United States v. Clara B. Penn, A/K/A Clara B. Alexander

The district court suppressed a jar of heroin taken from the defendant’s backyard, and the government appealed under 18 U.S.C. § 3731 . 1 After a panel of this court had concluded that reversal was necessary, the panel suggested that the court consider the question en banc. The panel decision has been withdrawn, and the following opinion reflects the view of the majority of the court en banc.

I. Statement of the Case

Two years of Seattle police investigation led officers to believe that Clara Penn was distributing heroin from her residence. Evidence sufficient to justify a search warrant indicated that some of the Penn children were buying items used in the packaging and distribution of narcotics and that, when a delivery was to be made to a customer, one of the children was sent to retrieve drugs from a cache believed to be in the backyard.

A state magistrate issued a search warrant which described the premises to be searched as the residential premises, including the yard. The police surrounded the house, entered, and seated in the living room the approximately 10 persons found on the premises. Clara Penn’s children, *879 ranging in age from 5 to 22, were among them. They,…

dissenting:

I agree with the majority that the police conduct in the execution of the search warrant in this case did not violate the due process clause of the Fifth Amendment. I dissent, however, from the reversal of the district court’s order suppressing the evidence because I believe that the search was unreasonable under the Fourth Amendment.

The majority finds that the trial judge was wrong in stretching the Rochin line of cases to cover the facts in this case, and essentially rests. Although the majority purports to examine the search under the Fourth Amendment standard of reasonableness, it fails to differentiate adequately between the shockingness and reasonableness standards.

A search can be unreasonable under the Fourth Amendment without offending the Fifth Amendment. See Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957). (Blackford and a subsequent case, Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), involved body cavity searches, and both held the searches to be reasonable.)

Here we have no body cavity search for drugs at a border station, but the execution of a warrant to search a backyard for drugs. Instead of digging with a shovel, which might…

dissenting, with whom HUG and TANG, Circuit Judges, concur:

I agree completely with Judge Goodwin’s dissenting opinion. These brief additional comments seem appropriate in view of all the implications of the case.

The rigidities of the exclusionary rule, and the occasional frustration caused by its enforcement, should not obscure the fact that determinations of fourth amendment reasonableness must be made independently of the question whether exclusion of the evidence is undesirable for other reasons. It distorts the idea of reasonableness to hold, as the court does today, that the police conduct does not require exclusion of the evidence, even on the plausible assumption that in this instance the police acted in good faith.

The requirement that the defendant must show injury to his or her own rights in order to object to evidence is altogether met here. The question is whether the police can use the search of a residence as the occasion for a severe intrusion upon the relation between a mother and a child who has not reached the age of reason. Her relationship to the child belongs intimately to the mother. See Morrison v. Jones, 607 F.2d 1269, 1275-76 (9th Cir. 1979) (per…

dissenting from the denial of a rehearing en banc:

This case was decided at a unique time of transition for this court. Several judges who originally voted to hear the case en banc left the court before they could participate in the decision, and our rules did not permit the newly appointed judges to participate. Because the decision may have a profound effect on the law of this circuit and on the conduct of law enforcement officers, the case should be reheard en banc by the court as now constituted.

The majority opinion is deeply troubling for reasons well expressed by my brothers GOODWIN, KENNEDY, and FERGUSON. It ignores the body of case law emphasizing the significance of the family and expanding the zone of constitutional protection we accord the private sanctuary of family life. 1 *890 A parent’s relationship with her young child certainly falls within this protected area. The majority is on dangerous and frightening ground when it ties the level of constitutional protection to the court’s perception of the quality of the Penn family. 2 This invites police to apply an “Ozzie and Harriet” test by which the reasonableness of a search is based in part on the worthiness of the…

(dissenting from the denial of a rehearing en banc):

I concur in Judge Fletcher’s and Judge Ferguson’s dissents from the denial of a rehearing en banc.

dissenting from the denial of a rehearing en banc by the full court:

In order to avoid an overflow of emotion triggered by the majority opinion, I have chosen to set forth only briefly my reasons why this case must be reheard en banc.

First, the majority repeatedly assert that it would affirm the district court but for the fact that the police conduct was a single isolated intrusion. That fact is refuted by the record. As set out on page 21 of the reporter’s transcript of the hearing on the suppression motion, Officer Stanford testified, “It was actually the first time that I ever did this with a child that young.” The implication of this statement is obvious: bribing children to inform against their parents is not an isolated police practice.

Secondly, the case began as a state prosecution. After the state trial judge suppressed the evidence because of the activities of the police in his state, the state prosecutor dismissed the charges.

If this police conduct is offensive to the state courts of Washington, it is offensive to the basic principles of federalism when the federal courts tell the people of Washington that they must accept that type of police conduct. The erosion…

647 F.2d 876 8 Fed. R. Evid. Serv. 485 UNITED STATES of America, Appellant, v. Clara B. PENN, a/k/a Clara B. Alexander, Appellee. No. 77-3918. United States Court of Appeals, Ninth Circuit. May 15, 1980. Rehearing Denied July 28, 1980. John C. Merkel, U. S. Atty., Seattle, Wash., on brief; Christine McKenna, Seattle, Wash., for appellant. James A. Vonasch, Seattle, Wash., on brief; Jack A. Richey, Seattle, Wash., for appellee. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG, and TANG, Circuit Judges. * CHOY, Circuit Judge: 1 The district court suppressed a jar of heroin taken from the defendant's backyard, and the government appealed under 18 U.S.C. § 3731 . 1 After a panel of this court had concluded that reversal was necessary, the panel suggested that the court consider the question en banc. The panel decision has been withdrawn, and the following opinion reflects the view of the majority of the court en banc. I. Statement of the Case 2 Two years of Seattle police investigation led officers to believe that Clara Penn was distributing heroin from her residence. Evidence…