CRIMINAL LAW AND PROCEDURE
by Charles P. Bubany*
I.
II.
BAIL
.
407
INDICTMENTS
.
413
.
416
418
419
421
423
423
425
427
428
430
III.
SPEEDY TRIAL
IV.
V.
JOINDER
.
DOUBLE JEOPARDY
.
VI.
DISCOVERy
.
SEARCH AND SEIZURE
.
VII.
A.
B.
C.
D.
VIII.
"
Plain View and No Search
Investigative Stops
Exigent Circumstances
Good Faith
.
.
.
.
CONFESSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . •
Facing its typically large volume of criminal cases, the Fifth
Circuit handled its share of more-or-Iess "routine" issues. Some of
the court's more noteworthy decisions are catalogued and discussed
here under the headings of Bail, Indictments, Speedy Trial, Joinder,
Double Jeopardy, Discovery, Search and Seizure, and Confessions.
I.
BAIL
As predicted, I this survey period saw more litigation concerning
the Bail Reform Act of 1984 ("BRA").2 A major change accomplished
by the 1984 Act is a straightforward legitimation of preventive
detention with procedural and substantive safeguards. De facto de-
• Professor of Law, Texas Tech Univesity School of Law. B.A., S1. Ambrose College,
1962; J.D., Washington University School of Law, 1965.
1. Ellis, Criminal Procedure and Criminal Law, 17 TEX. TECH L. REV. 483, 496 (1986).
2. 18 U.S.C. §§ 3041-43,3062.3136,3141-50,3151,3154,3731,3772, 4282 (1982).
The procedure concerning a forfeiture proceeding is governed by Federal Rule of Criminal
Procedure 46(e), not section 3146 of the BRA, which governs revocation. See United States
v. Dunn, 781 F.2d 447, 449-50 (5th Cir. Jan. 1986), cert. granted, 106 S. Ct. 3270 (1986).
Hence, no immediate hearing is required; it may proceed by summary motion practice and is
based on an executed contract by which the accused agrees to loss of the property securing
the bond on breach of a condition.
407
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tention by imposition of exorbitant financial conditions to circumvent
the prior law's presumption against pretrial detention is prohibited. 3
The BRA requires release on personal recognizance or unsecured
bond unless "such release will not reasonably assure the appearance
of the person as required or will endanger the safety of any other
person or the community."4 If neither release nor personal recognizance nor unsecured bond is determined sufficient, the trial court
may impose necessary conditions for release. s An accused may be
detained pending trial only if, after hearing, the judicial officer
"finds that no condition or combination of conditions will'reasonably
assure the appearance of the person as required.... "6
United States v. Westbrook 7 dealt with a challenge to a pretrial
detention order issued under section 3142 of the BRA.8 After West-
3,
4.
5.
6.
See United States v. Westbrook, 780 F.2d 1185, 1187 n.3 (5th Cir. Jan. 1986).
18 U.S.C. § 3142(b) (Supp. III 1985).
[d. § 3142(c) (Supp. III 1985).
[d. § 3142(e) (Supp. III 1985). Section 3142(e) provides:
(e) Detention. If, after a hearing pursuant to the provisions of subsection (f), the
judicial officer finds that no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety of any other person
and the community, he shall order the detention of the person prior to trial. In a
case described in. (f)(I), a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the
community if the judge finds that-(l) the person has been convicted of a Federal
offense that is described in subsection (f)(I), or of a State or local offense that
would have been an offense described in subsection (f)(I) if a circumstance giving
rise to Federal jurisdiction had existed; (2) the offense described in paragraph (I)
was committed while the person was on release pending trial for a Federal, State,
or local offense; and (3) a period of not more than five years has elapsed since the
date of conviction. or the release of the person from imprisonment, for the offense
described in paragraph (I), whichever is later.
Subject to rebuttal by the person, it shall be presumed that no condition or combination or conditions will reasonably assure the appearance of the person as required
and the safety of the community if the judicial officer finds that there is probable
cause to believe that the person committed an offense for which a maximum term
of imprisonment of ten years or more is prescribed in the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), section I of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code.
[d.
For differing positions on the constitutionality of the preventive detention prOVlSlons,
compare United States v. Perry, 788 F.2d 100 (3d Cir.) (constitutional), cert. denied, 107 S.
Ct. 218 (1986) with United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.) (unconstitutional
as applied to impose eight-month detention), cert. dismissed, 107 S. Ct. 562 (1986).
7. 780 F.2d 1185 (5th Cir. Jan. 1986).
8. [d. at 1187.
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brook's arrest on charges of possessing counterfeit money and possessing a firearm while a convicted felon, the magistrate set a $25,000
secured bond, subsequently reduced to $15,000, as a condition for
pretrial release. 9 Apparently unable to meet the secured bond, Westbrook requested an unsecured bond. The magistrate denied the
request, finding that "releasing the defendant on personal bond will
not reasonably assure the appearance of the defendant as required
and will endanger the safety of the community. . . ." 10 After hearing
on a motion for reconsideration, the district court concluded that
pretrial detention was appropriate and that Westbrook was unable
to post a secured bond, but also found no other cor:dition or
combination of conditions under section 3142(c) would reasonably
assure Westbrook's appearance for trial.J1 The Fifth Circuit agreed
with Westbrook that he could not be detained solely because of his
inability to post secured bond. 12 Emphasizing that it was reviewing
the district court's, rather than the magistrate's order, the court
concluded that the district court did not determine that monetary
bond was adequate but instead had issued a detention order. 13 That
order was justified by its finding that no available conditions would
reasonably assure Westbrook's presence at trial. I4 Thus, in a case in
which the defendant is financially unable to make bond, the district
court has two options: (1) it can reduce the bond; or (2) it can
conclude that no available condition of release will assure the accused's appearance, and thus proceed to enter a detention order after
making the requisite findings.
Despite the application of different standards of appellate review
in other circuits, the Fifth Circuit is committed to a standard by
which the order of the district court will be sustained "if it is
supported by the proceedings below." 15 Explaining this standard, the
11.
[d. at 1186-87.
[d. at 1187.
[d.
12.
[d. at 1188.
13.
14.
[d.
[d.
9.
10.
15. [d. at 1189; United States v. Fortna, 769 F.2d 243, 250 (5th Cir. Aug. 1985), cert.
denied, 107 S. Ct. 437 (1986); accord United States v. Cantu-Salinas, 789 F.2d 1146 (5th Cir.
May 1986) ("clearly erroneous" the proper gauge). The district court acts de novo and makes
an independent determination of the pretrial release issue when either the accused or the
government challenges the magistrate's order. Fortna, 769 F.2d at 249.
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court in United States v. Fortna 16 noted that section 3142(0 requires
that a detention based on reasonably assuring the "safety of any
other person and the community shall be supported by clear· and
convincing evidence." 17 But the BRA contains no comparable quantum of proof provision for the reasonably-assure-appearance determination. Relying on cases from other circuits, the court concluded
the assure-appearance detention order must be supported by information that it was more likely than not that no condition or combination of conditions would reasonably assure the accused's
appearance. 18
The court in Fortna made three observations concerning the rules
to be applied to the judicial officer's determination. First, hearsay
or other information not otherwise admissible at trial may form the
basis for a pretrial detention determination. 19 Second, with respect
to the rebuttable presumption in favor of pretrial detention provided
by section 3142(e) in the case of certain offenders (selected drug
offenders with a maximum punishment of at least ten years), hearsay
may be utilized in making the probable cause determination that
gives rise to the presumption. 20 Moreover, agreeing with the First
Circuit's interpretation of congressional intent,21 the Fortna court
noted that the presumption is based on a "strong probability" that
no form of conditional release is adequate. 22 This drug offender/
flight presumption can be overcome only by the production of "some
evidence" by the defendant, which must be weighed by the judicial
officer against the "special risks of flight" posed by such offenders. 23
Third, the court in Fortna noted that the judicial officer is directed
to take into account under section 3142(g) four general categories of
factors: (1) the nature and circumstances of the offense charged; (2)
the weight of the evidence against the accused; (3) the history and
characteristics of the accused; and (4) the seriousness of danger to
the community.24 Applying those factors, the court found the pre-
16.
17.
18.
19.
20.
21.
22.
23.
24.
769 F.2d 243 (5th Cir. Aug. 1985), cert. denied, 107 S. Ct. 437 (1986).
[d. at 250; 18 U.S.C. § 3142(1) (Supp. III 1985).
769 F.2d at 250.
[d.
See id. at 251.
United States v. Jessup, 757 F.2d 378, 381-84 (1st Cir. 1985).
769 F.2d at 251.
[d. at 251-52 (citing Jessup, 757 F.2d at 385).
[d. at 252.
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sumption supported by ample and virtually uncontradicted evidence
that Fortna was guilty of consipiring to import massive amounts of
cocaine from South America, had long engaged in illegal drug
trafficking, and was the head of a sophisticated drug importation
enterprise. 25 Fortna's heavy local business interests and family and
community ties were not sufficient to overcome the presumption. 26
The rebuttable presumption in favor of pretrial detention did
not apply in Westbrook. The defendant in Westbrook had been
indicted on charges relating to counterfeiting and firearms possession,
which posed a risk of seventy-eight years in prison and $50,000 in
finesY Although the seriousness of the charges, without more, was
insufficient to invoke a pretrial detention presumption, the Fifth
Circuit found that total exposure to fines and incarceration was an
important factor to be considered. 28 When coupled with the defendant's three prior felony convictions, various probation violations,
and his lack of ties with the community, the court held that section
3142(c) was not offended by the denial of the defendant's request
for unsecured bond. 29
A detention order adequately supported by the evidence may
nonetheless be deficient under section 3142(i)30 if it is conclusory,
that is, if it merely tracks the statutory language and does not state
25.
26.
27.
28.
[d.
[d. at 253.
780 F.2d at 1189.
[d.
29. [d. at 1189-90.
30. 18 U.S.C. § 3142(i) (Supp. III 1985) provides:
(i) Contents of detention order. In a detention order issued pursuant to the provisions
of subsection (e), the judicial officer shall-(l) include written findings of fact and
a written statement of the reasons for the detention; (2) direct that the person be
committed to the custody of the Attorney General for confinement in a corrections
facility separate, to the extent practicable, from persons awaiting or serving sentences
or being held in custody pending appeal; (3) direct that the person be afforded
reasonable opportunity for private consultation with his counsel; and (4) direct that,
on order of a court of the United States or on request of an attorney for the
Government, the person in charge of the corrections facility in which the person is
confined deliver the person to a United States marshal for the purpose of an
appearance in connection with a court proceeding.
The judicial officer may, by subsequent order, permit the temporary release of
the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary
for preparation of the person's defense or for another compelling reason.
[d.
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the factual findings supporting the trial court's ultimate determination
that no condition or combination of conditions will reasonably assure
the accused's presence. 31 If so, the case will be remanded to the
district court for issuance of a complying order.32
The BRA mandates that the hearing to order pretrial detention
"shall be held immediately upon the person's first appearance before
the judicial officer unless that person, or the attorney for the Government, seeks a continuance. "33 The court has had several occasions
to deal with this mandate. Fortna involved an alleged failure by
either the Government or the judicial officer to move, within five
days of arrest, for denial of bail.34 The court disagreed, noting that
the magistrate on April 24, the day after the arrest, had ordered a
detention hearing to be held on April 29. 35 The magistrate's own
motion at the first appearance to conduct a detention hearing distinguished this case from those in which neither the judicial officer nor
the Government moved for pretrial detention at the initial hearing. 36
Moreover, the court concluded that the absence of a hearing at the
first appearance was justified, because "it was impossible to legally
hold the hearing at that time consistent with the Act's provision that
the accused is entitled to counsel at the hearing. "37 The court doubted
that Congress could have intended to preclude pretrial detention in
situations in which a defendant who had indicated a wish to have
counsel did not have counsel at the initial appearance. 38 In any event,
the error was harmless because the defendant was advised there
would be a hearing, and the continuance of five days (the maximum
to the defendant under the Act)39 was given, and there was no
31.
32.
See 780 F.2d at 1190.
See, e.g., id.
33.
34.
35.
18 U.S.C. § 3142(f) (Supp. III 1985).
769 F.2d at 248.
Id. at 245.
36. Id. at 248; see also United States v. O'Shaughnessy, 764 F.2d 1035, 1036 (5th Cir.
June 1985) (detention order reversed because of absence of request or motion at first
appearance), vacated pending reconsideration on oral argument, 772 F.2d III (5th Cir. Aug.
1985), appeal dismissed as moot, 772 F.2d 112 (5th Cir. Sept. 1985); United States v. Payden,
759 F.2d 202, 203 (2d Cir. 1985) (detention order reversed when defendant arraigned on
October 17, but detention without bond not mentioned until the Government moved for an
order of detention on October 31-the hearing on the order was not set until two weeks later).
37. 769 F.2d at 249; see 18 U.S.C. § 3142(f) (Supp. III 1985) (setting forth accused's
right to counsel at the hearing).
38. 769 F.2d at 249.
39. Section 3142(f) provides in part: "Except for good cause, a continuance on motion
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indication that the continuance was suggested by, or was for the
convenience of, the Government. 40
In United States v. Becerra-Cobo,41 the Fifth Circuit held that
the Government need not demand detention at the first appearance
of a defendant who is ordered to be detained under the provisions
allowing temporary detention (for ten days) of aliens and persons
with conditional-release status. 42 Although the better practice would
be for the Government to request detention, or at least a continuance
at the first hearing, a request for permanent detention within the
temporary detention period is sufficient to trigger a detention hearing. 43 The court noted that the Government may reasonably need
time to determine the status of aliens or persons on conditional
release which might render the bail question moot. 44 In any event,
the defendant suffers no additional loss of liberty so long as the
pretrial detention hearing takes place before the ten days of temporary
detention have expired. 45
II.
INDICTMENTS
Challenges to the sufficiency of an indictment are common but
seldom successful. So long as the indictment contains the essential
elements of the offense in language that fairly informs the defendant
of the charge and protects against the risk of double jeopardy, it
will be upheld. 46 Ordiriarily, the indictment will be sufficient if it
of the person may not exceed five days, and a continuance on motion of the attorney for the
Government may not exceed three days." 18 U.S.C. § 3142(f) (Supp. III 1985).
40. 769 F.2d at 249.
41. 790 F.2d 427 (5th Cir. May 1986).
42. [d. at 431 (interpreting 18 U.S.C. § 3142(d) (Supp. III 1985».
43. [d. at 430-31.
44. [d. at 431.
45. [d.
46. See, e.g., United States v. Maggitt, 784 F.2d 590, 598-99 (5th Cir. Mar. 1986)
(Government's failure to specify in indictment that "law enforcement officers" to whom
information had been given were not FBI agents did not render indictment insufficient); United
States v. Fesler, 781 F.2d 384, 391-92 (5th Cir. Jan. 1986) (indictment not specifying injuryproducing act or omission, but which tracked statutory language, specified dates and places,
and charged the elements of the offense held sufficient), cert. denied, 106 S. Ct. 1977 (1986);
United States v. Gordon, 780 F.2d 1165, 1169-72 (5th Cir. Jan. 1986) (court held sufficient
an indictment which contained the essential elements of the offense charged and which set
forth Ule particular facts constituting each offense by tracking the language of the relevant
statute); United States v. Stanley, 765 F.2d 1224, 1239-40 (5th Cir. July 1985) (indictment
closely tracking the language of the statute, which statute fully and unambiguously sets out
the essential elements of the offense, held sufficient).
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tracks the statutory language because the statute will contain the
necessary elements to constitute the offense. 47
Some of the earlier cases state that tracking the statute may not
be sufficient if the statute phrases the offense in "generic" terms,48
but United States v. Maggitf4 9 indicates otherwise. In Maggitt the
court held that the use of the term "law enforcement officers" in
an indictment charging retaliation against a witness for having given
information to a "law enforcement officer" was permissible even
though the term could include a wide variety of federal officers or
employees. 5o The court emphasized that the indictment identified the
victim of the threat, the precise character of the threat, the date on
which the threat occurred, and the purpose of the threat. 51 Specification of which type of federal officer was involved was labeled
merely "evidentiary" and unnecessary to the sufficiency of the indictment. 52
A problem more troublesome than indictment sufficiency is that
of constructive amendment and variance. A discrepancy between the
indictment and the proof is evaluated under the harmless error
doctrine unless the variance constitutes a constructive amendment, in
which case it is reversible per se. United States v. Adams 3 illustrates
the distinction. The defendant was charged in six counts for purchasing handguns by misrepresenting his name. 54 In addition to
47. See, e.g., United States v. Stanley, 765 F.2d 1224, 1239-40 (5th Cir. July 1985) (held
sufficient an indictment which closely tracked the language of the statute, where the statute
fully and unambiguously set out the essential elements of the offense); Unit,ed States v.
Montemayor, 703 F.2d 109, 117 (5th Cir.) (holding sufficient an indictment which sets forth
the offense in the words of the statute where the statute unambiguously sets out the elements
of the offense), cert. denied, 464 U.S. 822 (1983). For a comprehensive discussion of pleading
rules, see United States v. Gordon, 780 F.2d 1163, 1169-72 (5th Cir. Jan. 1986). As Gordon
points out, the constitutional right to know the offense charged is to be distinguished from
the need to know evidentiary facts, which can be provided through a motion for a bill of
particulars. [d. at 1172.
48. See, e.g., Lott v. United States, 309 F.2d 115, 117 (5th Cir. 1962) (stating that
offenses "must be accurately described in an indictment; and if necessary to do so, the
allegations must be expanded beyond the words of the statute"), cert. denied, 371 U.S. 950
(1963); United States v. Strauss, 285 F.2d 953, 955 (5th Cir. 1960) ("statutes defining criminal
misconduct must be strictly construed").
49. 784 F.2d 590 (5th Cir. Mar. 1986).
50. [d. at 598. The court did state, however, that it would be incumbent upon the
Government to establish at trial that the "law enforcement officers" were FBI agents. [d.
51.
[d.
52.
53.
54.
[d.
778 F.2d 1117 (5th Cir. Dec. 1985).
[d. at 1118. This was in violation of 18 U.S.C. §§ 922(a)(6), 924(a) (1982).
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presenting evidence that the defendant gave a false identification, the
Government also produced evidence that he gave a false address.
The court suggested that the grand jury could have indicted in more
general terms without specification of the manner in which the
identification was false. 55 But the grand jury indicted the defendant
"for the use of the name Ernest Cole and nothing else."56 Thus,
"[w]hen the government and trial court went beyond the grand jury's
charge, they constructively and impermissibly amended the indictment, thereby denying Adams a substantial right under the fifth
amendment. "57 The Adams court relied on the Supreme Court decision in United States v. Miller,58 where the Court concluded that a
constructive amendment occurred when the "trial evidence had
'amended' the indictment by broadening the possible bases for conviction from that which appeared in the indictment. "59
A variance that does not constitute a broadening (constructive
amendment) of the indictment but which, instead, narrows the charge,
may be reversible, but not because it compromises the right to be
tried only for an offense alleged in the indictment. A variance will
be reversible error only if it prejudices substantial rights. For example,
if a broad conspiracy is charged but only a narrow conspiracy is
proved at trial, a defendant could be prejudiced substantially, primarily because of the transference of guilt from one defendant to
another unrelated defendant. 60 Jury instructions may be the determining factor. 61 If the trial judge, as in United States v. Austin,
limits the jury's consideration to the evidence of the separate conspiracy concerning which evidence of the defendant's involvement
55.
56.
57.
778 F.2d at 1124.
[d. at 1125.
[d.
58. [d. at 1124 (citing Miller, 471 U.S. 130, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985».
59. 471 U.S. at _ , 105 S. Ct. at 1816, 85 L. Ed. 2d at 106. In Miller the Court held
that the Government had not broadened the indictment by striking from a mail fraud charge
the claim that the defendant defrauded his insurer by consenting to the burglary in advance,
leaving only the allegation of defrauding his insurer by lying about the value of the loss.
"To the extent Bain stands for the proposition that it constitutes an unconstitutional
amendment to drop from an indictment those allegations that are unnecessary to an offense
that is clearly contained within it, that case has simply not survived." [d. at _ _, 105 S. Ct.
at 1819,85 L. Ed. 2d at 110 (referring to Ex parte Bain, 121 U.S. 1,7 S. Ct. 781, 30 L. Ed.
849 (1887».
60. United States v. Austin, 774 F.2d 99, 101 (5th Cir. Oct. 1985).
61. See, e.g., id.
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was presented, any prejudice may be eliminated. 62 On the other hand,
if the evidence reveals a conspiracy or conspiracies smaller than the
broad conspiracy charged, the failure of the trial judge to narrow
the conspiracy· charge to conform to the proof likely will result in
reversal. 63
United States v. Mechanik64 is a decision with a potentially
significant impact on motions to dismiss indictments based on defects
in grand jury procedures. The Supreme Court in Mechanik held that
unauthorized presence of persons before a grand jury in violation of
Federal Rule of Criminal Procedure 6(d) is rendered harmless by
subsequent conviction at trial. 65 As to pretrial motions to dismiss on
that ground, the Court indicated disapproval of lower federal court
rulings, including Fifth Circuit cases, which had adopted a rule of
automatic dismissal without showing of actual prejudicial impact. 66
One leading commentary has suggested that although Mechanik dealt
only with an alleged violation of rule 6(d), "an extension of the
harmless error analysis taken there could well lead the Court to
conclude that federal courts on appeal from a conviction will not
consider any errors in grand jury composition that are not constitutionally based. "67
III.
SPEEDY TRIAL
The Speedy Trial Act provides a thirty-day clock from arrest to
formal charge. 68 Prison segregation was held not an "arrest" for
62.
[d.
63. United States v. Erwin, 793 F.2d 656, 662-66 (5th Cir. July 1986), cert. denied, 107
S. Ct. 589 (1986).
A constructive amendment variance argument was rejected in United States v. Parkhill, 775
F.2d 612, 615 (5th Cir. Oct. 1985) (arguably incorrect date as to the bankruptcy of the debtors
in a charge of fraudulent concealment and transfer of assets in bankruptcy did not relate to
an essential element of the offense and, even if erroneous, was immaterial).
64. _
U.S. _ , 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986).
65. [d. at _ _, 106 S. Ct. at 943, 89 L. Ed. 2d at 57.
66. [d. at _ _, 106 S. Ct. at 945, 89 L. Ed. 2d at 60 (O'Connor, 1., concurring) (citing
United States v. Fulmer, 722 F.2d 1192, 1195 n.5 (5th Cir. 1983); United States v. Echols,
542 F.2d 948,951 (5th Cir. 1976), cert. denied, 431 U.S. 904 (1977); Latham v. United States,
226 F. 420 (5th Cir. 1915); United States v. LilI, 511 F. Supp. 50, 58 (S.D. W. Va. 1980».
Justice O'Connor's concurring opinion expressed reservations about the majority opinion's
approach which effectively encourages judges to delay consideration of such motions until
after a jury verdict. [d. at _ _, 106 S. Ct. at 945, 89 L. Ed. 2d at 61.
67. W. LAFAVE & 1. ISRAEL, CRIMINAL PROCEDURE § 15.3, at 24 (Supp. 1986).
68. 18 U.S.C. § 3161(b) (1982). Section 3161(b) provides:
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purposes of commencing the thirty-day period. 69 Nor is the clock
triggered if federal officials in good faith immediately and unconditionally release an arrestee without proffering federal criminal charges
against him. 70
In United States v. Fesler7! the Fifth Circuit applied the Supreme
Court's holding in United States v. Rojas-Contreras 72 to decide that
defendants who first appeared in court on the date of their first
indictment and who had more than thirty days to prepare were not
entitled to an additional thirty days from the date of a superseding
indictment. 73 The statutory right to thirty-days' preparation time
begins on the date of a defendant's first appearance through counse1. 74
Additional time after a superseding indictment may be granted in
the court's discretion to prevent prejudice 7S but is not available as a
matter of right.
The Speedy Trial Act requires the trial to begin "within seventy
days from the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending, whichever date last occurs. "76 In United States v. Eakes,?7 the district judge
(b) Any information or indictment charging an individual with the commission of
an offense shall be filed within thirty days from the date on which such individual
was arrested or served with a summons in connection with such charges. If an
individual has been charged with a felony in a district in which no grand jury has
been in session during such thirty-day period, the period of time for filing of the
indictment shall be extended an additional thirty days.
[d.
69. United States v. Jackson, 781 F.2d 1114, 1115 (5th Cir. Feb. 1986), cert. denied, 106
S. Ct. 2901 (1986).
70. United States v. Amuny, 767 F.2d 1113, 1120 (5th Cir. July 1985); cf. United States
v. Loud Hawk, _
U.S. _ , 106 S. Ct. 648, 653, 88 L. Ed. 2d 537, 543 (1985) (delay
considered under sixth amendment speedy trial claim does not include time during which indictment dismissed and defendant free of all restrictions on liberty).
71. 781 F.2d 384 (5th Cir. Jan. 1986), cert. denied, 106 S. Ct. 1977 (1986).
72. _
U.S. _ , _ , 106 S. Ct. 555, 557, 88 L. Ed. 2d 537, 543 (1985).
73. 781 F.2d at 392.
74. 18 U.S.C. § 3I61(c)(2) (1982).
75. [d. § 3161(h)(8); see United States V. Eakes, 783 F.2d 499, 501-04 (5th Cir. Feb.
1986), cert. denied, 106 S. Ct. 3277 (1986).
76. 18 U.S.C. § 3161(c)(I) (1982).
In Henderson v. United States, _
U.S. _,106 S. Ct. 1871,90 L. Ed. 2d 299 (1986), the
Supreme Court concluded that some "reasonably necessary delays" are excluded from that
70-day period (see 18 U.S.C. § 3161(h)(7) (1982», but, whether reasonably necessary or not,
delays resulting from any pretrial motion from filing to conclusion of hearing on the motion
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mistakenly concluded that the defendants had the right to an additional thirty days from their first appearance on a superseding
indictmenC8 and granted a thirty-day continuance when the defendants refused to wai~e their 'assumed right to the additional time. 79
The additional time extended the trial date beyond the seventy-day
limit, but the Speedy Trial Act was not violated because the defendant
did not object to the delay and the trial judge's conclusion that the
continuance would best serve the interests of justice was not clearly
erroneous. 80
IV.
JOINDER
The Supreme Court in United States v. Lane SI took occasion, in
a case from the Fifth Circuit, to resolve a conflict in the circuits on
the issue of whether misjoinder under rule 8(b) of the Federal Rules
of Criminal Procedure is subject to the harmless error rule. The
Court found that it was, relying on Federal Rule of Criminal Procedure 52(a), which provides that any error "which does not affect
substantial rights shall be disregarded. "82 Its holding would bring
rule 8 into substantial harmony, the Court said, with rule 52(a).83
Misjoinder under rule 8(b) is not reversible per se, but is reversible
only if the error "affects substantial rights," that is, only if it
"results in actual prejudice because it 'had substantial and injurious
effect or influence in determining the jury's verdict.' "84
The Lane court identified several factors relevant to the harmless
error inquiry: (1) overwhelming evidence of guilt; (2) effect of limiting
instructions given the number of defendants and complexity of evidence; and (3) likelihood of introduction of evidence otherwise inadmissible in a separate trial. 85 Applying those factors, the Fifth
also are excluded (18 U.S.C. § 3161(h)(I)(F) (1982». [d. at _ _, 106 S. Ct. at 1875, 90 L.
Ed. 2d at 308-09.
77. 783 F.2d 499 (5th Cir. Feb. 1986), cert. denied, 106 S. Ct. 3277 (1986).
78. [d. at 503.
79.
[d.
80. [d. at 504; see 18 U.S.C. § 3161(h)(8) (1982).
81. _
U.S. _ , 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986).
82. See id. at _ _, 106 S. Ct. at 732, 88 L. Ed. 2d at 825-26.
83. See id. The court also noted that the case for applying a harmless-error analysis is
supported by the non-constitutional nature of rule 8 standards. [d. at _ _, 106 S. Ct. at
730, 88 L. Ed. 2d at 823.
84. [d. at _ _, 106 S. Ct. at 732, 88 L. Ed. 2d at 825-26.
85. See id. at _
n.l3, 106 S. Ct. at 732 n.13, 88 L. Ed. 2d at 826 n.l3.
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Circuit in United States v. MaggitfS 6 held that a joinder of the
defendant with his co-defendant/sister on witness tampering and
witness retaliation charges, even if error, was harmlessY
V.
DOUBLE JEOPARDY
For double jeopardy purposes, offenses violating two different
statutory provisions are not the "same offense" if "each provision
requires proof of an additional fact which the other does not. "88
Thus, offenses arising out of the same transaction but which have
different elements may be prosecuted separately.89 Moreover, multiple
trials for separate offenses arising out of the same conspiracy do not
constitute double jeopardy, 90 nor do separate prosecutions for the
offenses of conspiracy and the object crimes of the conspiracy.91
However, the Government is not entitled to convictions on multiple
conspiracies on proof of a single agreement. 92
Offenses which in the abstract require proof of different elements
may, nonetheless, be the "same offense" for double jeopardy purposes if, under the theories by which the cases actually are tried, one
of the offenses is a lesser-included offense of the other (consists
solely of one or more of the elements of the other).93 In Davis v.
Herring,94 the Fifth Circuit ruled that a prosecution for the felony
of shooting into an occupied building was barred by a previous
conviction of manslaughter on a murder charge based on the peti-
86. 784 F.2d 590 (5th Cir. Mar. 1986).
87. See id. at 595-96.
88. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306,
309 (1932).
89. See United States v. Guzman, 781 F.2d 428, 432 (5th Cir. Jan. 1986), cert. denied,
106 S. Ct. 1798 (1986).
90. United States V. Nichols, 781 F.2d 483, 484-85 (5th Cir. Jan. 1986); see a/so Garrett
v. United States, 471 U.S. 773, _ _, 105 S. Ct. 2407, 2419-20, 85 L. Ed. 2d 764, 776 (1985)
(former prosecution of predicate offense for continuing criminal enterprise (CCE) charge not
a bar to subsequent CCE charge).
91. See United States v. Guthrie, 789 F.2d 356, 359-60 (5th Cir. May 1986); United States
v. Kalish, 734 F.2d 194, 198 (5th Cir. 1984), cert. denied, 469 U.S. 1207 (1985).
92. See United States v. Olivares, 786 F.2d 659, 664 (5th Cir. Apr. 1986); United States
v. Colunga, 786 F.2d 655, 657 (5th Cir. Apr. 1986).
93. See Harris v. Oklahoma, 433 U.S. 682, 682, 97 S. Ct. 2912, 2914, 53 L. Ed. 2d 1054,
1056 (1977) (subsequent robbery prosecution barred by earlier felony murder prosecution in
which same robbery used as the underlying felony).
94. 800 F.2d 513 (5th Cir. Sept. 1986).
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tioner's act of shooting into the same building. 95 Under Mississippi
law, the felony of shooting into an occupied building would not be
necessary to convict of murder 96 and would not be a lesser-included
offense of murder. But, as tried, the murder charge may have
depended on the jury finding that the defendant's act of shooting
into the building was either a felony or a dangerous and depraved
act. 97 Because the identical evidence used to establish the murder
charge would be used to establish the shooting-into-the-building
charge, the latter prosecution was barred. 98
An issue addressed by the court in United States v. Guthrie99
was whether predicate offenses underlying a continuing criminal
enterprise (CCE)IOO violation are lesser-included offenses of the CCE,
precluding separate convictions or sentences. 101 Guthrie had been
indicted, but acquitted, of a CCE violation in a Florida trial, in
which the Government introduced evidence of several smuggling
episodes to prove the CCE charge. 102 Guthrie contended that a
subsequent Louisiana indictment for marijuana importation and possession offenses, stemming from one of the episodes relied on in the
prior CCE prosecution, was barred on double jeopardy grounds. 10J
The court disagreed, concluding that the Supreme Court decision of
95. [d. at 519-20.
96. See id. at 519. Murder in Mississippi indudes deliberate or "depraved heart" killings
in addition to unintentional killings in the commission of a felony. [d. at 512 n.1 (citing MISS.
CODE ANN. § 97-3-19 (1972 & Supp. 1985».
97. [d. at 519-20.
98. See id. at 520.
99. 789 F.2d 356 (5th Cir. May 1986).
100. 21 U.S.C. § 848 (1982). Section 848(b) provides:
"Continuing criminal enterprise" defined. For purposes of subsection (a), a person
is engaged in a continuing criminal enterprise if-(l) he violates any provision of
this title or title III the punishment for which is a felony, and (2) such violation is
a part of a continuing series of violations of this title or title I1I-(A) which are
undertaken by such person in concert with five or more other persons with respect
to whom such person occupies a position of organizer, a supervisory position, or
any other position of management, and (B) from which such person obtains substantial income or resources.
[d.
101. 789 F.2d at 360.
102. [d. at 358.
103. [d.; see also United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir. 1984), cert.
denied, 469 U.S. 1113 (1985); United States v. Chagra, 699 F.2d 241, 261 (5th Cir. 1982)
(both taking the position that a predicate offense of a CCE violation was a lesser-induded
offense).
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Garrett v. United States lO4 had rejected the rationale of earlier Fifth
Circuit cases,105 and held that the predicate offenses of a CCE
violation were not lesser-included offenses of the CCE for purposes
of double jeopardy. 106
Garrett, unlike Guthrie, had involved a CCE prosecution subsequent to prosecution and conviction on an offense used as a
predicate offense. I07 The Supreme Court in Garrett held the CCE
prosecution was not barred because it was based in part on continuing
unlawful activities occurring after the prior conviction. lOS The Supreme Court in Garrett stopped short of holding that a CCE's
predicate offenses were not lesser-included offenses but found an
obvious congressional intent to treat them separately.I09 Based on
this rationale, the Fifth Circuit in Guthrie allowed separate prosecutions. 110
In Guthrie, a dissenting Judge Rubin emphasized the factual
differences in Garrett and opined that if the Government chooses to
prosecute first for the CCE, it should be held to its choice. llI
VI.
DISCOVERY
A violation of the prosecution's due process duty to disclose
favorable evidence to the accused was found in Lindsey v. King .112
A police report that the capital murder defendant had specifically
requested but had not received revealed that one of two trial eyewitnesses could not identify the accused before trial because he did
not see his face. 113 After looking at Supreme Court precedent, the
court noted that United States v. BagleY,114 handed down after oral
argument, "throws further-if somewhat flickering-light on the
area." 115 In Bagley the Government had failed to disclose government
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
_ _ u.s. __, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985).
[d. at _ _, 105 S. Ct. at 2418-19, 85 L. Ed. 2d at 780.
789 F.2d at 359.
_
U.S. at _ , 105 S. Ct. at 2412-15, 85 L. Ed. 2d at 770-72.
_
U.S. at _ , 105 S. Ct. at 2418, 85 L. Ed. at 780; see 789 F.2d at 360.
789 F.2d at 361-63 (Rubin, J., dissenting).
[d. at 361.
[d. at 361-63 (Rubin, J., dissenting).
769 F.2d 1034 (5th Cir. Aug. 1985).
[d. at 1036.
473 U.S. _ _, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).
769 F.2d at 1041.
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contracts for undercover work for pay with the two principal witnesses against the defendant in his narcotics and firearms trial, despite
a defense motion to discover any deals or promises between the
Government and the witnesses. 116 The Supreme Court did not reverse
the conviction outright, but remanded for reconsideration of the
materiality of the nondisclosed evidence. II? A majority of the justices
agreed on a standard of materiality borrowed from the ineffectiveassistance-of-counsel cases: that is, a "reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different," which is a "probability
sufficient to undermine confidence in the outcome. "118 This standard
of materiality applies to all nondisclosure cases, including specific,
general or no-request cases,119 but the specificity of the defense
request, nonetheless, is a relevant inquiry.120 It is not altogether clear
what the ultimate significance of a request is after Bagley, but, as
the Fifth Circuit put it in Lindsey, "it is fair to say that all of the
participating Justices agreed on one thing at least: that reversal for
suppression of evidence by the government is most likely where the
request for it was specific, as in today's case. "121
The Lindsey court noted that the situation before it was a closer
case than Bagley, in which impeaching evidence was withheld as to
both principal witnesses. 122 The court, nonetheless, found that the
deliberately crippled cross-examination of one of two critical witnesses, "on the basis of our courtroom experience," could have farreaching consequences on the only serious issue in the case-identification of the suspect who fired the fatal shot. 123 The Lindsey court
saw a big difference between the testimony of two unshaken witnesses
as opposed to only one, and a possible effect on the other of the
impeachment of one. l24 The circumstances of the identificationdistance, poor light and the strikingly similar appearance of the two
116. 473 u.s. at _ _, 105 S. Ct. at 3377-78, 87 L. Ed. 2d at 487.
117. [d. at _ _, 105 S. Ct. at 3385, 87 L. Ed. 2d at 495.
118. [d. at _ _, 105 S. Ct. at 3384, 87 L. Ed. 2d at 494.
119. W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 19.5, at 36 (Supp. 1986).
120. [d. at 37. The relevance of a specific request may be the presence of greater prosecutor
responsibility or the greater potential of misleading counsel.
121. 769 F.2d at 1041.
122. [d. at 1042.
123. [d.
124. [d. at 1042-43.
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suspects-led to the court's conclusion that the result probably would
have been affected by the evidence. 125 But the court candidly admitted
that whatever doubts it had about the "agonizing closeness" of the
reasonably-probable-effect-on-outcome question were resolved by the
real possibility that the wrong man would be executed. 126
O
VII.
A.
SEARCH AND SEIZURE
Plain View and No Search
The relationship of the plain view doctrine to the legitimate
expectation of privacy test of fourth amendment activity is illustrated
by United States v. Amuny.127 In Amuny the Fifth Circuit stated its
three-pronged test for application of the "plain view" doctrine: (1)
the officer was properly in a position from which he could view a
particular area; (2) the discovery of incriminating evidence was inadvertent; and (3) the seizable nature of the item observed was
immediately apparent. 128 The issue in Amuny was whether an agent's
view of contraband inside an aircraft, a view obtained by walking
on its wing and leaning across its nose, was from a position in which
he had a legitimate right to be. l29 The court noted that its prior cases
had concluded that if the officer is lawfully in a particular place, an
observation by the officer of anything that would be observed by
any "curious passerby" was not a search. 130 Moreover, after Katz v.
United States, 13I a technical trespass does not always result in a
fourth amendment violation. 132 But in Amuny the court found the
agent's boarding of the aircraft was "a highly intrusive trespass"
because the plane's interior was not readily visible from the ground,
it usually was not parked in a place to which the public had access,
it did not stop frequently, and it was not readily visible while
°
°
125. [d.
126. [d. at 1043.
127. 767 F.2d 1113 (5th Cir. July 1985).
128. [d. at 1125.
129. [d.
130. [d. at 1127.
131. 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
132. See United States v. Karo, 468 U.S. 705, 712-13, 104 S. Ct. 3296, 3302, 82 L. Ed.
2d 530, 540 (1984); Oliver v. United States, 466 U.S. 170, 183-84, 104 S. Ct. 1735, 1744, 80
L. Ed. 2d 214, 227-28 (1984).
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traveling. 133 Thus, the agent's action in obtaining a view of the
plane's interior from the wing was a search. 134
An off-premise view of on-premises contraband does not in itself
authorize a warrantless search of a residence or its curtilage. Accordingly, the Fifth Circuit in United States v. Whaley135 held that,
absent exigency, a sheriff's sighting of marijuana plants growing
immediately adjacent to a dwelling did not justify his entry to seize
the marijuana plants. 136 Defining the limits of the protected curtilage
is a problem with which the Fifth Circuit and the Supreme Court
have recently been playing ping-pong. In Oliver v. United States 137
the Supreme Court reaffirmed the so-called "open fields" exception
to the warrant requirement, the effect of which is to limit one's
legitimate expectation of privacy in open acres to the area immediately
adjacent to the home that one may expect to remain private, that is,
the "curtilage. "138 The Court upheld a seizure after an apparent
trespass by officers who had taken a footpath around a locked gate
and a "No Trespassing" sign before walking several hundred yards
to discover a field of marijuana about a mile from the accused's
house. 139 In United States v. Dunn,l40 the Fifth Circuit's reversal of
a drug conviction based on an unlawful search of a barn was vacated
and remanded for further consideration in light of Oliver. The Fifth
Circuit had concluded that government agents had intruded on Dunn's
reasonable expectation of privacy by looking inside his barn to view
drug-making equipment after the agents had crossed two fences to
reach their vantage point outside the barn. 141 Even though the barn
was some sixty yards from the farmhouse and separated from it by
an area of knee-high weeds, it was connected to the house by a well-
133. 767 F.2d at 1127-28.
134. The court thus distinguished a plane from an automobile, which has a reduced
expectation of privacy. [d. at 1128-29.
135. 781 F.2d 417 (5th Cir. Jan. 1986).
136. [d. at 419. If the sheriff had testified that what he saw from the road was what he
knew, rather than what he thought, was marijuana, the evidence obtained after the unlawful
entry might have been harmless. [d.
137. 466 U.S. 170, 104 S. Ct. 1735,80 L. Ed. 2d 214 (1984).
138. [d. at 179-81, 104 S. Ct. at 1740-42, 80 L. Ed. 2d at 224-26.
139. [d. at 173, 104 S. Ct. at 1738, 80 L. Ed. 2d at 220-21.
140. 674 F.2d 1093 (5th Cir. 1982), vacated, 467 U.S. 1201, 104 S. Ct. 2380, 81 L. Ed.
2d 340 (1984), on remand, 766 F.2d 880 (5th Cir. July 1985), opinion vacated for reconsideration, 781 F.2d 52 (5th Cir. Jan. 1986), original opinion reinstated, 782 F.2d 1226 (5th Cir.
Feb. 1986), cert. granted, 106 S. Ct. 3270 (1986).
141. 674 F.2d at 1096.
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traveled roadway, a well-walked path, an electrical line, and a fence;
the barn itself was encircled by a substantial fence. '42 This was enough
for the court to conclude that the barn was within the curtilage of
the farmstead, and thus, the agents could not enter the fenced-in
property adjacent to it without a search warrant. 143
On remand, a panel of the court held the barn was not within
the curtilage, but that opinion was vacated. l44 Finally, the court
decided "that Oliver neither directs nor requires that the barn which
was the subject of a warrantless search be found to be outside the
curtilage of the Dunn ranch house" and reinstated the original panel
opinion. '4s But the Dunn "farm curtilage" saga is not 'Jver. The
Supreme Court has agreed to review the case a second time. l46 In
the process it may tinker again with the definition of the zone of
protected privacy under the expectation of privacy concept. Cases
from the Court's last term make it obvious that the zone is shrinking. 147
B.
Investigative Stops
In United States v. Ortega-Serrano, 148 the testimony of the
Immigration & Naturalization Service (INS) officer making a roving
patrol stop of a vehicle was examined "charily" because there was
no reason to believe the vehicle had recently come from the border .149
The officer pursued a red Camaro on 1-35 south of the Dallas-Fort
Worth area at high speed after receiving a radio message from his
supervisor to look out for it. ISO When he finally caught up to the
Camaro, he observed that it was an early model with an uneven
paint job; the occupants were four young males of Latin descent;
the driver was not wearing a shirt; and the passengers in the back
142.
143.
[d.
[d. at 1100.
United States v. Dunn, 766 F.2d 880 (5th Cir. July 1985); recalled and vacated, 781
(5th Cir. Jan. 1986).
United States v. Dunn, 782 F.2d 1226, 1227 (5th Cir. Feb. 1986).
United States v. Dunn, 106 S. Ct. 3270 (1986).
147. See California v. Ciraolo, _
U.S. _,106 S. Ct. 1809, 1812-13,90 L. Ed. 2d 210,
216-18 (1986); Dow Chemical Co. v. United States, _
U.S. _ , 106 S. Ct. 1819, 1825-27,90
L. Ed. 2d 226, 235-3~ (1986) (so-called "plane view" cases, finding aerial observations of
private property were not "searches").
148. 788 F.2d 299 (5th Cir. Apr. 1986).
149. [d. at 301-02; see United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir. 1981).
150. 788 F.2d at 300.
144.
F.2d 52
145.
146.
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had uncombed hair, were dirty looking, and appeared nervous,
refusing to look at the officer .151 The court concluded the record
disclosed insufficient facts and did not reveal the inferences the
officer made from those facts. 152 The majority suggested that the
Government's failure in this case stemmed from the lack of evidence
of the stopping officer's knowledge of the significance of the area,
the highway, or the circumstances to smuggling, and the nature of
the officer's eighteen years' experience with the INS and its relationship to stopping of vehicles. 153 The stopping officer's supervisor
testified about the signficance of 1-35, old Camaros, and shirtless
drivers to smuggling, but the facts and inferences to be drawn
therefrom must be those relied on by the officer who claims to have
the reasonable suspicion warranting the stop. 154
Dissenting Judge Garza disagreed with the "very little significance" given the suspect's obvious attempt to evade the stopping
officer. 155 Although the officer's vehicle was unmarked and he was
not in uniform, Judge Garza concluded that the suspect "probably"
saw the agent's auto and the agent using binoculars. l56 "Smugglers
know that INS officers do this" and "to me that's the reason that
he accelerated and why officer Hankins had to drive at speeds of
over 100 miles to catch up to him."157
In United States v. Palleres-Palleres l58 immigration agents on
roving patrol were found to have had a reasonable suspicion of
smuggling of aliens to justify their stop of a pickup truck and an
automobile first seen traveling together 60 miles north of the Mexican
border. 159 Again applying its "chary review" in a case in which the
agents did not have a reasonable belief that the vehicle came from
the border, 160 the court found sufficient facts under the totality of
151.
152.
153.
154.
[d.
[d. at 302.
[d. at 301-02.
[d. Apparently, if the officer who first observed the car and radioed the second officer
to look out for it had reasonable suspicion and had advised the second officer to stop, the
stop would have been justified. See United States v. Hensley, 469 U.S. 221, 230-33, 105 S.
Ct. 675, 682-83, 83 L. Ed. 2d 604, 613-14 (1985).
155. 788 F.2d at 303 (Garza, J., dissenting).
156. [d. (Garza, J., dissenting).
157. [d. (Garza, J., dissenting).
158. 784 F.2d 1231 (5th Cir. Mar. 1986).
159. [d. at 1233-34.
160. [d. at 1233.
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circumstances to justify a reasonable suspicion. 161 The vehicles were
riding low in the rear as if heavily loaded; they were traveling together
in close proximity on a highway frequently used for smuggling
undocumented aliens; and the occupants frequently observed the
following officers in the rearview mirror. 162
In United States v. Henke,163 a roving border patrol detected a
strong odor of marijuana from a pickup with a camper shell and
stopped the truck, discovering 123 pounds of marijuana. 164 The Fifth
Circuit upheld the search, noting that the facts giving rise to a
reasonable suspicion that the pickup was smuggling aliens were the
following: The pickup truck remained parked nearly all night at a
roadside park two miles south of a border patrol checkpoint; trucks
with camper shells are frequently used to smuggle aliens; the roadside
park was known to be frequently used by smugglers of illegal aliens
either as a drop-off point for illegal aliens, who would walk around
the checkpoint, or as a place where they could observe when the
checkpoint was manned; the flashing red light indicating the checkpoint was manned stayed on all night and was on when the truck
finally left and turned back south; the direction from which it had
come; and the park's location was such that it would be highly
unusual to drive there for a legitimate reason and to park there late
at night, wait several hours, and then turn around and go back the
same direction the vehicle came from. 165
C.
EXIGENT CIRCUMSTANCES
If not of the government officer's own making, exigent circum-
stances, such as danger to law officers or risk of loss or destruction
of evidence, will dispense with the necessity of a warrant to enter
premises if probable cause to do so exists. In United States v. Munoz-
161. [d. at 1234.
162. [d. Apparently, the aliens believed the border patrol would not be working on that
day. [d. at 1232.
163.
775 F.2d 641 (5th CiT. Nov. 1985).
[d. at 642-43.
[d. at 644. The court observed that the Fifth Circuit has used varying standards of
review: clearly erroneous as to the reasonable suspicion conclusion, or clearly erroneous as to
findings of facts on which reasonable suspicion is based, but apparently an independent review
as to whether those facts, either expressly or impliedly found, amount to reasonable suspicion.
The court found it unnecessary to decide which should be applied since reasonable suspicion
existed under either standard in this case. [d. at 644 n.6.
164.
165.
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Guerra,166 where officers had probable cause to believe seizable drugs
were in a condominium under surveillance, the officers knocked on
a side door instead of waiting for a warrant. 167 The defendant
answered and said he had to get a key to open the door .168 Fearing
the retrieval of firearms or the destruction of evidence, the agents
forcibly entered the condominium and conducted a security search,
which revealed drugs and weapons. 169 In suppressing the evidence,
the Fifth Circuit held that the officers' initial decision to approach
the patio door was not justified by exigent circumstances. l7O Without
any reason to believe the suspect inside was aware of the police
presence, the mere presence of firearms or destructible, incriminating
evidence was not an exigency. 171 Moreover, the mere risk that a
suspect will become aware of covert surveillance is ordinarily not
enough. 172 No exigent circumstances existed until the officers revealed
themselves at the patio door; when they did that, warrantless entry
was a "foregone conclusion." 173
D.
GOOD FAITH
Under the so-called "good faith" exception to the exclusionary
rule, evidence will not be suppressed if it is obtained by law enforcement officers acting in objectively reasonable reliance on a search
warrant issued by a detached and neutral magistrate, even if the
affidavit on which the warrant was based was insufficient to establish
probable cause. 174 An excellent, brief primer on the application of
the exception in the Fifth Circuit is Judge Randall's opinion in
United States v. Maggitt. 175 In Maggitt a warrant issued by a city
judge to search the house of a bank robbery suspect was found
166.
167.
168.
169.
170.
171.
172.
173.
788 F.2d 295 (5th Cir. Apr. 1986).
[d. at 297.
[d.
[d.
[d. at 298.
[d.
[d. at 299.
[d. at 298; see also United States v. Whaley, 781 F.2d 417,419 (5th Cir. Jan. 1986)
(finding no exigency for a warrantless search of the curtilage of a dwelling when "no one else
was around the home during the time and there is no evidence that anyone but the officers
knew of the investigation").
174. United States v. Leon, 468 U.S. 897, 920-23, 104 S. Ct. 3405, 3420-21, 82 L. Ed. 2d
677, 697-98 (1984).
175. 778 F.2d 1029 (5th Cir. Dec. 1985), cert. denied, 106 S. Ct. 2920 (1986).
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inadequate by the district judge because the warrant affidavit failed
to set out facts on which to determine the reliability and credibility
of the information. 176 The district court did not suppress the evidence
seized under the warrant, however, concluding that the executing
officers had as:ted in "an objectively reasonable good faith reliance
on the warrant."177 The Fifth Circuit court found it unnecessary to
review the probable cause determination and decided only that the
searching officers acted in an objective good-faith reliance on the
warrant. 178 Comparing the warrant affidavit to that in the Supreme
Court's seminal decision of United States v. Leon,179 the court
concluded it was more than a "bare bones" affidavit because it
included detailed' results of a "careful and thorough investigation"
with repeated references to the facts, including an eyewitness' selection of the suspect's photo from an array. 180 Moreover, the careful
examination by the city judge of the investigating officers and his
apparent satisfaction with their responses provided the basis for an
objectively reasonable belief "that whatever flaws may have existed
in the warrant were cured by the city judge's questions and their
answers at the warrant application proceeding." 181
Although the court in Maggitt bypassed review of the probable
cause determination, Judge Randall acknowledged that it should heed
Supreme Court Justice White's admonition and not take that course
in any case in which the fourth amendment issue presents a "novel
question of law" or a question of "broad import."182 Otherwise,
lower courts are deprived of guidance on substantive issues. If a case
involves only an application of well-settled fourth amendment prin-
176.
Id. at 1032.
Id.
178. Id. at 1033, 1036.
179. 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
180. 778 F .2d at 1036.
181. Id. Under Federal Rule of Criminal Procedure 41(c)(l), oral testimony of the officers
at the warrant application proceeding could not be considered unless recorded. See FED. R.
CRIM. P. 41(c)(l). The court decided the officers could reasonably conclude that the city judge
was complying with rule 41(c)(l), even though he was not. 778 F.2d at 1036. (Some might
question whether it was, in fact, reasonable for federal officers to assume that a city judge
would know what the requirements of the Federal Rules were when it is common knowledge
that some city judges do not know what the state law requires.) The court also concluded that
the severe sanction of exclusion is apparently not appropriate when the rule violated was not
designed to deter police misconduct but only to insure adequate review of the probable cause
determination. 778 F.2d at 1036 nA.
182. 778 F.2d at 1033.
177.
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TEXAS TECH LA W REVIEW
ciples, as in Maggitt, whether the facts in the affidavit establish
probable cause, the court on appellate review can move right to the
good-faith question, pretermitting the probable cause question. 183
VIII.
CONFESSIONS
-,
Confirming the Fifth Circuit position that vohintariness of a
confession is a "mixed question of law and fact, "184 the Supreme
Court held in Miller v. Fenton 185 that a state court determination of
that issue is not entitled to a presumption of correctness on habeas
corpUS but is subject to independent federal determination. 186 Accordingly, the Fifth Circuit, by plenary review of the issue in a
number of cases, upheld the district court's determination that a
state confession was voluntary.187 As to factual issues subsidiary to
the voluntariness issue, such as credibility of witnesses, the determinations of the magistrate or district court are subject to the "clearly
erroneous" standard of review. 188 On review of a federal, as opposed
to a state, criminal conviction, however, the clearly erroneous standard applies to the voluntariness determination. 189
Relying on Berkemeyer v. McCartY,I90 the Fifth Circuit decided
in United States v. Alvarado Garcia 191 that questioning by a border
patrol agent of the driver of a dump truck lawfully stopped on the
basis of reasonable suspicion of smuggling was not a custodial
interrogation. 192 After the stop, the border patrol agent identified
183. [d.; accord United States v. Breckenridge, 782 F.2d 1317, 1321-22 (5th Cir. Feb. 1986)
(good faith-reasonable reliance rule applicable even if magistrate did not read the supporting
affidavit); United States v. Merida, 765 F.2d 1205, 1214 (5th Cir. June 1985) (officers not
expected to second-guess magistrate, particularly when search warrants were based partly on
grand jury indictment of which officers were aware). The court refused to apply the good
faith exception to a warrantless search of residential property based "on a point of established
law" in United States v. Whaley, 781 F.2d 417,421 (5th Cir. Jan. 1986) (sheriff did not think
he needed a warrant to enter curtilage when he had probable cause, based on a plain view,
to believe that marijuana plants were growing there).
184. Brantley v. McKaskle, 722 F.2d 187 (51h Cir. 1984).
185. _
U.S. _ , 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985).
186. [d. at _ _, 106 S. Ct. at 450-51,88 L. Ed. 2d at 411-12.
187. Wicker v. McCotter, 783 F.2d 487, 498 (5th Cir. Feb. 1986), cert. denied, 106 S. Ct.
3310 (1986); Meadows v. McCotter, 782 F.2d 489, 490 (5th Cir. Feb. 1986), cert denied, 107
S. Ct. 136 (1986); Moran v. Blackburn, 781 F.2d 444, 445-46 (5th Cir. Jan. 1986).
188. See 782 F.2d at 490; 781 F.2d at 446-47.
189. 781 F.2d at 445.
190. 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 817 (1984).
191. 781 F.2d 422 (5th Cir. Jan. 1986).
192. [d. at 426.
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himself and asked the driver if he was a U.S. citizen. 193 The driver
answered yes, produced his driver's license and, appearing· "nervous," said he was hauling gravel. 194 The agent mounted the truck
and saw sealed cardboard boxes through a gap between a tarpaulin
cover and the sidewall of the truck bed. l95 When asked by the agent
what was in the boxes, the driver said marijuana, turned around,
and put his hands behind his back to be handcuffed. 196 Subsequent
searches of cartons in the cab and the bed of the truck, upheld as
a search incident to an arrest and an inventory search, respectively,
revealed marijuana in all the boxes. 197
Applying its four-factor test of custodY,198 the court found that
when the suspect was questioned, probable cause for an arrest did
not yet exist and the officers intended only to detain the suspect
temporarily.199 Even if the investigation had focused on the suspect,
the limited intrusion on the suspect's liberty under these circumstances
"did not give rise to a significant risk of coerced testimony. "200 The
court emphasized that the typical border patrol stop does not involve
a significant potential for coercion, but the unstated premise of the
opinion is that the reasonable person in the suspect's position would
not have understood he was in custody. 201 Thus, the stopped suspect
was not "in custody" when he made his incriminating admission,
and that statement could properly provide the probable cause for the
arrest.
An indication by a suspect that he wants counsel at some future
time is not an invocation of the right to counsel sufficient to trigger
193.
194.
195.
196.
197.
[d. at 424.
[d.
[d.
[d.
[d. at 426-27. Query the court's reliance on New York v. Belton, 453 U.S. 454, 101
S. Ct. 2860, 69 L. Ed. 2d 768 (1981),as authority for search of the truck's cab as incident to
a lawful arrest. It appears the suspect was not arrested in the cab and that probable cause to
arrest did not arise until after he was outside the vehicle.
A possible fourth amendment claim suggested by the court, based on the agent's climbing
on and looking into the truck, was not raised by defense counsel. 781 F.2d at 425 n.3. The
agent's view was hardly a "plain view."
198. See United States v. Henry, 604 F.2d 908, 915-16 (5th Cir. 1979) (stating that four
factors should be examined to determine whether the defendant was in custody during the
interrogation: (I) probable cause to arrest; (2) subjective intent of the officer; (3) subjective
belief of the suspect; and (4) focus of the investigation).
199. 781 F.2d at 426.
200. [d.
201. [d.
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the Edwards v. Arizona202 ban to all but suspect-initiated communications between police and suspects without counsel. In Bradburn v.
McCotter,203 the accused, arrested in Nevada for car theft, was given
Miranda warnings before being questioned by Dallas, Texas police
officers in Nevada about a Dallas resident's disappearance. 204 The
accused stated he understood his rights and wished to waive them,
but during the interview he said he "wanted to wait until he got
back to Dallas to get a court appointed lawyer. "205 The accused
made oral incriminating admissions but refused to make a written
statement. 206 When the accused was returned to Dallas three days
later, he was "Mirandized" again, waived his rights, and confessed
to murder. 207 The court held that the accused's reference to an
attorney while in Nevada was not even an equivocal present request
for counsel, and, at most, was an equivocal request for counsel at
some future time. 208 Prior Fifth Circuit precedent required interrogating officers to cease interrogation only in the case of an at least
equivocal or ambiguous invocation of a present right to counsel.209
Accordingly, the Edwards rule was no impediment to either the
Nevada or Texas interrogations. 210
The Fifth Circuit correctly anticipated the Supreme Court's
extension of Edwards v. Arizona beyond a fifth amendment context
to protection of an accused's sixth amendment rights in Felder v.
McCotter. 2lI An attorney was appointed to represent Felder when he
was arraigned in Idaho on a fugitive warrant from Texas for capital
202. 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
203. 786 F.2d 627 (5th Cir. Apr. 1986), cert. denied, 107 S. Ct. 167 (1986).
204. [d. at 628.
205. [d.
206. [d. In Bradburn the accused would make only an oral statement in Nevada, refusing
to make a written statement. If he were to have claimed that he understood only a written
statement could be used against him, would his waiver of Miranda rights have been valid?
Probably. See United States v. McOure, 786 F.2d 1286 (5th Cir. Apr. 1986) (applying the
U.S. _ , 106 S. Ct. 1135,86 L. Ed. 2d 410
updated waiver analysis of Moran v. Burbine, _
(1986».
207. 786 F.2d at 628.
208. [d.
209. See United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984), cert. denied, 55
U.S.L.W. 3494 (U.S. Jan. 20, 1987) (No. 8/j-5698).
210. 786 F.2d at 630; see United States v. Jardina, 747 F.2d 945 (5th Cir. 1984), cert.
denied, 470 U.S. 1058 (1985) (distinguishing Cherry). Jardina is discussed in Bubany, Criminal
Law and Procedure, 16 TEX. TECH L. REv. 269, 298-99 (1985).
211. 765 F.2d 1245 (5th Cir. July 1985), cert. denied, 106 S. Ct. 1523 (1986).
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murder. 212 The attorney directed the police not to question Felder in
the absence of counsel. 213 Nevertheless, a Houston police officer who
knew Felder had an attorney, came to Idaho and, after giving
Miranda warnings, interrogated Felder without notice to his attorney.214 Felder made an oral confession and confirmed it in a later
written confession, which contained a Miranda warning and waiver
statement. 215 The court ruled the confession inadmissible because it
was obtained in violation of the defendant's sixth amendment right
to counsel,216 Relying on Brewer v. Wi/liams,217 the court found that
a mere recital of Miranda rights along with a signed waiver did not
sustain the State's burden of showing a voluntary relinquishment of
the right to counsel. 218 The Supreme Court went one step further in
Michigan v. Jackson,219 holding that "if police initiate interrogation
after defendant's assertion, at an arraignment or similar proceeding,
of his right to counsel, any waiver of the defendant's right to counsel
for that police-initiated interrogation is invalid.' '220
212. [d. at 1246.
213. [d.
214. [d. at 1247.
215. [d.
216. [d. at 1246.
217. 430 U.S. 387, 97 S. Ct. 1232,51 L. Ed. 2d 424 (1977).
218. 765 F.2d at 1249.
219. _
U.S. _ , 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986).
220. [d. at _ . 106 S. Ct. at 1411, 89 L. Ed. 2d at 642. But cj. Moran v. Burbine,
_
U.S. _ . 106 S. Ct. 1135,89 L. Ed. 2d 410 (1986). in which the Supreme Court found a
valid Miranda waiver even though the police misinformed the suspect's attorney they would
not be questioning the suspect and they failed to inform the suspect of the attorney's efforts
to reach him. [d. at _ _, 106 S. Ct. at 1141, 89 L. Ed. 2d at 428.
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