Appeal from the United States District Court for the Eastern District of Illinois. No. 73-CR-32-E JAMES L. FOREMAN, Judge.
Swygert, Chief Judge, Kiley, Senior Circuit Judge, and Poos, Senior District Judge.*fn*
POOS, Senior District Judge.
Detectives Lester Anderson and Lawrence Brewer of the East St. Louis Police Department, detached to the St. Louis Office for Drug Abuse Law Enforcement, initiated surveillance of a house in accord with a request by the East St. Louis Chief of Police. The residence, located at 741 North 31st Street, East St. Louis, Illinois, was surveilled during the hours of 11:30 a.m. to 9:30 p.m. on the date of January 31, 1973. Throughout this prolonged period the detectives observed several individuals arrive by car and then enter and depart the premises within an abbreviated period of time. On one occasion Anderson and Brewer followed an automobile whose passengers had just made such a visit to the residence in question. The automobile was subsequently stopped, the five passengers therein were frisked, but no incriminating evidence was discovered. Thereafter the officers returned to continue their observation of the house. This surveillance was later augmented by detectives and agents of the St. Louis DALE Office, the East St. Louis Police Department, and the Illinois Bureau of Investigation.
At 9:10 p.m. Detectives Anderson and Brewer, accompanied by two other officers, followed another car whose occupants had just made a brief visit to 741 North 31st Street, East St. Louis, Illinois. After following for some distance the vehicle was stopped for investigatory purposes, there being no evidence or testimony adduced at the hearing indicating a traffic violation or other criminal activity. As one of the passengers alighted from the car Anderson observed an envelope which was found to contain a green vegetable substance resembling marijuana. Upon questioning, the man stated that he had purchased the substance at 741 North 31st Street.
Thereafter Anderson and Brewer returned to the residence ostensibly to make a "buy and bust." They were accompanied by a number of officers to the front of the house, while other officers encircled and positioned themselves at the rear of the premises. Anderson and Brewer approached the front door and were admitted by an individual later identified as Calvin Cooks. Calvin Cooks was wearing a shoulder holster with the gun in place. Upon entering the detectives noticed one Willie G. Smith who was wearing an empty shoulder holster; Smith appeared to recognize Detective Anderson at which point a scuffle ensued with Anderson relieving Smith of his gun. Contemporaneous therewith three officers entered the front of the premises. One of these officers, James Walker, went throughout the remainder of the house and searched the premises. He proceeded to the kitchen where defendant Donald L. Cooks was seated at a table containing a number of envelopes, some green vegetable material and a.32 calibre pistol. As Walker entered the kitchen and confronted the defendant, Agents Culp and Bloemaker of the St. Louis DALE Office entered through the rear door of the house. Donald L. Cooks was arrested, the vegetable material was found to be marijuana.
Defendant, Donald L. Cooks, was subsequently charged in a one count indictment with knowingly and intelligently possessing with intent to distribute approximately 729 grams of marijuana in violation of Title 21 U.S.C. Sec. 841(a) (1). A pre-trial hearing was conducted pursuant to defendant's Motion To Suppress; the District Court Judge ruled that the evidence in question was seized in violation of the Fourth Amendment to the United States Constitution. The United States Government appeals that decision.
It is evident from the above recital of facts that no search warrant was in existence at or prior to the entry of the premises in issue. The most basic principle in regard to the validity of governmental action of this type is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. U.S., 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507. These exceptions are to be "jealously and carefully drawn," and there must be a demonstration by those who seek exemption that the exigencies of the situation made that course imperative. Jones v. U.S., 357 U.S. 493, 496, 2 L. Ed. 2d 1514, 78 S. Ct. 1253; McDonald v. U.S., 335 U.S. 451, 456, 93 L. Ed. 153, 69 S. Ct. 191. The burden then is on those seeking exemption to show the need for it, and it is a "heavy" burden that must be met. U.S. v. Jeffers, 342 U.S. 48, 51, 96 L. Ed. 59, 72 S. Ct. 93; U.S. v. Gamble, 473 F.2d 1274, 1276 (7th Cir. 1973). As Mr. Justice Frankfurter stated in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949):
"The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basis to a free society. It is therefore 'implicit in the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned. . . ."
Hence the present search and seizure is to be condemned, unless it can be justified in some other way.
The theory put forth by the Government is that the evidence seized falls within the "plain view" doctrine as recognized and applied by the Supreme Court. Harris v. U.S., 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968) and Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). The primary requisite necessary for the application of the plain view doctrine is that the officer has a right to be where he is when he observes the evidence in plain view. In the instant case the Government contends that the admittance of Anderson and Brewer on the pretense of a "buy and bust" satisfied this first requirement. U.S. v. Welsch, 446 F.2d 220 (10th Cir. 1971). The present factual situation, however, somewhat belies the contention that the purpose was only to purchase evidence of a crime and not to arrest and search the persons and premises involved herein. The officers had first become aware of suspect criminal activity concerning 741 North 31st Street from information gained by the Chief of Police. The house was then surveilled from 11:30 a.m. to 9:30 p.m. during which time the officers gained additional information about the presence of drugs through interrogation of an individual who had just departed the premises. Finally, supplementary manpower from the St. Louis DALE Office, the East St. Louis Police Department, and the Illinois Bureau of Investigation were called in and surrounded the house at the time of the purported "buy and bust". Never did they seek the protection of a warrant, no proper judicial officer was ever alerted to be available for its issuance.In its entirety the above conduct evinces a disregard for the fundamental requirement of a lawful search, a warrant executed on probable cause. As the Court put it in McDonald v. U.S., 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191:
"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . . .
"And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that Constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the Constitutional mandate ...