author: CLARK, Circuit Judge:

text:
    Willie DAVIS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, George Lynch, Lillie Buth Taylor and Evelyn White, Intervenors-Appellees, v. Paul WEIR, General Manager, Atlanta Department of Water Works, et al., Defendants-Appellants.
    No. 73-3050.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      Henry L. Bowden, Thomas F. Choyce, Henry R. Bauer, Jr., Atlanta, Ga., for def endants-appellants.
    Jay E. Loeb, Michael H. Terry, Alden C. Harrington, Atlanta, Ga., for plaintiffs-appellees.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Despite the fact that Willie Davis was current in his rental payments, which included water charges, the City of Atlanta Department of Water Works terminated his water service without prior notice. Defective plumbing at the residence had resulted in an exorbitant waste of water and Davis’ landlord, whose agent had been notified of the charges, had refused to pay the water bill. When the Water Works declined to restore service until the bill was paid, Davis brought this Section 1983 individual and class action on behalf of all consumers of water service from the City against Paul Weir, General Manager of the Department, and other elected City officials, seeking (1) a declaration that Atlanta ordinances, which authorize the Water Works to terminate service at an address without notice to the actual user because of nonpayment of a past due account and to refuse to reinstate such service or open a separate service account with the consumer until the arrears are fully discharged, contravene the due process and equal protection clauses of the XIV Amendment and (2) an injunction against the defendants prohibiting such practices.

At a preliminary hearing the district court denied plaintiff’s request for a temporary injunction after the landlord agreed with the Water Works to repair the defective plumbing and to pay the outstanding water bill. The Department restored service to the premises but continued to maintain the account for and to bill all service charges to the landlord. Subsequently, the arrangement broke down, and the Water Works threatened to discontinue service again. After the Water Works denied his individual application for water service at the apartment, Davis sought an accounting for the charges incurred after December 18, the on-set of this litigation. The Water Works rejected his request and, while conceding Davis’ nonliability for the account, reiterated its intention to terminate his service unless the total bill was discharged. Upon condition that Davis settle the charges which had accrued under the December agreement, the district court temporarily enjoined the defendants not to terminate Davis’ water service and to contract directly with him thereafter for such service. Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971) In addition, Evelyn White, Lillie Ruth Taylor and George Lynch were later permitted to intervene as plaintiffs after the Water Department had rejected their individual applications and threatened to cease service for similar nonpayment of third parties. Thereafter, the district judge ruled that the cause could proceed as a class action pursuant to Fed.R.Civ.P. 23(a) and (b)(2) and extended the grant of individual injunctive relief to the class consisting of “users of water furnished by the City of Atlanta, Department of Water Works who do not have a contract with the city for water service in their own names.”

Upon reaching the merits the district court granted plaintiffs and the class declaratory and permanent injunctive relief, holding Atlanta City Ordinance Section 33-129, which provides for “three days’ notice to the owner or tenant” prior to termination, violative of the due process clause of the XIV Amendment since it does not affirmatively require pre-termination notice to the actual consumer. Furthermore, resorting to the traditional “rational basis” test, the court found that the Water Works’ refusal to contract for service at buildings saddled with the debt of a third-party, as authorized by City Ordinance Section 33-130 and Section 7.6.16 of the City Charter and Related Laws, coerced otherwise eligible applicants into paying water bills for which they were not liable and deprived them of the equal protection of the laws guaranteed by the XIV Amendment. Finally, invoking Fed.R.Civ.P. 23(c)(1), the court amended its prior order to redefine the class of plaintiffs as “all present and future non-commercial users of water service provided by the City of Atlanta Department of Water Works.” Davis v. Weir, 359 F.Supp. 1023 (N.D.Ga.1973).

The Constitutional Issue

Conceding on appeal that due process demands pre-termination notice to the actual user, see, e. g., Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), defendants focus on the propriety of refusing service because of a third-party debt and the appropriateness of this controversy for class action treatment. The Water Works contends that (1) the right to water service is not a fundamental right and therefore no federal or constitutional wrong has occurred which would supply the necessary predicate for Section 1983 relief; (2) state law makes payment of all outstanding charges incurred at a given location a valid condition precedent for continued or renewed water service there, because such a debt creates a lien against the property; (3) the practice of denying service is essential to enforce collection of water charges at multi-unit dwellings with a single water meter and to protect the City’s municipal revenue bond rating. In addition, defendants argue that this litigation is an inappropriate vehicle for a class determination since the court below could resolve the constitutional issues and grant appropriate relief just as well in an individual proceeding and Davis’ claims are not typical of those of the entire class as ultimately defined.

There is no controversy over whether the defendants have acted under color of state law within the purview of Section 1983 or whether their activities constitute state action within the prophylactic ambit of the XIV Amendment. See, e. g., Jackson v. Metropolitan Edison Company, 483 F.2d 754 (3d Cir. 1973); Palmer v. Columbia Gas Company, 479 F.2d 153 (6th Cir. 1973); Lucas v. Wisconsin Electric Power Company, supra. The Water Works is a department of the municipal government of the City of Atlanta admittedly subject to the proscriptions of the constitutional and statutory provisos. Neither is the constitutional sufficiency of the Department’s administrative procedures prior to termination any longer at issue. This appeal is pointedly cast to present the rights of applicants for water service.

We conclude that the Department’s discriminatory rejection of new applications for water service based on the financial obligations of third parties fails to pass XIV Amendment muster under the traditional “rational basis” analysis. Therefore, there is no need to decide whether the Constitution accords citizens a fundamental right to municipal water service. That question would be relevant only to the propriety of invoking strict equal protection judicial scrutiny of defendants’ actions in conformity with the “compelling state interest” rationale, see, e. g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 941 (1970).

The plaintiffs do not contend that they are entitled as a matter of right to free water service, or that an application for such service cannot be made subject to the payment of installation or metering charges or the posting of a security deposit. Their complaint is that the Water Works has divided those who apply for its services into two categories: applicants whose contemplated service address is encumbered with a pre-existing debt (for which they are not liable) and applicants whose residence lacks the stigma of such charges. Although there is nothing in these definitions, standing alone, to distinguish either group as a better or worse credit risk, the Department only furnishes its services to the latter class.

The Supreme Court has consistently recognized that

“the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. . . . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guana Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).”

Reed v. Reed, 404 U.S. 71, 75-76, 92 Ct. 251, 253-254, 30 L.Ed.2d 225 (1971) (citation omitted).

“Under ‘traditional’ equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.” United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973). The Water Works urges that the practice of rejecting water service applications until all accrued debts at the premises have been extinguished facilitates collection of unpaid bills at multi-unit dwellings and preserves the City’s municipal revenue bond rating. No one could doubt that the Department’s methods are calculated to expedite the liquidation of unpaid bills. A collection scheme, however, that divorces itself entirely from the reality of legal accountability for the debt involved, is devoid of logical relation to the collection of unpaid water bills from the defaulting debtor. The City has no valid governmental interest in securing revenue from innocent applicants who are forced to honor the obligations of another or face constructive eviction from their homes for lack of an essential to existence — water. “The fact that a third-party may be financially responsible for water service provided under a prior contract is an irrational, unreasonable and quite irrelevant basis upon which to distinguish between otherwise eligible applicants for water service.” Davis v. Weir, supra, 359 F.Supp. at 1027 (emphasis in original). The Department’s actions offend not only equal protection of the laws, but also due process. See Bell v. Burson, supra; cf. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

The theory that an unpaid water charge gives rise to a lien against Davis’ rented premises does not sustain the Department’s policy. Rather, the existence of a security interest in the property to which water is delivered would afford the City a constitutionally valid real action means of enforcing collection of an unpaid bill in addition to a personal suit against the party liable. Hence, a lien against the property should not operate to preclude an unindebted tenant such as Davis from initiating an application for water service directly with the Department. His conditional right to service and his ensuing contractual obligation to the City would not affect lien enforcement proceedings. The City’s dispute over past due charges at Davis’ apartment lies solely with his landlord. To require that Davis make this payment and attempt to recover it from the landlord amounts to nothing less than condemning Davis to pay the past debt of another before he is allowed to contract for water service. Finally, in view of the concededly small number of similar applicants, the miniscule percentage of the Department’s revenue that is affected, the minimal cost of instituting constitutionally sufficient procedures, and the availability of other collection methods, we hold that the City has failed to demonstrate any substantial detriment to its revenue bond rating.

The Department’s discrimination against these individual plaintiffs cannot be squared with the XIV Amendment. They are therefore entitled to federal judicial relief under the provisions of Section 1983. Insofar as the judgment of the district court declares Atlanta Code of Ordinances, Section 33-129, and the Department’s practices thereunder unconstitutional and enjoins their continued application, it is affirmed.

The Class Action Issue

The original complaint sought to vindicate the constitutional rights of “all consumers of water service from the City of Atlanta, Department of Water Works.” Because the merits of a class action determination had not been fully developed, the district court deferred decision on this issue when it granted preliminary individual injunctive relief to plaintiff Davis. 328 F.Supp. at 323. Davis later sought an order certifying that the cause could be maintained as a class action to adjudicate the rights of all users of water furnished by the City of Atlanta who had not contracted for water service on their own account. He suggested that this class be divided into two subclasses defined along the lines of the two substantive issues then before the court: (1) plaintiffs “whose water service has been terminated or can be terminated without prior notice to them”; and (2) plaintiffs “whose water service has been terminated at their residences because of an outstanding water bill owed by another person and whose applications for water service on their own account have been refused or will be refused by the defendant until arrangements for payment of the outstanding bill . . . have been consummated.” The district judge found that the prerequisites of Rule 23(a) had been satisfied, and certified the litigation for class disposition, but, in issuing class-wide preliminary injunctive relief, ruled that “[u]ntil such time as it appears to be inappropriate, the class shall consist of users of water furnished by the City . . . who do not have a contract with the city for water service in their own name.” The final judgment which is the subject of this appeal granted permanent injunctive relief to a class of plaintiffs that was redefined to include “all present and future non-commercial users of water service provided by the City of Atlanta, Department of Water Works.” 359 F.Supp. at 1028.

The district court further determined that this cause could proceed as a Rule 23(b)(2) class action. The first prerequisite of such an action demands that “the party opposing the class has acted or refused to act on grounds generally applicable to the class.” This language does not mandate that all members of the (b)(2) class be aggrieved by or desire to challenge the defendant’s conduct. See, e. g., Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). It does require, however, that the conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1775 (1972). Courts have restated this requirement in such terms that the class representative must be a member of, similarly situated to, or possess standing to assert the claims of, the entire class, be able to protect its interests fairly and adequately, and present claims or defenses which are typical of the claims or defenses of the class. The second prerequisite of such an action is satisfied if final injunctive relief for the class as a whole is appropriate. Properly restricted to Atlanta water consumers without accounts for water service in their own names, this class action meets the requirements of Rule 23(b) (2).

It is conceivable, however, that many members of a class defined to encompass “all present and future non-commercial users of water service provided by the City,” which could easily include every resident of Atlanta, would harbor interests antagonistic to those advanced by the individual plaintiffs. See Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.), vacated and dismissed as moot, 409 U.S. 815, 93 S.Ct. 66, 34 Ed.2d 72 (1972). Moreover, in view of the fact that all Atlanta water users who receive service on their own account are already entitled to pre-termination notice by city ordinance and are not aggrieved by the City’s practices under Section 33-129, the class description and relief are overly inclusive.

Davis was aggrieved by and seeks to invalidate the Department’s refusal to furnish water service upon his application by virtue of his landlord’s unpaid water bill. The defendant has indicated a similar unwillingness to act with regard to all persons who have not contracted for water service in their own names. Thus, the breadth of the issue joined defines the proper breadth of the class. Davis and the intervenors were members of, possessed standing to litigate the claims of, and were similarly situated to these distinctive residents of Atlanta. Water users who already have accounts in their own names are not affected by the challenged practices of the Department. The district court erred in redefining the class so broadly.

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) and Jenkins v. United Gas Corp., supra, teach that antagonistic interests within a class can be eliminated by realigning the cause into sub-classes that are defined congruently with the substantive issues at hand. The class of plaintiffs must be limited to residential consumers of water furnished by the City of Atlanta, Department of Water Works, who have not contracted with the City for water service in their own names. The judgment appealed from must be modified accordingly.

Affirmed in part and modified in part.

      . In the six month period from April 14 to October 14, 1970, the single water meter at the multi-unit apartment building, of which Davis and his family were the only occupants, registered a consumption of over 1,988,000 gallons of water, which resulted in a water bill of approximately 1433 dollars. By December the landlord’s liability had, according to the Water Works, reached almost 1800 dollars. See Davis v. Weir, 328 F. Supp. 317, 319 n. 4 (N.D.Ga.1971).

      . Section 33-129 of the 1965 Code of Ordinances of the City of Atlanta provides: “The manager is required to give three days’ notice to the owner or tenant before cutting off the water supply for nonpayment of bills. This notice may be served upon the tenant or sent by mail to the last known address of the owner.”

      . Section 33-130 of the 1965 Code of Ordinances of the City of Atlanta provides :
      “Upon failure of any person to pay any water bill, assessment or charge against any premises within ten days from the date such bill is due, the manager is authorized to cut off and discontinue the water service until such bill or charge is paid, and a charge of three dollars ($3.00) will be made for each cut off. Such charge must be paid before water is again turned on, unless the manager in his discretion waives such charge.”
      Section 7.6.16 of the Charter and Related Laws of the City of Atlanta provides:
      “The mayor and board of aldermen, or said committee, shall have full power and authority to require payment in advance for the use or rent of water furnished by them, in or upon any building, place or premises, and, in case prompt payment shall not be made, they may shut off the water from such building, place or premises, and shall not be compelled again to supply said building, place or premises with water until such arrears, with interest thereon, shall be fully paid.”
      Because Atlanta ordinances and administrative practices at issue are not of statewide application, this case is not a candidate for disposition by a Section 2281 district court of three judges in the first instance. See Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972); Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973); Lucas v. Wisconsin Electric Power Company, 466 F.2d 638, 644 (7th Cir. 1972) (en banc), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). Furthermore, the City does not contend that the Johnson Act, 28 U.S.C. § 1342, which protects state administrative orders affecting public utility rates, divested the court below of jurisdiction to hear plaintiff’s complaint or that federal abstention under the rationale of Alabama Public Service Comm’r v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951) in deference to state court review was appropriate and improperly disregarded.

      . Davis had in fact previously tendered payment for these charges. The preliminary injunction did not prohibit the Water Works from “adopting or enforcing any nondiscriminatory regulation or ordinance designed to insure payment for water service” or, upon substantial leakage due to defective plumbing, from terminating service after adequate notice until the plumbing had been repaired and the leakage alleviated. 328 F.Supp. at 323. The District Court also added another caveat.
      “This case does not involve, and the Court does not pass upon, a situation where there is an attempt to avoid a lawful refusal to supply water to one who has defaulted in his obligations to the City Water Works and who thereafter lets the premises to another who is aware of the cutoff, but who seeks water service in his own name.”
      328 F.Supp. at 323 n. 16.

      . After the issuance of preliminary injunctive relief, Davis was forced to terminate his service account with the Water Works and move from his rented apartment when it was destroyed by fire. This unforeseen and unrelated event did not, however, moot the class controversy or dissolve Davis’ class standing. See, e. g., Rosen v. Public Service Elec. & Gas Co., 477 F.2d 90 (34 Cir. 1973); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1963). Observing that Davis had prosecuted this action “with vigor and skill,” the district judge allowed him to continue as class representative as to the pretermination notice issue. 359 F.Supp. at 1025.

      . See, e. g., Palmer v. Columbia Gas Company, supra; Lucas v. Wisconsin Electric Power Company, supra.

      . Under state law the City’s obligation to furnish water service is conditioned upon the applieant’s compliance with reasonable administrative rules and regulations. Davis v. Weir, supra, 328 F.Supp. at 321; see Elwell v. Atlanta Gas Light Co., 51 Ga.App. 919, 181 S.E. 599 (1935). See also note 4, supra.

      . The district court premised its constitutional inquiry on the proposition that “water is an absolute necessity of life,” which the Water Department has undertaken to provide to the citizens.

      . The Georgia courts have traditionally upheld ordinances that permit local officials to terminate and to refuse restoration of water service until delinquent charges at the meter or building, by whomever incurred, have been paid. See Harrison v. Jones, 226 Ga. 344, 175 S.E.2d 26 (1970). Dodd v. City of Atlanta, 154 Ga. 33, 113 S.E. 166 (1922), established an exception to the general rule when the water consumer, in good faith, disputes the amount due or his liability therefor. Although the defendants assert that the power to discontinue service for nonpayment, which is authorized by Section 7.6.16 of the City Charter, see note 2, supra, is a “specie of a lien,” neither that language nor any other state law or local ordinance cited by the defendants expressly creates a lien for unpaid water bills. The Water Works concedes that it has never foreclosed on such a lien and that no recordation devices exist to place such an encumbrance on record. The lien theory apparently had its genesis in City of Atlanta v. Burton, 90 Ga. 486, 489-490, 16 S.E. 214 (1892), which reasoned that water was furnished to premises and not to people wherefore a charge “somewhat analogous” to a lien for taxes could be imposed on the land and collected from the present occupant as a condition of further service. But see Annot., Liability of Premises, or Their Owner or Occupant, for Electricity, Gas, or Water Charges, Irrespective of Who is the User, 19 A.L.R.3d 1227, 1232-1233 (1968).

      . Since Davis and his family were the only tenants at the apartment building, the use of a single water meter here presents no collection problems. The City can always require, where appropriate, the payment of individual metering installation charges as a condition precedent to individual service in a multi-unit dwelling.

      . This part of the Rule provides :
      “(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

      . This portion of the Rule provides:
      “(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: . . . (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Rafael SORIANO, Angel Aviles, Domingo Colon, Alfredo Aviles, Edward Arroyo, Alfredo Jose Mazza, Marta Sierra, Ana Rose Betancourt and Jack Marsh, Defendants-Appellees.
    No. 72-1520.
    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.

      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 Rafael Soriano and Edward Arroyo.
    James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for Angel Aviles.
    Albert Krieger, New York City, for Alfredo Aviles and Edward Arroyo.
    Julia Ferrer, Miami, Fla., for Alfredo Jose Mazza.
    Philip Vitello, Coral Gables, Fla., for Jack Marsh.
    Gino Negretti, Miami, Fla., for Domingo Colon.
    Gross & Krause, Maynard A. Gross, Miami, Fla., for Marta Sierra and Ana Rose Betancourt.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

The United States appeals from suppression of evidence obtained in searches of a house and of three suitcases. We adopt the panel opinion insofar as it reverses the trial court’s suppression of the fruits of the house search. Further consideration persuades us, however, to a somewhat different view than that of the panel and the court below toward suppression of the fruits of the suitcase search. Both aspects of the trial court’s suppression order are therefore set aside. The issue before us is narrow, and we restate only such of the facts detailed in the panel opinion as are pertinent to our decision of it.

On the afternoon of January 4, 1972, federal narcotics agents had a Florida residence under surveillance pursuant to information from a reliable informant that a large shipment of illegal drugs had arrived there for distribution. At about 4:00 p. m., Alfredo Aviles and Sierra, who had been reported in the house by the informant, were seen to leave with a brown bag which they discarded several blocks away. Inspection revealed its contents to be clear plastic bags and torn Christmas wrapping paper, each of which bore traces of what field tests showed was an opium derivative. Later that evening, the informant was seen to leave the residence. She told confederates of the watching agents that inside she had seen suitcases and Christmas packages, and observed Alfredo Aviles, Angel Aviles, Sierra, Betancourt, Soriano and Arroyo conferring in whispers. Later still, Angel Aviles and Colon got out of a cab, walked about a block to the house and entered. At 10:00 p. m., these two, plus Soriano, left the house carrying three suitcases which appeared heavy and took a cab to Miami International Airport. Agents who followed stopped the cab as it drew up to an airline entrance, arrested the passengers, removed the suitcases from its trunk, and peeked into one of them. Clothing and plastic bags of a white powder later identified as heroin were revealed, which the court below suppressed as evidence.

That the agents had probable cause to believe the suitcases contained contraband is plain from the facts stated above, and that the seizure of the baggage was proper also. At the warrant-less suitcase search, however, the panel, with one judge dissenting, and the court below balked; we go on.

As a matter of pattern and logic, much can be said for the panel’s view that, however they begin, whenever matters come to so stable a stand that a warrant can be obtained, one should be. The view is buttressed, moreover, by the practical need to control over-zealous police action. The question is whether the alternate course pursued here was fatal. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), it was not.

The Fourth Amendment prohibits with an equal hand both unreasonable searches and unreasonable seizures. Chambers teaches that where automobiles and their contents are concerned, circumstances which justify an immediate seizure as reasonable justify an immediate search as well. There Mr. Justice White, speaking for a solid majority, said in words determinative of this case:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes we see no difference between on the one hand seizing and holding a ear before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

399 U.S. at 51-52, 26 L.Ed.2d at 428. Thus, the Supreme Court recognized and rejected the arguments for inflexibly requiring a warrant in circumstances such as these. And though it is true that the Court spoke of an automobile while we treat of containers in or just removed from one, the principle is not different. The officers who arrested Soriano and his companions indisputably had probable cause to believe that the vehicle contained contraband, a circumstance justifying the initial incursion into the trunk. Under established law in this circuit and elsewhere, this justification encompassed the search of containers in the vehicle which could reasonably be employed in the illicit carriage of the contraband. See, e. g., United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973); United States v. Chapman, 474 F.2d 300 (5th Cir. 1973); United States v. Evans, 481 F.2d 990, 994 (9th Cir. 1973). Moreover, removing the suitcases from the trunk to the sidewalk did not dissipate the nexus between the containers and the automobile, particularly since the search of one suitcase was conducted contemporaneously with its removal from the car. Since a search of the suitcase while situated in the trunk would clearly fit within the reasoning of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers, supra, the simple expedient of removing the bag to the sidewalk for the investigating officers’ convenience did not instantaneously transform the incursion into something other than an auto search. The search was therefore valid.

We note in passing a possible additional exception to warrant requirements upon which this search might have been sustained as reasonable: search incident to a lawful arrest. As noted by the panel, the United States may have disclaimed reliance on this exception below, and at all events its reliance was somewhat wavering. And the exception is not specifically urged on appeal, though we have little doubt it would have been had the recent decisions of the Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), been available to the brief-writer. These, taken together with United States v. Draper, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), would have put the arrest-search exception very much in contention here, and while we do not rest our decision upon these authorities or that exception, our conclusion that we have reached the right constitutional result is strengthened by them.

Reversed.

GODBOLD, Circuit Judge, with whom THORNBERRY and GOLDBERG, Ciruit Judges, join, specially concurring.

With the exception of dictum discussed below, I concur in the opinion of Judge Gee, based as it is upon the concept of automobile search and the nexus to an automobile search provided by the facts that the suitcases had just been removed from the taxicab and placed on the sidewalk and one of them searched contemporaneously with the removal. I understand the opinion to distinguish between a search of luggage under these circumstances and a situation in which luggage is removed from a vehicle subject to an automobile search and taken elsewhere to be searched at leisure. See footnote 6 to the opinion.

When the case was before the panel, I understood the government to eschew reliance upon automobile search concepts and to press for judicial sanction of a much broader right to search personal effects in general without regard to nexus to an automobile subject to search. See panel opinion, 482 F.2d at 477. Before the court en banc the government, by other counsel, says that the panel misread it, and the government either more clearly defines its position or recedes from what I understood to be a voluntary narrowing of its case. With the issue for decision now redefined, I concur in a reversal on the suitcase search point.

The last paragraph of Judge Gee’s opinion concerning United States v. Robinson and Gustafson v. Florida would be better left unsaid. Those two cases concern search of the person after arrest and are based upon the need to disarm the suspect and to discover and preserve evidence. Search of moveable articles of personal property disassociated from the person fall within Chimel v. California. Whether Robinson and Gustafson have any application (and, if so, the extent thereof) to Chimel-type cases is a question that should be left for another case in which the issue is presented and briefed. The law of search and seizure is confusing enough without beclouding future cases through judicial asides about the possible collateral effect in this case of decisions that are not directly involved and concern an issue that the parties might have but do not urge.

      . Pursuant to 18 U.S.C. § 3731. As noted in the panel opinion, 482 F.2d 469, 471 n. 1, the circumstances of the appeal are somewhat unusual and smack of the certified question. Concluding, however, that the published panel opinion requires modification, we do so.

      . It found the search proper and reversed the order of the court below suppressing its fruits. 482 F.2d at 477-481.

      . The record indicates, contrary to the panel opinion, that one suitcase was opened on the spot. A later search of the other cases revealed heroin in them also.

      . Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970); see also Coolidge v. New Hampshire, 408 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”

      . Two additional observations are pertinent. We deal here with one continuous action, homogeneous in character. Had the luggage been taken elsewhere to be searched at leisure, the failure to utilize that leisure to apply to a magistrate might be a factor in the reasonableness calculus, though Chambers dealt with, and permitted, just such a search in the circumstances there presented. See also Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Nor do we face a second intrusion of more aggressive and repellant nature, as in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

      . 482 F.2d 469, 473, n. 4.

      . As noted by Judge Gee (see footnote 1) and the panel (footnote 1, 482 F.2d at 471) the proceedings before this court smack of a certified question.

      . 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

      . 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

      . 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 635 (1969).


author: GOLDBERG, Circuit Judge:

text:
    HAZEN RESEARCH, INC., Plaintiff-Appellee, v. OMEGA MINERALS, INC., Defendant-Appellant.
    No. 74-1027
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 12, 1974.
    Rehearing Denied Aug. 8, 1974.

      S. P. Keith, Jr., Birmingham, Ala., for defendant-appellant.
    Stanley D. Bynum, Birmingham, Ala., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, 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.

   GOLDBERG, Circuit Judge:

On September 21, 1971, plaintiff Ha-zen Research obtained a default judgment in a suit for breach of contract against defendant Omega Minerals in the amount of $33,589.61 from the District Court in and for Arapaho County, Eighteenth Judicial District, State of Colorado. Acknowledging receipt of some $1,000 in partial satisfaction of that judgment, plaintiff instituted the present action in the United States District Court for the Northern District of Alabama seeking to recover the balance outstanding plus interest from the date of the Colorado decree. Defendant contended that the Colorado judgment was not entitled to enforcement on the ground that the state court had not properly obtained jurisdiction of the person of the defendant under state statutory or federal constitutional standards. The district court rejected those arguments and awarded plaintiff full recovery. We affirm.

28 U.S.C. § 1738 provides that the authenticated acts, records, and judicial proceedings of all state and territorial courts “shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” Under the compulsion of this statute federal courts are required to give full effect to the final judgments of state courts, subject only to narrowly circumscribed avenues of collateral attack. Midessa Television Co. v. Motion Pictures for Television, 5 Cir. 1961, 290 F.2d 203. Where the defendant has appeared in the original action, the judgment in that cause is res judicata on the issue of personal jurisdiction, whether the defendant actually litigated the question or merely permitted it to pass without objection. Defense to an adverse judgment on the basis of the failure of the rendering court to obtain jurisdiction of the person is therefore foreclosed, unless the peculiar law of the state in which the judgment was rendered would honor such a collateral attack. Durfee v. Duke, 1963, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186; American Surety v. Baldwin, 1932, 287 U.S., 156, 53 S.Ct. 98, 77 L.Ed. 231; Baldwin v. Iowa State Traveling Men’s Assoc., 1931, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 In those case, however, in which the defendant makes no appearance and the judgment goes by default, the defendant may defeat subsequent enforcement in another forum by demonstrating that the judgment issued from a court lacking personal jurisdiction. See Pardo v. Wilson Line of Washington, Inc., 1969, 134 U.S.App.D.C. 249, 414 F.2d 1145. Of course, the “burden of undermining [the judgment] rests heavily upon the assailant,” Williams v. North Carolina, 1945, 325 U.S. 226, 233-234, 65 S.Ct. 1092, 1097, 89 L.Ed. 1577; and, should the attack fail, the default judgment becomes no less final and determinative on the merits of the controversy than a decree entered after full trial. Moyer v. Mathas, 5 Cir. 1972, 458 F.2d 431.

In the court below and on this appeal, Omega Minerals, a Delaware corporation not registered to do business in Colorado, has attacked the in personam jurisdiction of the state court, contending; (1) that the technical requirements of Colorado law for the service and return of summons on an out-of-state defendant were not met by plaintiff in the 1971 suit; and (2) that the Colorado long-arm statute when restrained by state court precedent and federal due process, cannot reach a party with its limited Colorado contacts.

As to its first sortie, a careful examination of state law leaves Omega rather effectively hoisted on its own petard — the intricacies of Colorado procedure. Plaintiff invoked the jurisdiction of the Colorado district court over the person of the defendant on the basis of the provision of that state’s long-arm statute which confers local jurisdiction over any non-resident who “[transacts] any business within this state.” De-fendant correctly points out that § 31-9-19 of the Colorado Revised Statutes provides a method for effecting such jurisdiction over a non-resident by substitute service on the Secretary of State together with registered mail notification to the defendant, a procedure not followed by Hazen in the state suit. But Omega overlooks the fact that this same provision recognizes the existence of alternative methods of service. One such possibility, contemplated by statute and elaborated by rule, is personal service outside the state on a registered agent of the corporation. Hazen chose this path and delivered process to Corporation Service Company of Wilmington, Delaware, defendant’s required statutory agent. Omega does not argue that this Colorado procedure denies the minimum constitutional requirement of adequate notice, see Mullane v. Central Hanover Bank & Trust Co., 1950, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; and it has failed to demonstrate any error on plaintiff’s part in effectuating the service that would deprive a court of jurisdiction under the local law.

Defendant’s second attack is more fundamental, concentrating not on the mechanism by which Colorado asserted its power, but rather on the statutory and constitutional support for the extraterritorial assertion. Omega contends that it has not transacted business in Colorado within the meaning of the statute; and, indeed, that it did not possess those minimum contacts with the forum necessary for a constitutional exercise of state authority. See Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283; International Shoe Co. v. Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The court below concluded otherwise; and there is no more effective refutation of Omega’s claim to being a stranger in Colorado than the largely uncontested and well supported findings of that court.

Omega, a corporation formed for the exploitation of mineral resources, possessed only one significant asset in the late 1960’s — land in Clay County, Alabama containing graphite deposits. In 1969 Omega sent a representative to Colorado to engage a technical expert for aid in the development of extraction techniques. Defendant’s agent chose Hazen, an established mineral testing and research firm, for this purpose. The arrangement proceeded with both the knowledge and approval of the responsible officials of Omega in Birmingham, Alabama. From the late summer of 1969 until the spring of 1971 the relationship between Omega and Hazen continued. During that period Omega shipped books, records, and more than 40 tons of ore, virtually the entire production of its Alabama property, to Ha-zen in Colorado for use in testing. Ha-zen billed Omega directly for these services and recieved several payments from defendant’s offices in Birmingham. On at least one occasion, officials of Omega met with Hazen’s personnel at a test site in Colorado. Omega showed no reluctance in its dealings with Colorado until, in early 1971, plaintiff’s bills for work performed in recovering graphite from the Alabama ore were no longer honored and became the subject of this controversy.

The Colorado Supreme Court has rejected a “narrow and technical approach” to determining whether an enterprise has transacted business within the state for the purpose of applying the long-arm statute. As interpreted, that provision requires only that the defendant have performed some “purposeful acts” in Colorado, Knight v. District Court, 1967, 162 Colo. 14, 427 P.2d 110, 112-113. Omega’s conduct in soliciting and entering into a contract to be performed in that state and in continuing with the arrangement for more than a year, provides an ample basis in Colorado law for the exercise of long-arm jurisdiction in a suit for breach of that agreement.

Defendant’s constitutional objection to Colorado’s assertion of in personam, jurisdiction is little more than frivolous. There remain significant “territorial limitations on the power of the respective States” to compel defense by non-residents of their interests and to enter judgments binding them personally. Hanson v. Denckla, supra, 357 U. S. at 251. But, at least since the Supreme Court’s decision in International Shoe, supra, the strictures of due process have not denied to a state the power to adjudicate the rights and obligations of parties to a contract formulated and performed within that state, even though the defendant cannot be located inside its borders at the time a dispute arises. The record in this case abounds with evidence of Omega’s affirmative, purposeful decision to enter Colorado and conduct business there. This deliberate contact conferred on the courts of Colorado the constitutional authority to referee any bouts which resulted. Product Promotions, Inc. v. Cousteau, 5 Cir. 1974, 495 F.2d 483. Defendant cannot now be heard to complain of the forfeited decision.

Affirmed.

      . This provision derives, of course, from Article IV, § 1 of the Constitution :
      “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
      However, by requiring federal courts to recognize state court judgments, see Huron Holding Corp. v. Lincoln Mine Operating Co., 1941, 312 U.S. 183, 61 S.Ct. 513, 85 L. Ed. 725, and by extending full respect to the decrees of the courts of United States territories and possessions, the statute advances the notion of “full faith and credit” beyond its explicit constitutional boundaries. This legislative annexation appears entirely appropriate as necessary and proper for the operation of courts established by Congress under Articles I, III, and IV of the Constitution ; and the courts have adopted no less expansive a policy, easily reading into § 1738 a requiremént that state courts extend full respect to the judgments of federal judicial tribunals within the states, in the absence of any such direct statutory command. See Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104.
      It appears equally clear, however, that a claim based upon 28 U.S.C. § 1738 will not alone suffice to make out a case “arising under” the Constitution or laws of the United States for the purpose of asserting § 1331 federal question jurisdiction. Consequently, a fight over the enforcement of a state court judgment is not automatically entitled to a federal arena. Cf. Minnesota v. Northern Securities Company, 1904, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870; People ex rel. McColgan v. Bruce, 9 Cir. 1942, 129 F.2d 421, cert. denied 317 U.S. 678, 63 S.Ct. 157, 87 L.Ed. 544. The statute merely provides the standard to be used in evaluating any judicial acts introduced into proceedings over which the court already has jurisdiction. In this case plaintiff has founded jurisdiction on diversity of citizenship, and we have the rather anomalous situation of a federal diversity court deciding a controversy in which Congress has, by the exercise of its express and implied powers, federalized all relevant legal questions — a diversity case in which there are no issues of forum state law.

      . Since the parties can themselves confer personal jurisdiction on a court, the ease with which the question is foreclosed by any appearance of a defendant is only to be expected. So highly prized, however, are the interests of finality and economy served by full faith and credit and res judicata, that even objections to subject matter jurisdiction are ordinarily not entertained in collateral proceedings. Durfee v. Duke, 1963, 375 U.S. 106. See B. Currie, Full Faith and Credit, Chiefly to Judgments: A Bole for Congress, 1964 Sup.Ct.Rev. 89.

      . Colorado Revised Statutes (C.R.S.) § 37-1-26.

      . C.R.S. § 37-1-26(1).

      . Nothing contained in this section shall limit or affect the right to serve any process, notice or demand, required or permitted by law to be served upon a corporation in any other manner now or hereafter permitted by law, or by the applicable rules of procedure.
      C.R.S. § 31-9-19(5).

      . C.R.S. § 37-1-27(1) specifically provides for personal service outside the state, “in the manner prescribed by the Colorado rules of civil procedure, with the same force and effect as if the summons had been personally served within this state.” Rule 4(e)(5) of the Colorado Rules of Civil Procedure defines personal service on a corporation as delivery “to any officer, manager, general agent, or registered agent.”

      . See Delaware Corporation Code § 132.

      . Defendant argues at one point that, granting the adequacy of the initial service, the absence of any notation on the return of the identity of the party served and the authority by which she received process, deprived the court of jurisdiction. Even were we to accept the contention that under Colorado law technical defects in the return affect the jurisdiction of that state’s courts, defendant would not prevail; for Colorado Rule of Civil Procedure 4(i), which governs manner of proof of service, does not require a statement as to the office or authority of the party identified as receiving the summons.


author: SIMPSON, Circuit Judge:

text:
    Charles SHELTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3608.
    United States Court of Appeals, Fifth Circuit.
    July 10, 1974.

      Robert W. Fisher, Atlanta, Ga. (court-appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

Charles Shelton appeals from the trial court’s denial of his motion for vacation of sentence, under Title 28, U.S.C., § 2255.

Appellant was convicted on his plea of guilty to one count of a four-count indictment charging willful evasions of income taxes in violation of Title 26, U.S.C. § 7201, and sentenced on February 23, 1973, to four years’ confinement and to pay a fine of $5,000. The guilty plea was accepted by the court on January 17, 1973 and a pre-sentence report was directed to be prepared and furnished to the court. The report was before the trial judge at sentence, but its contents were not divulged to the appellant or to his counsel. See Rule 32(c)(2), F.R.Crim.P.

Within the 120 day time limit of the rule, a Motion for Reduction of Sentence, under Rule 35, F.R.Crim.P. was presented to the trial judge. A hearing thereon was held July 11,1973.

During the Rule 35 hearing the trial judge refused to permit Shelton or his counsel to inspect the pre-sentence report, despite stating that in imposing sentence he had relied upon its contents and also upon confidential information attached to it. It was pointed out to the court by Shelton’s counsel that state charges of drug possession were pending at the time of the tax evasion sentence and that the state charges had later been nolle prossed, that they arose from a wiretap on Shelton’s home and a raid on his home, but that no drugs were found as a result of the raid. It was further pointed out that his record contained no drug conviction, although a New York possession charge had once been filed and later dismissed. It was urged that Drug Abuse Law Enforcement (DALE) agents furnished damaging hearsay and untrue information to the Probation Officer for inclusion in his pre-sentence report and that some of the information came from a court ordered but assertedly illegal wiretap placed on Shelton’s home February 10, 1972 by DALE It was further asserted that DALE agents were present in the courtroom at the time of sentence on February 23, 1973, and were seen openly congratulating each other and the probation officer in the immediate environs of the courtroom, the probation officer saying “We racked Charles Shelton up”.

The court did not, during the July 11, 1973 hearing, divulge the contents of the pre-sentence report, although stating candidly to counsel for Shelton:

“Well, I am certainly swayed by the presentencing report. What you have just recounted is the essence or extent of what you claim is your personal knowledge that the probation officer who prepared the presentencing report acted in a biased manner in cooperation with the Drug Abuse Law Enforcement agency to influence the Court as to the severity of the sentence and to punish the criminal for some suspected criminal activity and not the crime in the indictment; is that what you are referring to ?

MR. SMITH: Yes, sir.”

Court and counsel then discussed the fact that the same representations had been made to the court informally a week or so after sentence. It was also developed that some “forum shopping” had occurred, in that another judge of the Northern District of Georgia was approached as to a possible sentence, the trial judge stating that his knowledge of this matter did not influence his decision as to sentence and that he himself had not entered into any bargaining with counsel. The trial judge stated that the defendant’s possession of large sums of money from admittedly illegal sources was an influencing factor in the deterrence aspect of the sentence.

The court also stated that there was attached to the pre-sentence report “confidential information which I will not permit counsel to see, not from the probation officer but from persons within the services of the United States which is sufficiently probative to indicate that Shelton, in fact, was the middle of a drug operation or very probably substantially involved in a drug operation and that’s where his money came from.”

The confidential nature of this report, and the harmful effect its disclosure is likely to have upon other investigative operations of DALE and other state and government agencies, convince us that its disclosure should not be required. We determine however, that the material meets the reliability test discussed in United States v. Weston, 9 Cir. 1971, 448 F.2d 626, and that the sentencing judge was entitled to rely upon it.

At the conclusion of the July 11, 1973 Rule 35 hearing the trial judge denied the motion for reduction, adhering to the sentence originally imposed: 4 years confinement and $5,000 fine.

Thereafter, in September 1973, Shelton filed below his pro se Motion, Pursuant to Section 2255 of Title 28, U.S.C. to Vacate Sentence on grounds that (1) the court was prejudiced by irrelevant information when sentencing petitioner, and (2) that on the record petitioner was denied his “due process rights to a fair trial under the Constitution of the United States of America.”

The trial court denied this Motion without hearing by an order entered September 17,1973, which read:

“Petitioner does not allege that the sentence imposed exceeded the statutory maximum. He instead asserts that the Court’s reliance on information in his presentence report renders his sentence invalid.
The Court has previously considered and rejected petitioner’s claim at a hearing on his motion for reduction of sentence. At that hearing the Court revealed the basis for its decision but declined, pursuant to the discretion provided in Fed.R.Crim.P. 32, to disclose the contents of the presentence report or the sources thereof.
Clearly, evidence considered by a sentencing court need not be of the quality required at a trial on the merits. See, e. g., United States v. Tucker, 404 U.S. 443, [92 S.Ct. 589, 30 L.Ed.2d 592] (1972). At the aforementioned hearing, the Court gave serious consideration to the sources and content of the presentence report and found the information contained therein to be of a highly reliable and probative character within the meaning of United States v. Weston, 448 F.2d 626 (9th Cir. 1971). This satisfied all statutory and constitutional mandates with respect to the sentencing process.
For the foregoing reasons, petitioner’s motion to vacate sentence and judgment is hereby DENIED.”

Upon leave to appeal in forma pauper-is granted by the trial court, Shelton took a timely appeal from this denial. We appointed counsel for him under the Criminal Justice Act of 1964, Title 18, U.S.C., § 3006A, and the case has been submitted upon briefs and oral argument.

Our determination, Note 4, supra, that no information from wiretaps, legal or illegal influenced the trial court in sentencing Shelton takes us only part way in disposing of this appeal.

It is contended that since the trial judge in imposing sentence was influenced, as he stated at the July 11, 1973 hearing, by information indicating that Shelton was engaged in traffic in illicit drugs, due process requires that Shelton, who denies the accuracy of these reports, must be afforded an opportunity to refute that information. We think that such an opportunity is required by our prior decisions, beginning with Smith v. United States, 5 Cir. 1955, 223 F.2d 750, (rev’d on other grounds, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041), where it was held, based upon Townsend v. Burke, 1948, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690, that a sentence based upon false information as to a defendant’s past convictions and past criminal conduct is lacking in due process and subject to motion to set aside under Title 28, U.S.C. § 2255. We held in United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854, that where an appellant contended that facts relied upon by the sentencing court were untrue due process required that appellant be permitted “a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation.” Soon thereafter in United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553, we held that due process requires that a defendant be allowed “adequate opportunity” to rebut information concerning his alleged prior criminal conduct relied upon by the court in fixing sentence. Judge Goldberg spoke for us there:

“While the due process guarantee in Townsend has been judicially limited in order to preserve the confidentiality of the presentence report when and if in the district court’s discretion such confidentiality is desirable, and to prevent the sentencing process from turning into a full scale evidentiary-type hearing, it is also widely recognized that where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.” Id. at p. 556.

We vacate the order appealed from and remand with directions to conduct such a hearing. Upon remand, accommodation must be made by the district court between the right to withhold the confidential contents of the pre-sentence report, Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, and the right of Shelton to be fairly advised of the information which formed the basis of sentencing. When the information is made available to the appellant, a hearing will be necessary at which Shelton must be accorded an opportunity, such as is described in Espinoza, supra, to rebut the information explicitly relied upon in assessing sentence. The appellant has the initial burden of showing that the court relied on misinformation, Rogers v. United States, 5 Cir. 1972, 466 F.2d 513, cert. denied 1972, 409 U.S. 1046, 93 S.Ct. 546, 34 L.Ed.2d 498, and must therefore be advised as to the nature of the information relied upon so as to have the opportunity to rebut it discussed in Espinoza, supra.

Reversed and remanded with directions.

      . Title 26, U.S.C., § 7201 carries a maximum punishment for each conviction of five years imprisonment, or $10,000 fine, or both.

      . On brief, the government points out the obvious inaccuracy of this assertion, DALE not having opened an Atlanta office until May 1972.

      . Shelton was asserted to have told the probation officer that his income, developed by the net worth-expenditures method, was produced by “hustling and gambling”. The court intimated an opinion that the quoted language was perhaps a euphemism for involvement in drug operations.

      . This material was certified along with the pre-sentence report by the lower court to this Court under seal for inspection. We have examined it as well as the pre-sentence report in camera. Neither contains any information whatever from any wiretap, either placed on Shelton’s home or elsewhere, by DALE or by anyone else. This examination is dispositive of the contention raised on this appeal that the sentence imposed was based upon information gathered by illegal wiretaps. No wiretaps, legal or otherwise are referred to in either the pre-sentence report or the attached confidential information.

      . See also United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; United States v. Rollerson, 5 Cir. 1974, 491 F.2d 1209; United States v. Malcolm, 2 Cir. 1970, 432 F.2d 809. Cf. United States v. Trevino, 5 Cir. 1974, 490 F.2d 95.

      . We note that it is unlikely that this Court will be presented with additional eases in the posture of the one at bar. The Amendments to the Federal Rules of Criminal Procedure will take effect August 1, 1974, unless the Congress indicates otherwise. Amended Criminal Rule 32(a) (3) (A) provides :
      “(3) Disclosure.
      (A) Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, unless in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Barry Jerome ALLEN and John Murray, Defendants-Appellants.
    No. 73-3396.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.

      Alton S. Beasley, F. Shields McManus, Stuart, Fla. (Court-appointed), for Allen.
    John T. Brennan, Fort Pierce, Fla. (Court-appointed), for Murray.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    ■Before BELL, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Fortified with 8 or 10 beers, John Gorman, a Camden, New Jersey truck driver, was cruising south on Camden’s Broadway Street in his brown 1971 Plymouth Fury at 2:30 A.M. on a Saturday morning in June 1972 when three unescorted black females indicated that they needed a ride. Gorman obliged and let them out in front of a house at 247 Mechanic Street. After two of his passengers left the scene, Gorman accepted the invitation of the third, who claimed nobody was home, to come inside. As he followed her through an unlighted hallway, he was struck over the head with a frying pan. When his senses returned, he perceived he was in a dining room that was dimly illuminated by light from an adjacent room. The stunned Gorman realized his three former passengers were present together with a black male of medium height wearing a red, green and black beanie hat and glasses. Gorman also caught a glimpse of a second black male with an Afro hair style, whom the others referred to as “Tony,” but stated he did not then get a good look at this' man’s face. The two men searched and robbed their victim of his personal effects before binding his arms and gagging him. The five confederates then marched Gorman outside and placed him in the back seat of his Plymouth, before all six departed with Tony at the wheel. The beanied black was seated next to Gorman, who accepted a cigarette from his captor during the ensuing journey. The car stopped at a secluded stretch of the Turkey Hill Road. Tony opened the door and allowed his captive to step outside. Gorman hit the pavement running, but was caught, knocked down and stabbed before his abductors drove off in the Fury when another automobile approached the scene. Approximately 30 minutes had transpired since Gorman was first struck.

On July 9 Gorman’s automobile was recovered in front of the house in which defendants John Murray and Barry Jerome Allen were arrested in Fort Pierce, Florida. The defendants were tried jointly before a jury and found guilty of interstate transportation of a stolen motor vehicle in violation of the Dyer Act, 18 U.S.C. §§ 2, 2312. They appeal from their convictions and four-year sentences, contending that the district court erred (1) in admitting Gorman’s testimony identifying them as his assailants; (2) in admitting Edward Mayner’s testimony that he observed both defendants getting out of a 1971 gold Plymouth at his house in Fort Pierce; (3) in admitting photostatic copies of the New Jersey registration and title to Gorman’s Plymouth Fury; (4) in instructing the jury about the inferences permitted to be drawn from unexplained possession of recently stolen property; and (5) in denying defendants’ motions for judgments of acquittal. Finding no error in the proceedings below, we affirm.

When Gorman reported his car stolen New Jersey law enforcement officers showed him photographic displays on two separate occasions in an attempt to identify his assailants. At the first display, Gorman viewed several hundred photographs without recognizing his captors. The second spread, consisting of approximately 50 photographs in groups of between 6 to 10 each, was held after the defendants’ arrest. Prior to this display, police officers told Gorman that two black males who had been apprehended with his automobile in Florida, had asserted they won the vehicle in a Philadelphia crap game. Gorman then positively identified defendants Murray, who had worn the beanie, and Allen, whom he recognized as Tony, in a group of 6 photographs, each of which bore an identification number and the inscription of the Philadelphia Police Department. In addition to the youthful defendants, the other photographs in this group depicted two older, bearded black men and two white males. After the defendants’ criminal identity had been thus established, the New Jersey officers tape recorded a statement from Gorman in which he repeated his previous identification.

At the close of a pre-trial hearing to suppress Gorman’s identification evidence, the district judge ruled that the Philadelphia Police Department photographs were not impermissibly suggestive, that the display procedure as a whole met the test of fundamental fairness, and that Gorman’s in-court identification of the defendants rested independently on his recollections from the 30-minute encounter with his abductors. Murray and Allen contend to the contrary that Gorman’s courtroom identification was invalid because of the suggestive post-arrest, pre-trial photo display and that the judge’s determination that the identification had a source independent of such display was unfounded. To bolster their argument, the defendants urge that Gorman’s opportunities to observe his attackers were compromised by the poor lighting conditions and his diminished capacity — resulting from the influence of alcohol and the blow to his skull. In this same vein they point to his post-assault statement to the police that he did not get a good look at “Tony’s” face, whom he was unable to describe beyond the Afro, the disparity between his description of the beanied and spectacled Murray and the photograph he selected which showed Murray hatless and without glasses, the lack of resemblance between the defendants and the other men pictured in this particular segment of the photo display, the suggestive pre-identification statements by the police to Gorman connecting the defendants to Philadelphia in conjunction with the group of photographs clearly marked “Philadelphia Police Department,” the absence of counsel during the second post-arrest display or a verifying lineup and the fact that the photographic identification was made over a month after the incident had occurred.

The identification procedure employed here is at, if not over, the line of suggestiveness. See Simmons v. United States, 890 U.S. 377, 383-384, 386 n. 6, 88 S.Ct. 967, 971, 972 n. 6, 19 L.Ed.2d 1247 (1968). Pre-display statements by the police to the identifying witness that they have persons under suspicion hazard the integrity of the process. See United States v. Henderson, 489 F.2d 802 (5th Cir. 1973). Simmons teaches that, judging each case on its own particular facts, “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971; United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972), explicated the following two-step analysis under the Simmons standard:

“[T]he district courts are to determine separately (1) whether the procedures followed ‘were impermissibly suggestive’, and then (2) whether, being so, they created ‘a substantial risk of misidentification’.”

United States v. Henderson, supra,, 489 F.2d at 805; see also United States v. Evans, 484 F.2d 1178 (2d Cir. 1973).

Assuming, arguendo, that the display procedures utilized by the Camden police officers were impermissibly suggestive, the district court still had the task of deciding whether such procedures created a substantial risk of misidentification. In ^personal courtroom confrontations, Gorman twice positively reaffirmed his belief that the defendants were the persons who assaulted him and stole his automobile. He testified unequivocally that his identification was based on his recollection of the incident divorced entirely from his selection of the defendants’ mug shots. That Gorman was not disposed to identify just anyone whose photo was dispayed is confirmed by the fact that out of the hundreds of photographs shown to him he selected only those of the defendants. At the time he was struck on the head, almost two hours had elapsed since Gorman had downed his last beer. The length of the kidnapping episode, an experience well calculated to hasten his return to sobriety, also allowed more than sufficient time for his head to clear from the frying pan blow.

Murray was seated beside Gorman during the drive and lit a cigarette for him. Gorman’s identification based on this contact alone, was positive. Similarly, Gorman testified that he was able to take stock of Allen at close quarters when his assailants searched, robbed, bound and then led him outside to the automobile. It was Allen who ousted him from the car as his odyssey ended. Both men then came close enough to stab him. Thus, the district court was confronted with classic credibility choices. We are unable to conclude its finding that Gorman’s identification testimony was grounded on his independent recollection of his assailants is clearly erroneous. See Martin v. United States, 462 F.2d 60 (5th Cir. 1972). Furthermore, neither the absence of defendants’ counsel at the second post-arrest display, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); see also Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), nor the omission of a verifying lineup, without more, operate to invalidate the photographic identification. Because Gorman’s independent identification removed any substantial risk of irreparable misidentification which the picture spread procedures might have engendered, the district judge properly denied defendants’ motions to suppress Gorman’s identification testimony. Evans v. Janing, 489 F.2d 470 (8th Cir. 1973); United States v. Stone, 472 F.2d 909 (5th Cir. 1973); United States v. Cooper, 472 F.2d 64 (5th Cir. 1973). The evidence, therefore, was properly admitted. United States v. Henderson, supra.

Defendants’ remaining specifications of error are subject to more facile disposition. The district judge did not abuse his discretion in admitting Edward Mayner’s testimony that he saw Murray and Allen get out of a gold 1971 Plymouth which had stopped on the street in front of his Fort Pierce home. The defendants’ objection was that the evidence was irrelevant and immaterial since Mayner could not remember the month in which the event took place. This relevancy deficit was cured by the testimony of Mayner’s father, Oliver Walker, a Fort Pierce policeman, who testified that his son reported the incident to him in July of 1972. With the time supplied, Mayner’s observation was certainly admissible to prove defendants’ custody of the stolen vehicle in Florida. Likewise, the district judge properly admitted photostatic copies of New Jersey registration of ownership and title to Gorman’s Plymouth under the Business Records Act, 28 U.S.C. § 1732. Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968); Thompson v. United States, 334 F.2d 207 (5th Cir. 1964.) This evidence was cumulative to Gorman’s recitation about his ownership and the license number of the stolen Plymouth, which was undisputed. The vehicle recovered in Florida bore the identical New Jersey license tag.

The only objection to the court’s instructions relative to the inferences that could be drawn from defendants’ possession of Gorman’s automobile was based upon the asserted insufficiency of evidence to establish that culpable possession had been shown. In the precise terms approved in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) the jury was charged that it was permitted to infer from the fact of unexplained or falsely explained possession, sole or joint, actual or constructive, in one state of an automobile recently stolen in another, that the defendants knew the vehicle was stolen and that they transported it in interstate commerce. See, e. g., United States v. Abigando, 439 F.2d 827, 834 n. 6 (5th Cir. 1971); Fitzpatrick v. United States, 410 F.2d 513 (5th Cir. 1969). The instructions amply cautioned the jurors not to draw unfavorable inferences or presume guilt from the defendants’ failure to testify, and they related that possession could be satisfactorily explained by other facts and circumstances in evidence. Taken as a whole the instructions did not imperil the presumption of defendants’ innocence. Most assuredly, they were free of plain error.

This circuit’s position on the essential elements of this crime is clear.

“In a Dyer Act case, the government must prove that the car was stolen and that the accused, knowing it to have been stolen, transported it in interstate commerce . . . . ”

United States v. Robertson, 417 F.2d 873, 875 (5th Cir. 1969).

“The possession of a stolen vehicle which if unexplained gives rise to the important inferences of transportation and guilty knowledge, means to have ‘management, care, dominion, authority and control, singly or jointly’ over the vehicle.”

Fitzpatrick v. United States, supra, 410 F.2d at 516. In addition to Mayner’s testimony and the circumstances of the arrest, the government’s evidence of defendants’ possession of the Plymouth in Florida included the testimony of Officer Walker and Nathaniel Gibbs, also a Fort Pierce policeman, who, on several occasions, separately observed the defendants alone in the car with Allen driving. The officers also saw them in the vehicle accompanied by or as passengers with others. Although this evidence of “guilty possession” in Florida, standing alone, arguably would not be sufficient to support the inferences of guilty knowledge and interstate transportation in every case, see, e. g., United States v. Robertson, supra; Fitzpatrick v. United States, supra, the proof in today’s record also contained Gorman’s testimony identifying Murray and Allen as the thieves who stole and possessed his automobile in New Jersey. In toto, the prosecution’s case established ample “management, care, dominion, authority and control” to justify the “unexplained possession” charge to the jury. Given proof of direct participation by defendants in the New Jersey theft, and the numerous instances of contact with and possession of the automobile in Florida, there was ample foundation for inferring that defendants were also involved with the interstate transportation of the vehicle.

The evidence, considered most favorably to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and the inferences which a reasonable juror could draw therefrom, were not only consistent with defendants’ guilt, but also were inconsistent with every reasonable hypothesis of innocence. Consequently, the district court properly rejected defendants’ motions for judgments of acquittal.

Affirmed.