United States v. Johnny Edwin Hare
1979 U.S. App. LEXIS 17059 · 589 F.2d 242
February 7, 1979 · Docket 78-5559
Headnotes
Generated summaries- Headnote 1
The defendant did not move before trial to suppress the drugs and guns as required by Rule 12(b). He objected for the first time at trial, and the court applied Rule 12(f) to strike the claim as waived.
- Headnote 2
The defense failed to move before trial to suppress the seized drugs and firearms as mandated by Rule 12(b). Because the motion was not timely, the issue was considered waived.
- Headnote 3
Officers searched a densely wooded, unposted area near a highway that was not part of any dwelling’s curtilage. The court held no warrant was required under the open‑fields doctrine, citing United States v. Williams.
- Headnote 4
The defendant requested the informant’s identity, asserting it might help his defense. The court applied the Roviaro balancing factors and concluded the alleged relevance was too attenuated to necessitate disclosure.
- Headnote 5
In Hare, the defendant objected at trial to the warrantless search after failing to move beforehand; the court held that the objection was waived under Rule 12(f).
- Headnote 6
Hare’s defense did not move before trial to suppress the drugs and firearms as required, and only raised the issue by objection at trial.
- Headnote 7
Officers searched a densely wooded, open, unfenced area away from any dwelling without a warrant, and the court found no Fourth Amendment violation.
- Headnote 8
Hare requested the informant’s identity, but the court applied the Roviaro test and concluded the disclosure was unnecessary to his defense.
- Headnote 9
The court found that any possible testimony by the informant about Hare’s knowledge of the bag’s contents was too attenuated to warrant disclosure.
Opinion
Hare was convicted on counts One through Four charging possession with intent to distribute various drugs, and Count Five, possession of a firearm after being convicted of a felony.
The defense did not move before trial to suppress the drugs and the guns as required by F.R.Crim.P. 12(b) and first raised it by objection at trial. Under Rule 12(f) this waived the point, but even if the issue of warrantless search had been properly raised it was without merit. Officers were not required to secure a warrant to search an open, unfenced, unposted densely wooded area, near a highway and not part of the curtilage of any dwelling. E. g., U. S. v. Williams, 581 F.2d 451, 453-54 (C.A.5, 1978).
There was no error in refusing to divulge the identity of an informer. Hare contended that he was entitled to know the informer’s identity on the theory that he did not know the contents of the bag hidden in the woods and containing the drugs and the guns and was merely investigating the sack to see what it contained. The informer’s tip had represented that the informer was present when Hare and his brother placed the bag in the woods and had said or implied that persons other than the Hare brothers may have been present. The bag was partially covered by rocks and vegetation. The area was so densely wooded that it was difficult to reach the location of the sack, and Hare had to crawl to get to it. Hare placed his hand into the sack but when he was flushed had not removed anything; he removed his hand and officers took possession of the sack and closed it. Shortly thereafter Hare voluntarily told his father, in the presence of the officers, that he had been “caught in a trap.” Later, at police headquarters, the officers dumped out the sack. In the bottom, underneath the drugs, were two guns. Soon thereafter Hare was overheard making a telephone call in which he told the person at the other end of the line to call his [Hare’s] lawyer and “tell him they’ve got both guns.” Hare’s theory is that, if revealed, the informer might testify that Hare, though physically present when the sack was brought into the woods and put in its location, did not know what was in the sack. Under the balancing test of Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956), this possibility (if it can be called possibility at all) is simply too attenuated to be considered a necessary part of Hare’s defense.
The contention of multiplicity in counts One through Four is raised for the first time on appeal. In any event, we do not reach it since the sentences on counts Two, Three and Four are concurrent with the sentence on count One.
AFFIRMED.