.2d 85, 88 (1971):

“At approximately 9 p. m., on December 13, 1968, three negro males held up and robbed the bartender and patrons of Little Paul’s tavern. The robbers used a sawed-off shotgun and handguns and departed with money and personal effects, including men’s and women’s billfolds.
“The robbery was one of a series of robberies which had occurred in Omaha. * * * The police believed that following a robbery, the robbers might go to * * * 5425 South 29th Avenue, which was the residence of Christabelle Jenkins.
“At approximately 4 p. m., on the afternoon of December 13, 1968, Sgt. Barrett executed a sworn affidavit for the issuance of a search warrant for a 12-gauge sawed-off shotgun, assorted pistols and handguns. The affidavit alleged that the sole and only reasons for his belief that the guns were concealed or kept on the described premises was ‘information received from an informant whose information has been reliable in the past.’ The judge of the municipal court issued a search warrant for the described property, reciting that ‘the following grounds exist for issuance of a search warrant, to-wit: Reliable information received from an informant whose information has been reliable in the past.’
“At approximately 6 or 7 p. m., the police began surveillance of the residence of Christabelle Jenkins from a distance of a half block. At approximately 9:15 p. m., the officers in the car heard a police radio report of a robbery at Little Paul’s tavern. They left the residence for 15 or 20 minutes. Shortly after the return of the police officers to the front of the Jenkins residence, two negro males came out of the house. They were arrested by other officers some 300 feet east of the residence. The police, with their search warrant, went to the door of the residence. A 15-year-old son of Mrs. Jenkins came to the door. The police showed him the search warrant and he let them in. As they entered, they met [Holloway] coming down the stairs. He was arrested on the spot. In the front upstairs bedroom, lying on the bed, was a sawed-off shotgun, assorted cards and papers, men’s billfolds and ladies’ billfolds and purses.”

Following the search, two police officers, Coleman and Dailey, located Christabelle Jenkins at a nearby tavern and returned her to her residence.

The defendant appealed his conviction to the Supreme Court of Nebraska, which affirmed State v. Holloway, supra. With regard to the question of whether the evidence introduced against the defendant had been unconstitutionally seized, the Court held that the warrant was invalid but the defendant had no standing to challenge the search, and, in any event, Christabelle Jenkins had consented to the search. The defendant then brought a petition for writ of habeas corpus in federal District Court. The District Court denied relief, holding that the defendant did not have standing to challenge the search and seizure.

I. STANDING.

It is the defendant’s position that he has standing to challenge the search of Jenkins’ residence under the principle enunciated in Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960) — that “anyone legitimately on the premises where a search occurs may challenge its legality.” Accord, McCreary v. Sigler, 406 F.2d 1264, 1267 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). The state argues that the Supreme Court of Nebraska and the District Court correctly held that the defendant does not have standing. It contends that the defendant must show some expectation of privacy beyond being legitimately on the premises for a brief period of time. This contention is without merit. The Supreme Court has recently reiterated its position that the “[p]resence of the defendant at the search and seizure was held in Jones, to be a sufficient source of standing in itself.” (Emphasis added.) Brown, et al. v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973). See, Garza-Fuentes v. United States, 400 F.2d 219, 221 (5th Cir. 1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1311, 22 L.Ed.2d 563 (1969); McDowell v. United States, 383 F.2d 599, 603 n. 4 (8th Cir. 1967).

The state also argues that the defendant does not have standing because he was not legitimately on the premises. We disagree. The evidence produced at the pretrial suppression hearing shows that the defendant is entitled to standing under the Jones and Brown cases. Holloway, a lifelong friend of Christabelle Jenkins and a twice-weekly visitor at her residence, was in the Jenkins’ residence in the company of the Jenkins’ children at the time of the search. While the evidence shows that Christabelle Jenkins, herself, was not home and had not invited or expected the defendant that evening, we do not believe that these facts are of great consequence in the present case. The Fourth Amendment protects the old friend who “drops in,” as well as the guest who receives a specific invitation. There is nothing in the record to suggest that the defendant wrongfully-gained entrance to the Jenkins’ residence. Thus, we hold that the determinations that the defendant did not have standing were clearly erroneous and that he may challenge the validity of the search of the Jenkins’ residence.

We next turn to the question of whether the search of the Jenkins’ residence was unconstitutional. The Supreme Court of Nebraska found that the warrant, pursuant to which the search was conducted, was an invalid one because the affidavit, on which it was based, was conclusionary and did not set forth sufficiently the underlying circumstances. The state does not challenge that this holding comports with Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and we believe that the holding of the Supreme Court of Nebraska is consistent with that case. Thus, the burden is on the state to demonstrate that this is an exceptional case justifying a warrantless search. The state attempts to justify this search on two grounds: first, that Christabelle Jenkins consented to the search and, second, that the search was conducted pursuant to a lawful arrest of Holloway.

II. CONSENT.

Christabelle Jenkins was not present at her residence at the time of the search. She had not consented to the search prior to its being carried out. After the evidence had been found, Officers Coleman and Dailey located her at a nearby tavern. Coleman, who knew Jenkins, informed her that her house had been searched pursuant to a warrant, that contraband had been found, and that she should return with the police to her home. She agreed to this and indicated that the police did not need a warrant.

At the suppression hearing, Jenkins confirmed that she had indicated to Coleman her willingness to cooperate, and described what she saw when she subsequently returned home:

“A. Well, it was detectives in there. They were tearing the house up. Was already ramshackled. I went upstairs and the same thing was going on.
“Q. When you say ‘ramshaekled’ you mean pulling things out, clothes and stuff like that? Is that what you are referring to that they were doing ?
“A. Yes.
“Q. Would this be police officers other than Mr. Coleman and Officer Dail-ey; right?
“A. Yes.
“Q. Did you know any of the other police officers' who were doing this ransacking ?
“A. No.
* * * * * *
“Q. Okay. Now, in addition to searching your home when you arrived on the premises were the police officers that you saw there, were they doing anything else ?
“A. Well, some in the kitchen that were counting money. Some upstairs were pulling some clothes out and some stuff off the shelves.
“Q. Were they taking any pictures?
“A. It was — yes. It was a reporter upstairs.
"Q. You mean a photographer ?
“A. Yes.
“Q. Now, did you ever give your permission to search of any time prior to the time that they came down to your place of employment — down to the Workmen’s Club looking for you? Did you give them permission prior to that time to search your premises?
“A. No. I got there, they were already searching.
“Q. Prior to the time that they came to your house — to the Workmen’s Club and asked you to go to your house, were they — had you given permission to search your premises ?
“A. No.”

Jenkins also testified that she had denied ownership of the incriminating evidence, and told the police to take whatever they wanted.

The Supreme Court of Nebraska held that the state had demonstrated the existence of a valid consent.

“* * * Here Christabelle Jenkins, the only proper person from whom a consent could be appropriately obtained, had known Sgt. Coleman all of her life. She did not even remember whether Sgt. Coleman had told her that he had a search warrant. Sgt. Coleman testified that when he told her he had a search warrant, she advised him he didn’t need anything, and that she was willing to let him search her home. She told Coleman she wanted to cooperate and she invited Coleman and Dailey into the house when they arrived.
“Even if there were a question as to the timing of the consent compared with the time of initial entry into the house, there can be no question whatever that Mrs. Jenkins specifically authorized and directed the police to seize and take the articles found in a bedroom of her home. * * * ”

State v. Holloway, supra 187 N.W.2d at 89-90.

We believe that this determination of the Supreme Court of Nebraska was clearly erroneous. The state has not met its burden of proving that the “consent was, in fact, freely and voluntarily given,” Schneckloth, Superintendent, etc. v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), in view of the following factors:

(1) The consent was secured after the police had claimed to be proceeding under a warrant. Bumper v. North Carolina, 391 U.S. 543, 549-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); McCreary v. Sigler, supra, 406 F.2d at 1267. In Bumper, the Court stated:

“ * * -:<• a search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. * * *
“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion' — albeit colorably lawful coercion. Where there is coercion there cannot be consent.”

Bumper v. North Carolina, supra, 391 U.S. at 549-550, 88 S.Ct. at 1792 (Footnote omitted).

The Nebraska Supreme Court relied heavily on the fact that Jenkins disclaimed the need for a search warrant and had indicated a willingness to cooperate with the police. This Court, however, in McCreary v. Sigler, supra, 406 F.2d at 1267, held that such disclaimers did not enable the state to meet its burden of proving voluntary consent when the police claimed to be searching pursuant to a warrant. In McCreary, the individual alleged to have consented to the search stated, when informed of the warrant: “You don’t need it. Go ahead and search. I pay the rent here.” McCreary v. Sigler, supra at 1267. We held that this language did not establish consent.

(2) The consent was secured after Jenkins’ residence had been entered, a search carried out, incriminating evidence seized, and Jenkins told of these facts. See, Smith v. Rhay, 419 F.2d 160 (9th Cir. 1969); Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381, 383, cert. denied, O’Kelley v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429 (1945); Farris v. United States, 24 F.2d 639 (9th Cir.), cert. denied, 277 U.S. 607, 48 S.Ct. 602, 72 L.Ed. 1012 (1928). The Supreme Court of Nebraska, recognizing the problem of the timing of the consent to search, suggested that Jenkins’ subsequent statement at her apartment — that the police could take the incriminating evidence — constituted consent. This suggestion is without merit. The same coercive factors were still operative at the time of this alleged consent. In addition, Jenkins was face to face with the incriminating evidence and able to see that the police had firm control over her home.

(3) No showing was made that Jenkins was aware of her Fourth Amendment rights. See, Schneckloth, Superintendent, etc. v. Bustamonte, supra, 412 U.S. at 248-249, 93 S.Ct. 2041.

Under all the circumstances of this case, we cannot say that the alleged consent by Jenkins was anything more than “acquiescence to a claim of lawful authority.” Bumper v. North Carolina, supra, 391 U.S. at 549, 88 S.Ct. at 1792. Thus, the search of the Jenkins’ residence cannot be justified on the basis of consent.

III. SEARCH INCIDENT TO A LAWFUL ARREST.

The search of the Jenkins’ residence occurred prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The state argues that the search was justified under United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), as incidental to lawful arrest of the defendant Holloway. We find no merit to this contention.

As we noted above, the police had been investigating several tavern robberies in Omaha. The police believed that a robbery would occur on December 13, and that the perpetrators might go to the Jenkins’ residence. In addition, at the time of Holloway’s arrest, the police had learned that the robbery of an Omaha bar had taken place, and that the robbers were two black males. The police had no further description of the robbers. Upon arrival at the Jenkins’ residence, they noticed two black males leaving, and immediately arrested them. Upon entering the apartment, they arrested the defendant who was also a black male.

At most, the only “facts” which the police had, connecting Holloway to the robbery of Little Paul’s Tavern at the time of his arrest, were that he was at the Jenkins’ residence and that he was a black male. These “facts” are not enough to supply that “objective evidentiary justification” which our Constitution requires for an arrest in order to “guard against police conduct which is overbearing and harrassing or which trenches upon personal security.” Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1968).

Under the circumstances, even if the police had probable cause to believe that the culprits were meeting at the Jenkins’ residence, this fact alone would prove insufficient justification for arresting anyone who happened to be on the premises without some evidence linking the individual to the crime. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Collins, 142 U.S.App.D.C. 100, 439 F.2d 610, 614-615 (1971). Nor do we think that the additional fact — that Holloway was a black male — supplies probable cause for arrest, particularly in view of the fact that the police were looking for two black males and they had already arrested two leaving the Jenkins’ residence. We emphasize that the police did not have a reliable description of the robbers of Little Paul’s Tavern. They did not know their size, build, type of clothing, hair length or color, or anything else aside from the fact that they were black males. Moreover, no testimony was introduced to suggest that Holloway’s actions at the time of his arrest were suspicious. To sanction the theory that because Holloway is a black male there was probable cause to arrest him, would lead to intolerable results'. It would place in jeopardy the security of any and every black male. It would legalize just the kind of police practice condemned because it leads to friction between the police and minority group members. See, President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police, 183 (1967). We hold then that the arrest of Holloway was not based on probable cause and that, therefore, his unlawful arrest could not justify the search of the Jenkins’ residence.

IV. HARMLESS ERROR.

Finally, the state argues that even if it was error to admit the fruits of the search of the Jenkins residence into evidence, this error was harmless. We disagree. Aside from material turned up by the search, the evidence against the defendant consisted primarily of the testimony of two patrons of Little Paul’s Tavern who identified him as one of the robbers. Holloway’s defense was to present an alibi accounting for his whereabouts at the time of the robbery. Holloway took the stand to testify, and his alibi was corroborated by two additional witnesses. The jury’s verdict then depended in large measure in resolving the question of the credibility of the witnesses. We cannot say beyond a reasonable doubt that the evidence illegally seized did not influence that determination and contribute to the conviction, and, thus, we cannot say that its introduction was harmless error. Losieau v. Sigler, 421 F.2d 825 (8th Cir. 1970).

Reversed and remanded for action consistent with this opinion.

      . Holloway raises several other issues on appeal: (a) that the trial court erred in allowing an alleged accomplice to invoke the Fifth Amendment; (b) that the trial court erred in permitting certain cross-examination with respect to the defendant’s prior criminal record; and (c) that the defendant has been the subject of an unconstitutional search of his person. In view of our decision to reverse because of the unconstitutional search of the Jenkins’ residence, we need not reach these issues.

      . While the evidence produced at the pretrial suppression hearing establishes that the defendant was legitimately on the premises, this fact is also supported by evidence produced at trial. The following colloquy occurred during the cross-examination of Christabelle Jenkins:
      “BY HR. STUREK [Attorney for the defendant] :
      “Q. You say you have known Mr. Holloway all his life ; is that right?
      “A. Yes.
      “Q. And lie frequently visits your home :S * * 7
      “A. Yes.
      “Q. Would it be anything unusual to have him there at your home?
      “A. No.
      “Q. * * * [W]ould it be unusual for him to be there when just your children are there?
      “A. Yes. He comes to the house a lot of times when I am not there and just the children.
      “Q.- So when Mrs. Pittman [attorney for the state] asked you if you gave him permission on this night to be there, this is merely a formality, isn’t it?
      “A. Yes. He comes there all the time.”
      This evidence may be considered on appeal in determining whether the defendant’s constitutional rights were violated. See, United States v. Canieso, 470 F.2d 1224, 1226 (2nd Cir. 1972).

      . The state has not sought to justify the search of the Jenkins’ residence on the theory that the search was consented to by the fifteen-year-old Jenkins’ boy. There was no showing that he was aware of his Fourteenth Amendment rights; and in view of his age, see, United States v. Payne, 429 F.2d 169, 171 (9th Cir. 1970), and the fact that entry was gained by showing a warrant, see, Bumper v. North Carolina, 391 U.S. 543, 549-550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), we cannot say that consent was voluntarily and freely given.

      . The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police, 183 (1967), warns:
      “Police officers should not base decisions to arrest, stop, use force, or the like, in whole or in part, on race, poverty, or civil rights activity. All decisions must be based on objective evidence which creates suspicion, proof of guilt, or threat of danger to the officer or public, as the law requires.”

      . Some additional evidence was introduced into evidence that bad been seized from Holloway’s person, but Holloway introduced testimony to dispute the alleged incriminating effect of this evidence.