author: BARRETT, Circuit Judge. WILLIAM E. DOYLE, Circuit Judge

text:
    TRANSWESTERN PIPELINE COMPANY, Plaintiff-Appellant, and United States of America, Intervening Plaintiff-Appellee, v. KERR-McGEE CORPORATION, a Delaware corporation, Defendant-Appellee, Olen F. Featherstone et al., Intervening Defendants-Appellees.
    No. 73-1521.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 7, 1974.
    Decided Feb. 26, 1974.

      Ben H. Rice, III, Houston, Tex. (James W. McCartney and Ted A. Hodges, Houston, Tex., on the brief, Vinson, Elkins, Searls, Connally & Smith, Houston, Tex., and Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., of counsel), for plaintiff-appellant.
    John D. Robb, Albuquerque, N. M., (Mark K. Adams, Albuquerque, N. M., Willard P. Scott, Oklahoma City, Okl., Henry S. Glascock, Gallup, N. M., and Don M. Fedric, Roswell, N. M., on the brief), for Kerr-McGee Corp. and Olen F. Featherstone.
    Neil T. Proto, Dept. of Justice, Washington, D. C. (Victor R. Ortega, U. S. Atty., Richard J. Smith, Asst. U. S. Atty., Wallace H. Johnson, Asst. Atty. Gen., Albuquerque, N. M., Edmund B. Clark and Jacques B. Gelin, Dept. of Justice, Washington, D. C., on the brief), for United States of America.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

Transwestern Pipeline Company, (Transwestern), appeals from the dismissal of its three count complaint filed against Kerr-McGee Corporation, (Kerr-McGee), the United States of America, and Olen F. Featherstone, et al., wherein it had attempted to prevent Kerr-McGee from mining potash from under one of its natural gas compressor stations.

The area in dispute is Section 31, T 20 W, R 32 E, NMPM, Lea County, New Mexico. The land is located within the Carlsbad Potash Basin, (Basin). The Basin is approximately twenty miles by thirty-eight miles and has been mined since 1931.

In 1954 the Department of the Interi- or, (Interior), leased to a corporate predecessor of Kerr-McGee the right to mine potash on certain lands within the Basin, including Section 31. Under the terms of the lease, the lessee was to undertake the mining of potash with reasonable diligence, skill, and care, and the United States was to receive a royalty based on production. The United States reserved the surface of the land for easements or rights of way, insofar as same did not interfere with the use by the lessee in mining potash.

From 1954 to 1965 Kerr-McGee conducted exploratory operations to determine the density and location of potash throughout the leased area, including Section 31. It also constructed a processing mill and related facilities between 1963 and 1965. In October of 1965, after receiving approval for its proposed mining plan, Kerr-McGee began substantial mining operations within the Basin. Neither Kerr-McGee’s approved plan nor its initial operations included the mining of Section 31. Thereafter, in June, 1971, when Kerr-McGee submitted a “courtesy plan” to mine in Section 31 under one of Transwestern’s compressor stations, United States Geological Survey approval was not required because this was not considered a significant departure from the 1965 plan.

Transwestern was afforded a right of way for a pipeline through, and a compressor station site on, Section 31 by the Bureau of Land Management of the Interior in 1959, after a determination by the Federal Power Commission that a gas pipeline system through the Basin was vested with the public’s interest and was required by public convenience and necessity. This right of way was issued subject to all valid existing rights.

Construction of the pipeline and compressor station started in 1959. Both were in service in 1960. During the acquisition of the right of way through the Basin and construction of the compressor station, Transwestern was fully aware of Kerr-McGee’s lease. It knew that mining would cause surface subsidence and damage to, or destruction of the compressor station. Transwestern negotiated, unsuccessfully, with Kerr-McGee to acquire part of its leasehold interests.

In 1962 Transwestern acquired a patent to eighty acres of Basin land which included the compressor station site. By reason of the patent, Transwestern was conveyed the land in fee, subject to the reservation by the United States of “all minerals in the land so granted, together with the right to prospect for, mine, and remove the same as authorized.” Under the terms of an exchange, Transwest-ern’s compressor station. When an rights of prior permittees or lessees to use so much of the surface as is required for mining operations, without compensation to the patentee for damages resulting from proper mining operations.

In 1969 Transwestern and Kerr-McGee began discussing the latter’s intent to conduct mining operations in Section 31, including the area under Transwest-ern’s compresor station. When an agreement could not be reached on the amount of ore to be left in place and the amount of compensation to be paid for it, Transwestern filed suit. Transwest-ern’s three count complaint attempted to establish its right to lateral and subja-cent support for its compressor station, its right to restrict some of the mining operations of Kerr-McGee in Section 31 by the power of eminent domain, and the unlawful approval of Kerr-McGee’s mining plan.

The trial court dismissed Transwest-ern’s first count on Kerr-McGee’s motion. After trial, the Court also dismissed the second count. The trial court held that Transwestern took its right of way subject to Kerr-MeGee’s right to remove the potash; that there was no obligation to Transwestern with respect to the approval or disapproval of Kerr-McGee’s mining plan; and that such plan was proper. In so ruling, the trial court recognized that Transwestern was the holder of a certificate of public convenience and necessity and that it claimed its right of condemnation pursuant to 15 U.S.C.A. § 717f(f) and (h), but that since the United States was the owner in fee of the potash beneath the compressor station, and had only leased the land to Kerr-McGee, thereby affording it the right to remove the potash subject to a royalty payment to the United States, Transwestern’s power of condemnation did not extend to the United States, and, accordingly, did not extend to Kerr-McGee’s lease of Section 31. The trial court further held that such a condemnation would be contrary to the purpose of the Government’s lease granted to Kerr-McGee and that, in any event, the condemnation powers afforded by 15 U.S.C.A. § 717f(f) and (h) relate only to the taking of privately owned land.

On appeal Transwestern contends that: (1) Congress intended that pipeline facilities, authorized by the Mineral Leasing Act of 1920, have surface support; (2) that Kerr-McGee’s mining plan as submitted to the United States Geological Survey does not extend to the removal of the lateral and subjacent support of its compressor station, nor could the United States Geological Survey lawfully approve a mining plan which did so; and (3) that Transwestern may protect its rights to lateral and subjacent support of its compressor station through the exercise of eminent domain.

I.

Transwestern contends that Congress intended that pipeline facilities, authorized by the Mineral Leasing Act of 1920, have surface support. This contention, though viable from a practical sense point of view, is without merit under the facts of this case.

Transwestern was fully aware of Kerr-MeGee’s lease. Paragraph 39 of the Stipulation within the pre-trial order notes:

Prior to the construction of its compressor station and pipeline in Section 31, Transwestern knew of the existence of the 1954 lease now held by Kerr-McGee. Transwestern had been advised by a Kerr-McGee representative with respect to the location of a potash ore body underneath Section 31 as reflected in Exhibit D5 and with respect thereto was also advised that mining thereof by the methods used in the Basin involving high percentage of ore extraction would probably result in surface subsidence and that such mining under the compressor station and pipeline would probably result in damage to the pipeline and damage to or destruction of the compressor station.

Also, under the terms of Kerr-McGee’s lease, Kerr-McGee was afforded “the exclusive right and privilege to mine, remove, and dispose of all the potassium and associated deposits in, upon, or under the following described lands: — Sec. 31, All.” This lease, furthermore, reserved to the United States: “The right to dispose of the surface of the land embraced herein under existing law, or laws, hereinafter enacted, insofar as said surface is not necessary for use of the lessee in extracting and removing the deposits therein.”

These conditions, standing alone, vitiate Transwestern’s contention that it should be afforded lateral and subjacent support for its compressor station. However, even if we were inclined to disregard these factors, which we are not, Transwestern’s right of way rights acquired in June, 1959, were subject to “all valid existing rights” and its patent had the following express reservation:

Reserving, also, to the United States all minerals in the land so granted, together with the right to prospect for, mine, and remove the same as authorized by the provisions of Section 8 as amended as aforesaid. This entry is made . . . and the patent is issued subject to the rights of the prior permittees or lessees to use so much of the surface of said lands as is required for mining operations, without compensation to the patentee for damages resulting from proper mining operations.

Since Transwestern opted to build a compressor station on and a pipeline system through Section 31, notwithstanding its knowledge of Kerr-McGee’s lease, its knowledge that subsidence of the land could damage or destroy its station, and its knowledge of the restrictions within its own right of way and patent, Transwestern cannot now prevail in its bid for surface support. The control of public lands is vested exclusively with Congress. Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954). Concurrent with and inherent in this control is the right of Congress to impose conditions over federal funds and property. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).

II.

Transwestern contends that Kerr-McGee’s mining plan as submitted to the United States Geological Survey does not extend to the removal of the lateral and subjacent support of its compressor station and that the United States Geological Survey could not lawfully approve a mining plan which did so. In disposing of this contention below, the trial court held:

In reviewing this matter I find that the title vested in Kerr-McGee prevails over the title of Transwestern and that Transwestern took its right of way subject to the right of Kerr-McGee to remove potash and if necessary, to subside the surface in so doing.
I further find that the Department of Interior and Kerr-McGee had no obligation to notify or hear Transwestern insofar as the approval or disapproval of a mining plan was concerned. The legislation providing for a mining plan and Department approval of it was designed for the purpose of seeing that the maximum amount of ore would be produced without waste and in such manner that the health and lives of the miners would not be placed in jeopardy.
The mining plan submitted by Kerr-McGee was adequate and the United States Geological Survey was kept current and informed of Kerr-McGee’s mining activity.

The findings of a trial court will not be reversed on appeal unless they are clearly erroneous. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972); Fed.R.Civ.P., Rule 52, 28 U.S.C.A. Where, as here, the United States reserves the mineral estate, together with the right to prospect for, mine, and remove the same in a grant of the surface estate, there is a servitude laid on the surface estate for the benefit of the mineral estate. Kinney-Coastal Oil Company v. Kieffer, 277 U.S. 488, 48 S.Ct. 580, 72 L.Ed. 961 (1928). Applying this standard we hold that the trial court properly held that Kerr-McGee prevails over Transwestern and that Kerr-McGee was empowered to remove potash, and if necessary, to subside the surface in so doing.

III.

Transwestern’s final contention is that it may protect its rights to lateral and subjacent support of its compressor station through the exercise of the power of eminent domain. Transwestern alleges that it has the power to acquire by eminent domain the necessary property rights for the location of its compressor station via Section 7(h) of the Natural Gas Act. 15 U.S.C.A. § 717f(h) provides :

(h) When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate and maintain a pipeline or pipelines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipeline or pipelines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located

Transwestern contends that since its compressor station and additions thereto were made under certificates of public convenience and necessity issued pursuant to orders of the FPC, it is empowered to exercise the power of eminent domain against Kerr-McGee to protect its compressor station and to assure its continued operation.

jn support of this contention Trans-western cites a number of decisions in which holders of certificates of public convenience and necessity have exercised condemnation powers under Section 7l7f(h). These decisions do not control because each involved the condemnation of privately owned land.

Here, we are concerned with land wherein the United States is the fee owner of the mineral estate which has been leased to Kerr-McGee for the exclusive purpose of' enjoyment for a specified period of time, for valuable consideration, to explore, operate, develop and market the potash mineral, subject to specific terms and the payment of a royalty to the United States. We take judicial notice of the fact that the United States, as lessor, has not transferred its ownership or title in and to the mineral estate to Kerr-McGee, as lessee. It is precisely for this reason that, under all of the circumstances of this case, we must hold that a condemnation action against Kerr-McGee by Trans-western which, if successfully prosecuted, would deny any mining activity now reasonably permitted to ultimately market potentially valuable potash reserves owned by the United States underlying the surface area of the compressor station tract, is in fact a condemnation action against the United States. Simons v. Vinson, 394 F.2d 732 (5th Cir. 1968), cert. denied, 393 U.S. 968, 89 S.Ct. 398, 21 L.Ed.2d 379 (1968). The United States, under these circumstances, is an indispensable party. However, the United States may not be sued without its consent. Maricopa County v. Valley National Bank of Phoenix, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834 (1943); United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327 (1941). The United States has not consented to be sued. The trial court did not err in this finding nor in its finding that the power of eminent domain afforded holders of certificates of public convenience and necessity under Section 7(h) of the Natural Gas Act does not extend to lands owned by the United States.

Eminent domain is the power of the sovereign to take, or to authorize the taking of, private property for a public use without the owner’s consent, conditioned upon the payment of just compensation. 26 Am.Jur.2d Eminent Domain § 1; Cline v. Kansas Gas and Electric Company, 260 F.2d 271 (10th Cir. 1958); United States v. 2,005.32 Acres of Land, More or Less, Situate in Corson County, South Dakota, 160 F.Supp. 193 (D.S.D.1958); United States v. 209.25 Acres of Land, More or Less, 108 F.Supp. 454 (W.D.Ark.1952), rev’d. on other grounds, United States v. Willis, 211 F.2d 1 (8th Cir. 1954), cert. denied, 347 U.S. 1015, 74 S.Ct. 871, 98 L.Ed. 1138 (1954).

It is fundamental that the Mineral Leasing Act of 1920 contemplates the severance of the mineral estate from the surface estate and provides for their alienation separately. 54 Am.Jur.2d Mines and Minerals § 97. The owner of the surface estate cannot assert any title or possessory interest in lands owned by or in which the United States has any interest without the consent of the United States. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957); Stewart v. United States, 242 F.2d 49 (5th Cir. 1957); Anderson v. United States, 229 F.2d 675 (5th Cir. 1956).

Whether an action is against the United States is not to be determined by the mere nominal party on the record, but by the issues presented and the effect of the judgment which can be entered in response to such issues. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971); Ogden River Water Users’ Association v. Weber Basin Water Conservancy, 238 F.2d 936 (10th Cir. 1956). In Kinney-Coastal Oil Company v. Kieffer, supra, the Supreme Court held that mining leases issued subject to the Mineral Leasing Act of 1920 (the Kerr-McGee 1954 potash lease was issued under the Potash Act of 1927, 30 U.S.C.A. §§ 281-286, which became a part of the Mineral Leasing Act of 1920), constitute the dominant estate and that a homestead patentee with surface estate title holds the servient estate. Specifically, the Court states, inter alia:

In effect therefore a servitude is laid on the surface estate for the benefit of the mineral estate to the end, as the acts otherwise show, that the United States may realize, through the separate leasing, a proper return from the extraction and removal of the minerals. (Emphasis ours). 277 U.S. at 504, 48 S.Ct. at 583.

We recognized the vitality of Kieffer in a very recent opinion. Mountain Fuel Supply Company v. Smith, 471 F.2d 594 (10th Cir. 1973).

Affirmed.

WILLIAM E. DOYLE, Circuit Judge

(dissenting):

I respectfully dissent, but at the same time I hasten to point out that I agree with all points of the opinion except with the part that denies Transwestern the right to condemn the leasehold interest of Kerr-McGee. 15 U.S.C. § 717f(h) authorizes the holder of a certificate of public convenience and necessity, here Transwestern, to exercise the right of eminent domain whenever appropriate. It says further that when he cannot by contract or otherwise agree with the owner of property “to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property” or “for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe lines”, it may acquire the same by eminent domain. At bar Transwestern seeks to employ its power of condemnation to protect its compressor station, thereby to insure continued operation of its pipeline.

My main problem with part II of the majority opinion is that it gives a literal interpretation to the word “owner” and declares that the United States is the owner and a necessary party and cannot be sued or joined; but there is no interest of the United States in controversy. The only genuine issue is whether the right of eminent domain allows the taking of a leasehold interest such as Kerr-McGee has, and it is clear from a reading of the entire section under scrutiny that it contemplates the appropriation of any necessary right-of-way, land or other property.

The interest of the owner of a leasehold, even a leasehold granted by the United States, continuously stands in the shadow of condemnation from the government or its delegate on the payment of just compensation. United States v. Fisk Bldg., 99 F.Supp. 592 (S.D.N.Y.1951); United States v. Certain Parcels of Land in Baltimore, Maryland, 55 F.Supp. 257 (D.C.Md.1944); Leonard v. Autocar Sales and Service Co., 392 Ill. 182, 64 N.E.2d 477, cert. denied, 327 U.S. 804, 66 S.Ct. 968, 90 L.Ed. 1029, rehearing denied, 328 U.S. 878, 66 S.Ct. 1118, 90 L.Ed. 1646, 328 U.S. 879, 66 S.Ct. 1339, 90 L.Ed. 1647 (1946). In undertaking such proceedings, the condemnor certainly does not take the entire fee where, as here, only the leasehold interest is necessary. See United States v. Fisk Bldg., suipra, wherein the court upheld the power of the Administrator of General Services to condemn the lease on two floors of an office building in New York.

I submit that Transwestern is empowered to condemn Kerr-McGee’s leasehold in the area in question and does not need the United States as a party. A somewhat similar case was before the United States District Court for the Western District of Pennsylvania in 5655 Acres of Land and Coal in Indiana County, Pennsylvania v. Texas Eastern Transmission Corp., 190 F.Supp. 175 (D.C.W.D.Pa.1960). The statute we are now considering was also there involved. Plaintiff owned coal and mining rights as well as waivers of rights to surface support and a release from damages to surface improvements. The defendant was a natural gas company which had constructed a pipeline which encroached on plaintiff’s mining interests without undergoing condemnation proceedings. In other words, as in the case at bar, the transmission company was in effect a trespasser. The plaintiff brought an action to recover compensation. The court recognized that the transmission company had a right to maintain its pipeline despite the existence of plaintiff’s property right to mine the coal. It was said that where a corporation has employed its power of eminent domain in a defective manner, the aggrieved party has a right to damages in trespass or may treat the action as one in condemnation giving rise to just compensation.

At bar Transwestern’s encroachment is to be treated as an exercise of its power of eminent domain. Unquestionably Kerr-McGee is entitled to just compensation for the reasonable market value of its leasehold estate — the reasonable market value, no doubt, of the minerals involved. The government has no interest in this except to require Kerr-McGee to account to it for its interest in whatever it receives.

To hold that the government must be formally joined, even though it has granted Transwestern’s right of eminent domain, puts form ahead of substance. Also, a literal reading of the majority decision could seriously curtail the exercise of the power of eminent domain by pipeline companies.

Finally, I foresee that this decision may well place Transwestern in a position which is not only disadvantageous in relation to Kerr-McGee, but it may also subject it to hardship greatly disproportionate to the injury which its pumping station created.

      . Cox v. Revelle, 125 Md. 579, 94 A. 203 (1915), recognized the principle that a leasehold derived from the sovereign is subject to condemnation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Reginald Jerome SHYE et al., Defendants-Appellants.
    Nos. 73-1968 to 73-1971.
    United States Court of Appeals, Sixth Circuit.
    Jan. 29, 1974.
    Decided March 7, 1974.
    Robert S. Brandt (Court-appointed), Nashville, Tenn., on brief, for Reginald Jerome Shye.
    Carlton H. Petway (Court-appointed), Nashville, Tenn., on brief, for James Clarence Floyd.
    Clark H. Tidwell (Court-appointed), Nashville, Tenn., on brief, for James Alfred Stevenson.
    William Buford Bates (Court-appointed), Nashville, Tenn., for James Edward Cox.
    Charles H. Anderson, U. S. Atty., Joe B. Brown, Asst. U. S. Atty., Nashville, Tenn., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
   PER CURIAM.

These appeals, which were consolidated for hearing, were brought by four co-defendants who were convicted of bankrobbery in violation of 18 U.S.C. § 2113(d). An interlocutory appeal pursuant to 18 U.S.C. § 3731 was brought by the government from the granting, in part, of defendants’ pretrial motion to suppress certain evidence. On appeal, that order was vacated in part and affirmed in part. United States of America v. Shye et al., 473 F.2d 1061 (6 Cir. 1973).

The convictions from which these appeals are taken occurred in jury trials, following our remand. On appeal, appellants present two issues: (1) whether the arresting officers’ warrantless entry and search of an apartment was valid, and (2) whether the district court should have suppressed evidence seized as the result of the arrest of appellants in the apartment and a search of that part of the apartment under their control.

We affirm the convictions for the reasons set forth in Chief United States District Judge Gray’s order of July 9, 1973, attached hereto as an appendix.

APPENDIX

In The

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION UNITED STATES OF AMERICA, v. REGINALD JEROME SHYE, JAMES EDWARD COX, JAMES CLARENCE FLOYD, JR. and JAMES ALFRED STEVENSON

Criminal No. 14,935

ORDER

(Filed July 9, 1973)

The defendants in this criminal action have been indicted for armed robbery in violation of 18 U.S.C. Section 2, 2113(a), and 2113(d). For the second time, the action is before the court on a motion to suppress evidence which the defendants contend was the product of an illegal arrest, search, and seizure. The facts surrounding the arrest, search, and seizure in question were adduced at three separate hearings, the Magistrate’s hearing and the two suppression hearings held by this court, the transcripts of which are a part of the record herein. The pertinent facts are set forth below as a prelude to the recitation of the procedural history of the case and to the disposition of the issues now before the court.

The Nashville City Bank and Trust Company was robbed shortly before noon on January 18, 1972, by four Black males, described as follows: one was short and one was tall, the other two being about (fol. 2) six feet in height; the short robber wore a ski mask and the other three wore distinctive hats, one of which was fur and another of which had a wide brim; some of the robbers wore coats that appeared to be of leather, one of which was lavender in color; and the short man had a sawed-off shotgun, and two others had pistols. The robbers used a white sack to carry the money, and they were seen leaving the bank in a 1968 or 1969 two-toned “fastbaek” Ford Fairlane automobile. (This information was given the police officers and F.B.I. agents by witnesses shortly after the robbery.)

On the day before the robbery, January 17th, Detective Summers of the Nashville Metropolitan Police Department had gone to the apartment of defendant James Edward Cox, located at 1208 26th Avenue, North, Nashville, Tennessee, to question Cox about another bank robbery. When the detective arrived at the apartment, he observed Cox working on a 1969 “fastbaek” Ford Fairlane automobile and going back and forth between the car and his apartment, Apartment “A.” Detective Summers did not question Cox, but merely observed him for a time; he wrote down the license number of the car and the address of the apartment.

The next day, when Summers arrived at the scene of the robbery, the description of the get-away car triggered his memory of the events of the day before and he immediately contacted other officers by radio so as to ascertain whether the car was at the same location where he had seen it the previous day. He was told that the car was parked within forty or fifty yards of Cox’s apartment, and so Summers, some F.B.I. agents and other Metropolitan Police officers went to Apartment “A,” 1208 26th Avenue, North.

Agent Hamar of the F.B.I. immediately went to where the car was parked, got the license number and ordered a radio check thereof. (Fol. 3) While the check was being made, Hamar looked through the car window and observed a white sack and a hip-length wool coat on the car seat. He also felt the car radiator and noted that it was warm, indicating that it had recently been driven. Other agents arrived, bringing with them the man, Mr. Angel, who had described the get-away car. Mr. Angel identified the automobile in question as the get-away car. At about the same time, the radio license check came in, revealing that the plates on the Ford were registered to a Chevrolet. Based on all this information, Hamar ordered a search of the car. This search turned up a sawed-off shotgun, as well as the coat and sack mentioned Supra.

In the meantime, other officers and agents had proceeded to Apartment “A,” which Detective Summers had indicated was the apartment into which Cox kept returning in the course of working on the car the day before. They identified themselves and began knocking on both the front and back doors to the apartment, but received no response and could hear no noises from inside the apartment. This identification and knocking procedure was repeated intermittently during the entire time the officers were outside the apartment.

Other officers began checking the other apartments to find out where they could get a key to the apartment in question and to confirm the fact that Cox lived there. They were successful on both counts, and F.B.I. Agent Thune was sent to a downtown realty company to obtain a key to the apartment. When Thune returned with a key, it was tried on both doors, but it would not open either.

During this period of time, the F.B.I. agents in charge, Agents (fol. 4) Rodgers and Hamar, held a discussion about whether they should attempt to get a search warrant for the apartment or whether they should await the arrival of Mrs. Cox (they having learned that she would be returning from work in approximately thirty minutes) and obtain her consent for a search of the apartment. They decided to pursue the consent route and to forego the warrant procedure.

Approximately an hour after the officers had first arrived on the scene but before Mrs. Cox’s expected return, the situation changed drastically. Either five or six law enforcement officers were at the front door when it opened slightly and someone from inside said, “We’re coming out.” The officers could see several Black males inside at this point.

Four witnesses testified concerning the succeeding sequence of events: defendant Cox, Agent Harrigan of the F. B.I., and Officers Smith and Pollard of the Metropolitan Police. The agent and the officers were just outside the door and, of course, defendant Cox was inside. Agent Harrigan testified that one of the officers ordered the occupants to come outside. Officers Smith and Pollard testified that the door began to close slightly and slowly and that someone from inside said, “Come on in.” (Agent Harrigan did not corroborate the officers’ assertion that someone said, “Come on in”; neither did defendant Cox.)

In any event, when the door began to close slowly, the officers rushed in and promptly placed the defendants against a wall in the apartment. While some of the officers were taking care of the defendants, other officers began to fan out through the apartment, picking up items of evidence as they went. The items seized, thirteen in number, included articles of clothing resembling those described as having been worn by the bank robbers, six .38 calibre bullets, two (fol. 5) pistols, four bags of money, some other money enclosed by rubber bands, and a gold card case containing identification papers and eleven $100.00 bills.

When the defendants were taken down to the station house, their statements were taken and defendant Shye surrendered a $10 bill that was on his person.

In advance of trial, the defendants moved to suppress the items of evidence taken from the car and from Cox’s apartment. The initial suppression hearing was held on May 24, 1972. Following that hearing, this court ordered suppression of the evidence taken from the car and part of the evidence taken from the apartment. Pursuant to 18 U.S.C. Section 3731, the Government appealed that part of the court’s Order suppressing the evidence seized from the car and one bag of money found in the apartment.

On January 23, 1973, the United States Court of Appeals for the Sixth Circuit filed an Opinion which reversed this court’s suppression of the evidence seized from the car and affirmed this court’s suppression of the bag of money found in the apartment. In remanding the case to this court, however, the Court of Appeals raised the question of whether the police officers were justified in making a warrantless entry into the apartment of defendant Cox, but declined to reach the issue thus raised. Though the Court did not reach (fol. 6) the issue of the warrantless entry, the footnote to the Opinion indicated that the Court had serious reservations about ' the legality of such an entry. United States v. Shye, 473 F.2d 1061 (6th Cir. 1973).

The remand spawned a second motion to suppress, grounded on the proposition that the warrantless entry of Cox’s apartment and arrest were illegal and, therefore, that the admission of any evidence that could be deemed a fruit of that arrest would be in derogation of the defendants’ Fourth Amendment rights.

On April 24, 1973, a second suppression hearing was held at which the following witnesses testified: Agent Rodgers of the F.B.I., who testified concerning the events leading up to the opening of the apartment door (he was not at the door when it was opened); Officer Luther Summers, who testified about another warrant for the arrest of defendant Shye that was outstanding at the time of the arrest in question; F.B.I. Agent Thune, who testified about his trip from the apartment downtown to obtain a key to the apartment and to the fact that the key would not work; and other agents who testified concerning the taking of the defendants’ statements after the arrest and about the circumstances surrounding the taking of the $10 bill from defendant Shye.

Having recited the pertinent facts and the procedural history of this case, it now remains to determine (fol. 7) whether, on these facts, the warrant-less entry of the apartment and the arrest of its occupants were illegal as violative of the Fourth Amendment to the United States Constitution. This determination requires, initially, the drawing of certain factual conclusions from the evidence in this case. These findings are set forth below.

First, the court is of the opinion that it cannot be said that the law enforcement officers knew that there was anyone in the apartment in question until the door was opened. Although they knew that the automobile parked near the apartment had been identified as the getaway vehicle and that Cox had been working on that car from that apartment the day before, this would not elevate the officers’ knowledge concerning whether the apartment was occupied beyond a mere suspicion. Moreover, this suspicion was rebutted to some extent by the fact that the officers had been unable to get a response to intermittent knocking and had heard no sound from inside at all. The fact that the agents were demonstrably thinking in terms of a search warrant and search, rather than an arrest, lends credibility to this conclusion.

Thus, it is reasonable to conclude that the primary concern of the officers was to get into the apartment to search. They tried various ways to accomplish this purpose, some of these methods assuming the presence of the occupants and some assuming their absence. They tried knocking on the door, tricking the defendants out of the apartment through loud talk about sending for a key, sending for and trying a key, and, finally, waiting for Mrs. Cox to return in order to obtain her “consent” to search the apartment. (fol. 8) Second, it is obvious to the court that there was a material and drastic change in the entire situation when defendant Stevenson opened the door; for, when the door opened, the focus of the investigation changed from that of search to arrest, the uncertainty as to how to proceed ended, the grains of information previously known to the officers crystallized, and, when the door began to close, an emergency confronted them. In other words, the legal alternatives they had previously pondered (and were in the course of resolving erroneously; see: Note 4, supra) were no longer material, having been superseded as a result of the turn of events.

Third, the changed situation must be characterized as an emergency situation by virtue of the information known to the officers before entry was gained. The officers knew that:

(1) the bank was robbed by four Black males who used a Ford Fairlane “fastback” to flee the bank;

(2) that same automobile was then parked only 40-50 yards away;

(3) the defendant Cox had been observed the day before working on that same car and going to and from the apartment in question;

(4) the defendant Cox leased and lived in that apartment;

(5) Cox was under investigation in connection with another bank robbery and was probably one of the men inside the apartment;

(6) more than one Black male could be seen inside the apartment when the door opened, and there had been no discernible activity from inside in spite of repeated efforts on the part of the officers to get a response;

(7) a white sack similar to the one used in the (fol. 9) robbery was found in the car identified as the get-away car, as well as a sawed-off shotgun (one of the robbers had carried a sawed-off shotgun) ; and

(8) at least two of the robbers had brandished pistols during the robbery and, presumably, still had the pistols.

The court is of the opinion, therefore, that in order to determine whether the warrantless entry was justified, the inquiry must focus on the moment the door was opened by defendant Stevenson. The court is further of the opinion that, at that juncture, the officers had probable cause to believe (amounting almost to a certainty) that the occupants of the apartment were the armed robbers for whom they were looking and that the situation required quick and decisive action to prevent possible bloodshed or a seige.

Thus, the precise issue before the court is whether the described “emergency” situation confronting the law enforcement officers, when the door to the apartment opened and then began to close, justified their warrantless entry into the apartment to arrest occupants.

As the court turns to this issue and the law pertaining to warrantless arrests, it is guided by the Sixth Circuit’s footnote, supra, which inter alia, cites the decisions which were apparently deemed controlling and which this court will follow. These are the decisions in the cases of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Vance v. State of North Carolina, 432 F.2d 984 (4th Cir. 1970); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc), and Wong Sun v. United States, 371 U.S. 471, 482-484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The starting point in discussing these cases is the decision in Warden v. Hayden, Supra, wherein the Supreme Court ruled that a warrantless entry of a dwelling would not run (fol. 10) afoul of the Fourth Amendment where the circumstances were such that “the exigencies of the situation made that course imperative,” and where delay in the course of an investigation would endanger the officers’ lives or the lives of others. Id., 387 U.S. at pp. 298-299, 87 S.Ct. at p. 1645. This principle was elaborated on and extended in Dorman v. United States, Supra, and Vance v. North Carolina, Supra.

In United States v. Dorman, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held that the entry of a dwelling for arrest purposes without a warrant is per se unreasonable unless certain “exigent circumstances” were present to justify the police in bypassing the magistrate. In other words, the warrantless entry of a dwelling to arrest was put on the same constitutional footing as war-rantless entry of a dwelling for a search. See: Coolidge v. New Hampshire, 403 U.S. 443, at 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Entry in both instances is per se unreasonable unless “exigent circumstances” justify the failure to obtain a warrant. The circumstances justify a warrantless entry, e. g., “exigent circumstances,” however, necessarily differ somewhat from an arrest situation to a search situation. In this regard, the Dorman Court went on to list seven considerations that would be material in determining whether the warrantless entry was justified. They are:

(1) That a grave offense is involved, particularly a crime of violence;

(2) the suspect(s) is (are) reasonably believed to be armed ;

(3) a clear showing of probable cause;

(4) a strong reason to believe that the suspect(s) is (are) in the dwelling;

(5) the likelihood of escape if not swiftly apprehended; (fol. 11)

(6) a peaceable entry, as opposed to a “breaking;” and

(7) the time of entry (day or night). Dorman v. United States, Supra, 435 F.2d at pp. 392-393.

The Dorman decision, then, is significant in that it placed search and arrest, following a warrantless entry of a dwelling, on the same constitutional footing and listed some of the important considerations relative to the absence or presence of “exigent circumstances.” The significance of Vance v. State of North Carolina, lies in the fact that the United States Court of Appeals for the Fourth Circuit followed the decision in Dorman with request to both the per se unreasonableness of warrantless entries of dwellings and the principal factors to be considered in determining whether “exigent circumstances” justified the entry without a warrant.

In the case at bar, a comparison of the facts with the considerations just cited point convincingly toward a holding that the officers’ entry of the apartment and arrest of the occupants therein without a warrant was reasonable in light of the exigent circumstances and, therefore, constitutional. A violent crime was involved and the suspects were believed to be (and were in fact) armed. The danger inherent in the situation when the door opened and began to close was further aggravated by virtue of the prolonged silence from within that had preceded the opening of the apartment door. There was a clear showing of probable cause to believe that the occupants of the apartment were guilty of the crime under investigation, and there was no doubt in the officers’ minds, after the door opened, that at least some of the men they believed had committed the robbery were inside. Although there was little likelihood of escape, due to the presence (fol. 12) of so many officers, there was, nevertheless, a substantial likelihood of bloodshed or an impending siege if quick action were not taken. The entry was accomplished without a “breaking” and it was not a nighttime entry. With these seven considerations as a point of comparison, the facts here make a stronger case for upholding the legality of the entry than those upheld in either Vance or Dorman.

It is not enough, however, to apply these seven considerations, for there is one distinguishing factor that was present in both Dorman and Vance that was absent in the instant case. In both Dorman and Vance, the officers had at least attempted to comply with the warrant requirement (In the former, the magistrate could not be found; in the latter, the warrant obtained was later held invalid because it was not issued by a detached magistrate.); whereas, in the case at bar, the officers consciously avoided any resort to the warrant procedure. The significance of the fact that the officers in the other two cases attempted to obtain a valid warrant is twofold: It reflects favorably on the conduct of the officers and pays homage to the judicial preference for warrants; but more importantly, it accounts for the time factor, which speaks to the holding in Warden v. Hayden that delay constituting danger to lives can make an otherwise unreasonable entry reasonable. Although it is unclear from the Dorman decision just how much importance is attached to the time or delay factor, a fair reading of that decision indicates that lack of undue delay incident to obtaining a warrant could vitiate the effect of the presence of the other seven considerations listed therein. Thus, the fact that the officers in the instant case did not even attempt to get a warrant could become a determinative factor.

On these facts, however, the court is of the opinion (fol. 13) that the distinguishing factor, alluded to above, does not compel a finding that the entry and arrest were illegal. This is because the event that led to entry here was an unexpected and intervening development, an event that, as previously noted, changed drastically the complexion of the entire situation and worsened the danger inherent therein. This intervening occurrence, the opening and subsequent closing of the apartment door on the heels of one hour of silence from within and in light of all the information at the officers’ disposal, not only strengthened the officers’ probable cause, but negates the time factor satisfied in Dorman and Vance by unsuccessful resort to the warrant procedure. If the officers in the present case had merely arrived on the scene, checked the car, proceeded to the apartment and immediately entered (with or without force), with no waiting and no intervening cause, this case would be more analogous to Vance and Dorman, and the failure to attempt to obtain a warrant herein might require a condemnation of the entry and arrest under those cases; but the fact is that the choice of whether to obtain a warrant, for purposes of this inquiry, confronted the officers when, and only when, (fol. 14) the door opened and began to close, which, in light of the other circumstances, virtually disposed of the time problem. In essence, a fair interpretation of the facts at bar indicates that entry in this case was not an action, as in Vance, Dorman and Hayden, but was a reaction to the defendants’ action. Thus, the factual distinction at issue does not compel a result different from that reached in Vance and Dorman.

Finally, the court feels that there is an additional factor in this case which relates to some of the factors previously discussed, the presence of more than one suspect, presumably armed, within the dwelling entered. This factor bears heavily on the reasonableness of the officers’ conduct and lends further support to the court’s view that Hayden, Vance and Dorman require that the legality of, and justification for, the entry here be sustained.

In summary, the court holds that, although the warrantless entry of a dwelling for the purpose of arrest is per se unreasonable absent “exigent circumstances,” it finds that the circumstances present in the instant case constitute “exigent circumstances” and compel the conclusion that the officers acted reasonably.

Accordingly, it is ordered that the motion to suppress be, and the same hereby is, denied.

It is further ordered that the case be set for trial at 9:00 a. m. on the 30th day of July, 1973.

/s/ Frank Gray, Jr.

CHIEF JUDGE

      . The inadmissibility of some of the items of evidence taken from the apartment was conceded by the U. S. Attorney; the rest were contested.

      . All other items seized in the apartment, whether suppressed or not, were not questioned by either side on appeal.

      . This testimony was introduced by the Government under an alternate theory seeking to uphold the arrest of defendant Shye, even if the arrest at the apartment was held invalid. The Government’s proof failed on this theory.

      . The court feels compelled to note here its grave concern regarding the officers’ obvious attempts to circumvent the warrant requirement. Indeed, if the arrest and search herein had been made in accordance with these plans, the constitutionality thereof would be extremely doubtful. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

      . It should be noted in this regard, especially in light of the previously cited footnote in the Court of Appeals’ decision of this case, that the court finds a crucial distinction between the facts at bar and those present in Wong Sun v. United States, Supra. This distinction lies in the purpose behind an arrest following suspicious conduct and/or flight (the closing of a door). In Wong Sun, the closing of the door meant avoidance of apprehension, whereas the closing of the door here meant danger to the officers’ safety. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Moreover, the closing of the door, of itself, in this case is not considered as establishing probable cause where none existed before.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ONE 1967 PORSCHE, MODEL 911-TARGA SERIAL NUMBER 500-677, MOTOR NUMBER 912-018, et al., Defendant-Appellant.
    No. 72-2678.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1974.

      Carl B. Shapiro, San Anselmo, Cal., for defendant-appellant.
    James L. Browning, Jr., U. S. Atty., Dennis M. Nerney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before KOELSCH, GOODWIN and WALLACE, Circuit Judges
   WALLACE, Circuit Judge:

Potter, the owner and operator of a 1967 Porsche Targa, was lawfully arrested for reckless driving and assault on an officer. Subsequently, while they were removing the Porsche from a restaurant parking lot at the request of the lot attendants, the arresting officers observed a brown leather pouch filled with hashish in plain view on the front seat of the car. The Porsche was seized and the government filed a complaint in rem requesting forfeiture pursuant to 49 U.S.C. §§ 781-788. The trial court, sitting without a jury, found that Potter had used the automobile to transport narcotics in violation of 49 U.S.C. § 781 and ordered that the automobile be forfeited to the government. Potter appeals and we affirm.

Potter, contending that the forfeiture procedures are in violation of the Constitution, argues (1) that the forfeiture itself violates due process, and (2) that the seizure without a hearing violates due process.

I. THE FORFEITURE AND DUE PROCESS

Potter’s first argument is based upon the concern over the constitutionality of forfeiture expressed in United States v. United States Coin & Currency, 401 U.S. 715, 720-21, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). The Court there indicated that a statute allowing property of the innocent to be forfeited might raise serious Fifth Amendment questions. However, the Court stated that the manifest intent of forfeiture statutes, when viewed in their entirety, is “to impose a penalty only upon those who are significantly involved in a criminal enterprise.” 401 U.S. at 721-22, 91 S.Ct. at 1045. Since Potter does not contend that the trial court erred in finding that he owned the Porsche and used it to transport narcotics, he does not fall within the ambit of the Court’s apparent concern for the innocent being deprived of their property because of the illegal acts of others. Consequently, we would not be justified in ignoring other Supreme Court as well as our cases which have consistently recognized the validity of forfeiture. United States v. Ryan, 284 U.S. 167, 52 S.Ct. 65, 76 L.Ed. 224 (1931); United States v. One 1967 Ford Mustang, 457 F.2d 931 (9th Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 59, 34 L.Ed.2d 92 (1972); D’Agostino v. United States, 261 F.2d 154 (9th Cir. 1958), cert. denied, 359 U.S. 953, 79 S.Ct. 739, 3 L.Ed.2d 760 (1959).

II. SEIZURE WITHOUT A PRIOR JUDICIAL HEARING

Potter’s second argument is based upon his conclusion that the government cannot interfere with private property rights without a prior hearing. As support for his position he cites Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); and Willner v. Committee, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). In none of these cases, however, has the Court held that the Fifth Amendment mandates a hearing in every situation where the government interferes with a private property interest. In each case the Court has carefully analyzed all the facts before it applied the due process talisman. As Justice Frankfurter, concurring in Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951), has said:

Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, “due process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.

It would be a grossly inconsistent application of Justice Frankfurter’s test to allow a deprivation of personal liberty by an arrest based on probable cause and yet not allow a deprivation of property without a prior hearing when there is probable cause to believe that the owner has used the property in violation of a statute providing for seizure. Certainly due process does not afford greater protection for property than it does for personal liberty. Due process does not entitle an individual to a hearing prior to arrest based upon probable cause. Similarly, due process does not entitle a person, who has used his property as an instrument of crime, to a hearing prior to seizure pursuant to statutory authority. To hold that due process requires a prior hearing in this situation would be to ignore the delicate process of adjustment entrusted to us by the Constitution. The interests of the government and the well being of society demand that the officers of the law be able to seize property used as an instrument of crime in violation of a statute providing for seizure. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Arias, 453 F.2d 641 (9th Cir. 1972); Lockett v. United States, 390 F.2d 168 (9th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 175, 21 L.Ed.2d 149 (1968); Sirimarco v. United States, 315 F.2d 699 (10th Cir.), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963).

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Marion KING, a/k/a Kruschev, Appellant.
    No. 73-1447.
    United States Court of Appeals, Eighth Circuit.
    Feb. 13, 1974.
    Rehearing Denied Feb. 28, 1974.

      Richard P. Jeffries and James A. Beckwith, Omaha, Neb., for appellant.
    William K. Schaphorst, U. S. Atty., and Michael L. Schleich, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Marion King was convicted for the sale of heroin by the United States District Court for the District of Nebraska on July 15, 1973. King contends on appeal, as he did below, that his conviction should be set aside because grand and petit jurors are selected in Nebraska exclusively from voter registration lists in violation of the Federal Jury Selection and Service Act, 28 U.S.C. §§ 1861-1871. He also contends that the exclusive use of the voter registration list as a basis for selecting jurors results in younger persons — those from eighteen to twenty-seven — being excluded from jury service because they have a traditionally lower rate of registration than voters as a whole.

The Jury Act is not violated by the use of voter registration lists. See, United States v. Whitley, 491 F.2d 1248 (8th Cir., 1974); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Gast, 457 F.2d 141 (7th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972); United States v. Bennett, 445 F.2d 638 (9th Cir. 1971), cert. denied, 404 U.S. 1023, 92 S.Ct. 700, 30 L.Ed.2d 673 (1972); United States v. Parker, 428 F.2d 488 (9th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970); Simmons v. United States, 406 F.2d 456 (5th Cir.), cert. denied, 395 U.S. 982, 89 S.Ct. 2144, 23 L.Ed.2d 770 (1969); Chance v. United States, 322 F.2d 201 (5th Cir. 1963), cert. denied, 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34 (1964); Gorin v. United States, 313 F.2d 641, 644 (1st Cir. 1963).

Indeed,

[t]he legislative history of the Jury Selection and Service Act indicates that Congress intended that most districts would rely on voter lists as the exclusive source of names for the master jury wheel and that only in exceptional eases would use of additional sources be required. * * *

The Jury System in the Federal Courts (Works of the Committee on the Operation of the Jury System of The Judicial Conference of the United States, 1966-1973), p. 104.

A statement by Congressman Kasten-meier, a member of the House Judiciary Committee, on the matter is typical of the views expressed by the members of the Committee:

" * * “Sources in addition to voter lists are to be used only where there is pronounced underrepresentation of a particular group.” * * *

The Jury System in the Federal Courts, supra at p. 104, n. 8.

An inadequate showing of a pronounced underrepresentation of younger persons was made here. Thus, the failure of the District to supplement the voter lists with younger voters was not violative of the Act.

Affirmed.


author: STEPHENSON, Circuit Judge. HEANEY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. James MARIHART et al., Appellants.
    Nos. 73-1326, 73-1327 and 73-1370.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 23, 1973.
    Decided March 6, 1974.
    Donald W. Sylvester, and Donald E. O’Brien, Sioux City, Iowa, for appellants.
    Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

The principal issue on this appeal concerns the extent to which inaccuracies or misrepresentations in an affidavit by a police official vitiates a search warrant issued pursuant thereto.

Defendants James Marihart, Edwin Kinsley and Michael Guerra were convicted by a jury verdict on four counts of violating 18 U.S.C. App. § 1202(a)(1), illegal possession of firearms by previously convicted felons. The defendants were sentenced to two years imprisonment on Counts I, II and III to be served consecutively, and two years imprisonment on Count IV, to run concurrently with the sentence on Count I.

This ease was originally set for trial on April 26, 1972. Prior to the trial date, the defendants filed a motion to suppress evidence which was granted by the trial court. On appeal that order was vacated and the cause remanded pursuant to an en banc hearing before this court. United States v. Marihart, 472 F.2d 809 (8 Cir. 1972). Although a part of the factual background of the case is set forth in that opinion, we will recount the facts relevant to the issues presented for our determination on this appeal.

On the evening of October 16, 1971, George Lorenger’s residence and firearms dealership was burglarized. Lor-enger sold guns in Iowa, Nebraska, South Dakota and California. The four firearms which comprise the four counts of the indictment had been purchased from a dealer in Faribault, Minnesota. On October 17, F.B.I. Special Agent Ox-ler became apprised of the fact that the defendants might be involved in the Lor-enger burglary and were driving a 1962 blue Ford station wagon. Oxler, at this time, was investigating a federal crime of possession of stolen money orders. On October 20, a vehicle matching the description given to Oxler pulled up to a residence and the occupants removed a large cardboard box from the rear of the automobile, which they had difficulty carrying into the residence. After they had vacated the premises, local police officers maintained a watch on the house for three to four hours. During the surveillance, Captain Frank O’Keefe of the Detective Bureau, Sioux City Police Department, based on the information supplied by Oxler and others, obtained a search warrant from a Sioux City Municipal Court Judge. Upon breaking into the residence in execution of the search warrant the police found several rifles and shotguns, including the four guns upon which the indictment rests.

Appellants initially contend that the trial court erred in overruling their motion to suppress evidence. They allege that the affidavit and oral testimony presented by Captain O’Keefe to the issuing magistrate in support of af-fiant’s request for a search warrant contained erroneous information.

■ Our earlier opinion disposed of the issue as to whether “probable cause” could be found based upon the information presented to the magistrate. We held that “probable cause” existed after applying the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

On this appeal, we are asked to scrutinize again the affidavit and the oral testimony and redetermine the “probable cause” issue in light of evidence adduced at the trial which the defendants allege raises some question as to the accuracy of the information supplied to the issuing magistrate.

During the course of the trial the court granted appellants a hearing on their renewed motion to suppress. They were allowed to present evidence (outside the jury’s presence) testing the accuracy of Captain O’Keefe’s affidavit and testimony. Special Agent Oxler and other law enforcement officials mentioned by Captain O’Keefe were examined exhaustively with respect to what information they had supplied Captain O’Keefe before his affidavit and testimony were supplied to the magistrate. After receiving the evidence the trial court denied appellants’ renewed motion to suppress.

The government contends that since there was no initial showing of wilful misrepresentation or bad faith on the part of the affiant, the affidavit (and testimony) in support of the application for the search warrant was not subject to impeachment. Further, that since the trial court did permit appellants during the course of the trial to make inquiry into the accuracy of the affiant, and an examination of the record discloses no material discrepancies, appellants’ claim is without merit.

Appellants contend that the record discloses material inaccuracies to such an extent that it can be said that the af-fiant did not have reasonable grounds for believing the truth of the allegations he made and therefore good faith is lacking. In the alternative they ask that we remand to the district court with directions to ascertain from affiant the exact state of his knowledge at the time of the signing of the affidavit.

The Supreme Court has not passed on the extent to which a court may permit an examination with respect to the validity of a warrant facially valid and when the allegations of the underlying affidavits establish “probable cause.” Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Kipperman, “Inaccurate Search Warrant Affidavits As a Ground for Suppressing Evidence,” 84 Harv.L. Rev. 825 (1971). We have not taken a definitive position on this issue but have indicated that under appropriate circumstances such an inquiry may be made. United States v. Bridges, 419 F.2d 963, 966, n. 4 (CA8 1969); Hunt v. Swenson, 466 F.2d 863 (CA8 1972); Lowrey v. United States, 161 F.2d 30, 34 (CA8 1947).

The trial court conducted a hearing in which appellants were permitted to examine into the truthfulness of Captain O’Keefe’s affidavit and testimony. Thus we need not now delineate the showing necessary to obtain such a hearing. The trial court weighed the testimony allegedly in conflict with the affidavit and denied the renewed motion to suppress. We are satisfied that there is substantial evidence to support the conclusion reached and no mistake was made. Lowrey v. United States, supra; United States v. McNally, 485 F.2d 398, 406 (CA8 1973) Gullett v. United States, 387 F.2d 307 (CA8 1967).

We have not as yet delineated the standards to be applied in testing the validity of a warrant where a hearing has been granted. In United States v. Bridges, supra, 419 F.2d at 966 n. 4, we indicated that fraudulent intent and materiality were factors to be considered.

The Seventh Circuit in United States v. Carmichael, supra at 2129, 489 F.2d 983, 988, has held as follows:

* * * Evidence should not be suppressed unless' the trial court finds that the government agent was either recklessly or intentionally untruthful. * * * Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. * * * However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.
The rule we announce today is intended only to test the credibility of government agents whose affidavits or testimony are before the magistrate.

The Fifth Circuit in United States v. Thomas, 489 F.2d 664 (No. 73-1403, CA5 December 19, 1973), 42 LW 2369 has held that “affidavits containing misrepresentations are invalid if the error was (1) committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made non-intentionally, but the erroneous statement is material to the establishment of probable cause for the search.” Accord, United States, v. Bowling, 351 F.2d 236, 241-242 (CA6 1965).

We adopt the Seventh Circuit standards and apply them to the case at hand.

We now briefly review the substance of the affidavit and testimony submitted to the issuing magistrate by Captain O’Keefe with particular attention to those portions claimed by appellants to be so inaccurate as to be untruthful.

O’Keefe in his affidavit recited that: the Lorenger home had been burglarized on October 16, 1971 and thirty-three firearms taken; he had received information from a reliable confidential informant that appellants were involved; they were then driving a 1962 blue Ford station wagon, 1971 plates Iowa 47-4556 registered to Ray Magnusson; on October 20, 1971 ("the date he obtained the search warrant) he was informed by Special Agent Oxler that the 1962 blue Ford station wagon had stopped at 1807 Jackson Street and three men believed to be the burglars previously named had unloaded a large pasteboard box which with difficulty was carried into the residence indicated. O’Keefe further testified that Special Agent Oxler and Sioux City Police Lieutenant Larson had received similar tips from the same informant; Sergeant Stewart, Sioux City Police, had received an identical tip from another informant. O’Keefe revealed the name of Oxler and Larson’s informer to the judge. The judge recognized this informer as a person who had previously supplied reliable information upon which the judge had acted and which proved correct. He relied upon the informant’s tip and made no effort to ascertain the credibility of Stewart’s informer. The warrant was issued and executed by the police officers who found in the apartment at 1807 Jackson, described in the affidavit, the four guns which are the subject of the indictment.

Appellants’ principle claims of inaccuracies in O’Keefe’s affidavit and testimony allegedly established by testimony of the officers pursuant to appellants’ renewed motion to suppress, are as follows: (1) O’Keefe stated to the magistrate that Special Agent Oxler and Lt. Larson received similar tips from the same informant, whereas Oxler testified that he never told O’Keefe the name of his informant. The record reveals Oxler testified “I would seriously doubt if I named a name. I think from past experience he [O’Keefe] was fully aware who my informant was * * *. We didn’t have to name names. It was known as of just a matter of fact between us.” (2) Appellants claim Lt. Larson testified he didn’t tell O’Keefe the name of his informant. The record reveals his testimony was: “I don’t believe so, but I am not sure.” (3) Appellants claim O’Keefe erred in stating Sergeant Stewart had called him 3 days before the search warrant was issued, whereas Stewart testified he had no contact with O’Keefe about an informant’s tip until the day the warrant was issued. A reading of this transcript, however, reveals Sergeant Stewart, at the time of his testimony, was not certain when he called O’Keefe and that “it is possible” he had called O’Keefe on Sunday, October 17, 3 days before the warrant was issued.

Other inaccuracies in a similar vein are urged by appellants. After examining the complete record we are satisfied inaccuracies are peripheral in nature and there were no material misstatements made in connection with the securing of the search warrant. The most that can be said is that the officers exhibited some uncertainty in recollecting when certain conversations with O’Keefe took place which is understandable considering that considerable time had elapsed. We are abundantly satisfied that there were no material misstatements made in securing the warrant and no absence of good faith shown. We are satisfied that the trial court properly overruled the renewed motion to suppress. The remanding of this matter for the interrogation of affiant O’Keefe is unwarranted.

Defendants also contend that the government failed to prove that the firearms in question were moving in interstate commerce or affecting interstate commerce. The United States Supreme Court has held that 18 U.S.C. App. § 1202 requires that when a person is charged with receiving or possessing firearms, the government must show that they were moving in interstate commerce or affecting interstate commerce. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In the Bass case, 404 U.S. at 350, 92 S.Ct. at 524, the court stated that the government may show a nexus with interstate commerce in a variety of ways. “For example, a person ‘possesses ... in commerce or affecting commerce’ if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce.”

In United States v. Pleasant, 469 F.2d 1121 (CA8 1972) we held that the government had failed to show directly or by inference that the weapon there involved was traveling in or affected commerce. In so doing we suggested the type of proof that might be used. Upon retrial the government offered proof of the kind suggested. We affirmed. United States v. Ronald X. Pleasant, 489 F.2d 1028 (No. 73-1343, CA8 January 9, 1974).

We are satisfied that the government’s evidence was sufficient to sustain its burden of establishing that the firearms in question possessed by appellants were moving in or affecting commerce. The firearms were purchased from a federally-licensed firearms dealer in Minnesota who sold firearms throughout the various states. The particular weapons were shipped from Minnesota to a federally-licensed dealer in Sioux City, Iowa, George Lorenger, who sold firearms in interstate commerce as well as in Iowa. One of the firearms arrived about two weeks prior to the theft, another was stolen the day it was delivered and before it was uncrated. One of the defendants who worked with the other two defendants in secreting the stolen firearms in the apartment where they were seized admitted to the break-in and theft of the weapons from Lorenger, the firearms dealer. ' The foregoing evidence was sufficient to support the jury finding that the weapons were moving interstate and that possession thereof affected commerce. See, United States v. Wiley, 478 F.2d 415 (CA8 1973); United States v. Glasgow, 478 F.2d 850 (CA8 1973); United States v. Mullins, 476 F.2d 664 (CA4 1973); United States v. Brown, 472 F.2d 1181 (CA6 1973).

The trial court’s jury instruction with respect to whether defendants’ possession of the firearms in question was in or affecting commerce was proper and no error was committed in refusing defendants’ requested instruction.

Defendants’ final contention that the evidence was insufficient to support the jury’s finding, as charged, that each of the defendants had previously been convicted of felonies, is without merit and need not be discussed.

Affirmed.

HEANEY, Circuit Judge

(dissenting).

I dissent for the reasons set forth in the dissenting opinion in United States v. Marihart, 472 F.2d 809, 816-817 (8th Cir. 1972).

I agree with the majority that the misrepresentations in Captain O’Keefe’s affidavit were not material. Thus, I do not believe that it is necessary to decide between the views expressed by the Seventh Circuit in United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), and the Fifth Circuit in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973). That choice should be made when we are presented with a case in which that issue has some bearing on the outcome. However, because the majority has chosen to express its view at this point, I must state that I view the rule followed by the Fifth Circuit as the preferable one. Under that rule, it makes no difference whether the misrepresentations were intentional or innocent, if, in fact, they were material.

      . Captain O’Keefe’s affidavit and a summary of his testimony before the issuing magistrate is set out in 472 F.2d at p. 810-811.

      . Affiant, Captain O’Keefe, was not called by either party in connection with the renewed motion to suppress made during trial. The parties stipulated as to the affidavit and the testimony given by Captain O’Keefe before the issuing magistrate.

      . At least two circuits have indicated that such a hearing should be held “when there has been an initial showing of falsehood or other imposition on the magistrate.” United States v. Dunnings, 425 F.2d 836, 840 (CA2 1969); United States v. Rael, 467 F.2d 333 (CA10 1972). The Seventh Circuit has recently ruled, in an en banc hearing that a defendant is entitled to a hearing to attack a “facially sufficient affidavit” if he initially shows either: “(1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material.” United States v. Carmichael, 489 F.2d 983 (No. 71-1492, CA7 October 9, 1973), 14 Cr. L. 2128, 11-14-73. The foregoing rule is limited to testing the credibility of government agents whose affidavits or testimony are before the magistrate.

      . We agree with the Seventh Circuit that completely innocent misrepresentation should not support suppression even if material. The primary justification for the exclusionary rule is to deter police misconduct. Furthermore, if the officer reasonably believes facts which facially indicate a crime has been committed, then even if mistaken, lie has probable cause for believing a crime has been committed. Carmichael, supra.

      . For further details see 472 F.2d at 810-811.

      . The trial court conducted an in camera hearing during which Special Agent Oxler, Lt. Larson and Sergeant Stewart testified. The transcript thereof was sealed and furnished to this court. It reveals that under order of the court Oxler and Larson each revealed the name of his informant. They were identical. Stewart revealed the name of his informant who was another person. Stewart also stated that after rereading his reports it was true that he had called O’Keefe on Sunday. (This was consistent with O’Keefe’s statement.) The testimony indicated the informants were fearful of their lives if their identity was revealed. We do not rely on the in camera hearing but do observe that this testimony further supports the government’s claim that no material inaccuracies were stated in support of the application for the search warrant.

      . § 1202. Receipt, possession, or transportation of firearms—
      Persons liable; penalties for violation (a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . and who receives, possesses, or transports in commerce or affecting commerce . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years or, both.

      . In determining whether defendants’ possession of a firearm was in or affecting commerce, you are to consider only what effect, if any, the defendants’ possession of the firearms at the time and place as alleged in the indictment had on interstate commerce, or if it had a demonstrated connection or link with interstate commerce. If you do not find beyond a reasonable doubt that the possession of firearms by the defendants at the time and place as alleged in the indictment affected interstate commerce or that said possession had a demonstrated connection or link with interstate commerce, then the plaintiff has failed to meet its burden of proof on this issue.


text:
    UNITED STATES of America, Appellee, v. Joey Lee MOON, Appellant.
    No. 73-1334.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1973.
    Decided March 6, 1974.

      Ralph Edwards and John J. Bahnak, Jr., St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., and Thomas Earl Loraine, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

       G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.

   PER CURIAM.

The defendant, Joey Lee Moon, was charged by juvenile information with possession of a firearm which had not been registered to him pursuant to the relevant provision of 26 U.S.C. § 5861 (d), which reads:

It shall be unlawful for any person—
******
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

The district court convicted him of violating such provision following a bench trial. Moon brings this timely appeal contending that § 5861(d), as applied, violated his Fifth Amendment right to due process. We reject this contention and affirm.

The facts disclose that the police, while investigating a motor vehicle accident, observed and removed a sawed-off shotgun from Moon’s automobile. Moon claimed that he found the gun and that he kept it for two weeks to “show off.” On these facts, the trial court rendered a guilty verdict.

. On appeal, Moon argues that since he had found an abandoned weapon, any prosecution against him for possession of the weapon would be unreasonable and, therefore, a denial of due process. We disagree.

In order to convict Moon, the government had to establish the following elements: (1) that defendant knowingly possessed the firearm; (2) that the object possessed was in fact a firearm; and (3) that such firearm was unregistered. United States v. Freed, 401 U.S. 601, 612, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring). The government made such showing here. The prosecution needed to prove no more.

In United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971), the court stated, in response to a charge that the statute was unconstitutionally vague, that “possession of such firearm, if unregistered, whether abandoned or not, is prohibited.” Moreover, in Milentz v. United States, 446 F.2d 111 (8th Cir. 1971), we said that “specific intent to violate the law [§ 5861(d)] is not a necessary element of the crime,” but we stressed that the act of possession of the weapon must be “willing and knowing.” Id. at 113, 114. The prosecution made a showing that Moon was not merely an innocent finder but rather a possessor of the weapon who kept the shotgun in his automobile for two weeks for “kicks” and to “show off” to his friends.

Thus, we hold the conviction proper and the appeal without merit.

Affirmed.

EISELE, District Judge, concurs in the result.


text:
    Emilio SALAS MOJICA, Plaintiff, Appellant, v. PUERTO RICO LIGHTERAGE COMPANY, INC., Defendant, Appellee.
    No. 73-1027.
    United States Court of Appeals, First Circuit.
    Argued Feb. 6, 1974.
    Decided March 4, 1974.
    Harry A. Ezratty, San Juan, P. R., for appellant.
    Manuel Gonzalez Gierbolini, San Juan, P. R., for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Appellant sustained injuries while working aboard a tug in the harbor of San Juan, Puerto Rico. The owner of the tug was insured under the Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A. § 21. His action against his employer for damages under the Jones Act and general maritime law was dismissed. 357 F.Supp. 339 (D.P.R.1972). Section 21 of Puerto Rico’s Act provides in part: “When an employer insures his workmen or employees in accordance with this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; . . . ” In view of that language and the intent of Congress to apply United States maritime law only in the absence of inconsistent Puerto Rico legislation, we have repeatedly held that the Workmen’s Accident Compensation Act, and not federal maritime law, is the exclusive remedy in suits against an insured employer for injuries sustained in the course of employment. See, e. g., Alcoa Steamship Co. v. Perez Rodriguez, 376 F.2d 35 (1st Cir.), cert. denied 389 U.S. 905, 88 S.Ct. 215, 19 L.Ed.2d 219 (1967); Waterman Steamship Corp. v. Rodriguez, 290 F.2d 175 (1st Cir. 1961); Fonseca Flores v. Prann, 282 F.2d 153 (1st Cir.), cert. denied 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 822 (1960).

The mere fact that the employer and owner of the tug, a Puerto Rico corporation, was a wholly owned subsidiary of a mainland corporation is not controlling. Cf. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). Nothing in the Supreme Court’s approach to shipboard injuries sustained by foreign seamen aboard foreign vessels in Ameri-can territorial waters, see Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), is inconsistent with our previous rulings concerning claims against insured employers resulting from shipboard accidents taking place within Puerto Rico territorial waters.

Affirmed.