author: LIVELY, Circuit Judge. McCREE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lawrence F. BECKER, Defendant-Appellant.
    No. 73-1208.
    United States Court of Appeals, Sixth Circuit.
    Argued June 14, 1973.
    Decided Oct. 5, 1973.

      David Kerwin, Detroit, Mich., for defendant-appellant; Neil H. Fink, Detroit, Mich., on brief.
    Robert D. Sharp, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before WEICK, McCREE and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This appeal is from a conviction for violation of 21 U.S.C. § 841(a)(1), possession of controlled substances with intent to distribute or dispense. Appellant waived trial by jury and the case was tried before the Court with the same judge presiding who conducted the hearing on a motion to suppress evidence. On appeal it is claimed that evidence consisting of 1,000 L.S.D. tablets was illegally seized and should have been suppressed by the district judge.

A recital of the facts is necessary. An undercover agent purchased a quantity of mescaline at a motel in Detroit at approximately 10:00 p. m. on March 3, 1972. He told the seller that he would be interested in purchasing more drugs, and memorized the telephone number given to the motel operator as the seller contacted his “man.” The seller was heard to say to someone he called “Larry” that he needed 30,000 more “hits” of mescaline and would be over in 30 minutes to pick it up. The seller described “Larry” as the number two man in Detroit for mescaline.

Shortly thereafter narcotics agents arrested everyone in the motel room where the sale had taken place. The undercover agent passed the telephone number to the arresting officers who verified it with the motel operator. By the time the location and name of the subscriber to the telephone number had been ascertained it was about 11:30 p. m. Based on information received from the telephone company a group of approximately eight agents went to appellant’s residence in Oak Park, Michigan, arriving shortly after midnight. After knocking on the door and identifying themselves, the agents forcibly entered Becker’s apartment.

Appellant was sitting on a couch in the living-dining room area of his apartment watching television. He was directed to stand next to a wall with his hands up against it. This location was approximately 12 feet from the corner of the couch where Becker was first seen, and was the nearest wall space free of furniture or openings. The arresting agent testified that he had no handcuffs and finally secured Becker with a belt. He stated that appellant kept turning around and “wasn’t being real cooperative.” Some four or five minutes elapsed before the prisoner was secured. Another agent who was in the same room said that Becker refused to follow orders — that he continued to turn around, kept his hands down instead of up and was constantly moving in a direction other than where he was told to remain. He described appellant’s conduct as “resisting” and said it was almost five minutes before the resistance ended.

There was a desk-type table three to five feet from where appellant was standing and the L.S.D. tablets were found in one of its drawers which had been closed. The agent who discovered the drugs stated, “There was a time when I secured the chest to make sure there were no weapons.” He said that when Becker had been subdued the other agent searched the prisoner while he checked the surrounding area for weapons. This witness testified that he had put his gun away before he began his search for weapons and that he was “no longer threatened by the situation.” However, since Becker had not been tied with the belt at that time, he considered that there was “still a potential danger.” It was admitted that Becker never tried to use physical force on any agent. In response to a question by Judge Kennedy the agent who subdued Becker stated that he was searching him when the pills were found and that he did not believe he had put the belt on appellant’s arms at that time. The agents stayed in the house for approximately 30 minutes and a general search of the premises was conducted.

The agents who arrested appellant and seized the tablets and other items in his home had neither a search warrant nor a warrant for his arrest. It was testified that the purpose in entering the premises of Becker was to arrest him and there was no advance discussion about a search. Before entering the house, each agent was assigned an area of the premises with responsibility for making sure that no other persons were present and to look for weapons within reach. Appellant testified that from the time the agents entered there was a great deal of noise from all parts of the apartment which indicated that a search was being conducted. He said he kept turning from the wall to try to see what was going on. The agent in charge stated that it would have taken too much time to obtain an arrest warrant at midnight in view of the fact that the seller had informed Becker over the telephone that he would pick up the order of drugs in about 30 minutes. From the telephone conversation the agents believed a crime was being committed by “Larry,” the person who agreed to furnish drugs, and that probable cause existed for an arrest.

The foregoing evidence was developed on a motion to suppress all evidence seized in Becker’s apartment. The District Court made the following findings: (1) The officers announced their presence and purpose a reasonable time before entering the premises. (2) The search of the chest three to five feet from the appellant was permitted as a search of the immediate area incident to arrest. Such a search could include closed drawers into which Becker could reach for either a weapon or evidence which he might be able to destroy. (3) Items seized in other parts of the house resulted from a general search which was not permissible. All evidence taken from other areas of the apartment was suppressed. (4) There was no prior opportunity to secure an arrest warrant, but probable cause did exist for the arrest of Becker. (5) The purpose of the officers’ going to Becker’s residence was to arrest him, and his arrest was not a ruse to search the premises.

Appellant maintains that his Fourth Amendment rights were violated by both the forcible entry and arrest without a warrant and the warrantless search of his home and seizure of his property. The record contains evidence which supports the finding of the district judge that there was no prior opportunity under the circumstances of this case for the officers to obtain an arrest warrant in view of the indication from the motel that the drugs would be picked up in about 30 minutes and the fact that it took longer than that just to determine the location and identity of the subscriber to the telephone with which the seller was connected. The finding that identification and purpose were announced a reasonable time before entry was made into appellant’s premises is likewise supported by the evidence.

While the finding that the officers had as their purpose the arrest of Becker, and that the arrest was not a mere ruse to conduct a search is not clearly erroneous, this matter deserves comment. The Constitution contemplates that searches will be made upon the basis of a prior determination of necessity by a disinterested magistrate. McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The warrantless search remains the exception which must be justified. Where the justification relied upon is that the search is a necessary incident to a lawful arrest the restricted scope of this exception must be observed. This is especially true where the search is conducted in a person’s home at night. Such warrants issued pursuant to Rule 41, Fed.R.Crim.P. are subject to the following limitation:

The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. Fed.R.Crim.P. Rule 41(c).

Since a nighttime search with a warrant requires more positive information than one conducted in the daytime, the Courts should be alert to prevent evasion of this requirement by resort to warrantless nighttime searches incident to arrest where the real purpose is a search and the arrest is only a pretext.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court analyzed the extent of the “search incident to arrest” principle as follows:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less. Id., at 762-763, 89 S.Ct. at 2040.

We must test the search of a closed drawer in the desk or table which was located three to five feet from appellant by these criteria. The question to be answered is whether, under the circumstances described by the witnesses, the closed drawer was in the area “from within which he might gain possession of a weapon or destructible evidence.” Id., at 763, 89 S.Ct. at 2040.

In United States v. Shye, 473 F.2d 1061 (6th Cir. 1973), we held that the District Court properly suppressed evidence consisting of a sack of money found between a water heater and an adjoining wall about four feet from where a suspect was positioned against a wall for search. There was a hallway between the suspect and the water heater which was in a closet-like depression in the wall. Furthermore a policeman stood between this closet and the nearest defendant. All suspects were lined up against a wall and “the officers had the situation completely under control.” Id., at 1063. Under these circumstances the District Court properly held that the sack of money was not within the immediate control of the suspects.

In the present case, the situation was not completely under control, since the appellant was still resisting and trying to move in directions other than those prescribed by the officers. He had not been handcuffed or bound when the pills were discovered and the officer who opened the drawer stated that his purpose was to secure the desk to make sure there were no weapons. Insofar as the record discloses no officer was positioned between appellant and the desk until Officer Mahon moved to the desk to look for weapons. Each case which applies the Chimel rule must be decided on its own facts. The facts distinguish this case from United States v. Shye, supra, and support the finding of the District Court that the evidence in question was the product of a search in the immediate area under the control of appellant at the time of his arrest.

The judgment of the District Court is affirmed.

McCREE, Circuit Judge

I respectfully dissent for two reasons, either of which requires the suppression of the evidence seized in Becker’s apartment.

In the first instance, the district court’s finding that the primary purpose of the entry into Becker’s home at the time of his arrest was not a ruse to permit an exploratory search of the premises is clearly erroneous. The majority opinion characterizes this determination as a finding not clearly erroneous but acknowledges that it deserves comment. The district court justified the holding on the ground that “[i]t was imperative that the arrest be made as quickly as possible if the identity of the party at the other end of JACOBONI’S telephone conversation was to ever be established with sufficient certainty.” Apart from the fact that it was not established that there was anyone at the other end of Jacoboni’s telephone conversation, the district court’s reason indicates the heuristic nature of the enterprise.

Although the finding is fully supported by the testimony of agent Finnegan, the last witness at the suppression hearing who testified on June 28, 1972, it .is contradicted by the testimony of the other agents who testified earlier on May 22 and whose testimony is not expressly discredited by the district court. Also, the organization and deployment of the ■raiding party betrays the true nature and purpose of the expedition.

Special Agent Herbert Ray, who was designated as custodian of any seized evidence, upon being asked whether there was any discussion “as to how the search was to be conducted,” replied, “When I got there my senior partner told me we’re going out to the address that Stepp found out about in the conversation — there are supposed to be 30,000 hits there and we’re going there to find out. That’s what I was told when I got in.”

The line of questioning continued, “You were going out there to find out?” He replied, “Yes.” The district court did not comment on this admission or explain why it was ignored or discredited.

But more fundamental to our inquiry is the manner in which the raid was organized. A party of 8 to 10 agents was dispatched to arrest the person in whose name the telephone at the number Jacoboni called was registered. The address was an apartment in one of Detroit’s northern suburbs. After a meeting in the Federal Building in downtown Detroit where various duties were assigned by Special Agent McKinnon, the agents, in four vehicles, rendezvoused at a gas station near Becker’s home where an additional 10 or 15 minutes were devoted to last minute preparations. Despite agent Finnegan’s denial that there was' to be a search (in contradiction of agent Ray’s testimony a month earlier), an advance party was sent to scout the area and agents were stationed at the front and rear doors of the house. Agent Ray was assigned to cover the back door and, instead of being instructed merely to secure it so that no one could escape, he was told “. . .to enter when we got the word from the people that had gone in the front door.” Ray testified that after entering the apartment, he remained about 25 to 30 minutes and “[l]ooked around, looked in closets, looked behind doors, looked between those blankets around the bed and talked with other agents. I talked with Mr. Becker a few minutes.” He admitted that he removed books from shelves and saw a table overturned. Indicative of the honesty of his admission that the purpose of the sortie was to effect a search was his volunteered statement when he acknowledged that he went upstairs, “I always manage to get around the rooms when I go in on an arrest.” More significant is agent Ray’s statement that he had been on the premises 5 to 8 minutes before the L.S.D. was seized (agent Mahon estimated the interval as between 5 and 15 minutes). If the sole purpose of the entry was to arrest Becker, the agents could have removed him from the house and they would have been miles away on the journey back to the Federal Building before this seizure. Becker could just as easily have been escorted out the door when agent Finnegan “grabbed him by the arm and directed him over to the wall to put his hands up against the wall to be patted down and searched for any weapons.” This maneuver positioned Becker spread-eagled against the kitchen wall and Finnegan searched him and found no weapons. The officers were so sufficiently satisfied that Becker was secured that they put away their firearms and fanned out throughout the house in what can only be characterized as a general search. Small wonder that Becker kept turning around to inquire whether the officers had a warrant. To seize on his constitutional query as evidence that he had not been secured in order to justify the search of the closed drawer of the desk 3 to 5 feet away placed Becker in an impossible dilemma. Unless he submitted to the unconstitutional search of his house, he invited the finding that he was endangering the officers and thereby justified the search the validity of which he sought to ascertain.

Chief Judge Cecil spoke for this court about arrests used as pretexts for searches in United States v. Harris, 321 F.2d 739 (1963):

An arrest may not be used as a pretext or subterfuge for making a search of premises without a search warrant where ordinarily one would be required under the Fourth Amendment. If, in fact, the primary purpose of forcibly entering a person’s home is to search for evidence with which to convict him of crime, the evidence so obtained is not admissible in court. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399; Abel v. United States, 362 U.S. 217, 225-226, 80 S.Ct. 683, 4 L.Ed.2d 668; Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Worthington v. United States, 166 F.2d 557, 566, C.A.6; Taglavore v. United States, 291 F.2d 262, 265, C.A.9. See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Henderson v. United States, 12 F.2d 528, CA.4; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (footnote omitted).

In Harris, a case with strikingly similar aspects, we made it clear that the total circumstances must be considered in determining the real purpose of the officers.

All of the agents of the Narcotics Bureau who testified said that they went out to the defendant’s apartment for the purpose of arresting him for violating the narcotics laws. The real purpose of the agents must be determined from all of the facts and circumstances surrounding the arrest of the defendant and the search of his apartment. The court is not bound to accept the purpose as stated by the agents as controlling.
-X- •* -X- -X* -X- X-
The manner of placing the agents at the entrances and the way Mr. De-Biasi signalled the men at the bed room door to enter as he gained entrance and knew the defendant was just inside the door is inconsistent with a primary purpose of arrest. If arrest had been the primary purpose of the agents in going to the apartment, there would have been no necessity for the three agents to forcibly enter the bed room door. If they had been placed there to prevent the defendant’s escape through that door, certainly they could have caught him on the way out.

Id. at 741-742.

Of course, Harris was a case in which the trial judge had made a finding that the arrest of the defendant was but a pretext for a search, and here the trial judge found to the contrary. Nevertheless, that decision is instructive of the elements of an arrest used as a pretext for a search and it is apparent that the district court here did not consider them.

We have assumed in the past that the clearly erroneous standard of review applies to findings in a criminal case by a district judge considering motions to suppress evidence. United States v. Rose, 415 F.2d 742 (6th Cir. 1969), cert. denied, 396 U.S. 971, 90 S.Ct. 458, 24 L.Ed.2d 438 (1970), and in United States v. Breen, 419 F.2d 806 (6th Cir. 1969), we expressly stated that Fed.R.Civ.P. 52(a) sets forth the standard of review. See also, 2 C. Wright, Federal Practice and Procedure: Criminal § 375. We need not decide here the applicability of this standard because it is clear that the district judge merely accepted the testimony of one of the government agents, disregarded without explanation the conflicting testimony of the others, and did not consider at all the undisputed evidence of the physical disposition and assignment of the several agents as Harris, supra, requires. Accordingly, we are not bound to accept the findings of the district judge, as Chief Judge Hastings, dissenting in United States v. Ziemer, 291 F.2d 100, 103 (7th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 120, 7 L.Ed.2d 78 (1961), explained:

The issue is whether the Government’s evidence, taken at its full value, is sufficient to support the constitutional and legal conclusion that defendant consented to a search. Mr. Justice Frankfurter, dissenting in ' Davis v. United States, 1946, 328 U.S. 582, 599, 66 S.Ct. 1256, 1264, 90 L.Ed. 1453, noted:
“The district court’s finding that Davis voluntarily surrendered the documents is not one of those findings of facts which appropriately calls for our acceptance. When such a finding involves conflicting evidence or the crediblity of a witness, the advantage of having seen or heard a witness may be decisive. But here the issue is not as to what took place but as to the significance of what took place. And when a district court’s finding of a so-called fact is as interwoven as it is here with constitutional consequences, we cannot accept a finding whereby the constitutional issue is predetermined. We are not bound by findings that operate as cryptic constitutional determinations ■x- *»

The district court suppressed the items seized on the second floor although the search had commenced there before the L.S.D. tablets were found in the living room desk drawer. This conclusion, with which I agree, also required suppression of the tablets taken from the living room in the absence of a finding disassociating the purpose of the agents in the living room who reduced Becker to custody from that of the agents who went upstairs and unlawfully searched the closets and the bed clothes. The coordinated nature of the enterprise precludes such a finding and none was made. It is inescapable that the primary purpose of the agents from the beginning was not to effect an arrest but to conduct a general exploratory search that had not been authorized by a warrant. See Giacalone v. Lucas, 445 F.2d 1238, 1255-1258 (6th Cir. 1971) (McCree, J., dissenting).

But even if the primary purpose of the officers was not to conduct a search but to effect the arrest, the search was constitutionally impermissible. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court emphasized that warrantless searches, whether or not incident to arrest, were the exception, not the rule, and that only the exigencies of preventing harm to the arresting officers, the escape of suspects, or the destruction of evidence justified search of the arrestee’s person and of the area within his immediate control. In United States v. Shye, 473 F.2d 1061, 1066 (6th Cir. 1973), we observed that only the existence of circumstances at which this limited exception was aimed determined the propriety of invoking it.

In this appeal, Becker had been searched and disarmed, and the officers felt sufficiently secure to put away their weapons. There were 8 to 10 armed agents in the house. Becker’s only activity after their entry was to turn away from the wall to inquire about the existence of a search warrant.

Agent Ray testified that when he first saw Becker (about 5 minutes before the L.S.D. was found), “He was secured. There were agents with him and I thought safe at that point.” He testified that none of the other agents had his -sidearm drawn when he went in and that he put his away. He concluded his direct testimony by reiterating his statement that Becker had been secured when he entered.

Agent Mahon, the other agent to testify at the May 22 hearing of the motion to suppress, found the L.S.D. in the desk drawer. He testified that Becker was “neutralized” within a half minute after he had been moved to the wall where he was searched. He testified, “I would think after a while once it was finally-determined there was no threat of physical harm, the weapons were put away.” Upon being asked by the assistant United States Attorney what he meant by “subdued”, Mahon replied, “What I mean is he was no longer in a violent nature or position to pull a gun or anything.” Mahon’s testimony makes it clear that he no longer apprehended any danger when he searched the chest:

Q. When was it that you located something in a chest, a chest drawer in time relation to when he was finally subdued and the belt was on and he was searched ?
A. As soon as I was reasonably sure that there was no need for my immediate attention to make sure he wasn’t going to be striking out, and I think it was more or less simultaneous upon his being searched that I checked the surrounding area for weapons.

The two officers who testified when the hearing resumed on June 28 added little except to observe that Becker’s arms had not yet been bound by a belt at the time the search of the desk took place. The district court’s finding that he “had not yet been patted down” is contrary to the testimony of all the officers who testified.

Applying Chimel’s rationale to these facts, we must conclude that the opening of the desk drawer was impermissible. As the majority opinion quotes, Chimel makes a distinction between a gun on a table or in a drawer in front of one who is arrested and desk drawers and closed areas in the room in which the arrest is made.

Because I would reverse for either of the reasons stated, I find it unnecessary to consider whether probable cause existed for the arrest of a telephone subscriber when an officer overheard the dialing of his number by a criminal who stated into the transmitter that he would be over to pick up some narcotics. I also find it unnecessary to determine whether the forcible entry into a dwelling house in the night time to effect a warrantless arrest can be made in the absence of exigent circumstances and a showing of probable cause that the person to be arrested is at the entered address. I also find it unnecessary to determine whether the entry here was made so precipitously after the announcement of the presence of the officers and their purpose as to constitute non-compliance with the requirement in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1967) that there must be a showing of refusal of admittance of the officer before a door may be forced. I mention these issues only to indicate that they are substantial and should be considered if the conviction is to be affirmed.

I recognize that this is a case where a search proved to be phenomenally productive. The prevention of the distribution of 1843 tablets of lysergic acid diethylamide (L.S.D.) is a fortunate occurrence for any community and the impulse to uphold the search and to congratulate the officers is difficult to resist. Nevertheless, however fortuitously rewarding a search may prove to be, we cannot abandon our responsibility as guardians of the Grail and blink at the circumvention of constitutional limitations by overzealous police officers. I would reverse and remand with instructions to quash the search and to set aside the conviction.

      . It appears that the other agents were excluded from the courtroom until their testimony was given but agent Finnegan had an opportunity to' know what had been stated a month before he was required to give his version of events.


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Fulton BEASLEY, Jr., et al., Defendants-Appellants.
    Nos. 73-1190—73-1194.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 10, 1973.
    Rehearing Denied Oct. 24, 1973.
    Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief) for plaintiff-appellee.

      K. Nicholas Wilson, Oklahoma City, Okl., for defendants-appellants Beasley, Gentry, Jones and Bates.
    I. H. Kaiser, Denver, Colo., for defendant-appellant Green.
    Before CLARK, Associate Justice, McWILLIAMS and DOYLE, Circuit Judges.

       Associate Justice, United States Supreme Court, Retired, sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

This is a heroin prosecution in which the several defendants were charged with conspiracy to violate 21 U.S.C. § 174 prohibiting the transportation, concealment and sale of narcotic drugs. The cause is before this court for the second time. Our first consideration of it resulted in a reversal based on the fact that the thirteenth juror had not been removed prior to retirement of the jury and was thus present during preliminary deliberation. United States v. Beasley, 464 F.2d 468 (10th Cir. 1972). The main issue on this appeal, namely, validity of the arrest warrant, was presented in the prior ease but was not considered. The cause was retried in November 1972 and again the case resulted in conviction.

The arrest of Beasley, Gentry, Green and Bates took place December 11, 1970. That of Jones occurred on January 13, 1971. The complaint presented by a federal narcotics agent, one Kelly Don McCullough, is the area which is primarily the embattled one. This complaint sets forth 25 overt acts evidencing the conspiracy. However, 23 of the 25 acts described conduct of persons other than the defendants.

Annie Yel Britt’s testimony showed that she arrived in Oklahoma City shortly before the arrest in November 1970 and took up residence in the Canton Hotel where her arrest occurred. She met defendant Ernest Eugene Bates at the Canton Hotel. She added that she couldn’t remember how she met Bates— “like we was all living in the same hotel together.’’ She further testified that she and Bates sold heroin for Beasley.

Another significant item of evidence was a black briefcase which was found in Beasley’s hotel room by the landlord, a Dr. Youngblood. This brief case contained numerous capsules of heroin together with a quantity of aluminum foil which had Beasley’s fingerprints on it.

The witness Britt testified at some length concerning her relationships with the other defendants including the sale of heroin. She described particularly delivery of some capsules of heroin by Gentry for the purpose of sale and also described the sale of these capsules at the Canton Hotel where she was living. She also testified that her selling activities were primarily for the benefit of defendant Beasley. In each instance when she was furnished heroin she sold a quantity of it and was permitted to retain a quantity for her own use. At the time of the arrest of -defendant Bates the witness Britt was with him in his room at the Canton Hotel.

It is not easy from a careful scrutiny of the record to ascertain the exact circumstances of the several arrests. It would appear, however, that Annie Vel Britt and the defendant Bates were arrested as indicated above in Bates’ room at the Canton Hotel. Beasley was arrested at the Youngblood Apartments. It appears that Beasley had an apartment in that building and also a room in the adjacent distinct building, the Youngblood Hotel. The briefcase had been in his hotel room in the Young-blood Hotel and Dr. Youngblood produced it from there. Presumably the other defendants were arrested in the vicinity of the Canton Hotel, although this is not clear from the record.

We are given to understand that all of these people were arrested as part of the same transaction and at about the same time. The source of all this information is McCullough, the narcotics agent.

As mentioned above, we are called upon to determine, first, the sufficiency of the complaint upon which the arrest warrant was based and, secondly, whether the briefcase containing heroin which Dr. Youngblood found in the hotel room of Beasley was rendered inadmissible as a result of the arrest and, finally, whether the testimony of Annie Vel Britt was inadmissible as having been the product of an illegal arrest.

I.

We conclude that the complaint was indeed deficient. It was nothing more than allegations containing conclusions of fact which described the offense. There was a general verification signed by Kelly Don McCullough, but it made no reference to the source of the information, that is, whether it was based on personal knowledge or was derived from informants who were reliable or showed the basis for their reliability.

The Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ruled that the complaint must not only set forth facts establishing the commission of an offense under federal law, it must also present facts evidencing probable cause to authorize the issuance of a warrant. Following this the Supreme Court held in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) that where a complaint or affidavit is not shown to be based on personal observation of the complainant or affiant, the magistrate must first be informed of some of the underlying circumstances on which the informant has based his conclusions and on which the affiant has determined that the informant was credible and his information reliable. If the magistrate doubts the reliability of the informant, he is obligated to consider whether there is corroborating evidence. The inquiry is whether the tip, even when parts of it have been corroborated by independent sources, is as trustworthy as a tip which satisfies the Aguilar case without independent corroboration. These cases contemplate that there will be either an explanation of the method of gathering the information or else the tip must describe the accused’s criminal activity in a manner which will furnish an inference or conclusion that the complainant has a substantial basis for his action and is not relying on rumor. The complaint in Spinelli was held inadequate because of the failure to furnish an explanation.

The Supreme Court followed the Spinelli-Aguilar pattern in Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1972). There again it was reiterated that the complaint based on an informant’s tip containing conclusions as to the defendant’s unlawful act was insufficient.

In the earlier case of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the arresting officer had supplementary information which he presented to the magistrate. In our case there was no such supplementary information and in such a situation this provides no help to the magistrate and does not bolster the insufficient complaint. See Whitely v. Warden, supra.

Conversely, when the affidavit provides a detailed description of the defendant’s alleged illicit activity and when the details are in part corroborated by independent information disclosed to the magistrate, a reasonable basis exists for the magistrate to make a finding of probable cause. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Holliday, 474 F.2d 320 (10th Cir. 1973); Leeper v. United States, 446. F.2d 281 (10th Cir. 1971). The context in which this issue arises generally is that of a search warrant. However, the Supreme Court has made clear that the arrest warrant is subject to the same careful scrutiny and has to pass the muster of the Fourth Amendment. See Giordenello v. United States, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

The complaint which is here presented is palpably inadequate and invalid in that it sets forth neither the evidence nor the source of any information which the agent had. Moreover, the allegations are not such that the evidentiary facts can be gleaned from them. Thus, it does not even satisfy formal requirements nor does it appear from the record that supporting or supplemental information was offered to the magistrate.

As noted above, there was no corroborating evidence presented either within the four corners of the complaint or orally. Therefore, neither Rules 3 or 4 of the Federal Rules of Criminal Procedure nor the Fourth Amendment were satisfied.

II.

As a result of the ruling which we have given above, we now consider the further argument of the defendants that the evidence of Britt and the mentioned briefcase were tainted as a result of the arrest pursuant to a faulty warrant.

First, we consider the testimony of Britt. We note at the outset that since Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the sanction for obtaining evidence in violation of the Constitution is exclusion and under present law it is immaterial whether the evidence is tangible (demonstrative) or testimonial. If it comes to light incident to an unconstitutional invasion and its use is an exploitation of that illegality, its use must be prohibited. We must consider then whether the illegal arrest in the case at bar tainted the questioned evidence, whereby it can be regarded as fruits of the illegal arrest.

Defendants rely on the famous case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), wherein testimony or statements were first equated to tangible evidence in terms of being regarded as “fruits of the poisonous tree.” Involved first was a statement made by one Toy incident to an illegal arrest. The statement of Toy led to the arrest of one Yee and the seizure from him of heroin. Neither the heroin nor Toy’s statement could be used against him, so it was ruled, since both items of evidence stemmed from and were the product of the illegal arrest of Toy. The words of Justice Brennan explain the essential nexus as follows:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

371 U.S. at 487-488, 83 S.Ct. at 417.

The Wong Sun facts are complicated and the unusual names of the actors make it difficult to identify the parties. Because of this we have appended a columnar summary of the case to simplify the presentation of its scope and extent, whereby the mysteries resulting from its complicated facts will not be exploited. Thus, the crucial test is exploitation of illegality. Based on that test our case is not governed by Wong Sun. Although the witness Britt was arrested on the same occasion as the defendant Bates, it does not follow axiomatically that her testimony at trial is thereby tainted. Indeed, the evidence she furnished being witness testimony seems on its face to differentiate it from drugs, for example, or even confessions or admissions. However, we do not follow this categorical test, for there may be circumstances in which testimony could be exploited and tainted and some decisions have recognized this. See United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967), which is closely analogous to this one. The court there ruled in essence that the testimony of the accessory was separate from the illegal arrest in fact and in law. Indeed, ordinarily when the testimony of an accessory is used there would often exist grounds for ruling that the giving of the testimony results from the accessory’s desire to help himself or herself. Thus, the exercise of human volition intervenes and it is not the product of the unlawful arrest. Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310 (1966); United States v. Evans, 454 F.2d 813 (8th Cir. 1972). See also, United States v. Fallon, 457 F.2d 15 (10th Cir. 1972), wherein we pointed out that the “but for” test of causation is not the governing one. Wong Sun recognized this. This reasoning is in line with other Supreme Court decisions. Thus, in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), it was recognized that evidence can be purged of the primary taint where the knowledge of the incriminating facts had been obtained from “an independent source” and also where the connection has become “so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).

In our case Britt was an accessory, and although she was caught in the net which also caught Bates, there was apparently an independent basis for arresting her. She was first charged with prostitution and some three days afterward was charged with the instant offense. Her decision to testify came some three days after the arrest, and this time separation, together with the other circumstances, creates a high degree of probability that she exercised her own volition which leads us to conclude that there was no exploitation of the illegal arrest.

III.

The briefcase furnished by Beasley’s landlord, Dr. Youngblood, was clearly admissible. Defendants maintain that Dr. Youngblood’s discovery of the briefcase was incident to the illegal arrest. The government argues that Youngblood entered Beasley’s room to clean it and make sure it was in proper order for the next guest. Youngblood testified that while cleaning he found the briefcase in a bureau drawer. He did not even open the briefcase but forthwith delivered it to the officers.

Evidence obtained by a private individual is not the product of a government search and is not subject to exclusion under the Fourth Amendment. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). A discovery similar to that here present existed in Duran v. United States, 413 F.2d 596, 608 (9th Cir. 1969). There heroin was discovered by a landlady while cleaning the defendant’s room. The court recognized that this was a “private search” and said:

Mrs. Wise entered the room for her own purposes; to clean it and prepare it for the next occupant. She was not asked by the police officers to inspect or search the room, and there was no police participation of any kind in the search or the discovery.

413 F.2d at 608.

The Youngblood discovery is exactly the same and, therefore, there is not any taint. Accordingly, we need not even consider whether there are circumstances which resulted in a purge.

In sum then Britt’s testimony was admissible because it was legally remote from the illegal arrest and proceeded on an independent basis. The briefcase was privately discovered and was not illegally obtained.

We have examined the other points raised and we are of the opinion that they are all lacking in merit.

The judgment of the district court is affirmed.

APPENDIX

APPENDIX — Con’t

In Summation:

1) Statement of Horn Way ruled inadmissible as insufficient to furnish probable cause for the subsequent arrest of Toy.

2) Statement of James Toy ruled inadmissible as “fruit” of Toy’s illegal arrest.

3) Heroin obtained from Johnny Yee ruled inadmissible only as against Toy as “fruit” of Toy’s illegal arrest.

      . 21 U.S.C. § 174 was repealed by Pub.L. 91-513, 84 Stat. 1291, Title III, § 1101(a) (2) (4), October 27, 1970. However, defendants’ arrest and alleged violation • of the statute preceded the effective date of its repeal, so that 21 U.S.C. § 174 is still applicable in this case.

      . The complaint alleged that 29 persons were participants in the conspiracy to violate 21 U.S.O. § 174. Two indictments were returned. One involved the defendants in this case. The other led to a separate prosecution of the other co-conspirators in United States v. Edward Lee Thomas, et al., No. CR-71-55 in the U. S. District Court for the Western District of Oklahoma.

      . Information having been obtained from one Horn Way who was not shown to have been reliable resulted in Toy’s arrest lacking probable cause.

      . Justice Brennan’s formula was a paraphrase of language of Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182 at 183 (1920).

      . In Fallon we said :
      In tlie present case the succession of events which led to the giving of incriminating admissions by the defendant was unlike the statement in Wong Sun which was part of the breaking and entering. Here the statements were independent of the arrest and remote (from tire original stop and check). To be sure, the admissions would not have been obtained had the defendant not been stopped and detained. However, we do not read the Wong Sun case as holding that a “but for” factual connection is legally sufficient. The admissions were not products of and did not flow from the circumstances of the arrest.
      457 F.2d at 19-20.

      . The defendants other than Bates lack standing to even raise this taint issue. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Galvez, 465 F.2d 681 (10th Cir. 1972).

      . See Carpenter v. United States, 463 F.2d 397 (10th Cir. 1972); United States v. Tyler, 459 F.2d 647 (10th Cir. 1972); United States v. Fallon, 457 F.2d 15 (10th Cir. 1972); United States v. Holsey, 437 F.2d 250 (10th Cir. 1970); Green v. United States, 386 F.2d 953 (10th Cir. 1967). See also United States v. Kennedy, 457 F.2d 63 (10th Cir. 1972).

      . Dr. Youngblood owned both an apartment building and a hotel, which were adjacent to each other and separated by a fire wall. Defendant Robert Beasley was renting both an apartment and a hotel room when the arrest occurred. The arrest took place in Beasley’s apartment, but Dr. Youngblood found the briefcase in Beasley’s hotel room.


author: PER CURIAM:

text:
    ASSOCIATION OF NORTHWEST STEELHEADERS (NORTHWEST STEELHEADERS COUNCIL OF TROUT UNLIMITED) et al., Plaintiffs-Appellants, Department of Fisheries et al., Intervenor Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants-Appellees, Inland Empire Waterways Association, Amicus Curiae. ASSOCIATION OF NORTHWEST STEELHEADERS (NORTHWEST STEELHEADERS COUNCIL OF TROUT UNLIMITED) et al., Plaintiffs, Department of Fisheries & Department of Game, State of Washington, Intervenor Plaintiff-Appellant, Arthur Solomon, Jr., et al., Intervenor Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants-Appellees, Inland Empire Waterways Association, Amicus Curiae.
    Nos. 72-1428, 72-1430.
    United States Court of Appeals, Ninth Circuit.
    Sept. 21, 1973.

      Lawrence Cary Smith (argued), of Smith, Smith, & Smith, Spokane, Wash., Samuel W. Fancher, Tacoma, Wash., for plaintiffs-appellants.
    Dean C. Smith, U. S. Atty. (argued), Robert M. Sweeney, Asst. U. S. Atty., Spokane, Wash., Cameron Sherwood, of Sherwood & Tugman, Walla Walla, Wash., for defendants-appellees.
    Before DUNIWAY and HUFSTEDLER, Circuit Judges, and KELLEHER, District Judge.

      Honorable Robert J. Kellelier, United States District Judge, Central District of California.

   PER CURIAM:

Plaintiffs initiated this action seeking to enjoin further dam construction on the lower Snake River and to compel defendants to comply with certain federal laws, all of which allegedly imposed on defendants statutory duties which they are allegedly ignoring in the construction of the dams. Shortly after the complaint was filed ten individuals intervened seeking the same relief as the original plaintiffs. The State of Washington, through its Departments of Game and Fisheries, also intervened but sought only a declaration of the duties of the defendants under the provisions of the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq. which deals with the effect of dam construction on fish and wildlife. Amended complaints were filed by both the plaintiffs and the intervenors and the defendants moved to dismiss those complaints on several grounds, among which was the contention that the complaints were actually suits against the United States which is not subject to suit absent its consent, and since no consent had been given, sovereign immunity barred the action. Thereafter, the State of Washington moved for summary judgment. Oral argument on both the motion to dismiss and the motion for summary judgment were heard together.

Citing Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963), for the proposition that—

“The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ Land v. Dollar, 330 U.S. 731, 738 [, 67 S.Ct. 1009, 91 L.Ed. 1209] (1947), or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act’.”

the trial court found lack of jurisdiction and dismissed the action.

The trial court distinguished the cases cited by the appellants on their facts, finding that the Corps of Engineers was acting pursuant to the direct mandate of Congress while in the appellants’ cases the involved agency was given discretionary power and the claims were that this power was being abused.

On appeal appellants assert that all necessary facts have been alleged to bring them within the recognized exceptions to the doctrine of sovereign immunity. As was recognized in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969), when the essence of an ap7' pellant’s ease on the merits requires determination of whether federal officials have exceeded their authority or have exercised that authority in a void manner, the action falls within the exceptions to sovereign immunity. Clearly, the allegations of the appellants require such resolution and, therefore, fall within the exceptions.

However, as the appellee urges, when the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm, the action must fail notwithstanding allegations falling within the recognized exceptions to sovereign immunity. State of Washington v. Udall, supra, at 1318 (interpreting Larson v. Domestic and Foreign Commerce Corp., 337, U.S. 682, 691 n. 11, 69 S.Ct. 1457, 93 L.Ed. 514 (1949).

The trial court’s finding of lack of jurisdiction seems premised upon the prayer of plaintiffs-appellants and the individual intervening plaintiffs-appellants for enjoining further construction of Lower Granite Dam. However, the intervening plaintiff-appellant State of Washington requested only a declaration as to the meaning and application of the Fish and Wildlife Coordination Act. Moreover, the trial court’s Memorandum Opinion suggests only inferentially that the dismissal of the plaintiffs-appellants and the individual intervening plaintiffs-appellants was based upon a finding that the relief they sought would work an intolerable burden on governmental functions which outweighed any private harm. Such a suggested finding will not support affirmance premised upon Larson and State of Washington v. Udall. Rather, an explicit finding that the relief sought, as alleged, will work an intolerable burden on governmental functions and that such burden outweighs the private harm, as alleged, is required.

In State of Washington v. Udall, this Court reversed the dismissal of the State’s complaint which was based upon a finding of sovereign immunity per Dugan, upon balancing the relative equities and burdens as alleged. However, on the record in this case in which, on appeal, the appellee asserts that the environmental impact statement required by the National Environmental Policy Act of 1970, 42 U.S.C. §§ 4321-4347, has been filed and the fish and wildlife mitigation and enhancement plan required by the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq., is being prepared, if not already completed, and in view of requirements of Larson and State of Washington v. Udall, it is appropriate that the case be remanded.

Of course, the dismissal might have been premised upon lack of standing. However, the record refutes that, possibility, for assuming that sovereign immunity is no bar to the action, each of the appellants sufficiently set forth allegations that the interests they seek to protect are within the zone interests to be protected by the statutes pursuant to which they seek to bring this action, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), that they, themselves, are among the injured, Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and that the dispute is presented in an adversary context and in a form historically viewed as capable of judicial resolution, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Thus, again assuming no sovereign immunity bar, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides a basis upon which appellees’ actions may be reviewed. Clearly, no such bar exists as to the intervening plaintiff-appellant State of Washington, and just as clearly the allegations of the plaintiffs-appellants and the individual plaintiffs-appellants fall within the general exceptions to sovereign immunity.

Accordingly, upon remand the trial court should determine whether each prayer of relief sought by the plaintiffs-appellants and the individual plaintiffs-appellants would constitute such an intolerable burden to governmental functions, when weighed against private harm, that dismissal of that prayer and underlying claims is proper. In considering this balance the trial court, in its discretion, may determine that such a finding is more appropriate after resolution of the merits rather than being based on the allegations of the complaint. Additionally, the trial court should determine whether all the appellants’ causes of action based upon alleged non-compliance of the National Environmental Policy Act of 1970 and the Fish and Wildlife Coordination Act are moot in view of the appellees’ assertions on appeal. Such other action as is necessary should also be taken.

Reversed and remanded for further proceedings in accordance with this opinion.

      . Dam construction is designed to provide slack water navigation from the mouth of the Columbia River to Lewiston, Idaho,— Clarkston, Washington area, flood control and additional power sources. The first of the dams, Ice Harbor Dam, was begun in January 1956 and completed in January, 1962. The second dam, Lower Monumental Dam, was commenced in 1961 and completed in January 1969. Little Goose Dam, the third dam, was begun in 1963 and completed in February 1970. Lower Granite Dam was begun in June of 1970, though a preliminary cofferdam was begun in July 1965; completion is scheduled for 1975. A fifth dam, designated Asotin, has been authorized but apparently plans for its construction have been “shelved” for the time being.

      . Appellants allege that the appellees have exceeded their statutory authority or have exercised their authority in a constitutionally void manner by:
      a. Failing to consider the irreparable injury and destruction of the environment in connection with the Lower Granite Dam pursuant to the Wildlife Coordination Act of 1958, 16 U.S.C. § 661, et seq., which x-equires the defendants to consult with the State of Washington and other agencies to determine whether or not mitigation of injury is feasible and to present mitigation plans to Congress;
      b. Failing to evaluate projects partially completed (viewing, we believe, the five dams as one project) and to advise Congress of the evaluation pursuant to the National Environmental Policy Act of 1969, effective 1970;
      c. Exceedixxg the authority givexx by Coxxgress in authorizing the construction of the Lower Granite Dam by having twice moved the authorized site and increased the height of the pool level without additional authority of Congress, which in turn necessitated the construction of dikes around the cities of Lewiston, Idaho, and Clarkston, Washingtoxx, in excess of those originally authorized and partially filling the existing river bed;
      d. Illegally relocating the Camas Prairie Railroad, necessitated by the construction of the Lower Granite Dam, resulting in the filling of thousands and thousands of yards of rock and gravel along the north river bank, drastically changing the existing environment and causing irreparable injury to the -wildlife without complying with the provisions of the National Environmental Policy Act of 1969 and the Wildlife Coordination Act of 1958 ; and
      e. Failing to comply with the provisions of the Water Pollution Control Act of 1967, 33 U.S.C. § 1151, et seq. Additionally, violations of other, more minor, acts are alleged.


text:
    FIRST STATE BANK, a corporation, Plaintiff-Appellant, v. Lester MAXFIELD et al., Defendants-Appellees..
    No. 73-1064.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 10, 1973.
    Decided Aug. 22, 1973.
    Rehearing Denied Sept. 12, 1973.
    George P. Burke of Van Steenberg, Myers & Burke, Kimball, Neb., for plaintiff-appellant.
    R. Michael Mullikin of Lathrop, Uchner & Mullikin, Cheyenne, Wyo., for defendants-appellees.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

Involved in this case is a claim by a bank based on a security transaction. The Bank’s arrangement was with one James W. Faden, deceased, a rancher in Banner County, Nebraska. Faden sold several lots of cattle through the Torrington Livestock Commission Company in Torrington, Wyoming, and the Bank’s suit alleged a security interest in the cattle. It sought to recover in conversion against the owners of the Commission Company and in an action for violation of the bond executed by the defendants and their surety. The trial court entered judgment in favor of the defendant Commission Company, that is, the auctioneer. The basis for the ruling was that the particular sales complained about were not subject to the security transaction between the Bank and Fad-en. The court ruled that the financing statement and the security agreement contemplated that the collateral was to be livestock used or purchased primarily for the farming and ranching operations of Faden in Banner County, Nebraska. The court further ruled that Faden was engaged not only in livestock growing but also had a distinct operation consisting of dealing in livestock, and that the cattle purchased and sold in the particular transactions were not encompassed by the security agreement' but, rather, were carried out incident to Faden’s livestock trading.

For practical purposes, this transaction started in November 1965, at which time Faden was indebted to the Bank in the amount of $38,360. He signed and delivered to the Bank a financing statement and security agreement. On the next day, November 9, 1965, the financing statement and security agreement was filed in the office of the Clerk of Banner County, Nebraska. A continuation statement was filed on August 14, 1970.

During this period the evidence established that there were approximatély ten transactions in which Faden sold cattle which may have been purchased with Bank funds. He pocketed the proceeds. During this entire period the principal of the debt was not reduced. However, Faden did pay the interest on it.

In issue here are four different cattle sales by Faden which took place starting in 1967 and continuing until Faden’s death in early 1971. On June 23, 1967, Faden purchased 79 head of cattle in Scottsbluff County, Nebraska. He obtained a loan on June 27 in the amount of $10,500 from the Bank in order to pay for these, but before applying for and getting the loan the cattle were sold. Faden consigned them immediately after purchase to the Torrington Livestock Commission Company, and on June 23 they were sold and the proceeds were deposited in Faden’s bank account in Scottsbluff National Bank, Scottsbluff, Nebraska. On December 18, 1967, Fad-en acquired 64 head of cattle in Wyoming and sold them in Wyoming. On May 8, 1968, two steers were sold by defendant Commission Company. These had been brought from Wyoming to Nebraska for their sale. They had been purchased on March 14, 1967, by the Livestock Commission Company, Chappell, Nebraska. There is a dearth of evidence establishing where these cattle were between March and May. Then, on October 29, 1969, the Commission Company sold some cattle which had been purchased the previous day from another commission company at Torrington, Wyoming and were never outside the State of Wyoming.

As a result of these transactions and others there was a total debt of $147,600 as of December 5, 1970. Following Fad-en’s death in January 1971, the Bank repossessed 102 cattle which were located on Faden’s land in Banner County, Nebraska. The proceeds from the sale of this herd reduced the debt to the Bank to $127,152.43.

The trial court made very careful findings of fact and conclusions of law in which it found that purchases of livestock by Faden on the dates here in question were carried out by Faden and the sales made at the auction barn of the Commission Company had to do with the four transactions here in question and were part of Faden’s business of trading livestock and were not incident to his farming and ranching operations in Banner County, Nebraska. The court also found that the Bank allowed sales to be made without first obtaining its permission.

It was also a fact, and the court also found, that the Maxfields, owners of the Torrington Livestock Commission Company, were unaware of the Bank’s interest in the cattle sold. They were conceded by the Bank to be entirely innocent parties. The court concluded that the Bank never acquired a security interest in the cattle here in question since it was the intent of the parties that the security interest would attach only to the livestock used in the farming and ranching operations in Banner County, Nebraska; that the Bank’s rights did not attach to those cattle which were used in Faden’s dealing activities.

The trial court also found that even if the Bank had an interest in the livestock, it waived this interest as a result of its course of conduct allowing Faden to sell the livestock and have the proceeds paid directly to him, relying on him to account to the Bank. As to the two groups of livestock brought into Wyoming from Nebraska, the court said that even if the Bank had a security interest in these that they were sold in such a manner as to create an exemption under the Nebraska law and that the security agreement would have no force and effect as to the two groups of cattle purchased and sold in Wyoming. The Nebraska statute cited by the court allows an auctioneer who has no notice of an outstanding security interest to sell property free of the lien. Neb.R.R. Stat.1943, § 69-109.01. The Wyoming statute relied on is Wyo.Stat. (Cum.Supp.1961) § 34-9-103(3).

We need not consider whether it was a waiver or whether the specific Nebraska or Wyoming statutes bar this action since we have determined that the Bank is not entitled to recover because the security agreement was not effective as to the cattle here in question, the cattle having been sold pursuant to Faden’s activity as a dealer and never becoming the property of the Bank.

In reaching this conclusion we recognize that generally where a mortgagee of personal property has a lien, an auctioneer who sells the property becomes liable in conversion. The problem here is, however, that the Bank did not have an enforceable security interest.

The requirement of § 9-203 of the UCC with relation to the signing of a security agreement was satisfied. Also, there was no deficiency in the description of the collateral. § 9-110. But on its face the security agreement provided that the debtor granted a security interest in livestock for farming operations rather than for “personal, family or household purposes,” or for “business purposes.” Thus, the security agreement evidences the intent of the parties to create a security interest in the livestock used in farming operations as opposed to “inventory.” See § 9-109. It is obvious that the Bank wished to take advantage of § 9-307 which provides that a buyer in the ordinary course of business takes free of a security interest created by the seller except where purchasing farm products from a person engaged in farming operations.

Here the Bank officer testified that the Bank believed that the purchased cattle in each instance were to be transferred to Faden’s ranch for fattening. Thus, it was anticipated that the cattle pledged would become farm products. It becomes clear therefore that the cattle in controversy would not come within this category; these were not subject to the security agreement.

We recognize that a bank or lender need not under existing law police his collateral. Cf. Benedict v. Ratner, 268 U.S. 353, 45 S.Ct. 566, 69 L.Ed. 991 (1925). Nevertheless, the agreement does not embrace collateral that has not been pledged. See 2 Gilmore, Security Interests in Personal Property, § 35.5, at 931-32.

The cattle involved in this controversy which were sold by Faden were found by the court to be cattle owned and used by Faden as a cattle trader rather than livestock owned and used in a ranching operation. The evidence was amply sufficient to support this finding. Since the Code authorizes that the principal use to which property is put should be determinative of its classification, we conclude that the cattle here in question were inventory, rather than farm products. As such, they were not part of the course of financing covered by the security agreement and the Bank has no right to recover the sales price from the appellees.

The judgment is affirmed.

      . In pertinent part this form statement provides as follows:
      Debtor, whether one or more, for consideration, hereby grants to Secured Party a security interest in the following property and any and all increase, additions, accessions and substitutions thereto or therefore (hereinafter called Collateral) :
      Livestock
      If marked here [x] Debtor grants a security interest in all similar property owned by Debtor during the time the obligations are outstanding, although such property may be acquired or be natural increase after the date hereof.
      If marked here jx¡ the security interest shall attach to all product and proceeds of Collateral, but Secured Party does not hereby consent to the sale of the Collateral.

      . On this the court found:
      That the Bank, from the period of 1965 through 1970, had engaged in a course of conduct whereby it permitted its borrowers whose loans were secured by livestock to sell their livestock from time to time as the borrowers chose and relied upon such borrowers, including Faden, to bring in the proceeds from such sales to be applied upon the indebtedness owed to the Bank. Furthermore, the Bank declined to exercise its right to require the borrowers to obtain the Bank’s written authority before disposing of said livestock.

      . Conclusion number 4 reads :
      James W. Faden was engaged in two distinct operations during the period from 1965 until his death, to-wit: (i) raising livestock and farming on his farm in Banner County, Nebraska; and (ii) buying and selling livestock on a short-term basis or otherwise described as the business of trading livestock.

      . As to this the court concluded (Conclusion number 6) :
      Even if the Bank had acquired a security interest in the livestock sold by defendant Torrington during said period of time, the security interest was of no force and effect because the two bunches of livestock bought by Faden in Nebraska and sold in Wyoming were sold by the defendant Torrington in such a manner as to exempt that defendant pursuant to Nebraska law from liability for conversion. R.R..S.1943, 69-109.01. Furthermore, the two bunches of livestock purchased and sold by Faden in Wyoming and which were never in Nebraska, were not the type of collateral for a secured transaction entitled to the protection of perfected security interests pursuant to Wyo. Stat. (Cum.Supp.1961) § 34-9-103(3).

      . 7 Am.Jur.2d, Auctions and Auctioneers, § 68 (1965); 18 Am.Jur.2d, Conversion, § 53 (1965).

      . See Uniform Commercial Code § 9-205.

      . See Official Comments 2 and 4 to § 9-109. See also First Nat’l Bank of Elkhart County v. Smoker, 286 N.E.2d 203, 209 (Ind.App.1972) (slaughtered cattle); 2 Gilmore, supra, at 710-715; Sorelle, Farm Products under the UCC— Is a Special Classification Desirable?, 47 Texas L.Rev. 309, 310 (1969); Comment, Problems in Agricultural Lending, 39 Colo.L.Rev. 352, 356-357 (1967).

        Compare Swift & Co. v. Jamestown Nat’l Bank, 426 F.2d 1099, 1102 (8th Cir. 1970); United States v. Mid-States Sales Co., 336 F.Supp. 1099, 1102 (D. Neb.1971).

      . See Tri-County Livestock Auction Co. v. Bank of Madison, 228 Ga. 325, 185 S.E.2d 393 (1971).


author: RONEY, Circuit Judge:

text:
    In the Matter of Raymond Chester MILLER, Bankrupt. Merrill T. LANDWEHR, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-3469.
    United States Court of Appeals, Fifth Circuit.
    Sept. 17, 1973.

      Merrill T. Landwehr, New Orleans, La., for appellant.
    George H. Becker, Asst. Regional Counsel, I.R.S., New Orleans, La., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Murray S. Horwitz, Attys., Tax Division, U.S. Dept. of Justice, Washington, D.C., Gerald J. Galling-house, U.S. Atty., New Orleans, La., for appellee.
    Before GOLDBERG, CLARK and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

The Trustee in Bankruptcy for Raymond C. Miller appeals from a decree of the District Court ordering the Referee to allow the filing of a tax claim by the Unitecf States against the Bankrupt estate. The Referee had denied the claim as being untimely filed. The case involves the effect of a Referee’s second notice of the first meeting of creditors which apparently inadvertently set a deadline for filing claims different from that established by the first notice. We affirm the decision of the District Court that the Government’s claim filed prior to the second date should be allowed, but on a different ground than that asserted by the District Court. We hold that the Referee had the power to extend the time for filing a Government claim, and that, having received a notice in the apparent exercise of that power, the Government was entitled to rely thereon.

The petition for bankruptcy was originally filed on January 31, 1968, in the United States District Court for the Southern District of Florida. On March 19 of that year the Referee in Bankruptcy mailed a notice to all creditors, including the Internal Revenue Service, informing them that the first meeting of creditors would be held April 5, 1968, and that the last day for filing proofs of claim against the Bankrupt estate would be October 4, 1968. At the meeting of creditors on the designated date the Referee determined that the proceeding should' be transferred to the United States District Court for the Eastern District of Louisiana for the convenience of all parties in interest, pursuant to Section 32 of the Bankruptcy Act, 11 U.S.C.A. § 55. On May 6, 1968, the proceedings were transferred. Subsequently, on July 18, 1968, the Louisiana Referee in Bankruptcy mailed notices to all creditors, including the IRS, which stated that a “first meeting of creditors” was to be held on August 6, 1968, and that the final date for filing proofs of claim against the bankrupt estate would be February 6, 1969. On January 27, 1969, prior to this Louisiana “last day” for filing proofs of claim but after the bar date set by the Florida Referee, the IRS filed the contested proof of claim in this proceeding.

The Referee dismissed tjiis claim as untimely, holding that the original bar date of October 4, 1968, was controlling and that the later bar date inadvertently established by his court’s notice was ineffective. In reversing the Referee’s determination, the District Judge held that the Florida court’s notice was rendered nugatory by the transfer of the matter to Louisiana, and that the later bar date established by the Louisiana court order was controlling. The IRS was allowed to file its claim.

We first examine the continuing effect, if any, of the notice issued by the Florida court prior to the transfer of the ease to Louisiana. There is a paucity of relevant authority interpreting the change of venue statute under the Bankruptcy Act. The analogy provided by decisions applying the general change of venue provision, 28 U.S.C.A. § 1404(a), is helpful. In Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 178 F.2d 866 (2d Cir. 1950), the court reaffirmed the proposition that when an action is transferred through a change of venue, it remains what it was: “all further proceedings in it are merely referred to another tribunal, leaving untouched whatever has been already done.” Id. at 868.

The District Court in Florida relinquished jurisdiction over the case when it transferred the matter to the Louisiana District Court. But the orders issued prior to the transfer continued as though the case were still pending in the original district. The transfer for the convenience of the parties simply brought the cause as it was to the transferee jurisdiction.

Since the October 4 bar date was still in effect at the time of the transfer, the question becomes whether the Louisiana District Court could, through its exclusive jurisdiction, alter that date by a subsequent order. Section 57n of Bankruptcy Act, 11 U.S.C.A. § 93(n) provides :

Claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed: Provided, however, That the court may, upon application before the expiration of such period and for cause shown, grant a reasonable fixed extension of time for the filing of claims by the United States .

Thus, the Court can alter the original bar date by a subsequent order at least insofar as it affects the Government. Although the IRS did not apply to the Court for an extension of time, the fact remains that the Court had the power to issue an order extending the time for filing claims in respect to the Government.

When the IRS Agent learned of the “new bar date” he believed the order was an extension granted by the Court. After a discussion with his supervisor, it was agreed he should rely on this new date and conduct his examination accordingly. It was because of this reliance that the tax claim was not submitted until January 27, 1969. The Government did not request an extension since under the new date there was sufficient time to gather the necessary information to file a claim.

It is now admitted by the parties and the Referee that the order extending the bar date was an inadvertent mistake. Neither the Referee nor the Trustee detected the difference in dates until after the Government had filed its claim. Should the Government be penalized for the Court’s error? The Trustee argues that it should because the IRS was dilatory in its investigation, was put on notice as to the apparent conflict in the dates, and has not attempted to collect its non-dischargeable tax claims by pursuing the Bankrupt during the five year period this bankruptcy has been pending.

The record set out in the margin above demonstrates that Agent Brown pursued the investigation with necessary-speed once his office was apprised of the action. The fact that the Government was put on notice of the two dates becomes inconsequential when it is realized that the Court had the authority to extend the date and the IRS relied on the apparent exercise of this authority.

Additionally, the Trustee was put on equal notice with the Government. Since he stands in a fiduciary relationship to all the creditors and has the inherent duty to keep them informed, the Trustee should have noted and clarified the discrepancy presented by the second court order. The Trustee concedes that the Government could have probably obtained an extension of time under Section 57n had it seen the necessity for it and requested an extension. The Government’s evidence indicates it could have met the October 4 deadline, if it knew it was required to do so.

The contention that the IRS has not independently attempted to collect the tax claim is of no help to the Trustee. The Government had a right to present its tax claim with the other creditors in the bankruptcy proceeding. It presented that claim relying upon a court notice which was ostensibly within the Court’s authority to make.

The general equity power existing in the bankruptcy courts is well established and has been traditionally recognized. Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966). Cautiously, this equity power has been employed to prevent an unfair result occasioned by the six-month period provision of Section 57n. In re Miracle Mart, Inc., 396 F.2d 62, 64 (2d Cir. 1968); In re Martin Edsel, Inc., 228 F.Supp. 538, 540-541 (D.C.N.H.1968). See Pepper v. Litton, 308 U.S. 295, 305 n. 11, 60 S.Ct. 238, 84 L.Ed. 281 (1939). An unfair result would obtain in the case at bar if the Government were not allowed to file its claim after reliance on the court order apparently extending the filing date. The District Court was correct in allowing the Government to file its claim.

The District Court found that the Government’s proof of claim was “amply sufficient prima facie evidence of a valid indebtedness and must be the basis of allowance of such claim.” The Government’s proof of claim was filed on IRS Form 2317, the usual form submitted by the United States for internal revenue taxes in bankruptcy matters. The sufficiency of filing through use of IRS Form 2317 has been upheld. In re Tyner, 301 F.Supp. 1234 (M.D.Ga.1969).

Affirmed.

      . See Ginsburg v. Mutual Life Ins. Co. of N.Y., 170 F.Supp. 212 (S.D.N.Y.1958). See also C. Wright, Federal Courts § 44, at 166 (2d ed., 1970).

      . The record of Agent Brown’s testimony before Referee Flanagan reveals the following: By Mr. Schaffer:
      Q Did you take any action to confirm this date [Feb. 6] ?

        A Yes, I did. I went to the records here in the building.
      Q The offices of the Referee?
      A Correct.
      Q And what did you find there?
      A I found the notice issued by, I believe, Judge Flanagan himself, extending the bar date to February.

      . Q Did you talk this over with any of your peers or superiors?
      A Well, when I received the notice on the extension of the bar date to February the 6tli of 1969, I discussed this with my group supervisor and tried to attempt (sic) whether or not this was a valid extension — should I rely — not whether it was a valid extension, but should I rely on this extension in my examination; and discussing it with him, he and I came to the agreement that I should rely on this.

      . The record demonstrates that Agent Brown was acting post haste to meet the October 4th deadline but relaxed his efforts when he learned of the Court order:
      By Mr. Schaffer:
      Q When you received the file pertaining to Raymond C. Miller, may we ask what was your first effort on behalf of the Service as regards that file?
      A When I received the file, I immediately tried to contact the taxpayer, . . .
      Q AYhat were you trying to do at this time with regards to the file on Raymond C. Miller? AArhat was your primary objective?
      A My primary objective was contacting the taxpayer to let him know that his income tax liability for the year ’66 was in question and to get him to submit all the necessary records I needed to verify that tax liability.
      Q May I ask, for the record, at what point in time, if you recall, was it that you asked for this collateral investigation [by the New York IRS office into records of the Bankrupt kept in that region] ?
      A It was in September.
      Q What part of September?
      A September — the first week of September — September the 4th, I believe. Now, I asked for this “collateral” and then I had to follow up on it.
      Q It seems to me, Mr. Brown, that you were doing a good bit of work in trying to locate records and what-not to crystallize any liability of the taxpayer for the first couple of weeks that you had the files. AVas there any reason for this — this speed that you showed?
      A Yes, because the bar date was October the 4th of ’68.
      Q Is it your testimony then that even up to the first week of September you were aware of an October 4th deadline for filing claims?
      A Correct.
      Q Can you tell us when approximately this knowledge came to you of the new bar date?
      A I would say sometime in September — ■ early September. When exactly, I couldn’t give you.
      Q When you first learned of this postponement formally from the records in the Bankruptcy Court offices, what was your reaction on your handling of the Raymond C. Miller case?
      A Well, at that time, I felt I can relax the speed at which I was trying to close the ease out somewhat to secure as much information as I possibly could.
      Q Did you have any contact with the Bankruptcy Court after you found out the bar date was set back to February?
      A No, I relied on this February 6th date. [I] t led me to believe that there was additional time in which I can attempt to secure additional information which I didn’t have at the present time.