author: ALFRED T. GOODWIN, Circuit Judge: TRASK, Circuit Judge

text:
    Joseph Anthony MEEKS, Appellant, v. Walter CRAVEN, Warden, Appellee.
    No. 72-2221.
    United States Court of Appeals, Ninth Circuit.
    July 20, 1973.

      Howard J. Berman, San Francisco, Cal., for appellant.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Gloria F. DeHart, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, Cal., for ap-pellee.
    Before TRASK, CHOY, and GOODWIN, Circuit Judges.
   ALFRED T. GOODWIN, Circuit Judge:

Joseph Anthony Meeks challenged by way of habeas corpus in the district court two California convictions. The causes were combined below, and have been combined on appeal. While the appeal raises a number of questions, only one requires extended discussion.

Meeks asserts that he was denied the right to act as his own lawyer at his preliminary hearing and at his trial in case No. 44099. At his preliminary hearing, Meeks clearly demanded the right to proceed pro se, and he was allowed to do so. The judge, however, appointed counsel to sit with Meeks and to aid in the examination and cross-examination of witnesses. Meeks does not assert that he incurred prejudice by reason of this assistance, and there was no error. Bayless v. United States, 381 F.2d 67 (9th Cir. 1967).

This circuit has recognized a constitutional right to represent oneself, Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970), and has recently stated that the complete denial of this right in a federal trial is, per se, reversible error. United States v. Pike, 439 F.2d 695 (9th Cir. 1971). See United States v. Price, 474 F.2d 1223 (9th Cir., 1973). Meeks presents several questions which have not hitherto been considered.

First, this case comes to us on habeas corpus, unlike most of the eases involving pro se representation, which have presented the problem in the context of a direct appeal. See, e. g., Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435 (1942); United States v. Pike, supra; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). Thus, the federal statute providing for pro se representation (28 U.S.C. § 1654) has no application. The issue is whether the petitioner is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a).

On the constitutional question, Meeks’ conduct requires a discussion of the sort of demand that must be* made in order to proceed pro se, and when that demand must be made. We hold that Meeks did not make a proper demand to proceed pro se at his trial.

Meeks asserts that at his trial, before a different judge from the one who presided over his preliminary hearing, he again asserted his right to proceed without counsel but was denied the right. Meeks contends that the standard used in California to pass on demands to proceed pro se is constitutionally invalid because it requires that the defendant possess some actual ability to present a defense. We do not reach this question, for we hold that Meeks did not make an “unequivocal” demand to represent himself. United States ex rel. Anderson v. Fay, 394 F.2d 109 (2d Cir. 1968); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 n.2 (2d Cir. 1965), cert. denied, Di Blasi v. McMann, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966); cf. Rotolo v. United States, 404 F.2d 316 (5th Cir. 1968). The reason an “unequivocal” demand is required is that, otherwise, “convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” United States ex rel. Maldonado v. Denno, 348 F.2d at 15-16. The trial judge is confronted with a conflict between two rights. He should not be presented with an impossible situation. See People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, 498 n.12 (1972).

Meeks’ demand in this ease was certainly not “unequivocal.” He made no demand to proceed without counsel at the beginning of his trial. It is during the afternoon session that there appear in the record three statements which could be construed as demands by Meeks to proceed pro se.:

“THE DEFENDANT: Your Honor, I have a motion before me. I got a hernia. Motion is whether or not I can proceed on pro per status, and my motion is based on points and authorities if you’d like to hear them.
“THE COURT: Why do you want to proceed in pro per ?
“THE DEFENDANT: Well, there is another motion I would like to make after this one and counsel is against it.”
* * * * * *
“THE DEFENDANT: * * * I do believe in this case, as the Federal right points out, that I be allowed to conduct my own defense due to the fact that counsel feels very, very strongly about a motion that I would like to present before the Court this afternoon. If it was not for this motion, I would be more than willing to let counsel proceed. But I believe that this motion should be entered into the record because I believe it has, in effect, law that has been overlooked.”
•X- -X- * -x- • * *
“THE COURT: * * * Motion denied.
You still want to represent yourself?
“THE DEFENDANT: Yes, Your
Honor, I think I will.”

The first two demands were conditional: Meeks stated that he wished to waive counsel only in order to present his motion and that he had no objection to counsel otherwise. The judge permitted Meeks jto represent himself for purposes of making his motion. Meeks’ “I think I will” is a prototype of equivocation. His so-called “demands” are not made more effective by the intervening discussion about Meeks’ inability to present a defense. All this discussion was prior to the second “demand”; none of it was calculated to make the judge believe that Meeks wished anything more than to present his motion. Meeks made no further requests to proceed pro se.

An “unequivocal” demand to proceed pro se should be, at the very least, sufficiently clear that if it is granted the defendant should not be able to turn about and urge that he was improperly denied counsel. “I think I will” hardly meets the constitutional criteria for waiver of counsel. In the trial at issue, his attorney argued that a prior felony conviction could not be considered because Meeks’ demand to proceed pro se at the earlier trial did not meet constitutional criteria for waiver of counsel. Undoubtedly, if Meeks had been permitted to proceed without counsel in the instant case he would presently be making the same argument, with some justification. We refuse to place trial judges in an impossible dilemma through approval of an “I think so” waiver here.

A trial judge always has a problem when a defendant waives his right to counsel and asserts his right to try his own case. Later, upon reflection, and with new counsel, the defendant is quite likely to mount a collateral attack upon his trial or plea, claiming either that he did not understand what he was doing or that the court should have forced counsel upon him. See, e. g., United States v. Mitchell, 472 F.2d 1223 (9th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2162, 36 L.Ed.2d 695 (1973). We can find no constitutional rationale for placing trial courts in a position to be whipsawed by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules. See United States ex rel. Maldonado v. Denno, 348 F.2d at 16.

As noted, Meeks has challenged his convictions upon a variety of grounds. He asserts that in case No. 43277 he did not knowingly and intelligently withdraw his plea of not guilty and waive trial by jury in favor of court trial on the sanity issue. This argument presented a question of fact. The record of the waiver proceeding sufficiently refutes his claim that he did not knowingly change his plea and waive a jury trial.

The state trial judge interrogated Meeks carefully, and interrogated his attorney, who was also present, on each point bearing upon Meeks’ understanding of the proceedings. Because Meeks was known to have taken Thoraziné in the past, and because he said he had been taking Darvon, a nonnareotie, nonhypnotic pain alleviator, the judge satisfied himself that Meeks was not adversely affected by the drug, and that he understood and could follow the various proceedings.

The state record before the district court fully supported a finding that Meeks knowingly and voluntarily changed his plea and proceeded on the sanity issue with full knowledge of the consequences. Indeed, the record strongly suggests that Meeks’ choice to try to establish a defense based upon his mental condition was probably the only tactic reasonably available to him.

Other points either were not raised in the state trial, or, if raised, present no constitutional question.

Affirmed.

TRASK, Circuit Judge

(concurring).

I concur. I am not persuaded that the Constitution of the United States guarantees to a criminal defendant the right to represent himself. Neither do I read Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), or any other decision of the Supreme Court as holding that it does. Cf. People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, 493-494 (1972). Our court, however, has so held and I yield to those precedents. United States v. Pike, 439 F.2d 695 (9th Cir. 1971); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969).

Perhaps the conflict is partially semantic.

On the one hand the Supreme Court holds that a defendant may under controlled circumstances, competently and intelligently waive his constitutional right to assistance of counsel. Adams, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We have held that a defendant may under controlled circumstances, competently and intelligently insist upon a ‘‘constitutional right” to represent himself. Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142, aff’d on rehearing, 437 F.2d 955 (1971) (competent counsel appointed by court to assist in presentation of case); Hodge, supra, 414 F.2d at 1045 (advisory counsel). Our language may be couched in terms of the absolute right of self-representation, Arnold, supra, 414 F.2d at 1058, with which I disagree, but our holdings have been structured along narrower lines more consistent with the directives of the Supreme Court.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge: COLEMAN, Circuit Judge, BY THE COURT:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Rafael SORIANO et al., Defendants-Appellees.
    No. 72-1520.
    United States Court of Appeals, Fifth Circuit.
    July 2, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 3, 1973.

      Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Arthur Massey, Miami, Fla., for Sori-ano & Arroyo.
    James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for Angel Aviles.
    Albert J. Krieger, New York City, for Alfredo Aviles.
    Julio F. Ferrer, Miami, Fla., for Maz-za.
    Philip E. Vitello, Coral Gables, Fla., for Marsh.

      Gino P. Negretti, Miami, Fla., for Colon.
    Gross & Krause, Manará A. Gross, Miami, Fla., for Sierra and Betancourt.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

The government appeals from a pretrial order suppressing the fruits of two searches, a warrantless search of three suitcases outside the entrance to the Miami International Airport and a search under warrant of a house. Presumably the government bases its right to appeal on § 14 of Title III of the Omnibus Crime Control Act of 1970, 18 U.S.C. § 3731. We have considerable doubt whether we should review' the order, but we do so with the aim that our caveat below may give some guidance for future cases, and without any commitment on our part to review future pretrial suppression orders in a like posture. We conclude that the District Court correctly found the searches of the suitcases to be illegal but that it erred in suppressing fruits of the house search.

On December 17, 1971, federal narcotics agents received word from Sarah Cook that persons whom she knew as Freddie, Rafael, and Argentine were expecting a large shipment of narcotics. Cook previously had been a reliable informant to the FBI, and that agency had put her in touch with narcotics agents concerning this particular information. About 2:00 p. m. on January 4, 1972, Cook reported to a narcotics agent that she had been to the house of defendant Ana Rose Betancourt, had asked Betancourt whether the narcotics were in, and Betancourt had said “the stuff was in.” Cook related that on this occasion she saw defendants Alfredo Aviles (“Alfredo”) and Marta Sierra in Betan-court’s house.

Agents promptly placed the Betan-court residence under surveillance, and at approximately 4:00 p. m. of the same day they observed Alfredo and Sierra leave the house carrying a brown trash bag, enter a car, and place the bag on the seat. Alfredo drove the car a few blocks away to a point where Sierra deposited the bag in a trash receptacle. An agent retrieved it. Inside were clear plastic bags and torn Christmas wrapping paper, each containing traces of a white powder which, on field test, was disclosed to contain an opium derivative. Later in the afternoon Cook told agents she had just left the Betancourt residence; that inside were Betancourt, Sierra, Angel Aviles (“Angel”), Rafael Soriano, and Edward Arroyo; that she had seen suitcases and Christmas packages there; and that the parties had been whispering to each other.

The agents continued their surveillance of the Betancourt residence. At 10:00 p. m. on January 4 they observed defendants Angel, Domingo Colon,' and Soriano exit the Betancourt residence carrying three large suitcases. They entered a taxicab which agents followed to the entrance of the Miami International Airport. Acting without a warrant, the agents stopped the cab on the ramp outside the Airport entrance, arrested the passengers, opened the cab’s trunk, and removed the suitcases. After the cab and the arrestees had been removed from the ramp the agents opened the suitcases, searched them, and seized plastic bags of white powder that are in part the subject of the pretrial motion to suppress.

Meanwhile other agents had been preparing affidavits and securing a .warrant pursuant to which they planned to search the Betancourt residence. Between 11:00 and 11:30 p. m. an agent appeared before a magistrate who signed the search warrant, and the house was searched when an officer arrived with the warrant. The search produced evidence that defendants seek to suppress.

1. The suitcase search

The agents had probable cause to believe that the occupants of the taxicab were carrying narcotics in their suitcases, and appellees do not seriously contend otherwise. The agents were justified in opening the trunk and removing the suitcases under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and its progeny in this circuit. The intrusion into the cab’s trunk met the criteria for warrant-less vehicular searches set out in Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct. 2022, 29 L.Ed.2d 564, 579 (1971). Under the circumstances the officers could legitimately seize these suitcases — they were not required to leave them in the cab or on the sidewalk to be taken away or to disappear. War-rantless temporary detentions of containers that officials have probable cause to believe contain contraband, such as parcels in transit, have been approved by the Supreme Court when demanded by the exigencies of the situation. See, e. g., United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). The crucial question before us is whether the agents, having seized the suitcases, could open and search them of whether, while retaining them in their dominion and control, they were required to appear before a magistrate and seek a warrant to examine them.

Indubitably the suitcases were “effects” within the fourth amendment’s protection of “[t]he right of the people to be secure in their persons, houses, papers, and effects.” To justify a warrantless search the government must fit it within an established exception. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions,” and “the burden is on those seeking the exemption to show the need for it.” Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. at 2030, 29 L. Ed.2d at 576. As Justice Jackson explained in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), with characteristic clarity:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

Id. at 13-14, 68 S.Ct. at 369, 92 L.Ed. at 440. We must therefore analyze the reasons advanced by the government toward fulfilling its burden and determine if the warrantless search of the suitcases fits within one of the well-defined exceptions to the fourth amendment’s warrant requirement.

At the threshold we put aside as inapplicable several theories sometimes advanced to justify warrantless searches of such personal effects as handbags, suitcases, billfolds, or briefcases. The government does not argue that the search was legitimately incident to a lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Nor does the government claim that the search was valid under the plain view doctrine or under the theory of abandonment, and, appropriately, there is no suggestion that constitutional analysis should vary because by hindsight we know the agents discovered contraband. Instead the government stakes its case on two principal arguments: (1) exigent circumstances justified failure to secure a warrant; and (2) a warrant to search personal effects is not required after they have been legitimately seized.

a. Exigent circumstances

Exigent circumstances requiring an immediate search may operate in some cases to excuse time-consuming resort to judicial processes for issuance of a warrant. E. g., Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889, 905 (1968); McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 93 L.Ed. 153, 158 (1948). The only exigent circumstance advanced by the government in this case is that opening the suitcases immediately might have disclosed information which possibly would have led to the capture of others participating in the narcotics operation. This does not stand constitutional scrutiny. The argument proves too much. If this court were to accept as legitimate the government’s loosely defined concept of exigent circumstances, scarcely a case would remain in which a warrantless search for narcotics would not be justified. There is almost always a chance that newly discovered evidence will ensnare unknown accomplices. Also, a magistrate was readily available in the Miami area — one was contemporaneously signing a warrant to search the Betancourt residence — so the officers would have lost little time in detaining the suitcases until a warrant was secured. Additionally, so far as the record discloses, none of the officers even entertained a notion that a temporary delay in searching the suitcases would have in any manner prejudiced their planned raid on the Betancourt residence. And, finally, the agents acknowledged what in good sense we all know — their purpose- in searching the suitcases was to confirm that they contained the narcotics which the agents suspected they contained. Compare Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

b. Post-seizure search theory

As previously pointed out, the officers would have acted within the fourth amendment by seizing and detaining the suitcases pending a request to judicial authority for a search warrant. The government theorizes that the justifiable seizure authorized an immediate, war-rantless, on-the-scene opening and search of the suitcases. This theory is built on language in Chambers v. Maro-ney, supra, an automobile search case, in which the Supreme Court intimated that there was no constitutional difference “between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.” We are in fundamental disagreement with the government’s theory.

Chambers was an automobile search case, and automobiles have traditionally enjoyed a special status under the fourth amendment. Since prohibition days warrantless searches of motorized vehicles have been upheld “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543, 551 (1925). Also, during the prohibition era “the car itself . . . was treated somewhat as an offender and became contraband.” United States v. Di Re, 332 U.S. 581, 586, 68 S.Ct. 222, 225, 92 L.Ed. 210, 216 (1948). There is no indication in cases of the Supreme Court or of this circuit that the Carroll doctrine has any applicability to personality other than vehicles mobile because of their locomotive powers. Against this historical background, language in Chambers tailored for the law of automobile search is not to be lifted out of context and applied globally to the whole world of personalty not bolted down.

In practice the government’s theory that justification to seize personal effects is ipso facto justification to search them would transform the fourth amendment from the rule to the exception, and, for thousands of items of movable personalty which are routine appurtenances of Americans’ day to day life, would read out of the fourth amendment the warrant requirement. Often the police are justified, as in this case, in seizing an article suspected of containing contraband, or evidence or fruits of crime, pending issuance of a warrant. For example, in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), the Supreme Court upheld temporary detention by customs officials of a suspicious package, mailed first class, pending execution of a warrant to search its contents. See also United States v. Garay, 477 F.2d 1306 (CA5 1973) (No. 72-3537). These legitimate intrusions by way of seizure do not topple like dominoes all remaining privacy interests in the personal effect. As the Supreme Court explained in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), there is “no reason why, simply because some interference with an individual’s privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.” Id. at 767 n. 12, 89 S.Ct. at 2042, 23 L.Ed.2d at 696 n. 12.

The fact of a legitimate seizure of personal effects does not, then, automatically justify a subsequent search. By the same measure, there may be cases in which, depending on the facts at hand, a subsequent intrusion will not significantly increase a pre-existing, legitimate interference with a protected interest. To recite a familiar principle, “The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Sibron v. New York, 392 U.S. 40, 59, 88. S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968). The task for us is to determine whether the search significantly added to the invasion of privacy occasioned by the initial seizure, and if so, whether the search was nevertheless within the “scope of the justification for the initial intrusion.” United States v. Green, 474 F.2d 1385 (CA5 1973). See Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct; 1868, 1878, 20 L.Ed.2d 889, 904 (1968) [“The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”]

In this case the search significantly increased the interference with privacy. As a factual matter it differed markedly from the initial seizure, after which the contents of the suitcases remained undisclosed to the world. Moreover, common sense teaches that the citizen whose luggage has been lawfully seized prefers interposition of the judgment of an impartial magistrate before law enforcement officers may rummage through its contents. Also, the search exceeded the scope of the justification for the initial intrusion. While exigent circumstances required seizure of the suitcases and detention pending issuance of a warrant, they did not require an immediate, war-rantless search of the contents.

Thus the search was unlawful because it intruded on an interest protected by the fourth amendment and because a warrant could have been readily obtained without prejudicing the need for effective law enforcement.

c. Automobile cases

As an additional argument, the government cites a line of cases each upholding the search of a container which has been found in a vehicle and which contained liquor or other contraband. With one immaterial exception the holdings of these eases are based on the rationale of Carroll v. United States, supra, which generally sanctions warrant-less searches of vehicles stopped on highways and suspected of being used to transport contraband. The focus of analysis in each of these cases was the car itself. In this case the government has expressly acknowledged that the subject of the search was the suitcases and has disclaimed the automobile as the subject of search. It has pressed for a ruling on the warrantless search of effects previously removed from the vehicle. While we rarely quote from briefs, we do so here to demonstrate the force with which the government presses for a ruling on the suitcase-search issue without regard to whether a full search of the vehicle would have been legitimate.

Our position is clear if the focus is placed not upon the taxicab, but upon the true subject of the search, the suitcases. . . . [I]n this case the subject of the search was not the vehicle itself, but the luggage known to be conveyed in the trunk. An examination of the movement of the suitcases would indicate that exigent circumstances still existed for the immediate warrantless search of the luggage at the airport notwithstanding the immobilizing of both the vehicle and the occupants.

The government having acknowledged the true subject of the search to be the luggage, we could not, and will not, construct a spurious validation of that search upon the right to search a mobile vehicle which was not the subject of search at all. Cf. United States v. Di Re, 332 U.S. 581, 585-587, 68 S.Ct. 222, 92 L.Ed. 210, 216 (1948).

2. The house search

The basis for the motion to suppress fruits of the house search was failure of the warrant to name the executing officer and the affiant. On the night of January 4 Agent Richel, accompanied by two government attorneys, appeared before a magistrate and secured a warrant to search the Betancourt residence. Ri-chel then radioed agents surveilling the residence that he had secured a search warrant and was en route to serve it. Before he arrived the surveilling agents knocked on the door of the house, and when Betancourt answered they placed her and the other occupants under arrest. The search that yielded the allegedly tainted evidence was not made until Richel’s arrival with the warrant.

Rule 41(c), Fed.R.Crim.P., provides in part: “The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” Appellees’ argument appears to be that because the warrant violated this provision, which has the force of statute, see Bacon v. United States, 449 F.2d 933, 937 n. 3 (CA9 1971), evidence taken during execution of the warrant was illegally seized and thus suppressible under Rule 41(e). We do not understand the basis for the motion to be that the warrant contravened the fourth amendment itself, which by its terms does not require that the warrant be directed to a specific officer.

Whether historically or by contemporary usage, the requirement that the serving officer be named in the warrant has come to protect several important interests. As the court explained in United States v. Gannon, 201 F.Supp. 68 (D.Mass.1961), one of its functions is to fix responsibility in the event the warrant is not executed. Also, it enables the magistrate to make a pre-search determination that an appropriate officer will serve the warrant. It assists the person whose premises are to be searched in ensuring that the search will be made by an authorized officer and not by an imposter. And it provides a record so that, if necessary, the judicial processes can make a post-search determination that the search was conducted by an authorized officer.

Oral testimony at the motion to suppress hearing shows that in light of these interests the magistrate’s failure to fill in the pertinent blank was a mistake of form only and not of substance. When Agent Richel appeared before the magistrate accompanied by two government attorneys he stated that he, Richel, would be the officer to serve the warrant. Also, Richel showed his identification and the warrant when he arrived at the Betancourt residence, and he told the occupants that he was Special Agent Richel from the Bureau of Narcotics and had been ordered by a magistrate to execute the warrant. At this time the occupants were in the company of other agents who had knocked on the door, orally identified themselves as federal narcotics agents, and displayed their identification papers. And, before leaving the residence after the search, Agent Richel and two officers assisting him in the search signed their names on the reverse side of the warrant as the serving officers.

Thus despite technical noncompliance with the Rule, the relevant interests were protected. The magistrate knew in advance who was to serve the warrant, and the designated officer indeed served it; the occupants of the subject premises received a panoply of identifications and confirmations of identity from the serving officer and those assisting him; a record of the name of the serving officer and those assisting him was made by signatures on the reverse side of the warrant; and responsibility for execution of the warrant was fixed. We conclude that not only did defendants receive a full measure of Rule 41(c)’s protection, but that the possibilities of future compliance with the requirement that the serving officer be named in the warrant would not be enhanced by penalizing law enforcement officers who, while not in the precise form required, nevertheless in substance do everything required of them. Moreover, we regard as small the possibility of another error of this sort. The search warrant is on a form prescribed by the Administrative Office of the United States Courts, and it has a blank for the name of the serving officer.

Nor is failure of the warrant to specify the name of affiant sufficient ground for suppression in this case. Fed.R.Crim.P. 41(c) provided at the time the search was made that the warrant “shall state . . . the names of the persons whose affidavits have been taken in support thereof.” This provision has been deleted with the 1972 amendments to the Rules of Criminal Procedure. As the Committee’s note to the amended Rule explains:

The requirement that the warrant itself state the grounds for its issuance and the names of any affiants, is eliminated as unnecessary paper work. There is no comparable requirement for an arrest warrant in rule 4. A person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued.

In this case the affiant’s name was affixed to the affidavit, to which defendants have had access. The affidavit did not misrepresent his identity as had the affiant in King v. United States, 282 F.2d 398 (CA4 1960), so we are not concerned with a “willfull effort to mask the true source of the information.” Id. at 400-401. See also United States ex rel. Pugh v. Pate, 401 F.2d 6 (CA7 1968), cert. denied, 394 U.S. 999, 89 S.Ct. 1590, 22 L.Ed.2d 777 (1969). At the hearing on the motion to suppress defendants were accorded an opportunity to cross-examine the affiant to the full permissible extent. With the case in this posture we decline to uphold the suppression order for technical noncompliance with a paperwork requirement.

3. Conclusion

Affirmed in part, reversed in part, and remanded for further proceedings.

COLEMAN, Circuit Judge,

(concurring in part and dissenting in part):

I concur in that part of the opinion of the Court which sustains the validity of the residential search.

I must respectfully dissent from that part of the opinion which invalidates the opening of the suitcases and the examination of their contents.

At Page 4 of the typewritten copy, the majority opinion concedes that the agents had probable cause to believe that the suitcases contained narcotics, that the agents were justified in opening the automobile trunk and removing the suitcases, and that the intrusion into the automobile trunk met the criteria required for a warrantless vehicular search.

In the application of the required standard of reasonableness, what more could have been required?

The majority opinion concludes, however, that although the suitcases were lawfully seized from an automobile they could not, in the absence of a search warrant, be opened. Under the facts of this ease an automobile certainly could have been searched but the majority holds that these suitcases are to be .treated as if they had been seized from such a vehicle, in this instance an automobile at the top of the ramp in front of the Eastern Airlines entrance at an airport. It inescapably follows, I think, that the majority would take the well established law governing warrant-less, probable cause, searches of automobiles and convert into a diametrically opposite rule for the warrantless, probable cause, examination of the contents of packages taken from such vehicles. I have searched in vain for any reported case in the federal judicial system which declares this to be the law; as I understand it, the majority cites none.

Moreover, the majority opinion sets out on this journey in a ease in which it is admitted that we are “without adequate findings below”. Not only that, but the court below originally denied the motion to suppress the contents of the suitcases. A few days later, the ruling was changed for the purpose of making it appealable when the government announced its intention of appealing the residential suppression issue. We ought not to accept appellate jurisdiction under such circumstances. We do not issue advisory opinions. The majority confesses “considerable doubt” of its duty to review the matter.

But to return to the issue which the majority has agreed to decide, I would call attention to the concurring opinion of six Judges of this Court in United States v. Colbert, 474 F.2d 174 (alluded to in Footnote 6 of the majority opinion) in which these Judges would have upheld the warrantless, probable cause, search of brief eases found, not in an automobile, but on a city sidewalk. In my opinion, the suitcases could have been seized and searched as they were leaving the house. That the officers waited until they reached the airport should make no difference.

The majority says that the suitcases should have been detained until a warrant was obtained, that this would have only caused a “temporary delay”. The same could be said for automobiles. Once stopped it is just as easy to detain an automobile as to detain its contents.

The opinion does not say what is to be done with the occupants of a vehicle from which the contents are taken. May they be detained while the warrant is obtained and the search consummated? If it is unreasonable to search a parcel taken upon probable cause from an automobile at the entrance to an airport office then it would be unreasonable to deprive individuals of their liberty while the warrant is obtained. On the oter hand, those in possession of the parcels ought not to be allowed to catch a plane while the hamstrung officer looks for a warrant.

It denies reality to say that this automobile was not searched, that only the suitcases were searched. True, the officers knew where to look for the suitcases, but they had to open the trunk of the car to get to them, so this was a search in the customary sense of the term, so held in cases too numerous to mention. The car was stopped, the trunk was-opened, the suitcases were seized.

The majority declines to say that when officers stop an automobile on the probable cause that it contains contraband liquor they must have a search warrant to look in the boxes containing the jugs hidden in the trunk of the car. Why should the law be any different for heroin ?

Reasonableness is the test. If the case were ripe for appellate decision I would, upon the considerations presently available to us, hold the search-of these suitcases to have met every requirement of reasonableness. This is not an ordinary, tin horn heroin case. In the overall picture, nearly four hundred pounds of that deadly stuff was involved.

Since, however, the judgment of the District Court suppressing the contents of the suitcases was clearly entered as an after thought, not as its real opinion in the matter and since it was done solely to engender an appeal not otherwise available, I would remand for adequate findings and for a judgment thereon not prompted by the expressed desire to obtain “a kind of declaratory judgment”.

I respectfully dissent.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . At a pretrial hearing the District Court initially suppressed the fruits of the house search on the ground that the warrant was defective but upheld the warrantless search of the suitcases. Under 18 U.S.C. § 3731 the United States has the right to appeal a pretrial order suppressing fruits of a search if the appeal is not taken for purposes of delay and if the evidence suppressed is material to the government’s case. The government informed the District Court that it would exercise its right to appeal the order suppressing the fruits of the house search. The District Court then changed its ruling on the suitcase-search issue so that this court could review both suppression questions prior to trial. In effect the District Court has certified the suitcase-search question to us, and we are asked to review it without adequate findings below. '
      Also there are nine appellees, some of whom appear to have standing as to one search, some as to the other, and some as to neither. The government has indiscriminately passed over standing without, even recognizing the existence of the question. Appellees — eager as one would expect for any manna that might fall in their direction — have briefed the searches willy-nilly in six separate briefs, without regard to their respective relationships to the premises searched.
      The right of the government to appeal pretrial suppression orders is not a right to bundle up all the suppression issues in the case and ship them to the appellate court which hopefully will sort out all the tangled skeins to the benefit of everyone concerned.

      . E. g., United States v. Chapman, 474 F.2d 300 (CA5, 1973); Gomez v. Beto, 471 F.2d 774 (CA5, 1973); United States v. Henderson, 469 F.2d 1074 (CA5, 1972); United States v. Gulledge, 469 F.2d 713 (CA5, 1972); United States v. Miles, 445 F.2d 974 (CA5), cert. denied, 404 U.S. 912, 92 S.Ct. 231, 30 L.Ed.2d 185 (1971).

      . In his dissenting opinion Judge Coleman urges that “reasonableness” is the test and that the suitcase search met that standard. Certainly the fourth amendment bans only unreasonable searches and seizures. But the interpretive caselaw has established beyond argument that, as set out by the language of the Supreme Court in the Coolidge opinion (after a full review of the precedents), there are certain searches which as a matter of law are not reasonable, and they are “searches conducted outside the judicial process, without prior approval by judge or magistrate,” unless the government can carry the burden of showing that the search falls within one of the “few well-delineated exceptions.” This circuit has joined, as indeed it must, in the principle reiterated in Coolidge. See, e. g., United States v. Garay, 477 F.2d 1306 (CA5 1973, No. 72-3537, Judges Tuttle, Thornberry & Dyer) (“Subject only to a ‘few specifically established and well-delineated exceptions,’ searches conducted without the prior issuance of a warrant are per se unreasonable.”); United States v. Ragsdale, 470 F.2d 24, 27 (CA 5 1972, Judges Brown & Clark, Judge Rives specially concurring) (“[A]ll warrantless searches [are] inherently unreasonable unless they fall within narrowly defined exceptions.”); United States v. Scheffer, 463 F.2d 567, 574 (CA5 1972, Judges Ainsworth, Godbold & Morgan) (“[T]he burden is on the prosecution to come within some exception to the warrant requirement.”); United States v. Resnick, 455 F.2d 1127, 1131 (CA5 1972, Judges Godbold, Simpson & Clark) (quoting the above-quoted language from Coolidge); United States v. Drew, 451 F.2d 230, 232 (CA5 1971, Judges Gewin, Goldberg & Dyer) (“[T]he burden of the government is always heavy when it urges any exception to the general requirement that searches and seizures must be predicated upon a warrant issued on probable cause. . . . ”) ; United States v. Sokolow, 450 F.2d 324, 325 (CA5 1971, Judges Gewin, Goldberg & Dyer) (“A search conducted outside the judicial process . . . is per se unreasonable . subject to limited and well-defined exceptions . . . . ”). See also United States v. Davis, 423 F.2d 974, 978 (CA5, Judges Gewin, Coleman & Dyer), cert. denied, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970) (“The reasonableness of a search is not something which can be determined abstractly.”).

      . In fact, in an exchange between court and government counsel at the hearing on motion to suppress, the government disclaimed reliance upon an incident to arrest basis, apparently recognizing that there was no possibility that the arrestees could get into either car trunk or suitcases to obtain weapons or destructible materials. Consequently of no direct applicability are such cases as Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Harrison, 461 F.2d 1127 (CA5 1972); United States v. Wysocki, 457 F.2d 1155 (CA5 1972); United States v. Nooks, 446 F.2d 1283 (CA5), cert denied, 404 U.S. 945, 92 S.Ct. 291, 30 L.Ed.2d 261 (1971); United States v. Stamps, 430 F.2d 33 (CA5 1970).

      . The exteriors of the suitcases were exposed to the world at large, but the contents, which were the target of the search, were concealed from view.

      . This court recently applied the .abandonment doctrine to uphold a warrantless search of briefcases. See United States v. Colbert, 474 F.2d 174 (CA5 1973) (en banc). In this case there is no evidence, nor does the government contend that there is any, that defendants disavowed ownership of the suitcases.

      . On-the-scene confirmation of ■ the accuracy of information which could not otherwise be relied upon may contribute to probable cause to arrest, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), but the validity of a search not incident to arrest may not be supplied by what is found in the search.

      . Our Brother Coleman equates the right to hold in custody those arrested with the right to search their suitcases. The short answer to this argument is that probable cause to arrest does not justify a war-rantless search unless there is present one or more of the circumstances which permit warrantless searches — such as search for weapons incident to the arrest, the likelihood that the seized item may be moved or taken away, or the possibility that those arrested will escape.

      . Judge Coleman refers to the possibility that the occupants of the car might flee while the officers sought a warrant to search the suitcases. In a proper case this would be an exigent circumstance to be considered. It is not present in this ease. The only exigency claimed is the hope that contents of the suitcases might lead to the arrest of other persons, and even that claim is without substance because the officers acknowledged that what they were searching for was the drugs they expected to find.

      . This case is unlike United States v. Johnson, 467 F.2d 630 (CA2 1972), in which the court upheld the warrantless search of a lawfully seized suitcase which the police had cause to believe contained a sawed-off shotgun. The court explained :
      “As they stood in [a] transient and high crime area, their own safety and the safety of others required that they know whether they were holding a dangerous weapon over which they had no control.”

        Id. at 639.

      . While the precise distances between the Betancourt residence, the magistrate, and the Airport are not disclosed in the record, we know from the pattern of the agents’ activities that they were relatively small. Also, the officers were maintaining radio contact among themselves so that they could have assisted each other in securing a warrant to search the suitcases.

      . In United States v. Mehciz, 437 F.2d 145 (CA9), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971), the court adverted to the “logic of Chambers” in upholding the warrantless search of an overnight suitcase. The holding was based, however, on the theory that the search was legitimately incident to a lawful arrest under Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In this case the government concedes that the search was not incident to arrest. To the extent that Mehciz rests on broad application of the above-quoted language of Chambers outside of its factual context, we disagree with it for reasons discussed infra.

      . The Carroll doctrine has been followed by the Supreme Court on four occasions: Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (automobile); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (automobile); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938) (automobile); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931) (automobile). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (automobile). It has been followed in this circuit numerous times. In addition to the cases cited in note 2 supra, see, e. g., United States v. Ramey, 464 F.2d 1240 (CA5 1972) (automobile); United States v. Birdsong, 446 F.2d 325 (CA5 1971) (automobile); United States v. Rodgers, 442 F.2d 902 (CA5 1971) (camper-equipped pickup truck); United States v. Hill, 442 F.2d 259 (CA5 1971) (automobile). The only cases in this circuit even tenuously resembling extensions of Carroll are those applying the doctrine to uphold searches of trailers hitched to motorized vehicles. E. g., United States v. Gulledge, 469 F.2d 713 (CA5 1972).

      . This statement was made in response to Justice White’s argument in dissent that a full-scale search incident to arrest did not significantly add to the invasion of privacy occasioned by the initial justified intrusion on the arrestee’s premises. See also Brett v. United States, 412 F.2d 401 (CA5 1969); United States v. Birrell, 470 F.2d 113 (CA2 1972); United States v. Small, 297 F.Supp. 582 (D.Mass.1969).

      . For example, the successive intrusions may come close in time, be practically identical in nature, and be analytically and factually separable only because made by two different sovereigns. See United States v. Green, 474 F.2d 1385 (CA5 1973).

      . The government cites: Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (bottles of illicit liquor) ; United States v. Hill, 442 F.2d 259 (CA5 1971) (plastic jugs of illicit liquor) ; United States v. Roberts, 434 F.2d 1016 (CA5 1970) (sealed cartons of stolen merchandise) ; Armada v. United States, 319 F.2d 793 (CA5 1963), cert. denied, 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605 (1964) (suitcase containing cocaine); United States v. Garner, 451 F.2d 167 (CA6 1971) (briefcases containing guns, ammunition, and stolen money orders) ; United States v. Chalk, 441 F.2d 1277 (CA4), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258 (1971) (bag of gunpowder inter alia) ; United States v. Sherman, 430 F.2d 1402 (CA9 1970), cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805 (1971) (camping pack sacks containing marijuana) .
      The only case cited by the government and not decided under the Carroll doctrine is United States v. Edwards, 441 F.2d 749 (CA5 1971) (5-gallon containers of illicit liquor). Nevertheless, Edwards is also an automobile search case, and in it, as in the other cases cited by the government, the focus of analysis was the car itself. The court upheld the search as a reasonable one on grounds that the car had been abandoned on a public right-of-way, with its motor running and lights on, by a fleeing suspect who had just led the police on a chase at speeds of 90-110 miles per hour. Edwards does not remotely resemble this case, in which the luggage was removed from the car prior to the search and in which the government insists that the subject of the search was the luggage, not the car.

      . In pertinent part the warrant read as follows:
      “To__ “Affidavit having been made before me by - that he is positive that on the premises known as One floor dwelling at 3520 SW 4th St., Miami, Fla..... there is now being concealed certain property . . . which [is] in violation of Title 21 U.S.O. § 841 (Al) and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issu-anee of the search warrant exist “You are hereby commanded to search forthwith the place named for the property specified, serving this warrant and making the search at any time in the day or night . . . . ”

      . This requirement survived intact the 1972 amendments to the Rules of Criminal Procedure.

      . In Gannon Judge Wyzanski inferred that fixing responsibility for nonexecution was the sole reason for naming the serving officer.. As our textual discussion shows, we do not agree that this is the only reason.
      In his analysis Judge Wyzanski considered the relationship of Rule 41(c) to 18 U.S.C. § 3105, which provides:
      “A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”
      He concluded that read together the provisions created two classes of officers authorized to execute the warrant: “(1) those mentioned in the warrant, and, additionally, (2) those officers authorized by law [to execute it].” 201 F.Supp at 71. In this case we do not reach the question whether § 3105 broadens Rule 41(c) by allowing non-named officers to execute the warrant, since we hold infra that the Rule’s requirements were substantively satisfied.

      . Appellees rely on three principal eases: Perry v. United States, 14 F.2d 88 (CA9 1926); Leonard v. United States, 6 F.2d 353 (CA1 1925); United States v. Smith, 16 F.2d 788 (SDFla.1927). These cases are not helpful to disposition of this case for at least two reasons. First, they all rely in part on § 7 of Title XI of the Espionage Act of 1917, which provided in pertinent part:
      “A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”
      40 Stat. 229. In 1948, when the criminal laws of the United States were consolidated under a single title, this section was amended to read :
      “A search warrant may in all cases be served by any of the officers mentioned in its direction or by an, officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”
      62 Stat.819 (emphasis added). As the italicized language shows, the categories of persons authorized to execute a warrant have been significantly broadened since rendition of the opinions relied on by appellees. See United States v. Sigal, 341 F.2d 837, 843 (CA3), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). Second, none of the eases cited discussed whether the magistrate knew in advance who were to be the executing officers, whether the serving officers adequately identified themselves before serving the warrant, or whether the executing officers signed the reverse side of the warrant after executing it.


author: HAMLIN, Circuit Judge:

text:
    FRANCISCO ENTERPRISES, INC., a corporation, Plaintiff-Appellant, v. Edward J. KIRBY, et al., Defendants-Appellees.
    No. 71-1813.
    United States Court of Appeals, Ninth Circuit.
    July 19, 1973.
    Rehearing Denied Aug. 20, 1973.

      David E. Personen (argued), of Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for plaintiff-appellant.
    Charlton G. Hollano, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., L. Stephen Porter, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.
    Before HAMLIN and ELY, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kellelier, United States District Judge, Los Angeles, California, sitting by designation.

   HAMLIN, Circuit Judge:

Francisco Enterprises, Inc., appellant herein, appeals from an order of the United States District Court for the Northern District of California, dismissing its action for injunctive relief brought against officers of the California Department of Alcoholic Beverage Control, appellees herein. Our jurisdiction is predicated upon 28 U.S.C. §§ 1291 and 1292. We affirm the district court’s conclusion that the finality principles of res judicata precluded its review of appellant’s complaint.

Until October 1, 1970, appellant was a corporate" on-sale general public premises licensee of the California Department of Alcoholic Beverage Control, in the city and county of San Francisco, and as such exercised the privileges of selling alcoholic beverages at retail consumption on its licensed premises.

On June 8, 1967, an accusation was filed with the California Department of Alcoholic Beverage Control (hereinafter the Department) against appellant’s alcoholic beverage license.

The accusation, pled in two counts, alleged in substance that continuance of appellant’s alcoholic beverage license would be contrary to public welfare and morals, within the meaning of Article XX, Section 22, of the California Constitution, and sections 24200(a), 24200(b) and 25601 of the California Alcoholic Beverage Control Act (Div. 9, Cal. Business and Professions Code). The accusation alleged that appellant “did permit, allow and suffer the * * * [licensed premises] to be used as a disorderly house and a place to which people resorted for purposes injurious to the public mind, health, convenience and safety * *

Count I of the accusation was pled in eleven subeounts, and alleged that on various respective dates between September 1, 1966, and June 1, 1967, certain activities described in the accusation had occurred on appellant’s licensed premises.

Count II alleged that on April 26, 1967, appellant’s president had in his possession, for sale or distribution, two named objects, conduct claimed to be contrary to public welfare or morals.

On September 18 and 19, 1967, and May 27, 1968, hearings were held on the accusation before the Department’s hearing officer. On July 11, 1968, the hearing officer submitted a proposed decision which found the allegations of the accusation to be true, and which provided for revocation of appellant’s alcoholic beverages license on Count I, and a 30-day suspension of the license on Count II.

On July 18, 1968, the Department adopted the proposed decision.

Appellant appealed the Department’s decision to the California Alcoholic Beverage Control Appeals Board (hereinafter Appeals Board), the appellant tribunal established by Article XX, Section 22, of the California Constitution to review decisions of the Department.

On June 18, 1970, after oral argument, the Appeals Board filed its opinion, wherein it affirmed the Department’s decision as to Count I (providing for the revocation of appellant’s license), but reversed the decision as to Count II (providing for a 30-day license suspension).

Appellant’s subsequent petition for a writ of review in the California District Court of Appeal, First Appellate District, was denied. Its petition to the California Supreme Court for a hearing was likewise denied, after which the revocation of appellant’s alcoholic beverages license was placed in effect.

One month later, appellant filed its complaint in the United States District Court for the Northern District of California, seeking to have appellees restrained and enjoined from enforcing the revocation of its alcoholic beverages license, because of claimed violations of its rights under the First, Fourth, Fifth and Fourteenth Amendments and under the Civil Rights Act of 1871, presently codified as 42 U.S.C. § 1983. Jurisdiction of the district court was alleged under 28 U.S.C. §§ 1331 and 1343(3).

The federal complaint alleged (1) that the state revocation proceedings originated in a plan, scheme and conspiracy among appellees “to eliminate [appellant’s] business because it is frequented by adult male homosexuals and for no other reason”; (2) that the revocation proceedings deprived appellant of due process and equal protection of the laws and chilled the freedom of association of its patrons; and (3) that the state statutory provisions pursuant to which appellant’s license was revoked was framed in unconstitutionally vague terms of “public welfare or morals” and “public morals, health, convenience and safety.”

The district court, relying upon Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Flynn v. State Board of Chiropractic Examiners, 418 F.2d 668 (9 Cir. 1969), and Wilke & Holzheiser, Inc. v. Reimel, 266 F.Supp. 168 (N.D.Cal.1967), dismissed appellant’s complaint on the grounds that “a District Court may not entertain appellate review of a state court judgment, nor hear collateral attack against such a judgment by considering a cause of action for injunctive relief.” The district court stated that appellant's remedy under the circumstances was “that of appeal or petition for certiorari in the United States Supreme Court.”

The district court’s dismissal on the above grounds was predicated upon a determination that “the California Department of Alcoholic Beverage Control is a state court of limited jurisdiction.” The district court made such a determination after examination of relevant California law. Martin v. Alcoholic Beverage Control Appeals Board, 52 Cal.2d 238, 340 P.2d 1 (1959); Covert v. State Board of Equalization, 29 Cal.2d 300, 173 P.2d 545 (1946).

We agree with the district court’s conclusion that California law considers the Department of Alcoholic Beverage Control to be a state court of limited jurisdiction, see Martin, supra; Covert, supra, and that res judicata principles precluded its entertaining the federal complaint.

Res judicata principles have been consistently applied to preclude parties from relitigating federal constitutional claims in a federal district court subsequent to an adverse determination on the merits of such claims by a state court of competent jurisdiction. The sole recourse for the losing litigant is by appeal or writ of certiorari to the United States Supreme Court.

Further, res judicata principles have been expressly applied to actions brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. P I Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1 Cir. 1972); Taylor v. New York City Transit Authority, 433 F.2d 665 (2 Cir.) aff’g, 309 F.Supp. 785 (S.D.N.Y.1970); Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6 Cir. 1970); Brown v. Chastain, 416 F.2d 1012 (5 Cir. 1969); Rhodes v. Meyer, 334 F.2d 709 (8 Cir.), cert. den. 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Goss v. Illinois, 312 F.2d 257 (7 Cir. 1963).

While we recognize that application of res judicata principles to actions brought under section 1983 has been criticized, change, if any, in that area must emanate from the Supreme Court.

Inasmuch as the district court properly concluded that res judicata principles precluded its entertaining the federal complaint, Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) is of no solace to appellant.

Judgment affirmed.

      . Article XX, section 22, California Constitution, provides in part:
      “The State of California, subject to the internal revenue laws of the United States, shall have the exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverages within the State, and subject to the laws of the United States regulating commerce between foreign nations and among the states shall have the exclusive right and power to regulate the importation into and exportation from the State, of alcoholic beverages. In the exercise of these rights and powers, the Legislature shall not constitute the State or any agency thereof a manufacturer or seller of alcoholic beverages.
      “All alcoholic beverages may be bought, sold, served, consumed and otherwise disposed of in premises which shall be licensed as provided by the Legislature. In providing for the licensing of premises, the Legislature may provide for the issuance of, among other licenses, licenses for the following types of premises where the alcoholic beverages specified in the licenses may be sold and served for consumption upon the premises :
      (a) For bona fide public eating places, as defined by the Legislature.
      (b) For public premises in which food shall not be sold or served as in a bona fide public eating place, but upon which premises the Legislature may permit the sale or service of food products incidental to the sale and service of alcoholic beverages. No person under the age of 21 years shall be permitted to enter and remain in any such premises without lawful business therein.
      (e) For public premises for the sale and service of beers alone.
      (d) Under such conditions as the Legislature may impose, for railroad dining or club cars, passenger ships, common carriers by air, and bona fide clubs after such clubs have been lawfully operated for not less than one year.
      * * * * *
      “The Department of Alcoholic Beverage Control shall have the exclusive power, except as herein provided and in accordance with laws enacted by the Legislature, to license the manufacture, importation and sale of alcoholic beverages in this State, and to collect license fees or occupation taxes on account thereof. The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals, or that a person seeking or holding a license has violated any law prohibiting conduct involving moral turpitude. It shall be unlawful for any person other than a licensee of said department to manufacture, import or sell alcoholic beverages in this State.”
      California Business and Professions Code, sections 24200(a) (b), provide as follows:
      “The following are the grounds which constitute a basis for the suspension or the revocation of licenses :
      (a) When the continuance of a license would be contrary to public welfare or morals ; but proceedings under this section upon this ground are not a limitation upon the department’s authority to proceed. under Article XX, Section 22, of the Constitution.
      (b) Except as limited by Chapters 11 and 12 of this division, the violation or the causing or the permitting of a violation by a licensee of this division, any rules of the board adopted pursuant to Part 14 of Division 2 of the Revenue and Taxation Code or any rules of the department adopted pursuant to the provisions of this division, or any other penal provisions of law of this State prohibiting or regulating the sale, exposing for sale, use, possession, giving away, adulteration, dilution, misbrand-ing, or mislabeling of alcoholic beverages or intoxicating liquors.”
      California Business and Professions Code, section 25601, provides as follows :
      “Every licensee, or agent or employee of a licensee, who keeps, permits to be used, or suffers to be used, in conjunction with a licensed premises, any disorderly house or place in which people abide or to which people resort, to the disturbance of the neighborhood, or in which people abide or to which people resort for purposes which are injurious to the irublic morals, health, convenience, or safety, is guilty of a misdemeanor.”

      . Review by California appellate courts is purely discretionary. See section 1068, Cal.Code Civ.Pro. It is well established that “a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.” Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1955).

      . 42 U.S.C. § 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . 28 U.S.C. § 1331 provides:
      “(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”
      28 U.S.C. § 1343(3) provides:
      “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

      . For res judicata purposes, a judgment “on the merits” has been liberally construed. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947). In Angel, the Court held res judicata principles to preclude a federal district court from entertaining federal constitutional issues which were not, but could have been, submitted to and determined in the state courts.

      . See Rooker, supra, Flynn, supra, and Wilke & Holzheiser, supra. See also, e. g., Sitton v. United States, 413 F.2d 1386 (5 Cir. 1969) ; Resolute Insurance Co. v. State of North Carolina, 397 F.2d 586 (4 Cir. 1968); Ash v. Northern Illinois Gas Co., 362 F.2d 148 (7 Cir. 1966); Lavasek v. White, 339 F.2d 861 (10 Cir. 1965) Cf. Elliott Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (5 Cir. 1970).

      . See Preiser v. Rodriguez, 411 U.S. 475 at 499, fn. 14, 93 S.Ct. 1827 at 1841, 36 L.Ed.2d 439 (1973) (Brennan, J., dissenting); Brown v. Chastain supra, 416 F.2d at 1020-1021 (Rives, J., dissenting). See also, Florida State Board of Dentistry v. Mack, 401 U.S. 960, 961, 91 S.Ct. 971, 28 L.Ed.2d 245 (1971) (White, J., dissenting from denial of cert.).


author: HAYNSWORTH, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Ellsworth William WHITE, Appellant.
    Nos. 71-2219, 72-1705.
    United States Court of Appeals; Fourth Circuit.
    Argued Oct. 30, 1972.
    Decided Aug. 1, 1973.

      Lowry J. Miller, Arlington, Va. (Court-appointed counsel), for appellant in Nos. 71-2219 and 72-1705.
    Joseph A. Fisher, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., Gilbert K. Davis, Asst. U. S. Atty., on brief), for appellee in Nos. 71-2219 and 72-1705.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   HAYNSWORTH, Chief Judge:

Appealing from his conviction of bank robbery in violation of 18 U.S.C.A. § 2113(a), (d), White complains of the absence of a line-up preceding his trial, of a refusal of a motion to sever his trial from that of two co-defendants, and of the denial of a motion for a new trial, based upon after-discovered evidence. We affirm after careful consideration of his contentions.

At approximately 11:10 o’clock in the morning of July 20, 1971, the Alexandria National Bank, in Alexandria, Virginia, was entered by four black males. One was armed with a shotgun and another with a pistol. The manager of the bank testified that the man with the pistol ordered her and others to lie down on the floor. Meanwhile, two of the other robbers proceeded to scoop up money from the drawers of the tellers and from the drive-in window. The four then left the bank and drove off in a blue Dodge, which had been stolen from Avis-Rent-Á-Car at Washington National Airport. After driving a short distance, the Dodge was parked in the parking area of some apartment houses and the men went over, or through, a fence and entered a white Buick Wildcat, driven by a girl confederate who was waiting for them. The five then drove to the Bell-view Naval Observatory, where they abandoned the Buick, a car which had been stolen that morning from a street in the District of Columbia, and all entered a blue Cadillac belonging to Paul Dixon, one of White’s codefendants.

At the joint trial of White, Dixon and the girl, Lewis, the manager of the bank and two tellers all identified Dixon as one of the robbers; the manager and one of the tellers identified White as another. The second teller said that one of the robbers was tall and slender, as White is, but she was not certain that White was the man.

A maintenance man at the apartment houses, where the Dodge was abandoned, testified that he saw the girl, Lewis, and White there, but his testimony was shaken when it appeared that, earlier, he had identified a picture of Dixon as one of the men he had seen. While still on the witness stand, when shown a picture of a line-up which included Dixon, he picked Dixon out as the person he had just pointed to in the courtroom, who, of course, had been White.

A resident of the housing area of the Bellview Naval Observatory witnessed the second exchange of cars, and she identified Dixon and the girl, Lewis, as two of the people she saw.

At approximately 8:30 o’clock on the morning of the robbery, a traffic patrolman in the District of Columbia stopped an automobile which, from its license tag number, he recognized as being owned by a rental car company. Dixon was the driver of the car, and White was with him. The patrolman had stopped the car, because of a traffic signal violation, but he asked White and Dixon for identification. They could produce none, nor did they have any evidence of their right to possession of the vehicle. At that time both Dixon and White fled, but White was captured and carried to a police station, where he was questioned and, denying all knowledge that the vehicle was stolen, released at approximately 9:50 o’clock the same morning.

In the evening of that same day, Dixon was spotted in his blue Cadillac by agents who had received a description of it from the witness at the Observatory. They undertook to arrest Dixon. White was nearby. He rushed up, demanded to know what the charge was and declared that Dixon could have committed no robbery, for he had been with White all day. Thereafter White was arrested.

I

At White’s arraignment, his lawyer made a motion that the court require that a line-up be held with White as a participant. The prosecuting attorney stated that the conduct of such a line-up would be agreeable with him, and it was apparently understood that such a lineup would be held within the next two weeks. Thereafter, two things happened. It was discovered that White had not attained his eighteenth birthday and the Attorney General had not consented to a prosecution of him as an adult. For that reason, the indictment was dismissed as to him. Meanwhile, he had been released on bail. Later, the Attorney General did consent to a proceeding against White as an adult and he was reindicted, but, apparently, he remained free on bail.

At the trial, counsel moved for the suppression of all identification evidence as to White, because he had not been placed in a line-up in accordance with the understanding reached at the time of the arraignment on the first indictment. The trial judge thought that counsel for each side bore equal responsibility for failure to hold the line-up or to bring the matter to his attention. With this, we agree. After dismissal of the first indictment as to White and his release on bail, if White and his lawyers still wished his participation in a lineup, they should have contacted the District Attorney, or the judge, and not have sat quietly back with no attempt to pursue the matter. The district attorney’s office may not have been without fault, too, but suppression of in-court identification testimony is not an appropriate remedy for the failure of compliance with a general understanding about a line-up, when the defendant and defense counsel bore, at least, an equal share of responsibility for it.

There is no authority to support a contention that a defendant has a legal right to a line-up, if he requests it. If he is in custody, the government may place him in a fair line-up. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But the cases cannot be read as giving a defendant an enforceable right to such a line-up on penalty of prohibition of untainted identification testimony. Here, however, it seems plain that the prosecutor would have complied with the understanding, and the judge would have required him to do it, if defense counsel had pursued the matter.

There is some claim of taint in the in-court identification of White by the teller. A short time before the trial, the teller had picked out White as one of the robbers when shown a photographic spread, though neither she nor the manager had picked him out in an earlier photographic spread containing a different picture of White. The photographs were examined by the jury, and the jury was told that it should not consider the teller’s identification of White, if it thought the photographs unduly suggestive. Apparently, it did not, and we find nothing unfair or improper in the use of the photographic spreads.

II

We find no error in the denial of White’s motion to sever his trial from that of Dixon and the girl, Lewis. There were no confessions with cross accusations, and neither defendant was trying to throw the mantle of guilt upon any other defendant. Dixon did not take the witness stand. White and Lewis did take the stand to present alibis. Lewis testified that she was at her home all that day, while White testified that he went from place to place in the District of Columbia. These circumstances make the rule of DeLuna v. United States, 5 Cir., 308 F.2d 140, inapplicable. See United States v. De La Cruz Bellinger, 9 Cir., 422 F.2d 723.

III

The motion for a new trial, based upon after-discovered evidence, is founded upon statements obtained by the government, copies of which were supplied to defense counsel, in which five defendants, in an indictment for a conspiracy to rob banks, gave statements tending to exculpate White. The statements are in hopeless conflict, however, and were given, according to one, after they had discussed the matter in the bull pen in the Marshal’s office and had agreed “to cut White loose, you know,” in order that White might sue the United States.

Two of the statements had five black men entering the bank on July 20. Two others have only four entering the bank, but those two stoutly declared that Dixon was not present, though they had borrowed Dixon’s car. Some had the band assembling at Dixon’s house, while another had them assembling at a play ground. The manager was made to lie down on the floor by a man brandishing a butcher knife, though in White’s trial no one saw a butcher knife, and the command to the manager and the others was given by a man holding a pistol. In one of the statements, the man was asked about the get-away car; he said it was a Ford, not a Dodge. The time sequence is all wrong. Most of the statements place the robbery at shortly after 9:00 o’clock and one of the men claimed he had to wake Dixon up at 8:30 to get his car keys and borrow his car on July 20. We know, of course, that Dixon and White were stopped by the traffic patrolman about 8:30 on July 20 and that the bank was not robbed until after 11:00 o’clock.

There may be a reasonable explanation for the discrepancy. The same bank was robbed again by a group of black men in October. The robbery actually occurred shortly after 9:00 o’clock and the get-away car was a Ford. The robbers used the same general modus op-erandi as those who robbed the bank in July. They wore surgical gloves; one was armed with a shotgun and another with a pistol. The Ford get-away car had been stolen from a rental car company at the Washington National Airport. It was abandoned a short distance from the bank. Each of the men stoutly insisted that he was not involved in the October robbery, but participation in it would have given them general familiarity with the bank’s interior arrangement and would clearly account for the earlier time sequence and reference to the Ford as the get-away car. Perhaps, it would explain other discrepancies in the statements, for the men were in disagreement as to where the money was divided, who stole the cars, and where and when. Two of the men could have been in the bank with Dixon and White in July.

Two of these men had been with Dixon and White in a youth detention center in Maryland. Others knew White. Indeed, one of them had testified before a grand jury that he had seen White and Dixon leave Dixon’s home for the July 20 robbery. When it is recalled that all of the statements were given after the men had agreed “to cut White loose, you know,” it may not be surprising that they are consistent only in their exculpation of White and that, otherwise, they are filled with inconsistencies and with some details which are consistent with the known facts of the October robbery, but inconsistent with the known facts of the July robbery.

One of the five giving postconviction statements was the Lewis girl. As the four men, she said that White was not one of the July robbers. At the time, however, she was “very high” on drugs. She knew only Cook and Bailey; she did not then know the names of the other two, “because like introductions wasn’t around.” Later, she said, she was told that the two unknown men were Dixon and Bland.

For such reasons, we conclude from these statements, that if these men and the girl were offered as witnesses on a retrial of White, their testimony would appear so contradictory and unreliable that they would not be believable. Denial of the motion for a new trial on that ground was well within the range of the District Court’s discretion.

Affirmed.